41 U.S.C. § 3301 — Full and open competition

Page 87 TITLE 41—PUBLIC CONTRACTS § 3301 1 See References in Text note below. experiment on a subject of science or art of sig- nificance to an executive agency and to report on those matters to Congress or an agency of the Federal Government. (Pub. L. 111–350, § 3, Jan. 4, 2011, 124 Stat. 3744.) HISTORICAL AND REVISION NOTES Revised Section Source (U.S. Code) Source (Statutes at Large) 3105(a) ........ 41:253(i)(1). June 30, 1949, ch. 288, title III, § 303(i), as added Pub. L. 103–355, title VII, § 7203(b)(1)(B), Oct. 13, 1994, 108 Stat. 3380; Pub. L. 104–106, title XLI, § 4101(b)(1), Feb. 10, 1996, 110 Stat. 642. 41:266(a). June 30, 1949, ch. 288, title III, § 316, as added Pub. L. 103–355, title VII, § 7203(b)(2), Oct. 13, 1994, 108 Stat. 3381; Pub. L. 104–106, title XLIII, § 4321(e)(9), Feb. 10, 1996, 110 Stat. 675. 3105(b) ........ 41:253(i)(3). 41:266(c). 3105(c) ........ 41:253(i)(2). 41:266(b). 3105(d) ........ 41:253(i)(4). 41:266(d). § 3106. Erection, repair, or furnishing of public buildings and improvements not authorized, and certain contracts not permitted, by this division This division does not— (1) authorize the erection, repair, or fur- nishing of a public building or public improve- ment; or (2) permit a contract for the construction or repair of a building, road, sidewalk, sewer, main, or similar item using procedures other than sealed-bid procedures under section 3301(b)(1)(A) of this title if the conditions set forth in section 3301(b)(1)(A) of this title apply or the contract is to be performed outside the United States. (Pub. L. 111–350, § 3, Jan. 4, 2011, 124 Stat. 3745.) HISTORICAL AND REVISION NOTES Revised Section Source (U.S. Code) Source (Statutes at Large) 3106 ............ 41:252(c)(1). June 30, 1949, ch. 288, title III, § 302(c)(1), 63 Stat. 393; July 12, 1952, ch. 703, § 1(m), 66 Stat. 594; Pub. L. 85–800, §§ 2, 3, Aug. 28, 1958, 72 Stat. 966; Pub. L. 89–343, § 2, Nov. 8, 1965, 79 Stat. 1303; Pub. L. 89–348, § 1(2), Nov. 8, 1965, 79 Stat. 1310; Pub. L. 90–268, § 4, Mar. 16, 1968, 82 Stat. 50; Pub. L. 93–356, § 3, July 25, 1974, 88 Stat. 390; Pub. L. 98–191, § 9(a)(1), Dec. 1, 1983, 97 Stat. 1331; Pub. L. 98–369, div. B, title VII, § 2714(a)(1)(B), July 18, 1984, 98 Stat. 1184. In paragraph (1), the words ‘‘but such authorization shall be required in the same manner as heretofore’’ are omitted as unnecessary. CHAPTER 33—PLANNING AND SOLICITATION Sec. 3301. Full and open competition. 3302. Requirements for purchase of property and services pursuant to multiple award con- tracts. Sec. 3303. Exclusion of particular source or restriction of solicitation to small business concerns. 3304. Use of noncompetitive procedures. 3305. Simplified procedures for small purchases. 3306. Planning and solicitation requirements. 3307. Preference for commercial products and com- mercial services. 3308. Planning for future competition in contracts for major systems. 3309. Design-build selection procedures. 3310. Quantities to order. 3311. Qualification requirement. 3312. Database on price trends of items and serv- ices under Federal contracts. Editorial Notes AMENDMENTS 2018—Pub. L. 115–232, div. A, title VIII, § 836(b)(10)(B)(ii), Aug. 13, 2018, 132 Stat. 1863, sub- stituted ‘‘Preference for commercial products and com- mercial services’’ for ‘‘Preference for commercial items’’ in item 3307. 2013—Pub. L. 112–239, div. A, title VIII, § 851(a)(2), Jan. 2, 2013, 126 Stat. 1855, added item 3312. § 3301. Full and open competition (a) IN GENERAL.—Except as provided in sec- tions 3303, 3304(a), and 3305 of this title and ex- cept in the case of procurement procedures oth- erwise expressly authorized by statute, an exec- utive agency in conducting a procurement for property or services shall— (1) obtain full and open competition through the use of competitive procedures in accord- ance with the requirements of this division and the Federal Acquisition Regulation; and (2) use the competitive procedure or com- bination of competitive procedures that is best suited under the circumstances of the procure- ment. (b) APPROPRIATE COMPETITIVE PROCEDURES.