10 U.S.C. § 3243 — Encouragement of new competitors: quali-

Page 2453 TITLE 10—ARMED FORCES § 3243 for a contract for supplies shall, if practicable, include a provision inviting each offeror re- sponding to the solicitation to state an opinion on whether the quantity of the supplies proposed to be procured is economically advantageous to the United States and, if applicable, to rec- ommend a quantity or quantities which would be more economically advantageous to the United States. Each such recommendation shall include a quotation of the total price and the unit price for supplies procured in each rec- ommended quantity. (Added Pub. L. 98–525, title XII, § 1233(a), Oct. 19, 1984, 98 Stat. 2600, § 2384a; renumbered § 3242 and amended Pub. L. 116–283, div. A, title XVIII, § 1813(c), Jan. 1, 2021, 134 Stat. 4179; Pub. L. 117–81, div. A, title XVII, § 1701(b)(5), Dec. 27, 2021, 135 Stat. 2133.) Editorial Notes AMENDMENTS 2021—Pub. L. 116–283, § 1813(c), renumbered section 2384a of this title as this section. Subsec. (a). Pub. L. 116–283, § 1813(c)(1), as amended by Pub. L. 117–81, § 1701(b)(5), inserted heading, in par. (1), substituted ‘‘section 3063’’ for ‘‘section 2303(a)’’ and re- formatted subpars. (A) and (B) to add line breaks before each subpar. designation, and, in par. (2), realigned margin. Subsec. (b). Pub. L. 116–283, § 1813(c)(2), inserted head- ing. 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 note below. Amendment by Pub. L. 116–283 effective Jan. 1, 2022, with additional provisions for delayed implementation and applicability of existing law, see section 1801(d) of Pub. L. 116–283, set out as a note preceding section 3001 of this title. EFFECTIVE DATE Pub. L. 98–525, title XII, § 1233(b), Oct. 19, 1984, 98 Stat. 2601, provided that: ‘‘The amendment made by sub- section (a) [enacting this section] shall take effect at the end of the 180-day period beginning on the date of the enactment of this Act [Oct. 19, 1984].’’ § 3243. Encouragement of new competitors: quali- fication requirement (a) QUALIFICATION REQUIREMENT DEFINED.—In this section, the term ‘‘qualification require- ment’’ means a requirement for testing or other quality assurance demonstration that must be completed by an offeror before award of a con- tract. (b) ACTIONS BEFORE ESTABLISHING QUALIFICA- TION REQUIREMENT.—Except as provided in sub- section (c), the head of the agency shall, before establishing a qualification requirement— (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 upon request all require- ments which a prospective offeror, or its prod- uct, must satisfy in order to become qualified, such requirements to be limited to those least restrictive to meet the purposes necessitating the establishment of the qualification require- ment; (3) specify an estimate of the costs of testing and evaluation likely to be incurred by a po- tential offeror in order to become qualified; (4) ensure that a potential offeror is pro- vided, upon request and on a reimbursable basis, a prompt opportunity to demonstrate its ability to meet the standards specified for qualification using qualified personnel and fa- cilities of the agency concerned or of another agency obtained through interagency agree- ment, or under contract, or other methods ap- proved by the agency (including use of ap- proved testing and evaluation services not provided under contract to the agency); (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 such services be provided by a contractor who is not expected to benefit from an absence of additional qualified sources and who shall be required in such contract to adhere to any restriction on technical data as- serted by the potential offeror seeking quali- fication; and (6) ensure that a potential offeror seeking qualification is promptly informed as to whether qualification is attained and, in the event qualification is not attained, is prompt- ly furnished specific information why quali- fication was not attained. (c) APPLICABILITY, WAIVER AUTHORITY, AND RE- FERRAL OF OFFERS.— (1) APPLICABILITY.