[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 41USC253b]
TITLE 41--PUBLIC CONTRACTS
CHAPTER 4--PROCUREMENT PROCEDURES
SUBCHAPTER IV--PROCUREMENT PROVISIONS
Sec. 253b. Evaluation and award
(a) Basis
An executive agency shall evaluate sealed bids and competitive
proposals, and award a contract, based solely on the factors specified
in the solicitation.
(b) Rejection of bids or proposals
All sealed bids or competitive proposals received in response to a
solicitation may be rejected if the agency head determines that such
action is in the public interest.
(c) Opening of bids; promptness of award; written notice
Sealed bids shall be opened publicly at the time and place stated in
the solicitation. The executive agency shall evaluate the bids in
accordance with subsection (a) of this section without discussions with
the bidders and, except as provided in subsection (b) of this section,
shall award a contract with reasonable promptness to the responsible
source 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 solicitation. The award of a contract shall be
made by transmitting, in writing or by electronic means, notice of the
award to the successful bidder. Within 3 days after the date of contract
award, the executive agency shall notify, in writing or by electronic
means, each bidder not awarded the contract that the contract has been
awarded.
(d) Discussions with offerors; written notification
(1) An executive agency shall evaluate competitive proposals in
accordance with subsection (a) of this section and may award a
contract--
(A) after discussions with the offerors, provided that written
or oral discussions have been conducted with all responsible
offerors who submit proposals within the competitive range; or
(B) based on the proposals received and without discussions with
the offerors (other than discussions conducted for the purpose of
minor clarification), if, as required by section 253a(b)(2)(B)(i) of
this title, the solicitation included a statement that proposals are
intended to be evaluated, and award made, without discussions,
unless discussions are determined to be necessary.
(2) If the contracting officer determines that the number of
offerors that would otherwise be included in the competitive range under
paragraph (1)(A) exceeds the number at which an efficient competition
can be conducted, the contracting officer may limit the number of
proposals in the competitive range, in accordance with the criteria
specified in the solicitation, to the greatest number that will permit
an efficient competition among the offerors rated most highly in
accordance with such criteria.
(3) Except as otherwise provided in subsection (b) of this section,
the executive 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 solicitation. The executive agency shall award the
contract by transmitting, in writing or by electronic means, notice of
the award to such source and, within 3 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) Post-award debriefings
(1) When a contract is awarded by the head of an executive 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 furnished the basis for the selection
decision and contract award. The executive agency shall debrief the
offeror within, to the maximum extent practicable, 5 days after receipt
of the request by the executive agency.
(2) The debriefing shall include, at a minimum--
(A) the executive agency's evaluation of the significant weak or
deficient factors in the offeror's offer;
(B) the overall evaluated cost and technical rating of the offer
of the contractor awarded the contract and the overall evaluated
cost and technical rating of the offer of the debriefed offeror;
(C) the overall ranking of all offers;
(D) a summary of the rationale for the award;
(E) in the case of a proposal that includes a commercial item
that is an end item under the contract, the make and model of the
item being provided in accordance with the offer of the contractor
awarded the contract; and
(F) reasonable responses to relevant questions posed by the
debriefed offeror as to whether source selection procedures set
forth in the solicitation, applicable regulations, and other
applicable authorities were followed by the executive agency.
(3) The debriefing may not include point-by-point comparisons of the
debriefed offeror's offer with other offers and may not disclose any
information that is exempt from disclosure under section 552(b) of title
5.
(4) Each solicitation for competitive proposals shall include a
statement that information described in paragraph (2) may be disclosed
in post-award debriefings.
(5) If, within one year after the date of the contract award and as
a result of a successful procurement protest, the executive agency seeks
to fulfill the requirement under the protested contract either on the
basis of a new solicitation of offers or on the basis of new best and
final offers requested for that contract, the head of such executive
agency shall make available to all offerors--
(A) the information provided in debriefings under this
subsection regarding the offer of the contractor awarded the
contract; and
(B) the same information that would have been provided to the
original offerors.
(f) Preaward debriefings
(1) When the contracting officer excludes an offeror submitting a
competitive proposal from the competitive range (or otherwise excludes
such an offeror from further consideration prior to the final source
selection decision), the excluded offeror may request in writing, within
3 days after the date on which the excluded offeror receives notice of
its exclusion, a debriefing prior to award. The contracting officer
shall make every effort to debrief the unsuccessful offeror as soon as
practicable but may refuse the request for a debriefing if it is not in
the best interests of the Government to conduct a debriefing at that
time.
