| Historical and Revision Notes |
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|---|---|---|
| 1956 Act |
||
| Revised section |
Source (U.S. Code) |
Source (Statutes at Large) |
| 2305(a) 2305(b) |
41:152 (less clause (b)). 41:152 (clause (b)). |
Feb. 19, 1948, ch. 65, §§ 2(d), 3, 62 Stat. 22. |
| 2305(c) |
41:151(d). |
|
In subsection (a), the word “needed” is substituted for the words “necessary to meet the requirements”.
In subsection (b), the words “United States” are substituted for the word “Government”.
| 1958 Act |
||
|---|---|---|
| Revised section |
Source (U.S. Code) |
Source (Statutes at Large) |
| 2305 |
41:152(c). |
Aug. 9, 1955, ch. 628, § 15, 69 Stat. 551. |
Reference to bids is omitted as surplusage (see opinion of the Judge Advocate General of the Army (JAGT 1956/9122, 21 Dec. 1956)). The word “attachments” is substituted for the words “material required”. The words “the specifications in” are inserted in the second sentence for clarity. The word “available” is omitted as covered by the word “accessible.” The words “no award may be made” are substituted for the words “and any award or awards made to any bidder in such case shall be invalidated and rejected”.
Codification
Pub. L. 99–591 is a corrected version of Pub. L. 99–500.
Amendments
2016—Subsec. (a)(3)(A)(i), (ii). Pub. L. 114–328, § 825(a)(1), inserted “(except as provided in subparagraph (C))” after “shall”.
Subsec. (a)(3)(C) to (E). Pub. L. 114–328, § 825(a)(2), added subpars. (C) to (E).
1999—Subsec. (g)(1). Pub. L. 106–65 substituted “an agency named in section 2303 of this title” for “the Department of Defense”.
1996—Subsec. (a)(2). Pub. L. 104–106, § 4202(a)(2), inserted “a procurement for commercial items using special simplified procedures or” after “(other than for”.
Subsec. (b)(4)(B). Pub. L. 104–106, § 4103(a)(3), added subpar. (B). Former subpar. (B) redesignated (C).
Pub. L. 104–106, § 4103(a)(1), transferred text of subpar. (C) to end of subpar. (B) and substituted “This subparagraph” for “Subparagraph (B)” at beginning of that text.
Subsec. (b)(4)(C). Pub. L. 104–106, § 4103(a)(2), redesignated subpar. (B) as (C).
Pub. L. 104–106, § 4103(a)(1), struck out “(C)” before “Subparagraph (B)” and transferred text of subpar. (C) to end of subpar. (B).
Subsec. (b)(5)(F). Pub. L. 104–106, § 4104(a)(1), struck out subpar. (F) which read as follows: “The contracting officer shall include a summary of the debriefing in the contract file.”
Subsec. (b)(6). Pub. L. 104–106, § 4104(a)(3), added par. (6). Former par. (6) redesignated (9).
Subsec. (b)(6)(B). Pub. L. 104–201, § 1074(a)(11)(A), struck out “of this section” after “paragraph (5)” and “of this paragraph” after “subparagraph (A)”.
Subsec. (b)(6)(C). Pub. L. 104–201, § 1074(a)(11)(B), substituted “subparagraph (A)” for “this subsection” in introductory provisions.
Subsec. (b)(6)(D). Pub. L. 104–201, § 1074(a)(11)(C), substituted “under subparagraph (A)” for “pursuant to this subsection”.
Subsec. (b)(7), (8). Pub. L. 104–106, § 4104(a)(3), added pars. (7) and (8).
Subsec. (b)(9). Pub. L. 104–106, § 4104(a)(2), redesignated par. (6) as (9).
Subsec. (e)(3). Pub. L. 104–106, § 5601(a), as amended by Pub. L. 104–201, § 1074(b)(4)(A), struck out par. (3) which read as follows: “Regulations implementing this subsection shall be consistent with the regulations regarding the preparation and submission of an agency’s protest file (the so-called ‘rule 4 file’) for protests to the General Services Board of Contract Appeals under section 111 of the Federal Property and Administrative Services Act of 1949 (41 U.S.C. 759).”
