In subsection (a), the word “needed” is substituted for the words “necessary to meet the requirements”.

In subsection (b), the words “United States” are substituted for the word “Government”.

Reference to bids is omitted as surplusage (see opinion of the Judge Advocate General of the Army (JAGT 1956/9122, 21 Dec. 1956)). The word “attachments” is substituted for the words “material required”. The words “the specifications in” are inserted in the second sentence for clarity. The word “available” is omitted as covered by the word “accessible.” The words “no award may be made” are substituted for the words “and any award or awards made to any bidder in such case shall be invalidated and rejected”.

Pub. L. 99–591 is a corrected version of Pub. L. 99–500.

1999—Subsec. (g)(1). Pub. L. 106–65 substituted “an agency named in section 2303 of this title” for “the Department of Defense”.

1996—Subsec. (a)(2). Pub. L. 104–106, § 4202(a)(2), inserted “a procurement for commercial items using special simplified procedures or” after “(other than for”.

Subsec. (b)(4)(B). Pub. L. 104–106, § 4103(a)(3), added subpar. (B). Former subpar. (B) redesignated (C).

Pub. L. 104–106, § 4103(a)(1), transferred text of subpar. (C) to end of subpar. (B) and substituted “This subparagraph” for “Subparagraph (B)” at beginning of that text.

Subsec. (b)(4)(C). Pub. L. 104–106, § 4103(a)(2), redesignated subpar. (B) as (C).

Pub. L. 104–106, § 4103(a)(1), struck out “(C)” before “Subparagraph (B)” and transferred text of subpar. (C) to end of subpar. (B).

Subsec. (b)(5)(F). Pub. L. 104–106, § 4104(a)(1), struck out subpar. (F) which read as follows: “The contracting officer shall include a summary of the debriefing in the contract file.”

Subsec. (b)(6). Pub. L. 104–106, § 4104(a)(3), added par. (6). Former par. (6) redesignated (9).

Subsec. (b)(6)(B). Pub. L. 104–201, § 1074(a)(11)(A), struck out “of this section” after “paragraph (5)” and “of this paragraph” after “subparagraph (A)”.

Subsec. (b)(6)(C). Pub. L. 104–201, § 1074(a)(11)(B), substituted “subparagraph (A)” for “this subsection” in introductory provisions.

Subsec. (b)(6)(D). Pub. L. 104–201, § 1074(a)(11)(C), substituted “under subparagraph (A)” for “pursuant to this subsection”.

Subsec. (b)(7), (8). Pub. L. 104–106, § 4104(a)(3), added pars. (7) and (8).

Subsec. (b)(9). Pub. L. 104–106, § 4104(a)(2), redesignated par. (6) as (9).

Subsec. (e)(3). Pub. L. 104–106, § 5601(a), as amended by Pub. L. 104–201, § 1074(b)(4)(A), struck out par. (3) which read as follows: “Regulations implementing this subsection shall be consistent with the regulations regarding the preparation and submission of an agency’s protest file (the so-called ‘rule 4 file’) for protests to the General Services Board of Contract Appeals under section 111 of the Federal Property and Administrative Services Act of 1949 (41 U.S.C. 759).”

Subsec. (g). Pub. L. 104–201, § 821(a), added subsec. (g).

1994—Subsec. (a)(2). Pub. L. 103–355, § 4401(b), substituted “a purchase for an amount not greater than the simplified acquisition threshold)” for “small purchases)” in introductory provisions.

Subsec. (a)(2)(A)(i). Pub. L. 103–355, § 1011(a)(1), substituted “and significant subfactors” for “(and significant subfactors)” and “cost-related or price-related factors and subfactors, and noncost-related or nonprice-related factors and subfactors” for “cost- or price-related factors, and noncost- or nonprice-related factors”.

Subsec. (a)(2)(A)(ii). Pub. L. 103–355, § 1011(a)(2), substituted “and subfactors” for “(and subfactors)”.

