shall be required in the same manner as heretofore, or (B) permit any contract for the construction or repair of buildings, roads, sidewalks, sewers, mains, or similar items to be negotiated without advertising as required by section 253 of this title, unless such contract is to be performed outside the continental United States or unless negotiation of such contract is authorized by the provisions of paragraphs (1)–(3), (10)-(12), or (14) of subsection (c) of this section. (June 30, 1949, ch. 288, title II, § 302, 63 Stat. 393; July 12, 1952, ch. 703, § 1 (m), 66 Stat. 594; Aug. 28, 1958, Pub. L. 85-800, §§ 1-3, 72 Stat. 966.) Sec. 253. Advertising requirements Whenever advertising is required (a) The advertisement for bids shall be made a sufficient time previous to the purchase or contract, and specifications and invitations for bids shall permit such full and free competition as is consistent with the procurement of types of property and services necessary to meet the requirements of the agency concerned. (b) All bids shall be publicly opened at the time and place stated in the advertisement. Award shall be made with reasonable promptness by written notice to that responsible bidder whose bid, conforming to the invitation for bids, will be most advantageous to the Government, price and other factors considered: Provided, That all bids may be rejected when the agency head determines that it is in the public interest so to do. (June 30, 1949, ch. 288, title III, § 303, 63 Stat. 393; July 12, 1952, ch. 703, § 1 (m), 66 Stat. 594.) Sec. 254. Negotiated contracts (a) Requirements Except as provided in subsection (b) of this section, contracts negotiated pursuant to section 252 (c) of this title may be of any type which in the opinion of the agency head will promote the best interests of the Government. Every contract negotiated pursuant to section 252 (c) of this title shall contain a suitable warranty, as determined by the agency head, by the contractor that no person or selling agency has been employed or retained to solicit or secure such contract upon an agreement or understanding for a commission, percentage, brokerage, or contingent fee, excepting bona fide employees or bona fide established commercial or selling agencies maintained by the contractor for the purpose of securing business, for the breach or violation of which warranty the Government shall have the right to annul such contract without liability or in its discretion to deduct from the contract price or consideration the full amount of such commission, percentage, brokerage, or contingent fee. (b) Barred contracts; fee limitation; determination of use; advance notification The cost-plus-a-percentage-of-cost system of contracting shall not be used, and in the case of a cost-plus-a-fixed-fee contract the fee shall not exceed 10 per centum of the estimated cost of the contract, exclusive of the fee, as determined by the agency head at the time of entering into such contract (except that a fee not in excess of 15 per centum of such estimated cost is authorized in any such contract for experimental, developmental, or research work and that a fee inclusive of the contractor's costs and not in excess of 6 per centum of the estimated cost, exclusive of fees, as determined by the agency head at the time of entering into the contract, of the project to which such fee is applicable is authorized in contracts for architectural or engineering services relating to any public works or utility project). Neither a cost nor a cost-plus-a-fixed-fee contract nor an incentive-type contract shall be used unless the agency head determines that such method of contracting is likely to be less costly than other methods or that it is impractical to secure property or services of the kind or quality required without the use of a cost or cost-plus-a-fixed-fee contract or an incentive-type contract. All cost and cost-plus-a-fixed-fee contracts shall provide for advance notification by the contractor to the procuring agency of any subcontract thereunder on a cost-plus-a-fixed-fee basis and of any fixed-price subcontract or purchase order which exceeds in dollar amount either $25,000 or 5 per centum of the total estimated cost of the prime contract; and a procuring agency, through any authorized representative thereof, shall have the right to inspect the plans and to audit the books and records of any prime contractor or subcontractor engaged in the performance of a cost or cost-plus-a-fixedfee