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(c) The Secretary concerned may delegate any authority under this section to
(1) the Under Secretary of his department;
(3) the chief, and one assistant to the chief, of any technical service, bureau, or office. (Aug. 10, 1956, ch. 1041, § 1, 70A Stat. 9.)
CHAPTER 131.-PLANNING AND COORDINATION Section 2202. Obligation of funds: limitation.
Notwithstanding any other provision of law, an officer or agency of the Department of Defense may obligate funds for procuring, producing, warehousing, or distributing supplies, or for related functions of supply management, only under regulations prescribed by the Secretary of Defense. The purpose of this section is to achieve the efficient, economical, and practical operation of an integrated supply system to meet the needs of the military departments without duplicate or overlapping operations of functions. (Aug. 10, 1956, ch. 1041, § 1, 70A Stat. 120.)
CHAPTER 137.-PROCUREMENT GENERALLY Section 2301. Declaration of policy.
It is the policy of Congress that a fair proportion of the purchases and contracts made under this chapter be placed with small business concerns. (Aug. 10, 1956, ch. 1041, § 1, 70A Stat. 127.)
Section 2302. Definitions.
(1) “Head of an agency” means the Secretary, the Under Secretary, or any Assistant Secretary, of the Army, Navy, or Air Force; the Secretary of the Treasury; or the Administrator of the National Aeronautics and Space Administration.
(2) "Negotiate" means make without formal advertising.
(3) "Formal advertising" means advertising as prescribed by section 2305 of this title. Aug. 10, 1956, c. 1041, § 1, 70A Stat. 127, amended July 29, 1958, Pub.L. 85-568, Title III, $ 301(b), 72 Stat. 432; Sept. 2, 1958, Pub.L. 85-861, § 1(43A), 72 Stat. 1457.
Section 2303. Applicability of chapter.
(a) This chapter applies to the purchase, and contract to purchase, by any of the following agencies, for its use or otherwise, of all property named in subsection (b), and all services, for which payment is to be made from appropriated funds:
(1) The Department of the Army.
(2) The Department of the Navy.
(5) The National Aeronautics and Space Administration. (b) This chapter does not cover land. It covers all other property including
(1) public works;
(c) The provisions of this chapter that apply to the procurement of property apply also to contracts for its installation or alteration. Aug. 10, 1956, c. 1041 § 1, 70A Stat. 128, amended July 29, 1958, Pub.L. 85-568, Title III, § 301 (b), 72 Stat. 432.
Section 2304. Purchase and contracts: formal advertising; ex
ceptions. (a) Purchases of and contracts for property or services covered by this chapter shall be made by formal advertising. However, the head of an agency may negotiate such a purchase or contract, if
(1) it is determined that such action is necessary in the public interest during a national emergency declared by Congress or the President;
(2) the public exigency will not permit the delay incident to advertising;
(3) the aggregate amount involved is not more than $2,500;
(4) the purchase or contract is for personal or professional services;
(5) the purchase or contract is for any service by a university, college, or other educational institution;
(6) the purchase or contract is for property or services to be procured and used outside the United States, and the Territories, Commonwealths, and possessions;
(7) the purchase or contract is for medicine or medical supplies;
(8) the purchase or contract is for property for authorized resale;
(9) the purchase or contract is for perishable or nonperishable subsistence supplies;
(10) the purchase or contract is for property or services for which it is impracticable to obtain competition;
(11) the purchase or contract is for property or services that he determines to be for experimental, developmental, or research work, or for making or furnishing property for experiment, test, development, or research;
(12) the purchase or contract is for property or services whose procurement he determines should not be publicly disclosed because of their character, ingredients, or components;
(13) the purchase or contract is for equipment that he determines to be technical equipment whose standardization and the interchangeability of whose parts are necessary in the public interest and whose procurement by negotiation is necessary to assure that standardization and interchangeability;
(14) the purchase or contract is for technical or special property that he determines to require a substantial initial investment or an extended period of preparation for manufacture, and for which he determines that formal advertising and competitive bidding might require duplication of investment or preparation already made or would unduly delay the procurement of that property; or
(15) the purchase or contract is for property or services for which he determines that the bid prices received after formal advertising are unreasonable as to all or part of the requirements, or were not independently reached in open competition, and for which (A) he has notified each responsible bidder of intention to negotiate and given him reasonable opportunity to negotiate; (B) the negotiated price is lower than the lowest rejected bid of any responsible bidder, as determined by the head of the agency; and (C) the negotiated price is the lowest negotiated price offered by any responsible supplier;
(16) he determines that (A) it is in the interest of national defense to have a plant, mine, or other facility, or a producer, manufacturer, or other supplier, available for furnishing property or services in case of a national emergency; or (B) the interest of industrial mobilization in case of such an emergency, or the interest of national defense in maintaining active engineering, research, and development, would otherwise be subserved; or
(17) negotiation of the purchase or contract is otherwise authorized by law.
