§ 416. — Procurement notice.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 41USC416]
TITLE 41--PUBLIC CONTRACTS
CHAPTER 7--OFFICE OF FEDERAL PROCUREMENT POLICY
Sec. 416. Procurement notice
(a) Covered executive agency activities; publication of notice; time
limitations
(1) Except as provided in subsection (c) of this section--
(A) an executive agency intending to--
(i) solicit bids or proposals for a contract for property or
services for a price expected to exceed $25,000; or
(ii) place an order, expected to exceed $25,000, under a
basic agreement, basic ordering agreement, or similar
arrangement,
shall publish a notice of solicitation described in subsection (b)
of this section;
(B) an executive agency intending to solicit bids or proposals
for a contract for property or services for a price expected to
exceed $10,000, but not to exceed $25,000, shall post, for a period
of not less than ten days, in a public place at the contracting
office issuing the solicitation a notice of solicitation described
in subsection (b) of this section; and
(C) an executive agency awarding a contract for property or
services for a price exceeding $25,000, or placing an order referred
to in clause (A)(ii) exceeding $25,000, shall furnish for
publication by the Secretary of Commerce a notice announcing the
award or order if there is likely to be any subcontract under such
contract or order.
(2)(A) A notice of solicitation required to be published under
paragraph (1) may be published--
(i) by electronic means that meets the requirements for
accessibility under paragraph (7); or
(ii) by the Secretary of Commerce in the Commerce Business
Daily.
(B) The Secretary of Commerce shall promptly publish in the Commerce
Business Daily each notice or announcement received under this
subsection for publication by that means.
(3) Whenever an executive agency is required by paragraph (1)(A) to
publish a notice of solicitation, such executive agency may not--
(A) issue the solicitation earlier than 15 days after the date
on which the notice is published; or
(B) in the case of a contract or order expected to be greater
than the simplified acquisition threshold, establish a deadline for
the submission of all bids or proposals in response to the notice
required by paragraph (1)(A) that--
(i) in the case of an order under a basic agreement, basic
ordering agreement, or similar arrangement, is earlier than the
date 30 days after the date the notice required by paragraph
(1)(A)(ii) is published;
(ii) in the case of a solicitation for research and
development, is earlier than the date 45 days after the date the
notice required by paragraph (1)(A)(i) is published; or
(iii) in any other case, is earlier than the date 30 days
after the date the solicitation is issued.
(4) An executive agency intending to solicit offers for a contract
for which a notice of solicitation is required to be posted under
paragraph (1)(B) shall ensure that contracting officers consider each
responsive offer timely received from an offeror.
(5) An executive agency shall establish a deadline for the
submission of all bids or proposals in response to a solicitation with
respect to which no such deadline is provided by statute. Each deadline
for the submission of offers shall afford potential offerors a
reasonable opportunity to respond.
(6) The Administrator shall prescribe regulations defining limited
circumstances in which flexible deadlines can be used under paragraph
(3) for the issuance of solicitations and the submission of bids or
proposals for the procurement of commercial items.
(7) A publication of a notice of solicitation by electronic means
meets the requirements for accessibility under this paragraph if the
notice is electronically accessible in a form that allows convenient and
universal user access through the single Government-wide point of entry
designated in the Federal Acquisition Regulation.