Subsec. (g). Pub. L. 104–201, § 821(a), added subsec. (g).
1994—Subsec. (a)(2). Pub. L. 103–355, § 4401(b), substituted “a purchase for an amount not greater than the simplified acquisition threshold)” for “small purchases)” in introductory provisions.
Subsec. (a)(2)(A)(i). Pub. L. 103–355, § 1011(a)(1), substituted “and significant subfactors” for “(and significant subfactors)” and “cost-related or price-related factors and subfactors, and noncost-related or nonprice-related factors and subfactors” for “cost- or price-related factors, and noncost- or nonprice-related factors”.
Subsec. (a)(2)(A)(ii). Pub. L. 103–355, § 1011(a)(2), substituted “and subfactors” for “(and subfactors)”.
Subsec. (a)(2)(B)(ii)(I). Pub. L. 103–355, § 1011(a)(3), amended subcl. (I) generally. Prior to amendment, subcl. (I) read as follows: “a statement that the proposals are intended to be evaluated with, and award made after, discussions with the offerors, or a statement that the proposals are intended to be evaluated, and award made, without discussions with the offerors (other than discussions conducted for the purpose of minor clarification), unless discussions are determined to be necessary; and”.
Subsec. (a)(3). Pub. L. 103–355, § 1011(b), added par. (3) and struck out former par. (3), which read as follows: “In prescribing the evaluation factors to be included in each solicitation for competitive proposals, the head of an agency shall clearly establish the relative importance assigned to the evaluation factors and subfactors, including the quality of the product or services to be provided (including technical capability, management capability, and prior experience of the offeror).”
Subsec. (a)(4). Pub. L. 103–355, § 1011(b), added par. (4).
Subsec. (a)(5). Pub. L. 103–355, § 1012, added par. (5).
Subsec. (b)(3). Pub. L. 103–355, § 1013(a), substituted “transmitting, in writing or by electronic means, notice” for “transmitting written notice” and inserted at end “Within three days after the date of contract award, the head of the agency shall notify, in writing or by electronic means, each bidder not awarded the contract that the contract has been awarded.”
Subsec. (b)(4)(B). Pub. L. 103–355, § 1013(b), substituted “transmitting, in writing or by electronic means, notice” for “transmitting written notice” and “, within three days after the date of contract award, shall notify, in writing or by electronic means,” for “shall promptly notify”.
Subsec. (b)(5), (6). Pub. L. 103–355, § 1014, added par. (5) and redesignated former par. (5) as (6).
Subsec. (e). Pub. L. 103–355, § 1015, added subsec. (e).
Subsec. (f). Pub. L. 103–355, § 1016, added subsec. (f).
1993—Subsec. (b)(4)(A). Pub. L. 103–160 realigned margins of cls. (i) and (ii).
1990—Subsec. (a)(2)(A)(i). Pub. L. 101–510, § 802(a)(1), inserted “(and significant subfactors)” after “significant factors” and substituted “(including cost or price, cost- or price-related factors, and noncost- or nonprice-related factors)” for “(including cost or price)”.
Subsec. (a)(2)(A)(ii). Pub. L. 101–510, § 802(a)(2), inserted “(and subfactors)” after “those factors”.
Subsec. (a)(2(B)(ii)(I). Pub. L. 101–510, § 802(b), amended subcl. (I) generally. Prior to amendment, subcl. (I) read as follows: “a statement that the proposals are intended to be evaluated with, and awards made after, discussions with the offerors, but might be evaluated and awarded without discussions with the offerors; and”.
Subsec. (a)(3). Pub. L. 101–510, § 802(c), substituted “the evaluation factors and subfactors, including the quality of the product or services” for “the quality of the services”.
Subsec. (b)(1). Pub. L. 101–510, § 802(d)(1), inserted “and make an award” after “competitive proposals”.
Subsec. (b)(3). Pub. L. 101–510, § 802(d)(2), inserted “in accordance with paragraph (1)” after “shall evaluate the bids”.
