41 U.S.C. § 3311 — Qualification requirement

Page 101 TITLE 41—PUBLIC CONTRACTS § 3311 Statutory Notes and Related Subsidiaries PROHIBITION ON USE OF A REVERSE AUCTION FOR THE AWARD OF A CONTRACT FOR COMPLEX, SPECIALIZED, OR SUBSTANTIAL DESIGN AND CONSTRUCTION SERVICES Pub. L. 116–260, div. U, title IV, § 402, Dec. 27, 2020, 134 Stat. 2292, as amended by Pub. L. 117–28, § 2, July 26, 2021, 135 Stat. 304, provided that: ‘‘(a) FINDINGS.—Congress makes the following find- ings: ‘‘(1) In contrast to a traditional auction in which the buyers bid up the price, sellers bid down the price in a reverse auction. ‘‘(2) Reverse auctions, while providing value for the vast majority of Federal acquisitions, including cer- tain construction-related acquisitions, are limited in value for complex, specialized, or substantial design and construction services. ‘‘(b) REVERSE AUCTION DEFINED.—In this section, the term ‘reverse auction’ means, with respect to any pro- curement by an executive agency, a real-time auction generally conducted through an electronic medium among two or more offerors who compete by submit- ting bids for a supply or service contract, or a delivery order, task order, or purchase order under the contract, with the ability to submit revised lower bids at any time before the closing of the auction. ‘‘(c) PROHIBITION.— ‘‘(1) IN GENERAL.—Not later than 270 days after the date of the enactment of this section [July 26, 2021], the Federal Acquisition Regulation shall be amended to prohibit the use of reverse auctions for awarding contracts for complex, specialized, or substantial de- sign and construction services. ‘‘(2) APPLICABILITY TO ACQUISITIONS ABOVE THE SIM- PLIFIED ACQUISITION THRESHOLD.—The prohibition on reverse auctions for complex, specialized, or substan- tial design and construction services shall apply only to acquisitions above the simplified acquisition threshold (SAT) for construction and design services pursuant to part 36 of the Federal Acquisition Regu- lation. ‘‘(d) RULEMAKING FOR COMPLEX, SPECIALIZED, OR SUB- STANTIAL SERVICES.—Not later than 180 days after the date of the enactment of this section, the Federal Ac- quisition Regulatory Council shall promulgate a defini- tion of complex, specialized, or substantial design and construction services, which shall include— ‘‘(1) site planning and landscape design; ‘‘(2) architectural and engineering services (as de- fined in section 1102 of title 40, United States Code); ‘‘(3) interior design; ‘‘(4) performance of substantial construction work for facility, infrastructure, and environmental res- toration projects; and ‘‘(5) construction or substantial alteration of public buildings or public works. ‘‘(e) RULE OF CONSTRUCTION.—Nothing in this section shall be construed to restrict the use of reverse auc- tions for the procurement of other goods and services except as specifically provided for under this section. ‘‘(f) REPORT.—Not later than two years after the date of the enactment of this section, the Administrator of General Services shall submit to the Committee on Homeland Security and Governmental Affairs of the Senate and the Committee on Oversight and Reform [now Committee on Oversight and Accountability] of the House of Representatives a report on the effective- ness of this section in delivering complex, specialized, or substantial design and construction services to the United States Government.’’ § 3310. Quantities to order (a) FACTORS AFFECTING QUANTITY TO ORDER.— Each executive agency shall procure supplies in a quantity that— (1) will result in the total cost and unit cost most advantageous to the Federal Govern- ment, where practicable; and (2) does not exceed the quantity reasonably expected to be required by the agency. (b) OFFEROR’S OPINION OF QUANTITY.—Each so- licitation for a contract for supplies shall, if practicable, include a provision inviting each of- feror responding to the solicitation to state an opinion on whether the quantity of supplies pro- posed to be procured is economically advan- tageous to the Federal Government and, if appli- cable, to recommend a quantity that would be more economically advantageous to the Federal Government. Each recommendation shall in- clude a quotation of the total price and the unit price for supplies procured in each recommended quantity. (Pub. L. 111–350, § 3, Jan. 4, 2011, 124 Stat. 3761.) HISTORICAL AND REVISION NOTES Revised Section Source (U.S. Code) Source (Statutes at Large) 3310 ............ 