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“MILLER ACT”—CONTRACTS TO BE ACCOM
PANIED BY A PERFORMANCE BOND
40 U.S.C., sec. 270a-270d
Sec. 270a. Bonds of contractors for public buildings or works;
waiver of bonds covering contract performed in foreign
country (a) Before any contract, exceeding $2,000 in amount, for the construction, alteration, or repair of any public building or public work of the United States is awarded to any person, such person shall furnish to the United States the following bonds, which shall become binding upon the award of the contract to such person, who is hereinafter designated as "contractor":
(1) A performance bond with a surety or sureties satisfactory to the officer awarding such contract, and in such amount as he shall deem adequate, for the protection of the United States.
(2) A payment bond with a surety or sureties satisfactory to such officer for the protection of all persons supplying labor and material in the prosecution of the work provided for in said contract for the use of each such person. Whenever the total amount payable by the terms of the contract shall be not more than $1,000,000 the said payment bond shall be in a sum of one-half the total amount payable by the terms of the contract. Whenever the total amount payable by the terms of the contract shall be more than $1,000,000 and not more than $5,000,000, the said payment bond shall be in a sum of 40 per centum of the total amount payable by the terms of the contract. Whenever the total amount payable by the terms of the contract shall be more
than $5,000,000 the said payment bond shall be in the sum of $2,500,000. (b) The contracting officer in respect of any contract is authorized to waive the requirement of a performance bond and payment bond for so much of the work under such contract as is to be performed in a foreign country if he finds that it is impracticable for the contractor to furnish such bonds.
(c) Nothing in this section shall be construed to limit the authority of any contracting officer to require a performance bond or other security in addition to those, or in cases other than the cases specified in subsection (a) of this section. (Aug. 24, 1935, ch. 642, § 1, 49 Stat. 793.) Sec. 270b. Same; rights of persons furnishing labor or material
(b) Every suit instituted under this section shall be brought in the name of the United States for the use of the person suing, in the United States District Court for any district in which the contract was to be performed and executed and not elsewhere, irrespective of the amount in controversy in such suit, but no such suit shall be commenced after the expiration of one year after the day on which the last of the labor was performed or material was supplied by him. The United States shall not be liable for the payment of any costs or expenses of any such suit. (Aug. 24, 1935, ch. 642, § 2, 49 Stat. 794; As amended Aug. 4, 1959, Pub. L. 86–135, § 1, 73 Stat. 279.) Sec. 270c. Same; right of person furnishing labor or material to
copy of bond The Comptroller General is authorized and directed to furnish, to any person making application therefor who submits an affidavit that he has supplied labor or materials for such work and payment therefor has not been made or that he is being sued on any such bond, a certified copy of such bond and the contract for which it was given, which copy shall be prima facie evidence of the contents, execution, and delivery of the original. Applicants shall pay for such certified copies such fees as the Comptroller General fixes to cover the cost of preparation thereof. (Aug. 24, 1935, ch. 642, § 3, 49 Stat. 794; As amended Aug. 4, 1959, Pub. L. 86–135, $ 2, 73 Stat. 279.) Sec. 270d. Same; definition of "person"
The term “person” and the masculine pronoun as used in sections 270a—270c of this title shall include all persons whether individuals, associations, copartnerships, or corporations. (Au 24, 1935, ch: 642, § 4, 49 Stat. 794.)
41 U.S.C., sec. 5 Sec. 5. Advertisements for proposals for purchases and contracts
for supplies or services for Government departments; application to Government sales and contracts to sell and to Gov
ernment Corporations Unless otherwise provided in the appropriation concerned or other law, purchases and contracts for supplies or services for the Government may be made or entered into only after advertising a sufficient time previously for proposals, except (1) when the amount involved in any one case does not exceed $2,500, (2) when the public exigencies require the immediate delivery of the articles or performance of the service, (3) when only one source of supply is available and the Government purchasing or contracting officer shall so certify, or (4) when the services are required to be performed by the contractor in person and are (A) of a technical and professional nature or (B) under Government supervision and paid for on a time basis. Except (1) as authorized by section 1638 of Appendix to Title 50, (2) when otherwise authorized by law, or (3) when the reasonable value involved in any one case does not exceed $500, sales and contracts of sale by the Government shall be governed by the requirements of this section for advertising.
In the case of wholly owned Government corporation, this section shall apply to their administrative transactions only. (R.S. § 3709; Aug. 2, 1946, ch. 744, 8 9 (a), (c), 60 Stat. 809; June 30, 1949, ch. 288, title VI, $ 602 (f), 63 Stat. 400, renumbered Sept. 5, 1950, ch. 849, 88 6 (a), (b), 8(c), 64 Stat. 583; Aug. 28, 1958, Pub. L. 85–800, 87, 72 Stat. 967.)
41 U.S.C., sec. 8 Sec. 8. Opening bids
Whenever proposals for supplies have been solicited, the parties responding to such solicitation shall be duly notified of the time and place of opening the bids, and be permitted to be present either in person or by attorney, and a record of each bid shall then and there be made. (R.S. § 3710.)