(b) Contents of notice
Each notice of solicitation required by subparagraph (A) or (B) of
subsection (a)(1) shall include--
(1) an accurate description of the property or services to be
contracted for, which description (A) shall not be unnecessarily
restrictive of competition, and (B) shall include, as appropriate,
the agency nomenclature, National Stock Number or other part number,
and a brief description of the item's form, fit, or function,
physical dimensions, predominant material of manufacture, or similar
information that will assist a prospective contractor to make an
informed business judgment as to whether a copy of the solicitation
should be requested;
(2) provisions that--
(A) state whether the technical data required to respond to
the solicitation will not be furnished as part of such
solicitation, and identify the source in the Government, if any,
from which the technical data may be obtained; and
(B) state whether an offeror, its product, or service must
meet a qualification requirement in order to be eligible for
award, and, if so, identify the office from which the
qualification requirement may be obtained;
(3) the name, business address, and telephone number of the
contracting officer;
(4) a statement that all responsible sources may submit a bid,
proposal, or quotation (as appropriate) which shall be considered by
the agency;
(5) in the case of a procurement using procedures other than
competitive procedures, a statement of the reason justifying the use
of such procedures and the identity of the intended source; and
(6) in the case of a contract in an amount estimated to be
greater than $25,000 but not greater than the simplified acquisition
threshold, or a contract for the procurement of commercial items
using special simplified procedures--
(A) a description of the procedures to be used in awarding
the contract; and
(B) a statement specifying the periods for prospective
offerors and the contracting officer to take the necessary
preaward and award actions.
(c) Exempted, etc., activities of executive agency
(1) A notice is not required under subsection (a)(1) of this section
if--
(A) the proposed procurement is for an amount not greater than
the simplified acquisition threshold and is to be conducted by--
(i) using widespread electronic public notice of the
solicitation in a form that allows convenient and universal user
access through a single, Government-wide point of entry; and
(ii) permitting the public to respond to the solicitation
electronically;
(B) the notice would disclose the executive agency's needs and
the disclosure of such needs would compromise the national security;
(C) the proposed procurement would result from acceptance of--
(i) any unsolicited proposal that demonstrates a unique and
innovative research concept and the publication of any notice of
such unsolicited research proposal would disclose the
originality of thought or innovativeness of the proposal or
would disclose proprietary information associated with the
proposal; or
(ii) a proposal submitted under section 638 of title 15;
(D) the procurement is made against an order placed under a
requirements contract, a task order contract, or a delivery order
contract;
(E) the procurement is made for perishable subsistence supplies;
(F) the procurement is for utility services, other than
telecommunication services, and only one source is available;
(G) the procurement is for the services of an expert for use in
any litigation or dispute (including any reasonably foreseeable
litigation or dispute) involving the Federal Government in any
trial, hearing, or proceeding before any court, administrative
tribunal, or agency, or in any part of an alternative dispute
resolution process, whether or not the expert is expected to
testify; or
(H) the procurement is by the Secretary of Homeland Security
pursuant to the special procedures provided in section 393(c) of
title 6.
(2) The requirements of subsection (a)(1)(A) of this section do not
apply to any procurement under conditions described in paragraph (2),
(3), (4), (5), or (7) of section 253(c) of this title or paragraph (2),
(3), (4), (5), or (7) of section 2304(c) of title 10.
(3) The requirements of subsection (a)(1)(A) of this section shall
not apply in the case of any procurement for which the head of the
executive agency makes a determination in writing, after consultation
with the Administrator for Federal Procurement Policy and the
Administrator of the Small Business Administration, that it is not
appropriate or reasonable to publish a notice before issuing a
solicitation.
(d) Availability of complete solicitation package; payment of fee
An executive agency shall make available to any business concern, or
the authorized representative of such concern, the complete solicitation
package for any on-going procurement announced pursuant to a notice of
solicitation under subsection (a) of this section. An executive agency
may require the payment of a fee, not exceeding the actual cost of
duplication, for a copy of such package.
(Pub. L. 93-400, Sec. 18, as added Pub. L. 98-369, div. B, title VII,
Sec. 2732(a), July 18, 1984, 98 Stat. 1195; amended Pub. L. 98-577,
title III, Sec. 303(a), Oct. 30, 1984, 98 Stat. 3077; Pub. L. 99-500,
Sec. 101(c) [title X, Sec. 922(b), (d)(2)], Oct. 18, 1986, 100 Stat.
