41 U.S.C. § 3105 — New contracts and grants and merit-based

Page 86 TITLE 41—PUBLIC CONTRACTS § 3103 ficer or official of that agency any power under this division. (b) PROCUREMENTS FOR OR WITH ANOTHER AGENCY.—Subject to subsection (a), to facilitate the procurement of property and services cov- ered by this division by an executive agency for another executive agency, and to facilitate joint procurement by executive agencies— (1) the head of an executive agency may del- egate functions and assign responsibilities re- lating to procurement to any officer or em- ployee within the agency; (2) the heads of 2 or more executive agencies, consistent with section 1535 of title 31 and reg- ulations prescribed under section 1074 of the Federal Acquisition Streamlining Act of 1994 (Public Law 103–355, 31 U.S.C. 1535 note), may by agreement delegate procurement functions and assign procurement responsibilities from one executive agency to another of those exec- utive agencies or to an officer or civilian em- ployee of another of those executive agencies; and (3) the heads of 2 or more executive agencies may establish joint or combined offices to ex- ercise procurement functions and responsibil- ities. (Pub. L. 111–350, § 3, Jan. 4, 2011, 124 Stat. 3743.) HISTORICAL AND REVISION NOTES Revised Section Source (U.S. Code) Source (Statutes at Large) 3102 ............ 41:261. June 30, 1949, ch. 288, title III, § 311, as added Pub. L. 103–355, title I, § 1552, Oct. 13, 1994, 108 Stat. 3299. § 3103. Acquisition programs (a) CONGRESSIONAL POLICY.—It is the policy of Congress that the head of each executive agency should achieve, on average, 90 percent of the cost, performance, and schedule goals estab- lished for major acquisition programs of the agency. (b) ESTABLISHMENT OF GOALS.— (1) BY HEAD OF EXECUTIVE AGENCY.—The head of each executive agency shall approve or de- fine the cost, performance, and schedule goals for major acquisition programs of the agency. (2) BY CHIEF FINANCIAL OFFICER.—The chief financial officer of an executive agency shall evaluate the cost goals proposed for each major acquisition program of the agency. (c) IDENTIFICATION OF NONCOMPLIANT PRO- GRAMS.—When it is necessary to implement the policy set out in subsection (a), the head of an executive agency shall— (1) determine whether there is a continuing need for programs that are significantly be- hind schedule, over budget, or not in compli- ance with performance or capability require- ments; and (2) identify suitable actions to be taken, in- cluding termination, with respect to those programs. (Pub. L. 111–350, § 3, Jan. 4, 2011, 124 Stat. 3743.) HISTORICAL AND REVISION NOTES Revised Section Source (U.S. Code) Source (Statutes at Large) 3103 ............ 41:263. June 30, 1949, ch. 288, title III, § 313, as added Pub. L. 103–355, title V, § 5051(a), Oct. 13, 1994, 108 Stat. 3351; Pub. L. 105–85, div. A, title VIII, § 851(a), Nov. 18, 1997, 111 Stat. 1851. § 3104. Small business concerns It is the policy of Congress that a fair propor- tion of the total purchases and contracts for property and services for the Federal Govern- ment shall be placed with small business con- cerns. (Pub. L. 111–350, § 3, Jan. 4, 2011, 124 Stat. 3744.) HISTORICAL AND REVISION NOTES Revised Section Source (U.S. Code) Source (Statutes at Large) 3104 ............ 41:252(b). June 30, 1949, ch. 288, title III, § 302(b), 63 Stat. 393; July 12, 1952, ch. 703, § 1(m), 66 Stat. 594; Pub. L. 98–369, div. B, title VII, § 2714(a)(1)(A), July 18, 1984, 98 Stat. 1184. The word ‘‘declared’’ is omitted as unnecessary. § 3105. New contracts and grants and merit-based selection procedures (a) CONGRESSIONAL POLICY.—It is the policy of Congress that— (1) an executive agency should not be re- quired by legislation to award— (A) a new contract to a specific non-Fed- eral Government entity; or (B) a new grant for research, development, test, or evaluation to a non-Federal Govern- ment entity; and (2) a program, project, or technology identi- fied in legislation be procured or awarded through merit-based selection procedures. (b) NEW CONTRACT AND NEW GRANT DE- SCRIBED.—For purposes of this section— (1) a contract is a new contract unless the work provided for in the contract is a continu- ation of the work performed by the specified entity under a prior contract; and (2) a grant is a new grant unless the work provided for in the grant is a continuation of the work performed by the specified entity under a prior grant. (c) REQUIREMENTS FOR AWARDING NEW CON- TRACT OR NEW GRANT.—A provision of law may not be construed as requiring a new contract or a new grant to be awarded to a specified non- Federal Government entity unless the provision of law specifically— (1) refers to this section; (2) identifies the particular non-Federal Gov- ernment entity involved; and (3) states that the award to that entity is re- quired by the provision of law in contraven- tion of the policy set forth in subsection (a). (d) EXCEPTION.