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10 U.S.C. § 3223 (ARMED FORCES)
§ 3223. Director: review of cost estimates, cost analyses, and records of the military departments and Defense Agencies
The Secretary of Defense shall ensure that the Director of Cost Assessment and Program Evaluation—
(1) promptly receives the results of all cost estimates and cost analyses conducted by the military departments and Defense Agencies, and all studies conducted by the military departments and Defense Agencies in connection with such cost estimates and cost analyses, for major defense acquisition programs and major subprograms of the military departments and Defense Agencies; and
(2) has timely access to any records and data in the Department of Defense (including the records and data of each military department and Defense Agency and including classified and proprietary information) that the Director considers necessary to review in order to carry out any duties under this section.
10 U.S.C. § 3224 (ARMED FORCES)
§ 3224. Director: participation, concurrence, and approval in cost estimation
The Director of Cost Assessment and Program Evaluation may—
(1) participate in the discussion of any discrepancies between an independent cost estimate and the cost estimate of a military department or Defense Agency for a major defense acquisition program or major subprogram of the Department of Defense;
(2) comment on deficiencies in the methodology or execution of any cost estimate or cost analysis developed by a military department or Defense Agency for a major defense acquisition program or major subprogram;
(3) concur in the choice of a cost estimate within the baseline description or any other cost estimate (including the discussion of risk for any such cost estimate) for use at any event specified in section 3221(b)(6) of this title; and
(4) participate in the consideration of any decision to request authorization of a multiyear procurement contract for a major defense acquisition program or major subprogram.
10 U.S.C. § 3225 (ARMED FORCES)
§ 3225. Discussion of risk in cost estimates
The Director of Cost Assessment and Program Evaluation, and the Secretary of the military department concerned or the head of the Defense Agency concerned (as applicable), shall each—
(1) issue guidance requiring a discussion of risk, the potential impacts of risk on program costs, and approaches to mitigate risk in cost estimates for major defense acquisition programs and major subprograms;
(2) ensure that cost estimates are developed, to the extent practicable, based on historical actual cost information that is based on demonstrated contractor and Government performance and that such estimates provide a high degree of confidence that the program or subprogram can be completed without the need for significant adjustment to program budgets; and
(3) include the information required in the guidance under paragraph (1)—
(A) in any decision documentation approving a cost estimate within the baseline description or any other cost estimate for use at any event specified in section 3221(b)(6) of this title; and
(B) in the next Selected Acquisition Report pursuant to sections 4351 through 4358 of this title in the case of a major defense acquisition program or major subprogram, or the next quarterly report pursuant to section 2445c of this title in the case of a major automated information system program.
10 U.S.C. § 3226 (ARMED FORCES)
§ 3226. Estimates for program baseline and analyses and targets for contract negotiation purposes
(a) Cost Estimates Developed for Specified Purposes Not to Be Used for Contract Negotiations or Obligation of Funds.—
The policies, procedures, and guidance issued by the Director of Cost Assessment and Program Evaluation in accordance with the requirements of section 3221 of this title shall provide that cost estimates developed for baseline descriptions and other program purposes conducted pursuant to subsection (b)(6) of such section are not to be used for the purpose of contract negotiations or the obligation of funds.
(b) Cost Estimates Developed for Specified Purposes Not to Be Used for Contract Negotiations or Obligation of Funds.—
The Under Secretary of Defense for Acquisition and Sustainment shall, in consultation with the Director of Cost Assessment and Program Evaluation, develop policies, procedures, and guidance to ensure that cost analyses and targets developed for the purpose of contract negotiations and the obligation of funds are based on the Government’s reasonable expectation of successful contractor performance in accordance with the contractor’s proposal and previous experience.
(c) Program Manager and Contracting Officer.—
The program manager and contracting officer for each major defense acquisition program and major subprogram shall ensure that cost analyses and targets developed for the purpose of contract negotiations and the obligation of funds are carried out in accordance with the requirements of subsection (a) and the policies, procedures, and guidance issued by the Under Secretary of Defense for Acquisition and Sustainment under subsection (b).
(d) Availability of Excess Funds.—
(1) Funds that are made available for a major defense acquisition program or major subprogram in accordance with a cost estimate conducted pursuant to section 3221(b)(6) of this title, but are excess to a cost analysis or target developed pursuant to subsection (b), shall remain available for obligation in accordance with the terms of applicable authorization and appropriations Acts.