Subsec. (b)(4)(A). Pub. L. 101–510, § 802(d)(3)(A), substituted “competitive proposals in accordance with paragraph (1)” for “competitive proposals” in introductory provisions, added cls. (i) and (ii), and struck out former cls. (i) and (ii) which read as follows:
“(i) after discussions conducted with the offerors at any time after receipt of the proposals and before the award of the contract; or
“(ii) without discussions with the offerors (other than discussions conducted for the purpose of minor clarification) when it can be clearly demonstrated from the existence of full and open competition or accurate prior cost experience with the product or service that acceptance of an initial proposal without discussions would result in the lowest overall cost to the United States.”
Subsec. (b)(4)(B) to (E). Pub. L. 101–510, § 802(d)(3)(B)–(D), redesignated subpars. (D) and (E) as (B) and (C), respectively, substituted “Subparagraph (B)” for “Subparagraph (D)” in subpar. (C), and struck out former subpars. (B) and (C) which read as follows:
“(B) In the case of award of a contract under subparagraph (A)(i), the head of the agency shall conduct, before such award, written or oral discussions with all responsible sources who submit proposals within the competitive range, considering only cost or price and the other factors included in the solicitation.
“(C) In the case of award of a contract under subparagraph (A)(ii), the head of the agency shall award the contract based on the proposals received (and as clarified, if necessary, in discussions conducted for the purpose of minor clarification).”
1989—Subsec. (b)(4)(D). Pub. L. 101–189 inserted “cost or” after “considering only”.
1988—Subsec. (d)(1)(B). Pub. L. 100–456, § 806(b), substituted “Proposals referred to in the first sentence of subparagraph (A) are” for “The proposals that the head of an agency is to consider requiring in a solicitation for the award of a development contract are”.
Subsec. (d)(2)(B). Pub. L. 100–456, § 806(b), substituted “Proposals referred to in the first sentence of subparagraph (A) are” for “The proposals that the head of an agency is to consider requiring in a solicitation for the award of a production contract are”.
Subsec. (d)(3). Pub. L. 100–456, § 806(a)(2), inserted provision that objectives may not impair the rights of prospective contractors or subcontractors otherwise provided by law.
Subsec. (d)(4). Pub. L. 100–456, § 806(a)(1), added par. (4).
1986—Subsec. (a). Pub. L. 99–500 and Pub. L. 99–591, § 101(c) [§ 924(a)], Pub. L. 99–661, § 924(a), amended subsec. (a) identically, in par. (2)(A)(i) striking out “(including price)” after “factors” and inserting “(including price)” and “(including cost and price)” and adding par. (3).
Subsec. (b)(4)(B). Pub. L. 99–500 and Pub. L. 99–591, § 101(c) [§ 924(b)], Pub. L. 99–661, § 924(b), amended subpar. (B) identically, inserting “cost or”.
Subsec. (b)(4)(E). Pub. L. 99–661, § 313(b), added subpar. (E).
1985—Subsec. (b)(5). Pub. L. 99–145 aligned the margin of par. (5).
1984—Subsecs. (c), (d). Pub. L. 98–525 added subsecs. (c) and (d).
Catchline, subsecs. (a) to (d). Pub. L. 98–369 substituted “Contracts: planning, solicitation, evaluation, and award procedures” for “Formal advertisements for bids; time; opening; award; rejection” and completely revised the text to substitute a program using solicitation requirements covering military procurement for former provisions which had used the approach of utilizing formal advertisements, struck out former provisions which had directed that, except in cases where the Secretary of Defense had determined that military requirements necessitated the specification of container size, no advertisement or invitation to bid for the carriage of government property in other than government-owned cargo containers could specify carriage of such property in cargo containers of any stated length, height, or width, and carried forward into new subsecs. (a)(1)(A)(iii), (B)(i), and (b)(2) and (5) the content of former section.
1968—Subsec. (a). Pub. L. 90–268 inserted provision that, except in cases where the Secretary of Defense determines that military requirements necessitate such specification, no advertisement or invitation to bid for the carriage of Government property in other than Government-owned cargo containers shall specify carriage of such property in cargo containers of any stated length, height, or width.
