41 U.S.C. § 4105 — Advisory and assistance services

Page 127 TITLE 41—PUBLIC CONTRACTS § 4105 In this section, the text of section 804(d) of the Na- tional Defense Authorization Act for Fiscal Year 2000 (Pub. L. 106–65, 41:253h note) is omitted as obsolete. In subsection (a), the words ‘‘Not later than 180 days after the date of the enactment of this Act’’ and ‘‘be re- vised to’’ are omitted as obsolete. In subsection (b)(1), the words ‘‘this chapter and sec- tions 2304a to 2304d of title 10’’ are substituted for ‘‘the provisions of law referred to in that subsection’’ for clarity. Editorial Notes AMENDMENTS 2021—Subsecs. (a), (b)(1). Pub. L. 117–81, § 1702(h)(14)(A), (B)(i), substituted ‘‘chapter 245’’ for ‘‘sections 2304a to 2304d’’. Subsec. (b)(2)(B). Pub. L. 117–81, § 1702(h)(14)(B)(ii), substituted ‘‘section 3406(c)’’ for ‘‘section 2304c(b)’’. Subsec. (b)(2)(C). Pub. L. 117–81, § 1702(h)(14)(B)(iii), substituted ‘‘section 3406(e)’’ for ‘‘section 2304c(c)’’. § 4105. Advisory and assistance services (a) DEFINITION.—In this section, the term ‘‘ad- visory and assistance services’’ has the same meaning given that term in section 1105(g) of title 31. (b) AUTHORITY TO AWARD.— (1) IN GENERAL.—Subject to the requirements of this section, section 4106 of this title, and other applicable law, the head of an executive agency may enter into a task order contract for procurement of advisory and assistance services. (2) ONLY UNDER THIS SECTION.—The head of an executive agency may enter into a task order contract for advisory and assistance services only under this section. (c) CONTRACT PERIOD.—The period of a task order contract entered into under this section, including all periods of extensions of the con- tract under options, modifications, or otherwise, may not exceed 5 years unless a longer period is specifically authorized in a law that is applica- ble to the contract. (d) CONTENT OF NOTICE.—The notice required by section 1708 of this title and section 8(e) of the Small Business Act (15 U.S.C. 637(e)) shall reasonably and fairly describe the general scope, magnitude, and duration of the proposed task order contract in a manner that would reason- ably enable a potential offeror to decide whether to request the solicitation and consider submit- ting an offer. (e) REQUIRED CONTENT OF SOLICITATION AND CONTRACT.— (1) SOLICITATION.—The solicitation shall in- clude the information (regarding services) de- scribed in section 4103(b) of this title. (2) CONTRACT.—A task order contract en- tered into under this section shall contain the same information that is required by para- graph (1) to be included in the solicitation of offers for that contract. (f) MULTIPLE AWARDS.— (1) AUTHORITY TO MAKE MULTIPLE AWARDS.— On the basis of one solicitation, the head of an executive agency may award separate task order contracts under this section for the same or similar services to 2 or more sources if the solicitation states that the head of the executive agency has the option to do so. (2) CONTENT OF SOLICITATION.—In the case of a task order contract for advisory and assist- ance services to be entered into under this sec- tion, if the contract period is to exceed 3 years and the contract amount is estimated to ex- ceed $10,000,000 (including all options), the so- licitation shall— (A) provide for a multiple award author- ized under paragraph (1); and (B) include a statement that the head of the executive agency may also elect to award only one task order contract if the head of the executive agency determines in writing that only one of the offerors is capa- ble of providing the services required at the level of quality required. (3) NONAPPLICATION.—Paragraph (2) does not apply in the case of a solicitation for which the head of the executive agency concerned de- termines in writing that, because the services required under the contract are unique or highly specialized, it is not practicable to award more than one contract. (g) CONTRACT MODIFICATIONS.— (1) INCREASE IN SCOPE, PERIOD, OR MAXIMUM VALUE OF CONTRACT ONLY BY MODIFICATION OF CONTRACT.—A task order may not increase the scope, period, or maximum value of the task order contract under which the order is issued. The scope, period, or maximum value of the contract may be increased only by modifica- tion of the contract. (2) USE OF COMPETITIVE PROCEDURES.—Unless use of procedures other than competitive pro- cedures is authorized by an exception in sec- tion 3304(a) of this title and approved in ac- cordance with section 3304(e) of this title, competitive procedures shall be used for mak- ing such a modification. (3) NOTICE.—Notice regarding the modifica- tion shall be provided in accordance with sec- tion 1708 of this title and section 8(e) of the Small Business Act (15 U.S.C. 637(e)). (h) CONTRACT EXTENSIONS.— (1) WHEN CONTRACT MAY BE EXTENDED.—Not- withstanding the limitation on the contract period set forth in subsection (c) or in a solici- tation or contract pursuant to subsection (f), a contract entered into by the head of an execu- tive agency under this section may be ex- tended on a sole-source basis for a period not exceeding 6 months if the head of the execu- tive agency determines that— (A) the award of a follow-on contract has been delayed by circumstances that were not reasonably foreseeable at the time the ini- tial contract was entered into; and (B) the extension is necessary to ensure continuity of the receipt of services pending the award of, and commencement of per- formance under, the follow-on contract. (2) LIMIT OF ONE EXTENSION.—A task order contract may be extended under paragraph (1) only once and only in accordance with the limitations and requirements of this sub- section. (i) INAPPLICABILITY TO CERTAIN CONTRACTS.