
From the U.S. Code Online via GPO Access
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[Laws in effect as of January 2, 2001]
[Document not affected by Public Laws enacted between
  January 2, 2001 and January 28, 2002]
[CITE: 10USC2319]

 
                         TITLE 10--ARMED FORCES
 
                    Subtitle A--General Military Law
 
                PART IV--SERVICE, SUPPLY, AND PROCUREMENT
 
                   CHAPTER 137--PROCUREMENT GENERALLY
 
Sec. 2319. Encouragement of new competitors

    (a) In this section, the term ``qualification requirement'' means a 
requirement for testing or other quality assurance demonstration that 
must be completed by an offeror before award of a contract.
    (b) Except as provided in subsection (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 contract 
    award;
        (2) specify in writing and make available to a potential offeror 
    upon request all requirements which a prospective offeror, or its 
    product, 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 
    requirement;
        (3) specify an estimate of the costs of testing and evaluation 
    likely to be incurred by a potential offeror in order to become 
    qualified;
        (4) ensure that a potential offeror is provided, 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 facilities of the agency concerned or of 
    another agency obtained through interagency agreement, or under 
    contract, or other methods approved by the agency (including use of 
    approved testing and evaluation services not provided under contract 
    to the agency);
        (5) if testing and evaluation services are provided under 
    contract to the agency for the purposes of clause (4), provide to 
    the extent 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 asserted by the 
    potential offeror seeking qualification; 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 promptly furnished 
    specific information why qualification was not attained.

    (c)(1) Subsection (b) of this section does not apply with respect to 
a qualification requirement established by statute or administrative 
action before October 19, 1984, unless such requirement is a qualified 
products list.
    (2)(A) Except as provided in subparagraph (B), if it is unreasonable 
to specify the standards for qualification which a prospective offeror 
or its product must satisfy, 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 qualification 
requirement. After considering any comments of the advocate for 
competition reviewing such determination, 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.
    (B) The waiver authority provided in this paragraph does not apply 
with respect to a qualified products list.
    (3) A potential offeror may not be denied the opportunity to submit 
and have considered an offer for a 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 
contracting officer that the potential offeror or its product meets the 
standards established for qualification or can meet such standards 
before the date specified for award of the contract.
    (4) Nothing contained in this subsection 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 validity of the 
qualification requirement or the offeror's compliance with such 
requirement.
    (5) The head of an agency need not delay a proposed procurement in 
order to comply with subsection (b) or in order to provide a potential 
offeror with an opportunity to demonstrate its ability to meet the 
standards specified for qualification.
    (6) The requirements of subsection (b) also apply before enforcement 
of any qualified products list, qualified manufacturers list, or 
qualified bidders list.
    (d)(1) If the number of qualified sources or qualified products 
available to compete actively for an anticipated future requirement is 
fewer than two actual manufacturers or the products of two actual 
manufacturers, respectively, the head of the agency concerned shall--
        (A) periodically publish notice in the Commerce Business Daily 
    soliciting additional sources or products to seek qualification, 
    unless the contracting officer determines that such publication 
    would compromise national security; and
        (B) bear the cost of conducting the specified testing and 
    evaluation (excluding the costs associated with producing the item 
    or establishing the production, 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 compete for a contract for that requirement, but such costs may 
    be borne only if the head of the agency determines that such 
    additional qualified sources or products are likely to result in 
    cost savings from increased competition for future requirements 
    sufficient to amortize the costs incurred by the agency within a 
    reasonable period of time considering the duration and dollar value 
    of anticipated future requirements.

    (2) 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 concern 
under section 3 of the Small Business Act (15 U.S.C. 632).
    (e) Within seven years after the establishment of a qualification 
requirement 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 qualification 
requirement shall be examined and revalidated 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) Except in an emergency as determined by the head of the agency, 
whenever the head of the agency determines 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).

(Added Pub. L. 98-525, title XII, Sec. 1216(a), Oct. 19, 1984, 98 Stat. 
2593; amended Pub. L. 100-26, Sec. 7(d)(5), (i)(4), (k)(3), Apr. 21, 
1987, 101 Stat. 281, 282, 284.)


                               Amendments

    1987--Subsec. (a). Pub. L. 100-26, Sec. 7(k)(3), inserted ``the 
term'' after ``In this section,''.
    Subsec. (c)(1), (3). Pub. L. 100-26, Sec. 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, Sec. 7(d)(5)(A), inserted ``(15 
U.S.C. 637(b)(7))'' after ``Small Business Act''.
    Subsec. (d)(2). Pub. L. 100-26, Sec. 7(d)(5)(B), inserted ``(15 
U.S.C. 632)'' after ``Small Business Act''.


                             Effective Date

    Section 1216(c)(2) of Pub. L. 98-525 provided that: ``Sections 2319, 
2320, and 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].''