1783-82, 1783-151, 1783-152, and Pub. L. 99-591, Sec. 101(c) [title X,
Sec. 922(b), (d)(2)], Oct. 30, 1986, 100 Stat. 3341-82, 3341-151, 3341-
152; Pub. L. 99-661, div. A, title IX, formerly title IV, Sec. 922(b),
(d)(2), Nov. 14, 1986, 100 Stat. 3931, 3932; renumbered title IX, Pub.
L. 100-26, Sec. 3(5), Apr. 21, 1987, 101 Stat. 273; Pub. L. 101-510,
div. A, title VIII, Sec. 806(d), Nov. 5, 1990, 104 Stat. 1592; Pub. L.
103-355, title I, Sec. 1055(b)(1), title IV, Secs. 4201(b), (c),
4202(a)-(c), title VIII, Sec. 8302, title IX, Sec. 9001(b), Oct. 13,
1994, 108 Stat. 3265, 3344, 3398, 3402; Pub. L. 104-106, div. D, title
XLI, Sec. 4101(c), title XLII, Sec. 4202(d), title XLIII, Secs. 4310,
4321(h)(3), Feb. 10, 1996, 110 Stat. 642, 654, 670, 675; Pub. L. 105-85,
div. A, title VIII, Sec. 850(e)(2), Nov. 18, 1997, 111 Stat. 1849; Pub.
L. 105-261, div. A, title X, Sec. 1069(d)(1), Oct. 17, 1998, 112 Stat.
2136; Pub. L. 106-398, Sec. 1 [[div. A], title VIII, Sec. 810(a), (b)],
Oct. 30, 2000, 114 Stat. 1654, 1654A-209; Pub. L. 107-296, title VIII,
Sec. 833(c)(2), Nov. 25, 2002, 116 Stat. 2226.)
Codification
Pub. L. 99-591 is a corrected version of Pub. L. 99-500.
Amendments
2002--Subsec. (c)(1)(H). Pub. L. 107-296 added subpar. (H).
2000--Subsec. (a)(1)(A). Pub. L. 106-398, Sec. 1 [[div. A], title
VIII, Sec. 810(a)(1)], substituted ``publish'' for ``furnish for
publication by the Secretary of Commerce'' in concluding provisions.
Subsec. (a)(2). Pub. L. 106-398, Sec. 1 [[div. A], title VIII,
Sec. 810(a)(2)], added par. (2) and struck out former par. (2) which
read as follows: ``The Secretary of Commerce shall publish promptly in
the Commerce Business Daily each notice required by paragraph (1).''
Subsec. (a)(3). Pub. L. 106-398, Sec. 1 [[div. A], title VIII,
Sec. 810(b)], substituted ``publish a notice of solicitation'' for
``furnish a notice to the Secretary of Commerce'' in introductory
provisions and struck out ``by the Secretary of Commerce'' after
``notice is published'' in subpar. (A).
Subsec. (a)(7). Pub. L. 106-398, Sec. 1 [[div. A], title VIII,
Sec. 810(a)(3)], added par. (7).
1998--Subsec. (c)(1)(A)(ii). Pub. L. 105-261 substituted a semicolon
for period at end.
1997--Subsec. (c)(1). Pub. L. 105-85 added subpar. (A), redesignated
subpars. (C) to (H) as (B) to (G), respectively, and struck out former
subpars. (A) and (B) which read as follows:
``(A) the proposed procurement is for an amount not greater than the
simplified acquisition threshold and is to be made through a system with
interim FACNET capability certified pursuant to section 426a(a)(1) of
this title or with full FACNET capability certified pursuant to section
426a(a)(2) of this title;
``(B)(i) the proposed procurement is for an amount not greater than
$250,000 and is to be made through a system with full FACNET capability
certified pursuant to section 426a(a)(2) of this title; and
``(ii) a certification has been made pursuant to section 426a(b) of
this title that Government-wide FACNET capability has been
implemented;''.
