10 U.S.C. § 3743: Effect of submission of…

Summary

Agency heads must make covered contracts say that if a contractor files a settlement proposal for indirect costs and that proposal includes costs that break a Federal Acquisition Regulation cost rule, those costs must be rejected. If the agency finds a cost is clearly unallowable under a specific cost rule, the contractor will be charged a penalty equal to the disallowed amount allocated to the covered contracts plus interest calculated under the FAR. If the cost was already known to be unallowable before the proposal was sent in, the penalty is two times the disallowed amount allocated to those covered contracts. The FAR must allow waivers of the penalty if the contractor withdraws the proposal before a formal audit and fixes it, the amount is trivial, or the contractor shows it had proper policies, training, and controls and the error was accidental. The agency’s disallowance or penalty decision is a final decision and can be appealed under the contract disputes rules in 41 U.S.C. 7104(a).

Title 10, §3743

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(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.—

(1)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—

(A)the amount of the disallowed cost allocated to covered contracts for which a proposal for settlement of indirect costs has been submitted; plus

(B)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.

(2)Cost determined to be unallowable before proposal submitted.—

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—

(1)the contractor withdraws the proposal before the formal initiation of an audit of the proposal by the Federal Government and resubmits a revised proposal;

(2)the amount of unallowable costs subject to the penalty is insignificant; or

(3)the contractor demonstrates, to the contracting officer’s satisfaction, that—

(A)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

(B)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)—

(1)shall be considered a final decision for the purposes of section 7103 of title 41; and

(2)is appealable in the manner provided in section 7104(a) of title 41.

Notes & Related Subsidiaries

Editorial Notes

Codification The text of subsec. (a) of section 2324 of this title, which was transferred to this section by Pub. L. 116–283, § 1832(c)(1), was based on Pub. L. 99–145, title IX, § 911(a)(1), Nov. 8, 1985, 99 Stat. 682; Pub. L. 102–484, div. A, title VIII, § 818(a)(1)(A), Oct. 23, 1992, 106 Stat. 2457; Pub. L. 103–355, title II, § 2101(a), Oct. 13, 1994, 108 Stat. 3306. The text of subsec. (b) of section 2324 of this title, which was transferred to this section and amended by Pub. L. 116–283, § 1832(c), was based on Pub. L. 99–145, title IX, § 911(a)(1), Nov. 8, 1985, 99 Stat. 682; Pub. L. 102–484, div. A, title VIII, § 818(a)(1)(B), (2), Oct. 23, 1992, 106 Stat. 2457, 2458; Pub. L. 103–355, title II, § 2101(a)(2), Oct. 13, 1994, 108 Stat. 3306. The text of subsec. (c) of section 2324 of this title, which was transferred to this section by Pub. L. 116–283, § 1832(c)(1), was based on Pub. L. 102–484, div. A, title VIII, § 818(a)(5), Oct. 23, 1992, 106 Stat. 2458; Pub. L. 103–355, title II, § 2101(a)(3), Oct. 13, 1994, 108 Stat. 3307. The text of subsec. (d) of section 2324 of this title, which was transferred to this section by Pub. L. 116–283, § 1832(c)(1), was based on Pub. L. 99–145, title IX, § 911(a)(1), Nov. 8, 1985, 99 Stat. 683; Pub. L. 102–484, div. A, title VIII, § 818(a)(4), Oct. 23, 1992, 106 Stat. 2458; Pub. L. 103–355, title II, § 2101(a)(4), Oct. 13, 1994, 108 Stat. 3307; Pub. L. 111–350, § 5(b)(19)(A), (B), Jan. 4, 2011, 124 Stat. 3844.

Prior Provisions

A prior section 3743 was renumbered section 7273 of this title.

Amendments

2021—Pub. L. 116–283, § 1832(c)(1), transferred subsecs. (a) to (d) of section 2324 of this title to this section. Subsec. (b). Pub. L. 116–283, § 1832(c)(2), realigned margins of pars. (1) and (2) and inserted par. (2) heading.

Statutory Notes and Related Subsidiaries

Effective Date

Section and amendment by Pub. L. 116–283 effective Jan. 1, 2022, with additional provisions for delayed implementation and applicability of existing law, see section 1801(d) of Pub. L. 116–283, set out as an

Effective Date

of 2021 Amendment note preceding section 3001 of this title.

§3743 Effect of Submission of Unallowable Costs

Summary

Title 10, §3743

Notes & Related Subsidiaries

Editorial Notes

Prior Provisions

Amendments

Statutory Notes and Related Subsidiaries

Effective Date

Effective Date

Citations & Metadata