(d) Every performance bond required under this section shall specifically provide coverage for taxes imposed by the United States which are collected, deducted, or withheld from wages paid by the contractor in carrying out the contract with respect to which such bond is furnished. However, the United States shall give the surety or sureties on such bond written notice, with respect to any such unpaid taxes attributable to any period, within ninety days after the date when such contractor files a return for such period, except that not such notice shall be given more than one hundred and eighty days from the date when a return for the period was required to be filed under the Internal Revenue Code of 1954. No suit on such bond for such taxes shall be commenced by the United States unless notice is given as provided in the preceding sentence, and no such suit shall be commenced after the expiration of one year after the day on which such notice is given. (Aug. 24, 1935, ch. 642, § 1, 49 Stat. 793; Nov. 2, 1966, Pub. L. 89-719, title I, § 105 (b), 80 Stat. 1139.)

§ 270b. Same; rights of persons furnishing labor or material.

(a) Every person who has furnished labor or material in the prosecution of the work provided for in such contract, in respect of which a payment bond is furnished under section 270a of this title and who has not been paid in full therefor before the expiration of a period of ninety days after the day on which the last of the labor was done or performed by him or material was furnished or supplied by him for which such claim is made, shall have the right to sue on such payment bond for the amount, or the balance thereof, unpaid at the time of institution of such suit and to prosecute said action to final execution and judgment for the sum or sums justly due him: Provided, however, That any person having direct contractual relationship with a subcontractor but no contractual relationship express or implied with the contractor furnishing said payment bond shall have a right of action upon the said payment bond upon giving written notice to said contractor within ninety days from the date on which such person did or performed the last of the labor or furnished or supplied the last of the material for which such claim is made, stating with substantial accuracy the amount claimed and the name of the party to whom the material was furnished or supplied or for whom the labor was done or performed. Such notice shall be served by mailing the same by registered mail, postage prepaid, in an envelope addressed to the contractor at any place he maintains an office or conducts his business, or his residence, or in any manner in which the United States marshal of the district in which the public improvement is situated is authorized by law to serve summons.

(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; Aug. 4, 1959, Pub. L. 86-135, § 1, 73 Stat. 279.)

§ 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; Aug. 4, 1959, Pub. L. 86-135, § 2, 73 Stat. 279.)

§ 270d. Same; definition of "person."

The term "person" and the masculine pronoun as used in sections 270a270c of this title shall include all persons whether individuals, associations, copartnerships, or corporations. (Aug. 24, 1935, ch. 642, § 4, 49 Stat. 794.)

Sec.

5.

8.

TITLE 41. UNITED STATES CODE, "PUBLIC CONTRACTS"

Chapter 1.-GENERAL PROVISIONS

Advertisements for proposals for purchases and contracts for supplies or
services for Government departments; application to Government
sales and contracts to sell and to Government Corporations.
Opening bids.

"BUY AMERICAN ACT" (41 U.S.C., 10a-10d, and E.O. No. 10582)

10a. American materials required for public use.

10b. Contracts for public works; specification for use of American materials; blacklisting contractors violating requirements.

10c. Definition of terms used in sections 10a and 10b.

10d. Clarification of Congressional intent regarding sections 10a and 10b (a).

EXECUTIVE Order No. 10582-UNIFORM PROCEDURES FOR DETERMINATIONS.

11. No contracts or purchases unless authorized or under adequate appropriation.

12. No contract to exceed appropriation.

14. Restriction on purchases of land.

15. Transfers of contracts; assignments of claims; set-off against assignee. 22. Interest of Member of Congress.

23. Orders or contracts for material placed with Government-owned establishments deemed obligations.

"WALSH-HEALEY ACT" (41 U.S.C. 35-45)

35. Contracts for materials, etc., exceeding $10,000; representations and stipulations.

36. Same; liability for breach; cancellation; completion by Government agency; employee's wages.

37. Same; distribution of list of persons breaching contract; future contracts prohibited.

38. Same; administration; officers and employees; appointment; investigations; rules and regulations.

39. Same; hearings by Secretary of Labor; witness fees; failure to obey order; punishment.

40. Same; exceptions; modification of contracts; variations; overtime; suspension of representations and stipulations.

41. Same; "person" defined.

42. Same; effect of sections 35-45 on other laws.

43. Same; sections 35-45 not applicable to certain contracts.

43a. Applicability of Administrative Procedure Act; wage determinations; administrative review; judicial review.

44. Same; separability of provisions.

45. Same; effective date; exception as to representations with respect to minimum wages.

Chapter 2.-TERMINATION OF WAR CONTRACTS

119. Fraudulent claims, vouchers, statements, etc.; jurisdiction.

251.

Chapter 4.-PROCUREMENT PROCEDURES

Declaration of purpose of this chapter.

252. Purchases and contracts for property.

(a) Applicability of chapter; delegation of authority.

(b) Small business concerns; share of business; advance publicity on negotiated purchases and contracts for property.

(c) Negotiated purchases and contracts for property; conditions.

(d) Bids in violation of antitrust laws.

(e) Exceptions to section.

(f) Carriage of cargo; specification of container size.

253. Advertising requirements.

Sec.

254. Negotiated contracts.

(a) Requirements.

(b) Barred contracts; fee limitation; determination of use; advance notification.

(c) Examination of books, records, etc., of contractors; time limitation.

254a. Cost-type research and development contracts with educational institutions [New].

255. Advance or other payments; restrictions; conditions.

256. Repealed.

256a. Waiver of liquidated damages.

257. Administrative determinations.

(a) Conclusiveness; delegation of powers.

(b)

Nondelegable powers; powers delegable to certain persons. (c) Basis of determinations; finding conclusive; preservation of finding; copy.

260. Laws not applicable to contracts.

Chapter 5.—JUDICIAL REVIEW OF ADMINISTRATIVE DECISIONS 321. Limitation on pleading contract-provisions relating to finality; standards of review.

322. Contract-provisions making decisions final on questions of law.

TITLE 41, U.S.C., "PUBLIC CONTRACTS"

§ 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 Government 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 corporations, this section shall apply to their administrative transactions only. (R.S. § 3709; Aug. 2, 1946, ch. 744, § 9 (a), (c), 60 Stat. 809; June 30, 1949, ch. 288, title VI, § 602(f), formerly title V, § 502(e), 63 tat. 400, renumbered Sept. 5, 1950, ch. 849, §§ 6 (a), (b), 8(c), 64 Stat. 583; Aug. 28, 1958, Pub. L. 85-800, § 7, 72 Stat. 967.)

*

§ 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”, SECS. 10a-10d

§ 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 in

consistent 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.)

§ 10b. Contracts for public works; specification for use of American materials; blacklisting contractors violating requirements.

(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, subcontractors, 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 pe-riod of three years after such finding is made public. (Mar. 3, 1933, ch. 212, title III, § 3, 47 Stat. 1520.)

§ 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; June 25, 1959, Pub. L. 86-70, § 43, 73 Stat. 151; July 12, 1960, Pub. L. 86-624, § 28, 74 Stat. 419.) § 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, § 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.

SEC. 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 101, and section 202 of the Small Business Act of 1953 [section 631 of Title 151; 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.1

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.

1 Amended by sec. 603 (e) of E. O. No. 11051, Sept. 27, 1962, 27 F.R. 9683.