10 U.S.C. § 2304 : US Code - Section 2304: Contracts: competition requirements

Search 10 U.S.C. § 2304 : US Code - Section 2304: Contracts: competition requirements

(a)(1) Except as provided in subsections (b), (c), and (g) and
except in the case of procurement procedures otherwise expressly
authorized by statute, the head of an agency in conducting a
procurement for property or services -
(A) shall obtain full and open competition through the use of
competitive procedures in accordance with the requirements of
this chapter and the Federal Acquisition Regulation; and
(B) shall use the competitive procedure or combination of
competitive procedures that is best suited under the
circumstances of the procurement.
(2) In determining the competitive procedure appropriate under
the circumstances, the head of an agency -
(A) shall solicit sealed bids if -
(i) time permits the solicitation, submission, and evaluation
of sealed bids;
(ii) the award will be made on the basis of price and other
price-related factors;
(iii) it is not necessary to conduct discussions with the
responding sources about their bids; and
(iv) there is a reasonable expectation of receiving more than
one sealed bid; and
(B) shall request competitive proposals if sealed bids are not
appropriate under clause (A).
(b)(1) The head of an agency may provide for the procurement of
property or services covered by this chapter using competitive
procedures but excluding a particular source in order to establish
or maintain an alternative source or sources of supply for that
property or service if the head of the agency determines that to do
so -
(A) would increase or maintain competition and would likely
result in reduced overall costs for such procurement, or for any
anticipated procurement, of property or services;
(B) would be in the interest of national defense in having a
facility (or a producer, manufacturer, or other supplier)
available for furnishing the property or service in case of a
national emergency or industrial mobilization;
(C) would be in the interest of national defense in
establishing or maintaining an essential engineering, research,
or development capability to be provided by an educational or
other nonprofit institution or a federally funded research and
development center;
(D) would ensure the continuous availability of a reliable
source of supply of such property or service;
(E) would satisfy projected needs for such property or service
determined on the basis of a history of high demand for the
property or service; or
(F) in the case of medical supplies, safety supplies, or
emergency supplies, would satisfy a critical need for such
supplies.
(2) The head of an agency may provide for the procurement of
property or services covered by this section using competitive
procedures, but excluding concerns other than small business
concerns in furtherance of sections 9 and 15 of the Small Business
Act (15 U.S.C. 638, 644) and concerns other than small business
concerns, historically Black colleges and universities, and
minority institutions in furtherance of section 2323 of this title.
(3) A contract awarded pursuant to the competitive procedures
referred to in paragraphs (1) and (2) shall not be subject to the
justification and approval required by subsection (f)(1).
(4) A determination under paragraph (1) may not be made for a
class of purchases or contracts.
(c) The head of an agency may use procedures other than
competitive procedures only when -
(1) the property or services needed by the agency are available
from only one responsible source or only from a limited number of
responsible sources and no other type of property or services
will satisfy the needs of the agency;
(2) the agency's need for the property or services is of such
an unusual and compelling urgency that the United States would be
seriously injured unless the agency is permitted to limit the
number of sources from which it solicits bids or proposals;
(3) it is necessary to award the contract to a particular
source or sources in order (A) to maintain a facility, producer,
manufacturer, or other supplier available for furnishing property
or services in case of a national emergency or to achieve
industrial mobilization, (B) to establish or maintain an
essential engineering, research, or development capability to be
provided by an educational or other nonprofit institution or a
federally funded research and development center, or (C) to
procure the services of an expert for use, in any litigation or
dispute (including any reasonably foreseeable litigation or
dispute) involving the Federal Government, in any trial, hearing,
or proceeding before any court, administrative tribunal, or
agency, or to procure the services of an expert or neutral for
use in any part of an alternative dispute resolution or
negotiated rulemaking process, whether or not the expert is
expected to testify;
(4) the terms of an international agreement or a treaty between
the United States and a foreign government or international
organization, or the written directions of a foreign government
reimbursing the agency for the cost of the procurement of the
property or services for such government, have the effect of
requiring the use of procedures other than competitive
procedures;
(5) subject to subsection (k), a statute expressly authorizes
or requires that the procurement be made through another agency
or from a specified source, or the agency's need is for a brand-
name commercial item for authorized resale;
(6) the disclosure of the agency's needs would compromise the
national security unless the agency is permitted to limit the
number of sources from which it solicits bids or proposals; or
(7) the head of the agency -
(A) determines that it is necessary in the public interest to
use procedures other than competitive procedures in the
particular procurement concerned, and
(B) notifies the Congress in writing of such determination
not less than 30 days before the award of the contract.
