Page:United States Statutes at Large Volume 124.djvu/3789

 124 STAT. 3763 PUBLIC LAW 111–350—JAN. 4, 2011 a qualification requirement if the potential offeror can dem- onstrate 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 REQUIRED.—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 subsection (b) or to provide a potential offeror with an opportunity to demonstrate its ability to meet the standards specified for qualification. (d) FEWER THAN 2 ACTUAL MANUFACTURERS.— (1) SOLICITATION AND TESTING OF ADDITIONAL SOURCES OR PRODUCTS.—If the number of qualified sources or qualified prod- ucts available to compete actively for an anticipated future requirement is fewer than 2 actual manufacturers or the prod- ucts of 2 actual manufacturers, respectively, the head of the agency concerned shall— (A) publish notice periodically soliciting additional sources or products to seek qualification, unless the con- tracting officer determines 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 concerned may bear the cost under paragraph (1)(B) only if the head of the agency determines that the additional qualified sources or products are likely to result in cost savings from increased competition for future requirements sufficient to offset (within a reasonable period of time considering the dura- tion and dollar value of anticipated future requirements) the cost incurred by the agency. (3) CERTIFICATION REQUIRED.—The head of the agency shall require a prospective contractor requesting the Federal Govern- ment 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 Business Act (15 U.S.C. 632). (e) EXAMINATION AND REVALIDATION OF QUALIFICATION REQUIRE- MENT.—Within 7 years after the establishment of a qualification requirement, the need for the requirement shall be examined and the standards of the requirement revalidated in accordance with the requirements of subsection (b). This subsection does not apply in the case of a qualification requirement for which a waiver is in effect under subsection (c)(2).