41 USC 253b(m): Proposals submitted by unsuccessful contract bidders

          
Sec. 253b. Evaluation and award
(a) Basis

    An executive agency shall evaluate sealed bids and competitive 
proposals, and award a contract, based solely on the factors specified 
in the solicitation.

(b) Rejection of bids or proposals

    All sealed bids or competitive proposals received in response to a 
solicitation may be rejected if the agency head determines that such 
action is in the public interest.

(c) Opening of bids; promptness of award; written notice

    Sealed bids shall be opened publicly at the time and place stated in 
the solicitation. The executive agency shall evaluate the bids in 
accordance with subsection (a) of this section without discussions with 
the bidders and, except as provided in subsection (b) of this section, 
shall award a contract with reasonable promptness to the responsible 
source whose bid conforms to the solicitation and is most advantageous 
to the United States, considering only price and the other price-related 
factors included in the solicitation. The award of a contract shall be 
made by transmitting, in writing or by electronic means, notice of the 
award to the successful bidder. Within 3 days after the date of contract 
award, the executive agency shall notify, in writing or by electronic 
means, each bidder not awarded the contract that the contract has been 
awarded.

(d) Discussions with offerors; written notification

    (1) An executive agency shall evaluate competitive proposals in 
accordance with subsection (a) of this section and may award a 
contract--
        (A) after discussions with the offerors, provided that written 
    or oral discussions have been conducted with all responsible 
    offerors who submit proposals within the competitive range; or
        (B) based on the proposals received and without discussions with 
    the offerors (other than discussions conducted for the purpose of 
    minor clarification), if, as required by section 253a(b)(2)(B)(i) of 
    this title, the solicitation included a statement that proposals are 
    intended to be evaluated, and award made, without discussions, 
    unless discussions are determined to be necessary.

    (2) If the contracting officer determines that the number of 
offerors that would otherwise be included in the competitive range under 
paragraph (1)(A) exceeds the number at which an efficient competition 
can be conducted, the contracting officer may limit the number of 
proposals in the competitive range, in accordance with the criteria 
specified in the solicitation, to the greatest number that will permit 
an efficient competition among the offerors rated most highly in 
accordance with such criteria.
    (3) Except as otherwise provided in subsection (b) of this section, 
the executive agency shall award a contract with reasonable promptness 
to the responsible source whose proposal is most advantageous to the 
United States, considering only cost or price and the other factors 
included in the solicitation. The executive agency shall award the 
contract by transmitting, in writing or by electronic means, notice of 
the award to such source and, within 3 days after the date of contract 
award, shall notify, in writing or by electronic means, all other 
offerors of the rejection of their proposals.

(e) Post-award debriefings

    (1) When a contract is awarded by the head of an executive agency on 
the basis of competitive proposals, an unsuccessful offeror, upon 
written request received by the agency within 3 days after the date on 
which the unsuccessful offeror receives the notification of the contract 
award, shall be debriefed and furnished the basis for the selection 
decision and contract award. The executive agency shall debrief the 
offeror within, to the maximum extent practicable, 5 days after receipt 
of the request by the executive agency.
    (2) The debriefing shall include, at a minimum--
        (A) the executive agency's evaluation of the significant weak or 
    deficient factors in the offeror's offer;
        (B) the overall evaluated cost and technical rating of the offer 
    of the contractor awarded the contract and the overall evaluated 
    cost and technical rating of the offer of the debriefed offeror;
        (C) the overall ranking of all offers;
        (D) a summary of the rationale for the award;
        (E) in the case of a proposal that includes a commercial item 
    that is an end item under the contract, the make and model of the 
    item being provided in accordance with the offer of the contractor 
    awarded the contract; and
        (F) reasonable responses to relevant questions posed by the 
    debriefed offeror as to whether source selection procedures set 
    forth in the solicitation, applicable regulations, and other 
    applicable authorities were followed by the executive agency.

    (3) The debriefing may not include point-by-point comparisons of the 
debriefed offeror's offer with other offers and may not disclose any 
information that is exempt from disclosure under section 552(b) of title 
5.
    (4) Each solicitation for competitive proposals shall include a 
statement that information described in paragraph (2) may be disclosed 
in post-award debriefings.
    (5) If, within one year after the date of the contract award and as 
a result of a successful procurement protest, the executive agency seeks 
to fulfill the requirement under the protested contract either on the 
basis of a new solicitation of offers or on the basis of new best and 
final offers requested for that contract, the head of such executive 
agency shall make available to all offerors--
        (A) the information provided in debriefings under this 
    subsection regarding the offer of the contractor awarded the 
    contract; and
        (B) the same information that would have been provided to the 
    original offerors.

