10 U.S.C. § 3305 — Pre-award debriefings

Page 2465 TITLE 10—ARMED FORCES § 3305 ‘‘(1) In the case of a contract award in excess of $100,000,000, a requirement for disclosure of the agen- cy’s written source selection award determination, redacted to protect the confidential and proprietary information of other offerors for the contract award, and, in the case of a contract award in excess of $10,000,000 and not in excess of $100,000,000 with a small business or nontraditional contractor, an op- tion for the small business or nontraditional con- tractor to request such disclosure. ‘‘(2) A requirement for a written or oral debriefing for all contract awards and task or delivery orders valued at $10,000,000 or higher. ‘‘(3) Provisions ensuring that both unsuccessful and winning offerors are entitled to the disclosure de- scribed in paragraph (1) and the debriefing described in paragraph (2). ‘‘(4) Robust procedures, consistent with section 2305(b)(5)(D) of title 10, United States Code [now 10 U.S.C. 3304(d)], and provisions implementing that sec- tion in the Federal Acquisition Regulation, to pro- tect the confidential and proprietary information of other offerors.’’ § 3305. 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 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. (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 Gov- ernment 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 3304 of this title only if that offeror re- quested and was refused a preaward debriefing under subsections (a) and (b). (d) INFORMATION TO BE PROVIDED.—The de- briefing conducted under subsections (a) and (b) shall include— (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 under subsections (a) and (b) 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 any debriefing conducted under this section in the contract file. (Added and amended Pub. L. 116–283, div. A, title XVIII, § 1816(c)(2)(E), (7), Jan. 1, 2021, 134 Stat. 4182, 4183; Pub. L. 117–81, div. A, title XVII, § 1701(b)(6)(B), Dec. 27, 2021, 135 Stat. 2133.) Editorial Notes CODIFICATION The text of subsec. (b)(6) of section 2305 of this title, which was transferred to this section, redesignated as subsecs. (a) to (e), and amended by Pub. L. 116–283, § 1816(c)(1), (2)(E), (7)(A), (C)–(I), was based on Pub. L. 104–106, div. D, title XLI, § 4104(a)(3), Feb. 10, 1996, 110 Stat. 644; Pub. L. 104–201, div. A, title X, § 1074(a)(11), Sept. 23, 1996, 110 Stat. 2659. The text of subsec. (b)(7) of section 2305 of this title, which was transferred to this section, redesignated as subsec. (f), and amended by Pub. L. 116–283, § 1816(c)(1), (2)(E), (7)(B), (J), was based on Pub. L. 104–106, div. D, title XLI, § 4104(a)(3), Feb. 10, 1996, 110 Stat. 644. PRIOR PROVISIONS A prior section 3305, act Aug. 10, 1956, ch. 1041, 70A Stat. 189; Pub. L. 85–155, title I, § 101(16), Aug. 21, 1957, 71 Stat. 379; Pub. L. 90–130, § 1(10)(D), (E), Nov. 8, 1967, 81 Stat. 375, related to promotion of officers in regular grade of lieutenant colonel to grade of colonel, prior to repeal by Pub. L. 96–513, title II, § 204, title VII, § 701, Dec. 12, 1980, 94 Stat. 2880, 2955, effective Sept. 15, 1981. See section 619 et seq. of this title. AMENDMENTS 2021—Pub. L. 116–283, § 1816(c)(7)(A), transferred sub- sec. (b)(6) of section 2305 of this title to this section and struck out par. (6) designation at beginning. Subsec. (a). Pub. L. 116–283, § 1816(c)(7)(C), (E), redesig- nated subpar. (A) of former section 2305(b)(6) of this title as subsec. (a) of this section and inserted heading. Former second sentence of subsec. (a) designated sub- sec. (b). Subsec. (b). Pub. L. 116–283, § 1816(c)(7)(D), (F), des- ignated second sentence of subsec. (a) as subsec. (b) of this section and inserted heading. Subsec. (c). Pub. L. 116–283, § 1816(c)(7)(B), (G), redesig- nated subpar. (B) of former section 2305(b)(6) of this title as subsec. (c) of this section, inserted heading, and substituted ‘‘section 3304 of this title’’ for ‘‘paragraph (5)’’ and ‘‘subsections (a) and (b)’’ for ‘‘subparagraph (A)’’. Subsec. (d). Pub. L. 116–283, § 1816(c)(7)(B), (H), redes- ignated subpar. (C) of former section 2305(b)(6) of this title and its cls. (i) to (iii) as subsec. (d) of this section and pars. (1) to (3), respectively, inserted heading, and substituted ‘‘subsections (a) and (b)’’ for ‘‘subparagraph (A)’’ in introductory provisions. Subsec. (e). Pub. L. 116–283, § 1816(c)(7)(B), (I), redesig- nated subpar. (D) of former section 2305(b)(6) of this title as subsec. (e) of this section, inserted heading, and substituted ‘‘subsections (a) and (b)’’ for ‘‘subparagraph (A)’’. Subsec. (f). Pub. L. 116–283, § 1816(c)(7)(B), (J), as amended by Pub. L. 117–81, § 1701(b)(6)(B), redesignated subsec. (b)(7) of section 2305 of this title as subsec. (f) of this section, inserted heading, and substituted ‘‘under this section’’ for ‘‘under paragraph (5) or (6)’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2021 AMENDMENT Amendment by Pub. L. 117–81 applicable as if in- cluded in the enactment of title XVIII of Pub. L. 116–283 as enacted, see section 1701(a)(2) of Pub. L. 117–81, set out in a note preceding section 3001 of this title and Ef- fective Date note below. EFFECTIVE DATE Section and amendment by Pub. L. 116–283 effective Jan. 1, 2022, with additional provisions for delayed im- plementation and applicability of existing law, see sec- tion 1801(d) of Pub. L. 116–283, set out as an Effective Page 2466 TITLE 10—ARMED FORCES § 3306 Date of 2021 Amendment note preceding section 3001 of this title. § 3306. 