—This section does not apply to a contract or grant that calls on the National Academy of Sciences to investigate, examine, or Page 87 TITLE 41—PUBLIC CONTRACTS § 3301 1 See References in Text note below. experiment on a subject of science or art of sig- nificance to an executive agency and to report on those matters to Congress or an agency of the Federal Government. (Pub. L. 111–350, § 3, Jan. 4, 2011, 124 Stat. 3744.) HISTORICAL AND REVISION NOTES Revised Section Source (U.S. Code) Source (Statutes at Large) 3105(a) ........ 41:253(i)(1). June 30, 1949, ch. 288, title III, § 303(i), as added Pub. L. 103–355, title VII, § 7203(b)(1)(B), Oct. 13, 1994, 108 Stat. 3380; Pub. L. 104–106, title XLI, § 4101(b)(1), Feb. 10, 1996, 110 Stat. 642. 41:266(a). June 30, 1949, ch. 288, title III, § 316, as added Pub. L. 103–355, title VII, § 7203(b)(2), Oct. 13, 1994, 108 Stat. 3381; Pub. L. 104–106, title XLIII, § 4321(e)(9), Feb. 10, 1996, 110 Stat. 675. 3105(b) ........ 41:253(i)(3). 41:266(c). 3105(c) ........ 41:253(i)(2). 41:266(b). 3105(d) ........ 41:253(i)(4). 41:266(d). § 3106. Erection, repair, or furnishing of public buildings and improvements not authorized, and certain contracts not permitted, by this division This division does not— (1) authorize the erection, repair, or fur- nishing of a public building or public improve- ment; or (2) permit a contract for the construction or repair of a building, road, sidewalk, sewer, main, or similar item using procedures other than sealed-bid procedures under section 3301(b)(1)(A) of this title if the conditions set forth in section 3301(b)(1)(A) of this title apply or the contract is to be performed outside the United States. (Pub. L. 111–350, § 3, Jan. 4, 2011, 124 Stat. 3745.) HISTORICAL AND REVISION NOTES Revised Section Source (U.S. Code) Source (Statutes at Large) 3106 ............ 41:252(c)(1). June 30, 1949, ch. 288, title III, § 302(c)(1), 63 Stat. 393; July 12, 1952, ch. 703, § 1(m), 66 Stat. 594; Pub. L. 85–800, §§ 2, 3, Aug. 28, 1958, 72 Stat. 966; Pub. L. 89–343, § 2, Nov. 8, 1965, 79 Stat. 1303; Pub. L. 89–348, § 1(2), Nov. 8, 1965, 79 Stat. 1310; Pub. L. 90–268, § 4, Mar. 16, 1968, 82 Stat. 50; Pub. L. 93–356, § 3, July 25, 1974, 88 Stat. 390; Pub. L. 98–191, § 9(a)(1), Dec. 1, 1983, 97 Stat. 1331; Pub. L. 98–369, div. B, title VII, § 2714(a)(1)(B), July 18, 1984, 98 Stat. 1184. In paragraph (1), the words ‘‘but such authorization shall be required in the same manner as heretofore’’ are omitted as unnecessary. CHAPTER 33—PLANNING AND SOLICITATION Sec. 3301. Full and open competition. 3302. Requirements for purchase of property and services pursuant to multiple award con- tracts. Sec. 3303. Exclusion of particular source or restriction of solicitation to small business concerns. 3304. Use of noncompetitive procedures. 3305. Simplified procedures for small purchases. 3306. Planning and solicitation requirements. 3307. Preference for commercial products and com- mercial services. 3308. Planning for future competition in contracts for major systems. 3309. Design-build selection procedures. 3310. Quantities to order. 3311. Qualification requirement. 3312. Database on price trends of items and serv- ices under Federal contracts. Editorial Notes AMENDMENTS 2018—Pub. L. 115–232, div. A, title VIII, § 836(b)(10)(B)(ii), Aug. 13, 2018, 132 Stat. 1863, sub- stituted ‘‘Preference for commercial products and com- mercial services’’ for ‘‘Preference for commercial items’’ in item 3307. 2013—Pub. L. 112–239, div. A, title VIII, § 851(a)(2), Jan. 2, 2013, 126 Stat. 1855, added item 3312. § 3301. Full and open competition (a) IN GENERAL.—Except as provided in sec- tions 3303, 3304(a), and 3305 of this title and ex- cept in the case of procurement procedures oth- erwise expressly authorized by statute, an exec- utive agency in conducting a procurement for property or services shall— (1) obtain full and open competition through the use of competitive procedures in accord- ance with the requirements of this division and the Federal Acquisition Regulation; and (2) use the competitive procedure or com- bination of competitive procedures that is best suited under the circumstances of the procure- ment. (b) APPROPRIATE COMPETITIVE PROCEDURES.— (1) USE OF SEALED BIDS.—In determining the competitive procedures appropriate under the circumstance, an executive agency shall— (A) solicit sealed bids if— (i) time permits the solicitation, submis- sion, and evaluation of sealed bids; (ii) the award will be made on the basis of price and other price-related factors; (iii) it is not necessary to conduct dis- cussions with the responding sources about their bids; and (iv) there is a reasonable expectation of receiving more than one sealed bid; or (B) request competitive proposals if sealed bids are not appropriate under subparagraph (A). (2) SEALED BID NOT REQUIRED.—Paragraph (1)(A) does not require the use of sealed-bid procedures in cases in which section 204(e) 1 of title 23 applies. (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 Federal Government’s re- quirements.