U.S. Code » Title 41 » Subtitle Subtitle IV— Miscellaneous › Chapter CHAPTER 87— KICKBACKS

41 U.S.C. § 8701

Definitions

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In this chapter:(1)Contracting agency.—The term “contracting agency”, when used with respect to a prime contractor, means a department, agency, or establishment of the Federal Government that enters into a prime contract with a prime contractor.(2)Kickback.—The term “kickback” means any money, fee, commission, credit, gift, gratuity, thing of value, or compensation of any kind that is provided to a prime contractor, prime contractor employee, subcontractor, or subcontractor employee to improperly obtain or reward favorable treatment in connection with a prime contract or a subcontract relating to a prime contract.(3)Person.—The term “person” means a corporation, partnership, business association of any kind, trust, joint-stock company, or individual.(4)Prime contract.—The term “prime contract” means a contract or contractual action entered into by the Federal Government to obtain supplies, materials, equipment, or services of any kind.(5)Prime contractor.—The term “prime contractor” means a person that has entered into a prime contract with the Federal Government.(6)Prime contractor employee.—The term “prime contractor employee” means an officer, partner, employee, or agent of a prime contractor.(7)Subcontract.—The term “subcontract” means a contract or contractual action entered into by a prime contractor or subcontractor to obtain supplies, materials, equipment, or services of any kind under a prime contract.(8)Subcontractor.—The term “subcontractor”—(A) means a person, other than the prime contractor, that offers to furnish or furnishes supplies, materials, equipment, or services of any kind under a prime contract or a subcontract entered into in connection with the prime contract; and(B) includes a person that offers to furnish or furnishes general supplies to the prime contractor or a higher tier subcontractor.(9)Subcontractor employee.—The term “subcontractor employee” means an officer, partner, employee, or agent of a subcontractor.(Pub. L. 111–350, § 3, Jan. 4, 2011, 124 Stat. 3838.)

Historical and Revision Notes

Revised

Section

Source (U.S. Code)

Source (Statutes at Large)

8701

41:52.

Mar. 8, 1946, ch. 80, § 2, 60 Stat. 37; Pub. L. 86–695, Sept. 2, 1960, 74 Stat. 740; Pub. L. 99–634, § 2(a), Nov. 7, 1986, 100 Stat. 3523.

In this section, the text of 41:52(3) is omitted because of the definition of “person” in 1:1.

In paragraph (2), the words “directly or indirectly” are omitted as unnecessary.

Senate Revision Amendment

Senate amendment 4726 (111th Cong.) added par. (3) and redesignated former pars. (3) to (8) as (4) to (9), respectively. See 156 Cong. Rec. 18683 (2010).

Notes of Decisions
Cited in 14 cases (4 in the last 5 years), 2011–2023 · leading case: Kellogg Brown & Root Servs., Inc. v. United States, 728 F.3d 1348 (Fed. Cir. 2013).
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Kellogg Brown & Root Servs., Inc. v. United States, 728 F.3d 1348 (Fed. Cir. 2013). · cites it 2× “10 The AKA has been recodified at 41 U.S.C. §§ 8701–07. 14 KELLOGG BROWN & ROOT SERVICES v.”
United States Ex Rel. Vavra v. Kellogg Brown & Root, Inc., 848 F.3d 366 (5th Cir. 2017). · cites it 2× “” See 41 U.S.C. § 8701 (2). For this reason, the practical results of adopting an apparent-authority standard would be unusual.”
Enhanced Vets. Solutions, Inc. v. United States, 131 Fed. Cl. 565 (Fed. Cl. 2017). “See 41 U.S.C. § 8701 (2), (4), (7)-(8). The Court notes that FCi did inform the agency, in somewhat cursory fashion, of the “ethical conflict” necessitating the departure of the individual in question, on February 10, 2015.”
United States v. McDonough, 727 F.3d 143 (1st Cir. 2013). “§ 201 , and kickbacks, see 41 U.S.C. § 8701 . In the context of public officials, a bribe is the receipt of “anything of value .”
Kellogg Brown & Root Servs., Inc. v. United States, 99 Fed. Cl. 488 (Fed. Cl. 2011). “; see also 41 U.S.C.A. §§ 8701 , 8702, 8706 (West 2011).”
John Doe v. Nestle, S.A., 929 F.3d 623 (9th Cir. 2018). “See 41 U.S.C. § 8701 (2). Providing a farmer money (even extra money) to keep supplying a product is not what I would ever have thought of as a kickback (versus bribing the farmer's plantation manager to steer business, for example).”
United States v. DeMizio, 741 F.3d 373 (2d Cir. 2014). “Although that section was amended (and recodified as § 8701(2)) in 2011 and omitted the phrase “directly or indirectly,” see 41 U.S.C.A. § 8701 (2) (2012), the legislative history explained that no substantive change was intended, see H.”
United States v. Mission Support All. LLC, No. 4:19-cv-05021 (E.D. Wash. Jan. 13, 2020). · cites it 5× “14 41 U.S.C. § 8701 (2). 15 “Congress intended the language ‘favorable treatment’ be construed broadly 16 to reach all conduct analogous to commercial bribery.”
United States of Am.,ex rel Bud Conyers v. Halliburton Co., No. 4:06-cv-04024 (S.D. Tex. Mar. 25, 2021). · cites it 3× “Congress re-codified the AKA without substantive change, at 41 U.S.C. §§ 8701–07. See Public Contracts—Enact Certain Laws, Pub.”
United States v. Mgmt. Consulting, Inc., 636 F. Supp. 3d 610 (E.D. Va. 2022). · cites it 3× “” 41 U.S.C. § 8701 (2). Thus, Mancon meets the first element of the Anti-Kickback Act’s strict liability provision.”
John Doe v. Nestle, S.A., No. 17-55435 (9th Cir. July 5, 2019). “See 41 U.S.C. § 8701 (2). Providing a farmer money (even extra money) to keep supplying a product is not what I would ever have thought of as a kickback (versus bribing the farmer’s plantation manager to steer business, for example).”
United States v. Vasquez, No. 22-10766 (5th Cir. Nov. 7, 2023). “_____________________ 1 The definition of a kickback is now codified at 41 U.S.C. § 8701 (2) (2011). Because the cases that the parties cite predate the statutory amendment, we continue to refer to 41 U.”
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