PRIA, Government Policy, Made Personal

Summary

Before an agency can require a company to pass tests or other checks to win a contract, the agency must write down why the tests are needed and why they must happen before the award. The agency must put in writing what a company or its product must do to qualify and share that with anyone who asks. The agency must also give an estimate of how much testing will cost and let a company quickly try to prove it meets the standards at the company’s expense (unless rules about paying are in effect). The agency must let the company use agency staff or facilities, another agency, a contractor, or other approved testing methods. If testing is done under contract to the agency, the tester should not gain from having no other qualified sources and must follow any limits on the company’s technical data. The agency must tell a company quickly whether it qualified and, if not, explain why. The rule does not apply to qualification requirements set by law before October 30, 1984. If it is unreasonable to set specific standards, the agency must send that finding to the agency’s advocate for competition, and the agency head may waive some of the written steps for up to 2 years after considering the advocate’s comments (not for qualified product lists). A company cannot be blocked from bidding just because it is not listed as qualified if it can show it meets the standards or will before award. The agency does not have to refer protests to the Small Business Administration under 15 U.S.C. 637(b)(7) just because a company challenges the rule or its compliance, and the agency does not have to delay a procurement to follow these steps. If fewer than two actual manufacturers are qualified, the agency must publish notices looking for more sources (unless national security is at risk) and may pay for testing and evaluation costs for a small business that meets the standards if doing so is likely to save money over time; the small business must certify its status under section 3 of the Small Business Act (15 U.S.C. 632). Every 7 years the agency must recheck and revalidate a qualification requirement under the same steps, unless a waiver is in effect. If the agency decides not to enforce the requirement for a solicitation, it cannot enforce it later unless it follows the required steps, except in an emergency decided by the agency head.

Title 41, §3311

Public Contracts, Source: USLM XML via OLRC

(a)Definition.—

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)Actions Before Enforcing Qualification Requirement.—

Except as provided in subsection (c), the head of an agency, before enforcing any qualification requirement, shall—

(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 on request all requirements that a prospective offeror, or its product, must satisfy to become qualified, with those 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 cost of testing and evaluation likely to be incurred by a potential offeror to become qualified;

(4)ensure that a potential offeror is provided, on request, a prompt opportunity to demonstrate at its own expense (except as provided in subsection (d)) its ability to meet the standards specified for qualification using—

(A)qualified personnel and facilities—

(i)of the agency concerned;

(ii)of another agency obtained through interagency agreement; or

(iii)under contract; or

(B)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 those services be provided by a contractor that—

(A)is not expected to benefit from an absence of additional qualified sources; and

(B)is required in the 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 whether qualification is attained and, if not attained, is promptly furnished specific information about why qualification was not attained.

(c)Applicability, Waiver Authority, and Referral of Offers.—

(1)Applicability.—

Subsection (b) does not apply to a qualification requirement established by statute prior to October 30, 1984.

(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 that 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)Authority to grant waiver.—

After considering any comments of the advocate for competition reviewing the determination, the head of the procuring activity may waive the requirements of paragraphs (2) to (5) of subsection (b) for up to 2 years with respect to the item subject to the qualification requirement.

(C)Nonapplicability to qualified products list.—

Waiver authority under this paragraph does not apply with respect to a qualified products list.

(3)Submission and consideration of offer not to be denied.—

A potential offeror may not be denied the opportunity to submit and have considered an offer for a contract solely because the potential offeror has not been identified as meeting a qualification requirement 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 those standards before the date specified for award of the contract.

(4)Referral to small business administration not required.—

This subsection does not require 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 that requirement.

(5)Delay of procurement not required.—

The head of an agency need not delay a proposed procurement to comply with subsection (b) or to provide a potential offeror with an opportunity to demonstrate its ability to meet the standards specified for qualification.

(d)Fewer Than 2 Actual Manufacturers.—

(1)Solicitation and testing of additional sources or products.—

If the number of qualified sources or qualified products available to compete actively for an anticipated future requirement is fewer than 2 actual manufacturers or the products of 2 actual manufacturers, respectively, the head of the agency concerned shall—

(A)publish notice periodically soliciting additional sources or products to seek qualification, unless the contracting officer determines that doing so would compromise national security; and

(B)subject to paragraph (2), bear the cost of conducting the specified testing and evaluation (excluding the cost 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 that has met the standards specified for qualification and that could reasonably be expected to compete for a contract for that requirement.

(2)When agency may bear cost.—

The head of the agency concerned may bear the cost under paragraph (1)(B) only if the head of the agency determines that the additional qualified sources or products are likely to result in cost savings from increased competition for future requirements sufficient to offset (within a reasonable period of time considering the duration and dollar value of anticipated future requirements) the cost incurred by the agency.

(3)Certification required.—

The head of the agency shall require a prospective contractor requesting the Federal Government to bear testing and evaluation costs under paragraph (1)(B) to certify its status as a small business concern under section 3 of the Small Business Act (15 U.S.C. 632).

(e)Examination and Revalidation of Qualification Requirement.—

Within 7 years after the establishment of a qualification requirement, the need for the requirement shall be examined and the standards of the requirement revalidated in accordance with the requirements of subsection (b). This subsection does not apply in the case of a qualification requirement for which a waiver is in effect under subsection (c)(2).

(f)When Enforcement of Qualification Requirement Not Allowed.—

Except in an emergency as determined by the head of the agency, after the head of the agency determines not to enforce a qualification requirement for a solicitation, the agency may not enforce the requirement unless the agency complies with the requirements of subsection (b).

Notes & Related Subsidiaries

Historical and Revision Notes

Revised SectionSource (U.S. Code)Source (Statutes at Large) 331141:253c.June 30, 1949, ch. 288, title III, § 303C, formerly § 303D, as added Pub. L. 98–577, title II, § 202(a), Oct. 30, 1984, 98 Stat. 3069; renumbered § 303C, Pub. L. 99–145, title XIII, § 1304(c)(4)(A), Nov. 8, 1985, 99 Stat. 742. In subsection (d)(1)(A), the words “in the Commerce Business Daily” are omitted as obsolete. See revision note for section 1708(d) of the revised title.

§3311 Qualification Requirement

Summary

Title 41, §3311

Notes & Related Subsidiaries

Historical and Revision Notes

Citations & Metadata