41 U.S.C. § 3704 — Post-award debriefings

Page 110 TITLE 41—PUBLIC CONTRACTS § 3704 accordance with section 3701(a) of this title and may award a contract— (1) after discussions with the offerors, pro- vided that written or oral discussions have been conducted with all responsible offerors who submit proposals within the competitive range; or (2) based on the proposals received and with- out discussions with the offerors (other than discussions conducted for the purpose of minor clarification), if, as required by section 3306(b)(2)(B)(i) of this title, the solicitation in- cluded a statement that proposals are in- tended to be evaluated, and award made, with- out discussions unless discussions are deter- mined to be necessary. (b) LIMIT ON NUMBER OF PROPOSALS.—If the contracting officer determines that the number of offerors that would otherwise be included in the competitive range under subsection (a)(1) ex- ceeds the number at which an efficient competi- tion can be conducted, the contracting officer may limit the number of proposals in the com- petitive range, in accordance with the criteria specified in the solicitation, to the greatest number that will permit an efficient competi- tion among the offerors rated most highly in ac- cordance with those criteria. (c) CRITERIA FOR AWARDING CONTRACT.—Except as otherwise provided in section 3701(b) of this title, the executive agency shall award a con- tract with reasonable promptness to the respon- sible source whose proposal is most advan- tageous to the Federal Government, considering only cost or price and the other factors included in the solicitation. (d) NOTICE OF AWARD.—The executive agency shall award the contract by transmitting, in writing or by electronic means, notice of the award to that 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. (Pub. L. 111–350, § 3, Jan. 4, 2011, 124 Stat. 3771.) HISTORICAL AND REVISION NOTES Revised Section Source (U.S. Code) Source (Statutes at Large) 3703(a) ........ 41:253b(d)(1). June 30, 1949, ch. 288, title III, § 303B(d), as added Pub. L. 98–369, title VII, § 2711(a)(2), July 18, 1984, 98 Stat. 1180; Pub. L. 103–355, title I, §§ 1061(c)(3), 1063(b), Oct. 13, 1994, 108 Stat. 3267, 3268; Pub. L. 104–106, title XLI, § 4103(b), Feb. 10, 1996, 110 Stat. 644. 3703(b) ........ 41:253b(d)(2). 3703(c) ........ 41:253b(d)(3) (1st sentence). 3703(d) ........ 41:253b(d)(3) (last sentence). § 3704. Post-award debriefings (a) REQUEST FOR DEBRIEFING.—When a con- tract is awarded by the head of an executive agency on the basis of competitive proposals, an unsuccessful offeror, on written request received by the agency within 3 days after the date on which the unsuccessful offeror receives the noti- fication of the contract award, shall be debriefed and furnished the basis for the selection decision and contract award. (b) WHEN DEBRIEFING TO BE CONDUCTED.—The executive agency shall debrief the offeror with- in, to the maximum extent practicable, 5 days after receipt of the request by the executive agency. (c) INFORMATION TO BE PROVIDED.—The de- briefing shall include, at a minimum— (1) the executive agency’s evaluation of the significant weak or deficient factors in the offeror’s offer; (2) 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 de- briefed offeror; (3) the overall ranking of all offers; (4) a summary of the rationale for the award; (5) in the case of a proposal that includes a commercial product 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 (6) reasonable responses to relevant ques- tions 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) INFORMATION NOT TO BE INCLUDED.—The debriefing may not include point-by-point com- parisons of the debriefed offeror’s offer with other offers and may not disclose any informa- tion that is exempt from disclosure under sec- tion 552(b) of title 5. (e) INCLUSION OF STATEMENT IN SOLICITATION.— Each solicitation for competitive proposals shall include a statement that information described in subsection (c) may be disclosed in post-award debriefings. (f) AFTER SUCCESSFUL PROTEST.—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 require- ment 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 the executive agency shall make available to all offerors— (1) the information provided in debriefings under this section regarding the offer of the contractor awarded the contract; and (2) the same information that would have been provided to the original offerors. (g) SUMMARY TO BE INCLUDED IN FILE.—The contracting officer shall include a summary of the debriefing in the contract file. (Pub. L. 111–350, § 3, Jan. 4, 2011, 124 Stat. 3771; Pub. L. 115–232, div. A, title VIII, § 836(b)(15), Aug. 13, 2018, 132 Stat. 1864.) HISTORICAL AND REVISION NOTES Revised Section Source (U.S. Code) Source (Statutes at Large) 3704(a) ........ 41:253b(e)(1) (1st sentence). June 30, 1949, ch. 288, title III, § 303B(e), as added Pub. L. 103–355, title I, § 1064(2), Oct. 13, 1994, 108 Stat. 3268; Pub. L. 104–106, title XLI, § 4104(b)(1), Feb. 10, 1996, 110 Stat. 645. 