contract. (c) Examination of books, records, etc., of contractors; time limitation All contracts negotiated without advertising pursuant to authority contained in this chapter, chapter 11C of Title 5, chapter 10 of Title 40, and chapter 11 of Title 44 shall include a clause to the effect that the Comptroller General of the United States or any of his duly authorized representatives shall until the expiration of three years after final payment have access to and the right to examine any directly pertinent books, documents, papers, and records of the contractor or any of his subcontractors engaged in the performance of and involving transactions related to such contracts or subcontracts. (June 30, 1949, ch. 288, title III, § 304, 63 Stat. 395; Oct. 31, 1951, ch. 652, 65 Stat. 700; July 12, 1952, ch. 703, § 1 (m), 66 Stat. 594.) Sec. 255. Advance or other payments; restrictions; conditions (a) Any executive agency may (1) make advance, partial, progress or other payments under contracts for property or services made by the agency; and (2) insert in bid solicitations for procurement of property or services a provision limiting to small business concerns advance or progress payments. (b) Payments made under subsection (a) of this section may not exceed the unpaid contract price. (c) Advance payments under subsection (a) of this section may be made only upon adequate security and a determination by the agency head that to do so would be in the public interest. Such security may be in the form of a lien in favor of the Government on the property contracted for, on the balance in an account in which such payments are deposited, and on such of the property acquired for performance of the contract as the parties may agree. This lien shall be paramount to all other liens. (June 30, 1949, ch. 288, title III, § 305, 63 Stat. 396; July 12, 1952, ch. 703 § 1 (m), 66 Stat. 594; Aug. 28, 1958, Pub L. 85-800, § 4, 72 Stat. 966.) Sec. 256. Repealed. Sept. 10, 1950, ch. 849, § 10(b), 64 Stat. 591, eff. July 1, 1949 Section, act June 30, 1949, ch. 288, title III, § 306, 63 Stat. 396, related to waiver of liquidated damages, and is now covered by section 256a of this title. Sec. 256a. Waiver of liquidated damages Whenever any contract made on behalf of the Government by the head of any Federal Agency, or by officers authorized by him so to do, includes a provision for liquidated damages for delay, the Comptroller General upon recommendation of such head is authorized and empowered to remit the whole or any part of such damages as in his discretion may be just and equitable. (Sept. 5, 1950, ch. 849, § 10 (a), 64 Stat. 591.) Sec. 257. Administrative determinations (a) Conclusiveness; delegation of powers The determinations and decisions provided in this chapter to be made by the Administrator or other agency head may be made with respect to individual purchases and contracts or with respect to classes of purchases or contracts, and shall be final. Except as provided in subsection (b) of this section, the agency head is authorized to delegate his powers provided by this chapter, including the making of such determinations and decisions, in his discretion and subject to his direction, to any other officer or officers or officials of the agency. (b) Nondelegable powers; powers delegable to certain persons The power of the agency head to make the determinations or decisions specified in paragraphs (12) and (13) of section 252 (c) of this title shall not be delegable, and the power to make the determinations or decisions specified in paragraph (11) of section 252 (c) of this title shall be delegable only to a chief officer responsible for procurement and only with respect to contracts which will not require the expenditure of more than $25,000. The power of the Administrator to make the delegations and determinations specified in section 252 (a) of this title shall be delegable only to the Deputy Administrator or to the chief official of any principal organizational unit of the General Services Administration. (c) Basis of determinations; finding conclusive; preservation of findings; copy Each determination or decision required by paragraphs (11)–(13), or (14) of section 252(c), by section 254 or by section 255 (c) of this title shall be based upon written findings made by the official making such determination, which findings shall be final and shall be available within the agency for a period of at least six years following the date of the determination. A