(f) Preaward debriefings

    (1) When the contracting officer excludes an offeror submitting a 
competitive proposal from
the competitive range (or otherwise excludes such an offeror from 
further consideration prior to the final source selection decision), the 
excluded offeror may request in writing, within 3 days after the date on 
which the excluded offeror receives notice of its exclusion, a 
debriefing prior to award. The contracting officer shall make every 
effort to debrief the unsuccessful offeror as soon as practicable but 
may refuse the request for a debriefing if it is not in the best 
interests of the Government to conduct a debriefing at that time.
    (2) The contracting officer is required to debrief an excluded 
offeror in accordance with subsection (e) of this section only if that 
offeror requested and was refused a preaward debriefing under paragraph 
(1) of this subsection.
    (3) The debriefing conducted under this subsection shall include--
        (A) the executive agency's evaluation of the significant 
    elements in the offeror's offer;
        (B) a summary of the rationale for the offeror's exclusion; and
        (C) reasonable responses to relevant questions posed by the 
    debriefed offeror as to whether source selection procedures set 
    forth in the solicitation, applicable regulations, and other 
    applicable authorities were followed by the executive agency.

    (4) The debriefing conducted pursuant to this subsection may not 
disclose the number or identity of other offerors and shall not disclose 
information about the content, ranking, or evaluation of other offerors' 
proposals.

(g) Summary of debriefing

    The contracting officer shall include a summary of any debriefing 
conducted under subsection (e) or (f) of this section in the contract 
file.

(h) Alternative dispute resolution

    The Federal Acquisition Regulation shall include a provision 
encouraging the use of alternative dispute resolution techniques to 
provide informal, expeditious, and inexpensive procedures for an offeror 
to consider using before filing a protest, prior to the award of a 
contract, of the exclusion of the offeror from the competitive range (or 
otherwise from further consideration) for that contract.

(i) Antitrust violations

    If the agency head considers that a bid or proposal evidences a 
violation of the antitrust laws, such agency head shall refer the bid or 
proposal to the Attorney General for appropriate action.

(j) Planning for future competition

    (1)(A) In preparing a solicitation for the award of a development 
contract for a major system, the head of an agency shall consider 
requiring in the solicitation that an offeror include in its offer 
proposals described in subparagraph (B). In determining whether to 
require such proposals, the head of the agency shall give due 
consideration to the purposes for which the system is being procured and 
the technology necessary to meet the system's required capabilities. If 
such proposals are required, the head of the agency shall consider them 
in evaluating the offeror's price.
    (B) The proposals that the head of an agency is to consider 
requiring in a solicitation for the award of a development contract are 
the following:
        (i) Proposals to incorporate in the design of the major system 
    items which are currently available within the supply system of the 
    Federal agency responsible for the major system, available elsewhere 
    in the national supply system, or commercially available from more 
    than one source.
        (ii) With respect to items that are likely to be required in 
    substantial quantities during the system's service life, proposals 
    to incorporate in the design of the major system items which the 
    United States will be able to acquire competitively in the future.

    (2)(A) In preparing a solicitation for the award of a production 
contract for a major system, the head of an agency shall consider 
requiring in the solicitation that an offeror include in its offer 
proposals described in subparagraph (B). In determining whether to 
require such proposals, the head of the agency shall give due 
consideration to the purposes for which the system is being procured and 
the technology necessary to meet the system's required capabilities. If 
such proposals are required, the head of the agency shall consider them 
in evaluating the offeror's price.
    (B) The proposals that the head of an agency is to consider 
requiring in a solicitation for the award of a production contract are 
proposals identifying opportunities to ensure that the United States 
will be able to obtain on a competitive basis items procured in 
connection with the system that are likely to be reprocured in 
substantial quantities during the service life of the system. Proposals 
submitted in response to such requirement may include the following:
        (i) Proposals to provide to the United States the right to use 
    technical data to be provided under the contract for competitive 
    reprocurement of the item, together with the cost to the United 
    States, if any, of acquiring such technical data and the right to 
    use such data.
        (ii) Proposals for the qualification or development of multiple 
    sources of supply for the item.

    (3) If the head of an agency is making a noncompetitive award of a 
development contract or a production contract for a major system, the 
factors specified in paragraphs (1) and (2) to be considered in 
evaluating an offer for a contract may be considered as objectives in 
negotiating the contract to be awarded.

(k) Protest file

    (1) If, in the case of a solicitation for a contract issued by, or 
an award or proposed award of a contract by, the head of an executive 
agency, a protest is filed pursuant to the procedures in subchapter V of 
chapter 35 of title 31, and an actual or prospective offeror so 
requests, a file of the protest shall be established by the procuring 
activity and reasonable access shall be provided to actual or 
prospective offerors.
    (2) Information exempt from disclosure under section 552 of title 5 
may be redacted in a file established pursuant to paragraph (1) unless 
an applicable protective order provides otherwise.
(l) Agency actions on protests

    If, in connection with a protest, the head of an executive agency 
determines that a solicitation, proposed award, or award does not comply 
with the requirements of law or regulation, the head of such executive 
agency--
        (1) may take any action set out in subparagraphs (A) through (F) 
    of subsection (b)(1) of section 3554 of title 31; and
        (2) may pay costs described in paragraph (1) of section 3554(c) 
    of such title within the limits referred to in paragraph (2) of such 
    section.