1996--Subsec. (a)(1)(B). Pub. L. 104-106, Sec. 4101(c)(B), inserted
``for a price expected to exceed $10,000, but not to exceed $25,000,''
after ``property or services''.
Pub. L. 104-106, Sec. 4101(c)(A), substituted ``subsection (b) of
this section; and'' for ``subsection (f) of this section--'' and struck
out cls. (i) and (ii) which read as follows:
``(i) in the case of an executive agency other than the Department
of Defense, if the contract is for a price expected to exceed $10,000,
but not to exceed $25,000; and
``(ii) in the case of the Department of Defense, if the contract is
for a price expected to exceed $5,000, but not to exceed $25,000; and''.
Subsec. (a)(6). Pub. L. 104-106, Sec. 4202(d)(1)(A), inserted
``issuance of solicitations and the'' after ``paragraph (3) for the''.
Subsec. (b)(5). Pub. L. 104-106, Sec. 4321(h)(3), inserted ``and''
after ``source;''.
Subsec. (b)(6). Pub. L. 104-106, Sec. 4202(d)(1)(B), substituted
``threshold, or a contract for the procurement of commercial items using
special simplified procedures--'' for ``threshold--''.
Subsec. (c)(1)(E). Pub. L. 104-106, Sec. 4310, inserted ``, a task
order contract, or a delivery order contract'' after ``requirements
contract''.
1994--Subsec. (a)(1). Pub. L. 103-355, Sec. 4202(a)(1), substituted
``$25,000'' for ``the small purchase threshold'' wherever appearing.
Subsec. (a)(1)(A). Pub. L. 103-355, Sec. 9001(b)(1), substituted
``notice of solicitation'' for ``notice'' in concluding provisions.
Subsec. (a)(3)(B). Pub. L. 103-355, Sec. 4202(a)(2), inserted ``in
the case of a contract or order expected to be greater than the
simplified acquisition threshold,'' before ``establish a deadline''.
Subsec. (a)(4), (5). Pub. L. 103-355, Sec. 4201(b), (c), added pars.
(4) and (5).
Subsec. (a)(6). Pub. L. 103-355, Sec. 8302, added par. (6).
Subsec. (b)(6). Pub. L. 103-355, Sec. 4202(b), added par. (6).
Subsec. (c)(1)(A) to (E). Pub. L. 103-355, Sec. 4202(c), added
subpars. (A) and (B) and redesignated former subpars. (A) to (C) as (C)
to (E), respectively. Former subpars. (D) and (E) redesignated (F) and
(G), respectively.
Subsec. (c)(1)(F). Pub. L. 103-355, Sec. 4202(c)(1), redesignated
subpar. (D) as (F). Former subpar. (F) redesignated (H).
Pub. L. 103-355, Sec. 1055(b)(1), added subpar. (F).
Subsec. (c)(1)(G), (H). Pub. L. 103-355, Sec. 4202(c)(1),
redesignated subpars. (E) and (F) as (G) and (H), respectively.
Subsec. (d). Pub. L. 103-355, Sec. 9001(b)(2), substituted ``a
notice of solicitation under subsection (a)'' for ``a notice under
subsection (e)'' in first sentence.
1990--Subsec. (a)(1)(A). Pub. L. 101-510 substituted ``the small
purchase threshold; or'' for ``$25,000;'' in cl. (i), substituted ``the
small purchase threshold'' for ``$25,000'' and a comma for ``; or'' in
cl. (ii), and struck out cl. (iii) which read as follows: ``solicit bids
or proposals for a contract for property or services for a price
expected to exceed $10,000, if there is not a reasonable expectation
that at least two offers will be received from responsive and
responsible offerors,''.
Subsec. (a)(1)(B), (C). Pub. L. 101-510, Sec. 806(d)(1), substituted
``the small purchase threshold'' for ``$25,000'' wherever appearing.
