Collapse to view only § 3206. Planning and solicitation requirements
- § 3201. Full and open competition
- § 3203. Exclusion of particular source or restriction of solicitation to small business concerns
- § 3204. Use of procedures other than competitive procedures
- § 3205. Simplified procedures for small purchases
- § 3206. Planning and solicitation requirements
- § 3207. Assessment before contract for acquisition of supplies is entered into
- § 3208. Planning for future competition in contracts for major systems
§ 3201. Full and open competition
(a)In General.—Except as provided in sections 3203, 3204(a), and 3205 of this title 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—
(1) shall obtain full and open competition through the use of competitive procedures in accordance with the requirements of this section and sections 3069, 3203, 3204, 3205, 3403, 3405, 3406, 3901, 4501, and 4502 of this title and the Federal Acquisition Regulation; and
(2) shall use the competitive procedure or combination of competitive procedures that is best suited under the circumstances of the procurement.
(b)Determination of Appropriate Competitive Procedures.—In determining the competitive procedure appropriate under the circumstances, the head of an agency—
(1) shall solicit sealed bids if—
(A) time permits the solicitation, submission, and evaluation of sealed bids;
(B) the award will be made on the basis of price and other price-related factors;
(C) it is not necessary to conduct discussions with the responding sources about their bids; and
(D) there is a reasonable expectation of receiving more than one sealed bid; and
(2) shall request competitive proposals if sealed bids are not appropriate under paragraph (1).
(c)Efficient Fulfillment of Government Requirements.—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.
(d)Certain Purchases or Contracts to Be Treated as if Made With Sealed-bid Procedures.—For the purposes of the following, purchases or contracts awarded after using procedures other than sealed-bid procedures shall be treated as if they were made with sealed-bid procedures:
(1) Chapter 65 of title 41.
(2) Sections 3141–3144, 3146, and 3147 of title 40.
(e)New Contracts and Merit-based Selection Procedures.—
(1)Congressional policy.—It is the policy of Congress that an agency named in section 3063 of this title 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)New contract described.—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.
(3)Provision of law described.—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).
(4)Exception.—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 agency named in section 3063 of this title and to report on such matters to the Congress or any agency of the Federal Government.
(Added and amended Pub. L. 116–283, div. A, title XVIII, § 1811(c), Jan. 1, 2021, 134 Stat. 4165; Pub. L. 117–81, div. A, title XVII, § 1701(b)(4)(A), Dec. 27, 2021, 135 Stat. 2132.)
§ 3203. Exclusion of particular source or restriction of solicitation to small business concerns
(a)Exclusion of Particular Source.—
(1)Criteria for exclusion.—The head of an agency may provide for the procurement of property or services covered by chapter 137 legacy provisions 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 so—
(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)Determination for Class Disallowed.—A determination under paragraph (1) may not be made for a class of purchases or contracts.
(b)Exclusion of Other Than Small Business Concerns.—The head of an agency may provide for the procurement of property or services covered by chapter 137 legacy provisions 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).
(c)Inapplicability of Justification and Approval Requirements.—A contract awarded pursuant to the competitive procedures referred to in subsections (a)(1) and (b) shall not be subject to the justification and approval required by section 3204(e)(1) of this title.
(Added and amended Pub. L. 116–283, div. A, title XVIII, § 1811(d)(1), (2), Jan. 1, 2021, 134 Stat. 4166; Pub. L. 117–81, div. A, title XVII, § 1701(d)(3), Dec. 27, 2021, 135 Stat. 2136.)
§ 3204. Use of procedures other than competitive procedures
(a)When Procedures Other Than Competitive Procedures May Be Used.—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 section 3201(e) of this title, 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 product 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 (who may not delegate the authority under this paragraph)—
(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.
(b)Property or Services Considered to Be Available From Only One Source.—For the purposes of applying subsection (a)(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 concept—
(i) that is unique and innovative or, in the case of a service, for which the source demonstrates a unique capability of the source to provide the service; and
(ii) 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, or the continued provision of highly specialized services, such property or services may be deemed to be available only from the original source and may be procured through procedures other than competitive procedures when it is likely that award to a source other than the original source would result in—
(i) substantial duplication of cost to the United States which is not expected to be recovered through competition; or
(ii) unacceptable delays in fulfilling the agency’s needs.
(c)Property or Services Needed With Unusual and Compelling Urgency.—
(1)Allowable contract period.—The contract period of a contract described in paragraph (2) that is entered into by an agency pursuant to the authority provided under subsection (a)(2)—
(A) may not exceed the time necessary—
(i) to meet the unusual and compelling requirements of the work to be performed under the contract; and
(ii) for the agency to enter into another contract for the required goods or services through the use of competitive procedures; and
(B) may not exceed one year unless the head of the agency entering into such contract determines that exceptional circumstances apply.