— This section does not apply to a contract for the acquisition of property or services that includes Page 128 TITLE 41—PUBLIC CONTRACTS § 4106 acquisition of advisory and assistance services if the head of the executive agency entering into the contract determines that, under the con- tract, advisory and assistance services are nec- essarily incident to, and not a significant com- ponent of, the contract. (Pub. L. 111–350, § 3, Jan. 4, 2011, 124 Stat. 3780.) HISTORICAL AND REVISION NOTES Revised Section Source (U.S. Code) Source (Statutes at Large) 4105(a) ........ 41:253i(i). June 30, 1949, ch. 288, title III, § 303I, as added Pub. L. 103–355, title I, § 1054(a), Oct. 13, 1994, 108 Stat. 3262. 4105(b) ........ 41:253i(a). 4105(c)(1) .... 41:253i(b). 4105(c)(2) .... 41:253i note. Pub. L. 109–364, div. A, title VIII, § 834(b), (c) (related to (b)), Oct. 17, 2006, 120 Stat. 2333. 4105(d) ........ 41:253i(c). 4105(e) ........ 41:253i(d). 4105(f) ........ 41:253i(e). 4105(g) ........ 41:253i(f). 4105(h) ....... 41:253i(g). 4105(i) ........ 41:253i(h). In subsection (b)(1), the words ‘‘(as defined in section 253k of this title)’’ are omitted as unnecessary. In subsection (c)(2)(C), the words ‘‘Committee on Oversight and Government Reform’’ are substituted for ‘‘Committee on Government Reform’’ on authority of Rule X(1)(m) of the Rules of the House of Representa- tives, adopted by House Resolution No. 6 (110th Con- gress, January 5, 2007). SENATE REVISION AMENDMENT Senate amendment to the bill effectively struck out subsec. (c)(2) and redesignated subsec. (c)(1) as (c). See S. Amdt. 4726 (111th Cong.), 156 Cong. Rec. 18683 (2010). § 4106. Orders (a) APPLICATION.—This section applies to task and delivery order contracts entered into under sections 4103 and 4105 of this title. (b) ACTIONS NOT REQUIRED FOR ISSUANCE OF ORDERS.—The following actions are not required for issuance of a task or delivery order under a task or delivery order contract: (1) A separate notice for the order under sec- tion 1708 of this title or section 8(e) of the Small Business Act (15 U.S.C. 637(e)). (2) Except as provided in subsection (c), a competition (or a waiver of competition ap- proved in accordance with section 3304(e) of this title) that is separate from that used for entering into the contract. (c) MULTIPLE AWARD CONTRACTS.—When mul- tiple contracts are awarded under section 4103(d)(1)(B) or 4105(f) of this title, all contrac- tors awarded the contracts shall be provided a fair opportunity to be considered, pursuant to procedures set forth in the contracts, for each task or delivery order in excess of the micro- purchase threshold under section 1902 of this title that is to be issued under any of the con- tracts, unless— (1) the executive agency’s need for the serv- ices or property ordered is of such unusual ur- gency that providing the opportunity to all of those contractors would result in unaccept- able delays in fulfilling that need; (2) only one of those contractors is capable of providing the services or property required at the level of quality required because the services or property ordered are unique or highly specialized; (3) the task or delivery order should be issued on a sole-source basis in the interest of economy and efficiency because it is a logical follow-on to a task or delivery order already issued on a competitive basis; or (4) it is necessary to place the order with a particular contractor to satisfy a minimum guarantee. (d) ENHANCED COMPETITION FOR ORDERS IN EX- CESS OF $5,000,000.—In the case of a task or deliv- ery order in excess of $5,000,000, the requirement to provide all contractors a fair opportunity to be considered under subsection (c) is not met un- less all such contractors are provided, at a min- imum— (1) a notice of the task or delivery order that includes a clear statement of the executive agency’s requirements; (2) a reasonable period of time to provide a proposal in response to the notice; (3) disclosure of the significant factors and subfactors, including cost or price, that the executive agency expects to consider in evalu- ating such proposals, and their relative impor- tance; (4) in the case of an award that is to be made on a best value basis, a written statement doc- umenting— (A) the basis for the award; and (B) the relative importance of quality and price or cost factors; and (5) an opportunity for a post-award debrief- ing consistent with the requirements of sec- tion 3704 of this title. (e) STATEMENT OF WORK.—A task or delivery order shall include a statement of work that clearly specifies all tasks to be performed or property to be delivered under the order. (f) PROTESTS.— (1) PROTEST NOT AUTHORIZED.—A protest is not authorized in connection with the issuance or proposed issuance of a task or delivery order except for— (A) a protest on the ground that the order increases the scope, period, or maximum value of the contract under which the order is issued; or (B) a protest of an order valued in excess of $10,000,000. (2) JURISDICTION OVER PROTESTS.—Notwith- standing section 3556 of title 31, the Comp- troller General shall have exclusive jurisdic- tion of a protest authorized under paragraph (1)(B). (g) TASK AND DELIVERY ORDER OMBUDSMAN.— (1) APPOINTMENT OR DESIGNATION AND RE- SPONSIBILITIES.—The head of each executive agency who awards multiple task or delivery order contracts under section 4103(d)(1)(B) or 4105(f) of this title shall appoint or designate a task and delivery order ombudsman who shall be responsible for reviewing complaints from the contractors on those contracts and ensur- ing that all of the contractors are afforded a fair opportunity to be considered for task or delivery orders when required under sub- section (c).