1958—Subsecs. (b) to (d). Pub. L. 85–861 added subsec. (b) and redesignated former subsecs. (b) and (c) as (c) and (d), respectively.
Effective Date of 1996 Amendment
For effective date and applicability of amendment by sections 4103(a), 4104(a), and 4202(a)(2) of Pub. L. 104–106, see section 4401 of Pub. L. 104–106, set out as a note under section 2302 of this title.
Amendment by section 5601(a) of Pub. L. 104–106 effective 180 days after Feb. 10, 1996, see section 5701 of Pub. L. 104–106, Feb. 10, 1996, 110 Stat. 702.
Effective Date of 1994 Amendment
For effective date and applicability of amendment by Pub. L. 103–355, see section 10001 of Pub. L. 103–355, set out as a note under section 2302 of this title.
Effective Date of 1990 Amendment
Pub. L. 101–510, div. A, title VIII, § 802(e), Nov. 5, 1990, 104 Stat. 1589, provided that:
“(1) Except as provided in paragraph (2), the amendments made by this section [amending this section] shall apply with respect to solicitations for sealed bids or competitive proposals issued after the end of the 120-day period beginning on the date of the enactment of this Act [Nov. 5, 1990].
“(2) The Secretary of Defense may require the amendments made by this section to apply with respect to solicitations issued before the end of the period referred to in paragraph (1). The Secretary of Defense shall publish in the Federal Register notice of any such earlier effective date.”
Effective Date of 1986 Amendment
Pub. L. 99–500, § 101(c) [title X, § 924(c)], Oct. 18, 1986, 100 Stat. 1783–82, 1783–153, Pub. L. 99–591, § 101(c) [title X, § 924(c)], Oct. 30, 1986, 100 Stat. 3341–82, 3341–153, and Pub. L. 99–661, div. A, title IX, formerly title IV, § 924(c), Nov. 14, 1986, 100 Stat. 3933, renumbered title IX, Pub. L. 100–26, § 3(5), Apr. 21, 1987, 101 Stat. 273, provided that:
“The amendments made by this section [amending this section] shall apply with respect to solicitations for sealed bids or competitive proposals issued after the end of the 180-day period beginning on the date of the enactment of this Act [Oct. 18, 1986].”
Effective Date of 1984 Amendments
Pub. L. 98–525, title XII, § 1213(b), Oct. 19, 1984, 98 Stat. 2592, provided that:
“The amendment made by subsection (a) [amending this section] shall take effect at the end of the 180-day period beginning on the date of the enactment of this Act [Oct. 19, 1984].”
Amendment by Pub. L. 98–369 applicable with respect to any solicitation for bids or proposals issued after Mar. 31, 1985, see section 2751 of Pub. L. 98–369, set out as a note under section 2302 of this title.
Use Of Lowest Price Technically Acceptable Source Selection Process
Pub. L. 114–328, div. A, title VIII, § 813, Dec. 23, 2016, 130 Stat. 2270, provided that:
“(a) Statement of Policy.— It shall be the policy of the Department of Defense to avoid using lowest price technically acceptable source selection criteria in circumstances that would deny the Department the benefits of cost and technical tradeoffs in the source selection process.
“(b) Revision of Defense Federal Acquisition Regulation Supplement.—Not later than 120 days after the date of the enactment of this Act [Dec. 23, 2016], the Secretary of Defense shall revise the Defense Federal Acquisition Regulation Supplement to require that, for solicitations issued on or after the date that is 120 days after the date of the enactment of this Act, lowest price technically acceptable source selection criteria are used only in situations in which— “(1) the Department of Defense is able to comprehensively and clearly describe the minimum requirements expressed in terms of performance objectives, measures, and standards that will be used to determine acceptability of offers;
“(2) the Department of Defense would realize no, or minimal, value from a contract proposal exceeding the minimum technical or performance requirements set forth in the request for proposal;
“(3) the proposed technical approaches will require no, or minimal, subjective judgment by the source selection authority as to the desirability of one offeror’s proposal versus a competing proposal;
“(4) the source selection authority has a high degree of confidence that a review of technical proposals of offerors other than the lowest bidder would not result in the identification of factors that could provide value or benefit to the Department;
“(5) the contracting officer has included a justification for the use of a lowest price technically acceptable evaluation methodology in the contract file; and
“(6) the Department of Defense has determined that the lowest price reflects full life-cycle costs, including for operations and support.