Subsec. (a)(2)(B)(ii)(I). Pub. L. 103–355, § 1011(a)(3), amended subcl. (I) generally. Prior to amendment, subcl. (I) read as follows: “a statement that the proposals are intended to be evaluated with, and award made after, discussions with the offerors, or a statement that the proposals are intended to be evaluated, and award made, without discussions with the offerors (other than discussions conducted for the purpose of minor clarification), unless discussions are determined to be necessary; and”.

Subsec. (a)(3). Pub. L. 103–355, § 1011(b), added par. (3) and struck out former par. (3), which read as follows: “In prescribing the evaluation factors to be included in each solicitation for competitive proposals, the head of an agency shall clearly establish the relative importance assigned to the evaluation factors and subfactors, including the quality of the product or services to be provided (including technical capability, management capability, and prior experience of the offeror).”

Subsec. (a)(4). Pub. L. 103–355, § 1011(b), added par. (4).

Subsec. (a)(5). Pub. L. 103–355, § 1012, added par. (5).

Subsec. (b)(3). Pub. L. 103–355, § 1013(a), substituted “transmitting, in writing or by electronic means, notice” for “transmitting written notice” and inserted at end “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 contract has been awarded.”

Subsec. (b)(4)(B). Pub. L. 103–355, § 1013(b), substituted “transmitting, in writing or by electronic means, notice” for “transmitting written notice” and “, within three days after the date of contract award, shall notify, in writing or by electronic means,” for “shall promptly notify”.

Subsec. (b)(5), (6). Pub. L. 103–355, § 1014, added par. (5) and redesignated former par. (5) as (6).

Subsec. (e). Pub. L. 103–355, § 1015, added subsec. (e).

Subsec. (f). Pub. L. 103–355, § 1016, added subsec. (f).

1993—Subsec. (b)(4)(A). Pub. L. 103–160 realigned margins of cls. (i) and (ii).

1990—Subsec. (a)(2)(A)(i). Pub. L. 101–510, § 802(a)(1), inserted “(and significant subfactors)” after “significant factors” and substituted “(including cost or price, cost- or price-related factors, and noncost- or nonprice-related factors)” for “(including cost or price)”.

Subsec. (a)(2)(A)(ii). Pub. L. 101–510, § 802(a)(2), inserted “(and subfactors)” after “those factors”.

Subsec. (a)(2(B)(ii)(I). Pub. L. 101–510, § 802(b), amended subcl. (I) generally. Prior to amendment, subcl. (I) read as follows: “a statement that the proposals are intended to be evaluated with, and awards made after, discussions with the offerors, but might be evaluated and awarded without discussions with the offerors; and”.

Subsec. (a)(3). Pub. L. 101–510, § 802(c), substituted “the evaluation factors and subfactors, including the quality of the product or services” for “the quality of the services”.

Subsec. (b)(1). Pub. L. 101–510, § 802(d)(1), inserted “and make an award” after “competitive proposals”.

Subsec. (b)(3). Pub. L. 101–510, § 802(d)(2), inserted “in accordance with paragraph (1)” after “shall evaluate the bids”.

Subsec. (b)(4)(A). Pub. L. 101–510, § 802(d)(3)(A), substituted “competitive proposals in accordance with paragraph (1)” for “competitive proposals” in introductory provisions, added cls. (i) and (ii), and struck out former cls. (i) and (ii) which read as follows:

“(i) after discussions conducted with the offerors at any time after receipt of the proposals and before the award of the contract; or

“(ii) without discussions with the offerors (other than discussions conducted for the purpose of minor clarification) when it can be clearly demonstrated from the existence of full and open competition or accurate prior cost experience with the product or service that acceptance of an initial proposal without discussions would result in the lowest overall cost to the United States.”

Subsec. (b)(4)(B) to (E). Pub. L. 101–510, § 802(d)(3)(B)–(D), redesignated subpars. (D) and (E) as (B) and (C), respectively, substituted “Subparagraph (B)” for “Subparagraph (D)” in subpar. (C), and struck out former subpars. (B) and (C) which read as follows:

“(B) In the case of award of a contract under subparagraph (A)(i), the head of the agency shall conduct, before such award, written or oral discussions with all responsible sources who submit proposals within the competitive range, considering only cost or price and the other factors included in the solicitation.

