Purchases and contracts: formal advertising; exceptions

§ 2304. Purchases and contracts: formal advertising; exceptions (a) Purchases of and contracts for property or services covered by this chapter shall be made by formal advertising. However, the head of an agency may negotiate such a purchase or contract, if— (1) it is determined that such action is necessary in the public interest during a national emergency declared by Congress or the President; (2) the public exigency will not permit the delay incident to advertising; (3) the aggregate amount involved is not more than $1,000; (4) the purchase or contract is for personal or professional services; (5) the purchase or contract is for any service by a university, college, or other educational institution; (6) the purchase or contract is for property or services to be procured and used outside the United States, its Territories, and its possessions; (7) the purchase or contract is for medicine or medical supplies; (8) the purchase or contract is for property for authorized resale; (9) the purchase or contract is for perishable subsistence supplies; 129 (10) the purchase or contract is for property or services for which it is impracticable to obtain competition; (11) the purchase or contract is for property or services that he determines to be for experimental, developmental, or research work, or for making or furnishing property for experiment, test, development, or research; (12) the purchase or contract is for property or services whose procurement he determines should not be publicly disclosed because of their character, ingredients, or components; (13) the purchase or contract is for equipment that he determines to be technical equipment whose standardization and the interchangeability of whose parts are necessary in the public interest and whose procurement by negotiation is necessary to assure that standardization and interchangeability; (14) the purchase or contract is for technical or special property that he determines to require a substantial initial investment or an extended period of preparation for manufacture, and for which he determines that formal advertising and competitive bidding might require duplication of investment or preparation already made or would unduly delay the procurement of that property; or (15) the purchase or contract is for property or services for which he determines that the bid prices received after formal advertising are unreasonable as to all or part of the requirements, or were not independently reached in open competition, and for which (A) he has notified each responsible bidder of intention to negotiate and given him reasonable opportunity to negotiate; (B) the negotiated price is lower than the lowest rejected bid of any responsible bidder, as determined by the head of the agency; and (C) the negotiated price is the lowest negotiated price offered by any responsible supplier; (16) he determines that (A) it is in the interest of national defense to have a plant, mine, or other facility, or a producer, manufacturer, or other supplier, available for furnishing property or services in case of a national emergency; or (B) the interest of industrial mobilization in case of such an emergency, or the interest of national defense in maintaining active engineering, research, and development, would otherwise be subserved; or (17) negotiation of the purchase or contract is otherwise authorized by law. (b) The data respecting the negotiation of each purchase or contract under clauses (1) and (7)-(17) of subsection (a) shall be kept by the contracting agency for six years after the date of final payment on the contract. (c) This section does not authorize— (1) the negotiation of a contract to construct or repair any building, road, sidewalk, sewer main, or similar item, unless— (A) it is made under clauses (1)–(3), (10)–(12), or (15) of subsection (a); or (B) it is to be performed outside the United States; or (2) the erection, repair, or furnishing of any public building or public improvement. (d) Whenever the head of the agency determines it to be practicable, such advance publicity as he considers suitable with regard 130to the property involved and other relevant considerations shall be given for a period of at least 15 days before making a purchase of or contract for property, or a service, under clause (7) or (8) of subsection (a) involving more than $10,000. (e) A report shall be made to Congress, on May 19 and November 19 of each year, of the purchases and contracts made under clauses (11) and (16) of subsection (a) during the period since the date of the last report. The report shall— (1) name each contractor; (2) state the amount of each contract; and (3) describe, with consideration of the national security, the property and services covered by each contract. (f) For the purposes of the. following laws, purchases or contracts negotiated under this section shall be treated as if they were made with formal advertising: (1) Sections 35–45 of title 41. (2) Sections 276a–276a–5 of title 40. (3) Sections 324 and 325a of title 40.