(2)Applicability of allowable contract period.—This subsection applies to any contract in an amount greater than the simplified acquisition threshold.
(d)Offer Requests to Potential Sources.—The head of an agency using procedures other than competitive procedures to procure property or services by reason of the application of paragraph (2) or (6) of subsection (a) shall request offers from as many potential sources as is practicable under the circumstances.
(e)Justification for Use of Procedures Other Than Competitive Procedures.—
(1)Prerequisites for awarding contract.—Except as provided in paragraphs (3), (4), and (7), the head of an 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);
(ii) in the case of a contract for an amount exceeding $10,000,000 (but equal to or less than $75,000,000), by the head of the procuring activity (or the head of the procuring activity’s delegate designated pursuant to paragraph (5)(A)); or
(iii) in the case of a contract for an amount exceeding $75,000,000, by the senior procurement executive of the agency designated pursuant to section 1702(c) of title 41 (without further delegation) or in the case of the Under Secretary of Defense for Acquisition and Sustainment, acting in his capacity as the senior procurement executive for the Department of Defense, the Under Secretary’s delegate designated pursuant to paragraph (5)(B); and
(C) any required notice has been published with respect to such contract pursuant to section 1708 of title 41 and all bids or proposals received in response to that notice have been considered by the head of the agency.
(2)Elements of justification.—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 any barrier to competition before a subsequent procurement for such needs.
(3)Justification and approval allowed after contract awarded.—In the case of a procurement permitted by subsection (a)(2), the justification and approval required by paragraph (1) may be made after the contract is awarded.
(4)Justification and approval not required.—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 product for authorized resale;
(C) in the case of a procurement permitted by subsection (a)(7);
(D) in the case of a procurement conducted under (i) chapter 85 of title 41, or (ii) section 8(a) of the Small Business Act (15 U.S.C. 637(a)); or
(E) in the case of a procurement permitted by subsection (a)(4), but only if the head of the contracting activity prepares a document in connection with such procurement that describes the terms of an agreement or treaty, or the written directions, referred to in that subsection that have the effect of requiring the use of procedures other than competitive procedures.
(5)Restrictions on Agencies.—
(A) In no case may the head of an agency—
(i) 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
(ii) procure property or services from another agency unless such other agency complies fully with the requirements of chapter 137 legacy provisions in its procurement of such property or services.
(B) The restriction contained in subparagraph (A)(ii) is in addition to, and not in lieu of, any other restriction provided by law.
(6)Limitation on Delegations of Authority Under Paragraph (1)(B).—
(A) The authority of the head of a procuring activity under paragraph (1)(B)(ii) may be delegated only to an officer or employee who—
(i) if a member of the armed forces, is a general or flag officer; or
(ii) if a civilian, is serving in a position with a grade under the General Schedule (or any other schedule for civilian officers or employees) that is comparable to or higher than the grade of brigadier general or rear admiral (lower half).
(B) The authority of the Under Secretary of Defense for Acquisition and Sustainment under paragraph (1)(B)(iii) may be delegated only to—
(i) an Assistant Secretary of Defense; or
(ii) with respect to the element of the Department of Defense (as specified in section 111(b) of this title), other than a military department, carrying out the procurement action concerned, an officer or employee serving in or assigned or detailed to that element who—(I) if a member of the armed forces, is serving in a grade above brigadier general or rear admiral (lower half); or(II) if a civilian, is serving in a position with a grade under the General Schedule (or any other schedule for civilian officers or employees) that is comparable to or higher than the grade of major general or rear admiral.
(7)Justification and approval not required for phase iii sbir award.—The justification and approval required by paragraph (1) is not required in the case of a Phase III award made pursuant to section 9(r)(4) of the Small Business Act (15 U.S.C. 638(r)(4)).
(f)Public Availability of Justification and Approval Required for Using Procedures Other Than Competitive Procedures.—
(1)Time requirement.—
(A)Within 14 days after contract award.—Except as provided in subparagraph (B), in the case of a procurement permitted by subsection (a), the head of an agency shall make publicly available, within 14 days after the award of the contract, the documents containing the justification and approval required by subsection (e)(1) with respect to the procurement.
(B)Within 30 days after contract award.—In the case of a procurement permitted by subsection (a)(2), subparagraph (A) shall be applied by substituting “30 days” for “14 days”.
(2)Availability on websites.—The documents shall be made available on the website of the agency and through a government-wide website selected by the Administrator for Federal Procurement Policy.
