41 U.S.C. § 3303 — Exclusion of particular source or restric-

Page 90 TITLE 41—PUBLIC CONTRACTS § 3303 section 253h of former Title 41, Public Contracts, prior to being repealed and reenacted by Pub. L. 111–350, §§ 3, 7(b), Jan. 4, 2011, 124 Stat. 3677, 3855. Section 863(b)(3)(A) of Pub. L. 110–417 was restated as subsec. (c)(3)(A) of this section and subsequently amended by Pub. L. 111–383, div. A, title X, § 1075(e)(14), Jan. 7, 2011, 124 Stat. 4375. For applicability of that amendment to this section, see section 6(a) of Pub. L. 111–350, set out as a Transitional and Savings Provi- sions note preceding section 101 of this title. Section 863(b)(3)(A) of Pub. L. 110–417 was amended by striking ‘‘subsection (d)(2)(A)’’ and inserting ‘‘subsection (d)(3)(A)’’. Such reference did not appear in the text of subsec. (c)(3)(A) as enacted. See Historical and Revision Notes below. REPEAL OF SUBSECTION (f) Pub. L. 116–92, div. A, title VIII, § 893(b)(2), Dec. 20, 2019, 133 Stat. 1540 provided that, effec- tive Dec. 31, 2025, subsection (f) of this section is repealed. See 2019 Amendment note below. HISTORICAL AND REVISION NOTES Revised Section Source (U.S. Code) Source (Statutes at Large) 3302 ............ 41:253h note. Pub. L. 110–417, [div. A], title VIII, § 863(a)–(e), Oct. 14, 2008, 122 Stat. 4547. In subsection (b), the words ‘‘Not later than one year after the date of the enactment of this Act’’ are omit- ted because of section 6(f) of the bill. The words ‘‘shall require’’ are substituted for ‘‘shall be amended to re- quire’’ to reflect the permanence of the provision. In subsection (c)(2)(A), the words ‘‘except as provided in paragraph (3)’’ are omitted as unnecessary. In subsection (c)(3)(A), ‘‘subsection (a)(3)(A)’’ is sub- stituted for ‘‘subsection (d)(2)(A)’’ for consistency in the revised title and to correct an error in the law. In subsection (d)(1), the words ‘‘Not later than one year after the date of the enactment of this Act’’ are omitted because of section 6(f) of the bill. The words ‘‘shall require’’ are substituted for ‘‘shall be amended to require’’ to reflect the permanence of the provision. Editorial Notes AMENDMENTS 2021—Subsec. (a)(3). Pub. L. 117–81, § 1702(h)(12)(A), substituted ‘‘section 3012(3)’’ for ‘‘section 2302(2)(C)’’ in subpar. (A) and ‘‘chapter 245 of title 10’’ for ‘‘sections 2304a to 2304d of title 10,’’ in subpar. (B). Subsec. (c)(1)(A)(i). Pub. L. 117–81, § 1702(h)(12)(B), sub- stituted ‘‘section 3406(c)’’ for ‘‘section 2304c(b)’’. Subsec. (d)(1)(B). Pub. L. 117–81, § 1702(h)(12)(C), sub- stituted ‘‘section 3204(e)(1)’’ for ‘‘section 2304(f)(1)’’. 2019—Subsec. (f). Pub. L. 116–92, § 893(b)(2), struck out subsec. (f). Text read as follows: ‘‘The regulations re- quired by subsection (b) shall not apply to individual purchases for commercial leasing services that are made on a no cost basis and made under a multiple award contract awarded in accordance with the re- quirements for full and open competition.’’ Pub. L. 116–92, § 893(b)(1), added subsec. (f). Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2019 AMENDMENT Pub. L. 116–92, div. A, title VIII, § 893(b)(2), Dec. 20, 2019, 133 Stat. 1540, provided that the amendment made by section 893(b)(2) is effective Dec. 31, 2025. INDIVIDUAL ACQUISITION FOR COMMERCIAL LEASING SERVICES Pub. L. 115–232, div. A, title VIII, § 877, Aug. 13, 2018, 132 Stat. 1907, which related to individual acquisition for commercial leasing services not construed as pur- chase of property or services under certain conditions, was repealed by Pub. L. 116–92, div. A, title VIII, § 893(a), Dec. 20, 2019, 133 Stat. 1540. § 3303. Exclusion of particular source or restric- tion of solicitation to small business con- cerns (a) EXCLUSION OF PARTICULAR SOURCE.— (1) CRITERIA FOR EXCLUSION.—An executive agency may provide for the procurement of property or services covered by section 3301 of this title using competitive procedures but ex- cluding a particular source to establish or maintain an alternative source of supply for that property or service if the agency head de- termines that to do so would— (A) increase or maintain competition and likely result in reduced overall cost for the procurement, or for an anticipated procure- ment, of the property or services; (B) be in the interest of national defense in having a facility (or a producer, manufac- turer, or other supplier) available for fur- nishing the property or service in case of a national emergency or industrial mobiliza- tion; (C) be in the interest of national defense in establishing or maintaining an essential en- gineering, research, or development capa- bility to be provided by an educational or other nonprofit institution or a Federally funded research and development center; (D) ensure the continuous availability of a reliable source of supply of the property or service; (E) satisfy projected needs for the property or service determined on the basis of a his- tory of high demand for the property or serv- ice; or (F) satisfy a critical need for medical, safe- ty, or emergency 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.