1986--Subsec. (a)(1)(A). Pub. L. 99-500 and Pub. L. 99-591,
Sec. 101(c) [title X, Sec. 922(b)(1)], and Pub. L. 99-661,
Sec. 922(b)(1), amended subpar. (A) identically, substituting
``$25,000'' for ``$10,000'' in cls. (i) and (ii) and adding cl. (iii).
Subsec. (a)(1)(B), (C). Pub. L. 99-500 and Pub. L. 99-591,
Sec. 101(c) [title X, Sec. 922(b)(2), (3)], and Pub. L. 99-661,
Sec. 922(b)(2), (3), amended par. (1) identically, adding subpar. (B)
and redesignating former subpar. (B) as (C).
Subsec. (b). Pub. L. 99-500 and Pub. L. 99-591, Sec. 101(c) [title
X, Sec. 922(d)(2)], and Pub. L. 99-661, Sec. 922(d)(2), amended subsec.
(b) identically, substituting ``subparagraph (A) or (B) of subsection
(a)(1)'' for ``subsection (a)(1)(A)''.
1984--Subsec. (a)(1)(A). Pub. L. 98-577 designated existing
provisions as cl. (i) and added cl. (ii).
Subsec. (a)(1)(B). Pub. L. 98-577 inserted ``, or placing an order
referred to in clause (A)(ii) exceeding $25,000,'' before ``shall
furnish''.
Subsec. (a)(3)(B). Pub. L. 98-577 designated existing provisions as
cl. (i), substituted provisions relating to an order under a basic
agreement for former provisions which related to all bids, and added
cls. (ii) and (iii).
Subsec. (b)(1). Pub. L. 98-577 designated existing provisions as
subpar. (A) and added subpar. (B).
Subsec. (b)(2). Pub. L. 98-577 added par. (2). Former par. (2),
which related to information about the officer or employee of the
executive agency who may be contacted for purposes of obtaining a copy
of the solicitation, was struck out.
Subsec. (c)(1)(B). Pub. L. 98-577 designated existing provisions as
cl. (i) and added cl. (ii).
Subsec. (c)(1)(E). Pub. L. 98-577 added subpar. (E).
Subsec. (d). Pub. L. 98-577 added subsec. (d).
Effective Date of 2002 Amendment
Amendment by Pub. L. 107-296 effective 60 days after Nov. 25, 2002,
see section 4 of Pub. L. 107-296, set out as an Effective Date note
under section 101 of Title 6, Domestic Security.
Effective Date of 2000 Amendment
Amendment by Pub. L. 106-398 effective Oct. 1, 2000, and applicable
with respect to solicitations issued on or after that date, see section
1 [[div. A], title VIII, Sec. 810(e)] of Pub. L. 106-398, set out as a
note under section 637 of Title 15, Commerce and Trade.
Effective Date of 1997 Amendment
Amendment by Pub. L. 105-85 effective 180 days after Nov. 18, 1997,
see section 850(g) of Pub. L. 105-85, set out as a note under section
2302c of Title 10, Armed Forces.
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 of 1984 Amendment
Section 303(b) of Pub. L. 98-577 provided that: ``The amendment made
by subsection (a) [amending this section] shall take effect with respect
to any solicitation issued after March 31, 1985.''
Effective Date
Section applicable 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.
Implementation of Amendment by Pub. L. 105-85
Amendment by Pub. L. 105-85 to be implemented in a manner consistent
with any applicable international agreements, see section 850(e)(3) of
Pub. L. 105-85, set out as a note under section 637 of Title 15,
Commerce and Trade.
Applicability to Tennessee Valley Authority
Section 303(c) of Pub. L. 98-577 provided that: ``The provisions of
the amendments made by subsection (a) of this section [amending this
section] shall apply to the Tennessee Valley Authority only with respect
to procurements to be paid from appropriated funds.''
Section Referred to in Other Sections
This section is referred to in sections 253, 253i, 253j, 427 of this
title; title 6 section 426; title 10 sections 2304, 2304b, 2304c; title
15 section 637; title 20 section 1018a.
