107 
(e) REQUIREMENT FOR GUIDANCE AND REGULATIONS.—The Federal Ac-
quisition Regulation shall include guidance— 
(1) regarding the factors that may be considered in determining 
whether the two-phase contracting procedures authorized by subsection 
(a) are appropriate for use in individual contracting situations; 
(2) regarding the factors that may be used in selecting contractors; 
and 
(3) providing for a uniform approach to be used Government-wide. 
§ 3310. Quantities to order 
(a) FACTORS AFFECTING QUANTITY TO ORDER.—Each executive agency 
shall procure supplies in a quantity that— 
(1) will result in the total cost and unit cost most advantageous to 
the Federal Government, where practicable; and 
(2) does not exceed the quantity reasonably expected to be required 
by the agency. 
(b) OFFEROR’S OPINION OF QUANTITY.—Each solicitation 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 
supplies proposed to be procured is economically advantageous to the Fed-
eral Government and, if applicable, to recommend a quantity that would be 
more economically advantageous to the Federal Government. Each rec-
ommendation shall include a quotation of the total price and the unit price 
for supplies procured in each recommended quantity. 
§ 3311. Qualification requirement 
(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.—Ex-
cept 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 estab-
lishing 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 establish-
ment 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;
108 
(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 qualifica-
tion using— 
(A) qualified personnel and facilities— 
(i) of the agency concerned; 
(ii) of another agency obtained through interagency agree-
ment; or 
(iii) under contract; or 
(B) other methods approved 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 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 qualifica-
tion; 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 deter-
mination, the head of the procuring activity may waive the re-
quirements of paragraphs (2) to (5) of subsection (b) for up to 
2 years with respect to the item subject to the qualification re-
quirement.
109 
(C) NONAPPLICABILITY TO QUALIFIED PRODUCTS LIST.—Waiv-
er authority under this paragraph does not apply with respect to 
a qualified products list. 
(3) SUBMISSION AND CONSIDERATION OF OFFER NOT TO BE DE-
NIED.—A potential offeror may not be denied the opportunity to sub-
mit and have considered an offer for a contract solely because the po-
tential offeror has not been identified as meeting a qualification re-
quirement 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
RE-
QUIRED.—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 sub-
section (b) or to provide a potential offeror with an opportunity to dem-
onstrate its ability to meet the standards specified for qualification. 
(d) FEWER THAN 2 ACTUAL MANUFACTURERS.— 
(1) SOLICITATION AND TESTING OF ADDITIONAL SOURCES OR PROD-
UCTS.—If the number of qualified sources or qualified products avail-
able to compete actively for an anticipated future requirement is fewer 
than 2 actual manufacturers or the products of 2 actual manufactur-
ers, respectively, the head of the agency concerned shall— 
(A) publish notice periodically soliciting additional sources or 
products to seek qualification, unless the contracting officer deter-
mines 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 con-
cerned may bear the cost under paragraph (1)(B) only if the head of 
the agency determines that the additional qualified sources or products
110 
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 require-
ments) the cost incurred by the agency. 
(3) CERTIFICATION REQUIRED.—The head of the agency shall re-
quire 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 Busi-
ness Act (15 U.S.C. 632). 
(e) EXAMINATION
AND REVALIDATION
OF QUALIFICATION REQUIRE-
MENT.—Within 7 years after the establishment of a qualification require-
ment, the need for the requirement shall be examined and the standards of 
the requirement revalidated in accordance with the requirements of sub-
section (b). This subsection does not apply in the case of a qualification re-
quirement for which a waiver is in effect under subsection (c)(2). 
(f) WHEN ENFORCEMENT OF QUALIFICATION REQUIREMENT NOT AL-
LOWED.—Except in an emergency as determined by the head of the agency, 
after the head of the agency determines not to enforce a qualification re-
quirement for a solicitation, the agency may not enforce the requirement un-
less the agency complies with the requirements of subsection (b). 
CHAPTER 35—TRUTHFUL COST AND PRICING DATA 
Sec. 
3501.
General. 
3502.
Required cost or pricing data and certification. 
3503.
Exceptions. 
3504.
Cost or pricing data on below-threshold contracts. 
3505.
Submission of other information. 
3506.
Price reductions for defective cost or pricing data. 
3507.
Interest and penalties for certain overpayments. 
3508.
Right to examine contractor records. 
3509.
Notification of violations of Federal criminal law or overpayments. 
§ 3501. General 
(a) DEFINITIONS.—In this chapter: 
(1) COMMERCIAL
ITEM.—The term ‘‘commercial item’’ has the 
meaning provided the term by section 103 of this title. 
(2) COST
OR
PRICING
DATA.—The term ‘‘cost or pricing data’’ 
means all facts that, as of the date of agreement on the price of a con-
tract (or the price of a contract modification) or, if applicable con-
sistent with section 3506(a)(2) of this title, another date agreed upon 
between the parties, a prudent buyer or seller would reasonably expect 
to affect price negotiations significantly. The term does not include in-
formation that is judgmental, but does include factual information from 
which a judgment was derived.