—Subsection (b) does not apply with respect to a qualification require- ment established by statute or administrative action before October 19, 1984, unless such re- quirement is a qualified products list. (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 which 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 such determina- tion, the head of the purchasing office may waive the requirements of clauses (2) through (6) of subsection (b) for up to two years with respect to the item subject to the qualification requirement. (C) INAPPLICABILITY TO QUALIFIED PRODUCTS LIST.—The waiver authority provided in this paragraph does not apply with respect to a qualified products list. (3) SUBMISSION AND CONSIDERATION OF OFFER NOT TO BE DENIED IN CERTAIN CASES.—A poten- tial offeror may not be denied the opportunity to submit and have considered an offer for a Page 2454 TITLE 10—ARMED FORCES § 3243 contract solely because the potential offeror (A) is not on a qualified bidders list, qualified manufacturers list, or qualified products list, or (B) has not been identified as meeting a qualification requirement established after October 19, 1984, if the potential offeror can demonstrate to the satisfaction of the con- tracting officer (or, in the case of a contract for the procurement of an aviation critical safety item or ship critical safety item, the head of the design control activity for such item) that the potential offeror or its product meets the standards established for qualifica- tion or can meet such standards before the date specified for award of the contract. (4) REFERRAL TO SMALL BUSINESS ADMINIS- TRATION.—Nothing contained in this sub- section requires 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 such requirement. (5) DELAY OF PROCUREMENT NOT REQUIRED.— The head of an agency need not delay a pro- posed procurement in order to comply with subsection (b) or in order to provide a poten- tial offeror with an opportunity to dem- onstrate its ability to meet the standards specified for qualification. (6) REQUIREMENTS BEFORE ENFORCEMENT OF CERTAIN LISTS.—The requirements of sub- section (b) also apply before enforcement of any qualified products list, qualified manufac- turers list, or qualified bidders list. (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 two actual manufac- turers or the products of two actual manufac- turers, respectively, the head of the agency concerned shall— (A) periodically publish notice in the Com- merce Business Daily soliciting additional sources or products to seek qualification, unless the contracting officer determines that such publication would compromise na- tional security; and (B) subject to paragraph (2), bear the cost of conducting the specified testing and eval- uation (excluding the costs 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 which has met the standards specified for qualification and which could reasonably be expected to com- pete for a contract for that requirement. (2) CERTIFICATION WHEN AGENCY MAY BEAR COST.—Costs may be borne under paragraph (1)(B) only if the head of the agency deter- mines that such additional qualified sources or products are likely to result in cost savings from increased competition for future require- ments sufficient to amortize the costs in- curred by the agency within a reasonable pe- riod of time considering the duration and dol- lar value of anticipated future requirements. (3) CERTIFICATION REQUIRED.—The head of an agency shall require a prospective contractor requesting the United States to bear testing and evaluation costs under paragraph (1)(B) to certify as to its status as a small business con- cern under section 3 of the Small Business Act (15 U.S.C. 632). (e) EXAMINATION AND REVALIDATION OF QUALI- FICATION REQUIREMENT.—Within seven years after the establishment of a qualification re- quirement under subsection (b) or within seven years following an agency’s enforcement of a qualified products list, qualified manufacturers list, or qualified bidders list, any such qualifica- tion requirement shall be examined and revali- dated in accordance with the requirements of subsection (b). The preceding sentence does not apply in the case of a qualification requirement for which a waiver is in effect under subsection (c)(2). (f) RESTRICTION ON ENFORCEMENT.