10 U.S.C. § 3303 — Competitive proposals

Page 2462 TITLE 10—ARMED FORCES § 3302 ‘‘(b) ELEMENTS.—The strategy required by subsection (a) shall, at a minimum— ‘‘(1) establish standards for the timeliness and com- pleteness of past performance submissions for pur- poses of databases described in subsection (a); ‘‘(2) assign responsibility and management account- ability for the completeness of past performance sub- missions for such purposes; and ‘‘(3) ensure that past performance submissions for such purposes are consistent with award fee evalua- tions in cases where such evaluations have been con- ducted. ‘‘(c) CONTRACTOR COMMENTS.—Not later than 180 days after the date of the enactment of this Act [Dec. 31, 2011], the Under Secretary of Defense for Acquisition and Sustainment shall revise the Defense Supplement to the Federal Acquisition Regulation to require the following: ‘‘(1) That affected contractors are provided, in a timely manner, information on contractor perform- ance to be included in past performance databases in accordance with subsection (a). ‘‘(2) That such contractors are afforded up to 14 cal- endar days, from the date of delivery of the informa- tion provided in accordance with paragraph (1), to submit comments, rebuttals, or additional informa- tion pertaining to past performance for inclusion in such databases. ‘‘(3) That agency evaluations of contractor past performance, including any information submitted under paragraph (2), are included in the relevant past performance database not later than the date that is 14 days after the date of delivery of the information provided in accordance with paragraph (1). ‘‘(d) CONSTRUCTION.—Nothing in this section shall be construed to prohibit a contractor from submitting comments, rebuttals, or additional information per- taining to past performance after the period described in subsection (c)(2) has elapsed or to prohibit a con- tractor from challenging a past performance evaluation in accordance with applicable laws, regulations, or pro- cedures. ‘‘(e) COMPTROLLER GENERAL REPORT.—Not later than 18 months after the date of the enactment of this Act [Dec. 31, 2011], the Comptroller General of the United States shall submit to the congressional defense com- mittees [Committees on Armed Services and Appro- priations of the Senate and the House of Representa- tives] a report on the actions taken by the Under Sec- retary of Defense for Acquisition and Sustainment pur- suant to this section, including an assessment of the extent to which such actions have achieved the objec- tives of this section.’’ § 3302. Sealed bids (a) OPENING OF BIDS.—Sealed bids shall be opened publicly at the time and place stated in the solicitation. (b) CRITERIA FOR AWARDING CONTRACT.—The head of the agency shall evaluate the bids in ac- cordance with section 3301(a) of this title with- out discussions with the bidders and, except as provided in section 3301(b) of this title, shall award a contract with reasonable promptness to the responsible bidder whose bid conforms to the solicitation and is most advantageous to the United States, considering only price and the other price-related factors included in the solici- tation. (c) NOTICE OF AWARD.—The award of a contract shall be made by transmitting, in writing or by electronic means, notice of the award to the suc- cessful bidder. Within three days after the date of contract award, the head of the agency shall notify, in writing or by electronic means, each bidder not awarded the contract that the con- tract has been awarded. (Added and amended Pub. L. 116–283, div. A, title XVIII, § 1816(c)(2)(B), (4), Jan. 1, 2021, 134 Stat. 4182.) Editorial Notes CODIFICATION The text of subsec. (b)(3) of section 2305 of this title, which was transferred to this section and amended by Pub. L. 116–283, § 1816(c)(1), (2)(B), (4) was based on Pub. L. 98–369, div. B, title VII, § 2723(b), July 18, 1984, 98 Stat. 1192; Pub. L. 101–510, div. A, title VIII, § 802(d)(2), Nov. 5, 1990, 104 Stat. 1589; Pub. L. 103–355, title I, § 1013(a), Oct. 13, 1994, 108 Stat. 3255. PRIOR PROVISIONS A prior section 3302, act Aug. 10, 1956, ch. 1041, 70A Stat. 187, related to promotion to captain, major, or lieutenant colonel of commissioned officers of Medical Corps, Dental Corps, and Veterinary Corps upon exam- ination of professional fitness and effect upon failure of promotion, prior to repeal by Pub. L. 96–513, title II, § 204, title VII, § 701, Dec. 12, 1980, 94 Stat. 2880, 2955, ef- fective Sept. 15, 1981. See sections 631 and 632 of this title. AMENDMENTS 2021—Subsec. (a). Pub. L. 116–283, § 1816(c)(4)(A), (C), redesignated subsec. (b)(3) of section 2305 of this title as subsec. (a) of this section and inserted heading. Former second and third sentences of subsec. (a) designated subsecs. (b) and (c), respectively. Subsec (b). Pub. L. 116–283, § 1816(c)(4)(B), (D), des- ignated second sentence of subsec. (a) as subsec. (b) of this section, inserted heading, and substituted ‘‘section 3301(a) of this title’’ for ‘‘paragraph (1)’’ and ‘‘section 3301(b) of this title’’ for ‘‘paragraph (2)’’. Subsec. (c). Pub. L. 116–283, § 1816(c)(4)(B), (E), des- ignated third sentence of subsec. (a) as subsec. (c) of this section and inserted heading. 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. § 3303. Competitive proposals (a) EVALUATION AND AWARD.—The head of an agency shall evaluate competitive proposals in accordance with section 3301(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, without discussions with the offerors (other than dis- cussions conducted for the purpose of minor clarification) provided that 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- Page 2463 TITLE 10—ARMED FORCES § 3304 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 such criteria. (c) CRITERIA FOR AWARDING CONTRACT.—Except as provided in section 3301(b) of this title, the head of the agency shall award a contract with reasonable promptness to the responsible source whose proposal is most advantageous to the United States, considering only cost or price and the other factors included in the solicita- tion. (d) NOTICE OF AWARD.—The head of the agency shall award the contract by transmitting, in writing or by electronic means, notice of the award to such source and, within three days after the date of contract award, shall notify, in writing or by electronic means, all other offerors of the rejection of their proposals. (e) EXCEPTION FOR PERISHABLE SUBSISTENCE ITEMS.—Subsections (c) and (d) do not apply with respect to the award of a contract for the acquisition of perishable subsistence items. (Added and amended Pub. L. 116–283, div. A, title XVIII, § 1816(c)(2)(C), (5), Jan. 1, 2021, 134 Stat. 4182, 4183; Pub. L. 117–81, div. A, title XVII, § 1701(b)(6)(A), Dec. 27, 2021, 135 Stat. 2133.) Editorial Notes CODIFICATION The text of subsec. (b)(4) of section 2305 of this title, which was transferred to this section and amended by Pub. L. 116–283, § 1816(c)(1), (2)(C), (5) was based on Pub. L. 98–369, div. B, title VII, § 2723(b), July 18, 1984, 98 Stat. 1192; Pub. L. 99–500, § 101(c) [title X, § 924(b)], Oct. 18, 1986, 100 Stat. 1783–82, 1783–153, and Pub. L. 99–591, § 101(c) [title X, § 924(b)], Oct. 30, 1986, 100 Stat. 3341–82, 3341–153; Pub. L. 99–661, div. A, title III, § 313(b), title IX, formerly title IV, § 924(b), Nov. 14, 1986, 100 Stat. 3853, 3933, renumbered title IX, Pub. L. 100–26, § 3(5), Apr. 21, 1987, 101 Stat. 273; Pub. L. 101–189, div. A, title VIII, § 853(f), Nov. 29, 1989, 103 Stat. 1519; Pub. L. 101–510, div. A, title VIII, § 802(d), Nov. 5, 1990, 104 Stat. 1589; Pub. L. 103–355, title I, § 1013(b), Oct. 13, 1994, 108 Stat. 3255; Pub. L. 104–106, div. D, title XLI, § 4103(a), Feb. 10, 1996, 110 