Collapse to view only § 3249. Advocates for competition
- § 3241. Design-build selection procedures
- § 3242. Supplies: economic order quantities
- § 3243. Encouragement of new competitors: qualification requirement
- § 3247. Contracts: regulations for bids
- § 3249. Advocates for competition
- § 3252. Requirements for information relating to supply chain risk
§ 3241. Design-build selection procedures
(a)Authorization.—Unless the traditional acquisition approach of design-bid-build established under chapter 11 of title 40 is used or another acquisition procedure authorized by law is used, the head of an agency shall use the two-phase selection procedures authorized in this section for entering into a contract for the design and construction of a public building, facility, or work when a determination is made under subsection (b) that the procedures are appropriate for use.
(b)Criteria for Use.—A contracting officer shall make a determination whether two-phase selection procedures are appropriate for use for entering into a contract for the design and construction of a public building, facility, or work when—
(1) the contracting officer anticipates that three or more offers will be received for such contract;
(2) design work must be performed before an offeror can develop a price or cost proposal for such contract;
(3) the offeror will incur a substantial amount of expense in preparing the offer; and
(4) the contracting officer has considered information such as the following:
(A) The extent to which the project requirements have been adequately defined.
(B) The time constraints for delivery of the project.
(C) The capability and experience of potential contractors.
(D) The suitability of the project for use of the two-phase selection procedures.
(E) The capability of the agency to manage the two-phase selection process.
(F) Other criteria established by the agency.
(c)Procedures Described.—Two-phase selection procedures consist of the following:
(1)Development of scope of work statement.—The agency develops, either in-house or by contract, a scope of work statement for inclusion in the solicitation that defines the project and provides prospective offerors with sufficient information regarding the Government’s requirements (which may include criteria and preliminary design, budget parameters, and schedule or delivery requirements) to enable the offerors to submit proposals which meet the Government’s needs. If the agency contracts for development of the scope of work statement, the agency shall contract for architectural and engineering services as defined by and in accordance with chapter 11 of title 40.
(2)Solicitation of phase-one proposals.—The contracting officer solicits phase-one proposals that—
(A) include information on the offeror’s—
(i) technical approach; and
(ii) technical qualifications; and
(B) do not include—
(i) detailed design information; or
(ii) cost or price information.
(3)Evaluation factors.—
(A)Evaluation factors to be used.—The evaluation factors to be used in evaluating phase-one proposals are stated in the solicitation and include—
(i) specialized experience and technical competence;
(ii) capability to perform;
(iii) past performance of the offeror’s team (including the architect-engineer and construction members of the team); and
(iv) other appropriate factors, except that cost-related or price-related evaluation factors are not permitted.
(B)Relative importance of evaluation factors and subfactors.—Each solicitation establishes the relative importance assigned to the evaluation factors and subfactors that must be considered in the evaluation of phase-one proposals.
(C)Evaluation of proposals.—The agency evaluates phase-one proposals on the basis of the phase-one evaluation factors set forth in the solicitation.
(4)Selection by contracting officer.—
(A)Number of offerors selected and what is to be evaluated.—The contracting officer selects as the most highly qualified the number of offerors specified in the solicitation to provide the property or services under the contract and requests the selected offerors to submit phase-two competitive proposals that include technical proposals and cost or price information. Each solicitation establishes with respect to phase two—
(i) the technical submission for the proposal, including design concepts or proposed solutions to requirements addressed within the scope of work (or both), and
(ii) the evaluation factors and subfactors, including cost or price, that must be considered in the evaluations of proposals in accordance with subsections (b), (c), and (d) of section 3206 of this title.
(B) The contracting officer separately evaluates the submissions described in clauses (i) and (ii) of subparagraph (A).
(5)Awarding of contract.—The agency awards the contract in accordance with section 3303 of this title.
(d)Solicitation to State Number of Offerors To Be Selected for Phase Two Requests for Competitive Proposals.—A solicitation issued pursuant to the procedures described in subsection (c) shall state the maximum number of offerors that are to be selected to submit competitive proposals pursuant to subsection (c)(4). If the contract value exceeds $4,000,000, the maximum number specified in the solicitation shall not exceed 5 unless—
(1) the solicitation is issued pursuant to an indefinite delivery-indefinite quantity contract for design-build construction; or
(2)
(A) the head of the contracting activity, delegable to a level no lower than the senior contracting official within the contracting activity, approves the contracting officer’s justification with respect to an individual solicitation that a maximum number greater than 5 is in the interest of the Federal Government; and
(B) the contracting officer provides written documentation of how a maximum number greater than 5 is consistent with the purposes and objectives of the two-phase selection procedures.
