10 U.S.C. § 2305 (ARMED FORCES)
[§ 2305. Repealed. Pub. L. 116–283, div. A, title XVIII, § 1881(a), Jan. 1, 2021, 134 Stat. 4293]
text: Section, act Aug. 10, 1956, ch. 1041, 70A Stat. 130; Pub. L. 85–861, § 1(44), Sept. 2, 1958, 72 Stat. 1457; Pub. L. 90–268, § 3, Mar. 16, 1968, 82 Stat. 49; Pub. L. 98–369, div. B, title VII, § 2723(b), July 18, 1984, 98 Stat. 1191; Pub. L. 98–525, title XII, § 1213(a), Oct. 19, 1984, 98 Stat. 2591; Pub. L. 99–145, title XIII, § 1303(a)(14), Nov. 8, 1985, 99 Stat. 739; Pub. L. 99–500, § 101(c) [title X, § 924(a), (b)], Oct. 18, 1986, 100 Stat. 1783–82, 1783–153, and Pub. L. 99–591, § 101(c) [title X, § 924(a), (b)], Oct. 30, 1986, 100 Stat. 3341–82, 3341–153; Pub. L. 99–661, div. A, title III, § 313(b), title IX, formerly title IV, § 924(a), (b), Nov. 14, 1986, 100 Stat. 3853, 3932, 3933, renumbered title IX, Pub. L. 100–26, § 3(5), Apr. 21, 1987, 101 Stat. 273; Pub. L. 100–456, div. A, title VIII, § 806, Sept. 29, 1988, 102 Stat. 2010; Pub. L. 101–189, div. A, title VIII, § 853(f), Nov. 29, 1989, 103 Stat. 1519; Pub. L. 101–510, div. A, title VIII, § 802(a)–(d), Nov. 5, 1990, 104 Stat. 1588, 1589; Pub. L. 103–160, div. A, title XI, § 1182(a)(5), Nov. 30, 1993, 107 Stat. 1771; Pub. L. 103–355, title I, §§ 1011–1016, title IV, § 4401(b), Oct. 13, 1994, 108 Stat. 3254–3257, 3347; Pub. L. 104–106, div. D, title XLI, §§ 4103(a), 4104(a), title XLII, § 4202(a)(2), div. E, title LVI, § 5601(a), Feb. 10, 1996, 110 Stat. 643, 644, 653, 699; Pub. L. 104–201, div. A, title VIII, § 821(a), title X, § 1074(a)(11), (b)(4)(A), Sept. 23, 1996, 110 Stat. 2609, 2659, 2660; Pub. L. 106–65, div. A, title VIII, § 821, Oct. 5, 1999, 113 Stat. 714; Pub. L. 114–328, div. A, title VIII, § 825(a), Dec. 23, 2016, 130 Stat. 2279; Pub. L. 115–91, div. A, title VIII, § 818(b), Dec. 12, 2017, 131 Stat. 1463; Pub. L. 115–232, div. A, title VIII, § 836(c)(3), Aug. 13, 2018, 132 Stat. 1864; Pub. L. 116–283, div. A, title XVIII, §§ 1811(e)(2), (f)(2), (g)(2), 1816(c)(1), (2), (e)(1), (f)(1), Jan. 1, 2021, 134 Stat. 4170, 4173, 4182, 4185, related to planning, solicitation, evaluation, and award procedures for contracts.
heading: Statutory Notes and Related Subsidiaries
heading: Effective Date of Repeal
text: Repeal 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.
heading: Pilot Program To Use Alpha Contracting Teams for Complex Requirements
text: Pub. L. 116–92, div. A, title VIII, § 802, Dec. 20, 2019, 133 Stat. 1483, provided that:
“(a) In General.—
(1) The Secretary of Defense shall select at least 2, and up to 5, initiatives to participate in a pilot [program] to use teams that, with the advice of expert third parties, focus on the development of complex contract technical requirements for services, with each team focusing on developing achievable technical requirements that are appropriately valued and identifying the most effective acquisition strategy to achieve those requirements.
“(2) The Secretary shall develop metrics for tracking progress of the program at improving quality and acquisition cycle time.
“(b) Development of Criteria and Initiatives.—
(1) Not later than February 1, 2020, the Secretary of Defense shall establish the pilot program and notify the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives] of the criteria used to select initiatives and the metrics used to track progress.
“(2) Not later than May 1, 2020, the Secretary shall notify the congressional defense committees of the initiatives selected for the program.