Stat. 643. PRIOR PROVISIONS A prior section 3303, act Aug. 10, 1956, ch. 1041, 70A Stat. 188; Pub. L. 86–616, § 1(3), July 12, 1960, 74 Stat. 386; Pub. L. 87–509, § 4(a), June 28, 1962, 76 Stat. 121, related to effect of failure of a promotion-list officer consid- ered for promotion to grade of captain, major, or lieu- tenant colonel under section 3299 of this title to be rec- ommended for promotion, which officer was to be known as a ‘‘deferred officer’’, 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 sections 631 and 632 of this title. AMENDMENTS 2021—Pub. L. 116–283, § 1816(c)(5)(A), transferred sub- sec. (b)(4) of section 2305 of this title to this section and struck out par. (4) designation at beginning. Subsec. (a). Pub. L. 116–283, § 1816(c)(5)(B), (D), redes- ignated subpar. (A) of former section 2305(b)(4) of this title as subsec. (a) of this section, inserted heading, substituted ‘‘section 3301(a) of this title’’ for ‘‘para- graph (1)’’ in introductory provisions, and redesignated cls. (i) and (ii) as pars. (1) and (2), respectively. Subsec. (b). Pub. L. 116–283, § 1816(c)(5)(B), (E), redesig- nated subpar. (B) of former section 2305(b)(4) of this title as subsec. (b) of this section, inserted heading, and substituted ‘‘subsection (a)(1)’’ for ‘‘subparagraph (A)(i)’’. Subsec. (c). Pub. L. 116–283, § 1816(c)(5)(B), (F), redesig- nated subpar. (C) of former section 2305(b)(4) of this title as subsec. (c) of this section, inserted heading, and substituted ‘‘section 3301(b) of this title’’ for ‘‘para- graph (2)’’. Former second and third sentences des- ignated subsec. (d). Subsec. (d). Pub. L. 116–283, § 1816(c)(5)(C), (G), as amended and added by Pub. L. 117–81, § 1701(b)(6)(A), designated the second sentence of subsec. (c) as subsec. (d) and inserted heading. Subsec. (e). Pub. L. 116–283, § 1816(c)(5)(C), (H), as amended and added by Pub. L. 117–81, § 1701(b)(6)(A), designated the third sentence of subsec. (c) as subsec. (e), inserted heading, and substituted ‘‘Subsections (c) and (d) do not’’ for ‘‘This subparagraph does not’’. 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 Date of 2021 Amendment note preceding section 3001 of this title. PROCUREMENT OF TENTS OR OTHER TEMPORARY STRUCTURES Pub. L. 112–81, div. A, title III, § 368, Dec. 31, 2011, 125 Stat. 1381, provided that: ‘‘(a) IN GENERAL.—In procuring tents or other tem- porary structures for use by the Armed Forces, and in establishing or maintaining an alternative source for such tents and structures, the Secretary of Defense shall award contracts that provide the best value to the United States. In determining the best value to the United States under this section, the Secretary shall consider the total life-cycle costs of such tents or structures, including the costs associated with any equipment or fuel needed to heat or cool such tents or structures. ‘‘(b) INTERAGENCY PROCUREMENT.—The requirements of this section shall apply to any agency or department of the United States that procures tents or other tem- porary structures on behalf of the Department of De- fense.’’ § 3304. Post-award debriefings (a) REQUEST FOR DEBRIEFING.—When a con- tract is awarded by the head of an agency on the basis of competitive proposals, an unsuccessful offeror, upon written request received by the agency within 3 days after the date on which the unsuccessful offeror receives the notification of the contract award, shall be debriefed and fur- nished the basis for the selection decision and contract award. (b) WHEN DEBRIEFING TO BE CONDUCTED.—The head of the agency shall debrief the offeror with- in, to the maximum extent practicable, five days after receipt of the request by the agency. (c) INFORMATION TO BE PROVIDED.—(1) The de- briefing shall include, at a minimum— (A) the agency’s evaluation of the signifi- cant weak or deficient factors in the offeror’s offer;