10 U.S.C. § 3201 — Full and open competition

Page 2420 TITLE 10—ARMED FORCES § 3201 ‘‘(4) Elimination of contract provisions authorizing the Government to make unilateral changes to con- tracts.’’ ELIMINATION OF USE OF CLASS I OZONE-DEPLETING SUBSTANCES IN CERTAIN MILITARY PROCUREMENT CONTRACTS Pub. L. 102–484, div. A, title III, § 326, Oct. 23, 1992, 106 Stat. 2368, as amended by Pub. L. 104–106, div. A, title XV, §§ 1502(c)(2)(A), 1504(c)(1), Feb. 10, 1996, 110 Stat. 506, 514; Pub. L. 106–65, div. A, title X, § 1067(8), Oct. 5, 1999, 113 Stat. 774; Pub. L. 113–291, div. A, title X, § 1071(b)(14), Dec. 19, 2014, 128 Stat. 3508, provided that: ‘‘(a) ELIMINATION OF USE OF CLASS I OZONE-DEPLETING SUBSTANCES.—(1) No Department of Defense contract awarded after June 1, 1993, may include a specification or standard that requires the use of a class I ozone-de- pleting substance or that can be met only through the use of such a substance unless the inclusion of the spec- ification or standard in the contract is approved by the senior acquisition official for the procurement covered by the contract. The senior acquisition official may grant the approval only if the senior acquisition offi- cial determines (based upon the certification of an ap- propriate technical representative of the official) that a suitable substitute for the class I ozone-depleting substance is not currently available. ‘‘(2)(A)(i) Not later than 60 days after the completion of the first modification, amendment, or extension after June 1, 1993, of a contract referred to in clause (ii), the senior acquisition official (or the designee of that official) shall carry out an evaluation of the con- tract in order to determine— ‘‘(I) whether the contract includes a specification or standard that requires the use of a class I ozone- depleting substance or can be met only through the use of such a substance; and ‘‘(II) in the event of a determination that the con- tract includes such a specification or standard, whether the contract can be carried out through the use of an economically feasible substitute for the ozone-depleting substance or through the use of an economically feasible alternative technology for a technology involving the use of the ozone-depleting substance. ‘‘(ii) A contract referred to in clause (i) is any con- tract in an amount in excess of $10,000,000 that— ‘‘(I) was awarded before June 1, 1993; and ‘‘(II) as a result of the modification, amendment, or extension described in clause (i), will expire more than 1 year after the effective date of the modifica- tion, amendment, or extension. ‘‘(iii) A contract under evaluation under clause (i) may not be further modified, amended, or extended until the evaluation described in that clause is com- plete. ‘‘(B) If the acquisition official (or designee) deter- mines that an economically feasible substitute sub- stance or alternative technology is available for use in a contract under evaluation, the appropriate con- tracting officer shall enter into negotiations to modify the contract to require the use of the substitute sub- stance or alternative technology. ‘‘(C) A determination that a substitute substance or technology is not available for use in a contract under evaluation shall be made in writing by the senior ac- quisition official (or designee). ‘‘(D) The Secretary of Defense may, consistent with the Federal Acquisition Regulation, adjust the price of a contract modified under subparagraph (B) to take into account the use by the contractor of a substitute substance or alternative technology in the modified contract. ‘‘(3) The senior acquisition official authorized to grant an approval under paragraph (1) and the senior acquisition official and designees authorized to carry out an evaluation and make a determination under paragraph (2) shall be determined under regulations prescribed by the Secretary of Defense. A senior acqui- sition official may not delegate the authority provided in paragraph (1). ‘‘(4) Each official who grants an approval authorized under paragraph (1) or makes a determination under paragraph (2)(B) shall submit to the Secretary of De- fense a report on that approval or determination, as the case may be, as follows: ‘‘(A) Beginning on October 1, 1993, and continuing for 8 calendar quarters thereafter, by submitting a re- port on the approvals