“(c) Avoidance of Use of Lowest Price Technically Acceptable Source Selection Criteria in Certain Procurements.—To the maximum extent practicable, the use of lowest price technically acceptable source selection criteria shall be avoided in the case of a procurement that is predominately for the acquisition of— “(1) information technology services, cybersecurity services, systems engineering and technical assistance services, advanced electronic testing, audit or audit readiness services, or other knowledge-based professional services;
“(2) personal protective equipment; or
“(3) knowledge-based training or logistics services in contingency operations or other operations outside the United States, including in Afghanistan or Iraq.
“(d) Reporting.— Not later than December 1, 2017, and annually thereafter for three years, the Comptroller General of the United States shall submit to the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives] a report on the number of instances in which lowest price technically acceptable source selection criteria is used for a contract exceeding $10,000,000, including an explanation of how the situations listed in subsection (b) were considered in making a determination to use lowest price technically acceptable source selection criteria.”
Use of Commercial or Non-Government Standards in Lieu of Military Specifications and Standards
Pub. L. 114–328, div. A, title VIII, § 875, Dec. 23, 2016, 130 Stat. 2310, provided that:
“(a) In General.— The Secretary of Defense shall ensure that the Department of Defense uses commercial or non-Government specifications and standards in lieu of military specifications and standards, including for procuring new systems, major modifications, upgrades to current systems, non-developmental and commercial items, and programs in all acquisition categories, unless no practical alternative exists to meet user needs. If it is not practicable to use a commercial or non-Government standard, a Government-unique specification may be used.
“(b) Limited Use of Military Specifications.—
“(1) In general.— Military specifications shall be used in procurements only to define an exact design solution when there is no acceptable commercial or non-Government standard or when the use of a commercial or non-Government standard is not cost effective.
“(2) Waiver.— A waiver for the use of military specifications in accordance with paragraph (1) shall be approved by either the appropriate milestone decision authority, the appropriate service acquisition executive, or the Under Secretary of Defense for Acquisition, Technology, and Logistics.
“(c) Revision to DFARS.— Not later than 180 days after the date of the enactment of this Act [Dec. 23, 2016], the Under Secretary of Defense for Acquisition, Technology, and Logistics shall revise the Defense Federal Acquisition Regulation Supplement to encourage contractors to propose commercial or non-Government standards and industry-wide practices that meet the intent of the military specifications and standards.
“(d) Development of Non-government Standards.— The Under Secretary for Acquisition, Technology, and Logistics shall form partnerships with appropriate industry associations to develop commercial or non-Government standards for replacement of military specifications and standards where practicable.
“(e) Education, Training, and Guidance.— The Under Secretary of Defense for Acquisition, Technology, and Logistics shall ensure that training, education, and guidance programs throughout the Department are revised to incorporate specifications and standards reform.
“(f) Licenses.— The Under Secretary of Defense for Acquisition, Technology, and Logistics shall negotiate licenses for standards to be used across the Department of Defense and shall maintain an inventory of such licenses that is accessible to other Department of Defense organizations.”
Requirement and Review Relating to use of Brand Names or Brand-Name or Equivalent Descriptions in Solicitations
Pub. L. 114–328, div. A, title VIII, § 888, Dec. 23, 2016, 130 Stat. 2322, provided that:
“(a) Requirement.— The Secretary of Defense shall ensure that competition in Department of Defense contracts is not limited through the use of specifying brand names or brand-name or equivalent descriptions, or proprietary specifications or standards, in solicitations unless a justification for such specification is provided and approved in accordance with section 2304(f) of title 10, United States Code.
