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Procurement for Experimental Purposes – 10 USC 2373

Procurement for Experimental Purposes (10 USC 2373)

Procurement for Experimental Purposes (commonly referred to as “2373”) authorizes the government to acquire quantities necessary for experimentation, technical evaluation, assessment of operational utility, or to maintain a residual operational capability. The scope of the authority was expanded in the 2016 NDAA, and now allows acquisitions in the following eight areas:

Ordnance

Signal

Chemical Activity

Transportation

Energy*

Medical*

Space-Flight*

Aeronautical Supplies*

*Added in 2016 NDAA

2373 can be competitive or non-competitive and awarded using a contract or agreement. FAR and DFARS are not applicable, therefore, formal competitive procedures do not apply and any resultant contract is not required to include standard provisions and clauses required by procurement laws. Instead, a contract could be written using commercial terms. Another option is to leverage the authority of 10 USC 2371 or 10 USC 2371 and execute a research or prototype OT for the items allowed under this statute. 

In order to execute a 2373 award, a Determination & Finding identifying the following is required:

  • A description of the item(s) to be purchased and dollar amount of purchase
  • A description of the method of test/experimentation
  • The quantity to be tested
  • A definitive statement that use of the authority at 10 U.S.C. 2373 is determined to be appropriate for the acquisition

Common Applications

  • Purchase ordnance, signal, chemical activity, transportation, energy, medical, space-flight, and aeronautical supplies, including parts and accessories, and designs thereof, necessary for experimental or test purposes to develop best supplies for national defense
  • Testing new capabilities for fielding (i.e., weapons, combat vehicle modifications, test aircraft)

 

Pros

Cons

Ability to use in conjunction with science and technology OTs (10 USC 2371) or incentive prize competitions (10 USC section 2374a) enable rapid transition of emerging technologies into fielded systems for testing and evaluation Pursuit and execution of this provision, especially when used in combination with an OT, requires highly experienced and empowered staff; lack of guidance, structure, and processes can challenge and intimidate inexperienced staff
Potential to use this authority to procure higher quantities of supplies; definitions in statutory language can be broadly interpreted Government is essentially in a sole-source negotiation with vendor; loses negotiation leverage on pricing and favorable terms and conditions
Provides a flexible and fast vehicle to use to acquire products outside the US Use of this authority is still relatively unknown; lack of guidance and established precedent increases risk to the government
Can be executed quickly and non-competitively; does not require a sole source J&A but only a D&F signed by the Contracting Officer or Head of Contracting Activity  

 

Restrictions

  • FAR/DFARS N/A
  • SECDEF delegation required (currently delegated to DARPA, Navy, and selectively within Air Force and Army)
  • Contracting Officer must have Agreement Officer authority to execute
  • Purchases limited to quantities necessary for experimentation, technical evaluation, assessment of operational utility, or safety or to provide a residual operational capability
  • Appropriate for use in select situations to prevent inappropriate use/abuse and potential revocation of authority

 

References

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