granted or determinations made under such authority during the preceding quarter not later than 30 days after the end of such quarter. ‘‘(B) Beginning on January 1, 1997, and continuing for 4 years thereafter, by submitting a report on the approvals granted or determinations made under such authority during the preceding year not later than 30 days after the end of such year. ‘‘(5) The Secretary shall promptly transmit to the Committee on Armed Services of the Senate and the Committee on Armed Services of the House of Rep- resentatives each report submitted to the Secretary under paragraph (4). The Secretary shall transmit the report in classified and unclassified forms. ‘‘(b) COST RECOVERY.—In any case in which a Depart- ment of Defense contract is modified or a specification or standard for such a contract is waived at the request of a contractor in order to permit the contractor to use in the performance of the contract a substitute for a class I ozone-depleting substance or an alternative technology for a technology involving the use of a class I ozone-depleting substance, the Secretary of Defense may adjust the price of the contract in a manner con- sistent with the Federal Acquisition Regulation. ‘‘(c) DEFINITIONS.—In this section: ‘‘(1) The term ‘class I ozone-depleting substance’ means any substance listed under section 602(a) of the Clean Air Act (42 U.S.C. 7671a(a)). ‘‘(2) The term ‘Federal Acquisition Regulation’ means the single Government-wide procurement reg- ulation issued under section 1303(a) of title 41, United States Code.’’ MINIMUM PERCENTAGE OF COMPETITIVE PROCUREMENTS Pub. L. 99–145, title IX, § 913, Nov. 8, 1985, 99 Stat. 687, as amended by Pub. L. 101–510, div. A, title XIII, § 1322(d)(1), Nov. 5, 1990, 104 Stat. 1672, provided that: ‘‘(a) ANNUAL GOAL.—The Secretary of Defense shall establish for each fiscal year a goal for the percentage of defense procurements to be made during that year (expressed in total dollar value of contracts entered into) that are to be competitive procurements. ‘‘(b) DEFINITION.—For the purposes of this section, the term ‘competitive procurements’ means procure- ments made by the Department of Defense through the use of competitive procedures, as defined in [former] section 2304 of title 10, United States Code [see 10 U.S.C. 3201 et seq.].’’ § 3201. Full and open competition (a) IN GENERAL.—Except as provided in sec- tions 3203, 3204(a), and 3205 of this title and ex- cept in the case of procurement procedures oth- erwise 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 sec- tion 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 COMPETI- TIVE PROCEDURES.—In determining the competi- Page 2421 TITLE 10—ARMED FORCES § 3201 tive procedure appropriate under the cir- cumstances, the head of an agency— (1) shall solicit sealed bids if— (A) time permits the solicitation, submis- sion, 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 discus- sions with the responding sources about their bids; and (D) there is a reasonable expectation of re- ceiving more than one sealed bid; and (2) shall request competitive proposals if sealed bids are not appropriate under para- graph (1). (c) EFFICIENT FULFILLMENT OF GOVERNMENT REQUIREMENTS.—The Federal Acquisition Regu- lation shall ensure that the requirement to ob- tain full and open competition is implemented in a manner that is consistent with the need to efficiently fulfill the Government’s require- ments. (d) CERTAIN PURCHASES OR CONTRACTS TO BE TREATED AS IF MADE WITH SEALED-BID PROCE- DURES.—For the purposes of the following, pur- chases or contracts awarded after using proce- dures other than sealed-bid procedures shall be treated as if they were made with sealed-bid pro- cedures: (1) Chapter 65 of title 41. (2) Sections 3141–3144, 3146, and 3147 of title 40. (e) NEW CONTRACTS AND MERIT-BASED SELEC- TION 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 leg- islation 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 pro- cedures. (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 provi- sion 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 in- vestigate, 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.) Editorial Notes CODIFICATION The text of subsec. (a) of section 2304 of this title, which was transferred to this section, redesignated as subsecs. (a) and (b), and