— (1) USE OF SEALED BIDS.—In determining the competitive procedures appropriate under the circumstance, an executive agency shall— (A) solicit sealed bids if— (i) time permits the solicitation, submis- sion, and evaluation of sealed bids; (ii) the award will be made on the basis of price and other price-related factors; (iii) it is not necessary to conduct dis- cussions with the responding sources about their bids; and (iv) there is a reasonable expectation of receiving more than one sealed bid; or (B) request competitive proposals if sealed bids are not appropriate under subparagraph (A). (2) SEALED BID NOT REQUIRED.—Paragraph (1)(A) does not require the use of sealed-bid procedures in cases in which section 204(e) 1 of title 23 applies. (c) EFFICIENT FULFILLMENT OF GOVERNMENT REQUIREMENTS.—The Federal Acquisition Regu- lation shall ensure that the requirement to ob- tain full and open competition is implemented in a manner that is consistent with the need to efficiently fulfill the Federal Government’s re- quirements. Page 88 TITLE 41—PUBLIC CONTRACTS § 3302 (Pub. L. 111–350, § 3, Jan. 4, 2011, 124 Stat. 3745.) HISTORICAL AND REVISION NOTES Revised Section Source (U.S. Code) Source (Statutes at Large) 3301(a) ........ 41:253(a)(1). June 30, 1949, ch. 288, title III, § 303(a), 63 Stat. 395; July 12, 1952, ch. 703, § 1(m), 66 Stat. 594; Pub. L. 90–268, § 2, Mar. 16, 1968, 82 Stat. 49; Pub. L. 98–369, title VII, § 2711(a)(1), July 18, 1984, 98 Stat. 1175; Pub. L. 103–355, title I, § 1051(1), Oct. 13, 1994, 108 Stat. 3260. 3301(b)(1) .... 41:253(a)(2). 3301(b)(2) .... 41:252(c)(2). June 30, 1949, ch. 288, title III, § 302(c)(2), as added Pub. L. 98–369, title VII, § 2714(a)(1)(B), July 18, 1984, 98 Stat. 1184. 3301(c) ........ 41:253(h). June 30, 1949, ch. 288, title III, § 303(h), as added Pub. L. 104–106, title XLI, § 4101(b)(2), Feb. 10, 1996, 110 Stat. 642. Editorial Notes REFERENCES IN TEXT Section 204 of title 23, referred to in subsec. (b)(2), was repealed and a new section 204 enacted by Pub. L. 112–141, div. A, title I, § 1119(a), July 6, 2012, 126 Stat. 473, 489. Statutory Notes and Related Subsidiaries REGULATIONS Pub. L. 113–291, div. A, title VIII, § 836, Dec. 19, 2014, 128 Stat. 3449, provided that: ‘‘Not later than 180 days after the date of the enactment of this Act [Dec. 19, 2014], the Administrator for Federal Procurement Pol- icy shall prescribe regulations providing that when the Federal Government makes a purchase of services and supplies offered under the Federal Strategic Sourcing Initiative (managed by the Office of Federal Procure- ment Policy) but such Initiative is not used, the con- tract file for the purchase shall include a brief analysis of the comparative value, including price and nonprice factors, between the services and supplies offered under such Initiative and services and supplies offered under the source or sources used for the purchase.’’ CONSTRUCTION Pub. L. 98–369, div. B, title VII, § 2711(c), July 18, 1984, 98 Stat. 1181, provided that: ‘‘The amendments made by this section [see Tables for classification] do not super- sede or affect the provisions of section 8(a) of the Small Business Act (15 U.S.C. 637(a)).’’ PILOT PROGRAMS FOR AUTHORITY TO ACQUIRE INNOVA- TIVE COMMERCIAL ITEMS USING GENERAL SOLICITA- TION COMPETITIVE PROCEDURES Pub. L. 114–328, div. A, title VIII, § 880, Dec. 23, 2016, 130 Stat. 2313, as amended by Pub. L. 115–232, div. A, title VIII, § 836(f)(10), Aug. 13, 2018, 132 Stat. 1872; Pub. L. 117–263, div. G, title LXXII, § 7227(a), Dec. 23, 2022, 136 Stat. 3675, provided that: ‘‘(a) AUTHORITY.— ‘‘(1) IN GENERAL.