AMENDMENTS 1968-Subsec. (a). Pub. L. 90-268 added provision that no advertisement or invitation to bid for the carriage of Government property in other than Government-owned cargo containers shall specify carriage of such property in cargo containers of any stated length, height, or width. 1952-Subsec. (a). Act July 12, 1952, substituted "property" for "supplies". DEFINITIONS The definitions in section 472 of Title 40, Public Buildings, Property, and Works, apply to terms appearing in this subchapter. EFFECTIVE DATE Section effective July 1, 1949, see section 605 of act June 30, 1949, set out as a note under section 471 of Title 40, Public Buildings, Property, and Works. CROSS REFERENCES Advertising for proposals for purchases and contracts for supplies or services, see section 5 of this title. Agency head, definition of, see section 259 of this title. Armed services Contracts; regulations for bids, see section 2381 of Formal advertisements for bids; time; opening; SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 252, 260 of this title; title 40 sections 604, 752. § 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 author ized 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 costplus-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 costplus-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 fixedprice 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-fixed-fee contract. (c) Examination of books, records, etc., of contractors; time limitation; exemptions; exceptional conditions; reports to Congress All contracts negotiated without advertising pursuant to authority contained in this Act 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. Under regulations to be prescribed by the Administrator, however, such clause may be omitted from contracts with foreign contractors or foreign subcontractors if the agency head determines, with the concurrence of the Comptroller General of the United States or his designee, that the omission will serve the best interests of the United States. However, the concurrence of the Comptroller General of the United States or his designee is not required for the omission of such clause— (1) where the contractor or subcontractor is a foreign government or agency thereof or is precluded by the laws of the country involved from making its books, documents, papers, or records available for examination; and (2) where the agency head determines, after taking into account the price and availability of the property or services from United States sources, that the public interest would be best served by the omission of the clause. If the clause is omitted based on a determination under clause (2) a written report shall be furnished to the Congress. The power of the agency head to make the determination specified in the preceding sentences shall not be delegable. (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; Sept. 27, 1966, Pub. L. 89-607, § 2, 80 Stat. 850.) REFERENCES IN TEXT This Act, referred to in subsec. (c), is act June 30, 1949, ch. 288, 63 Stat. 377, as amended, known as the Federal Property and Administrative Services Act of 1949. For complete classification of this Act to the Code, see Short Title note set out under section 471 of Title 40, Public Buildings, Property, and Works, and Tables. AMENDMENTS 1966 Subsec. (c). Pub. L. 89-607 provided for exemption of certain contracts with foreign contractors from the requirement for an examination-of-records clause, such determination to be reported to Congress. 1952-Subsec. (b). Act July 12, 1952, substituted "property" for "supplies". 1951-Subsec. (c). Act Oct. 31, 1951, added subsec. (c). DEFINITIONS The definitions in section 472 of Title 40, Public Buildings, Property, and Works, apply to terms appearing in this subchapter. EFFECTIVE DATE Section effective July 1, 1949, see section 605 of act June 30, 1949, set out as a note under section 471 of Title 40, Public Buildings, Property, and Works. EXEMPTION OF FUNCTIONS Functions authorized by Foreign Assistance Act of 1961, as amended, as exempt, see Ex. Ord. No. 11223, eff. May 12, 1965, 30 F.R. 6635, set out as a note under section 2393 of Title 22, Foreign Relations and Intercourse. FOREIGN CONTRACTORS Secretaries of Defense, Army, Navy, or Air Force, or their designees, to