10 U.S. Code § 2402. Prohibition of contractors limiting subcontractor sales directly to the United States

(a) Each contract for the purchase of supplies or services made by the Department of Defense shall provide that the contractor will not—
(1)
enter into any agreement with a subcontractor under the contract that has the effect of unreasonably restricting sales by the subcontractor directly to the United States of any item or process (including computer software) made or furnished by the subcontractor under the contract (or any follow-on production contract); or
(2)
otherwise act to restrict unreasonably the ability of a subcontractor to make sales to the United States described in clause (1).
(b)
This section does not prohibit a contractor from asserting rights it otherwise has under law.
(c)
This section does not apply to a contract that is for an amount not greater than the simplified acquisition threshold (as defined in section 134 of title 41).
(d)
(1)
An agreement between the contractor in a contract for the acquisition of commercial items and a subcontractor under such contract that restricts sales by such subcontractor directly to persons other than the contractor may not be considered to unreasonably restrict sales by that subcontractor to the United States in violation of the provision included in such contract pursuant to subsection (a) if the agreement does not result in the United States being treated differently with regard to the restriction than any other prospective purchaser of such commercial items from that subcontractor.
(2)
In paragraph (1), the term “commercial item” has the meaning given such term in section 103 of title 41.
Amendment of Subsection (d)

Pub. L. 115–232, div. A, title VIII, § 836(e)(4), (h), Aug. 13, 2018, 132 Stat. 1869, 1874, provided that, effective Jan. 1, 2020, subject to a savings provision, subsection (d) of this section is amended as follows:

(1) in paragraph (1), by striking “commercial items” both places it appears and inserting “commercial products or commercial services”; and

(2) in paragraph (2), by striking “the term” and all that follows and inserting “the terms ‘commercial product’ and ‘commercial service’ have the meanings given those terms in sections 103 and 103a, respectively, of title 41.”

See 2018 Amendment notes below.

Amendments

2018—Subsec. (d)(1). Pub. L. 115–232, § 836(e)(4)(A), substituted “commercial products or commercial services” for “commercial items” in two places.

Subsec. (d)(2). Pub. L. 115–232, § 836(e)(4)(B), substituted “the terms ‘commercial product’ and ‘commercial service’ have the meanings given those terms in sections 103 and 103a, respectively, of title 41.” for “the term ‘commercial item’ has the meaning given such term in section 103 of title 41.”

2011—Subsec. (c). Pub. L. 111–350, § 5(b)(25)(A), substituted “section 134 of title 41)” for “section 4(11) of the Office of Federal Procurement Policy Act (41 U.S.C. 403(11)))”.

Subsec. (d)(2). Pub. L. 111–350, § 5(b)(25)(B), substituted “section 103 of title 41” for “section 4(12) of the Office of Federal Procurement Policy Act (41 U.S.C. 403(12))”.

1994—Subsecs. (c), (d). Pub. L. 103–355 added subsecs. (c) and (d).

Effective Date of 2018 Amendment

Amendment by Pub. L. 115–232 effective Jan. 1, 2020, subject to a savings provision, see section 836(h) of Pub. L. 115–232, set out as an Effective Date of 2018 Amendment; Savings Provision note under section 453b of Title 6, Domestic Security.

Effective Date of 1994 Amendment

For effective date and applicability of amendment by Pub. L. 103–355, see section 10001 of Pub. L. 103–355, set out as a note under section 2302 of this title.

Effective Date

Pub. L. 98–525, title XII, § 1234(c), Oct. 19, 1984, 98 Stat. 2604, provided that:

Section 2402 of title 10, United States Code (as added by subsection (a)), shall take effect at the end of the 180-day period beginning on the date of the enactment of this Act [Oct. 19, 1984].”