10 U.S. Code § 2319 - Encouragement of new competitors

(a) 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) 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 clause (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)
(1) Subsection (b) of this section 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)
(A) Except as provided in subparagraph (B), 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. 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.
(B) The waiver authority provided in this paragraph does not apply with respect to a qualified products list.
(3) 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) 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) 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) The requirements of subsection (b) also apply before enforcement of any qualified products list, qualified manufacturers list, or qualified bidders list.
(d)
(1) 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) 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, but such costs may be borne 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.
(2) 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) 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) 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.

Source

(Added Pub. L. 98–525, title XII, § 1216(a),Oct. 19, 1984, 98 Stat. 2593; 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.)
Amendments

2006—Subsec. (c)(3). Pub. L. 109–364, § 130(d)(1), inserted “or ship critical safety item” after “aviation critical safety item”.
Subsec. (g)(2), (3). Pub. L. 109–364, § 130(d)(2), added par. (2), redesignated former par. (2) as (3), inserted “or ship critical safety item” after “aviation critical safety item” and “, or the seaworthiness of a ship or ship equipment,” after “or equipment”, and substituted “such item” for “the item”.
2003—Subsec. (c)(3). Pub. L. 108–136, § 802(d)(1), inserted “(or, in the case of a contract for the procurement of an aviation critical safety item, the head of the design control activity for such item)” after “the contracting officer”.
Subsec. (g). Pub. L. 108–136, § 802(d)(2), added subsec. (g).
1987—Subsec. (a). Pub. L. 100–26, § 7(k)(3), inserted “the term” after “In this section,”.
Subsec. (c)(1), (3). Pub. L. 100–26, § 7(i)(4), substituted “October 19, 1984,” for “the date of the enactment of the Defense Procurement Reform Act of 1984”.
Subsec. (c)(4). Pub. L. 100–26, § 7(d)(5)(A), inserted “(15 U.S.C. 637 (b)(7))” after “Small Business Act”.
Subsec. (d)(2). Pub. L. 100–26, § 7(d)(5)(B), inserted “(15 U.S.C. 632)” after “Small Business Act”.
Effective Date

Pub. L. 98–525, title XII, § 1216(c)(2),Oct. 19, 1984, 98 Stat. 2599, provided that: “Sections 2319, 2320, and 2321 of title 10, United States Code (as added by subsection (a)), shall apply with respect to solicitations issued after the end of the one-year period beginning on the date of the enactment of this Act [Oct. 19, 1984].”

This is a list of parts within the Code of Federal Regulations for which this US Code section provides rulemaking authority.

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48 CFR - Federal Acquisition Regulations System

48 CFR Part 1 - FEDERAL ACQUISITION REGULATIONS SYSTEM

48 CFR Part 2 - DEFINITIONS OF WORDS AND TERMS

48 CFR Part 3 - IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF INTEREST

48 CFR Part 4 - ADMINISTRATIVE MATTERS

48 CFR Part 5 - PUBLICIZING CONTRACT ACTIONS

48 CFR Part 6 - COMPETITION REQUIREMENTS

48 CFR Part 7 - ACQUISITION PLANNING

48 CFR Part 8 - REQUIRED SOURCES OF SUPPLIES AND SERVICES

48 CFR Part 9 - CONTRACTOR QUALIFICATIONS

48 CFR Part 10 - MARKET RESEARCH

48 CFR Part 11 - DESCRIBING AGENCY NEEDS

48 CFR Part 12 - ACQUISITION OF COMMERCIAL ITEMS

48 CFR Part 13 - SIMPLIFIED ACQUISITION PROCEDURES

48 CFR Part 14 - SEALED BIDDING

48 CFR Part 15 - CONTRACTING BY NEGOTIATION

48 CFR Part 16 - TYPES OF CONTRACTS

48 CFR Part 17 - SPECIAL CONTRACTING METHODS

48 CFR Part 18 19

48 CFR Part 22 - APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS

48 CFR Part 23 - ENVIRONMENT, ENERGY AND WATER EFFICIENCY, RENEWABLE ENERGY TECHNOLOGIES, OCCUPATIONAL SAFETY, AND DRUG-FREE WORKPLACE

48 CFR Part 24 - PROTECTION OF PRIVACY AND FREEDOM OF INFORMATION

48 CFR Part 25 - FOREIGN ACQUISITION

48 CFR Part 26 - OTHER SOCIOECONOMIC PROGRAMS

48 CFR Part 27 - PATENTS, DATA, AND COPYRIGHTS

48 CFR Part 28 - BONDS AND INSURANCE

48 CFR Part 29 - TAXES

48 CFR Part 30 - COST ACCOUNTING STANDARDS ADMINISTRATION

48 CFR Part 31 - CONTRACT COST PRINCIPLES AND PROCEDURES

48 CFR Part 32 - CONTRACT FINANCING

48 CFR Part 33 - PROTESTS, DISPUTES, AND APPEALS

48 CFR Part 34 - MAJOR SYSTEM ACQUISITION

48 CFR Part 35 - RESEARCH AND DEVELOPMENT CONTRACTING

48 CFR Part 36 - CONSTRUCTION AND ARCHITECT-ENGINEER CONTRACTS

48 CFR Part 37 - SERVICE CONTRACTING

48 CFR Part 38 - FEDERAL SUPPLY SCHEDULE CONTRACTING

48 CFR Part 39 - ACQUISITION OF INFORMATION TECHNOLOGY

48 CFR Part 41 - ACQUISITION OF UTILITY SERVICES

48 CFR Part 42 - CONTRACT ADMINISTRATION AND AUDIT SERVICES

48 CFR Part 43 - CONTRACT MODIFICATIONS

48 CFR Part 44 - SUBCONTRACTING POLICIES AND PROCEDURES

48 CFR Part 45 - GOVERNMENT PROPERTY

48 CFR Part 46 - QUALITY ASSURANCE

48 CFR Part 47 - TRANSPORTATION

48 CFR Part 48 - VALUE ENGINEERING

48 CFR Part 49 - TERMINATION OF CONTRACTS

48 CFR Part 50 - EXTRAORDINARY CONTRACTUAL ACTIONS AND THE SAFETY ACT

48 CFR Part 51 - USE OF GOVERNMENT SOURCES BY CONTRACTORS

48 CFR Part 52 - SOLICITATION PROVISIONS AND CONTRACT CLAUSES

48 CFR Part 53 - FORMS

48 CFR Part 5433 - PROTESTS, DISPUTES AND APPEALS

 

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