“(3) Not later than December 1, 2020, the Secretary shall brief the congressional defense committees on the progress of the selected initiatives, including the progress of the initiatives at improving quality and acquisition cycle time according to the metrics developed under subsection (a)(2).”
heading: Department of Defense Contracting Dispute Matters
text: Pub. L. 115–232, div. A, title VIII, § 822, Aug. 13, 2018, 132 Stat. 1853, provided that:
“(a) In General.—
Not later than 180 days after the date of the enactment of this Act [Aug. 13, 2018], the Secretary of Defense shall carry out a study of the frequency and effects of bid protests involving the same contract award or proposed award that have been filed at both the Government Accountability Office and the United States Court of Federal Claims. The study shall cover Department of Defense contracts and include, at a minimum—
“(1) the number of protests that have been filed with both tribunals and results;
“(2) the number of such protests where the tribunals differed in denying or sustaining the action;
“(3) the length of time, in average time and median time—
“(A) from initial filing at the Government Accountability Office to decision in the United States Court of Federal Claims;
“(B) from filing with each tribunal to decision by such tribunal;
“(C) from the time at which the basis of the protest is known to the time of filing in each tribunal; and
“(D) in the case of an appeal from a decision of the United States Court of Federal Claims, from the date of the initial filing of the appeal to decision in the appeal;
“(4) the number of protests where performance was stayed or enjoined and for how long;
“(5) if performance was stayed or enjoined, whether the requirement was obtained in the interim through another vehicle or in-house, or whether during the period of the stay or enjoining the requirement went unfulfilled;
“(6) separately for each tribunal, the number of protests where performance was stayed or enjoined and monetary damages were awarded, which shall include for how long performance was stayed or enjoined and the amount of monetary damages;
“(7) whether the protestor was a large or small business; and
“(8) whether the protestor was the incumbent in a prior contract for the same or similar product or service.
“(b) Report.—
Not later than 180 days after the date of the enactment of this Act, the Secretary of Defense shall submit to the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives], the Committee on the Judiciary of the Senate, and the Committee on the Judiciary of the House of Representatives a report on the results of the study, along with related recommendations for improving the expediency of the bid protest process. In preparing the report, the Secretary shall consult with the Attorney General of the United States, the Comptroller General of the United States, and the United States Court of Federal Claims.
“(c) Ongoing Data Collection.—
Not later than 270 days after the date of the enactment of this Act, the Secretary of Defense shall establish and continuously maintain a data repository to collect on an ongoing basis the information described in subsection (a) and any additional relevant bid protest data the Secretary determines necessary and appropriate to allow the Department of Defense, the Government Accountability Office, and the United States Court of Federal Claims to assess and review bid protests over time.
“(d) Establishment of Expedited Process for Small Value Contracts.—
“(1) In general.—
Not later than December 1, 2019, the Secretary of Defense shall develop a plan and schedule for an expedited bid protest process for Department of Defense contracts with a value of less than $100,000.
“(2) Consultation.—
In carrying out paragraph (1), the Secretary of Defense may consult with the Government Accountability Office and the United States Court of Federal Claims to the extent such entities may establish a similar process at their election.
“(3) Report.—
Not later than May 1, 2019, the Secretary of Defense shall submit to the congressional defense committees a report on the plan and schedule for implementation of the expedited bid protest process, which shall include a request for any additional authorities the Secretary determines appropriate for such efforts.”
heading: Inclusion of Best Available Information Regarding Past Performance of Subcontractors and Joint Venture Partners
text: Pub. L. 115–232, div. A, title VIII, § 823, Aug. 13, 2018, 132 Stat. 1855, provided that:
“Not later than 180 days after the date of the enactment of this Act [Aug. 13, 2018], the Secretary of Defense, in consultation with the Federal Acquisition Regulatory Council and the Administrator for Federal Procurement Policy, shall develop policies for the Department of Defense to ensure the best information regarding past performance of certain subcontractors and joint venture partners is available when awarding Department of Defense contracts. The policies shall include proposed revisions to the Defense Federal Acquisition Regulation Supplement as follows:
“(1) Required performance evaluations, as part of a government-wide evaluation reporting tool, for first-tier subcontractors on construction and architect-engineer contracts performing a portion of the contract valued at the threshold set forth in section 42.1502(e) of the Federal Acquisition Regulation, or 20 percent of the value of the prime contract, whichever is higher, provided—
“(A) the information included in rating the subcontractor is not inconsistent with the information included in the rating for the prime contractor;
“(B) the subcontractor evaluation is conducted consistent with the provisions of section 42.15 of the Federal Acquisition Regulation;
“(C) negative evaluations of a subcontractor in no way obviate the prime contractor’s responsibility for successful completion of the contract and management of its subcontractors; and
“(D) that in the judgment of the contracting officer, the overall execution of the work is impacted by the performance of the subcontractor or subcontractors.
“(2) Required performance evaluations, as part of a government-wide evaluation reporting tool, of individual partners of joint venture-awarded construction and architect-engineer contracts valued at the threshold set forth in section 42.1502(e) of the Federal Acquisition Regulation, to ensure that past performance on joint venture projects is considered in future awards to individual joint venture partners, provided—
“(A) at a minimum, the rating for joint ventures includes an identification that allows the evaluation to be retrieved for each partner of the joint venture;
“(B) each partner, through the joint venture, is given the same opportunity to submit comments, rebutting statements, or additional information, consistent with the provisions of section 42.15 of the Federal Acquisition Regulation; and
“(C) the rating clearly identifies the responsibilities of joint venture partners for discrete elements of the work where the partners are not jointly and severally responsible for the project.
“(3) Processes to request exceptions from the annual evaluation requirement under section 42.1502(a) of the Federal Acquisition Regulation for construction and architect-engineer contracts where submission of the annual evaluations would not provide the best representation of the performance of a contractor, including subcontractors and joint venture partners, including—
“(A) where no severable element of the work has been completed;
“(B) where the contracting officer determines that—
“(i) an insubstantial portion of the contract work has been completed in the preceding year; and
“(ii) the lack of performance is at no fault to the contractor; or
“(C) where the contracting officer determines that there is an issue in dispute which, until resolved, would likely cause the annual rating to inaccurately reflect the past performance of the contractor.”
heading: Enhanced Post-Award Debriefing Rights; Release of Contract Award Information
text: Pub. L. 115–91, div. A, title VIII, § 818(a), Dec. 12, 2017, 131 Stat. 1463, provided that:
“Not later than 180 days after the date of the enactment of this Act [Dec. 12, 2017], the Secretary of Defense shall revise the Department of Defense Supplement to the Federal Acquisition Regulation to require that all required post-award debriefings, while protecting the confidential and proprietary information of other offerors, include, at a minimum, the following:
“(1) In the case of a contract award in excess of $100,000,000, a requirement for disclosure of the agency’s written source selection award determination, redacted to protect the confidential and proprietary information of other offerors for the contract award, and, in the case of a contract award in excess of $10,000,000 and not in excess of $100,000,000 with a small business or nontraditional contractor, an option for the small business or nontraditional contractor to request such disclosure.
“(2) A requirement for a written or oral debriefing for all contract awards and task or delivery orders valued at $10,000,000 or higher.
“(3) Provisions ensuring that both unsuccessful and winning offerors are entitled to the disclosure described in paragraph (1) and the debriefing described in paragraph (2).
“(4) Robust procedures, consistent with section 2305(b)(5)(D) of title 10, United States Code [now 10 U.S.C. 3304(d)], and provisions implementing that section in the Federal Acquisition Regulation, to protect the confidential and proprietary information of other offerors.”
heading: Use Of Lowest Price Technically Acceptable Source Selection Process
text: Pub. L. 114–328, div. A, title VIII, § 813, Dec. 23, 2016, 130 Stat. 2270, as amended by Pub. L. 115–91, div. A, title VIII, § 822(a), (b)(1), Dec. 12, 2017, 131 Stat. 1465; Pub. L. 116–92, div. A, title VIII, § 806(a)(1), Dec. 20, 2019, 133 Stat. 1485, provided that:
“(a) Statement of Policy.—
It shall be the policy of the Department of Defense to avoid using lowest price technically acceptable source selection criteria in circumstances that would deny the Department the benefits of cost and technical tradeoffs in the source selection process.
“(b) Revision of Defense Federal Acquisition Regulation Supplement.—
Not later than 120 days after the date of the enactment of this Act [Dec. 23, 2016], the Secretary of Defense shall revise the Defense Federal Acquisition Regulation Supplement to require that, for solicitations issued on or after the date that is 120 days after the date of the enactment of this Act, lowest price technically acceptable source selection criteria are used only in situations in which—
“(1) the Department of Defense is able to comprehensively and clearly describe the minimum requirements expressed in terms of performance objectives, measures, and standards that will be used to determine acceptability of offers;
“(2) the Department of Defense would realize no, or minimal, value from a contract proposal exceeding the minimum technical or performance requirements set forth in the request for proposal;
“(3) the proposed technical approaches will require no, or minimal, subjective judgment by the source selection authority as to the desirability of one offeror’s proposal versus a competing proposal;
“(4) the source selection authority has a high degree of confidence that a review of technical proposals of offerors other than the lowest bidder would not result in the identification of factors that could provide value or benefit to the Department;
“(5) the contracting officer has included a justification for the use of a lowest price technically acceptable evaluation methodology in the contract file;
“(6) the Department of Defense has determined that the lowest price reflects full life-cycle costs, including for operations and support;
“(7) the Department of Defense would realize no, or minimal, additional innovation or future technological advantage by using a different methodology; and
“(8) with respect to a contract for procurement of goods, the goods procured are predominantly expendable in nature, nontechnical, or have a short life expectancy or short shelf life.
“(c) Avoidance of Use of Lowest Price Technically Acceptable Source Selection Criteria in Certain Procurements.—
To the maximum extent practicable, the use of lowest price technically acceptable source selection criteria shall be avoided in the case of a procurement that is predominately for the acquisition of—
“(1) information technology services, cybersecurity services, systems engineering and technical assistance services, advanced electronic testing, audit or audit readiness services, or other knowledge-based professional services;
“(2) personal protective equipment; or
“(3) knowledge-based training or logistics services in contingency operations or other operations outside the United States, including in Afghanistan or Iraq.”
[Pub. L. 115–91, div. A, title VIII, § 822(b)(2), Dec. 12, 2017, 131 Stat. 1465, provided that: “The amendment made by this subsection [amending section 813 of Pub. L. 114–328, set out above] shall apply with respect to the second, third, and fourth reports submitted under [former] subsection (d) of section 813 of the National Defense Authorization Act for Fiscal Year 2017 (Public Law 114–328; 130 Stat 2271; 10 U.S.C. 2305 note).”
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heading: Use of Commercial or Non-Government Standards in Lieu of Military Specifications and Standards
text: Pub. L. 114–328, div. A, title VIII, § 875, Dec. 23, 2016, 130 Stat. 2310, as amended by Pub. L. 116–92, div. A, title IX, § 902(45), Dec. 20, 2019, 133 Stat. 1548, provided that:
“(a) In General.—
The Secretary of Defense shall ensure that the Department of Defense uses commercial or non-Government specifications and standards in lieu of military specifications and standards, including for procuring new systems, major modifications, upgrades to current systems, non-developmental and commercial items, and programs in all acquisition categories, unless no practical alternative exists to meet user needs. If it is not practicable to use a commercial or non-Government standard, a Government-unique specification may be used.
“(b) Limited Use of Military Specifications.—
“(1) In general.—
Military specifications shall be used in procurements only to define an exact design solution when there is no acceptable commercial or non-Government standard or when the use of a commercial or non-Government standard is not cost effective.
“(2) Waiver.—
A waiver for the use of military specifications in accordance with paragraph (1) shall be approved by either the appropriate milestone decision authority, the appropriate service acquisition executive, or the Under Secretary of Defense for Acquisition and Sustainment.
“(c) Revision to DFARS.—
Not later than 180 days after the date of the enactment of this Act [Dec. 23, 2016], the Under Secretary of Defense for Acquisition and Sustainment shall revise the Defense Federal Acquisition Regulation Supplement to encourage contractors to propose commercial or non-Government standards and industry-wide practices that meet the intent of the military specifications and standards.
“(d) Development of Non-government Standards.—
The Under Secretary of Defense for Research and Engineering shall form partnerships with appropriate industry associations to develop commercial or non-Government standards for replacement of military specifications and standards where practicable.
“(e) Education, Training, and Guidance.—
The Under Secretary of Defense for Acquisition and Sustainment shall ensure that training, education, and guidance programs throughout the Department are revised to incorporate specifications and standards reform.
“(f) Licenses.—
The Under Secretary of Defense for Acquisition and Sustainment shall negotiate licenses for standards to be used across the Department of Defense and shall maintain an inventory of such licenses that is accessible to other Department of Defense organizations.”
heading: Requirement and Review Relating to Use of Brand Names or Brand-Name or Equivalent Descriptions in Solicitations
text: Pub. L. 114–328, div. A, title VIII, § 888, Dec. 23, 2016, 130 Stat. 2322, as amended by Pub. L. 116–92, div. A, title IX, § 902(46), Dec. 20, 2019, 133 Stat. 1548, provided that:
“(a) Requirement.—
The Secretary of Defense shall ensure that competition in Department of Defense contracts is not limited through the use of specifying brand names or brand-name or equivalent descriptions, or proprietary specifications or standards, in solicitations unless a justification for such specification is provided and approved in accordance with section 2304(f) of title 10, United States Code [now 10 U.S.C. 3204(e)].
“(b) Review of Anti-competitive Specifications in Information Technology Acquisitions.—
“(1) Review required.—
Not later than 180 days after the date of the enactment of this Act [Dec. 23, 2016], the Under Secretary of Defense for Acquisition and Sustainment shall conduct a review of the policy, guidance, regulations, and training related to specifications included in information technology acquisitions to ensure current policies eliminate the unjustified use of potentially anti-competitive specifications. In conducting the review, the Under Secretary shall examine the use of brand names or proprietary specifications or standards in solicitations for procurements of goods and services, as well as the current acquisition training curriculum related to those areas.
“(2) Briefing required.—
Not later than 270 days after the date of the enactment of this Act, the Under Secretary shall provide a briefing to the Committees on Armed Services of the Senate and House of Representatives on the results of the review required by paragraph (1).
“(3) Additional guidance.—
Not later than one year after the date of the enactment of this Act, the Under Secretary shall revise policies, guidance, and training to incorporate such recommendations as the Under Secretary considers appropriate from the review required by paragraph (1).”
heading: Guidance on Use of Tiered Evaluations of Offers for Contracts and Task Orders Under Contracts
text: Pub. L. 109–163, div. A, title VIII, § 816, Jan. 6, 2006, 119 Stat. 3382, provided that:
“(a) Guidance Required.—
The Secretary of Defense shall prescribe guidance for the military departments and the Defense Agencies on the use of tiered evaluations of offers for contracts and for task or delivery orders under contracts.
“(b) Elements.—
The guidance prescribed under subsection (a) shall include a prohibition on the initiation by a contracting officer of a tiered evaluation of an offer for a contract or for a task or delivery order under a contract unless the contracting officer—
“(1) has conducted market research in accordance with part 10 of the Federal Acquisition Regulation in order to determine whether or not a sufficient number of qualified small businesses are available to justify limiting competition for the award of such contract or task or delivery order under applicable law and regulations;
“(2) is unable, after conducting market research under paragraph (1), to make the determination described in that paragraph; and
“(3) includes in the contract file a written explanation of why such contracting officer was unable to make such determination.”
heading: Authorization of Evaluation Factor for Defense Contractors Employing or Subcontracting With Members of the Selected Reserve of the Reserve Components of the Armed Forces
text: Pub. L. 109–163, div. A, title VIII, § 819, Jan. 6, 2006, 119 Stat. 3385, as amended by Pub. L. 116–283, div. A, title VIII, § 821, Jan. 1, 2021, 134 Stat. 3753, provided that:
“(a) Defense Contracts.—
In awarding any contract for the procurement of goods or services to an entity, the Secretary of Defense is authorized to use as an evaluation factor whether the entity intends to carry out the contract using employees or individual subcontractors who are members of the Selected Reserve of the reserve components of the Armed Forces.
“(b) Regulations.—
The Federal Acquisition Regulation shall be revised as necessary to implement this section.”
heading: Certificate of Competency Requirements
text: Pub. L. 102–484, div. A, title VIII, § 804, Oct. 23, 1992, 106 Stat. 2447, provided that, in case of contract to be entered into pursuant to this chapter, other than pursuant to simplified procedures under section 2304(g) of this title, solicitation was to contain notice of right of bidding small business concern, in case of determination by contracting officer that concern was nonresponsible, to request Small Business Administration to make determination of responsibility under section 637(b)(7) of Title 15, Commerce and Trade, that if contracting officer determined that concern was nonresponsible, such officer was to notify concern in writing, of such determination, that concern had right to request Small Business Administration to make determination, and that, if concern desired to request such determination, concern was to inform officer in writing, within 14 days after receipt of notice, of such desire, and that, after being so informed, officer was to transmit request to Administration, or, if not so informed, officer was to proceed with award of contract, and contained provisions relating to effective and termination dates and report to be submitted to Congress, prior to repeal by Pub. L. 103–355, title VII, § 7101(b), Oct. 13, 1994, 108 Stat. 3367.
heading: Construction of 1984 Amendment
text: Amendment by Pub. L. 98–369 as not superseding or affecting the provisions of section 637(a) of Title 15, Commerce and Trade, see section 2723(c) of Pub. L. 98–369, set out as a note under section 2304 of this title.