determine, prior to exercising the authority provided in the amendment of this section by Pub. L. 89-607 to exempt certain contracts with foreign contractors from the requirement of an examination-of-records clause, that all reasonable efforts have been made to include such examination-of-records clause, as required by par. (11) of Part I of Ex. Ord. No. 10789, and that alternate sources of supply are not reasonably available, see par. (11) of Part I of Ex. Ord. No. 10789, eff. Nov. 14, 1958, 23 F.R. 8897, as amended, set out as a note under section 1431 of Title 50, War and National Defense. CROSS REFERENCES Agency head, definition of, see section 259 of this title. Armed services Examination of contractor's books and records, see SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 252, 257 of this title; title 16 section 6700; title 38 section 5022; title 40 sections 604, 752. § 254a. Cost-type research and development contracts with educational institutions On and after September 5, 1962, provision may be made in cost-type research and develop ment contracts (including grants) with universities, colleges, or other educational institutions for payment of reimbursable indirect costs on the basis of predetermined fixed-percentage rates applied to the total, or an element thereof, of the reimbursable direct costs incurred. (Pub. L. 87-638, Sept. 5, 1962, 76 Stat. 437.) CODIFICATION Section was not enacted as part of title III of act June 30, 1949, ch. 288, 63 Stat. 393, which comprises this subchapter. § 255. Advance or other payments (a) Conditions 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) Amount Payments made under subsection (a) of this section may not exceed the unpaid contract price. (c) Security 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.) AMENDMENTS 1958-Pub. L. 85-800 authorized advance or other payments under contracts for property or services by agency and insertion in bid solicitations of provision limiting advance or progress payments to small business concerns, restricted payments under subsec. (a) of this section to unpaid contract price, and reworded generally conditions for making advance payments. 1952-Subsecs. (a) and (b). Act July 12, 1952, substituted "property” for “supplies" wherever appearing. DEFINITIONS The definitions in section 472 of Title 40, Public Buildings, Property, and Works, apply to terms appearing in this subchapter. EFFECTIVE DATE Section effective July 1, 1949, see section 605 of act June 30, 1949, set out as a note under section 471 of Title 40, Public Buildings, Property, and Works. EXEMPTION OF FUNCTIONS Functions authorized by Foreign Assistance Act of 1961, as amended, as exempt, see Ex. Ord. No. 11223, eff. May 12, 1965, 30 F.R. 6635, set out as a note under section 2393 of Title 22, Foreign Relations and Intercourse. CROSS REFERENCES Advance payments on negotiated armed services contracts, see section 2307 of Title 10, Armed Forces. Agency head, definition of, see section 259 of this title. SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in section 257 of this title; title 40 sections 604, 752. § 256. Repealed. Sept. 5, 1950, ch. 849, § 10(b), 64 Stat. 591 Section, act June 30, 1949, ch. 288, title III, § 306, 63 Stat. 396, related to waiver of liquidated damages. See section 256a of this title. EFFECTIVE DATE OF REPEAL Repeal of section effective July 1, 1949, see section 10(b) of act Sept. 5, 1950. § 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.) CODIFICATION Section was not enacted as part of title III of act June 30, 1949, ch. 288, 63 Stat. 393, which comprises this subchapter. CROSS REFERENCES Armed services contracts, remission of liquidated damages, see section 2312 of Title 10, Armed Forces. § 257. Administrative determinations (a) Conclusiveness; delegation of powers The determinations and decisions provided in this subchapter 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, and except as provided in section 486(d) of title 40 with respect to the Administrator, the agency head is authorized to delegate his powers provided by this subchapter, 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. (c) Basis of determinations; finding conclusive; preservation of findings; copy Each determination or decision required by paragraphs (11), (12), (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), (3), (4), (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; Nov. 8, 1965, Pub. L. 89-343, §§ 3, 4, 79 Stat. 1303.) AMENDMENTS 1965-Subsec. (a). Pub. L. 89-343, § 3, inserted "and except as provided in section 486(d) of title 40 with respect to the Administrator. Subsec. (b). Pub. L. 89-343, § 4, deleted provisions which made the power of the Administrator to make the delegations and determinations specified in section 252(a) of this title delegable only to the Deputy Administrator or to the chief official of any principal organizational unit of the General Services Administration. 