41 U.S.C. § 3302 (PUBLIC CONTRACTS)
§ 3302. Requirements for purchase of property and services pursuant to multiple award contracts
(a) Definitions.—
In this section:
(1) Executive agency.—
The term “executive agency” has the same meaning given in section 133 of this title.
(2) Individual purchase.—
The term “individual purchase” means a task order, delivery order, or other purchase.
(3) Multiple award contract.—
The term “multiple award contract” means—
(A) a contract that is entered into by the Administrator of General Services under the multiple award schedule program referred to in section 2302(2)(C) of title 10;
(B) a multiple award task order contract that is entered into under the authority of sections 2304a to 2304d of title 10, or chapter 41 of this title; and
(C) any other indefinite delivery, indefinite quantity contract that is entered into by the head of an executive agency with 2 or more sources pursuant to the same solicitation.
(4) Sole source task or delivery order.—
The term “sole source task or delivery order” means any order that does not follow the competitive procedures in paragraph (2) or (3) of subsection (c).
(b) Regulations Required.—
The Federal Acquisition Regulation shall require enhanced competition in the purchase of property and services by all executive agencies pursuant to multiple award contracts.
(c) Content of Regulations.—
(1) In general.—
The regulations required by subsection (b) shall provide that each individual purchase of property or services in excess of the simplified acquisition threshold that is made under a multiple award contract shall be made on a competitive basis unless a contracting officer—
(A) waives the requirement on the basis of a determination that—
(i) one of the circumstances described in paragraphs (1) to (4) of section 4106(c) of this title or section 2304c(b) of title 10 applies to the individual purchase; or
(ii) a law expressly authorizes or requires that the purchase be made from a specified source; and
(B) justifies the determination in writing.
(2) Competitive basis procedures.—
For purposes of this subsection, an individual purchase of property or services is made on a competitive basis only if it is made pursuant to procedures that—
(A) require fair notice of the intent to make that purchase (including a description of the work to be performed and the basis on which the selection will be made) to be provided to all contractors offering the property or services under the multiple award contract; and
(B) afford all contractors responding to the notice a fair opportunity to make an offer and have that offer fairly considered by the official making the purchase.
(3) Exception to notice requirement.—
(A) In general.—
Notwithstanding paragraph (2), and subject to subparagraph (B), notice may be provided to fewer than all contractors offering the property or services under a multiple award contract as described in subsection (a)(3)(A) if notice is provided to as many contractors as practicable.
(B) Limitation on exception.—
A purchase may not be made pursuant to a notice that is provided to fewer than all contractors under subparagraph (A) unless—
(i) offers were received from at least 3 qualified contractors; or
(ii) a contracting officer of the executive agency determines in writing that no additional qualified contractors were able to be identified despite reasonable efforts to do so.
(d) Public Notice Requirements Related to Sole Source Task or Delivery Orders.—
(1) Public notice required.—
The Federal Acquisition Regulation shall require the head of each executive agency to—
(A) publish on FedBizOpps notice of all sole source task or delivery orders in excess of the simplified acquisition threshold that are placed against multiple award contracts not later than 14 days after the orders are placed, except in the event of extraordinary circumstances or classified orders; and
(B) disclose the determination required by subsection (c)(1) related to sole source task or delivery orders in excess of the simplified acquisition threshold placed against multiple award contracts through the same mechanism and to the same extent as the disclosure of documents containing a justification and approval required by section 2304(f)(1) of title 10 and section 3304(e)(1) of this title, except in the event of extraordinary circumstances or classified orders.
(2) Exemption.—
This subsection does not require the public availability of information that is exempt from public disclosure under section 552(b) of title 5.
(e) Applicability.—
The regulations required by subsection (b) shall apply to all individual purchases of property or services that are made under multiple award contracts on or after the effective date of the regulations, without regard to whether the multiple award contracts were entered into before, on, or after the effective date.