(d)(1) For the purposes of applying subsection (c)(1) -
(A) in the case of a contract for property or services to be
awarded on the basis of acceptance of an unsolicited research
proposal, the property or services shall be considered to be
available from only one source if the source has submitted an
unsolicited research proposal that demonstrates a concept -
(i) that is unique and innovative or, in the case of a
service, for which the source demonstrates a unique capability
of the source to provide the service; and
(ii) the substance of which is not otherwise available to the
United States, and does not resemble the substance of a pending
competitive procurement; and
(B) in the case of a follow-on contract for the continued
development or production of a major system or highly specialized
equipment, or the continued provision of highly specialized
services, such property or services may be deemed to be available
only from the original source and may be procured through
procedures other than competitive procedures when it is likely
that award to a source other than the original source would
result in -
(i) substantial duplication of cost to the United States
which is not expected to be recovered through competition; or
(ii) unacceptable delays in fulfilling the agency's needs.
(2) The authority of the head of an agency under subsection
(c)(7) may not be delegated.
(e) The head of an agency using procedures other than competitive
procedures to procure property or services by reason of the
application of subsection (c)(2) or (c)(6) shall request offers
from as many potential sources as is practicable under the
circumstances.
(f)(1) Except as provided in paragraph (2), the head of an agency
may not award a contract using procedures other than competitive
procedures unless -
(A) the contracting officer for the contract justifies the use
of such procedures in writing and certifies the accuracy and
completeness of the justification;
(B) the justification is approved -
(i) in the case of a contract for an amount exceeding
$500,000 (but equal to or less than $10,000,000), by the
competition advocate for the procuring activity (without
further delegation) or by an official referred to in clause
(ii) or (iii);
(ii) in the case of a contract for an amount exceeding
$10,000,000 (but equal to or less than $75,000,000), by the
head of the procuring activity (or the head of the procuring
activity's delegate designated pursuant to paragraph (6)(A));
or
(iii) in the case of a contract for an amount exceeding
$75,000,000, by the senior procurement executive of the agency
designated pursuant to section 16(c) of the Office of Federal
Procurement Policy Act (41 U.S.C. 414(c)) (without further
delegation) or in the case of the Under Secretary of Defense
for Acquisition, Technology, and Logistics, acting in his
capacity as the senior procurement executive for the Department
of Defense, the Under Secretary's delegate designated pursuant
to paragraph (6)(B); and
(C) any required notice has been published with respect to such
contract pursuant to section 18 of the Office of Federal
Procurement Policy Act (41 U.S.C. 416) and all bids or proposals
received in response to that notice have been considered by the
head of the agency.
(2) In the case of a procurement permitted by subsection (c)(2),
the justification and approval required by paragraph (1) may be
made after the contract is awarded. The justification and approval
required by paragraph (1) is not required -
(A) when a statute expressly requires that the procurement be
made from a specified source;
(B) when the agency's need is for a brand-name commercial item
for authorized resale;
(C) in the case of a procurement permitted by subsection
(c)(7);
(D) in the case of a procurement conducted under (i) the Javits-
Wagner-O'Day Act (41 U.S.C. 46 et seq.), or (ii) section 8(a) of
the Small Business Act (15 U.S.C. 637(a)); or
(E) in the case of a procurement permitted by subsection
(c)(4), but only if the head of the contracting activity prepares
a document in connection with such procurement that describes the
terms of an agreement or treaty, or the written directions,
referred to in that subsection that have the effect of requiring
the use of procedures other than competitive procedures.
(3) The justification required by paragraph (1)(A) shall include -

(A) a description of the agency's needs;
(B) an identification of the statutory exception from the
requirement to use competitive procedures and a demonstration,
based on the proposed contractor's qualifications or the nature
of the procurement, of the reasons for using that exception;
(C) a determination that the anticipated cost will be fair and
reasonable;
(D) a description of the market survey conducted or a statement
of the reasons a market survey was not conducted;
(E) a listing of the sources, if any, that expressed in writing
an interest in the procurement; and
(F) a statement of the actions, if any, the agency may take to
remove or overcome any barrier to competition before a subsequent
procurement for such needs.
(4) The justification required by paragraph (1)(A) and any
related information, and any document prepared pursuant to
paragraph (2)(E), shall be made available for inspection by the
public consistent with the provisions of section 552 of title 5.
