§2382. Consolidation of contract requirements: policy and restrictions

(a) Policy.—The Secretary of Defense shall require the Secretary of each military department, the head of each Defense Agency, and the head of each Department of Defense Field Activity to ensure that the decisions made by that official regarding consolidation of contract requirements of the department, agency, or field activity, as the case may be, are made with a view to providing small business concerns with appropriate opportunities to participate in Department of Defense procurements as prime contractors and appropriate opportunities to participate in such procurements as subcontractors.

(b) Limitation on Use of Acquisition Strategies Involving Consolidation.—(1) Subject to section 44(c)(4),¹ an official of a military department, Defense Agency, or Department of Defense Field Activity may not execute an acquisition strategy that includes a consolidation of contract requirements of the military department, agency, or activity with a total value in excess of $5,000,000, unless the senior procurement executive concerned first—

(A) conducts market research;

(B) identifies any alternative contracting approaches that would involve a lesser degree of consolidation of contract requirements; and

(C) determines that the consolidation is necessary and justified.

(2) A senior procurement executive may determine that an acquisition strategy involving a consolidation of contract requirements is necessary and justified for the purposes of paragraph (1) if the benefits of the acquisition strategy substantially exceed the benefits of each of the possible alternative contracting approaches identified under subparagraph (B) of that paragraph. However, savings in administrative or personnel costs alone do not constitute, for such purposes, a sufficient justification for a consolidation of contract requirements in a procurement unless the total amount of the cost savings is expected to be substantial in relation to the total cost of the procurement.

(3) Benefits considered for the purposes of paragraphs (1) and (2) may include cost and, regardless of whether quantifiable in dollar amounts—

(A) quality;

(B) acquisition cycle;

(C) terms and conditions; and

(D) any other benefit.

(c) Definitions.—In this section:

(1) The terms “consolidation of contract requirements” and “consolidation”, with respect to contract requirements of a military department, Defense Agency, or Department of Defense Field Activity, mean a use of a solicitation to obtain offers for a single contract or a multiple award contract to satisfy two or more requirements of that department, agency, or activity for goods or services that have previously been provided to, or performed for, that department, agency, or activity under two or more separate contracts smaller in cost than the total cost of the contract for which the offers are solicited.

(2) The term “multiple award contract” means—

(A) a contract that is entered into by the Administrator of General Services under the multiple award schedule program referred to in section 2302(2)(C) of this title;

(B) a multiple award task order contract or delivery order contract that is entered into under the authority of sections 2304a through 2304d of this title or sections 303H through 303K ¹ of the Federal Property and Administrative Services Act of 1949 (41 U.S.C. 253h through 253k); and

(C) any other indeterminate delivery, indeterminate quantity contract that is entered into by the head of a Federal agency with two or more sources pursuant to the same solicitation.

(3) The term “senior procurement executive concerned” means—

(A) with respect to a military department, the official designated under section 16(c) ¹ of the Office of Federal Procurement Policy Act (41 U.S.C. 414(c)) as the senior procurement executive for the military department; or

(B) with respect to a Defense Agency or a Department of Defense Field Activity, the official so designated for the Department of Defense.

(4) The term “small business concern” means a business concern that is determined by the Administrator of the Small Business Administration to be a small-business concern by application of the standards prescribed under section 3(a) of the Small Business Act (15 U.S.C. 632(a)).

(Added Pub. L. 108–136, div. A, title VIII, §801(a)(1), Nov. 24, 2003, 117 Stat. 1538; amended Pub. L. 109–364, div. A, title X, §1071(a)(2), Oct. 17, 2006, 120 Stat. 2398; Pub. L. 111–240, title I, §1313(b), Sept. 27, 2010, 124 Stat. 2539.)

References in Text

Section 44(c)(4), referred to in subsec. (b)(1), probably means section 2[44(c)(4)] of Pub. L. 85–536, as added by Pub. L. 111–240, title I, §1313(a)(2), Sept. 27, 2010, 124 Stat. 2538, which is classified to section 657q(c)(4) of Title 15, Commerce and Trade.