(2) Funds described in paragraph (1)—
(A) may be used—
(i) to cover any increased program costs identified by a revised cost analysis or target developed pursuant to subsection (b);
(ii) to acquire additional end items in accordance with the requirements of section 3069 of this title; or
(iii) to cover the cost of risk reduction and process improvements; and
(B) may be reprogrammed, in accordance with established procedures, only if determined to be excess to program needs on the basis of a cost estimate developed with the concurrence of the Director of Cost Assessment and Program Evaluation.
10 U.S.C. § 3227 (ARMED FORCES)
§ 3227. Guidelines and collection method for acquisition of cost data
(a) Director of Cape to Develop Guidelines and Collection Method.—
The Director of Cost Assessment and Program Evaluation shall, in consultation with the Under Secretary of Defense for Acquisition and Sustainment, develop policies, procedures, guidance, and a collection method to ensure that quality acquisition cost data are collected to facilitate cost estimation and comparison across acquisition programs.
(b) Applicability to Acquisition Programs in Amount Greater Than Specified Threshold.—
The program manager and contracting officer for each acquisition program in an amount greater than $100,000,000, in consultation with the cost estimating component of the relevant military department or Defense Agency, shall ensure that cost data are collected in accordance with the requirements of subsection (a).
(c) Limitation on Waiver Authority.—
The requirement under subsection (a) may be waived only by the Director of Cost Assessment and Program Evaluation.
10 U.S.C. § 3242 (ARMED FORCES)
§ 3242. Supplies: economic order quantities
(a) Quantity to Procure.—
(1) An agency referred to in section 3063 of this title shall procure supplies in such quantity as—
(A) will result in the total cost and unit cost most advantageous to the United States, where practicable; and
(B) does not exceed the quantity reasonably expected to be required by the agency.
(2) The Secretary of Defense shall take paragraph (1) into account in approving rates of obligation of appropriations under section 2204 of this title.
(b) Opinion of Offeror With Respect to Quantity to Be Procured.—
Each solicitation for a contract for supplies shall, if practicable, include a provision inviting each offeror responding to the solicitation to state an opinion on whether the quantity of the supplies proposed to be procured is economically advantageous to the United States and, if applicable, to recommend a quantity or quantities which would be more economically advantageous to the United States. Each such recommendation shall include a quotation of the total price and the unit price for supplies procured in each recommended quantity.
10 U.S.C. § 3247 (ARMED FORCES)
§ 3247. Contracts: regulations for bids
(a) The Secretary of Defense may—
(1) prescribe regulations for the preparation, submission, and opening of bids for contracts; and
(2) require that a bid be accompanied by a written guaranty, signed by one or more responsible persons, undertaking that the bidder, if his bid is accepted, will, within the time prescribed by the Secretary or other officer authorized to make the contract, make a contract and furnish a bond with good and sufficient sureties for the performance of the contract.
(b) If a bidder, after being notified of the acceptance of his bid, fails within the time prescribed under subsection (a)(2) to enter into a contract and furnish the prescribed bond, the Secretary concerned or other authorized officer shall—
(1) contract with another person; and
(2) charge against the defaulting bidder and his guarantors the difference between the amount specified by the bidder in his bid and the amount for which a contract is made with the other person, this difference being immediately recoverable by the United States for the use of the military department concerned in an action against the bidder and his guarantors, jointly or severally.
(c) Proceedings under this section are subject to regulations under section 121 of title 40, unless exempted therefrom under section 501(a)(2) of title 40.
10 U.S.C. § 3249 (ARMED FORCES)
§ 3249. Advocates for competition
Each advocate for competition designated pursuant to section 1705(a) of title 41 for an agency named in section 3063 of this title shall be a general or flag officer if a member of the armed forces or in a position classified above GS–15 pursuant to section 5108 of title 5, if a civilian employee and shall be designated to serve for a minimum of two years.
10 U.S.C. § 3301 (ARMED FORCES)
§ 3301. Basis of award and rejection
(a) Award.—
The head of an agency shall evaluate sealed bids and competitive proposals and make an award based solely on the factors specified in the solicitation.
(b) Rejection.—
All sealed bids or competitive proposals received in response to a solicitation may be rejected if the head of the agency determines that such action is in the public interest.
10 U.S.C. § 3302 (ARMED FORCES)
§ 3302. Sealed bids
(a) Opening of Bids.—
Sealed bids shall be opened publicly at the time and place stated in the solicitation.