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. (Added and amended Pub. L. 116–283, div. A, title XVIII, § 1816(c)(2)(F), (8), Jan. 1, 2021, 134 Stat. 4182, 4185.) Editorial Notes CODIFICATION The text of subsec. (b)(8) of this title, which was transferred to this section and amended by Pub. L. 116–283, § 1816(c)(1), (2)(F), (8), was based on Pub. L. 104–106, div. D, title XLI, § 4104(a)(3), Feb. 10, 1996, 110 Stat. 644. PRIOR PROVISIONS A prior section 3306, act Aug. 10, 1956, ch. 1041, 70A Stat. 190, related to promotion of officers in regular grade of colonel to grade of brigadier general, prior to repeal by Pub. L. 96–513, title II, § 204, title VII, § 701, Dec. 12, 1980, 94 Stat. 2880, 2955, effective Sept. 15, 1981. See section 619 et seq. of this title. AMENDMENTS 2021—Pub. L. 116–283, § 1816(c)(8), transferred subsec. (b)(8) of section 2305 of this title to this section and struck out par. (8) designation at beginning. Statutory Notes and Related Subsidiaries EFFECTIVE DATE Section and amendment by Pub. L. 116–283 effective Jan. 1, 2022, with additional provisions for delayed im- plementation and applicability of existing law, see sec- tion 1801(d) of Pub. L. 116–283, set out as an Effective Date of 2021 Amendment note preceding section 3001 of this title. § 3307. Antitrust violations If the head of an agency considers that a bid or proposal evidences a violation of the anti- trust laws, he shall refer the bid or proposal to the Attorney General for appropriate action. (Added and amended Pub. L. 116–283, div. A, title XVIII, § 1816(c)(2)(G), (9), Jan. 1, 2021, 134 Stat. 4182, 4185.) Editorial Notes CODIFICATION The text of subsec. (b)(9) of section 2305 of this title, which was transferred to this section and amended by Pub. L. 116–283, § 1816(c)(1), (2)(G), (9), was based on Pub. L. 98–369, div. B, title VII, § 2723(b), July 18, 1984, 98 Stat. 1192; Pub. L. 99–145, title XIII, § 1303(a)(14), Nov. 8, 1985, 99 Stat. 739; Pub. L. 103–355, title I, § 1014(1), Oct. 13, 1994, 108 Stat. 3255; Pub. L. 104–106, div. D, title XLI, § 4104(a), Feb. 10, 1996, 110 Stat. 644. PRIOR PROVISIONS A prior section 3307, act Aug. 10, 1956, ch. 1041, 70A Stat. 191, related to promotion of officers in regular grade of brigadier general to grade of major general, prior to repeal by Pub. L. 96–513, title II, § 204, title VII, § 701, Dec. 12, 1980, 94 Stat. 2880, 2955, effective Sept. 15, 1981. See section 619 et seq. of this title. AMENDMENTS 2021—Pub. L. 116–283, § 1816(c)(9), transferred subsec. (b)(9) of section 2305 of this title to this section and struck out par. (9) designation at beginning. Statutory Notes and Related Subsidiaries EFFECTIVE DATE Section and amendment by Pub. L. 116–283 effective Jan. 1, 2022, with additional provisions for delayed im- plementation and applicability of existing law, see sec- tion 1801(d) of Pub. L. 116–283, set out as an Effective Date of 2021 Amendment note preceding section 3001 of this title. § 3308. 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 agency, a protest is filed pursuant to the procedures in subchapter V of chapter 35 of title 31 and an actual or prospec- tive offeror so requests, a file of the protest shall be established by the procuring activity and reasonable access shall be provided to ac- tual or prospective offerors. (2) REDACTED INFORMATION.—Information ex- empt from disclosure under section 552 of title 5 may be redacted in a file established pursu- ant to paragraph (1) unless an applicable pro- tective order provides otherwise. (b) AGENCY ACTIONS ON PROTESTS.—If, in con- nection with a protest, the head of an agency de- termines 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 subpara- graphs (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. (Added and amended Pub. L. 116–283, div. A, title XVIII, § 1816(d), (e), Jan. 1, 2021, 134 Stat. 4185.) Editorial Notes CODIFICATION The text of subsec. (e) of section 2305 of this title, which was transferred to this section, redesignated as subsec. (a), and amended by Pub. L. 116–283, § 1816(e), was based on Pub. L. 103–355, title I, § 1015, Oct. 13, 1994, 108 Stat. 3256; Pub. L. 104–106, div. E, title LVI, § 5601(a), Feb. 10, 1996, 110 Stat. 699; Pub. L. 104–201, div. A, title X, § 1074(b)(4)(A), Sept. 23, 1996, 110 Stat. 2660. The text of subsec. (f) of section 2305 of this title, which was transferred to this section, redesignated as subsec. (b), and amended by Pub. L. 116–283, § 1816(e)(1), was based on Pub. L. 103–355, title I, § 1016, Oct. 13, 1994, 108 Stat. 3257. PRIOR PROVISIONS A prior section 3308, act Aug. 10, 1956, ch. 1041, 70A Stat. 192, related to effect of removal from rec- ommended list by President of name of any promotion- list officer or brigadier general of Regular Army who in President’s opinion is not qualified for promotion or