(2) The contracting officer is required to debrief an excluded
offeror in accordance with subsection (e) of this section only if that
offeror requested and was refused a preaward debriefing under paragraph
(1) of this subsection.
(3) The debriefing conducted under this subsection shall include--
(A) the executive agency's evaluation of the significant
elements in the offeror's offer;
(B) a summary of the rationale for the offeror's exclusion; and
(C) reasonable responses to relevant questions posed by the
debriefed offeror as to whether source selection procedures set
forth in the solicitation, applicable regulations, and other
applicable authorities were followed by the executive agency.
(4) The debriefing conducted pursuant to this subsection may not
disclose the number or identity of other offerors and shall not disclose
information about the content, ranking, or evaluation of other offerors'
proposals.
(g) Summary of debriefing
The contracting officer shall include a summary of any debriefing
conducted under subsection (e) or (f) of this section in the contract
file.
(h) Alternative dispute resolution
The Federal Acquisition Regulation shall include a provision
encouraging the use of alternative dispute resolution techniques to
provide informal, expeditious, and inexpensive procedures for an offeror
to consider using before filing a protest, prior to the award of a
contract, of the exclusion of the offeror from the competitive range (or
otherwise from further consideration) for that contract.
(i) Antitrust violations
If the agency head considers that a bid or proposal evidences a
violation of the antitrust laws, such agency head shall refer the bid or
proposal to the Attorney General for appropriate action.
(j) Planning for future competition
(1)(A) In preparing a solicitation for the award of a development
contract for a major system, the head of an agency shall consider
requiring in the solicitation that an offeror include in its offer
proposals described in subparagraph (B). In determining whether to
require such proposals, the head of the agency shall give due
consideration to the purposes for which the system is being procured and
the technology necessary to meet the system's required capabilities. If
such proposals are required, the head of the agency shall consider them
in evaluating the offeror's price.
(B) The proposals that the head of an agency is to consider
requiring in a solicitation for the award of a development contract are
the following:
(i) Proposals to incorporate in the design of the major system
items which are currently available within the supply system of the
Federal agency responsible for the major system, available elsewhere
in the national supply system, or commercially available from more
than one source.
(ii) With respect to items that are likely to be required in
substantial quantities during the system's service life, proposals
to incorporate in the design of the major system items which the
United States will be able to acquire competitively in the future.
(2)(A) In preparing a solicitation for the award of a production
contract for a major system, the head of an agency shall consider
requiring in the solicitation that an offeror include in its offer
proposals described in subparagraph (B). In determining whether to
require such proposals, the head of the agency shall give due
consideration to the purposes for which the system is being procured and
the technology necessary to meet the system's required capabilities. If
such proposals are required, the head of the agency shall consider them
in evaluating the offeror's price.
(B) The proposals that the head of an agency is to consider
requiring in a solicitation for the award of a production contract are
proposals identifying opportunities to ensure that the United States
will be able to obtain on a competitive basis items procured in
connection with the system that are likely to be reprocured in
substantial quantities during the service life of the system. Proposals
submitted in response to such requirement may include the following:
(i) Proposals to provide to the United States the right to use
technical data to be provided under the contract for competitive
reprocurement of the item, together with the cost to the United
States, if any, of acquiring such technical data and the right to
use such data.
(ii) Proposals for the qualification or development of multiple
sources of supply for the item.
(3) If the head of an agency is making a noncompetitive award of a
development contract or a production contract for a major system, the
factors specified in paragraphs (1) and (2) to be considered in
evaluating an offer for a contract may be considered as objectives in
negotiating the contract to be awarded.
(k) Protest file
(1) If, in the case of a solicitation for a contract issued by, or
an award or proposed award of a contract by, the head of an executive
agency, a protest is filed pursuant to the procedures in subchapter V of
chapter 35 of title 31, and an actual or prospective offeror so
requests, a file of the protest shall be established by the procuring
activity and reasonable access shall be provided to actual or
prospective offerors.
(2) Information exempt from disclosure under section 552 of title 5
may be redacted in a file established pursuant to paragraph (1) unless
an applicable protective order provides otherwise.
(l) Agency actions on protests
If, in connection with a protest, the head of an executive agency
determines that a solicitation, proposed award, or award does not comply
with the requirements of law or regulation, the head of such executive
agency--
(1) may take any action set out in subparagraphs (A) through (F)
of subsection (b)(1) of section 3554 of title 31; and
(2) may pay costs described in paragraph (1) of section 3554(c)
of such title within the limits referred to in paragraph (2) of such
section.
