CHAPTER 273 - ALLOWABLE COSTS
Title 10 > CHAPTER 273
Sections (13)
§ 3741 Definitions
In this subchapter: The term “compensation”, for a year, means the total amount of wages, salary, bonuses and deferred compensation for the year, whether paid, earned, or otherwise accruing, as recorded in an employer’s cost accounting records for the year. The term “covered contract” means a contract for an amount in excess of $500,000 that is entered into by the head of an agency, except that such term does not include a fixed-price contract without cost incentives or any firm fixed-price contract for the purchase of commercial products or commercial services. The term “fiscal year” means a fiscal year established by a contractor for accounting purposes. The term “head of the agency” or “agency head” does not include the Secretary of a military department. The term “agency” means the Department of Defense, the Coast Guard, and the National Aeronautics and Space Administration. (Added and amended Pub. L. 116–283, div. A, title XVIII, § 1832(a) , (b)(1)–(3), Jan. 1, 2021 , 134 Stat. 4218 .)
§ 3742 Adjustment of threshold amount of covered contract
Effective on October 1 of each year that is divisible by five, the amount set forth in section 3741(2) of this title shall be adjusted in accordance with section 1908 of title 41 . (Added and amended Pub. L. 116–283, div. A, title XVIII, § 1832(a) , (b)(4), Jan. 1, 2021 , 134 Stat. 4218 , 4219.)
§ 3743 Effect of submission of unallowable costs
(a) Indirect Cost That Violates a FAR Cost Principle.— The head of an agency shall require that a covered contract provide that if the contractor submits to the agency a proposal for settlement of indirect costs incurred by the contractor for any period after such costs have been accrued and if that proposal includes the submission of a cost which is unallowable because the cost violates a cost principle in the Federal Acquisition Regulation or applicable agency supplement to the Federal Acquisition Regulation, the cost shall be disallowed.
(b) Penalty for Violation of Cost Principle.— If the head of the agency determines that a cost submitted by a contractor in its proposal for settlement is expressly unallowable under a cost principle referred to in subsection (a) that defines the allowability of specific selected costs, the head of the agency shall assess a penalty against the contractor in an amount equal to— the amount of the disallowed cost allocated to covered contracts for which a proposal for settlement of indirect costs has been submitted; plus interest (to be computed based on provisions in the Federal Acquisition Regulation) to compensate the United States for the use of any funds which a contractor has been paid in excess of the amount to which the contractor was entitled. If the head of the agency determines that a proposal for settlement of indirect costs submitted by a contractor includes a cost determined to be unallowable in the case of such contractor before the submission of such proposal, the head of the agency shall assess a penalty against the contractor in an amount equal to two times the amount of the disallowed cost allocated to covered contracts for which a proposal for settlement of indirect costs has been submitted.
(c) Waiver of Penalty.— The Federal Acquisition Regulation shall provide for a penalty under subsection (b) to be waived in the case of a contractor’s proposal for settlement of indirect costs when— the contractor withdraws the proposal before the formal initiation of an audit of the proposal by the Federal Government and resubmits a revised proposal; the amount of unallowable costs subject to the penalty is insignificant; or the contractor demonstrates, to the contracting officer’s satisfaction, that— it has established appropriate policies and personnel training and an internal control and review system that provide assurances that unallowable costs subject to penalties are precluded from being included in the contractor’s proposal for settlement of indirect costs; and the unallowable costs subject to the penalty were inadvertently incorporated into the proposal.
(d) Applicability of Contract Disputes Procedure to Disallowance of Cost and Assessment of Penalty.— An action of the head of an agency under subsection (a) or (b)— shall be considered a final decision for the purposes of section 7103 of title 41 ; and is appealable in the manner provided in section 7104(a) of title 41 .