—Except in an emergency as determined by the head of the agency, whenever the head of the agency deter- mines not to enforce a qualification requirement for a solicitation, the agency may not thereafter enforce that qualification requirement unless the agency complies with the requirements of subsection (b). (g) DEFINITIONS.—In this section: (1) The term ‘‘aviation critical safety item’’ means a part, an assembly, installation equip- ment, launch equipment, recovery equipment, or support equipment for an aircraft or avia- tion weapon system if the part, assembly, or equipment contains a characteristic any fail- ure, malfunction, or absence of which could cause a catastrophic or critical failure result- ing in the loss of or serious damage to the air- craft or weapon system, an unacceptable risk of personal injury or loss of life, or an uncommanded engine shutdown that jeopard- izes safety. (2) The term ‘‘ship critical safety item’’ means any ship part, assembly, or support equipment containing a characteristic the failure, malfunction, or absence of which could cause a catastrophic or critical failure result- ing in loss of or serious damage to the ship or unacceptable risk of personal injury or loss of life. (3) The term ‘‘design control activity’’, with respect to an aviation critical safety item or ship critical safety item, means the systems command of a military department that is specifically responsible for ensuring the air- worthiness of an aviation system or equip- ment, or the seaworthiness of a ship or ship equipment, in which such item is to be used. (Added Pub. L. 98–525, title XII, § 1216(a), Oct. 19, 1984, 98 Stat. 2593, § 2319; amended Pub. L. 100–26, § 7(d)(5), (i)(4), (k)(3), Apr. 21, 1987, 101 Stat. 281, 282, 284; Pub. L. 108–136, div. A, title VIII, § 802(d), Nov. 24, 2003, 117 Stat. 1541; Pub. L. 109–364, div. A, title I, § 130(d), Oct. 17, 2006, 120 Stat. 2110; re- numbered § 3243 and amended Pub. L. 116–283, div. A, title XVIII, § 1813(d), Jan. 1, 2021, 134 Stat. 4179.) Page 2455 TITLE 10—ARMED FORCES § 3247 Editorial Notes AMENDMENTS 2021—Pub. L. 116–283, § 1813(d)(1), substituted ‘‘Encour- agement of new competitors: qualification require- ment’’ for ‘‘Encouragement of new competitors’’ in sec- tion catchline. Pub. L. 116–283, § 1813(d), renumbered section 2319 of this title as this section. Subsec. (a). Pub. L. 116–283, § 1813(d)(2), inserted head- ing. Subsec. (b). Pub. L. 116–283, § 1813(d)(3)(A), inserted heading. Subsec. (b)(5). Pub. L. 116–283, § 1813(d)(3)(B), sub- stituted ‘‘paragraph (4)’’ for ‘‘clause (4)’’. Subsec. (c). Pub. L. 116–283, § 1813(d)(4)(A), inserted heading. Subsec. (c)(1). Pub. L. 116–283, § 1813(d)(4)(A), inserted heading and struck out ‘‘of this section’’ after ‘‘Sub- section (b)’’. Subsec. (c)(2). Pub. L. 116–283, § 1813(d)(4)(C)(i), in- serted heading and realigned margin. Subsec. (c)(2)(A). Pub. L. 116–283, § 1813(d)(4)(C)(i), in- serted heading and substituted ‘‘Except as provided in subparagraph (C),’’ for ‘‘Except as provided in subpara- graph (B),’’. Subsec. (c)(2)(B). Pub. L. 116–283, § 1813(d)(4)(C)(iii), (iv), redesignated second sentence of subsec. (c)(2)(A) as (B) and inserted heading. Former subpar. (B) redesig- nated (C). Subsec. (c)(2)(B), (C). Pub. L. 116–283, § 1813(d)(4)(C)(ii), (v), redesignated subpar. (B) as (C) and inserted head- ing. Subsec. (c)(3) to (6). Pub. L. 116–283, § 1813(d)(4)(B), (D)–(G), inserted headings and realigned margins. Subsec. (d). Pub. L. 116–283, § 1813(d)(5)(A), inserted heading. Subsec. (d)(1). Pub. L. 116–283, § 1813(d)(5)(A), (F), in- serted heading and realigned margins of subpars. (A) and (B). Subsec. (d)(1)(B). Pub. L. 116–283, § 1813(d)(5)(C), in- serted ‘‘subject to paragraph (2),’’ before ‘‘bear the cost of’’ and substituted ‘‘that requirement.’’ for ‘‘that re- quirement, but such costs may be borne’’. Remainder of subpar. (B) redesignated par. (2). Subsec. (d)(2). Pub. L. 116–283, § 1813(d)(5)(D), (E), des- ignated text of par. (1)(B) beginning with ‘‘only if the head’’ as (2), inserted heading, and inserted ‘‘Costs may be borne under paragraph (1)(B)’’ at beginning. Former par. (2) redesignated (3). Subsec. (d)(3). Pub. L. 116–283, § 1813(d)(5)(B), redesig- nated par. (2) as (3), inserted heading, and realigned margin. Subsecs. (e), (f). Pub. L. 116–283, § 1813(d)(6), (7), in- serted headings. 