41 U.S.C. § 4104 — Guidance on use of task and delivery

Page 126 TITLE 41—PUBLIC CONTRACTS § 4104 (3) SINGLE SOURCE AWARD FOR TASK OR DELIV- ERY ORDER CONTRACTS EXCEEDING $100,000,000.— (A) WHEN SINGLE AWARDS ARE ALLOWED.— No task or delivery order contract in an amount estimated to exceed $100,000,000 (in- cluding all options) may be awarded to a sin- gle source unless the head of the executive agency determines in writing that— (i) the task or delivery orders expected under the contract are so integrally re- lated that only a single source can reason- ably perform the work; (ii) the contract provides only for firm, fixed price task orders or delivery orders for— (I) products for which unit prices are established in the contract; or (II) services for which prices are estab- lished in the contract for the specific tasks to be performed; (iii) only one source is qualified and ca- pable of performing the work at a reason- able price to the Federal Government; or (iv) because of exceptional cir- cumstances, it is necessary in the public interest to award the contract to a single source. (B) NOTIFICATION OF CONGRESS.—The head of the executive agency shall notify Con- gress within 30 days after any determination under subparagraph (A)(iv). (4) REGULATIONS.—Regulations imple- menting this subsection shall establish— (A) a preference for awarding, to the max- imum extent practicable, multiple task or delivery order contracts for the same or similar services or property under paragraph (1)(B); and (B) criteria for determining when award of multiple task or delivery order contracts would not be in the best interest of the Fed- eral Government. (e) CONTRACT MODIFICATIONS.—A task or deliv- ery order may not increase the scope, period, or maximum value of the task or delivery order contract under which the order is issued. The scope, period, or maximum value of the contract may be increased only by modification of the contract. (f) INAPPLICABILITY TO CONTRACTS FOR ADVI- SORY AND ASSISTANCE SERVICES.—Except as oth- erwise specifically provided in section 4105 of this title, this section does not apply to a task or delivery order contract for the acquisition of advisory and assistance services (as defined in section 1105(g) of title 31). (g) RELATIONSHIP TO OTHER CONTRACTING AU- THORITY.—Nothing in this section may be con- strued to limit or expand any authority of the head of an executive agency or the Adminis- trator of General Services to enter into sched- ule, multiple award, or task or delivery order contracts under any other provision of law. (Pub. L. 111–350, § 3, Jan. 4, 2011, 124 Stat. 3778.) HISTORICAL AND REVISION NOTES Revised Section Source (U.S. Code) Source (Statutes at Large) 4103 ............ 41:253h. June 30, 1949, ch. 288, title III, § 303H, as added Pub. L. 103–355, title I, § 1054(a), Oct. 13, 1994, 108 Stat. 3261; Pub. L. 110–181, title VIII, § 843(b)(1), Jan. 28, 2008, 122 Stat. 238. In subsection (a), the words ‘‘(as defined in section 253k of this title)’’ are omitted as unnecessary. § 4104. Guidance on use of task and delivery order contracts (a) GUIDANCE IN FEDERAL ACQUISITION REGULA- TION.—The Federal Acquisition Regulation issued in accordance with sections 1121(b) and 1303(a)(1) of this title shall provide guidance to agencies on the appropriate use of task and de- livery order contracts in accordance with this chapter and chapter 245 of title 10. (b) CONTENT OF REGULATIONS.—The regulations issued pursuant to subsection (a) at a minimum shall provide specific guidance on— (1) the appropriate use of Government-wide and other multiagency contracts entered into in accordance with this chapter and chapter 245 of title 10; and (2) steps that agencies should take in enter- ing into and administering multiple award task and delivery order contracts to ensure compliance with the requirement in— (A) section 11312 of title 40 for capital plan- ning and investment control in purchases of information technology products and serv- ices; (B) section 4106(c) of this title and section 3406(c) of title 10 to ensure that all contrac- tors are afforded a fair opportunity to be considered for the award of task and deliv- ery orders; and (C) section 4106(e) of this title and section 3406(e) of title 10 for a statement of work in each task or delivery order issued that clear- ly specifies all tasks to be performed or property to be delivered under the order. (c) FEDERAL SUPPLY SCHEDULES PROGRAM.— The Administrator for Federal Procurement Policy shall consult with the Administrator of General Services to assess the effectiveness of the multiple awards schedule program of the General Services Administration referred to in section 152(3) of this title that is administered as the Federal Supply Schedules program. The assessment shall include examination of— (1) the administration of the program by the Administrator of General Services; and (2) the ordering and program practices fol- lowed by Federal customer agencies in using schedules established under the program. (Pub. L. 111–350, § 3, Jan. 4, 2011, 124 Stat. 3780; Pub. L. 117–81, div. A, title XVII, § 1702(h)(14), Dec. 27, 2021, 135 Stat. 2158.) HISTORICAL AND REVISION NOTES Revised Section Source (U.S. Code) Source (Statutes at Large) 4104 ............ 41:253h note. Pub. L. 106–65, div. A, title VIII, § 804, Oct. 5, 1999, 113 Stat. 704. 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