        

            
 
          

(m) Prohibition on release of contractor proposals

    (1) Except as provided in paragraph (2), a proposal in the 
possession or control of an executive agency may not be made available 
to any person under section 552 of title 5.
    (2) Paragraph (1) does not apply to any proposal that is set forth 
or incorporated by reference in a contract entered into between the 
agency and the contractor that submitted the proposal.
    (3) In this subsection, the term ``proposal'' means any proposal, 
including a technical, management, or cost proposal, submitted by a 
contractor in response to the requirements of a solicitation for a 
competitive proposal.

(June 30, 1949, ch. 288, title III, Sec. 303B, as added Pub. L. 98-369, 
div. B, title VII, Sec. 2711(a)(2), July 18, 1984, 98 Stat. 1179; 
amended Pub. L. 98-577, title II, Sec. 201(a), Oct. 30, 1984, 98 Stat. 
3068; Pub. L. 103-355, title I, Secs. 1061(c), 1063-1066, Oct. 13, 
1994, 108 Stat. 3267-3269; Pub. L. 104-106, div. D, title XLI, 
Secs. 4103(b), 4104(b), div. E, title LVI, Sec. 5607(c), Feb. 10, 
1996, 110 Stat. 644, 645, 701; Pub. L. 104-201, div. A, title VIII, 
Sec. 821(b), title X, Sec. 1074(b)(7), Sept. 23, 1996, 110 Stat. 2609, 
2660.)
                               Amendments

    1996--Subsec. (d)(2), (3). Pub. L. 104-106, Sec. 4103(b), added par. 
(2) and redesignated former par. (2) as (3).
    Subsec. (e)(6). Pub. L. 104-106, Sec. 4104(b)(1), struck out par. 
(6) which read as follows: ``The contracting officer shall include a 
summary of the debriefing in the contract file.''
    Subsecs. (f) to (h). Pub. L. 104-106, Sec. 4104(b)(3), added 
subsecs. (f) to (h). Former subsecs. (f) to (h) redesignated (i) to (k), 
respectively.
    Subsecs. (i), (j). Pub. L. 104-106, Sec. 4104(b)(2), redesignated 
subsecs. (f) and (g) as (i) and (j), respectively. Former subsec. (i) 
redesignated (l).
    Subsec. (k). Pub. L. 104-106, Sec. 5607(c), as amended by Pub. L. 
104-201, Sec. 1074(b)(7), 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 759 of title 40.''
    Pub. L. 104-106, Sec. 4104(b)(2), redesignated subsec. (h) as (k).
    Subsec. (l). Pub. L. 104-106, Sec. 4104(b)(2), redesignated subsec. 
(i) as (l).
    Subsec. (m). Pub. L. 104-201, Sec. 821(b), added subsec. (m).
    1994--Subsec. (a). Pub. L. 103-355, Sec. 1061(c)(1), inserted ``, 
and award a contract,'' after ``competitive proposals''.
    Subsec. (c). Pub. L. 103-355, Secs. 1061(c)(2), 1063(a), 
inserted ``in accordance with subsection (a) of this section'' after 
``shall evaluate the bids'' in second sentence, substituted 
``transmitting, in writing or by electronic means, notice'' for 
``transmitting written notice'' in third sentence, and inserted at end 
``Within 3 days after the date of contract award, the executive agency 
shall notify, in writing or by electronic means, each bidder not awarded 
the contract that the contract has been awarded.''
    Subsec. (d)(1). Pub. L. 103-355, Sec. 1061(c)(3)(A), added par. (1) 
and struck out former par. (1) which read as follows: ``The executive 
agency shall evaluate competitive proposals and may award a contract--
        ``(A) after discussions conducted with the offerors at any time 
    after receipt of the proposals and before the award of the contract; 
    or
        ``(B) 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 Government.''
    Subsec. (d)(2). Pub. L. 103-355, Secs. 1061(c)(3)(C), 1063(b), 
inserted ``cost or'' before ``price'' in first sentence, and, in second 
sentence, substituted ``transmitting, in writing or by electronic means, 
notice'' for ``transmitting written notice'' and ``, within 3 days after 
the date of contract award, shall notify, in writing or by electronic 
means,'' for ``shall promptly notify''.
    Pub. L. 103-355, Sec. 1061(c)(3)(B), redesignated par. (4) as (2) 
and struck out former par. (2) which read as follows: ``In the case of 
award of a contract under paragraph (1)(A), the executive agency shall 
conduct, before such award, written or oral discussions with all 
responsible sources who submit proposals within the competitive range, 
considering only price and the other factors included in the 
solicitation.''
    Subsec. (d)(3). Pub. L. 103-355, Sec. 1061(c)(3)(B), struck out par. 
(3) which read as follows: ``In the case of award of a contract under 
paragraph (1)(B), the executive agency shall award the contract based on 
the proposals as received (and as clarified, if necessary, in 
discussions conducted for the purpose of minor clarification).''
    Subsec. (d)(4). Pub. L. 103-355, Sec. 1061(c)(3)(B), redesignated 
par. (4) as (2).
    Subsecs. (e) to (g). Pub. L. 103-355, Sec. 1064, added subsec. (e) 
and redesignated former subsecs. (e) and (f) as (f) and (g), 
respectively.
    Subsec. (h). Pub. L. 103-355, Sec. 1065, added subsec. (h).
    Subsec. (i). Pub. L. 103-355, Sec. 1066, added subsec. (i).
    1984--Subsec. (f). Pub. L. 98-577 added subsec. (f).
                    Effective Date of 1996 Amendments