(e)Requirement for Guidance and Regulations.—The Federal Acquisition Regulation shall include guidance—
(1) regarding the factors that may be considered in determining whether the two-phase contracting procedures authorized by subsection (a) are appropriate for use in individual contracting situations;
(2) regarding the factors that may be used in selecting contractors; and
(3) providing for a uniform approach to be used Government-wide.
(f)Special Authority for Military Construction Projects.—
(1) The Secretary of a military department may use funds available to the Secretary under section 2807(a) or 18233(e) of this title to accelerate the design effort in connection with a military construction project for which the two-phase selection procedures described in subsection (c) are used to select the contractor for both the design and construction portion of the project before the project is specifically authorized by law and before funds are appropriated for the construction portion of the project. Notwithstanding the limitations contained in such sections, use of such funds for the design portion of a military construction project may continue despite the subsequent authorization of the project. The advance notice requirement of section 2807(b) of this title shall continue to apply whenever the estimated cost of the design portion of the project exceeds the amount specified in such section.
(2) Any military construction contract that provides for an accelerated design effort, as authorized by paragraph (1), shall include as a condition of the contract that the liability of the United States in a termination for convenience before funds are first made available for construction may not exceed an amount attributable to the final design of the project.
(3) For each fiscal year during which the authority provided by this subsection is in effect, the Secretary of a military department may select not more than two military construction projects to include the accelerated design effort authorized by paragraph (1) for each armed force under the jurisdiction of the Secretary. To be eligible for selection under this subsection, a request for the authorization of the project, and for the authorization of appropriations for the project, must have been included in the annual budget of the President for a fiscal year submitted to Congress under section 1105(a) of title 31.
(4) Not later than March 1, 2008, the Secretary of Defense shall submit to the congressional defense committees a report evaluating the usefulness of the authority provided by this subsection in expediting the design and construction of military construction projects. The authority provided by this subsection expires September 30, 2008, except that, if the report required by this paragraph is not submitted by March 1, 2008, the authority shall expire on that date.
(Added Pub. L. 104–106, div. D, title XLI, § 4105(a)(1), Feb. 10, 1996, 110 Stat. 645, § 2305a; amended Pub. L. 105–85, div. A, title X, § 1073(a)(44), Nov. 18, 1997, 111 Stat. 1902; Pub. L. 107–217, § 3(b)(4), Aug. 21, 2002, 116 Stat. 1295; Pub. L. 108–178, § 4(b)(3), Dec. 15, 2003, 117 Stat. 2641; Pub. L. 108–375, div. B, title XXVIII, § 2807, Oct. 28, 2004, 118 Stat. 2123; Pub. L. 109–163, div. B, title XXVIII, § 2807, Jan. 6, 2006, 119 Stat. 3508; Pub. L. 113–291, div. A, title VIII, § 814, Dec. 19, 2014, 128 Stat. 3430; Pub. L. 115–91, div. A, title VIII, § 823, Dec. 12, 2017, 131 Stat. 1465; Pub. L. 116–92, div. A, title XVII, § 1731(a)(38), Dec. 20, 2019, 133 Stat. 1814; renumbered § 3241 and amended Pub. L. 116–283, div. A, title XVIII, § 1813(b), Jan. 1, 2021, 134 Stat. 4177.)
§ 3242. Supplies: economic order quantities
(a)Quantity to Procure.—
(1) An agency referred to in section 3063 of this title shall procure supplies in such quantity as—
(A) will result in the total cost and unit cost most advantageous to the United States, where practicable; and
(B) does not exceed the quantity reasonably expected to be required by the agency.