§ 3744 Specific costs not allowable
(a) Specific Costs.— The following costs are not allowable under a covered contract: Costs of entertainment, including amusement, diversion, and social activities and any costs directly associated with such costs (such as tickets to shows or sports events, meals, lodging, rentals, transportation, and gratuities). Costs incurred to influence (directly or indirectly) legislative action on any matter pending before Congress, a State legislature, or a legislative body of a political subdivision of a State. Costs incurred in defense of any civil or criminal fraud proceeding or similar proceeding (including filing of any false certification) brought by the United States where the contractor is found liable or has pleaded nolo contendere to a charge of fraud or similar proceeding (including filing of a false certification). Payments of fines and penalties resulting from violations of, or failure to comply with, Federal, State, local, or foreign laws and regulations, except when incurred as a result of compliance with specific terms and conditions of the contract or specific written instructions from the contracting officer authorizing in advance such payments in accordance with applicable provisions of the Federal Acquisition Regulation. Costs of membership in any social, dining, or country club or organization. Costs of alcoholic beverages. Contributions or donations, regardless of the recipient. Costs of advertising designed to promote the contractor or its products. Costs of promotional items and memorabilia, including models, gifts, and souvenirs. Costs for travel by commercial aircraft which exceed the amount of the standard commercial fare. Costs incurred in making any payment (commonly known as a “golden parachute payment”) which is— in an amount in excess of the normal severance pay paid by the contractor to an employee upon termination of employment; and is paid to the employee contingent upon, and following, a change in management control over, or ownership of, the contractor or a substantial portion of the contractor’s assets. Costs of commercial insurance that protects against the costs of the contractor for correction of the contractor’s own defects in materials or workmanship. Costs of severance pay paid by the contractor to foreign nationals employed by the contractor under a service contract performed outside the United States, to the extent that the amount of severance pay paid in any case exceeds the amount paid in the industry involved under the customary or prevailing practice for firms in that industry providing similar services in the United States, as determined under the Federal Acquisition Regulation. Costs of severance pay paid by the contractor to a foreign national employed by the contractor under a service contract performed in a foreign country if the termination of the employment of the foreign national is the result of the closing of, or the curtailment of activities at, a United States military facility in that country at the request of the government of that country. Costs incurred by a contractor in connection with any criminal, civil, or administrative proceeding commenced by the United States or a State, to the extent provided in section 3750 of this title . 1 Costs of compensation of any contractor employee for a fiscal year, regardless of the contract funding source, to the extent that such compensation exceeds 487,000 per year, adjusted annually to reflect the change in the Employment Cost Index for all workers, as calculated by the Bureau of Labor Statistics, except that the head of an executive agency may establish one or more narrowly targeted exceptions for scientists, engineers, or other specialists upon a determination that such exceptions are needed to ensure that the executive agency has continued access to needed skills and capabilities. Costs incurred by a contractor in connection with a congressional investigation or inquiry into an issue that is the subject matter of a proceeding resulting in a disposition as described in section 3750(c) of this title .
(b) Waiver of Severance Pay Restrictions for Foreign Nationals.— Pursuant to the Federal Acquisition Regulation and subject to the availability of appropriations, the head of an agency awarding a covered contract (other than a contract to which subsection (d) applies) may waive the application of the provisions of subsections (a)(13) and (a)(14) to that contract if the head of the agency determines that— the application of such provisions to the contract would adversely affect the continuation of a program, project, or activity that provides significant support services for members of the armed forces stationed or deployed outside the United States; the contractor has taken (or has established plans to take) appropriate actions within the contractor’s control to minimize the amount and number of incidents of the payment of severance pay by the contractor to employees under the contract who are foreign nationals; and the payment of severance pay is necessary in order to comply with a law that is generally applicable to a significant number of businesses in the country in which the foreign national receiving the payment performed services under the contract or is necessary to comply with a collective bargaining agreement. The head of an agency shall include in the solicitation for a covered contract a statement indicating— that a waiver has been granted under paragraph (1) for the contract; or whether the head of the agency will consider granting such a waiver, and, if the agency head will consider granting a waiver, the criteria to be used in granting the waiver. The head of an agency shall make the final determination regarding whether to grant a waiver under paragraph (1) with respect to a covered contract before award of the contract.
(c) Establishment of Definitions, Exclusions, Limitations, and Qualifications.— The provisions of the Federal Acquisition Regulation implementing this subchapter may establish appropriate definitions, exclusions, limitations, and qualifications.
(d) Specific Costs Under Military Banking Contracts Relating to Foreign Nationals.— The Secretary of Defense may provide in a military banking contract that the provisions of subsections (a)(13) and (a)(14) shall not apply to costs incurred under the contract by the contractor for payment of mandated foreign national severance pay. The Secretary may include such a provision in a military banking contract only if the Secretary determines, with respect to that contract, that the contractor has taken (or has established plans to take) appropriate actions within the contractor’s control to minimize the amount and number of incidents of the payment of severance pay by the contractor to employees under the contract who are foreign nationals. In paragraph (1): The term “military banking contract” means a contract between the Secretary and a financial institution under which the financial institution operates a military banking facility outside the United States for use by members of the armed forces stationed or deployed outside the United States and other authorized personnel. The term “mandated foreign national severance pay” means severance pay paid by a contractor to a foreign national employee the payment of which by the contractor is required in order to comply with a law that is generally applicable to a significant number of businesses in the country in which the foreign national receiving the payment performed services under the contract. Paragraph (1) does not apply to a contract with a financial institution that is owned or controlled by citizens or nationals of a foreign country, as determined by the Secretary of Defense. Such a determination shall be made in accordance with the criteria set out in paragraph (1) of section 4(g) of the Buy American Act (as added by section 7002(2) of the Omnibus Trade and Competitiveness Act of 1988) and the policy guidance referred to in paragraph (2)(A) of that section.