“BUY AMERICAN ACT”; AND E. 0. 10582, WHICH
DEALS WITH THE ADMINISTRATION OF THE ACT
41 U.S.C., sec. 10a-100 Sec. 10a. American materials required for public use
Notwithstanding any other provision of law, and unless the head of the department or independent establishment concerned shall determine it to be inconsistent with the public interest, or the cost to be unreasonable, only such unmanufactured articles, materials, and supplies as have been mined or produced in the United States, and only such manufactured articles, materials, and supplies as have been manufactured in the United States substantially all from articles, materials, or supplies mined, produced, or manufactured, as the case may be, in the United States, shall be acquired for public use. This section shall not apply with respect to articles, materials, or supplies for use outside the United States, or if articles, materials, or supplies of the class or kind to be used or the articles,
materials, or supplies from which they are manufactured are not mined, produced, or manufactured, as the case may be, in the United States in sufficient and reasonably available commercial quantities and of a satisfactory quality. (Mar. 3, 1933, ch. 212, title III, § 2, 47 Stat. 1520.) Sec. 10b. Contracts for public works; specification for use of
American materials; blacklisting contractors violating re
quirements (a) Every contract for the construction, alteration, or repair of any public building or public work in the United States growing out of an appropriation heretofore made or hereafter to be made shall contain a provision that in the performance of the work the contractor, subcontractor, material men, or suppliers, shall use only such unmanufactured articles, materials, and supplies as have been mined or produced in the United States, and only such manufactured articles, materials, and supplies as have been manufactured in the United States substantially all from articles, materials, or supplies mined, produced, or manufactured, as the case may be, in the United States except as provided in section 10a of this title: Provided, however, That if the head of the department or independent establishment making the contract shall find that in respect to some particular articles, materials, or supplies it is impracticable to make such requirement or that it would unreasonably increase the cost, an exception shall be noted in the specifications as to that particular article, material, or supply, and a public record made of the findings which justified the exception.
(b) If the head of a department, bureau, agency, or independent establishment which has made any contract containing the provision required by subsection (a) of this section finds that in the performance of such contract there has been a failure to comply with such provisions, he shall make public his findings, including therein the name of the contractor obligated under such contract, and no other contract for the construction, alteration, or repair of any public building or public work in the United States or elsewhere shall be awarded to such contractor, subcontractors, material men, or suppliers with which such contractor is associated or affiliated, within a period of three years after such finding is made public. (Mar. 3, 1933, ch. 212, title III, § 3, 47 Stat. 1520.) Sec. 10c. Definition of terms used in sections 10a and 10b
When used in sections 10a and 10b of this title
(a) The term “United States”, when used in a geographical sense, includes the United States and any place subject to the jurisdiction thereof;
(b) The terms "public use”, “public building”, and “public work” shall mean use by, public building of, and public work of, the United States, the District of Columbia, Puerto Rico, American Samoa, the Canal Zone, and the Virgin Islands. (Mar. 3, 1933, ch. 212, title III, § 1, 47 Stat. 1520 ; 1946 Proc. No. 2695, eff. July 4, 1946, 11 F.R. 7517, 60 Stat. 1352; As amended June 25, 1959, Pub. L. 86–70. § 43, 73 Stat. 151 ; July 12, 1960, Pub. L. 86–624, § 28, 74 Stat. 419.) Sec. 10d. Clarification of Congressional intent regarding sections
10a and 10b(a) In order to clarify the original intent of Congress, hereafter, section 10a of this title and that part of section 10b (a) of this title preceding the words “Provided, however,” shall be regarded as requiring the purchase, for public use within the United States, of articles, materials, or supplies manufactured in the United States in sufficient and reasonably available commercial quantities and of a satisfactory quality, unless the head of the department or independent establishment concerned shall determine their purchase to be inconsistent with the public interest or their cost to be unreasonable. (Oct. 29, 1949, ch. 787, title VI, 8 633, 63 Stat. 1024.)
EXECUTIVE ORDER No. 10582
DEC. 17, 1954, 19 F.R. 8723
UNIFORM PROCEDURES FOR DETERMINATIONS SECTION 1. As used in this order, (a) the term “materials” includes articles and supplies, (b) the term "executive agency” includes executive department, independent establishment, and other instrumentality of the executive branch of the Government, and (c) the term “bid or offered price of materials of foreign origin" means that bid or offered price of such materials delivered at the place specified in the invitation to bid including applicable duty and all costs incurred after arrival in the United States.
SEO. 2. (a) For the purposes of this order materials shall be considered to be of foreign origin if the cost of the foreign products used in such materials constitutes fifty per centum or more of the cost of all the products used in such materials.
(b) For the purposes of the said act of March 3, 1933 (section 10a-10c of this title), and the other laws referred to in the first paragraph of the preamble of this order, the bid or offered price of materials of domestic origin shall be deemed to be unreasonable, or the purchase of such materials shall be deemed to be inconsistent with the public interest, if the bid or offered price thereof exceeds the sum of the bid or offered price of like materials of foreign origin and a differential computed as provided in subsection (c) of this section.
