(K) The term "commercial component". (L) The term "component". (4) The term "technical data" means recorded information (regardless of the form or method of the recording) of a scientific or technical nature (including computer software documentation) relating to supplies procured by an agency. Such term does not include computer software or financial, administrative, cost or pricing, or management data or other information incidental to contract administration. (5) The term "major system" means a combination of elements that will function together to produce the capabilities required to fulfill a mission need. The elements may include hardware, equipment, software or any combination thereof, but excludes construction or other improvements to real property. A system shall be considered a major system if (A) the conditions of section 2302d of this title are satisfied, or (B) the system is designated a "major system" by the head of the agency responsible for the system. (6) The term "Federal Acquisition Regulation" means the Federal Acquisition Regulation issued pursuant to section 25(c)(1) of the Office of Federal Procurement Policy Act (41 U.S.C. 421(c)(1)). (7) The term "simplified acquisition threshold" has the meaning provided that term in section 4 of the Office of Federal Procurement Policy Act (41 U.S.C. 403), except that, in the case of any contract to be awarded and performed, or purchase to be made, outside the United States in support of a contingency operation or a humanitarian or peacekeeping operation, the term means an amount equal to two times the amount specified for that term in section 4 of such Act. (8) The term "humanitarian or peacekeeping operation" means a military operation in support of the provision of humanitarian or foreign disaster assistance or in support of a peacekeeping operation under chapter VI or VII of the Charter of the United Nations. The term does not include routine training, force rotation, or stationing. (Aug. 10, 1956, ch. 1041, 70A Stat. 127; revised in its entirety P.L. 98-369, §2722, July 18, 1984, 98 Stat. 1186; amended P.L. 98-525, § 1211, Oct. 19, 1984, 98 Stat. 2589; Oct. 30, 1984, P.L. 98-577, § 504(b)(3), 98 Stat. 3087; P.L. 99-661, § 1343(a)(13), Nov. 14, 1986, 100 Stat. 3993; P.L. 100-26, § 7(k)(2), April 21, 1987, 101 Stat. 284; P.L. 101-189, §853(b)(1), Nov. 29, 1989, 103 Stat. 1518; P.L. 102-25, § 701(d)(1), April 6, 1991, 105 Stat. 113; P.L. 102-190, § 805, Dec. 5, 1991, 105 Stat. 1417; P.L. 103-355, § 1502, Oct. 13, 1994, 108 Stat. 3296; P.L. 104-106, § 4321(b)(3), Feb. 10, 1996, 110 Stat. 672; P.L. 104–201, §§ 805(a)(1), 807(a), Sept. 23, 1996, 110 Stat. 2605, 2606; P.L. 105-85, § 803(b), Nov. 18, 1997, 111 Stat. 1832; P.L. 107-217, §3(b)(2), Aug. 21, 2002, 116 Stat. 1295; P.L. 107–296, § 1704(b)(1), Nov. 25, 2002, 116 Stat. 2314.) § 2302a. Simplified acquisition threshold (a) SIMPLIFIED ACQUISITION THRESHOLD.-For purposes of acquisitions by agencies named in section 2303 of this title, the simplified acquisition threshold is as specified in section 4(11) of the Office of Federal Procurement Policy Act. (b) INAPPLICABLE LAWS.-No law properly listed in the Federal Acquisition Regulation pursuant to section 33 of the Office of Federal Procurement Policy Act shall apply to or with respect to a contract or subcontract that is not greater than the simplified acquisition threshold. (Added P.L. 103–355, §§ 4002(a), 4102(a), Oct. 13, 1994, 108 Stat. 3338, 3340.) § 2302b. Implementation of simplified acquisition proce dures The simplified acquisition procedures contained in the Federal Acquisition Regulation pursuant to section 31 of the Office of Federal Procurement Policy Act shall apply as provided in such section to the agencies named in section 2303(a) of this title. (Added P.L. 103–355, § 4203(a), Oct. 13, 1994, 108 Stat. 3345.) § 2302c. Implementation of electronic commerce capability (a) IMPLEMENTATION OF ELECTRONIC COMMERCE CAPABILITY. (1) The head of each agency named in paragraphs (1), (5), and (6) of section 2303(a) of this title shall implement the electronic commerce capability required by section 30 of the Office of Federal Procurement Policy Act (41 U.Š.C. 426). (2) The Secretary of Defense shall act through the Under Secretary of Defense for Acquisition, Technology, and Logistics to implement the capability within the Department of Defense. (3) In implementing the electronic commerce capability pursuant to paragraph (1), the head of an agency referred to in paragraph (1) shall consult with the Administrator for Federal Procurement Policy. (b) DESIGNATION OF AGENCY OFFICIAL. The head of each agency named in paragraph (5) or (6) of section 2303(a) this title shall designate a program manager to implement the electronic commerce capability for that agency. The program manager shall report directly to an official at a level not lower than the senior procurement executive designated for the agency under section 16(3) of the Office of Federal Procurement Policy Act (41 U.S.C. 414(3)). (Added P.L. 103-355, §9002(a), Oct. 13, 1994, 108 Stat. 3402; amended P.L. 105-85, § 850(f)(3)(A), Nov. 18, 1997, 111 Stat. 1850; P.L. 105–129, § 1(a), Dec. 1, 1997, 111 Stat. 2551; P.L. 105-261, § 1069(a)(3), Oct. 17, 1998, 112 Stat. 2135; P.L. 106-65, §§ 911(a)(1), 1066(a)(18), Oct. 5, 1999, 113 Stat. 717, 771; P.L. 107-107, § 1048(b)(2), Dec. 28, 2001, 115 Stat. 1225.) § 2302d. Major system: definitional threshold amounts (a) DEPARTMENT OF DEFENSE SYSTEMS.