§ 253. — Competition requirements.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 41USC253]
TITLE 41--PUBLIC CONTRACTS
CHAPTER 4--PROCUREMENT PROCEDURES
SUBCHAPTER IV--PROCUREMENT PROVISIONS
Sec. 253. Competition requirements
(a) Procurement through full and open competition; competitive
procedures
(1) Except as provided in subsections (b), (c), and (g) of this
section and except in the case of procurement procedures otherwise
expressly authorized by statute, an executive 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
subchapter 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 procedures appropriate under the
circumstance, an executive 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) Exclusion of particular source; restriction of solicitation to small
business concerns
(1) An executive agency may provide for the procurement of property
or services covered by this section using competitive procedures but
excluding a particular source in order to establish or maintain any
alternative source or sources of supply for that property or service if
the agency head determines that to do so--
(A) would increase or maintain competition and would likely
result in reduced overall costs for such procurement, or for any
anticipated procurement, of such 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) An executive agency may provide for the procurement of property
or services covered by this section using competitive procedures, but
excluding other than small business concerns in furtherance of sections
638 and 644 of title 15.
(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) of this
section.
(4) A determination under paragraph (1) may not be made for a class
of purchases or contracts.
(c) Use of noncompetitive procedures
An executive agency may use procedures other than competitive
procedures only when--
(1) the property or services needed by the executive agency are
available from only one responsible source and no other type of
property or services will satisfy the needs of the executive agency;
(2) the executive agency's need for the property or services is
of such an unusual and compelling urgency that the Government would
be seriously injured unless the executive 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 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) \1\ of this section, 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;
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\1\ See References in Text note below.
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(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) Property or services deemed available from only one source;
nondelegable authority
(1) For the purposes of applying subsection (c)(1) of this section--
(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) of this section may not be delegated.
(e) Offer requests to potential sources
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) of this section shall request offers from
as many potential sources as is practicable under the circumstances.
(f) Justification for use of noncompetitive procedures
(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 (ii) 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 414(3) of this title (without
further delegation); and
(C) any required notice has been published with respect to such
contract pursuant to section 416 of this title 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)
of this section; 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 637(a) of
title 15.
(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.
(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 subchapter in its procurement of such property
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) Simplified procedures for small purchases
(1) 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 427(f) of this title.
(h) Efficient implementation of requirement
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.
(i) Merit-based award of contracts
(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.
(June 30, 1949, ch. 288, title III, Sec. 303, 63 Stat. 395; July 12,
1952, ch. 703, Sec. 1(m), 66 Stat. 594; Pub. L. 90-268, Sec. 2, Mar. 16,
1968, 82 Stat. 49; Pub. L. 98-369, div. B, title VII, Sec. 2711(a)(1),
July 18, 1984, 98 Stat. 1175; Pub. L. 98-577, title V, Sec. 504(a)(1),
(2), Oct. 30, 1984, 98 Stat. 3086; Pub. L. 99-145, title IX,
Sec. 961(a)(2), title XIII, Sec. 1304(c)(2), (3), Nov. 8, 1985, 99 Stat.
703, 742; Pub. L. 101-510, div. A, title VIII, Sec. 806(c), Nov. 5,
1990, 104 Stat. 1592; Pub. L. 103-355, title I, Secs. 1051-1053,
1055(a), title IV, Sec. 4402(a), title VII, Sec. 7203(b)(1), Oct. 13,
1994, 108 Stat. 3260, 3261, 3265, 3348, 3380; Pub. L. 104-106, div. D,
title XLI, Secs. 4101(b), 4102(b), title XLII, Sec. 4202(b)(1), title
XLIII, Sec. 4321(e)(2), Feb. 10, 1996, 110 Stat. 642, 643, 653, 674;
Pub. L. 104-320, Secs. 7(a)(2), 11(c)(2), Oct. 19, 1996, 110 Stat. 3871,
3873; Pub. L. 105-85, div. A, title VIII, Sec. 850(f)(4)(B), Nov. 18,
1997, 111 Stat. 1850.)
References in Text
Subsection (h) of this section, referred to in subsec. (c)(5), was
redesignated subsec. (i) and a new subsec. (h) was added by Pub. L. 104-
106, div. D, title XLI, Sec. 4101(b), Feb. 10, 1996, 110 Stat. 642.
The Javits-Wagner-O'Day Act, referred to in subsec. (f)(2)(D), is
act June 25, 1938, ch. 697, 52 Stat. 1196, as amended, which is
classified to sections 46 to 48c of this title. For complete
classification of this Act to the Code, see Tables.
Amendments
1997--Subsec. (g)(5). Pub. L. 105-85 substituted ``section 427(f)''
for ``section 427(g)''.
1996--Subsec. (c)(3)(C). Pub. L. 104-320 substituted ``agency, or to
procure the services of an expert or neutral for use'' for ``agency,
or'' and inserted ``or negotiated rulemaking'' after ``alternative
dispute resolution''.