—The head of an agency may carry out a pilot program, to be known as a ‘commercial solutions opening pilot program’, under which inno- vative commercial products may be acquired through a competitive selection of proposals resulting from a general solicitation and the peer review of such pro- posals. ‘‘(2) HEAD OF AN AGENCY.—In this section, the term ‘head of an agency’ means the following: ‘‘(A) The Secretary of Homeland Security. ‘‘(B) The Administrator of General Services. ‘‘(3) APPLICABILITY OF SECTION.—This section ap- plies to the following agencies: ‘‘(A) The Department of Homeland Security. ‘‘(B) The General Services Administration. ‘‘(b) TREATMENT AS COMPETITIVE PROCEDURES.—Use of general solicitation competitive procedures for the pilot program under subsection (a) shall be considered, in the case of the Department of Homeland Security and the General Services Administration, to be use of competitive procedures for purposes of division C of [subtitle I of] title 41, United States Code (as defined in section 152 of such title). ‘‘(c) LIMITATION.—The head of an agency may not enter into a contract under the pilot program for an amount in excess of $25,000,000. ‘‘(d) GUIDANCE.—The head of an agency shall issue guidance for the implementation of the pilot program under this section within that agency. Such guidance shall be issued in consultation with the Office of Man- agement and Budget and shall be posted for access by the public. ‘‘(e) REPORT REQUIRED.— ‘‘(1) IN GENERAL.—Not later than three years after the date of the enactment of this Act [Dec. 23, 2016], the head of an agency shall submit to the congres- sional committees specified in paragraph (3) a report on the activities the agency carried out under the pilot program. ‘‘(2) ELEMENTS OF REPORT.—Each report under this subsection shall include the following: ‘‘(A) An assessment of the impact of the pilot pro- gram on competition. ‘‘(B) A comparison of acquisition timelines for— ‘‘(i) procurements made using the pilot pro- gram; and ‘‘(ii) procurements made using other competi- tive procedures that do not use general solicita- tions. ‘‘(C) A recommendation on whether the authority for the pilot program should be made permanent. ‘‘(3) SPECIFIED CONGRESSIONAL COMMITTEES.—The congressional committees specified in this paragraph are the Committee on Homeland Security and Gov- ernmental Affairs of the Senate and the Committee on Oversight and Government Reform [now Com- mittee on Oversight and Accountability] of the House of Representatives. ‘‘(f) DEFINITIONS.—In this section— ‘‘(1) the term ‘commercial product’— ‘‘(A) has the meaning given the term ‘commercial item’ in section 2.101 of the Federal Acquisition Regulation; and ‘‘(B) includes a commercial product or a commer- cial service, as defined in sections 103 and 103a, re- spectively, of title 41, United States Code; and ‘‘(2) the term ‘innovative’ means— ‘‘(A) any new technology, process, or method, in- cluding research and development; or ‘‘(B) any new application of an existing tech- nology, process, or method. ‘‘(g) TERMINATION.—The authority to enter into a contract under a pilot program under this section ter- minates on September 30, 2027.’’ GOVERNMENTWIDE SOFTWARE PURCHASING PROGRAM Pub. L. 113–291, div. A, title VIII, § 837, Dec. 19, 2014, 128 Stat. 3450, provided that: ‘‘(a) IN GENERAL.—The Administrator of General Services shall identify and develop a strategic sourcing initiative to enhance Governmentwide acquisition, shared use, and dissemination of software, as well as compliance with end user license agreements. ‘‘(b) GOVERNMENTWIDE USER LICENSE AGREEMENT.— The Administrator, in developing the initiative under subsection (a), shall allow for the purchase of a license agreement that is available for use by all Executive agencies (as defined in section 105 of title 5, United States Code) as one user to the maximum extent prac- ticable and as appropriate.’’ § 3302. Requirements for purchase of property and services pursuant to multiple award con- tracts (a) DEFINITIONS.—In this section: