41 U.S.C. § 3304 — Use of noncompetitive procedures

(a) When noncompetitive procedures may be used. An executive agency may use procedures other than competitive procedures only when:

(1) only one responsible source has the needed property or services and no other kind will meet the agency's needs;

(2) the need is unusually and compellingly urgent and the Government would be seriously harmed unless the agency limits the sources asked for bids or proposals;

(3) the contract must go to a particular source to (A) keep a facility, producer, manufacturer, or supplier available for a national emergency or industrial mobilization; (B) establish or maintain an essential engineering, research, or development capability at an educational or other nonprofit institution or a federally funded research and development center; (C) obtain an expert for litigation or a dispute involving, or reasonably expected to involve, the Government, whether or not the expert will testify; or (D) obtain an expert or neutral for any part of alternative dispute resolution or negotiated rulemaking, whether or not that person will testify;

(4) an international agreement or treaty, or written directions from a foreign government reimbursing the agency, requires noncompetitive procedures;

(5) subject to section 3105, a statute expressly authorizes or requires procurement through another executive agency or from a named source, or the agency needs a brand-name commercial product for authorized resale;

(6) revealing the agency's needs would harm national security unless the number of sources is limited; or

(7) the agency head, without delegating this authority, finds noncompetitive procedures necessary in the public interest for that procurement and gives Congress written notice at least 30 days before award.

(b) Property or services deemed available from only one source. For (a)(1): (1) property or services for a contract based on accepting an unsolicited research proposal are treated as available from one source if the proposal shows a unique and innovative concept not otherwise available to the Government and not resembling a pending competitive procurement; and (2) property for a follow-on contract continuing development or production of a major system or highly specialized equipment may be treated as available only from the original source if using another source would likely substantially duplicate unrecoverable Government cost or cause an unacceptable delay.

(c) Property or services needed with unusual and compelling urgency. (1) A contract under (a)(2) may last only as long as needed to meet the unusual and compelling work requirements and for the agency to make a competitive contract for the needed goods or services. It may not last more than one year unless the agency head finds exceptional circumstances. (2) This subsection applies to a contract exceeding the simplified acquisition threshold.

(d) Offer requests to potential sources. For a procurement based on (a)(2) or (a)(6), the agency must request offers from as many potential sources as practicable in the circumstances.

(e) Justification for noncompetitive procedures. (1) Except under (3) and (4), the agency may not award a noncompetitive contract unless the contracting officer gives a written justification and certifies it is accurate and complete; the proper official approves it; and any required notice under section 1708 is published and the agency considers all bids or proposals received. Approval is by the competition advocate for over $500,000 through $10 million; by the head of the procuring activity or an authorized senior delegate for over $10 million through $50 million; and by the agency's senior procurement executive for over $50 million.

(2) The justification must describe the agency's needs; identify and explain the statutory exception; find that the expected cost is fair and reasonable; describe the market survey or explain why none was done; list written expressions of interest; and state steps the agency might take to remove a competition barrier before a later procurement.

(3) For a procurement under (a)(2), the justification and approval may be completed after award.

(4) They are not required when a statute requires procurement from a specified source; the need is a brand-name product for authorized resale; procurement is under (a)(7); or procurement is under chapter 85 of this title or section 8(a) of the Small Business Act.

(5)(A) An agency may never use noncompetitive procedures because of poor advance planning or concern about the amount available for procurement. It may not buy property or services from another executive agency unless that agency fully follows this division in procuring them. (B) The latter restriction adds to other legal restrictions.

(f) Public availability of justifications. (1)(A) Unless (B) applies, within 14 days after award the agency head must make public the documents containing the justification and approval required by (e)(1). (B) For a procurement under (a)(2), the period is 30 days. (2) The documents must be posted on the agency website and a Government-wide website selected by the Administrator. (3) Information exempt from disclosure under 5 U.S.C. 552(b) need not be made public.