Sections 303H through 303K of the Federal Property and Administrative Services Act of 1949, referred to in subsec. (c)(2)(B), means sections 303H to 303K of act June 30, 1949, ch. 288, which were classified to sections 253h to 253k, respectively, of former Title 41, Public Contracts, and were repealed and restated as sections 4103, 4105, 4106, and 4101, respectively, of Title 41, Public Contracts, by Pub. L. 111–350, §§3, 7(b), Jan. 4, 2011, 124 Stat. 3677, 3855. For disposition of sections of former Title 41, see Disposition Table preceding section 101 of Title 41.

Section 16(c) of the Office of Federal Procurement Policy Act, referred to in subsec. (c)(3)(A), means section 16(c) of Pub. L. 93–400, which was classified to section 414(c) of former Title 41, Public Contracts, and was repealed and restated as section 1702(c) of Title 41, Public Contracts, by Pub. L. 111–350, §§3, 7(b), Jan. 4, 2011, 124 Stat. 3677, 3855. For disposition of sections of former Title 41, see Disposition Table preceding section 101 of Title 41.

Prior Provisions

A prior section 2382, acts Aug. 10, 1956, ch. 1041, 70A Stat. 136; Dec. 1, 1981, Pub. L. 97–86, title IX, §911(a)(1), 95 Stat. 1120; Nov. 5, 1990, Pub. L. 101–510, div. A, title XIV, §1484(b)(3), (f)(2), (g)(2), (h)(3), 104 Stat. 1716, 1717; Oct. 29, 1992, Pub. L. 102–572, title IX, §902(b)(1), 106 Stat. 4516, authorized the President, upon declaration of war by Congress or declaration of national emergency by the President or by Congress, to prescribe regulations to control excessive profits on defense contracts during period of such war or national emergency, prior to repeal by Pub. L. 103–355, title II, §2102(a), Oct. 13, 1994, 108 Stat. 3309.

Amendments

2010—Subsec. (b)(1). Pub. L. 111–240 substituted “Subject to section 44(c)(4), an official” for “An official” in introductory provisions.

2006—Subsec. (c)(3)(A). Pub. L. 109–364 substituted “section 16(c) of the Office of Federal Procurement Policy Act (41 U.S.C. 414(c))” for “section 16(3) of the Office of Federal Procurement Policy Act (41 U.S.C. 414(3))”.

Effective Date

Pub. L. 108–136, div. A, title VIII, §801(c), Nov. 24, 2003, 117 Stat. 1540, provided that: “This section [enacting this section and provisions set out as a note below] applies with respect to procurements for which solicitations are issued after the date occurring 180 days after the date of the enactment of this Act [Nov. 24, 2003].”

Data Review

Pub. L. 108–136, div. A, title VIII, §801(b), Nov. 24, 2003, 117 Stat. 1540, provided that:

“(1) The Secretary of Defense shall revise the data collection systems of the Department of Defense to ensure that such systems are capable of identifying each procurement that involves a consolidation of contract requirements within the department with a total value in excess of $5,000,000.

“(2) The Secretary shall ensure that appropriate officials of the Department of Defense periodically review the information collected pursuant to paragraph (1) in cooperation with the Small Business Administration—

“(A) to determine the extent of the consolidation of contract requirements in the Department of Defense; and

“(B) to assess the impact of the consolidation of contract requirements on the availability of opportunities for small business concerns to participate in Department of Defense procurements, both as prime contractors and as subcontractors.

“(3) In this subsection:

“(A) The term ‘consolidation of contract requirements’ has the meaning given that term in section 2382(c)(1) of title 10, United States Code, as added by subsection (a).

“(B) The term ‘small business concern’ means a business concern that is determined by the Administrator of the Small Business Administration to be a small-business concern by application of the standards prescribed under section 3(a) of the Small Business Act (15 U.S.C. 632(a)).”

¹ See References in Text note below.