“(b) Review of Anti-competitive Specifications in Information Technology Acquisitions.—
“(1) Review required.— Not later than 180 days after the date of the enactment of this Act [Dec. 23, 2016], the Under Secretary of Defense for Acquisition, Technology, and Logistics shall conduct a review of the policy, guidance, regulations, and training related to specifications included in information technology acquisitions to ensure current policies eliminate the unjustified use of potentially anti-competitive specifications. In conducting the review, the Under Secretary shall examine the use of brand names or proprietary specifications or standards in solicitations for procurements of goods and services, as well as the current acquisition training curriculum related to those areas.
“(2) Briefing required.— Not later than 270 days after the date of the enactment of this Act, the Under Secretary shall provide a briefing to the Committees on Armed Services of the Senate and House of Representatives on the results of the review required by paragraph (1).
“(3) Additional guidance.— Not later than one year after the date of the enactment of this Act, the Under Secretary shall revise policies, guidance, and training to incorporate such recommendations as the Under Secretary considers appropriate from the review required by paragraph (1).”
Guidance on Use of Tiered Evaluations of Offers for Contracts and Task Orders Under Contracts
Pub. L. 109–163, div. A, title VIII, § 816, Jan. 6, 2006, 119 Stat. 3382, provided that:
“(a) Guidance Required.— The Secretary of Defense shall prescribe guidance for the military departments and the Defense Agencies on the use of tiered evaluations of offers for contracts and for task or delivery orders under contracts.
“(b) Elements.—The guidance prescribed under subsection (a) shall include a prohibition on the initiation by a contracting officer of a tiered evaluation of an offer for a contract or for a task or delivery order under a contract unless the contracting officer— “(1) has conducted market research in accordance with part 10 of the Federal Acquisition Regulation in order to determine whether or not a sufficient number of qualified small businesses are available to justify limiting competition for the award of such contract or task or delivery order under applicable law and regulations;
“(2) is unable, after conducting market research under paragraph (1), to make the determination described in that paragraph; and
“(3) includes in the contract file a written explanation of why such contracting officer was unable to make such determination.”
Authorization of Evaluation Factor for Defense Contractors Employing or Subcontracting With Members of the Selected Reserve of the Reserve Components of the Armed Forces
Pub. L. 109–163, div. A, title VIII, § 819, Jan. 6, 2006, 119 Stat. 3385, provided that:
“(a) Defense Contracts.— In awarding any contract for the procurement of goods or services to an entity, the Secretary of Defense is authorized to use as an evaluation factor whether the entity intends to carry out the contract using employees or individual subcontractors who are members of the Selected Reserve of the reserve components of the Armed Forces.
“(b) Documentation of Selected Reserve-Related Evaluation Factor.— Any entity claiming intent to carry out a contract using employees or individual subcontractors who are members of the Selected Reserve of the reserve components of the Armed Forces shall submit proof of the use of such employees or subcontractors for the Department of Defense to consider in carrying out subsection (a) with respect to that contract.
“(c) Regulations.— The Federal Acquisition Regulation shall be revised as necessary to implement this section.”
Certificate of Competency Requirements
Pub. L. 102–484, div. A, title VIII, § 804, Oct. 23, 1992, 106 Stat. 2447, provided that, in case of contract to be entered into pursuant to this chapter, other than pursuant to simplified procedures under section 2304(g) of this title, solicitation was to contain notice of right of bidding small business concern, in case of determination by contracting officer that concern was nonresponsible, to request Small Business Administration to make determination of responsibility under section 637(b)(7) of Title 15, Commerce and Trade, that if contracting officer determined that concern was nonresponsible, such officer was to notify concern in writing, of such determination, that concern had right to request Small Business Administration to make determination, and that, if concern desired to request such determination, concern was to inform officer in writing, within 14 days after receipt of notice, of such desire, and that, after being so informed, officer was to transmit request to Administration, or, if not so informed, officer was to proceed with award of contract, and contained provisions relating to effective and termination dates and report to be submitted to Congress, prior to repeal by Pub. L. 103–355, title VII, § 7101(b), Oct. 13, 1994, 108 Stat. 3367.
Construction of 1984 Amendment
Amendment by Pub. L. 98–369 as not superseding or affecting the provisions of section 637(a) of Title 15, Commerce and Trade, see section 2723(c) of Pub. L. 98–369, set out as a note under section 2304 of this title.