Subsec. (f)(1)(B)(i). Pub. L. 104-106, Sec. 4102(b)(1), substituted
``$500,000 (but equal to or less than $10,000,000)'' for ``$100,000 (but
equal to or less than $1,000,000)'' and ``(ii) or (iii); and'' for
``(ii), (iii), or (iv);''.
Subsec. (f)(1)(B)(ii). Pub. L. 104-106, Sec. 4102(b)(2), substituted
``$10,000,000 (but equal to or less than $50,000,000)'' for ``$1,000,000
(but equal to or less than $10,000,000)'' and ``civilian,'' for
``civilian;''.
Subsec. (f)(1)(B)(iii). Pub. L. 104-106, Sec. 4102(b)(3),
substituted ``$50,000,000'' for ``$10,000,000''.
Subsec. (f)(2)(D). Pub. L. 104-106, Sec. 4321(e)(2), substituted
``the Javits-Wagner-O'Day Act (41 U.S.C. 46 et seq.),'' for ``the Act of
June 25, 1938 (41 U.S.C. 46 et seq.), popularly referred to as the
Wagner-O'Day Act,''.
Subsec. (g)(1). Pub. L. 104-106, Sec. 4202(b)(1)(A), substituted
``shall provided for--'' for ``shall provide for special simplified
procedures for purchases of property and services for amounts not
greater than the simplified acquisition threshold.'' and added subpars.
(A) and (B).
Subsec. (g)(5). Pub. L. 104-106, Sec. 4202(b)(1)(B), added par. (5).
Subsecs. (h), (i). Pub. L. 104-106, Sec. 4101(b), added subsec. (h)
and redesignated former subsec. (h) as (i).
1994--Subsec. (a)(1)(A). Pub. L. 103-355, Sec. 1051(1), substituted
``Federal Acquisition Regulation'' for ``modifications to regulations
promulgated pursuant to section 2752 of the Competition in Contracting
Act of 1984''.
Subsec. (b)(1)(D) to (F). Pub. L. 103-355, Sec. 1052(a), added
subpars. (D) to (F).
Subsec. (b)(4). Pub. L. 103-355, Sec. 1052(b), added par. (4).
Subsec. (c)(3). Pub. L. 103-355, Sec. 1055(a), struck out ``or''
before ``(B)'' and inserted ``, or'' and cl. (C) before period at end.
Subsec. (c)(5). Pub. L. 103-355, Sec. 7203(b)(1)(A), inserted
``subject to subsection (h) of this section,'' before ``a statute''.
Subsec. (f)(1)(B)(i). Pub. L. 103-355, Sec. 1053, inserted before
semicolon at end ``or by an official referred to in clause (ii), (iii),
or (iv)''.
Subsec. (g)(1). Pub. L. 103-355, Sec. 4402(a)(1)(A), substituted
``purchases of property and services for amounts not greater than the
simplified acquisition threshold'' for ``small purchases of property and
services''.
Pub. L. 103-355, Secs. 1051(2), 4402(a)(1)(B), amended par. (1)
identically, substituting ``Federal Acquisition Regulation'' for
``regulations modified, in accordance with section 2752 of the
Competition in Contracting Act of 1984,''.
Subsec. (g)(2). Pub. L. 103-355, Sec. 4402(a)(2), added par. (2) and
struck out former par. (2) which read as follows: ``For the purposes of
this subchapter, a small purchase is a purchase or contract for an
amount which does not exceed the small purchase threshold.''
Subsec. (g)(3). Pub. L. 103-355, Sec. 4402(a)(3), substituted
``simplified acquisition threshold'' for ``small purchase threshold''
and ``simplified procedures'' for ``small purchase procedures''.
Subsec. (g)(4). Pub. L. 103-355, Sec. 4402(a)(4), substituted ``the
simplified procedures'' for ``small purchase procedures''.
Subsec. (g)(5). Pub. L. 103-355, Sec. 4402(a)(5), struck out par.
(5) which read as follows: ``In this subsection, the term `small
purchase threshold' has the meaning given such term in section 403(11)
of this title.''
Subsec. (h). Pub. L. 103-355, Sec. 7203(b)(1)(B), added subsec. (h).
1990--Subsec. (g)(2), (3). Pub. L. 101-510, Sec. 806(c)(1), (2),
substituted ``the small purchase threshold'' for ``$25,000''.
Subsec. (g)(5). Pub. L. 101-510, Sec. 806(c)(3), added par. (5).
1985--Subsec. (f)(1)(C). Pub. L. 99-145, Sec. 1304(c)(2),
substituted ``any'' for ``Any''.
Subsec. (f)(2). Pub. L. 99-145, Sec. 961(a)(2), added subpars. (A)
and (B), designated existing provision as subpar. (C), and redesignated
as subpar. (D), cls. (i) and (ii) provisions previously designated
subpars. (A) and (B), substituting in cl. (ii) ``section 637(a) of title
15'' for ``the authority of section 637(a) of title 15''.
Subsec.(g)(1). Pub. L. 99-145, Sec. 1304(c)(3), inserted a comma
after ``1984''.
