§ 3206. Planning and solicitation requirements

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(a)Planning and Specifications.—

(1)Preparing for procurement.— In preparing for the procurement of property or services, the head of an agency shall—

(A)specify the agency’s needs and solicit bids or proposals in a manner designed to achieve full and open competition for the procurement;

(B)use advance procurement planning and market research; and

(C)develop specifications in such manner as is necessary to obtain full and open competition with due regard to the nature of the property or services to be acquired.

(2)Requirements of specifications.— Each solicitation under chapter 137 legacy provisions shall include specifications which—

(A)consistent with the provisions of chapter 137 legacy provisions, permit full and open competition; and

(B)include restrictive provisions or conditions only to the extent necessary to satisfy the needs of the agency or as authorized by law.

(3)Types of specifications.— For the purposes of paragraphs

(1)and (2), the type of specification included in a solicitation shall depend on the nature of the needs of the agency and the market available to satisfy such needs. Subject to such needs, specifications may be stated in terms of—

(A)function, so that a variety of products or services may qualify;

(B)performance, including specifications of the range of acceptable characteristics or of the minimum acceptable standards; or

(C)design requirements.

(b)Contents of solicitation.— In addition to the specifications described in subsection (a), a solicitation for sealed bids or competitive proposals (other than for a procurement for commercial products or commercial services using special simplified procedures or a purchase for an amount not greater than the simplified acquisition threshold) shall at a minimum include—

(1)a statement of—

(A)all significant factors and significant subfactors which the head of the agency reasonably expects to consider in evaluating sealed bids (including price) or competitive proposals (including cost or price, cost-related or price-related factors and subfactors, and noncost-related or nonprice-related factors and subfactors); and

(B)the relative importance assigned to each of those factors and subfactors; and

(A)in the case of sealed bids—

(i)a statement that sealed bids will be evaluated without discussions with the bidders; and

(ii)the time and place for the opening of the sealed bids; or

(B)in the case of competitive proposals—

(i)either 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

(ii)the time and place for submission of proposals.

(c)Evaluation Factors.—

(1)In general.— In prescribing the evaluation factors to be included in each solicitation for competitive proposals, the head of an agency—

(A)shall (except as provided in paragraph (3)) 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, prior experience, and past performance of the offeror);

(B)shall (except as provided in paragraph (3)) include cost or price to the Federal Government as an evaluation factor that must be considered in the evaluation of proposals; and

(C)shall disclose to offerors whether all evaluation factors other than cost or price, when combined, are—

(i)significantly more important than cost or price;

(ii)approximately equal in importance to cost or price; or

(iii)significantly less important than cost or price.

(2)Restriction on implementing regulations.— The regulations implementing paragraph (1)(C) may not define the terms “significantly more important” and “significantly less important” as specific numeric weights that would be applied uniformly to all solicitations or a class of solicitations.

(3)Exceptions for certain multiple task or delivery order contracts.— If the head of an agency issues a solicitation for multiple task or delivery order contracts under section 3403(d)(1)(B) of this title for the same or similar services and intends to make a contract award to each qualifying offeror—

(A)cost or price to the Federal Government need not, at the Government’s discretion, be considered under paragraph (1)(B) as an evaluation factor for the contract award; and

(B)if, pursuant to subparagraph (A), cost or price to the Federal Government is not considered as an evaluation factor for the contract award—

(i)the disclosure requirement of paragraph (1)(C) shall not apply; and

(ii)cost or price to the Federal Government shall be considered in conjunction with the issuance pursuant to section 3406(c) of this title of a task or delivery order under any contract resulting from the solicitation.

(4)Definition.— In paragraph (3), the term “qualifying offeror” means an offeror that—

(A)is determined to be a responsible source;

(B)submits a proposal that conforms to the requirements of the solicitation; and

(C)the contracting officer has no reason to believe would likely offer other than fair and reasonable pricing.

(5)Exclusion of applicability to certain contracts.— Paragraph

(3)shall not apply to multiple task or delivery order contracts if the solicitation provides for sole source task or delivery order contracts pursuant to section 8(a) of the Small Business Act (15 U.S.C. 637(a)).

(d)Additional Information in Solicitation.— Nothing in this section prohibits an agency from—

(1)providing additional information in a solicitation, including numeric weights for all evaluation factors and subfactors on a case-by-case basis; or

(2)stating in a solicitation that award will be made to the offeror that meets the solicitation’s mandatory requirements at the lowest cost or price.

(e)Limitation on Evaluation of Purchase Options.— The head of an agency, in issuing a solicitation for a contract to be awarded using sealed bid procedures, may not include in such solicitation a clause providing for the evaluation of prices for options to purchase additional property or services under the contract unless the head of the agency has determined that there is a reasonable likelihood that the options will be exercised.

(Added and amended Pub. L. 116–283, div. A, title XVIII, § 1811(e), Jan. 1, 2021, 134 Stat. 4170; Pub. L. 117–81, div. A, title XVII, § 1701(b)(4)(F), (d)(4), Dec. 27, 2021, 135 Stat. 2133, 2136.)

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