amended by Pub. L. 116–283, § 1811(c)(2), was based on Pub. L. 98–369, div. B, title VII, § 2723(a)(1)(C), July 18, 1984, 98 Stat. 1187; Pub. L. 99–145, title XIII, § 1303(a)(13), Nov. 8, 1985, 99 Stat. 739; Pub. L. 100–26, § 7(d)(3)(A), Apr. 21, 1987, 101 Stat. 281; Pub. L. 103–355, title I, § 1001(1), Oct. 13, 1994, 108 Stat. 3249. The text of subsec. (j) of section 2304 of this title, which was transferred to this section, redesignated as subsec. (c), and amended by Pub. L. 116–283, § 1811(c)(3), was based on Pub. L. 104–106, div. D, title XLI, § 4101(a)(2), Feb. 10, 1996, 110 Stat. 642. The text of subsec. (h) of section 2304 of this title, which was transferred to this section, redesignated as subsec. (d), and amended by Pub. L. 116–283, § 1811(c)(4), was based on act Aug. 10, 1956, ch. 1041, 70A Stat. 128; Pub. L. 96–513, title V, § 511(76), Dec. 12, 1980, 94 Stat. 2926; Pub. L. 97–295, § 1(24)(B), Oct. 12, 1982, 96 Stat. 1291; Pub. L. 98–369, div. B, title VII, §§ 2723(a)(1)(B), 2727(b), July 18, 1984, 98 Stat. 1187, 1194; Pub. L. 98–577, title V, § 504(b)(2), Oct. 30, 1984, 98 Stat. 3086; Pub. L. 104–106, div. D, title XLIII, § 4321(b)(5), Feb. 10, 1996, 110 Stat. 672; Pub. L. 107–217, § 3(b)(3), Aug. 21, 2002, 116 Stat. 1295; Pub. L. 111–350, § 5(b)(12)(E), Jan. 4, 2011, 124 Stat. 3843. The text of subsec. (k) of section 2304 of this title, which was transferred to this section, redesignated as subsec. (e), and amended by Pub. L. 116–283, § 1811(c)(5), was based on Pub. L. 103–355, title VII, § 7203(a)(1)(B), Oct. 13, 1994, 108 Stat. 3379; Pub. L. 104–106, div. D, title XLI, § 4101(a)(1), Feb. 10, 1996, 110 Stat. 642. PRIOR PROVISIONS A prior section 3201 was renumbered section 7101 of this title. Another prior section 3201, act Aug. 10, 1956, ch. 1041, 70A Stat. 172; Pub. L. 85–861, § 1(62), Sept. 2, 1958, 72 Stat. 1462; Pub. L. 88–647, title III, § 301(4), Oct. 13, 1964, 78 Stat. 1071, prescribed the authorized strength of the Army in members on active duty, exclusive of certain categories, and the authorized daily average strength of the Army in members on active duty during the fis- cal year, exclusive of certain categories, prior to repeal by Pub. L. 96–513, title II, § 202, title VII, § 701, Dec. 12, 1980, 94 Stat. 2878, 2955, effective Sept. 15, 1981. A prior section 3202, act Aug. 10, 1956, ch. 1041, 70A Stat. 172; Pub. L. 85–861, § 1(63), Sept. 2, 1958, 72 Stat. 1463; Pub. L. 90–228, § 1(1), (2), Dec. 28, 1967, 81 Stat. 745; Pub. L. 96–513, title II, § 203(a), Dec. 12, 1980, 94 Stat. 2878, related to authorized strength of Army in general officers on active duty, prior to repeal by Pub. L. 101–510, div. A, title IV, § 403(b)(1)(A), Nov. 5, 1990, 104 Stat. 1545. AMENDMENTS 2021—Subsec. (a). Pub. L. 116–283, § 1811(c)(2)(B), (C), as amended by Pub. L. 117–81, § 1701(b)(4)(A)(i), inserted heading, struck out par. (1) designation at beginning and substituted ‘‘Except as provided in sections 3203, 3204(a), and 3205 of this title’’ for ‘‘Except as provided in subsections (b), (c), and (g)’’ in introductory provi- sions, and redesignated subpars. (A) and (B) as pars. (1) and (2), respectively. Par. (2) subsequently redesignated subsec. (b). Pub. L. 116–283, § 1811(c)(2), transferred subsec. (a) of section 2304 of this title to this section. Subsec. (a)(1). Pub. L. 116–283, § 1811(c)(2)(D), as amended by Pub. L. 117–81, § 1701(b)(4)(A)(ii), sub- stituted ‘‘this section and sections 3069, 3203, 3204, 3205, 3403, 3405, 3406, 3901, 4501, and 4502 of this title’’ for ‘‘this chapter’’. Page 2422 TITLE 10—ARMED FORCES § 3203 Subsec. (b). Pub. L. 116–283, § 1811(c)(2)(A), (E), redes- ignated subsec. (a)(2) as (b) and inserted heading, redes- ignated subpar. (A) and cls. (i) to (iv) as par. (1) and subpars. (A) to (D), respectively, and redesignated sub- par. (B) as par. (2) and substituted ‘‘paragraph (1)’’ for ‘‘clause (A)’’. Subsec. (c). Pub. L. 116–283, § 1811(c)(3), redesignated subsec. (j) of section 2304 of this title as subsec. (c) of this section and inserted heading. Subsec. (d). Pub. L. 116–283, § 1811(c)(4), redesignated subsec. (h) of section 2304 of this title as subsec. (d) of this section and inserted heading. Subsec. (e). Pub. L. 116–283, § 1811(c)(5), redesignated subsec. (k) of section 2304 of this title as subsec. (e) of this section, inserted subsec. and par. headings, switched order and designations of pars. (2) and (3), re- aligned margins of pars. (2) to (4), and substituted ‘‘sec- tion 3063’’ for ‘‘section 2303(a)’’ in pars. (1) and (4). Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2021 AMENDMENT Amendment by Pub. L. 117–81 applicable as if in- cluded in the enactment of title XVIII of Pub. L. 116–283 as enacted, see section 1701(a)(2) of Pub. L. 117–81, set out in a note preceding section 3001 of this title and Ef- fective Date note below. EFFECTIVE DATE Section and amendment by Pub. L. 116–283 effective Jan. 1, 2022, with additional provisions for delayed im- plementation and applicability of existing law, see sec- tion 1801(d) of Pub. L. 116–283, set out as an Effective Date of 2021 Amendment note preceding section 3001 of this title. COMPETITION FOR PROCUREMENT OF SMALL ARMS SUPPLIED TO IRAQ AND AFGHANISTAN Pub. L. 110–181, div. A, title VIII, § 892, Jan. 28, 2008, 122 Stat. 270, which required the Secretary of Defense to ensure, consistent with the provisions of former sec- tion 2304 of this title, full and open competition for pro- curement of small arms supplied to Iraq and Afghani- stan, was repealed by Pub. L. 118–159, div. A, title VIII, § 811(a)(1)(B), Dec. 23, 2024, 138 Stat. 1979. COMPETITIVE AWARD OF CONTRACTS FOR RECONSTRUCTION ACTIVITIES IN IRAQ Pub. L. 108–136, div. A, title VIII, § 805(a), Nov. 24, 2003, 117 Stat. 1542, which required the Department of De- fense to fully comply with former chapter 137 of this title for contracts awarded competitively for recon- struction activities of the Iraqi oil industry, was re- pealed by Pub. L. 118–159, div. A, title VIII, § 811(a)(1)(A), Dec. 23, 2024, 138 Stat. 1979. § 3203. Exclusion of particular source or restric- tion of solicitation to small business con- cerns (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 proce- dures 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 competi- tion and would likely result in reduced over- all costs for such procurement, or for any anticipated procurement, of property or services; (B) would be in the interest of national de- fense 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 mobi- lization; (C) would be in the interest of national de- fense in establishing or maintaining an es- sential engineering, research, or develop- ment capability to be provided by an edu- cational or other nonprofit institution or a federally funded research and development center; (D) would ensure the continuous avail- ability 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 sat- isfy 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 cov- ered by chapter 137 legacy provisions using com- petitive procedures, but excluding concerns other than small business concerns in further- ance of sections 9 and 15 of the Small Business Act (15 U.S.C. 638, 644). (c) INAPPLICABILITY OF JUSTIFICATION AND AP- PROVAL REQUIREMENTS.—A contract awarded pursuant to the competitive procedures referred to in subsections (a)(1) and (b) shall not be sub- ject 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.) Editorial Notes CODIFICATION The text of subsec. (b) of section 2304 of this title, which was transferred to this section and amended by Pub. L. 116–283, § 1811(d)(2), was based on Pub. L. 98–369, div. B, title VII, § 2723(a)(1)(C), July 18, 1984, 98 Stat. 1187; Pub. L. 98–577, title V, § 504(b)(1), Oct. 30, 1984, 98 Stat. 3086; Pub. L. 99–661, div. A, title XIII, § 1343(a)(14), Nov. 14, 1986, 100 Stat. 3993; Pub. L. 101–189, div. A, title VIII, 853(d), Nov. 29, 1989, 103 Stat. 1519; Pub. L. 102–484, div. A, title VIII, § 801(h)(2), Oct. 23, 1992, 106 Stat. 2445; Pub. L. 103–355, title I, § 1002, Oct. 13, 1994, 108 Stat. 3249; Pub. L. 115–232, div. A, title VIII, § 812(a)(2)(C)(v), Aug. 13, 2018, 132 Stat. 1847. PRIOR PROVISIONS A prior section 3203, act Aug. 10, 1956, ch. 1041, 70A Stat. 173; Pub. L. 85–861, § 1(64), Sept. 2, 1958, 72 Stat. 1463, prescribed authorized strength of Regular Army in members on active duty, exclusive of officers can- didates, prior to repeal by Pub. L. 96–513, title II, § 202, title VII, § 701, Dec. 12, 1980, 94 Stat. 2878, 2955, effective Sept. 15, 1981. AMENDMENTS 2021—Subsec. (a). Pub. L. 116–283, § 1811(d)(2)(A), redes- ignated subsec. (b) of section 2304 of this title as subsec. (a) of this section and inserted heading.