(m) Prohibition on release of contractor proposals
(1) Except as provided in paragraph (2), a proposal in the
possession or control of an executive agency may not be made available
to any person under section 552 of title 5.
(2) Paragraph (1) does not apply to any proposal that is set forth
or incorporated by reference in a contract entered into between the
agency and the contractor that submitted the proposal.
(3) In this subsection, the term ``proposal'' means any proposal,
including a technical, management, or cost proposal, submitted by a
contractor in response to the requirements of a solicitation for a
competitive proposal.
(June 30, 1949, ch. 288, title III, Sec. 303B, as added Pub. L. 98-369,
div. B, title VII, Sec. 2711(a)(2), July 18, 1984, 98 Stat. 1179;
amended Pub. L. 98-577, title II, Sec. 201(a), Oct. 30, 1984, 98 Stat.
3068; Pub. L. 103-355, title I, Secs. 1061(c), 1063-1066, Oct. 13, 1994,
108 Stat. 3267-3269; Pub. L. 104-106, div. D, title XLI, Secs. 4103(b),
4104(b), div. E, title LVI, Sec. 5607(c), Feb. 10, 1996, 110 Stat. 644,
645, 701; Pub. L. 104-201, div. A, title VIII, Sec. 821(b), title X,
Sec. 1074(b)(7), Sept. 23, 1996, 110 Stat. 2609, 2660.)
References in Text
The antitrust laws, referred to in subsec. (i), are classified
generally to section 1 et seq. of Title 15, Commerce and Trade.
Amendments
1996--Subsec. (d)(2), (3). Pub. L. 104-106, Sec. 4103(b), added par.
(2) and redesignated former par. (2) as (3).
Subsec. (e)(6). Pub. L. 104-106, Sec. 4104(b)(1), struck out par.
(6) which read as follows: ``The contracting officer shall include a
summary of the debriefing in the contract file.''
Subsecs. (f) to (h). Pub. L. 104-106, Sec. 4104(b)(3), added
subsecs. (f) to (h). Former subsecs. (f) to (h) redesignated (i) to (k),
respectively.
Subsecs. (i), (j). Pub. L. 104-106, Sec. 4104(b)(2), redesignated
subsecs. (f) and (g) as (i) and (j), respectively. Former subsec. (i)
redesignated (l).
Subsec. (k). Pub. L. 104-106, Sec. 5607(c), as amended by Pub. L.
104-201, Sec. 1074(b)(7), 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 759 of title 40.''
Pub. L. 104-106, Sec. 4104(b)(2), redesignated subsec. (h) as (k).
Subsec. (l). Pub. L. 104-106, Sec. 4104(b)(2), redesignated subsec.
(i) as (l).
Subsec. (m). Pub. L. 104-201, Sec. 821(b), added subsec. (m).
1994--Subsec. (a). Pub. L. 103-355, Sec. 1061(c)(1), inserted ``,
and award a contract,'' after ``competitive proposals''.
Subsec. (c). Pub. L. 103-355, Secs. 1061(c)(2), 1063(a), inserted
``in accordance with subsection (a) of this section'' after ``shall
evaluate the bids'' in second sentence, substituted ``transmitting, in
writing or by electronic means, notice'' for ``transmitting written
notice'' in third sentence, and inserted at end ``Within 3 days after
the date of contract award, the executive agency shall notify, in
writing or by electronic means, each bidder not awarded the contract
that the contract has been awarded.''
Subsec. (d)(1). Pub. L. 103-355, Sec. 1061(c)(3)(A), added par. (1)
and struck out former par. (1) which read as follows: ``The executive
agency shall evaluate competitive proposals and may award a contract--
``(A) after discussions conducted with the offerors at any time
after receipt of the proposals and before the award of the contract;
or
``(B) 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 Government.''
Subsec. (d)(2). Pub. L. 103-355, Secs. 1061(c)(3)(C), 1063(b),
inserted ``cost or'' before ``price'' in first sentence, and, in second
sentence, substituted ``transmitting, in writing or by electronic means,
notice'' for ``transmitting written notice'' and ``, within 3 days after
the date of contract award, shall notify, in writing or by electronic
means,'' for ``shall promptly notify''.