“(C) In the case of award of a contract under subparagraph (A)(ii), the head of the agency shall award the contract based on the proposals received (and as clarified, if necessary, in discussions conducted for the purpose of minor clarification).”

1989—Subsec. (b)(4)(D). Pub. L. 101–189 inserted “cost or” after “considering only”.

1988—Subsec. (d)(1)(B). Pub. L. 100–456, § 806(b), substituted “Proposals referred to in the first sentence of subparagraph (A) are” for “The proposals that the head of an agency is to consider requiring in a solicitation for the award of a development contract are”.

Subsec. (d)(2)(B). Pub. L. 100–456, § 806(b), substituted “Proposals referred to in the first sentence of subparagraph (A) are” for “The proposals that the head of an agency is to consider requiring in a solicitation for the award of a production contract are”.

Subsec. (d)(3). Pub. L. 100–456, § 806(a)(2), inserted provision that objectives may not impair the rights of prospective contractors or subcontractors otherwise provided by law.

Subsec. (d)(4). Pub. L. 100–456, § 806(a)(1), added par. (4).

1986—Subsec. (a). Pub. L. 99–500 and Pub. L. 99–591, § 101(c) [§ 924(a)], Pub. L. 99–661, § 924(a), amended subsec. (a) identically, in par. (2)(A)(i) striking out “(including price)” after “factors” and inserting “(including price)” and “(including cost and price)” and adding par. (3).

Subsec. (b)(4)(B). Pub. L. 99–500 and Pub. L. 99–591, § 101(c) [§ 924(b)], Pub. L. 99–661, § 924(b), amended subpar. (B) identically, inserting “cost or”.

Subsec. (b)(4)(E). Pub. L. 99–661, § 313(b), added subpar. (E).

1985—Subsec. (b)(5). Pub. L. 99–145 aligned the margin of par. (5).

1984—Subsecs. (c), (d). Pub. L. 98–525 added subsecs. (c) and (d).

Catchline, subsecs. (a) to (d). Pub. L. 98–369 substituted “Contracts: planning, solicitation, evaluation, and award procedures” for “Formal advertisements for bids; time; opening; award; rejection” and completely revised the text to substitute a program using solicitation requirements covering military procurement for former provisions which had used the approach of utilizing formal advertisements, struck out former provisions which had directed that, except in cases where the Secretary of Defense had determined that military requirements necessitated the specification of container size, no advertisement or invitation to bid for the carriage of government property in other than government-owned cargo containers could specify carriage of such property in cargo containers of any stated length, height, or width, and carried forward into new subsecs. (a)(1)(A)(iii), (B)(i), and (b)(2) and (5) the content of former section.

1968—Subsec. (a). Pub. L. 90–268 inserted provision that, except in cases where the Secretary of Defense determines that military requirements necessitate such specification, no advertisement or invitation to bid for the carriage of Government property in other than Government-owned cargo containers shall specify carriage of such property in cargo containers of any stated length, height, or width.

1958—Subsecs. (b) to (d). Pub. L. 85–861 added subsec. (b) and redesignated former subsecs. (b) and (c) as (c) and (d), respectively.

For effective date and applicability of amendment by sections 4103(a), 4104(a), and 4202(a)(2) of Pub. L. 104–106, see section 4401 of Pub. L. 104–106, set out as a note under section 251 of Title 41, Public Contracts.

Amendment by section 5601(a) of Pub. L. 104–106 effective 180 days after Feb. 10, 1996, see section 5701 of Pub. L. 104–106, Feb. 10, 1996, 110 Stat. 702.

For effective date and applicability of amendment by Pub. L. 103–355, see section 10001 of Pub. L. 103–355, set out as a note under section 251 of Title 41, Public Contracts.

Section 802(e) of Pub. L. 101–510 provided that:

“(1) Except as provided in paragraph (2), the amendments made by this section [amending this section] shall apply with respect to solicitations for sealed bids or competitive proposals issued after the end of the 120-day period beginning on the date of the enactment of this Act [Nov. 5, 1990].

