§3243 — Title 10 Armed Forces | U.S. Code

Summary

Agency heads must follow steps before they make a rule that bidders must pass tests or other quality checks before a contract is awarded. They must write down why the rule is needed, list and share the exact standards a bidder or product must meet, estimate likely testing costs, and give interested bidders a quick, paid chance to show they meet the standards using agency or approved test facilities. If tests are done by a contractor, that contractor should not unfairly benefit and must protect the bidder’s technical data. The agency must tell the bidder quickly if they qualified and explain why if they did not. These steps do not apply to qualification rules made before October 19, 1984, unless the rule is a qualified products list. If it is not practical to set specific standards, the agency must tell its competition advocate and may, after review, waive some steps for up to two years (not for qualified products lists). A bidder cannot be barred just for not being on a qualified list if they can show they meet the standards before award. The agency does not have to delay a purchase to follow these steps. Any qualification rule must be checked and reapproved within seven years, unless a waiver is in effect. If the agency stopped enforcing a requirement, it must redo these steps before enforcing it again, except in an emergency. If fewer than two actual manufacturers can compete for a future need, the agency must publish a notice seeking more sources (unless that would hurt national security) and must pay testing costs for a small business that meets the standards. The small business must certify its small-business status. The agency must also set up a faster, risk-based way to qualify advanced manufacturing during wartime or when the Civil Reserve Manufacturing Network is activated. Definitions (one line each): Aviation critical safety item — a part or equipment whose failure could cause catastrophic aircraft loss or serious injury. Ship critical safety item — a part or equipment whose failure could cause catastrophic ship loss or serious injury. Design control activity — the military office responsible for making sure an aviation or ship item is safe to use.

Title 10, §3243

Armed Forces — Source: USLM XML via OLRC

(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 paragraph (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) 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 (C), 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.

(B)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.

(C)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 (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 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.

(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)The head of the agency shall establish a process to streamline and expedite the qualification of advanced manufacturing sources, processes, or products prior to or during wartime or upon activation of the Civil Reserve Manufacturing Network (as defined in section 1832 11 See References in Text note below. of National Defense Authorization Act for Fiscal Year 2026), that addresses materials, systems, and processes using a risk framework suitable for wartime or during periods in which the CRMN is activated.

(f)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).

(g)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).

(h)In this section:

(1)The term “aviation critical safety item” means a part, an assembly, installation equipment, launch equipment, recovery equipment, or support equipment for an aircraft or aviation weapon system if the part, assembly, or equipment contains a characteristic any failure, malfunction, or absence of which could cause a catastrophic or critical failure resulting in the loss of or serious damage to the aircraft or weapon system, an unacceptable risk of personal injury or loss of life, or an uncommanded engine shutdown that jeopardizes 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 resulting 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 airworthiness of an aviation system or equipment, or the seaworthiness of a ship or ship equipment, in which such item is to be used.

Notes & Related Subsidiaries

Editorial Notes

References in Text

section 1832 of National Defense Authorization Act for Fiscal Year 2026, referred to in subsec. (e), probably means section 1841 of Pub. L. 119–60, which relates to the Civil Reserve Manufacturing Network. Subsecs. (a) to (e) of section 1841 are set out as a note under section 4811 of this title. Subsec. (f) of section 1841 amends section 3243 and 4841 of this title. section 1832 of Pub. L. 119–60, which amends section 4402 and 4403 of this title, relates to modifications to requirements for modular open system approach.

Amendments

2025—Subsec. (d)(1)(B). Pub. L. 119–60, § 812(a)(6)(A), struck out “subject to paragraph (2),” before “bear the cost”. Subsec. (d)(2), (3). Pub. L. 119–60, § 812(a)(6)(B), (C), redesignated par. (3) as (2) and struck out par. (2). Text of former par. (2) read as follows: “Costs may be borne under paragraph (1)(B) 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.” Subsecs. (e) to (h). Pub. L. 119–60, § 1841(f)(2), added subsec. (e) and redesignated former subsecs. (e) to (g) as (f) to (h), respectively. 2021—Pub. L. 116–283, § 1813(d)(1), substituted “Encouragement of new competitors: qualification requirement” for “Encouragement of new competitors” in section 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 heading. Subsec. (b). Pub. L. 116–283, § 1813(d)(3)(A), inserted heading. Subsec. (b)(5). Pub. L. 116–283, § 1813(d)(3)(B), substituted “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 “Subsection (b)”. Subsec. (c)(2). Pub. L. 116–283, § 1813(d)(4)(C)(i), inserted heading and realigned margin. Subsec. (c)(2)(A). Pub. L. 116–283, § 1813(d)(4)(C)(i), inserted heading and substituted “Except as provided in subparagraph (C),” for “Except as provided in subparagraph (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) redesignated (C). Subsec. (c)(2)(B), (C). Pub. L. 116–283, § 1813(d)(4)(C)(ii), (v), redesignated subpar. (B) as (C) and inserted heading. 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), inserted heading and realigned margins of subpars. (A) and (B). Subsec. (d)(1)(B). Pub. L. 116–283, § 1813(d)(5)(C), inserted “subject to paragraph (2),” before “bear the cost of” and substituted “that requirement.” for “that requirement, 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), designated 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), redesignated par. (2) as (3), inserted heading, and realigned margin. Subsecs. (e), (f). Pub. L. 116–283, § 1813(d)(6), (7), inserted headings. 2006—Subsec. (c)(3). Pub. L. 109–364, § 130(d)(1), inserted “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 safety 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), inserted “(or, in the case of a contract for the procurement 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 AmendmentAmendment 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: “section 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].”

§3243 Encouragement of New Competitors: Qualification Requirement

Summary

Title 10, §3243

Notes & Related Subsidiaries

Editorial Notes

References in Text

Amendments

Statutory Notes and Related Subsidiaries

Effective Date

Effective Date

Citations & Metadata