—An executive agency may provide for the procurement of property or services cov- ered by section 3301 of this title using competi- tive procedures, but excluding other than small business concerns in furtherance of sections 9 and 15 of the Small Business Act (15 U.S.C. 638, 644). (c) NONAPPLICATION OF JUSTIFICATION AND AP- PROVAL REQUIREMENTS.—A contract awarded pursuant to the competitive procedures referred to in subsections (a) and (b) is not subject to the justification and approval required by section 3304(e)(1) of this title. (Pub. L. 111–350, § 3, Jan. 4, 2011, 124 Stat. 3747.) Page 91 TITLE 41—PUBLIC CONTRACTS § 3304 HISTORICAL AND REVISION NOTES Revised Section Source (U.S. Code) Source (Statutes at Large) 3303 ............ 41:253(b). June 30, 1949, ch. 288, title III, § 303(b), 63 Stat. 395; July 12, 1952, ch. 703, § 1(m), 66 Stat. 594; Pub. L. 90–268, § 2, Mar. 16, 1968, 82 Stat. 49; Pub. L. 98–369, title VII, § 2711(a)(1), July 18, 1984, 98 Stat. 1175; Pub. L. 98–577, title V, § 504(a)(1), Oct. 30, 1984, 98 Stat. 3086; Pub. L. 103–355, title I, § 1052, Oct. 13, 1994, 108 Stat. 3260. § 3304. Use of noncompetitive procedures (a) WHEN NONCOMPETITIVE PROCEDURES MAY BE USED.—An executive agency may use proce- dures other than competitive procedures only when— (1) the property or services needed by the ex- ecutive agency are available from only one re- sponsible source and no other type of property or services will satisfy the needs of the execu- tive agency; (2) the executive agency’s need for the prop- erty or services is of such an unusual and com- pelling urgency that the Federal Government would be seriously injured unless the execu- tive agency is permitted to limit the number of sources from which it solicits bids or pro- posals; (3) it is necessary to award the contract to a particular source— (A) to maintain a facility, producer, manu- facturer, or other supplier available for fur- nishing property or services in case of a na- tional emergency or to achieve industrial mobilization; (B) to establish or maintain an essential engineering, research, or development capa- bility to be provided by an educational or other nonprofit institution or a Federally funded research and development center; (C) to procure the services of an expert for use, in any litigation or dispute (including any reasonably foreseeable litigation or dis- pute) involving the Federal Government, in any trial, hearing, or proceeding before a court, administrative tribunal, or agency, whether or not the expert is expected to tes- tify; or (D) 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 ex- pected to testify; (4) the terms of an international agreement or treaty between the Federal Government and a foreign government or an 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 that government, have the effect of requiring the use of procedures other than competitive procedures; (5) subject to section 3105 of this title, a stat- ute expressly authorizes or requires that the procurement be made through another execu- tive 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 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 (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 Congress in writing of that de- termination not less than 30 days before the award of the contract. (b) PROPERTY OR SERVICES DEEMED AVAILABLE FROM ONLY ONE SOURCE.—For the purposes of subsection (a)(1), in the case of— (1) a contract for property or services to be awarded on the basis of acceptance of an unso- licited research proposal, the property or serv- ices are deemed to be available from only one source if the source has submitted an unsolic- ited research proposal that demonstrates a unique and innovative concept, the substance of which is not otherwise available to the Fed- eral Government and does not resemble the substance of a pending competitive procure- ment; or (2) a follow-on contract for the continued de- velopment or production of a major system or highly specialized equipment, the property 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— (A) substantial duplication of cost to the Federal Government that is not expected to be recovered through competition; or (B) unacceptable delay in fulfilling the ex- ecutive agency’s needs. (c) PROPERTY OR SERVICES NEEDED WITH UN- USUAL AND COMPELLING URGENCY.— (1) ALLOWABLE CONTRACT PERIOD.—The con- tract period of a contract described in para- graph (2) that is entered into by an executive 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 executive agency to enter into another contract for the required goods or services through the use of com- petitive procedures; and (B) may not exceed one year unless the head of the executive agency entering into the contract determines that exceptional circumstances apply. (2) APPLICABILITY OF ALLOWABLE CONTRACT PERIOD.—This subsection applies to any con- tract in an amount greater than the simplified acquisition threshold. (d) 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 para-