“(2) The Secretary of Defense may require the amendments made by this section to apply with respect to solicitations issued before the end of the period referred to in paragraph (1). The Secretary of Defense shall publish in the Federal Register notice of any such earlier effective date.”

Section 101 (c) [title X, § 924(c)] of Pub. L. 99–500 and Pub. L. 99–591, and section 924(c) of title IX, formerly title IV, of Pub. L. 99–661, renumbered title IX, Pub. L. 100–26, § 3(5), Apr. 21, 1987, 101 Stat. 273, provided that: “The amendments made by this section [amending this section] shall apply with respect to solicitations for sealed bids or competitive proposals issued after the end of the 180-day period beginning on the date of the enactment of this Act [Oct. 18, 1986].”

Section 1213(b) of Pub. L. 98–525 provided that: “The amendment made by subsection (a) [amending this section] shall take effect at the end of the 180-day period beginning on the date of the enactment of this Act [Oct. 19, 1984].”

Amendment by Pub. L. 98–369 applicable with respect to any solicitation for bids or proposals issued after Mar. 31, 1985, see section 2751 of Pub. L. 98–369, set out as a note under section 251 of Title 41, Public Contracts.

Pub. L. 109–163, div. A, title VIII, § 816, Jan. 6, 2006, 119 Stat. 3382, provided that:

“(a) Guidance Required.—The Secretary of Defense shall prescribe guidance for the military departments and the Defense Agencies on the use of tiered evaluations of offers for contracts and for task or delivery orders under contracts.

“(b) Elements.—The guidance prescribed under subsection (a) shall include a prohibition on the initiation by a contracting officer of a tiered evaluation of an offer for a contract or for a task or delivery order under a contract unless the contracting officer—

“(1) has conducted market research in accordance with part 10 of the Federal Acquisition Regulation in order to determine whether or not a sufficient number of qualified small businesses are available to justify limiting competition for the award of such contract or task or delivery order under applicable law and regulations;

“(2) is unable, after conducting market research under paragraph (1), to make the determination described in that paragraph; and

“(3) includes in the contract file a written explanation of why such contracting officer was unable to make such determination.”

Pub. L. 109–163, div. A, title VIII, § 819, Jan. 6, 2006, 119 Stat. 3385, provided that:

“(a) Defense Contracts.—In awarding any contract for the procurement of goods or services to an entity, the Secretary of Defense is authorized to use as an evaluation factor whether the entity intends to carry out the contract using employees or individual subcontractors who are members of the Selected Reserve of the reserve components of the Armed Forces.

“(b) Documentation of Selected Reserve-Related Evaluation Factor.—Any entity claiming intent to carry out a contract using employees or individual subcontractors who are members of the Selected Reserve of the reserve components of the Armed Forces shall submit proof of the use of such employees or subcontractors for the Department of Defense to consider in carrying out subsection (a) with respect to that contract.

“(c) Regulations.—The Federal Acquisition Regulation shall be revised as necessary to implement this section.”

Pub. L. 102–484, div. A, title VIII, § 804, Oct. 23, 1992, 106 Stat. 2447, provided that, in case of contract to be entered into pursuant to this chapter, other than pursuant to simplified procedures under section 2304 (g) of this title, solicitation was to contain notice of right of bidding small business concern, in case of determination by contracting officer that concern was nonresponsible, to request Small Business Administration to make determination of responsibility under section 637 (b)(7) of Title 15, Commerce and Trade, that if contracting officer determined that concern was nonresponsible, such officer was to notify concern in writing, of such determination, that concern had right to request Small Business Administration to make determination, and that, if concern desired to request such determination, concern was to inform officer in writing, within 14 days after receipt of notice, of such desire, and that, after being so informed, officer was to transmit request to Administration, or, if not so informed, officer was to proceed with award of contract, and contained provisions relating to effective and termination dates and report to be submitted to Congress, prior to repeal by Pub. L. 103–355, title VII, § 7101(b), Oct. 13, 1994, 108 Stat. 3367.

Amendment by Pub. L. 98–369 as not superseding or affecting the provisions of section 637 (a) of Title 15, Commerce and Trade, see section 2723(c) of Pub. L. 98–369, set out as a note under section 2304 of this title.