(Pub. L. 111–350, § 3, Jan. 4, 2011, 124 Stat. 3746; Pub. L. 111–383, div. A, title X, § 1075(e)(14), Jan. 7, 2011, 124 Stat. 4375.)
heading: Amendment Not Shown in Text
text: This section was derived from Pub. L. 110–417, [div. A], title VIII, § 863(a)–(e), Oct. 14, 2008, 122 Stat. 4547, which was set out as a note under section 253h of former Title 41, Public Contracts, prior to being repealed and reenacted by Pub. L. 111–350, §§ 3, 7(b), Jan. 4, 2011, 124 Stat. 3677, 3855. Section 863(b)(3)(A) of Pub. L. 110–417 was restated as subsec. (c)(3)(A) of this section and subsequently amended by Pub. L. 111–383, div. A, title X, § 1075(e)(14), Jan. 7, 2011, 124 Stat. 4375. For applicability of that amendment to this section, see section 6(a) of Pub. L. 111–350, set out as a Transitional and Savings Provisions note preceding section 101 of this title. Section 863(b)(3)(A) of Pub. L. 110–417 was amended by striking “subsection (d)(2)(A)” and inserting “subsection (d)(3)(A)”. Such reference did not appear in the text of subsec. (c)(3)(A) as enacted. See Historical and Revision Notes below.
text: Historical and Revision Notes
Revised
Section
Source (U.S. Code)
Source (Statutes at Large)
3302
41:253h note.
Pub. L. 110–417, [div. A], title VIII, § 863(a)–(e), Oct. 14, 2008, 122 Stat. 4547.
In subsection (b), the words “Not later than one year after the date of the enactment of this Act” are omitted because of section 6(f) of the bill. The words “shall require” are substituted for “shall be amended to require” to reflect the permanence of the provision.
In subsection (c)(2)(A), the words “except as provided in paragraph (3)” are omitted as unnecessary.
In subsection (c)(3)(A), “subsection (a)(3)(A)” is substituted for “subsection (d)(2)(A)” for consistency in the revised title and to correct an error in the law.
In subsection (d)(1), the words “Not later than one year after the date of the enactment of this Act” are omitted because of section 6(f) of the bill. The words “shall require” are substituted for “shall be amended to require” to reflect the permanence of the provision.
heading: Individual Acquisition for Commercial Leasing Services
text: Pub. L. 115–232, div. A, title VIII, § 877, Aug. 13, 2018, 132 Stat. 1907, provided that:
“(a) In General.—
For the purpose of section 863 of Public Law 110–417 [41 U.S.C. 3302], an individual acquisition for commercial leasing services shall not be construed as a purchase of property or services if such individual acquisition is made on a no cost basis and pursuant to a multiple award contract awarded in accordance with requirements for full and open competition.
“(b) Audit.—
The Comptroller General of the United States shall—
“(1) conduct biennial audits of the General Services Administration National Broker Contract to determine—
“(A) whether brokers selected under the program provide lower lease rental rates than rates negotiated by General Services Administration staff; and
“(B) the impact of the program on the length of time of lease procurements;
“(2) conduct a review of whether the application of section 863 of Public Law 110–417 [41 U.S.C. 3302] to acquisitions for commercial leasing services resulted in rental cost savings for the Government during the years in which such section was applicable prior to the date of enactment of this section [Aug. 13, 2018]; and
“(3) not later than September 30, 2019, and September 30, 2021, submit to the Committee on Transportation and Infrastructure of the House of Representatives and the Committee on Environment and Public Works of the Senate a report that—
“(A) summarizes the results of the audit and review required by paragraphs (1) and (2);
“(B) includes an assessment of whether the National Broker Contract provides greater efficiencies and savings than the use of General Services Administration staff; and
“(C) includes recommendations for improving General Services Administration lease procurements.
“(c) Termination.—
This section shall terminate on December 31, 2022.”