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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 treaty between the United States Government and a foreign government or international organization, or the written directions of a foreign government reimbursing the executive 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 (h), a statute expressly authorizes or requires that the procurement be made through another executive 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 executive 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 executive 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 unique and innovative concept 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 when it is likely that award to a source other than the original source would result in (i) substantial duplication of cost to the Government which is not expected to be recovered through competition, or (ii) unacceptable delays in fulfilling the executive agency's needs, such property may be deemed to be available only from the original source and may be procured through procedures other than competitive procedures.
(2) The authority of the head of an executive agency under subsection (c)(7) may not be delegated.
(e) An executive 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), an executive 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 (ü) or (iii); and
(ii) in the case of a contract for an amount exceeding $10,000,000 (but equal to or less than $50,000,000), by the head of the procuring activity or a delegate who, if a member of the armed forces, is a general or flag officer or, if a civilian, is serving in a position in grade GS-16 or above under the General Schedule (or in a comparable or higher position under another schedule); or
(iii) in the case of a contract for an amount exceeding $50,000,000, by the senior procurement executive of the agency designated pursuant to section 16(3) of the Office of Federal Procurement Policy Act (41 U.S.C. 414(3)) (without further delegation); 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 and all bids or proposals received in response to such notice have been considered by such executive 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); or
(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)).
(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 a barrier to competition before a subsequent procurement for such needs.
(4) The justification required by paragraph (1)(A) and any related information shall be made available for inspection by the public consistent with the provisions of section 552 of title 5, United States Code. (5) In no case may an executive 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 executive agency unless such other executive agency complies fully with the requirements of this title in its procurement of such prop
erty or services. The restriction set out in clause (B) is in addition to, and not in lieu of any other restriction provided by law.
(g)(1)3 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) The Administrator of General Services shall prescribe regulations that provide special simplified procedures for acquisitions of leasehold interests in real property at rental rates that do not exceed the simplified acquisition threshold.
(B) For purposes of subparagraph (A), the rental rate or rates under a multiyear lease do not exceed the simplified acquisition threshold if the average annual amount of the rent payable for the period of the lease does not exceed the simplified acquisition threshold.
(3) 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).
(4) In using the simplified procedures, an executive agency shall promote competition to the maximum extent practicable.
(5) An executive agency shall comply with the Federal Acquisition Regulation provisions referred to in section 31(g) of the Office of Federal Procurement Policy Act (41 U.S.C. 427).
(h) 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.
3 Section 4202(e) of the Clinger-Cohen Act of 1996 (division D of P.L. 104-106; 110 Stat. 654; 10 U.S.C. 2304 note), provides:
(e) EFFECTIVE DATE.—The authority to issue solicitations for purchases of commercial items in excess of the simplified acquisition threshold pursuant to the special simplified procedures authorized by section 2304(g)(î) of title 10, United States Code, section 303(g)(1) of the Federal Property and Administrative Services Act of 1949, and section 31(a) of the Office of Federal Procurement Policy Act, as amended by this section, shall expire January 1, 2004. Contracts may be awarded pursuant to solicitations that have been issued before such authority expires, notwithstanding the expiration of such authority.
(i)(1) It is the policy of Congress that an executive agency 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 executive agency and to report on such matters to the Congress or any agency of the Federal Government. SEC. 303A. [41 U.S.C. 253a] PLANNING AND SOLICITATION REQUIRE
MENTS. (a)(1) In preparing for the procurement of property or services, an executive agency shall
(A) specify its needs and solicit bids or proposals in a manner designed to achieve full and open competition for the procurement;
(B) use advance procurement planning and market research; and
(C) develop specifications in such manner as is necessary to obtain full and open competition with due regard to the nature of the property or services to be acquired.
(2) Each solicitation under this title shall include specifications which
(A) consistent with the provisions of this title, permit full and open competition;
(B) include restrictive provisions or conditions only to the extent necessary to satisfy the needs of the executive agency or as authorized by law.
(3) For the purposes of paragraphs (1) and (2), the type of specification included in a solicitation shall depend on the nature of the needs of the executive agency and the market available to satisfy such needs. Subject to such needs, specifications may be stated in terms of
(A) function, so that a variety of products or services may qualify;
(B) performance, including specifications of the range of acceptable characteristics or of the minimum acceptable standards; or
(C) design requirements.
(b) In addition to the specifications described in subsection (a), each solicitation for sealed bids or competitive proposals (other than for a procurement for commercial items using special simplified procedures or a purchase for an amount not greater than the simplified acquisition threshold) shall at a minimum include
(1) a statement of
(A) all significant factors and significant subfactors which the executive agency reasonably expects to consider in evaluating sealed bids (including price) or competitive proposals (including cost or price, cost-related or price-related factors and subfactors, and noncost-related or nonprice-related factors and subfactors); and
(B) the relative importance assigned to each of those factors and subfactors; and (2)(A) in the case of sealed bids
(i) a statement that sealed bids will be evaluated without discussions with the bidders; and
(ii) the time and place for the opening of the sealed bids; or (B) in the case of competitive proposals
(i) either a statement that the proposals are intended to be evaluated with, and award made after, discussions with the offerors, or a statement that the proposals are intended to be evaluated, and award made, without discussions with the offerors (other than discussions conducted for the purpose of minor clarification) unless discussions are determined to be necessary; and
(ii) the time and place for submission of proposals. (c)(1) In prescribing the evaluation factors to be included in each solicitation for competitive proposals, an executive agency
(A) shall clearly establish the relative importance assigned to the evaluation factors and subfactors, including the quality of the product or services to be provided (including technical capability, management capability, prior experience, and past performance of the offeror);
(B) shall include cost or price to the Federal Government as an evaluation factor that must be considered in the evaluation of proposals; and
(C) shall disclose to offerors whether all evaluation factors other than cost or price, when combined, are
(i) significantly more important than cost or price;
(iii) significantly less important than cost or price. (2) The regulations implementing subparagraph (C) of paragraph (1) may not define the terms “significantly more important" and “significantly less important” as specific numeric weights that would be applied uniformly to all solicitations or a class of solicitations.
(d) Nothing in this section prohibits an executive agency from
(1) providing additional information in a solicitation, including numeric weights for all evaluation factors and subfactors on a case-by-case basis; or