copy of the findings shall be submitted to the General Accounting Office with the contract. (d) Preservation of data In any case where any purchase or contract is negotiated pursuant to the provisions of section 252 (c) of this title, except in a case covered by paragraphs (2)–(5), or (6) of section 252 (c) of this title, the data with respect to the negotiation shall be preserved in the files of the agency for a period of six years following final payment on such contract. (June 30, 1949, ch. 288, title III, § 307, 63 Stat. 396; Aug. 28, 1958, Pub. L. 85-800, § 5, 72 Stat. 967.) Sec. 258. Laws applicable to contracts No purchase or contract shall be exempt from sections 35-45 of this title, or from sections 276a to 276a-5 of Title 40, solely by reason of having been entered into pursuant to section 252 (c) of this title without advertising, and the provisions of sections 276a to 276a-5, 324 and 325a of Title 40, if otherwise applicable, shall apply to such purchases and contracts. (June 30, 1949, ch. 288, title III, § 308, 63 Stat. 396.) Sec. 259. Definitions As used in this chapter (a) The term "agency head" shall mean the head or any assistant head of any executive agency, and may at the option of the Administrator include the chief official of any principal organizational unit of the General Services Administration. (b) Repealed. July 12, 1952, ch. 703, § 1 (h), 66 Stat. 593. (June 30, 1949, ch. 288, title III, § 309, 63 Stat. 396; July 12, 1952, ch. 703, § 1(h), 66 Stat. 593.) Sec. 260. Laws not applicable to contracts (a) The following provisions of law shall not apply to the procurement of property or services (1) by the General Services Administration, or (2) within the scope of authority delegated by the Administrator to any other executive agency: Section 5 of this title; Sections 6 and 6a of this title. (b) Reference in any Act, except subsection (a) of this section, to the applicability of section 5 of Title 41, to the procurement of property or services by the General Services Administration or any constituent organization thereof, or any other executive agency delegated authority pursuant to section 252 (a) (2) of this title, shall be deemed to be reference to section 252 (c) of this title. (June 30, 1949, ch. 288, title III, § 310, 63 Stat. 397; July 12, 1952, ch. 703, § 1 (m), (n), 66 Stat. 594; Aug. 28, 1958, Pub. L. 85-800, § 6, 72 Stat. 967.) VOL. VIII. OTHER RELATED MATERIAL FEDERAL HIGHWAY ADMINISTRATOR AND DEPUTY FEDERAL HIGHWAY ADMINISTRATOR Public Law 966, 84th Cong., Aug. 3, 1956, 70 Stat. 990 AN ACT To provide for the appointment of a Federal Highway Administrator in the Department of Commerce, and for other purposes Sec. 2 * The term "Commissioner of Public Roads", as used in all laws, orders, and regulations, shall be deemed to mean "Federal Highway Administrator" on and after the date of enactment of this Act. GOVERNMENT EMPLOYEES SALARY REFORM ACT OF 1964 Public Law 88-426, 88th Cong., Aug. 14, 1964, 78 Stat. 400 AN ACT To adjust the rates of basic compensation of certain officers and employees in the Federal Government, and for other purposes. TITLE III-FEDERAL EXECUTIVE SALARIES SEC. 301. This title may be cited as the "Federal Executive Salary Act of 1964". SEC. 302. There is hereby established for offices and positions to which section 303 of this title applies a basic compensation schedule, to be known as the "Federal Executive Salary Schedule", which shall be divided into five salary levels. * SEC. 303. (e) Level V of the Federal Executive Salary Schedule shall apply to the following offices and positions, for which the annual rate of basic compensation shall be $26,000: (76) Federal Highway Administrator, Department of Commerce. MISCELLANEOUS POSITIONS IN THE EXECUTIVE BRANCH SEC. 309. Each office or position in the executive branch specifically referred to in, or covered by, any conforming change in law made by section 305 of this Act, or any other office or position in the executive branch for which the annual salary is established pursuant to special provision of law enacted prior to the date of enactment of this Act, at a figure of $18,500 or above, which is not placed in a level of the Federal Executive Salary Schedule pursuant to section 303 of this Act, shall be paid basic compensation at a rate which is equal to the salary rate of a grade and step of the General Schedule of the Classification Act of 1949, as amended. All actions taken under this section shall be reported to the United |