41:253f. June 30, 1949, ch. 288, title III, § 303F, formerly § 303G, as added Pub. L. 98–577, title II, § 205(a), Oct. 30, 1984, 98 Stat. 3073; renum- bered § 303F, Pub. L. 99–145, title XIII, § 1304(c)(4)(A), Nov. 8, 1985, 99 Stat. 742. In subsection (b), the words ‘‘or quantities’’ are omit- ted because of 1:1. § 3311. Qualification requirement (a) DEFINITION.—In this section, the term ‘‘qualification requirement’’ means a require- ment for testing or other quality assurance demonstration that must be completed by an of- feror before award of a contract. (b) ACTIONS BEFORE ENFORCING QUALIFICATION REQUIREMENT.—Except as provided in subsection (c), the head of an agency, before enforcing any qualification requirement, shall— (1) prepare a written justification stating the necessity for establishing the qualification requirement and specify why the qualification requirement must be demonstrated before con- tract award; (2) specify in writing and make available to a potential offeror on request all requirements that a prospective offeror, or its product, must satisfy to become qualified, with those re- quirements to be limited to those least re- strictive to meet the purposes necessitating the establishment of the qualification require- ment; (3) specify an estimate of the cost of testing and evaluation likely to be incurred by a po- tential offeror to become qualified; (4) ensure that a potential offeror is pro- vided, on request, a prompt opportunity to demonstrate at its own expense (except as pro- vided in subsection (d)) its ability to meet the standards specified for qualification using— (A) qualified personnel and facilities— (i) of the agency concerned; (ii) of another agency obtained through interagency agreement; or (iii) under contract; or (B) other methods approved by the agency (including use of approved testing and eval- uation services not provided under contract to the agency); Page 102 TITLE 41—PUBLIC CONTRACTS § 3311 (5) if testing and evaluation services are pro- vided under contract to the agency for the purposes of paragraph (4), provide to the ex- tent possible that those services be provided by a contractor that— (A) is not expected to benefit from an ab- sence of additional qualified sources; and (B) is required in the 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 whether qualification is attained and, if not attained, is promptly furnished specific information about why qualification was not attained. (c) APPLICABILITY, WAIVER AUTHORITY, AND RE- FERRAL OF OFFERS.— (1) APPLICABILITY.—Subsection (b) does not apply to a qualification requirement estab- lished by statute prior to October 30, 1984. (2) WAIVER AUTHORITY.— (A) SUBMISSION OF DETERMINATION OF UNREASONABLENESS.—Except as provided in subparagraph (C), if it is unreasonable to specify the standards for qualification that a prospective offeror or its product must sat- isfy, 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 quali- fication requirement. (B) AUTHORITY TO GRANT WAIVER.—After considering any comments of the advocate for competition reviewing the determina- tion, the head of the procuring activity may waive the requirements of paragraphs (2) to (5) of subsection (b) for up to 2 years with re- spect to the item subject to the qualification requirement. (C) NONAPPLICABILITY TO QUALIFIED PROD- UCTS LIST.—Waiver authority under this paragraph does not apply with respect to a qualified products list. (3) SUBMISSION AND CONSIDERATION OF OFFER NOT TO BE DENIED.—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 require- ment 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 those standards before the date spec- ified for award of the contract. (4) REFERRAL TO SMALL BUSINESS ADMINIS- TRATION NOT REQUIRED.—This subsection does not require the referral of an offer to the Small Business Administration pursuant to section 8(b)(7) of the Small Business Act (15 U.S.C. 637(b)(7)) if the basis for the referral is a challenge by the offeror to either the valid- ity of the qualification requirement or the offeror’s compliance with that requirement. (5) DELAY OF PROCUREMENT NOT REQUIRED.