§ 253c. — Encouragement of new competition.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 41USC253c]
TITLE 41--PUBLIC CONTRACTS
CHAPTER 4--PROCUREMENT PROCEDURES
SUBCHAPTER IV--PROCUREMENT PROVISIONS
Sec. 253c. Encouragement of new competition
(a) ``Qualification requirement'' defined
In this section, ``qualification requirement'' means a requirement
for testing or other quality assurance demonstration that must be
completed by an offeror before award of a contract.
(b) Agency head; functions; prior to enforcement of qualification
requirement
Except as provided in subsection (c) of this section, the head of
the agency shall, before enforcing any qualification requirement--
(1) prepare a written justification stating the necessity for
establishing the qualification requirement and specify why the
qualification requirement must be demonstrated before contract
award;
(2) specify in writing and make available to a potential offeror
upon request all requirements which a prospective offeror, or its
product, must satisfy in order to become qualified, such
requirements to be limited to those least restrictive to meet the
purposes necessitating the establishment of the qualification
requirement;
(3) specify an estimate of the costs of testing and evaluation
likely to be incurred by a potential offeror in order to become
qualified;
(4) ensure that a potential offeror is provided, upon request, a
prompt opportunity to demonstrate at its own expense (except as
provided in subsection (d) of this section) its ability to meet the
standards specified for qualification using qualified personnel and
facilities of the agency concerned or of another agency obtained
through interagency agreement, or under contract, or other methods
approved by the agency (including use of approved testing and
evaluation services not provided under contract to the agency);
(5) if testing and evaluation services are provided under
contract to the agency for the purposes of clause (4), provide to
the extent possible that such services be provided by a contractor
who is not expected to benefit from an absence of additional
qualified sources and who shall be required in such contract to
adhere to any restriction on technical data asserted by the
potential offeror seeking qualification; and
(6) ensure that a potential offeror seeking qualification is
promptly informed as to whether qualification is attained and, in
the event qualification is not attained, is promptly furnished
specific information why qualification was not attained.
(c) Applicability; waiver authority; referral of offers
(1) Subsection (b) of this section does not apply with respect to a
qualification requirement established by statute prior to October 30,
1984.
(2) Except as provided in paragraph (3), if it is unreasonable to
specify the standards for qualification which a prospective offeror or
its product must satisfy, a determination to that effect shall be
submitted to the advocate for competition of the procuring activity
responsible for the purchase of the item subject to the qualification
requirement. After considering any comments of the advocate for
competition reviewing such determination, the head of the procuring
activity may waive the requirements of paragraphs (2) through (5) of
subsection (b) of this section for up to two years with respect to the
item subject to the qualification requirement.
(3) The waiver authority contained in paragraph (2) shall not apply
with respect to any qualified products list.
(4) A potential offeror may not be denied the opportunity to submit
and have considered an offer for a contract solely because the potential
offeror has not been identified as meeting a qualification requirement,
if the potential offeror can demonstrate to the satisfaction of the
contracting officer that the potential offeror or its product meets the
standards established for qualification or can meet such standards
before the date specified for award of the contract.
(5) Nothing contained in this subsection requires the referral of an
offer to the Small Business Administration pursuant to section 637(b)(7)
of title 15 if the basis for the referral is a challenge by the offeror
to either the validity of the qualification requirement or the offeror's
compliance with such requirement.
(6) The head of an agency need not delay a proposed procurement in
order to comply with subsection (b) of this section or in order to
provide a potential offeror with an opportunity to demonstrate its
ability to meet the standards specified for qualification.
(d) Number; qualified sources or products; fewer than two actual
manufacturers; functions of agency head
(1) If the number of qualified sources or qualified products
available to compete actively for an anticipated future requirement is
fewer than two actual manufacturers or the products of two actual
manufacturers, respectively, the head of the agency concerned shall--
(A) periodically publish notice in the Commerce Business Daily
soliciting additional sources or products to seek qualification,
unless the contracting officer determines that such publication
would compromise national security; and
(B) bear the cost of conducting the specified testing and
evaluation (excluding the costs associated with producing the item
or establishing the production, quality control, or other system to
be tested and evaluated) for a small business concern or a product
manufactured by a small business concern which has met the standards
specified for qualification and which could reasonably be expected
to compete for a contract for that requirement, but such costs may
be borne only if the head of the agency determines that such
additional qualified sources or products are likely to result in
cost savings from increased competition for future requirements
sufficient to offset (within a reasonable period of time considering
the duration and dollar value of anticipated future requirements)
the costs incurred by the agency.
(2) The head of an agency shall require a prospective contractor
requesting the United States to bear testing and evaluation costs under
paragraph (1)(B) to certify as to its status as a small business concern
under section 632 of title 15.
(e) Examination; need for qualification requirement
Within seven years after the establishment of a qualification
requirement, the need for such qualification requirement shall be
examined and the standards of such requirement revalidated in accordance
with the requirements of subsection (b) of this section. The preceding
sentence does not apply in the case of a qualification requirement for
which a waiver is in effect under subsection (c)(2) of this section.
(f) Enforcement determination by agency head
Except in an emergency as determined by the head of the agency,
whenever the head of the agency determines not to enforce a
qualification requirement for a solicitation, the agency may not
thereafter enforce that qualification requirement unless the agency
complies with the requirements of subsection (b) of this section.
(June 30, 1949, ch. 288, title III, Sec. 303C, formerly Sec. 303D, as
added Pub. L. 98-577, title II, Sec. 202(a), Oct. 30, 1984, 98 Stat.
3069; renumbered Sec. 303C, Pub. L. 99-145, title XIII,
Sec. 1304(c)(4)(A), Nov. 8, 1985, 99 Stat. 742.)
Effective Date
Section 202(b) of Pub. L. 98-577 provided that: ``The amendment made
by subsection (a) [enacting this section] shall apply with respect to
solicitations issued more than 180 days after the date of enactment of
this Act [Oct. 30, 1984].''
Definitions
The definitions in section 102 of Title 40, Public Buildings,
Property, and Works, apply to this subchapter.