(2) The Secretary of Defense shall take paragraph (1) into account in approving rates of obligation of appropriations under
(b)Opinion of Offeror With Respect to Quantity to Be Procured.—Each solicitation for a contract for supplies shall, if practicable, include a provision inviting each offeror responding to the solicitation to state an opinion on whether the quantity of the supplies proposed to be procured is economically advantageous to the United States and, if applicable, to recommend a quantity or quantities which would be more economically advantageous to the United States. Each such recommendation shall include a quotation of the total price and the unit price for supplies procured in each recommended quantity.
(Added Pub. L. 98–525, title XII, § 1233(a), Oct. 19, 1984, 98 Stat. 2600, § 2384a; renumbered § 3242 and amended Pub. L. 116–283, div. A, title XVIII, § 1813(c), Jan. 1, 2021, 134 Stat. 4179; Pub. L. 117–81, div. A, title XVII, § 1701(b)(5), Dec. 27, 2021, 135 Stat. 2133.)
§ 3243. Encouragement of new competitors: qualification requirement
(a)Qualification Requirement Defined.—In this section, the term “qualification requirement” means a requirement for testing or other quality assurance demonstration that must be completed by an offeror before award of a contract.
(b)Actions Before Establishing Qualification Requirement.—Except as provided in subsection (c), the head of the agency shall, before establishing a qualification requirement—
(1) prepare a written justification stating the necessity for establishing the qualification requirement and specify why the qualification requirement must be demonstrated before contract award;
(2) specify in writing and make available to a potential offeror upon request all requirements which a prospective offeror, or its product, must satisfy in order to become qualified, such requirements to be limited to those least restrictive to meet the purposes necessitating the establishment of the qualification requirement;
(3) specify an estimate of the costs of testing and evaluation likely to be incurred by a potential offeror in order to become qualified;
(4) ensure that a potential offeror is provided, upon request and on a reimbursable basis, a prompt opportunity to demonstrate its ability to meet the standards specified for qualification using qualified personnel and facilities of the agency concerned or of another agency obtained through interagency agreement, or under contract, or other methods approved by the agency (including use of approved testing and evaluation services not provided under contract to the agency);
(5) if testing and evaluation services are provided under contract to the agency for the purposes of paragraph (4), provide to the extent possible that such services be provided by a contractor who is not expected to benefit from an absence of additional qualified sources and who shall be required in such contract to adhere to any restriction on technical data asserted by the potential offeror seeking qualification; and
(6) ensure that a potential offeror seeking qualification is promptly informed as to whether qualification is attained and, in the event qualification is not attained, is promptly furnished specific information why qualification was not attained.
(c)Applicability, Waiver Authority, and Referral of Offers.—
(1)Applicability.—Subsection (b) does not apply with respect to a qualification requirement established by statute or administrative action before October 19, 1984, unless such requirement is a qualified products list.
(2)Waiver Authority.—
(A)Submission of determination of unreasonableness.—Except as provided in subparagraph (C), if it is unreasonable to specify the standards for qualification which a prospective offeror or its product must satisfy, a determination to that effect shall be submitted to the advocate for competition of the procuring activity responsible for the purchase of the item subject to the qualification requirement.
(B)Authority to grant waiver.—After considering any comments of the advocate for competition reviewing such determination, the head of the purchasing office may waive the requirements of clauses (2) through (6) of subsection (b) for up to two years with respect to the item subject to the qualification requirement.
(C)Inapplicability to qualified products list.—The waiver authority provided in this paragraph does not apply with respect to a qualified products list.
(3)Submission and consideration of offer not to be denied in certain cases.—A potential offeror may not be denied the opportunity to submit and have considered an offer for a contract solely because the potential offeror (A) is not on a qualified bidders list, qualified manufacturers list, or qualified products list, or (B) has not been identified as meeting a qualification requirement established after October 19, 1984, if the potential offeror can demonstrate to the satisfaction of the contracting officer (or, in the case of a contract for the procurement of an aviation critical safety item or ship critical safety item, the head of the design control activity for such item) that the potential offeror or its product meets the standards established for qualification or can meet such standards before the date specified for award of the contract.
(4)Referral to small business administration.—Nothing contained in this subsection requires the referral of an offer to the Small Business Administration pursuant to section 8(b)(7) of the Small Business Act (15 U.S.C. 637(b)(7)) if the basis for the referral is a challenge by the offeror to either the validity of the qualification requirement or the offeror’s compliance with such requirement.