— The head of an agency need not delay a pro- posed procurement to comply with subsection (b) or to provide a potential offeror with an opportunity to demonstrate its ability to meet the standards specified for qualification. (d) FEWER THAN 2 ACTUAL MANUFACTURERS.— (1) SOLICITATION AND TESTING OF ADDITIONAL SOURCES OR PRODUCTS.—If the number of quali- fied sources or qualified products available to compete actively for an anticipated future re- quirement is fewer than 2 actual manufactur- ers or the products of 2 actual manufacturers, respectively, the head of the agency concerned shall— (A) publish notice periodically soliciting additional sources or products to seek quali- fication, unless the contracting officer de- termines that doing so would compromise national security; and (B) subject to paragraph (2), bear the cost of conducting the specified testing and eval- uation (excluding the cost associated with producing the item or establishing the pro- duction, quality control, or other system to be tested and evaluated) for a small business concern or a product manufactured by a small business concern that has met the standards specified for qualification and that could reasonably be expected to com- pete for a contract for that requirement. (2) WHEN AGENCY MAY BEAR COST.—The head of the agency concerned may bear the cost under paragraph (1)(B) only if the head of the agency determines that the additional quali- fied sources or products are likely to result in cost savings from increased competition for future requirements sufficient to offset (with- in a reasonable period of time considering the duration and dollar value of anticipated future requirements) the cost incurred by the agency. (3) CERTIFICATION REQUIRED.—The head of the agency shall require a prospective con- tractor requesting the Federal Government to bear testing and evaluation costs under para- graph (1)(B) to certify its status as a small business concern under section 3 of the Small Business Act (15 U.S.C. 632). (e) EXAMINATION AND REVALIDATION OF QUALI- FICATION REQUIREMENT.—Within 7 years after the establishment of a qualification require- ment, the need for the requirement shall be ex- amined and the standards of the requirement re- validated in accordance with the requirements of subsection (b). This subsection does not apply in the case of a qualification requirement for which a waiver is in effect under subsection (c)(2). (f) WHEN ENFORCEMENT OF QUALIFICATION RE- QUIREMENT NOT ALLOWED.—Except in an emer- gency as determined by the head of the agency, after the head of the agency determines not to enforce a qualification requirement for a solici- tation, the agency may not enforce the require- ment unless the agency complies with the re- quirements of subsection (b). (Pub. L. 111–350, § 3, Jan. 4, 2011, 124 Stat. 3761.) Page 103 TITLE 41—PUBLIC CONTRACTS § 3501 1 See References in Text note below. HISTORICAL AND REVISION NOTES Revised Section Source (U.S. Code) Source (Statutes at Large) 3311 ............ 41:253c. June 30, 1949, ch. 288, title III, § 303C, formerly § 303D, as added Pub. L. 98–577, title II, § 202(a), Oct. 30, 1984, 98 Stat. 3069; renum- bered § 303C, Pub. L. 99–145, title XIII, § 1304(c)(4)(A), Nov. 8, 1985, 99 Stat. 742. In subsection (d)(1)(A), the words ‘‘in the Commerce Business Daily’’ are omitted as obsolete. See revision note for section 1708(d) of the revised title. § 3312. Database on price trends of items and services under Federal contracts (a) DATABASE REQUIRED.—The Administrator shall establish and maintain a database of infor- mation on price trends for items and services under contracts with the Federal Government. The information in the database shall be de- signed to assist Federal acquisition officials in the following: (1) Monitoring developments in price trends for items and services under contracts with the Federal Government. (2) Conducting price or cost analyses for items and services under offers for contracts with the Federal Government, or otherwise conducting determinations of the reasonable- ness of prices for items and services under such offers, and addressing unjustified esca- lation in prices being paid by the Federal Gov- ernment for items and services under con- tracts with the Federal Government. (b) USE.