(3)Exception.—This subsection does not require the public availability of information that is exempt from public disclosure under section 552(b) of title 5.
(g)Regulations With Respect to Negotiation of Prices.—
(1) The Secretary of Defense shall prescribe by regulation the manner in which the Department of Defense negotiates prices for supplies to be obtained through the use of procedures other than competitive procedures.
(2) The regulations required by paragraph (1) shall—
(A) specify the incurred overhead a contractor may appropriately allocate to supplies referred to in that paragraph; and
(B) require the contractor to identify those supplies which it did not manufacture or to which it did not contribute significant value.
(3) Such regulations shall not apply to an item of supply included in a contract or subcontract for which the price is based on established catalog or market prices of commercial products sold in substantial quantities to the general public.
(Added and amended Pub. L. 116–283, div. A, title XVIII, § 1811(d)(1), (3)–(8), Jan. 1, 2021, 134 Stat. 4166–4169; Pub. L. 117–81, div. A, title XVII, § 1701(b)(4)(B)–(E), Dec. 27, 2021, 135 Stat. 2132.)
§ 3205. Simplified procedures for small purchases
(a)Authorization.—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—
(1) special simplified procedures for purchases of property and services for amounts not greater than the simplified acquisition threshold; and
(2) 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 products or commercial services.
(b)Prohibition on Dividing Contracts.—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 subsection (a).
(c)Promotion of Competition.—In using simplified procedures, the head of an agency shall promote competition to the maximum extent practicable.
(d)Compliance With Special Requirements of Federal Acquisition Regulation.—The head of an agency shall comply with the Federal Acquisition Regulation provisions referred to in section 1901(e) of title 41.
(Added and amended Pub. L. 116–283, div. A, title XVIII, § 1811(d)(1), (9), Jan. 1, 2021, 134 Stat. 4166, 4170.)
§ 3206. Planning and solicitation requirements
(a)Planning and Specifications.—
(1)Preparing for procurement.—In preparing for the procurement of property or services, the head of an agency shall—
(A) specify the agency’s 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)Requirements of specifications.—Each solicitation under chapter 137 legacy provisions shall include specifications which—
(A) consistent with the provisions of chapter 137 legacy provisions, permit full and open competition; and
(B) include restrictive provisions or conditions only to the extent necessary to satisfy the needs of the agency or as authorized by law.
(3)Types of specifications.—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 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)Contents of solicitation.—In addition to the specifications described in subsection (a), a solicitation for sealed bids or competitive proposals (other than for a procurement for commercial products or commercial services 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 head of the 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)Evaluation Factors.—
(1)In general.—In prescribing the evaluation factors to be included in each solicitation for competitive proposals, the head of an agency—
(A) shall (except as provided in paragraph (3)) 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 (except as provided in paragraph (3)) 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;
(ii) approximately equal in importance to cost or price; or
(iii) significantly less important than cost or price.
(2)Restriction on implementing regulations.—The regulations implementing paragraph (1)(C) 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.
(3)Exceptions for certain multiple task or delivery order contracts.—If the head of an agency issues a solicitation for multiple task or delivery order contracts under section 3403(d)(1)(B) of this title for the same or similar services and intends to make a contract award to each qualifying offeror—
(A) cost or price to the Federal Government need not, at the Government’s discretion, be considered under paragraph (1)(B) as an evaluation factor for the contract award; and
(B) if, pursuant to subparagraph (A), cost or price to the Federal Government is not considered as an evaluation factor for the contract award—
(i) the disclosure requirement of paragraph (1)(C) shall not apply; and
(ii) cost or price to the Federal Government shall be considered in conjunction with the issuance pursuant to section 3406(c) of this title of a task or delivery order under any contract resulting from the solicitation.
(4)Definition.—In paragraph (3), the term “qualifying offeror” means an offeror that—
(A) is determined to be a responsible source;
(B) submits a proposal that conforms to the requirements of the solicitation; and
(C) the contracting officer has no reason to believe would likely offer other than fair and reasonable pricing.
(5)Exclusion of applicability to certain contracts.—Paragraph (3) shall not apply to multiple task or delivery order contracts if the solicitation provides for sole source task or delivery order contracts pursuant to section 8(a) of the Small Business Act (15 U.S.C. 637(a)).
(d)Additional Information in Solicitation.—Nothing in this section prohibits an 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
(2) stating in a solicitation that award will be made to the offeror that meets the solicitation’s mandatory requirements at the lowest cost or price.
(e)Limitation on Evaluation of Purchase Options.—The head of an agency, in issuing a solicitation for a contract to be awarded using sealed bid procedures, may not include in such solicitation a clause providing for the evaluation of prices for options to purchase additional property or services under the contract unless the head of the agency has determined that there is a reasonable likelihood that the options will be exercised.