(5)Delay of procurement not required.—The head of an agency need not delay a proposed procurement in order to comply with subsection (b) or in order to provide a potential offeror with an opportunity to demonstrate its ability to meet the standards specified for qualification.
(6)Requirements before enforcement of certain lists.—The requirements of subsection (b) also apply before enforcement of any qualified products list, qualified manufacturers list, or qualified bidders list.
(d)Fewer Than 2 Actual Manufacturers.—
(1)Solicitation and testing of additional sources or products.—If the number of qualified sources or qualified products available to compete actively for an anticipated future requirement is fewer than two actual manufacturers or the products of two actual manufacturers, respectively, the head of the agency concerned shall—
(A) periodically publish notice in the Commerce Business Daily soliciting additional sources or products to seek qualification, unless the contracting officer determines that such publication would compromise national security; and
(B) subject to paragraph (2), bear the cost of conducting the specified testing and evaluation (excluding the costs associated with producing the item or establishing the production, quality control, or other system to be tested and evaluated) for a small business concern or a product manufactured by a small business concern which has met the standards specified for qualification and which could reasonably be expected to compete for a contract for that requirement.
(2)Certification when agency may bear cost.—Costs may be borne under paragraph (1)(B) only if the head of the agency determines that such additional qualified sources or products are likely to result in cost savings from increased competition for future requirements sufficient to amortize the costs incurred by the agency within a reasonable period of time considering the duration and dollar value of anticipated future requirements.
(3)Certification required.—The head of an agency shall require a prospective contractor requesting the United States to bear testing and evaluation costs under paragraph (1)(B) to certify as to its status as a small business concern under section 3 of the Small Business Act (15 U.S.C. 632).
(e)Examination and Revalidation of Qualification Requirement.—Within seven years after the establishment of a qualification requirement under subsection (b) or within seven years following an agency’s enforcement of a qualified products list, qualified manufacturers list, or qualified bidders list, any such qualification requirement shall be examined and revalidated in accordance with the requirements of subsection (b). The preceding sentence does not apply in the case of a qualification requirement for which a waiver is in effect under subsection (c)(2).
(f)Restriction on Enforcement.—Except in an emergency as determined by the head of the agency, whenever the head of the agency determines not to enforce a qualification requirement for a solicitation, the agency may not thereafter enforce that qualification requirement unless the agency complies with the requirements of subsection (b).
(g)Definitions.—In this section:
(1) The term “aviation critical safety item” means a part, an assembly, installation equipment, launch equipment, recovery equipment, or support equipment for an aircraft or aviation weapon system if the part, assembly, or equipment contains a characteristic any failure, malfunction, or absence of which could cause a catastrophic or critical failure resulting in the loss of or serious damage to the aircraft or weapon system, an unacceptable risk of personal injury or loss of life, or an uncommanded engine shutdown that jeopardizes safety.
(2) The term “ship critical safety item” means any ship part, assembly, or support equipment containing a characteristic the failure, malfunction, or absence of which could cause a catastrophic or critical failure resulting in loss of or serious damage to the ship or unacceptable risk of personal injury or loss of life.
(3) The term “design control activity”, with respect to an aviation critical safety item or ship critical safety item, means the systems command of a military department that is specifically responsible for ensuring the airworthiness of an aviation system or equipment, or the seaworthiness of a ship or ship equipment, in which such item is to be used.
(Added Pub. L. 98–525, title XII, § 1216(a), Oct. 19, 1984, 98 Stat. 2593, § 2319; amended Pub. L. 100–26, § 7(d)(5), (i)(4), (k)(3), Apr. 21, 1987, 101 Stat. 281, 282, 284; Pub. L. 108–136, div. A, title VIII, § 802(d), Nov. 24, 2003, 117 Stat. 1541; Pub. L. 109–364, div. A, title I, § 130(d), Oct. 17, 2006, 120 Stat. 2110; renumbered § 3243 and amended Pub. L. 116–283, div. A, title XVIII, § 1813(d), Jan. 1, 2021, 134 Stat. 4179.)
§ 3247. Contracts: regulations for bids
(a) The Secretary of Defense may—
(1) prescribe regulations for the preparation, submission, and opening of bids for contracts; and
(2) require that a bid be accompanied by a written guaranty, signed by one or more responsible persons, undertaking that the bidder, if his bid is accepted, will, within the time prescribed by the Secretary or other officer authorized to make the contract, make a contract and furnish a bond with good and sufficient sureties for the performance of the contract.
