[§ 2301. Repealed. P.L. 103-355, § 1501(a), Oct. 13, 1994, 108 Stat. 3296] § 2302. Definitions 3,4,5 In this chapter: (1) The term "head of an agency" means the Secretary of Defense, the Secretary of the Army, the Secretary of the Navy, the Secretary of the Air Force, the Secretary of Transportation, and the Administrator of the National Aeronautics and Space Administration. (2) The term "competitive procedures" means procedures under which the head of an agency enters into a contract pursuant to full and open competition. Such term also includes(A) procurement of architectural or engineering services conducted in accordance with title IX of the Federal Property and Administrative Services Act of 1949 (40 U.S.C. 541 et seq.); (B) the competitive selection for award of basic research proposals resulting from a general solicitation and the peer review or scientific review (as appropriate) of such proposals; (C) the procedures established by the Administrator of General Services for the multiple award schedule program of the General Services Administration if (i) participation in the program has been open to all responsible sources; and (ii) orders and contracts under such program result in the lowest overall cost alternative to meet the needs of the United States; Section 913 of the Defense Procurement Improvement Act of 1985 (title IX of Public Law 99-145), as amended, provides: SEC. 913. MINIMUM PERCENTAGE OF COMPETITIVE PROCUREMENTS (a) ANNUAL GOAL.-The Secretary of Defense shall establish for each fiscal year a goal for the percentage of defense procurements to be made during that year (expressed in total dollar value of contracts entered into) that are to be competitive procurements. (b) DEFINITION.-For the purposes of this section, the term "competitive procurements" means procurements made by the Department of Defense through the use of competitive procedures, as defined in section 2304 of title 10, United States Code. * Section 1202 of the Defense Procurement Reform Act of 1984 (title XII of Public Law 98525), as amended, provides: CONGRESSIONAL FINDINGS AND POLICY SEC. 1202. The Congress finds that recent disclosures of excessive payments by the Department of Defense for replenishment parts have undermined confidence by the public and Congress in the defense procurement system. The Secretary of Defense should make every effort to reform procurement practices relating to replenishment parts. Such efforts should, among other matters, be directed to the elimination of excessive pricing of replenishment spare parts and the recovery of unjustified payments. Specifically, the Secretary should (1) direct that officials in the Department of Defense refuse to enter into contracts unless the proposed prices are fair and reasonable; (2) continue and accelerate ongoing efforts to improve defense contracting procedures in order to encourage effective competition and assure fair and reasonable prices; (3) direct that replenishment parts be acquired in economic order quantities and on a multiyear basis whenever feasible, practicable, and cost effective; (4) direct that standard or commercial parts be used whenever such use is technically acceptable and cost effective; and (5) vigorously continue reexamination of policies relating to acquisition, pricing, and management of replenishment parts and of technical data related to such parts. For a provision relating to payment protection for subcontractors and suppliers, see section 806 of Public Law 102-190, set forth beginning on page 385. For provisions relating to a pilot mentor-protege program, see section 831 of Public Law 101-510, set forth beginning on page 402, and section 807 of Public Law 102-484, set forth beginning on page 369. (D) procurements conducted in furtherance of section 15 of the Small Business Act (15 U.S.C. 644) as long as all responsible business concerns that are entitled to submit offers for such procurement are permitted to compete; and (E) a competitive selection of research proposals resulting from a general solicitation and peer review or scientific review (as appropriate) solicited pursuant to section 9 of the Small Business Act (15 U.S.C. 638). (3) The following terms have the meanings provided such terms in section 4 of the Office of Federal Procurement Policy Act (41 U.S.C. 403): (A) The term "procurement". (B) The term "procurement system". (C) The term "standards". (D) The term "full and open competition". (F) The term "item". (G) The term "item of supply". (H) The term "supplies". (I) The term "commercial item". (J) The term "nondevelopmental item". (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 Department of Defense is responsible for the system and the total expenditures for research, development, test, and evaluation for the system are estimated to be more than $75,000,000 (based on fiscal year 1980 constant dollars) or the eventual total expenditure for procurement of more than $300,000,000 (based on fiscal year 1980 constant dollars); (B) a civilian agency is responsible for the system and total expenditures for the system are estimated to exceed $750,000 (based on fiscal year 1980 constant dollars) or 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," whichever is greater; or (C) 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, the term means an amount equal to two times the amount specified for that term in section 4 of such Act. (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. 98-577,8504(b)(3), 98 Stat. 3087; P.L. 99-661, § 1343(a)(13), Nov. 14, 1986, 100 Stat. 3993; P.L. 100-26, 87(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, 8701(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.) § 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. 6 (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 FACNET capability 7 (a) IMPLEMENTATION OF FACNET CAPABILITY. (1) The head of each agency named in section 2303 of this title shall implement the Federal acquisition computer network_("FACNET") capability required by section 30 of the Office of Federal Procurement Policy Act. In the case of the Department of Defense, the implementation shall be by the Secretary of Defense, acting through the Under Secretary of Defense for Acquisition and Technology, for the Department of Defense as a whole. For purposes of this section, the term "head of an agency" does not include the Secretaries of the military departments. • Section 4(11) of the Office of Federal Procurement Policy Act, referred to in section 2302a(a), is set forth on page 544. 7 Subsection (c) of section 9002 of the Federal Acquisition Streamlining Act of 1994 (P.L. 103– 355; 108 Stat. 3402) provides: (c) EFFECTIVE DATE.-A FACNET capability may be implemented and used in an agency before the promulgation of regulations implementing this section (as provided in section 10002). If such implementation and use occurs, the period for submission of bids or proposals under section 18(a)(3)(B) of the Office of Federal Procurement Policy Act, in the case of a solicitation through FACNET, may be less than the period otherwise applicable under that section, but shall be at least 10 days. The preceding sentence shall not be in effect after September 30, 1995. (2) In implementing the FACNET capability pursuant to paragraph (1), the head of an agency 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 of this title shall designate a program manager to have responsibility for implementation of FACNET capability for that agency and otherwise to implement this section. Such program manager shall report directly to 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.) § 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. (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 (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; (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 80 (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; |