1958-Subsec. (b). Pub. L. 85-800, § 5(a), (b), substituted "(12)" for "(11)", "(13)" for "(12)", and "(11)" for "(10)" and eliminated "and in section 255(a) of this title" preceding "shall not be delegable" in first sentence. Subsec. (c). Pub. L. 85-800, § 5(a), (c), substituted "(11), (12), (13), or (14)" for "(10), (11), (12), or (13)", and "255(c)" for "255(a)". DEFINITIONS The definitions in section 472 of Title 40, Public Buildings, Property, and Works, apply to terms appearing in this subchapter. EFFECTIVE DATE Section effective July 1, 1949, see section 605 of act June 30, 1949, set out as a note under section 471 of Title 40, Public Buildings, Property, and Works. CROSS REFERENCES Agency head, definition of, see section 259 of this title. Determinations and decisions on armed services contracts, see section 2310 of Title 10, Armed Forces. SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in title 40 sections 604, 752. § 258. Laws applicable to contracts No purchase or contract shall be exempt from the Act of June 30, 1936 (49 Stat. 2036, as amended; 41 U.S.C. 35 to 45), or from the Act of March 3, 1931 (46 Stat. 1494, as amended; 40 U.S.C. 276a to 276a-6), solely by reason of (June 30, 1949, ch. 288, title III, § 308, 63 Stat. REFERENCES IN TEXT The Act of June 30, 1936 (49 Stat. 2036, as amended; The Act of March 3, 1931 (46 Stat. 1494, as amended; The Act of June 19, 1912 (37 Stat. 137, as amended; EFFECTIVE DATE Section effective July 1, 1949, see section 605 of act SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in title 40 sections 604, § 259. Definitions As used in this subchapter- (a) The term “agency head" shall mean the (b) Repealed. July 12, 1952, ch. 703, § 1(h), (June 30, 1949, ch. 288, title III, § 309, 63 Stat. AMENDMENTS 1952-Subsec. (b). Act July 12, 1952, repealed subsec. DEFINITIONS The definitions in section 472 of Title 40, Public EFFECTIVE DATE Section effective July 1, 1949, see section 605 of act SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in title 40 sections 604, § 260. Laws not applicable to contracts Sections 5, 8, and 13 of this title shall not (June 30, 1949, ch. 288, title III, § 310, 63 Stat. AMENDMENTS 1965-Pub. L. 89-343 substituted provisions making 1958-Subsec. (b). Pub. L. 85-800 inserted "or any 1952-Act July 12, 1952, made former section subsec. EFFECTIVE DATE Section effective July 1, 1949, see section 605 of act CROSS REFERENCES Laws inapplicable to armed services contracts, see SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in title 40 sections 604, SUBCHAPTER V-FOREIGN EXCESS PROPERTY 88 271 to 274. Transferred CODIFICATION Section 271, act June 30, 1949, ch. 288, title IV, § 401, Section 272, act June 30, 1949, ch. 288, title IV, § 402, Section 273, act June 30, 1949, ch. 288, title IV, § 403, Section 274, act June 30, 1949, ch. 288, title IV, § 404, SUBCHAPTER VI-FEDERAL RECORD 88 281 to 291. Transferred CODIFICATION Section 281, acts June 30, 1949, ch. 288, title V, § 502; Section 282, acts June 30, 1949, ch. 288, title V, § 503; Section 283, acts June 30, 1949, ch. 288, title V, § 504; Section 285, acts June 30, 1949, ch. 288, title V, § 506; Section 286, acts June 30, 1949, ch. 288, title V, § 507; Section 287, acts June 30, 1949, ch. 288, title V, § 508; Section 288, acts June 30, 1949, ch. 288, title V, § 509; Section 289, acts June 30, 1949, ch. 288, title V, § 510; Section 290, acts June 30, 1949, ch. 288, title V, § 511; Section 291, act Aug. 2, 1946, ch. 753, title I, § 140, 60 Sections 392 to 402 of former Title 44 are covered by § 321. Limitation on pleading contract provisions re- No provision of any contract entered into by |