10 USC 2305(g): DOD Contractor Proposals

          
Sec. 2305. Contracts: planning, solicitation, evaluation, and 
        award procedures
        
    (a)(1)(A) In preparing for the procurement of property or services, 
the head of an agency shall--
        (i) specify the agency's needs and solicit bids or proposals in 
    a manner designed to achieve full and open competition for the 
    procurement;
        (ii) use advance procurement planning and market research; and
        (iii) develop specifications in such manner as is necessary to 
    obtain full and open competition with due regard to the nature of 
    the property or services to be acquired.

    (B) Each solicitation under this chapter shall include 
specifications which--
        (i) consistent with the provisions of this chapter, permit full 
    and open competition; and
        (ii) include restrictive provisions or conditions only to the 
    extent necessary to satisfy the needs of the agency or as authorized 
    by law.

    (C) For the purposes of subparagraphs (A) and (B), the type of 
specification included in a solicitation shall depend on the nature of 
the needs of the agency and the market available to satisfy such needs. 
Subject to such needs, specifications may be stated in terms of--
        (i) function, so that a variety of products or services may 
    qualify;
        (ii) performance, including specifications of the range of 
    acceptable characteristics or of the minimum acceptable standards; 
    or
        (iii) design requirements.

    (2) In addition to the specifications described in paragraph (1), a 
solicitation for sealed bids or competitive proposals (other than for a 
procurement for commercial items using special simplified procedures or 
a purchase for an amount not greater than the simplified acquisition 
threshold) shall at a minimum include--
        (A) a statement of--
            (i) all significant factors and significant subfactors which 
        the head of the agency reasonably expects to consider in 
        evaluating sealed bids (including price) or competitive 
        proposals (including cost or price, cost-related or price-
        related factors and subfactors, and noncost-related or nonprice-
        related factors and subfactors); and
            (ii) the relative importance assigned to each of those 
        factors and subfactors; and

        (B)(i) in the case of sealed bids--
            (I) a statement that sealed bids will be evaluated without 
        discussions with the bidders; and
            (II) the time and place for the opening of the sealed bids; 
        or

        (ii) in the case of competitive proposals--
            (I) either 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
            (II) the time and place for submission of proposals.

    (3)(A) In prescribing the evaluation factors to be included in each 
solicitation for competitive proposals, the head of an agency--
        (i) 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, prior experience, and past performance of the 
    offeror);
        (ii) shall include cost or price to the Federal Government as an 
    evaluation factor that must be considered in the evaluation of 
    proposals; and
        (iii) shall disclose to offerors whether all evaluation factors 
    other than cost or price, when combined, are--
            (I) significantly more important than cost or price;
            (II) approximately equal in importance to cost or price; or
            (III) significantly less important than cost or price.

    (B) The regulations implementing clause (iii) of subparagraph (A) 
may not define the terms ``significantly more important'' and 
``significantly less important'' as specific numeric weights that would 
be applied uniformly to all solicitations or a class of solicitations.

[[Page 1038]]

    (4) Nothing in this subsection prohibits an agency from--
        (A) providing additional information in a solicitation, 
    including numeric weights for all evaluation factors and subfactors 
    on a case-by-case basis; or
        (B) stating in a solicitation that award will be made to the 
    offeror that meets the solicitation's mandatory requirements at the 
    lowest cost or price.

    (5) The head of an agency, in issuing a solicitation for a contract 
to be awarded using sealed bid procedures, may not include in such 
solicitation a clause providing for the evaluation of prices for options 
to purchase additional property or services under the contract unless 
the head of the agency has determined that there is a reasonable 
likelihood that the options will be exercised.
    (b)(1) The head of an agency shall evaluate sealed bids and 
competitive proposals and make an award based solely on the factors 
specified in the solicitation.
    (2) All sealed bids or competitive proposals received in response to 
a solicitation may be rejected if the head of the agency determines that 
such action is in the public interest.
    (3) Sealed bids shall be opened publicly at the time and place 
stated in the solicitation. The head of the agency shall evaluate the 
bids in accordance with paragraph (1) without discussions with the 
bidders and, except as provided in paragraph (2), shall award a contract 
with reasonable promptness to the responsible bidder 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 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.
    (4)(A) The head of an agency shall evaluate competitive proposals in 
accordance with paragraph (1) and may award a contract--
        (i) 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
        (ii) based on the proposals received, without discussions with 
    the offerors (other than discussions conducted for the purpose of 
    minor clarification) provided that the solicitation included a 
    statement that proposals are intended to be evaluated, and award 
    made, without discussions, unless discussions are determined to be 
    necessary.

    (B) If the contracting officer determines that the number of 
offerors that would otherwise be included in the competitive range under 
subparagraph (A)(i) 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.
    (C) Except as provided in paragraph (2), the head of the 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 head of the agency shall award the contract by 
transmitting, in writing or by electronic means, notice of the award to 
such source and, within three days after the date of contract award, 
shall notify, in writing or by electronic means, all other offerors of 
the rejection of their proposals. This subparagraph does not apply with 
respect to the award of a contract for the acquisition of perishable 
subsistence items.
    (5)(A) When a contract is awarded by the head of an 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 head of the agency shall debrief the offeror 
within, to the maximum extent practicable, five days after receipt of 
the request by the agency.
    (B) The debriefing shall include, at a minimum--
        (i) the agency's evaluation of the significant weak or deficient 
    factors in the offeror's offer;
        (ii) 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;
        (iii) the overall ranking of all offers;
        (iv) a summary of the rationale for the award;
        (v) 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
        (vi) 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 agency.

    (C) 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.
    (D) Each solicitation for competitive proposals shall include a 
statement that information described in subparagraph (B) may be 
disclosed in post-award debriefings.
    (E) If, within one year after the date of the contract award and as 
a result of a successful procurement protest, the 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 agency shall make available to 
all offerors--
        (i) the information provided in debriefings under this paragraph 
    regarding the offer of the contractor awarded the contract; and

[[Page 1039]]

        (ii) the same information that would have been provided to the 
    original offerors.

    (6)(A) 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 
three 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.
    (B) The contracting officer is required to debrief an excluded 
offeror in accordance with paragraph (5) only if that offeror requested 
and was refused a preaward debriefing under subparagraph (A).
    (C) The debriefing conducted under subparagraph (A) shall include--
        (i) the executive agency's evaluation of the significant 
    elements in the offeror's offer;
        (ii) a summary of the rationale for the offeror's exclusion; and
        (iii) 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.

    (D) The debriefing conducted under subparagraph (A) 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.
    (7) The contracting officer shall include a summary of any 
debriefing conducted under paragraph (5) or (6) in the contract file.
    (8) 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.
    (9) If the head of an agency considers that a bid or proposal 
evidences a violation of the antitrust laws, he shall refer the bid or 
proposal to the Attorney General for appropriate action.
    (c) The Secretary of Defense shall ensure that before a contract for 
the delivery of supplies to the Department of Defense is entered into--
        (1) when the appropriate officials of the Department are making 
    an assessment of the most advantageous source for acquisition of the 
    supplies (considering quality, price, delivery, and other factors), 
    there is a review of the availability and cost of each item of 
    supply--
            (A) through the supply system of the Department of Defense; 
        and
            (B) under standard Government supply contracts, if the item 
        is in a category of supplies defined under regulations of the 
        Secretary of Defense as being potentially available under a 
        standard Government supply contract; and

        (2) there is a review of both the procurement history of the 
    item and a description of the item, including, when necessary for an 
    adequate description of the item, a picture, drawing, diagram, or 
    other graphic representation of the item.

    (d)(1)(A) The Secretary of Defense shall ensure that, in preparing a 
solicitation for the award of a development contract for a major system, 
the head of an agency 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) Proposals referred to in the first sentence of subparagraph (A) 
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) The Secretary of Defense shall ensure that, in preparing a 
solicitation for the award of a production contract for a major system, 
the head of an agency 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) Proposals referred to in the first sentence of subparagraph (A) 
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

[[Page 1040]]

may be considered as objectives in negotiating the contract to be 
awarded. Such objectives may not impair the rights of prospective 
contractors or subcontractors otherwise provided by law.
    (4)(A) Whenever the head of an agency requires that proposals 
described in paragraph (1)(B) or (2)(B) be submitted by an offeror in 
its offer, the offeror shall not be required to provide a proposal that 
enables the United States to acquire competitively in the future an 
identical item if the item was developed exclusively at private expense 
unless the head of the agency determines that--
        (i) the original supplier of such item will be unable to satisfy 
    program schedule or delivery requirements; or
        (ii) proposals by the original supplier of such item to meet the 
    mobilization requirements are insufficient to meet the agency's 
    mobilization needs.

    (B) In considering offers in response to a solicitation requiring 
proposals described in paragraph (1)(B) or (2)(B), the head of an agency 
shall base any evaluation of items developed exclusively at private 
expense on an analysis of the total value, in terms of innovative 
design, life-cycle costs, and other pertinent factors, of incorporating 
such items in the system.
    (e) 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 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.
    (f) Agency Actions on Protests.--If, in connection with a protest, 
the head of an agency determines that a solicitation, proposed award, or 
award does not comply with the requirements of law or regulation, the 
head of the 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 title 31 within the limits referred to in paragraph (2) of such 
    section.

        

            
 
          

    (g) Prohibition on Release of Contractor Proposals.--(1) Except as 
provided in paragraph (2), a proposal in the possession or control of an 
agency named in section 2303 of this title 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 
Department 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.

(Aug. 10, 1956, ch. 1041, 70A Stat. 130; Pub. L. 85-861, Sec. 1(44), 
Sept. 2, 1958, 72 Stat. 1457; Pub. L. 90-268, Sec. 3, Mar. 16, 1968, 82 
Stat. 49; Pub. L. 98-369, div. B, title VII, Sec. 2723(b), July 18, 
1984, 98 Stat. 1191; Pub. L. 98-525, title XII, Sec. 1213(a), Oct. 19, 
1984, 98 Stat. 2591; Pub. L. 99-145, title XIII, Sec. 1303(a)(14), Nov. 
8, 1985, 99 Stat. 739; Pub. L. 99-500, Sec. 101(c) [title X, 
Sec. 924(a), (b)], Oct. 18, 1986, 100 Stat. 1783-82, 1783-153, and Pub. 
L. 99-591, Sec. 101(c) [title X, Sec. 924(a), (b)], Oct. 30, 1986, 100 
Stat. 3341-82, 3341-153; Pub. L. 99-661, div. A, title III, Sec. 313(b), 
title IX, formerly title IV, Sec. 924(a), (b), Nov. 14, 1986, 100 Stat. 
3853, 3932, 3933, renumbered title IX, Pub. L. 100-26, Sec. 3(5), Apr. 
21, 1987, 101 Stat. 273; Pub. L. 100-456, div. A, title VIII, Sec. 806, 
Sept. 29, 1988, 102 Stat. 2010; Pub. L. 101-189, div. A, title VIII, 
Sec. 853(f), Nov. 29, 1989, 103 Stat. 1519; Pub. L. 101-510, div. A, 
title VIII, Sec. 802(a)-(d), Nov. 5, 1990, 104 Stat. 1588, 1589; Pub. L. 
103-160, div. A, title XI, Sec. 1182(a)(5), Nov. 30, 1993, 107 Stat. 
1771; Pub. L. 103-355, title I, Secs. 1011-1016, title IV, 
Sec. 4401(b), Oct. 13, 1994, 108 Stat. 3254-3257, 3347; Pub. L. 104-106, 
div. D, title XLI, Secs. 4103(a), 4104(a), title XLII, 
Sec. 4202(a)(2), div. E, title LVI, Sec. 5601(a), Feb. 10, 1996, 110 
Stat. 643, 644, 653, 699; Pub. L. 104-201, div. A, title VIII, 
Sec. 821(a), title X, Sec. 1074(a)(11), (b)(4)(A), Sept. 23, 1996, 110 
Stat. 2609, 2659, 2660; Pub. L. 106-65, div. A, title VIII, Sec. 821, 
Oct. 5, 1999, 113 Stat. 714.)

                                          Historical and Revision Notes
                                                    1956 Act
----------------------------------------------------------------------------------------------------------------
            Revised section                      Source (U.S. Code)               Source (Statutes at Large)
----------------------------------------------------------------------------------------------------------------
2305(a)...............................  41:152 (less clause (b)).            Feb. 19, 1948, ch. 65, Secs.
2305(b)...............................  41:152 (clause (b)).                  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, Sec.  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

    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, Sec. 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, Sec. 4103(a)(3), added subpar. 
(B). Former subpar. (B) redesignated (C).
    Pub. L. 104-106, Sec. 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, Sec. 4103(a)(2), redesignated 
subpar. (B) as (C).

[[Page 1041]]

    Pub. L. 104-106, Sec. 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, Sec. 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, Sec. 4104(a)(3), added par. (6). 
Former par. (6) redesignated (9).
    Subsec. (b)(6)(B). Pub. L. 104-201, Sec. 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, Sec. 1074(a)(11)(B), substituted 
``subparagraph (A)'' for ``this subsection'' in introductory provisions.
    Subsec. (b)(6)(D). Pub. L. 104-201, Sec. 1074(a)(11)(C), substituted 
``under subparagraph (A)'' for ``pursuant to this subsection''.
    Subsec. (b)(7), (8). Pub. L. 104-106, Sec. 4104(a)(3), added pars. 
(7) and (8).
    Subsec. (b)(9). Pub. L. 104-106, Sec. 4104(a)(2), redesignated par. 
(6) as (9).
    Subsec. (e)(3). Pub. L. 104-106, Sec. 5601(a), as amended by Pub. L. 
104-201, Sec. 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, Sec. 821(a), added subsec. (g).
    1994--Subsec. (a)(2). Pub. L. 103-355, Sec. 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, Sec. 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, Sec. 1011(a)(2), substituted 
``and subfactors'' for ``(and subfactors)''.
    Subsec. (a)(2)(B)(ii)(I). Pub. L. 103-355, Sec. 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, Sec. 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, Sec. 1011(b), added par. (4).
    Subsec. (a)(5). Pub. L. 103-355, Sec. 1012, added par. (5).
    Subsec. (b)(3). Pub. L. 103-355, Sec. 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, Sec. 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, Sec. 1014, added par. (5) and 
redesignated former par. (5) as (6).
    Subsec. (e). Pub. L. 103-355, Sec. 1015, added subsec. (e).
    Subsec. (f). Pub. L. 103-355, Sec. 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, Sec. 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, Sec. 802(a)(2), inserted 
``(and subfactors)'' after ``those factors''.
    Subsec. (a)(2(B)(ii)(I). Pub. L. 101-510, Sec. 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, Sec. 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, Sec. 802(d)(1), inserted ``and make 
an award'' after ``competitive proposals''.
    Subsec. (b)(3). Pub. L. 101-510, Sec. 802(d)(2), inserted ``in 
accordance with paragraph (1)'' after ``shall evaluate the bids''.
    Subsec. (b)(4)(A). Pub. L. 101-510, Sec. 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, Sec. 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, Sec. 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, Sec. 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, Sec. 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, Sec. 806(a)(1), added par. (4).
    1986--Subsec. (a). Pub. L. 99-500 and Pub. L. 99-591, Sec. 101(c) 
[Sec. 924(a)], Pub. L. 99-661, Sec. 924(a), amended subsec. (a) 
identically, in par. (2)(A)(i) striking out ``(including price)'' after 
``factors'' and inserting ``(including

[[Page 1042]]

price)'' and ``(including cost and price)'' and adding par. (3).
    Subsec. (b)(4)(B). Pub. L. 99-500 and Pub. L. 99-591, Sec. 101(c) 
[Sec. 924(b)], Pub. L. 99-661, Sec. 924(b), amended subpar. (B) 
identically, inserting ``cost or''.
    Subsec. (b)(4)(E). Pub. L. 99-661, Sec. 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 251 of Title 41, Public 
Contracts.
    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 251 of Title 41, Public Contracts.


                    Effective Date of 1990 Amendment

    Section 802(e) of Pub. L. 101-510 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

    Section 101(c) [title X, Sec. 924(c)] of Pub. L. 99-500 and Pub. L. 
99-591, and section 924(c) of title IX, formerly title IV, of Pub. L. 
99-661, renumbered title IX, Pub. L. 100-26, Sec. 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

    Section 1213(b) of Pub. L. 98-525 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 251 of 
Title 41, Public Contracts.


 Guidance on Use of Tiered Evaluations of Offers for Contracts and Task 
                         Orders Under Contracts

    Pub. L. 109-163, div. A, title VIII, Sec. 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, Sec. 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, Sec. 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

[[Page 1043]]

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, Sec. 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.