1984--Subsec. (a). Pub. L. 98-369 substituted provisions requiring
procurement through full and open competition for provisions requiring
advertisement for bids to be made a sufficient time prior to the
purchase or contract and to permit full and free competition, and struck
out provision that no advertisement or bid invitation for carriage of
Government property in other than Government-owned cargo containers
could specify carriage in cargo containers of any stated length, height,
or width.
Subsec. (b). Pub. L. 98-369 substituted provisions regarding the
exclusion of a particular source of property or services from
competitive procedures for provisions regarding the opening of bids and
procedures for awards, and inserted provision that in fulfilling the
statutory requirements relating to small business concerns and socially
and economically disadvantaged small business concerns, an executive
agency shall use competitive procedures but may restrict a solicitation
to allow only such business concerns to compete.
Subsec. (b)(2). Pub. L. 98-577, Sec. 504(a)(1), substituted
provisions to the effect that executive agencies may provide for
procurement of property or services covered by this section using
competitive procedures but excluding other than small business concerns
for former provisions which provided that executive agencies shall use
competitive procedures but may restrict a solicitation to allow only
such small business concerns to compete.
Subsec. (b)(3). Pub. L. 98-577, Sec. 504(a)(1), added par. (3).
Subsecs. (c) to (g). Pub. L. 98-369 added subsecs. (c) to (g).
Subsec. (f)(2). Pub. L. 98-577, Sec. 504(a)(2), designated the final
sentence as subpar. (A) and added subpar. (B).
1968--Subsec. (a). Pub. L. 90-268 inserted provision that no
advertisement or invitation to bid for carriage of Government property
in other than Government-owned cargo containers shall specify carriage
of such property in cargo containers of any stated length, height, or
width.
1952--Subsec. (a). Act July 12, 1952, substituted ``property'' for
``supplies''.
Effective Date of 1997 Amendment
Amendment by Pub. L. 105-85 effective 180 days after Nov. 18, 1997,
see section 850(g) of Pub. L. 105-85, set out as a note under section
2302c of Title 10, Armed Forces.
Effective Date of 1996 Amendment
For effective date and applicability of amendment by Pub. L. 104-
106, see section 4401 of Pub. L. 104-106, set out as a note under
section 251 of this title.
Effective Date of 1994 Amendment
For effective date and applicability of amendment by Pub. L. 103-
355, see section 10001 of Pub. L. 103-355, set out as a note under
section 251 of this title.
Effective Date of 1985 Amendment
Amendment by section 961(a)(2) of Pub. L. 99-145 effective as if
included in enactment of Competition in Contracting Act of 1984, Pub. L.
98-369, div. B, title VII, see section 961(e) of Pub. L. 99-145, set out
as a note under section 2304 of Title 10, Armed Forces.
Effective Date of 1984 Amendment
Amendment by Pub. L. 98-369 applicable with respect to any
solicitation for bids or proposals issued after Mar. 31, 1985, see
section 2751 of Pub. L. 98-369, set out as a note under section 251 of
this title.
Effective Date
Section effective July 1, 1949, see section 605, formerly section
505, of act June 30, 1949, ch. 288, 63 Stat. 403; renumbered by act
Sept. 5, 1950, ch. 849, Sec. 6(a), (b), 64 Stat. 583.
Termination of Authority To Issue Solicitations for Purchases of
Commercial Items in Excess of Simplified Acquisition Threshold
Authority to issue solicitations for purchases of commercial items
in excess of simplified acquisition threshold pursuant to special
simplified procedures authorized by subsec. (g)(1) of this section to
expire three years after date certain amendments by section 4202 of Pub.
L. 104-106 take effect pursuant to section 4401(b) of Pub. L. 104-106,
set out as a note under section 251 of this title, see section 4202(e)
of Pub. L. 104-106, set out as a note under section 2304 of Title 10,
Armed Forces.
References in Other Laws to GS-16, 17, or 18 Pay Rates
References in laws to the rates of pay for GS-16, 17, or 18, or to
maximum rates of pay under the General Schedule, to be considered
references to rates payable under specified sections of Title 5,
Government Organization and Employees, see section 529 [title I,
Sec. 101(c)(1)] of Pub. L. 101-509, set out in a note under section 5376
of Title 5.
Small Business Act
Section 2711(c) of Pub. L. 98-369 provided that: ``The amendments
made by this section [amending this section and section 259 of this
title and enacting sections 253a and 253b of this title] do not
supersede or affect the provisions of section 8(a) of the Small Business
Act (15 U.S.C. 637(a)).''
Definitions
The definitions in section 102 of Title 40, Public Buildings,
Property, and Works, apply to this subchapter.
Section Referred to in Other Sections
This section is referred to in sections 252, 253h, 253i, 253j, 257,
416, 417, 427 of this title; title 6 sections 189, 393, 425, 426; title
15 section 637; title 20 section 1018a; title 22 section 2669; title 29
section 2887; title 38 section 8153; title 40 section 3310; title 49
section 40110; title 50 App. section 2077.