§ 3745 Required regulations
(a) In General.— The Federal Acquisition Regulation shall contain provisions on the allowability of contractor costs. Such provisions shall define in detail and in specific terms those costs which are unallowable, in whole or in part, under covered contracts.
(b) Specific Items.— The regulations shall, at a minimum, clarify the cost principles applicable to contractor costs of the following: Air shows. Membership in civic, community, and professional organizations. Recruitment. Employee morale and welfare. Actions to influence (directly or indirectly) executive branch action on regulatory and contract matters (other than costs incurred in regard to contract proposals pursuant to solicited or unsolicited bids). Community relations. Dining facilities. Professional and consulting services, including legal services. Compensation. Selling and marketing. Travel. Public relations. Hotel and meal expenses. Expense of corporate aircraft. Company-furnished automobiles. Advertising. Conventions.
(c) Additional Requirements.— The Federal Acquisition Regulation shall require that a contracting officer not resolve any questioned costs until he has obtained— adequate documentation with respect to such costs; and the opinion of the contract auditor on the allowability of such costs. The Federal Acquisition Regulation shall provide that, to the maximum extent practicable, the contract auditor be present at any negotiation or meeting with the contractor regarding a determination of the allowability of indirect costs of the contractor. The Federal Acquisition Regulation shall require that all categories of costs designated in the report of the contract auditor as questioned with respect to a proposal for settlement be resolved in such a manner that the amount of the individual questioned costs that are paid will be reflected in the settlement.
§ 3746 Applicability of regulations to subcontractors
The regulations referred to in sections 3744 and 3745(a) and (b) of this title shall require prime contractors of a covered contract, to the maximum extent practicable, to apply the provisions of such regulations to all subcontractors of the covered contract. (Added and amended Pub. L. 116–283, div. A, title XVIII, § 1832(a) , (e), Jan. 1, 2021 , 134 Stat. 4218 , 4221.)
§ 3747 Contractor certification
(a) Content and Form.— A proposal for settlement of indirect costs applicable to a covered contract shall include a certification by an official of the contractor that, to the best of the certifying official’s knowledge and belief, all indirect costs included in the proposal are allowable. Any such certification shall be in a form prescribed in the Federal Acquisition Regulation.
(b) Waiver.— The head of the agency or the Secretary of the military department concerned may, in an exceptional case, waive the requirement for certification under subsection (a) in the case of any contract if the head of the agency or the Secretary— determines in such case that it would be in the interest of the United States to waive such certification; and states in writing the reasons for that determination and makes such determination available to the public.
§ 3748 Penalties for submission of cost known as not allowable
The submission to an agency of a proposal for settlement of costs for any period after such costs have been accrued that includes a cost that is expressly specified by statute or regulation as being unallowable, with the knowledge that such cost is unallowable, shall be subject to the provisions of section 287 of title 18 and section 3729 of title 31 . (Added and amended Pub. L. 116–283, div. A, title XVIII, § 1832(a) , (g), Jan. 1, 2021 , 134 Stat. 4218 , 4222.)
§ 3749 Burden of proof on contractor
In a proceeding before the Armed Services Board of Contract Appeals, the United States Court of Federal Claims, or any other Federal court in which the reasonableness of indirect costs for which a contractor seeks reimbursement from the Department of Defense is in issue, the burden of proof shall be upon the contractor to establish that those costs are reasonable. (Added and amended Pub. L. 116–283, div. A, title XVIII, § 1832(a) , (h), Jan. 1, 2021 , 134 Stat. 4218 , 4222.)
§ 3750 Proceeding costs not allowable
(a) Definitions.— In this section: The term “costs”, with respect to a proceeding— means all costs incurred by a contractor or subcontractor, or personal services contractor, whether before or after the commencement of any such proceeding; and includes— administrative and clerical expenses; the cost of legal services, including legal services performed by an employee of the contractor or subcontractor, or personal services contractor; the cost of the services of accountants and consultants retained by the contractor or subcontractor, or personal services contractor; and the pay of directors, officers, and employees of the contractor or subcontractor, or personal services contractor for time devoted by such directors, officers, and employees to such proceeding. The term “penalty” does not include restitution, reimbursement, or compensatory damages. The term “proceeding” includes an investigation.