(5) In no case may the head of an agency -
(A) enter into a contract for property or services using
procedures other than competitive procedures on the basis of the
lack of advance planning or concerns related to the amount of
funds available to the agency for procurement functions; or
(B) procure property or services from another agency unless
such other agency complies fully with the requirements of this
chapter in its procurement of such property or services.
The restriction contained in clause (B) is in addition to, and not
in lieu of, any other restriction provided by law.
(6)(A) The authority of the head of a procuring activity under
paragraph (1)(B)(ii) may be delegated only to an officer or
employee who -
(i) if a member of the armed forces, is a general or flag
officer; or
(ii) if a civilian, is serving in a position with a grade under
the General Schedule (or any other schedule for civilian officers
or employees) that is comparable to or higher than the grade of
brigadier general or rear admiral (lower half).
(B) The authority of the Under Secretary of Defense for
Acquisition, Technology, and Logistics under paragraph (1)(B)(iii)
may be delegated only to -
(i) an Assistant Secretary of Defense; or
(ii) with respect to the element of the Department of Defense
(as specified in section 111(b) of this title), other than a
military department, carrying out the procurement action
concerned, an officer or employee serving in or assigned or
detailed to that element who -
(I) if a member of the armed forces, is serving in a grade
above brigadier general or rear admiral (lower half); or
(II) if a civilian, is serving in a position with a grade
under the General Schedule (or any other schedule for civilian
officers or employees) that is comparable to or higher than the
grade of major general or rear admiral.
(g)(1) In order to promote efficiency and economy in contracting
and to avoid unnecessary burdens for agencies and contractors, the
Federal Acquisition Regulation shall provide for -
(A) special simplified procedures for purchases of property and
services for amounts not greater than the simplified acquisition
threshold; and
(B) special simplified procedures for purchases of property and
services for amounts greater than the simplified acquisition
threshold but not greater than $5,000,000 with respect to which
the contracting officer reasonably expects, based on the nature
of the property or services sought and on market research, that
offers will include only commercial items.
(2) A proposed purchase or contract for an amount above the
simplified acquisition threshold may not be divided into several
purchases or contracts for lesser amounts in order to use the
simplified procedures required by paragraph (1).
(3) In using simplified procedures, the head of an agency shall
promote competition to the maximum extent practicable.
(4) The head of an agency shall comply with the Federal
Acquisition Regulation provisions referred to in section 31(f) of
the Office of Federal Procurement Policy Act (41 U.S.C. 427).
(h) For the purposes of the following, purchases or contracts
awarded after using procedures other than sealed-bid procedures
shall be treated as if they were made with sealed-bid procedures:
(1) The Walsh-Healey Act (41 U.S.C. 35 et seq.).
(2) Sections 3141-3144, 3146, and 3147 of title 40.
(i)(1) The Secretary of Defense shall prescribe by regulation the
manner in which the Department of Defense negotiates prices for
supplies to be obtained through the use of procedures other than
competitive procedures, as defined in section 2302(2) of this
title.
(2) The regulations required by paragraph (1) shall -
(A) specify the incurred overhead a contractor may
appropriately allocate to supplies referred to in that paragraph;
and
(B) require the contractor to identify those supplies which it
did not manufacture or to which it did not contribute significant
value.
(3) Such regulations shall not apply to an item of supply
included in a contract or subcontract for which the price is based
on established catalog or market prices of commercial items sold in
substantial quantities to the general public.
(j) The Federal Acquisition Regulation shall ensure that the
requirement to obtain full and open competition is implemented in a
manner that is consistent with the need to efficiently fulfill the
Government's requirements.
(k)(1) It is the policy of Congress that an agency named in
section 2303(a) of this title should not be required by legislation
to award a new contract to a specific non-Federal Government
entity. It is further the policy of Congress that any program,
project, or technology identified in legislation be procured
through merit-based selection procedures.
(2) A provision of law may not be construed as requiring a new
contract to be awarded to a specified non-Federal Government entity
unless that provision of law -
(A) specifically refers to this subsection;
(B) specifically identifies the particular non-Federal
Government entity involved; and
(C) specifically states that the award to that entity is
required by such provision of law in contravention of the policy
set forth in paragraph (1).
(3) For purposes of this subsection, a contract is a new contract
unless the work provided for in the contract is a continuation of
the work performed by the specified entity under a preceding
contract.
(4) This subsection shall not apply with respect to any contract
that calls upon the National Academy of Sciences to investigate,
examine, or experiment upon any subject of science or art of
significance to an agency named in section 2303(a) of this title
and to report on such matters to the Congress or any agency of the
Federal Government.