§ 253a. — Planning and solicitation requirements.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 41USC253a]
TITLE 41--PUBLIC CONTRACTS
CHAPTER 4--PROCUREMENT PROCEDURES
SUBCHAPTER IV--PROCUREMENT PROVISIONS
Sec. 253a. Planning and solicitation requirements
(a) Preparation; planning; specifications in solicitation
(1) In preparing for the procurement of property or services, an
executive agency shall--
(A) specify its 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) Each solicitation under this subchapter shall include
specifications which--
(A) consistent with the provisions of this subchapter, permit
full and open competition;
(B) include restrictive provisions or conditions only to the
extent necessary to satisfy the needs of the executive agency or as
authorized by law.
(3) 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 executive 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) of
this section, each solicitation for sealed bids or competitive proposals
(other than for a procurement for commercial items 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 executive 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
(2)(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 prescribing the evaluation factors to be included in each
solicitation for competitive proposals, an executive agency--
(A) 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, prior experience, and past performance of the
offeror);
(B) shall 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) The regulations implementing subparagraph (C) of paragraph (1)
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.
(d) Additional information in solicitation
Nothing in this section prohibits an executive 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) Evaluation of purchase options
An executive 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 executive agency has determined that there is a reasonable
likelihood that the options will be exercised.
(June 30, 1949, ch. 288, title III, Sec. 303A, as added Pub. L. 98-369,
div. B, title VII, Sec. 2711(a)(2), July 18, 1984, 98 Stat. 1178;
amended Pub. L. 103-355, title I, Secs. 1061(a), (b), 1062, title IV,
Sec. 4402(b), Oct. 13, 1994, 108 Stat. 3266, 3267, 3348; Pub. L. 104-
106, div. D, title XLII, Sec. 4202(b)(2), Feb. 10, 1996, 110 Stat. 653.)
Amendments
1996--Subsec. (b). Pub. L. 104-106 inserted ``a procurement for
commercial items using special simplified procedures or'' after ``(other
than for'' in introductory provisions.
1994--Subsec. (b). Pub. L. 103-355, Sec. 4402(b), substituted ``a
purchase for an amount not greater than the simplified acquisition
threshold)'' for ``small purchases)'' in introductory provisions.
Subsec. (b)(1)(A). Pub. L. 103-355, Sec. 1061(a)(1)(A), amended
subpar. (A) generally. Prior to amendment, subpar. (A) read as follows:
``all significant factors (including price) which the executive agency
reasonably expects to consider in evaluating sealed bids or competitive
proposals; and''.
Subsec. (b)(1)(B). Pub. L. 103-355, Sec. 1061(a)(1)(B), substituted
``factors and subfactors'' for ``factors''.
Subsec. (b)(2)(B)(i). Pub. L. 103-355, Sec. 1061(a)(2), amended cl.
(i) generally. Prior to amendment, cl. (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''.
Subsecs. (c), (d). Pub. L. 103-355, Sec. 1061(b), added subsecs. (c)
and (d).
Subsec. (e). Pub. L. 103-355, Sec. 1062, added subsec. (e).
Effective Date of 1996 Amendment
For effective date and applicability of amendment by Pub. L. 104-
106, see section 4401 of Pub. L. 104-106, set out as a note under
section 251 of this title.
Effective Date of 1994 Amendment
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 this title.
Effective Date
Section 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 an Effective Date of 1984 Amendment note under section
251 of this title.
Small Business Act
Section not to affect or supersede the provisions of section 637(a)
of Title 15, Commerce and Trade, see section 2711(c) of Pub. L. 98-369,
set out as a note under section 253 of this title.
Definitions
The definitions in section 102 of Title 40, Public Buildings,
Property, and Works, apply to this subchapter.
Section Referred to in Other Sections
This section is referred to in sections 253b, 253m, 257 of this
title; title 20 section 1018a.