(b) In General.— Except as otherwise provided in this section, costs incurred by a contractor or subcontractor, or personal services contractor in connection with any criminal, civil, or administrative proceeding commenced by the United States, by a State, or by a contractor or subcontractor, or personal services contractor employee submitting a complaint under section 4701 of this title are not allowable as reimbursable costs under a covered contract, subcontract, or personal services contract if the proceeding— relates to a violation of, or failure to comply with, a Federal or State statute or regulation or to any other activity described in section 4701(a)(1) of this title ; and results in a disposition described in subsection (c).
(c) Covered Dispositions.— A disposition referred to in subsection (b)(2) is any of the following: In the case of a criminal proceeding, a conviction (including a conviction pursuant to a plea of nolo contendere) by reason of the violation or failure referred to in subsection (b). In the case of a civil or administrative proceeding involving an allegation of fraud or similar misconduct, a determination of contractor or subcontractor, or personal services contractor liability on the basis of the violation or failure referred to in subsection (b). In the case of any civil or administrative proceeding, the imposition of a monetary penalty or an order to take corrective action under section 4701 of this title by reason of the violation or failure referred to in subsection (b). A final decision— to debar or suspend the contractor or subcontractor, or personal services contractor; to rescind or void the contract, subcontract, or personal services contract; or to terminate the contract, subcontract, or personal services contract for default; by reason of the violation or failure referred to in subsection (b). A disposition of the proceeding by consent or compromise if such action could have resulted in a disposition described in paragraphs (1), (2), (3), or (4).
(d) Costs Allowed by Settlement Agreement in Proceeding Commenced by United States.— In the case of a proceeding referred to in subsection (b) that is commenced by the United States and is resolved by consent or compromise pursuant to an agreement entered into by a contractor or subcontractor, or personal services contractor and the United States, the costs incurred by the contractor or subcontractor, or personal services contractor in connection with such proceeding that are otherwise not allowable as reimbursable costs under such subsection may be allowed to the extent specifically provided in such agreement.
(e) Costs Specifically Authorized in Proceeding Commenced by State.— In the case of a proceeding referred to in subsection (b) that is commenced by a State, the head of the agency or Secretary of the military department concerned that awarded the covered contract, subcontract, or personal services contract involved in the proceeding may allow the costs incurred by the contractor or subcontractor, or personal services contractor in connection with such proceeding as reimbursable costs if the agency head or Secretary determines, in accordance with the Federal Acquisition Regulation, that the costs were incurred as a result of (1) a specific term or condition of the contract, subcontract, or personal services contract, or (2) specific written instructions of the agency or military department.
(f) Other Allowable Costs.— Except as provided in paragraph (3), costs incurred by a contractor or subcontractor, or personal services contractor in connection with a criminal, civil, or administrative proceeding commenced by the United States or a State in connection with a covered contract, subcontract, or personal services contract may be allowed as reimbursable costs under the contract, subcontract, or personal services contract if such costs are not disallowable under subsection (b), but only to the extent provided in paragraph (2). The amount of the costs allowable under paragraph (1) in any case may not exceed the amount equal to 80 percent of the amount of the costs incurred, to the extent that such costs are determined to be otherwise allowable and allocable under the Federal Acquisition Regulation. Regulations issued for the purpose of subparagraph (A) shall provide for appropriate consideration of— the complexity of procurement litigation; generally accepted principles governing the award of legal fees in civil actions involving the United States as a party; and such other factors as may be appropriate. In the case of a proceeding referred to in paragraph (1), contractor or subcontractor, or personal services contractor costs otherwise allowable as reimbursable costs under this subsection are not allowable if— such proceeding involves the same contractor or subcontractor, or personal services contractor misconduct alleged as the basis of another criminal, civil, or administrative proceeding; and the costs of such other proceeding are not allowable under subsection (b).
§ 3761 Restructuring costs
(a) Limitation on Payment of Restructuring Costs.— The Secretary of Defense may not pay, under subchapter I, a defense contractor for restructuring costs associated with a business combination of the contractor that occurs after November 18, 1997 , unless the Secretary determines in writing either— that the amount of projected savings for the Department of Defense associated with the restructuring will be at least twice the amount of the costs allowed; or that the amount of projected savings for the Department of Defense associated with the restructuring will exceed the amount of the costs allowed and that the business combination will result in the preservation of a critical capability that otherwise might be lost to the Department.