Pub. L. 103-355, Sec. 1061(c)(3)(B), redesignated par. (4) as (2)
and struck out former par. (2) which read as follows: ``In the case of
award of a contract under paragraph (1)(A), the executive agency shall
conduct, before such award, written or oral discussions with all
responsible sources who submit proposals within the competitive range,
considering only price and the other factors included in the
solicitation.''
Subsec. (d)(3). Pub. L. 103-355, Sec. 1061(c)(3)(B), struck out par.
(3) which read as follows: ``In the case of award of a contract under
paragraph (1)(B), the executive agency shall award the contract based on
the proposals as received (and as clarified, if necessary, in
discussions conducted for the purpose of minor clarification).''
Subsec. (d)(4). Pub. L. 103-355, Sec. 1061(c)(3)(B), redesignated
par. (4) as (2).
Subsecs. (e) to (g). Pub. L. 103-355, Sec. 1064, added subsec. (e)
and redesignated former subsecs. (e) and (f) as (f) and (g),
respectively.
Subsec. (h). Pub. L. 103-355, Sec. 1065, added subsec. (h).
Subsec. (i). Pub. L. 103-355, Sec. 1066, added subsec. (i).
1984--Subsec. (f). Pub. L. 98-577 added subsec. (f).
Effective Date of 1996 Amendments
Section 1074(b)(7) of Pub. L. 104-201 provided that the amendment
made by that section is effective Feb. 10, 1996.
For effective date and applicability of amendment by sections
4103(b) and 4104(b) of Pub. L. 104-106, see section 4401 of Pub. L. 104-
106, set out as a note under section 251 of this title.
Amendment by section 5607(c) 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.
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 of 1984 Amendment
Section 201(b) of Pub. L. 98-577 provided that: ``The amendment made
by subsection (a) [amending this section] shall apply with respect to
any solicitation issued more than 180 days after the date of enactment
of this Act [Oct. 30, 1984].''
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.
Ex. Ord. No. 12979. Agency Procurement Protests
Ex. Ord. No. 12979, Oct. 25, 1995, 60 F.R. 55171, provided:
By the authority vested in me as President by the Constitution and
the laws of the United States of America, and in order to ensure
effective and efficient expenditure of public funds and fair and
expeditious resolution of protests to the award of Federal procurement
contracts, it is hereby ordered as follows:
Section 1. Heads of executive departments and agencies
(``agencies'') engaged in the procurement of supplies and services shall
prescribe administrative procedures for the resolution of protests to
the award of their procurement contracts as an alternative to protests
in fora outside the procuring agencies. Procedures prescribed pursuant
to this order shall:
(a) emphasize that whenever conduct of a procurement is contested,
all parties should use their best efforts to resolve the matter with
agency contracting officers;
(b) to the maximum extent practicable, provide for inexpensive,
informal, procedurally simple, and expeditious resolution of protests,
including, where appropriate and as permitted by law, the use of
alternative dispute resolution techniques, third party neutrals, and
another agency's personnel;
(c) allow actual or prospective bidders or offerors whose direct
economic interests would be affected by the award or failure to award
the contract to request a review, at a level above the contracting
officer, of any decision by a contracting officer that is alleged to
have violated a statute or regulation and, thereby, caused prejudice to
the protester; and
(d) except where immediate contract award or performance is
justified for urgent and compelling reasons or is determined to be in
the best interest of the United States, prohibit award or performance of
the contract while a timely filed protest is pending before the agency.
To allow for the withholding of a contract award or performance, the
agency must have received notice of the protest within either 10
calendar days after the contract award or 5 calendar days after the
bidder or offeror who is protesting the contract award was given the
opportunity to be debriefed by the agency, whichever date is later.
Sec. 2. The Administrator for Federal Procurement Policy shall: (a)
work with the heads of executive agencies to provide policy guidance and
leadership necessary to implement provisions of this order; and
(b) review and evaluate agency experience and performance under this
order, and report on any findings to the President within 2 years from
the date of this order.
Sec. 3. The Administrator of General Services, the Secretary of
Defense, and the Administrator of the National Aeronautics and Space
Administration, in coordination with the Office of Federal Procurement
Policy, shall amend the Federal Acquisition Regulation, 48 C.F.R. 1,
within 180 days of the date of this order to further the purposes of
this order.
William J. Clinton.
Definitions
The definitions in section 102 of Title 40, Public Buildings,
Property, and Works, apply to this subchapter.
Section Referred to in Other Sectio