2006—Subsec. (c)(3). Pub. L. 109–364, § 130(d)(1), in- serted ‘‘or ship critical safety item’’ after ‘‘aviation critical safety item’’. Subsec. (g)(2), (3). Pub. L. 109–364, § 130(d)(2), added par. (2), redesignated former par. (2) as (3), inserted ‘‘or ship critical safety item’’ after ‘‘aviation critical safe- ty item’’ and ‘‘, or the seaworthiness of a ship or ship equipment,’’ after ‘‘or equipment’’, and substituted ‘‘such item’’ for ‘‘the item’’. 2003—Subsec. (c)(3). Pub. L. 108–136, § 802(d)(1), in- serted ‘‘(or, in the case of a contract for the procure- ment of an aviation critical safety item, the head of the design control activity for such item)’’ after ‘‘the contracting officer’’. Subsec. (g). Pub. L. 108–136, § 802(d)(2), added subsec. (g). 1987—Subsec. (a). Pub. L. 100–26, § 7(k)(3), inserted ‘‘the term’’ after ‘‘In this section,’’. Subsec. (c)(1), (3). Pub. L. 100–26, § 7(i)(4), substituted ‘‘October 19, 1984,’’ for ‘‘the date of the enactment of the Defense Procurement Reform Act of 1984’’. Subsec. (c)(4). Pub. L. 100–26, § 7(d)(5)(A), inserted ‘‘(15 U.S.C. 637(b)(7))’’ after ‘‘Small Business Act’’. Subsec. (d)(2). Pub. L. 100–26, § 7(d)(5)(B), inserted ‘‘(15 U.S.C. 632)’’ after ‘‘Small Business Act’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2021 AMENDMENT Amendment by Pub. L. 116–283 effective Jan. 1, 2022, with additional provisions for delayed implementation and applicability of existing law, see section 1801(d) of Pub. L. 116–283, set out as a note preceding section 3001 of this title. EFFECTIVE DATE Pub. L. 98–525, title XII, § 1216(c)(2), Oct. 19, 1984, 98 Stat. 2599, provided that: ‘‘Sections 2319 [now 10 U.S.C. 3243], [former] 2320, and [former] 2321 of title 10, United States Code (as added by subsection (a)), shall apply with respect to solicitations issued after the end of the one-year period beginning on the date of the enactment of this Act [Oct. 19, 1984].’’ § 3247. Contracts: regulations for bids (a) The Secretary of Defense may— (1) prescribe regulations for the preparation, submission, and opening of bids for contracts; and (2) require that a bid be accompanied by a written guaranty, signed by one or more re- sponsible persons, undertaking that the bid- der, if his bid is accepted, will, within the time prescribed by the Secretary or other officer authorized to make the contract, make a con- tract and furnish a bond with good and suffi- cient sureties for the performance of the con- tract. (b) If a bidder, after being notified of the ac- ceptance of his bid, fails within the time pre- scribed under subsection (a)(2) to enter into a contract and furnish the prescribed bond, the Secretary concerned or other authorized officer shall— (1) contract with another person; and (2) charge against the defaulting bidder and his guarantors the difference between the amount specified by the bidder in his bid and the amount for which a contract is made with the other person, this difference being imme- diately recoverable by the United States for the use of the military department concerned in an action against the bidder and his guaran- tors, jointly or severally. (c) Proceedings under this section are subject to regulations under section 121 of title 40, un- less exempted therefrom under section 501(a)(2) of title 40. (Aug. 10, 1956, ch. 1041, 70A Stat. 136, § 2381; Pub. L. 98–525, title XIV, § 1405(35), Oct. 19, 1984, 98 Stat. 2624; Pub. L. 103–355, title I, § 1507, Oct. 13, 1994, 108 Stat. 3298; Pub. L. 107–217, § 3(b)(6), Aug. 21, 2002, 116 Stat. 1295; renumbered § 3247, Pub. L. 116–283, div. A, title XVIII, § 1813(e), Jan. 1, 2021, 134 Stat. 4181.) HISTORICAL AND REVISION NOTES Revised section Source (U.S. Code) Source (Statutes at Large) 2381(a) ..... 2381(b) ..... 5:218 (1st sentence, less 1st 16 words; and 2d sentence). 5:218 (less 1st and 2d sen- tences). Apr. 10, 1878, ch. 58, 20 Stat. 36; Mar. 3, 1883, ch. 120, 22 Stat. 487; Oct. 31, 1951, ch. 654, § 2(4), 65 Stat. 706. 2381(c) ..... 5:218 (1st 16 words of 1st sentence) [applica- bility of 5:218 extended to Navy by 5:412b and 41:161 (1st sentence)]. Feb. 19, 1948, ch. 65, § 12 (1st sentence), 62 Stat. 26.