—(1) The database under subsection (a) shall be available to executive agencies in the evaluation of offers for contracts with the Fed- eral Government for items and services. (2) The Secretary of Defense may satisfy the requirements of this section by complying with the requirements of section 892 1 of the Ike Skel- ton National Defense Authorization Act for Fis- cal Year 2011 (10 U.S.C. 2306a note). (Added Pub. L. 112–239, div. A, title VIII, § 851(a)(1), Jan. 2, 2013, 126 Stat. 1855.) Editorial Notes REFERENCES IN TEXT Section 892 of the Ike Skelton National Defense Au- thorization Act for Fiscal Year 2011, referred to in sub- sec. (b)(2), is section 892 of Pub. L. 111–383, which was formerly set out as a note under section 2306a of Title 10, Armed Forces, prior to repeal by Pub. L. 114–92, div. A, title X, § 1073(f), Nov. 25, 2015, 129 Stat. 996. Statutory Notes and Related Subsidiaries USE OF ELEMENTS OF DEPARTMENT OF DEFENSE PILOT PROJECT Pub. L. 112–239, div. A, title VIII, § 851(b), Jan. 2, 2013, 126 Stat. 1855, provided that: ‘‘In establishing the data- base required by section 3312 of title 41, United States Code (as added by subsection (a)), the Administrator for Federal Procurement Policy shall use and incorporate appropriate elements of the pilot project on pricing being carried out by the Under Secretary of Defense for Acquisition, Technology, and Logistics pursuant to sec- tion 892 of the Ike Skelton National Defense Authoriza- tion Act for Fiscal Year 2011 [Pub. L. 111–383] (10 U.S.C. 2306a note) and the Better Buying Power initiative of the Secretary of Defense.’’ CHAPTER 35—TRUTHFUL COST OR PRICING DATA Sec. 3501. General. 3502. Required cost or pricing data and certifi- cation. 3503. Exceptions. 3504. Cost or pricing data on below-threshold con- tracts. 3505. Submission of other information. 3506. Price reductions for defective cost or pricing data. 3507. Interest and penalties for certain overpay- ments. 3508. Right to examine contractor records. 3509. Notification of violations of Federal criminal law or overpayments. SENATE REVISION AMENDMENT In chapter 35 heading, ‘‘OR’’ substituted for ‘‘AND’’ by S. Amdt. 4726 (111th Cong.). See 156 Cong. Rec. 18683 (2010). § 3501. General (a) DEFINITIONS.—In this chapter: (1) COST OR PRICING DATA.—The term ‘‘cost or pricing data’’ means all facts that, as of the date of agreement on the price of a contract (or the price of a contract modification) or, if applicable consistent with section 3506(a)(2) of this title, another date agreed upon between the parties, a prudent buyer or seller would reasonably expect to affect price negotiations significantly. The term does not include infor- mation that is judgmental, but does include factual information from which a judgment was derived. (2) SUBCONTRACT.—The term ‘‘subcontract’’ includes a transfer of commercial products or commercial services between divisions, sub- sidiaries, or affiliates of a contractor or a sub- contractor. (b) REGULATIONS.— (1) MINIMIZING ABUSE OF COMMERCIAL SERV- ICES AUTHORITY.—The Federal Acquisition Regulation shall ensure that services that are not offered and sold competitively in substan- tial quantities in the commercial market- place, but are of a type offered and sold com- petitively in substantial quantities in the commercial marketplace, may be treated as commercial services for purposes of this chap- ter only if the contracting officer determines in writing that the offeror has submitted suffi- cient information to evaluate, through price analysis, the reasonableness of the price for the services. (2) INFORMATION TO SUBMIT.—To the extent necessary to make a determination under paragraph (1), the contracting officer may re- quest the offeror to submit— (A) prices paid for the same or similar commercial services under comparable terms and conditions by both government and commercial customers; and (B) if the contracting officer determines that the information described in subpara-