(c) The executive agency concerned shall in each instance determine the amount of the differential referred to in subsection (b) of this section on the basis of one of the following-described formulas, subject to the terms thereof:
(1) The sum determined by computing six per centum of the bid or offered price of materials of foreign origin.
(2) The sum determined by computing ten per centum of the bid or offered price of materials of foreign origin exclusive of applicable duty and all costs incurred after arrival in the United States: provided that when the bid or offered price of materials of foreign origin amounts to less than $25,000, the sum shall be determined by computing ten per centum of such price exclusive only of applicable duty.
SEC. 3. Nothing in this order shall affect the authority or responsibility of an executive agency:
(a) To reject any bid or offer for reasons of the national interest not described or referred to in this order; or
(b) To place a fair proportion of the total purchases with small business concerns in accordance with section 302 (b) of the Federal Property and Administrative Services Act of 1949, as amended ('sections 252 (b) of this title], section 2(b) of the Armed Services Procurement Act of 1947, as amended (repealed; now covered by sections 2301, 2303–2305 of Title 10], and section 202 of the Small Business Act of 1953 [section 631 of Title 15); or
(c) To reject a bid or offer to furnish materials of foreign origin in any situation in which the domestic supplier offering the lowest price for furnishing the desired materials undertakes to produce substantially all of such materials in areas of substantial unemployment, as determined by the Secretary of Labor in accordance with such appropriate regulations as he may establish and during such period as the President may determine that it is in the national interest to provide to such areas preference in the award of Government contracts; Provided, that nothing in this section shall prevent the rejection of a bid or offered price which is excessive; or
(d) To reject any bid or offer for materials of foreign origin if such rejection is necessary to protect essential national-security interests after receiving advice with respect thereto from the President or from the Director of the Office of Emergency Planning. In providing this advice the Director shall be governed by the principle that exceptions under this section shall be made only upon a clear showing that the payment of a greater differential than the procedures of this section generally prescribe is justified by consideration of national security.'
SEC. 4. The head of each executive agency shall issue such regulations as may be necessary to insure that procurement practices under his jurisdiction conform to the provisions of this order.
Sec. 5. This order shall apply only to contracts entered into after the date hereof. In any case in which the head of an executive agency proposing to purchase domestic materials determines that a greater differential than that provided in this order between the cost of such materials of domestic origin and materials of foreign origin is not unreasonable or that the purchase of materials of domestic origin is not inconsistent with the public interest, this order shall not apply. A written report of the facts of each case in which such a determination is made shall be submitted to the President through the Director of the Bureau of the Budget by the official making the determination within 30 days thereafter.
DWIGHT D. EISENHOWER.
1 Amended by sec. 603(e) of E. O. No. 11051, Sept. 27, 1962, 27 F.R. 9683.
REQUIRE APPROPRIATION TO AUTHORIZE
CONTRACTS AND PURCHASES
41 U.S.C., sec. 11 Sec. 11. No contracts or purchases unless authorized or under
adequate appropriation No contract or purchase on behalf of the United States shall be made, unless the same is authorized by law or is under an appropriation adequate to its fulfillment, except in the Departments of the Army, Navy, and Air Force, for clothing, subsistence, forage, fuel, quarters, transportation, or medical and hospital supplies, which, however, shall not exceed the necessities of the current year. (R. S. 8 3732; June 12, 1906, ch. 3078, 34 Stat. 255.)
NO CONTRACT TO EXCEED APPROPRIATION
41 U.S.C., sec. 12 Sec. 12. No contract to exceed appropriation
No contract shall be entered into for the erection, repair, or furnishing of any public building, or for any public improvement which shall bind the Government to pay a larger sum of money than the amount in the Treasury appropriated for the specific purpose. (R. S. $3733.)
RESTRICTION ON PURCHASES OF LAND
41 U.S.C., sec. 14 Sec. 14. Restriction on purchases of land
No land shall be purchased on account of the United States, except under a law authorizing such purchase. (R. S. § 3736.)
TRANSFERS OF CONTRACTS; ASSIGNMENTS OF
CLAIMS; SET-OFF AGAINST ASSIGNEE
41 U.S.C., sec. 15 Sec. 15. Transfers of contracts; assignments of claims; set-off
against assignee No contract or order, or any interest therein, shall be transferred by the party to whom such contract or order is given to any other party, and any such transfer shall cause the annulment of the contract or order transferred, so far as the United States are concerned. All rights of action, however, for any breach of such contract by the contracting parties, are reserved to the United States.
The provisions of the preceding paragraph shall not apply in any case in which the moneys due or to become due from the United States or from any agency or department thereof, under a contract providing for payments aggregating $1,000 or more, are assigned to a bank, trust company, or other financing institution, including any Federal lending agency: Provided, 1. That in the case of any contract entered into prior to October 9, 1940, no claim shall be assigned without the consent of the head of the department or agency concerned ; 2. That in the case of any contract entered into after October 9, 1940, no claim shall be assigned if it arises under a contract which forbids such assignment; 3. That unless otherwise expressly permitted by such contract any such assignment shall cover all amounts payable under such contract and not already paid, shall not be made to more than one party, and shall not be subject to further assign