(b) If a bidder, after being notified of the acceptance of his bid, fails within the time prescribed under subsection (a)(2) to enter into a contract and furnish the prescribed bond, the Secretary concerned or other authorized officer shall—
(1) contract with another person; and
(2) charge against the defaulting bidder and his guarantors the difference between the amount specified by the bidder in his bid and the amount for which a contract is made with the other person, this difference being immediately recoverable by the United States for the use of the military department concerned in an action against the bidder and his guarantors, jointly or severally.
(c) Proceedings under this section are subject to regulations under section 121 of title 40, unless exempted therefrom under section 501(a)(2) of title 40.
(Aug. 10, 1956, ch. 1041, 70A Stat. 136, § 2381; Pub. L. 98–525, title XIV, § 1405(35), Oct. 19, 1984, 98 Stat. 2624; Pub. L. 103–355, title I, § 1507, Oct. 13, 1994, 108 Stat. 3298; Pub. L. 107–217, § 3(b)(6), Aug. 21, 2002, 116 Stat. 1295; renumbered § 3247, Pub. L. 116–283, div. A, title XVIII, § 1813(e), Jan. 1, 2021, 134 Stat. 4181.)
§ 3249. Advocates for competition
Each advocate for competition designated pursuant to section 1705(a) of title 41 for an agency named in section 3063 of this title shall be a general or flag officer if a member of the armed forces or in a position classified above GS–15 pursuant to section 5108 of title 5, if a civilian employee and shall be designated to serve for a minimum of two years.
(Added Pub. L. 98–525, title XII, § 1216(a), Oct. 19, 1984, 98 Stat. 2593, § 2318; amended Pub. L. 100–26, § 7(d)(4), Apr. 21, 1987, 101 Stat. 281; Pub. L. 102–25, title VII, § 701(f)(1), Apr. 6, 1991, 105 Stat. 115; Pub. L. 103–355, title I, § 1031, Oct. 13, 1994, 108 Stat. 3260; Pub. L. 111–350, § 5(b)(17), Jan. 4, 2011, 124 Stat. 3843; Pub. L. 112–239, div. A, title X, § 1076(f)(24), Jan. 2, 2013, 126 Stat. 1953; Pub. L. 115–232, div. A, title VIII, § 811(d), Aug. 13, 2018, 132 Stat. 1845; renumbered § 3249 and amended Pub. L. 116–283, div. A, title XVIII, § 1813(f), Jan. 1, 2021, 134 Stat. 4181.)
§ 3252. Requirements for information relating to supply chain risk
(a)Authority.—Subject to subsection (b), the head of a covered agency may—
(1) carry out a covered procurement action; and
(2) limit, notwithstanding any other provision of law, in whole or in part, the disclosure of information relating to the basis for carrying out a covered procurement action.
(b)Determination and Notification.—The head of a covered agency may exercise the authority provided in subsection (a) only after—
(1) obtaining a joint recommendation by the Under Secretary of Defense for Acquisition and Sustainment and the Chief Information Officer of the Department of Defense, on the basis of a risk assessment by the Under Secretary of Defense for Intelligence and Security, that there is a significant supply chain risk to a covered system;
(2) making a determination in writing, in unclassified or classified form, with the concurrence of the Under Secretary of Defense for Acquisition and Sustainment, that—
(A) use of the authority in subsection (a)(1) is necessary to protect national security by reducing supply chain risk;
(B) less intrusive measures are not reasonably available to reduce such supply chain risk; and
(C) in a case where the head of the covered agency plans to limit disclosure of information under subsection (a)(2), the risk to national security due to the disclosure of such information outweighs the risk due to not disclosing such information; and
(3) providing a classified or unclassified notice of the determination made under paragraph (2) to the appropriate congressional committees, which notice shall include—
(A) the information required by section 3204(e)(2) of this title;
(B) the joint recommendation by the Under Secretary of Defense for Acquisition and Sustainment and the Chief Information Officer of the Department of Defense as specified in paragraph (1);
(C) a summary of the risk assessment by the Under Secretary of Defense for Intelligence 1
1 See Change of Name note below.
that serves as the basis for the joint recommendation specified in paragraph (1); and(D) a summary of the basis for the determination, including a discussion of less intrusive measures that were considered and why they were not reasonably available to reduce supply chain risk.
