118 STAT. 847 PUBLIC LAW 108–276—JULY 21, 2004 will be made available for a procurement of a security countermeasure, and not to the substance of contracts for such procurement or other matters relating to awards of such contracts. ‘‘(7) PROCUREMENT.— ‘‘(A) IN GENERAL.—For purposes of a procurement under this subsection that is approved by the President under paragraph (6), the Homeland Security Secretary and the Secretary shall have responsibilities in accordance with subparagraphs (B) and (C). ‘‘(B) INTERAGENCY AGREEMENT; COSTS.— ‘‘(i) INTERAGENCY AGREEMENT.—The Homeland Security Secretary shall enter into an agreement with the Secretary for procurement of a security counter measure in accordance with the provisions of this para graph. The special reserve fund under paragraph (10) shall be available for payments made by the Secretary to a vendor for such procurement. ‘‘(ii) OTHER COSTS.—The actual costs to the Sec retary under this section, other than the costs described in clause (i), shall be paid from the appropria tion provided for under subsection (f)(1). ‘‘(C) PROCUREMENT.— ‘‘(i) IN GENERAL.—The Secretary shall be respon sible for— ‘‘(I) arranging for procurement of a security countermeasure, including negotiating terms (including quantity, production schedule, and price) of, and entering into, contracts and coopera tive agreements, and for carrying out such other activities as may reasonably be required, in accord ance with the provisions of this subparagraph; and ‘‘(II) promulgating such regulations as the Sec retary determines necessary to implement the provisions of this subsection. ‘‘(ii) CONTRACT TERMS.—A contract for procure ments under this subsection shall (or, as specified below, may) include the following terms: ‘‘(I) PAYMENT CONDITIONED ON DELIVERY.—The contract shall provide that no payment may be made until delivery has been made of a portion, acceptable to the Secretary, of the total number of units contracted for, except that, notwith standing any other provision of law, the contract may provide that, if the Secretary determines (in the Secretary’s discretion) that an advance pay ment is necessary to ensure success of a project, the Secretary may pay an amount, not to exceed 10 percent of the contract amount, in advance of delivery. The contract shall provide that such advance payment is required to be repaid if there is a failure to perform by the vendor under the contract. Nothing in this subclause may be con strued as affecting rights of vendors under provi sions of law or regulation (including the Federal Acquisition Regulation) relating to termination of contracts for the convenience of the Government. Regulations.
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