-For purposes of section 2302(5) of this title, a system for which the Department of Defense is responsible shall be considered a major system if— (1) the total expenditures for research, development, test, and evaluation for the system are estimated to be more than $115,000,000 (based on fiscal year 1990 constant dollars); or (2) the eventual total expenditure for procurement for the system is estimated to be more than $540,000,000 (based on fiscal year 1990 constant dollars). (b) CIVILIAN AGENCY SYSTEMS.-For purposes of section 2302(5) of this title, a system for which a civilian agency is responsible shall be considered a major system if total expenditures for the system are estimated to exceed the greater of— (1) $750,000 (based on fiscal year 1980 constant dollars); or (2) the dollar threshold for a "major system" established by the agency pursuant to Office of Management and Budget (OMB) Circular A-109, entitled "Major Systems Acquisitions". (c) ADJUSTMENT AUTHORITY. (1) The Secretary of Defense may adjust the amounts and the base fiscal year provided in subsection (a) on the basis of Department of Defense escalation rates. (2) An amount, as adjusted under paragraph (1), that is not evenly divisible by $5,000,000 shall be rounded to the nearest multiple of $5,000,000. In the case of an amount that is evenly divisible by $2,500,000 but not evenly divisible by $5,000,000, the amount shall be rounded to the next higher multiple of $5,000,000. (3) An adjustment under this subsection shall be effective after the Secretary transmits to the Committee on Armed Services of the Senate and the Committee on Armed Services of the House of Representatives a written notification of the adjustment. (Added P.L. 104-201, §805(a)(2), Sept. 23, 1996, 110 Stat. 2605; amended P.L. 105-85, § 1073(a)(41), Nov. 18, 1997, 111 Stat. 1902; P.L. 106–65, § 1067(1), Oct. 5, 1999, 113 Stat. 774.) § 2303. Applicability of chapter (a) This chapter applies to the procurement by any of the following agencies, for its use or otherwise, of all property (other than land) and all services for which payment is to be made from appropriated funds: (1) The Department of Defense. (2) The Department of the Army. (5) The Coast Guard. (6) The National Aeronautics and Space Administration. (b) The provisions of this chapter that apply to the procurement of property apply also to contracts for its installation or alteration. (Aug. 10, 1956, ch. 1041, 70A Stat. 128; July 29, 1958, P.L. 85-568, §301(b), 72 Stat. 432; July 18, 1984, P.L. 98-369, § 2722, 98 Stat. 1187.) [§ 2303a. Repealed. Pub. L. 98-577, § 302(c), Oct. 30, 1984, 98 Stat. 3077] § 2304. Contracts: competition requirements 2 (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; 2 For a provision relating to competition requirement for purchase of services pursuant to multiple award contracts, see section 803 of the National Defense Authorization Act for Fiscal Year 2002 (P.L. 107-107), set forth beginning on page 406. (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 (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.3 3 Section 8047 of the Department of Defense Appropriations Act, 2003 (P.L. 107-248; 116 Stat. 1547), provides: SEC. 8047. None of the funds appropriated by this Act shall be available for a contract for studies, analysis, or consulting services entered into without competition on the basis of an unsolicited proposal unless the head of the activity responsible for the procurement determines(1) as a result of thorough technical evaluation, only one source is found fully qualified to perform the proposed work; (2) the purpose of the contract is to explore an unsolicited proposal which offers significant scientific or technological promise, represents the product of original thinking, and was submitted in confidence by one source; or (3) the purpose of the contract is to take advantage of unique and significant industrial accomplishment by a specific concern, or to insure that a new product or idea of a specific concern is given financial support: Provided, That this limitation shall not apply to contracts in an amount of less than $25,000, contracts related to improvements of equipment that is in development or production, or contracts as to which a civilian official of the Department of Defense, who has been confirmed by the Senate, determines that the award of such contract is in the interest of the national defense. |