(b) Criteria for Awarding Contract.—
The head of the agency shall evaluate the bids in accordance with section 3301(a) of this title without discussions with the bidders and, except as provided in section 3301(b) of this title, shall award a contract with reasonable promptness to the responsible bidder 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.
(c) Notice of Award.—
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 three days after the date of contract award, the head of the agency shall notify, in writing or by electronic means, each bidder not awarded the contract that the contract has been awarded.
10 U.S.C. § 3303 (ARMED FORCES)
§ 3303. Competitive proposals
(a) Evaluation and Award.—
The head of an agency shall evaluate competitive proposals in accordance with section 3301(a) of this title and may award a contract—
(1) 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
(2) based on the proposals received, without discussions with the offerors (other than discussions conducted for the purpose of minor clarification) provided that the solicitation included a statement that proposals are intended to be evaluated, and award made, without discussions, unless discussions are determined to be necessary.
(b) Limit on Number of Proposals.—
If the contracting officer determines that the number of offerors that would otherwise be included in the competitive range under subsection (a)(1) 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.
(c) Criteria for Awarding Contract.—
Except as provided in section 3301(b) of this title, the head of the 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.
(d) Notice of Award.—
The head of the agency shall award the contract by transmitting, in writing or by electronic means, notice of the award to such source and, within three days after the date of contract award, shall notify, in writing or by electronic means, all other offerors of the rejection of their proposals. This subsection does not apply with respect to the award of a contract for the acquisition of perishable subsistence items.
10 U.S.C. § 3305 (ARMED FORCES)
§ 3305. Pre-award debriefings
(a) Request for Debriefing.—
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 three days after the date on which the excluded offeror receives notice of its exclusion, a debriefing prior to award.
(b) When Debriefing to Be Conducted.—
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.
(c) Precondition for Post-award Debriefing.—
The contracting officer is required to debrief an excluded offeror in accordance with section 3304 of this title only if that offeror requested and was refused a preaward debriefing under subsections (a) and (b).
(d) Information to Be Provided.—
The debriefing conducted under subsections (a) and (b) shall include—
(1) the executive agency’s evaluation of the significant elements in the offeror’s offer;
(2) a summary of the rationale for the offeror’s exclusion; and
(3) 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.
(e) Information Not to Be Disclosed.—
The debriefing conducted under subsections (a) and (b) 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.
(f) Summary to Be Included in File.—
The contracting officer shall include a summary of any debriefing conducted this section 1 in the contract file.
10 U.S.C. § 3306 (ARMED FORCES)
§ 3306. Encouragement of 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.
10 U.S.C. § 3308 (ARMED FORCES)
§ 3308. Protests
(a) Protest File.—
(1) Establishment and access.—
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 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) Redacted information.—
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.
(b) Agency Actions on Protests.—
If, in connection with a protest, the head of an agency determines that a solicitation, proposed award, or award does not comply with the requirements of law or regulation, the head of the 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 title 31 within the limits referred to in paragraph (2) of such section.
10 U.S.C. § 3309 (ARMED FORCES)
§ 3309. Prohibition on release of contractor proposals
(a) Definition.—
In this section, 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.
(b) Prohibition.—
Except as provided in subsection (c), a proposal in the possession or control of an agency named in section 3063 of this title may not be made available to any person under section 552 of title 5.
(c) Inapplicability.—
Subsection (b) does not apply to any proposal that is set forth or incorporated by reference in a contract entered into between the Department and the contractor that submitted the proposal.
10 U.S.C. § 3321 (ARMED FORCES)
§ 3321. Contracts awarded using procedures other than sealed-bid procedures
(a) Authorized Types.—
Subject to the limitation in section 3322(a) of this title, the other provisions of this chapter, and other applicable provisions of law, the head of an agency, in awarding contracts under chapter 137 legacy provisions after using procedures other than sealed-bid procedures, may enter into any kind of contract that he considers will promote the best interests of the United States.
(b) Required Warranty.—
(1) Content.—
Each contract awarded under chapter 137 legacy provisions after using procedures other than sealed-bid procedures shall contain a warranty, determined to be suitable by the head of the agency, that the contractor has employed or retained no person or selling agency to solicit or obtain the contract under an understanding or agreement for a commission, percentage, brokerage, or contingent fee, except a bona fide employee or established commercial or selling agency maintained by the contractor to obtain business.