    Section 1074(b)(7) of Pub. L. 104-201 provided that the amendment 
made by that section is effective Feb. 10, 1996.
    For effective date and applicability of amendment by sections 
4103(b) and 4104(b) of Pub. L. 104-106, see section 4401 of Pub. L. 104-
106, set out as a note under section 251 of this title.
    Amendment by section 5607(c) 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 251 of this title.
                    Effective Date of 1984 Amendment

    Section 201(b) of Pub. L. 98-577 provided that: ``The amendment made 
by subsection (a) [amending this section] shall apply with respect to 
any solicitation issued more than 180 days after the date of enactment 
of this Act [Oct. 30, 1984].''
                             Effective Date

    Section 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 an Effective Date of 1984 Amendment note under section 
251 of this title.
                           Small Business Act

    Section not to affect or supersede the provisions of section 637(a) 
of Title 15, Commerce and Trade, see section 2711(c) of Pub. L. 98-369, 
set out as a note under section 253 of this title.

             Ex. Ord. No. 12979. Agency Procurement Protests

    Ex. Ord. No. 12979, Oct. 25, 1995, 60 F.R. 55171, provided:
    By the authority vested in me as President by the Constitution and 
the laws of the United States of America, and in order to ensure 
effective and efficient expenditure of public funds and fair and 
expeditious resolution of protests to the award of Federal procurement 
contracts, it is hereby ordered as follows:
    Section 1. Heads of executive departments and agencies 
(``agencies'') engaged in the procurement of supplies and services shall 
prescribe administrative procedures for the resolution of protests to 
the award of their procurement contracts as an alternative to protests 
in fora outside the procuring agencies. Procedures prescribed pursuant 
to this order shall:
    (a) emphasize that whenever conduct of a procurement is contested, 
all parties should use their best efforts to resolve the matter with 
agency contracting officers;
    (b) to the maximum extent practicable, provide for inexpensive, 
informal, procedurally simple, and expeditious resolution of protests, 
including, where appropriate and as permitted by law, the use of 
alternative dispute resolution techniques, third party neutrals, and 
another agency's personnel;
    (c) allow actual or prospective bidders or offerors whose direct 
economic interests would be affected by the award or failure to award 
the contract to request a review, at a level above the contracting 
officer, of any decision by a contracting officer that is alleged to 
have violated a statute or regulation and, thereby, caused prejudice to 
the protester; and
    (d) except where immediate contract award or performance is 
justified for urgent and compelling reasons or is determined to be in 
the best interest of the United States, prohibit award or performance of 
the contract while a timely filed protest is pending before the agency. 
To allow for the withholding of a contract award or performance, the 
agency must have received notice of the protest within either 10 
calendar days after the contract award or 5 calendar days after the 
bidder or offeror who is protesting the contract award was given the 
opportunity to be debriefed by the agency, whichever date is later.
    Sec. 2. The Administrator for Federal Procurement Policy shall: (a) 
work with the heads of executive agencies to provide policy guidance and 
leadership necessary to implement provisions of this order; and
    (b) review and evaluate agency experience and performance under this 
order, and report on any findings to the President within 2 years from 
the date of this order.
    Sec. 3. The Administrator of General Services, the Secretary of 
Defense, and the Administrator of the National Aeronautics and Space 
Administration, in coordination with the Office of Federal Procurement 
Policy, shall amend the Federal Acquisition Regulation, 48 C.F.R. 1, 
within 180 days of the date of this order to further the purposes of 
this order.
                                                     William J. Clinton.
                               Definitions

    The definitions in section 102 of Title 40, Public Buildings, 
Property, and Works, apply to this subchapter.