10 U.S.C. § 3203 — Exclusion of particular source or restric-

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2304 of this title, full and open competition for pro- curement of small arms supplied to Iraq and Afghani- stan, was repealed by Pub.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. Page 2423 TITLE 10—ARMED FORCES § 3204 Subsec. (a)(1). Pub. L. 116–283, § 1811(d)(2)(A)–(C), in- serted heading, substituted ‘‘covered by chapter 137 leg- acy provisions’’ for ‘‘covered by this chapter’’ in intro- ductory provisions, and realigned margins of subpars. (A) to (F). Subsec. (a)(2). Pub. L. 116–283, § 1811(d)(2)(F), redesig- nated par. (4) as (2), inserted heading, and realigned margin. Former pars. (2) and (3) redesignated subsecs. (b) and (c), respectively. Subsec. (b). Pub. L. 116–283, § 1811(d)(2)(D), redesig- nated subsec. (a)(2) as (b), inserted heading, and sub- stituted ‘‘chapter 137 legacy provisions’’ for ‘‘this sec- tion’’. Subsec. (c). Pub. L. 117–81 substituted ‘‘subsections (a)(1) and (b)’’ for ‘‘paragraphs (1) and (2)’’. Pub. L. 116–283, § 1811(d)(2)(E), redesignated subsec. (a)(3) as (c), inserted heading, and substituted ‘‘section 3204(e)(1) of this title’’ for ‘‘subsection (f)(1)’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2021 AMENDMENT Amendment by Pub. L. 117–81 to take effect imme- diately after the amendments made by title XVIII of Pub. L. 116–283 have taken effect, see section 1701(a)(3) of Pub. L. 117–81, set out in a note preceding section 3001 of this title and Effective 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. § 3204. Use of procedures other than competitive procedures (a) WHEN PROCEDURES OTHER THAN COMPETI- TIVE PROCEDURES MAY BE USED.—The head of an agency may use procedures other than competi- tive 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 re- sponsible sources and no other type of prop- erty 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 seri- ously 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, 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; or (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 any court, administrative tribunal, or agency, or to procure the services of an expert or neu- tral for use in any part of an alternative dis- pute resolution or negotiated rulemaking process, whether or not the expert is ex- pected to testify; (4) the terms of an international agreement or a treaty between the United States and a foreign government or international organiza- tion, 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 agen- cy’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 un- less the agency is permitted to limit the num- ber of sources from which it solicits bids or proposals; or (7) the head of the agency (who may not del- egate 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 accept- ance 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 pro- posal that demonstrates a concept— (i) that is unique and innovative or, in the case of a service, for which the source dem- onstrates 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 com- petitive 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 special- ized services, such property or services may be deemed to be available only from the original source and may be procured through proce- dures 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 re- covered through competition; or (ii) unacceptable delays in fulfilling the 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-