(2) Remedy for Breaking Warranty.—
If a contractor breaks such a warranty the United States—
(A) may annul the contract without liability; or
(B) may deduct the commission, percentage, brokerage, or contingent fee from the contract price or consideration.
(3) Inapplicability to Certain Contracts.—
This subsection does not apply—
(A) to a contract that is for an amount not greater than the simplified acquisition threshold; or
(B) to a contract for the acquisition of commercial products or commercial services.
10 U.S.C. § 3322 (ARMED FORCES)
§ 3322. Cost contracts
(a) Cost-plus-a-percentage-of-cost System of Contracting Prohibited.—
The cost-plus-a-percentage-of-cost system of contracting may not be used.
(b) Cost-plus-a-fixed-fee Contracts.—
The fee for performing a cost-plus-a-fixed-fee contract for experimental, developmental, or research work may not be more than 15 percent of the estimated cost of the contract, not including the fee. The fee for performing a cost-plus-a-fixed-fee contract for architectural or engineering services for a public work or utility plus the cost of those services to the contractor may not be more than 6 percent of the estimated cost of that work or project, not including fees. The fee for performing any other cost-plus-a-fixed-fee contract may not be more than 10 percent of the estimated cost of the contract, not including the fee. Determinations under this subsection of the estimated costs of a contract or project shall be made by the head of the agency at the time the contract is made.
(c) Advance Notice of Certain Subcontracts.—
(1) In general.—
Except as provided in paragraph (2), each cost contract and each cost-plus-a-fixed-fee contract shall provide for notice to the agency by the contractor before the making, under the prime contract, of—
(A) a cost-plus-a-fixed-fee subcontract; or
(B) a fixed-price subcontract or purchase order involving more than the greater of (i) the simplified acquisition threshold, or (ii) 5 percent of the estimated cost of the prime contract.
(2) Exception.—
Paragraph (1) shall not apply to a prime contract with a contractor that maintains a purchasing system approved by the contracting officer for the contract.
10 U.S.C. § 3323 (ARMED FORCES)
§ 3323. Cost-plus contracting prohibited for military construction and military family housing projects
(a) Prohibition.—
A contract entered into by the United States in connection with a military construction project or a military family housing project may not use any form of cost-plus contracting.
(b) Applicability.—
The prohibition specified in subsection (a)—
(1) is in addition to the prohibition specified in section 3322(a) of this title on the use of the cost-plus-a-percentage-of-cost system of contracting; and
(2) applies notwithstanding.1 a declaration of war or the declaration by the President of a national emergency under section 201 of the National Emergencies Act (50 U.S.C. 1621) that includes the use of the armed forces.
10 U.S.C. § 3344 (ARMED FORCES)
§ 3344. Disclosure of identity of contractor
The Secretary of Defense may disclose the identity or location of a person awarded a contract by the Department of Defense to any individual, including a Member of Congress, only after the Secretary makes a public announcement identifying the contractor. When the identity of a contractor is to be made public, the Secretary shall announce publicly that the contract has been awarded and the identity of the contractor.
10 U.S.C. § 3345 (ARMED FORCES)
§ 3345. Contract authority for development and demonstration of initial or additional prototype units
(a) Authority.—
A contract initially awarded from the competitive selection of a proposal resulting from a general solicitation referred to in section 3012(2) of this title may contain a contract line item or contract option for—
(1) the development and demonstration or initial production of technology developed under the contract; or
(2) the delivery of initial or additional items if the item or a prototype thereof is created as the result of work performed under the contract.
(b) Limitations.—
(1) Minimal amount.—
A contract line item or contract option described in subsection (a)(2) shall require the delivery of the minimal amount of initial or additional items to allow for the timely competitive solicitation and award of a follow-on development or production contract for those items.
(2) Term.—
A contract line item or contract option described in subsection (a) shall be for a term of not more than 2 years.
(3) Dollar value of work.—
The dollar value of the work to be performed pursuant to a contract line item or contract option described in subsection (a) may not exceed $100,000,000, in fiscal year 2017 constant dollars.
(4) Applicability.—
The authority provided in subsection (a) applies only to the Secretary of Defense, the Secretary of the Army, the Secretary of the Navy, and the Secretary of the Air Force.
(c) Procedures.—
The Secretary of Defense shall establish procedures to collect and analyze information on the use and benefits of the authority under this section and related impacts on performance, affordability, and capability delivery.