(b) Limitation on Delegation.— The Secretary may not delegate the authority to make a determination under subsection (a), with respect to a business combination, to an official of the Department of Defense— below the level of an Assistant Secretary of Defense for cases in which the amount of restructuring costs is expected to exceed $25,000,000 over a 5-year period; or below the level of the Director of the Defense Contract Management Agency for all other cases.
(c) Definition.— In this section, the term “business combination” includes a merger or acquisition.
§ 3762 Independent research and development costs: allowable costs
(a) Regulations.— The Secretary of Defense shall prescribe regulations governing the payment by the Department of Defense of expenses incurred by contractors for independent research and development costs. Such regulations shall provide that expenses incurred for independent research and development shall be reported independently from other allowable indirect costs.
(b) Costs Treated as Fair and Reasonable, and Allowable, Expenses.— The regulations prescribed under subsection (a) shall provide that independent research and development costs shall be considered a fair and reasonable, and allowable, indirect expense on Department of Defense contracts.
(c) Additional Controls.— Subject to subsection (d), the regulations prescribed under subsection (a) may include the following provisions: Controls on the reimbursement of costs to the contractor for expenses incurred for independent research and development to ensure that such costs were incurred for independent research and development. Implementation of regular methods for transmission— from the Department of Defense to contractors, in a reasonable manner, of timely and comprehensive information regarding planned or expected needs of the Department of Defense for future technology and advanced capability; and from contractors to the Department of Defense, in a reasonable manner, of information regarding progress by the contractor on the independent research and development programs of the contractor.
(d) Limitations on Regulations.— Regulations prescribed under subsection (a) may not include provisions that would infringe on the independence of a contractor to choose which technologies to pursue in its independent research and development program if the chief executive officer of the contractor determines that expenditures will advance the needs of the Department of Defense for future technology and advanced capability as transmitted pursuant to subsection (c)(2)(A).
(e) Effective Date.— The regulations prescribed under subsection (a) shall apply to indirect costs incurred on or after October 1, 2017 .
§ 3763 Bid and proposal costs: allowable costs
(a) Regulations.— The Secretary of Defense shall prescribe regulations governing the payment by the Department of Defense of expenses incurred by contractors for bid and proposal costs. Such regulations shall provide that expenses incurred for bid and proposal costs shall be reported independently from other allowable indirect costs.
(b) Costs Allowable as Indirect Expenses.— The regulations prescribed under subsection (a) shall provide that bid and proposal costs shall be allowable as indirect expenses on covered contracts, as defined in section 3741 of this title , to the extent that those costs are allocable, reasonable, and not otherwise unallowable by law or under the Federal Acquisition Regulation.
(c) Goal for Reimbursable Bid and Proposal Costs.— The Secretary shall establish a goal each fiscal year limiting the amount of reimbursable bid and proposal costs paid by the Department of Defense to an amount equal to not more than one percent of the total aggregate industry sales to the Department of Defense. To achieve such goal, the Secretary may not limit the payment of allowable bid and proposal costs for the covered year.
(d) Panel.— If the Department of Defense exceeds the goal established under subsection (c) for a fiscal year, within 180 days after exceeding the goal, the Secretary shall establish an advisory panel. The panel shall be supported by the Defense Acquisition University and the National Defense University, including administrative support. The panel shall be composed of nine individuals who are recognized experts in acquisition and procurement policy appointed by the Secretary. In making such appointments, the Secretary shall ensure that the members of the panel reflect diverse experiences in the public and private sector. The panel shall review laws, regulations, and practices that contribute to the expenses incurred by contractors for bids and proposals in the fiscal year concerned and recommend changes to such laws, regulations, and practices that may reduce expenses incurred by contractors for bids and proposals. Not later than six months after the establishment of the panel, the panel shall submit to the Secretary and the congressional defense committees an interim report on the findings of the panel. Not later than one year after the establishment of the panel, the panel shall submit to the Secretary and the congressional defense committees a final report on the findings of the panel. The panel shall terminate on the day the panel submits the final report under paragraph (4)(B). The Secretary of Defense may use amounts available in the Department of Defense Acquisition Workforce Development Fund established under section 1705 of this title to support the activities of the panel established under this subsection.
(e) Effective Date.— The regulations prescribed under subsection (a) shall apply to indirect costs incurred on or after October 1, 2017 .