(b) The data respecting the negotiation of each purchase or contract under clauses (1) and (7)-(17) of subsection (a) shall be kept by the contracting agency for six years after the date of final payment on the contract.
(c) This section does not authorize
(1) the negotiation of a contract to construct or repair any building, road, sidewalk, sewer main, or similar item, unless
(A) it is made under clauses (1)-(3), (10)-(12), or (15) or subsection (a); or
(B) it is to be performed outside the United States; or (2) the erection, repair, or furnishing of any public building or public improvement.
(d) Whenever the head of the agency determines it to be practicable, such advance publicity as he considers suitable with regard to the property involved and other relevant considerations shall be given for a period of at least 15 days before making a purchase of or contract for property, or a service, under clause (7) or (8) of subsection (a) involving more than $10,000.
(e) A report shall be made to Congress, on May 19 and November 19 of each year, of the purchases and contracts made under clauses (11) and (16) of subsection (a) during the period since the date of the last report. The report shall —
(1) name each contractor;
(3) describe, with consideration of the national security, the property and services covered by each contract.
(f) For the purposes of the following laws, purchases or contracts negotiated under this section shall be treated as if they were made with formal advertising:
(1) Sections 35–45 of title 41.
(3) Sections 324 and 325a of title 40. Aug. 10, 1956, c. 1041, § 1, 70A Stat. 128, amended Aug. 28, 1958, Pub.L. 85–800, § 8, 72 Stat. 967; Sept. 2, 1958; Pub.L. 85–861, § 33(a) (12), 72 Stat. 1565.
Section 2305. Formal advertisements for bids; time; opening;
award; rejection. (a) Whenever formal advertising is required under section 2304 of this title, the advertisement shall be made a sufficient time before the purchase or contract. The specifications and invitations for bids shall permit such free and full competition as is consistent with the procurement of the property and services needed by the agency concerned.
(b) The specifications in invitations for bids must contain the necessary language and attachments, and must be sufficiently descriptive in language and attachments, to permit full and free competition. If the specifications in an invitation for bids do not carry the necessary descriptive language and attachments, or if those attachments are not accessible to all competent and reliable bidders, the invitation is invalid and no award may be made.
(c) Bids shall be opened publicly at the time and place stated in the advertisement Awards shall be made with reasonable promptness by giving written notice to the responsible bidder whose bid conforms to the invitation and will be the most advantageous to the United States, price and other factors considered. However, all bids may be rejected if the head of the agency determines that rejection is in the public interest.
(d) If the head of the agency considers that any bid received after formal advertising evidences a violation of the antitrust laws, he shall refer the bid to the Attorney General for appropriate action. Aug. 10, 1956, c. 1041, § 1, 70A Stat. 130, amended Sept. 2, 1958, Pub.L. 85–861, § 1(44), 72 Stat. 1457.
Section 2306. Kinds of contracts.
(a) The cost-plus-a-percentage-of-cost system of contracting may not be used. Subject to this limitation and subject to subsections (b)-(e), the head of an agency may, in negotiating contracts under section 2304 of this title, make any kind of contract that he considers will promote the best interests of the United States.
(b) Each contract negotiated under section 2304 of this title shall contain a warranty, determined to be suitable by the head of the agency, that the contractor has employed or retained no person or selling agency to solicit or obtain the contract under an understanding or agreement for a commission, percentage, brokerage, or contingent fee, except a bona fide employee or established commercial or selling agency maintained by him to obtain business. If a contractor breaks such a warranty the United States may annul the contract without liability or may deduct the commission, percentage, brokerage, or contingent fee from the contract price or consideration.
(c) No cost contract, cost-plus-a-fixed-fee contract, or incentive contract may be made under section 2304 of this title, unless the head of the agency determines that such a contract is likely to be less costly to the United States than any other kind of contract or that it is impracticable to obtain property or services of the kind or quality required except under such a contract.
(d) The fee for performing a cost-plus-a-fixed-fee contract for
( experimental, developmental, or research work may not be more than 15 percent of the estimated cost of the contract, not including the fee. The fee for performing a cost-plus-a-fixed-fee contract for architectural or engineering services for a public work or utility plus the cost of those services to the contractor may not be