(Added and amended Pub. L. 116–283, div. A, title XVIII, § 1811(e), Jan. 1, 2021, 134 Stat. 4170; Pub. L. 117–81, div. A, title XVII, § 1701(b)(4)(F), (d)(4), Dec. 27, 2021, 135 Stat. 2133, 2136.)
§ 3207. Assessment before contract for acquisition of supplies is entered into The Secretary of Defense shall ensure that before a contract for the delivery of supplies to the Department of Defense is entered into—
(1) when the appropriate officials of the Department are making an assessment of the most advantageous source for acquisition of the supplies (considering quality, price, delivery, and other factors), there is a review of the availability and cost of each item of supply—
(A) through the supply system of the Department of Defense; and
(B) under standard Government supply contracts, if the item is in a category of supplies defined under regulations of the Secretary of Defense as being potentially available under a standard Government supply contract; and
(2) there is a review of both the procurement history of the item and a description of the item, including, when necessary for an adequate description of the item, a picture, drawing, diagram, or other graphic representation of the item.
(Added and amended Pub. L. 116–283, div. A, title XVIII, § 1811(f), Jan. 1, 2021, 134 Stat. 4173.)
§ 3208. Planning for future competition in contracts for major systems
(a)Development Contract.—
(1)Determining whether proposals are necessary.—The Secretary of Defense shall ensure that, in preparing a solicitation for the award of a development contract for a major system, the head of an agency consider requiring in the solicitation that an offeror include in its offer proposals described in paragraph (2). In determining whether to require such proposals, the head of the agency shall give due consideration to the purposes for which the system is being procured and the technology necessary to meet the system’s required capabilities. If such proposals are required, the head of the agency shall consider them in evaluating the offeror’s price.
(2)Contents of proposals.—Proposals referred to in the first sentence of paragraph (1) are the following:
(A) Proposals to incorporate in the design of the major system items which are currently available within the supply system of the Federal agency responsible for the major system, available elsewhere in the national supply system, or commercially available from more than one source.
(B) With respect to items that are likely to be required in substantial quantities during the system’s service life, proposals to incorporate in the design of the major system items which the United States will be able to acquire competitively in the future.
(b)Production Contract.—
(1)Determining whether proposals are necessary.—The Secretary of Defense shall ensure that, in preparing a solicitation for the award of a production contract for a major system, the head of an agency consider requiring in the solicitation that an offeror include in its offer proposals described in paragraph (2). In determining whether to require such proposals, the head of the agency shall give due consideration to the purposes for which the system is being procured and the technology necessary to meet the system’s required capabilities. If such proposals are required, the head of the agency shall consider them in evaluating the offeror’s price.
(2)Contents of proposals.—Proposals referred to in the first sentence of paragraph (1) are proposals identifying opportunities to ensure that the United States will be able to obtain on a competitive basis items procured in connection with the system that are likely to be reprocured in substantial quantities during the service life of the system. Proposals submitted in response to such requirement may include the following:
(A) Proposals to provide to the United States the right to use technical data to be provided under the contract for competitive reprocurement of the item, together with the cost to the United States, if any, of acquiring such technical data and the right to use such data.
(B) Proposals for the qualification or development of multiple sources of supply for the item.
(c)Consideration of Factors as Objectives in Negotiations.—If the head of an agency is making a noncompetitive award of a development contract or a production contract for a major system, the factors specified in subsections (a) and (b) to be considered in evaluating an offer for a contract may be considered as objectives in negotiating the contract to be awarded. Such objectives may not impair the rights of prospective contractors or subcontractors otherwise provided by law.
(d)Items Developed Exclusively at Private Expense.—
(1)Limitation.—Whenever the head of an agency requires that proposals described in subsection (a)(2) or (b)(2) be submitted by an offeror in its offer, the offeror shall not be required to provide a proposal that enables the United States to acquire competitively in the future an identical item if the item was developed exclusively at private expense unless the head of the agency determines that—
(A) the original supplier of such item will be unable to satisfy program schedule or delivery requirements; or
(B) proposals by the original supplier of such item to meet the mobilization requirements are insufficient to meet the agency’s mobilization needs.
(2)Evaluation.—In considering offers in response to a solicitation requiring proposals described in subsection (a)(2) or (b)(2), the head of an agency shall base any evaluation of items developed exclusively at private expense on an analysis of the total value, in terms of innovative design, life-cycle costs, and other pertinent factors, of incorporating such items in the system.
(Added and amended Pub. L. 116–283, div. A, title XVIII, § 1811(g), Jan. 1, 2021, 134 Stat. 4173.)