(c)Delegation.—The head of a covered agency may not delegate the authority provided in subsection (a) or the responsibility to make a determination under subsection (b) to an official below the level of the service acquisition executive for the agency concerned.
(d)Limitation on Disclosure.—If the head of a covered agency has exercised the authority provided in subsection (a)(2) to limit disclosure of information—
(1) no action undertaken by the agency head under such authority shall be subject to review in a bid protest before the Government Accountability Office or in any Federal court; and
(2) the agency head shall—
(A) notify appropriate parties of a covered procurement action and the basis for such action only to the extent necessary to effectuate the covered procurement action;
(B) notify other Department of Defense components or other Federal agencies responsible for procurements that may be subject to the same or similar supply chain risk, in a manner and to the extent consistent with the requirements of national security; and
(C) ensure the confidentiality of any such notifications.
(e)Definitions.—In this section:
(1)Head of a covered agency.—The term “head of a covered agency” means each of the following:
(A) The Secretary of Defense.
(B) The Secretary of the Army.
(C) The Secretary of the Navy.
(D) The Secretary of the Air Force.
(2)Covered procurement action.—The term “covered procurement action” means any of the following actions, if the action takes place in the course of conducting a covered procurement:
(A) The exclusion of a source that fails to meet qualification standards established in accordance with the requirements of section 3243 of this title for the purpose of reducing supply chain risk in the acquisition of covered systems.
(B) The exclusion of a source that fails to achieve an acceptable rating with regard to an evaluation factor providing for the consideration of supply chain risk in the evaluation of proposals for the award of a contract or the issuance of a task or delivery order.
(C) The decision to withhold consent for a contractor to subcontract with a particular source or to direct a contractor for a covered system to exclude a particular source from consideration for a subcontract under the contract.
(3)Covered procurement.—The term “covered procurement” means—
(A) a source selection for a covered system or a covered item of supply involving either a performance specification, as provided in section 3206(a)(3)(B) of this title, or an evaluation factor, as provided in section 3206(b)(1) of this title, relating to supply chain risk;
(B) the consideration of proposals for and issuance of a task or delivery order for a covered system or a covered item of supply, as provided in section 3406(d)(3) of this title, where the task or delivery order contract concerned includes a contract clause establishing a requirement relating to supply chain risk; or
(C) any contract action involving a contract for a covered system or a covered item of supply where such contract includes a clause establishing requirements relating to supply chain risk.
(4)Supply chain risk.—The term “supply chain risk” means the risk that an adversary may sabotage, maliciously introduce unwanted function, or otherwise subvert the design, integrity, manufacturing, production, distribution, installation, operation, or maintenance of a covered system so as to surveil, deny, disrupt, or otherwise degrade the function, use, or operation of such system.
(5)Covered system.—The term “covered system” means a national security system, as that term is defined in section 3552(b)(6) of title 44.
(6)Covered item of supply.—The term “covered item of supply” means an item of information technology (as that term is defined in section 11101 of title 40) that is purchased for inclusion in a covered system, and the loss of integrity of which could result in a supply chain risk for a covered system.
(7)Appropriate congressional committees.—The term “appropriate congressional committees” means—
(A) in the case of a covered system included in the National Intelligence Program or the Military Intelligence Program, the Select Committee on Intelligence of the Senate, the Permanent Select Committee on Intelligence of the House of Representatives, and the congressional defense committees; and
(B) in the case of a covered system not otherwise included in subparagraph (A), the congressional defense committees.
(Added Pub. L. 115–232, div. A, title VIII, § 881(a)(1), Aug. 13, 2018, 132 Stat. 1910, § 2339a; amended Pub. L. 116–92, div. A, title XVII, § 1731(a)(43), Dec. 20, 2019, 133 Stat. 1814; renumbered § 3252 and amended Pub. L. 116–283, div. A, title X, § 1081(a)(36), title XVIII, § 1813(g), Jan. 1, 2021, 134 Stat. 3872, 4181.)