3704(b) ........ 41:253b(e)(1) (last sentence). Page 111 TITLE 41—PUBLIC CONTRACTS § 3708 HISTORICAL AND REVISION NOTES—CONTINUED Revised Section Source (U.S. Code) Source (Statutes at Large) 3704(c) ........ 41:253b(e)(2). 3704(d) ........ 41:253b(e)(3). 3704(e) ........ 41:253b(e)(4). 3704(f) ........ 41:253b(e)(5). 3704(g) ........ 41:253b(g) (related to 41:253b(e)). June 30, 1949, ch. 288, title III, § 303B(g) (related to § 303B(e)), as added Pub. L. 104–106, title XLI, § 4104(b)(3), Feb. 10, 1996, 110 Stat. 645. Editorial Notes AMENDMENTS 2018—Subsec. (c)(5). Pub. L. 115–232 substituted ‘‘com- mercial product’’ for ‘‘commercial item’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2018 AMENDMENT Amendment by Pub. L. 115–232 effective Jan. 1, 2020, subject to a savings provision, see section 836(h) of Pub. L. 115–232, set out as an Effective Date of 2018 Amend- ment; Savings Provision note under section 453b of Title 6, Domestic Security. § 3705. Pre-award debriefings (a) REQUEST FOR DEBRIEFING.—When the con- tracting officer excludes an offeror submitting a competitive proposal from the competitive range (or otherwise excludes that offeror from further consideration prior to the final source selection decision), the excluded offeror may re- quest in writing, within 3 days after the date on which the excluded offeror receives notice of its exclusion, a debriefing prior to award. (b) WHEN DEBRIEFING TO BE CONDUCTED.—The contracting officer shall make every effort to debrief the unsuccessful offeror as soon as prac- ticable but may refuse the request for a debrief- ing if it is not in the best interests of the Fed- eral Government to conduct a debriefing at that time. (c) PRECONDITION FOR POST-AWARD DEBRIEF- ING.—The contracting officer is required to de- brief an excluded offeror in accordance with sec- tion 3704 of this title only if that offeror re- quested and was refused a pre-award debriefing under subsections (a) and (b). (d) INFORMATION TO BE PROVIDED.—The de- briefing conducted under this section shall in- clude— (1) the executive agency’s evaluation of the significant elements in the offeror’s offer; (2) a summary of the rationale for the offeror’s exclusion; and (3) reasonable responses to relevant ques- tions 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. (e) INFORMATION NOT TO BE DISCLOSED.—The debriefing conducted pursuant to this section 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. (f) SUMMARY TO BE INCLUDED IN FILE.—The contracting officer shall include a summary of the debriefing in the contract file. (Pub. L. 111–350, § 3, Jan. 4, 2011, 124 Stat. 3772.) HISTORICAL AND REVISION NOTES Revised Section Source (U.S. Code) Source (Statutes at Large) 3705(a) ........ 41:253b(f)(1) (1st sen- tence). June 30, 1949, ch. 288, title III, § 303B(f), (g) (related to § 303B(f)), as added Pub. L. 104–106, title XLI, § 4104(b)(3), Feb. 10, 1996, 110 Stat. 645. 3705(b) ........ 41:253b(f)(1) (last sentence). 3705(c) ........ 41:253b(f)(2). 3705(d) ........ 41:253b(f)(3). 3705(e) ........ 41:253b(f)(4). 3705(f) ........ 41:253b(g) (related to 41:253b(f)). § 3706. Encouragement of alternative dispute res- olution The Federal Acquisition Regulation shall in- clude a provision encouraging the use of alter- native dispute resolution techniques to provide informal, expeditious, and inexpensive proce- dures for an offeror to consider using before fil- ing a protest, prior to the award of a contract, of the exclusion of the offeror from the competi- tive range (or otherwise from further consider- ation) for that contract. (Pub. L. 111–350, § 3, Jan. 4, 2011, 124 Stat. 3773.) HISTORICAL AND REVISION NOTES Revised Section Source (U.S. Code) Source (Statutes at Large) 3706 ............ 41:253b(h). June 30, 1949, ch. 288, title III, § 303B(h), as added Pub. L. 104–106, title XLI, § 4104(b)(3), Feb. 10, 1996, 110 Stat. 645. § 3707. Antitrust violations If the agency head considers that a bid or pro- posal evidences a violation of the antitrust laws, the agency head shall refer the bid or proposal to the Attorney General for appropriate action. (Pub. L. 111–350, § 3, Jan. 4, 2011, 124 Stat. 3773.) HISTORICAL AND REVISION NOTES Revised Section Source (U.S. Code) Source (Statutes at Large) 3707 ............ 41:253b(i). June 30, 1949, ch. 288, title III, § 303B(i), formerly § 303B(e), as added Pub. L. 98–369, title VII, § 2711(a)(2), July 18, 1984, 98 Stat. 1180; redesignated as § 303B(f), Pub. L. 103–355, title I, § 1064(1), Oct. 13, 1994, 108 Stat. 3268; redes- ignated as § 303B(i), Pub. L. 104–106, title XLI, § 4104(b)(2), Feb. 10, 1996, 110 Stat. 645. § 3708. Protests (a) PROTEST FILE.— (1) ESTABLISHMENT AND ACCESS.—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 sub- chapter V of chapter 35 of title 31, and an ac- tual or prospective offeror requests, a file of the protest shall be established by the pro- curing activity and reasonable access shall be provided to actual or prospective offerors.