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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.
(Added and amended Pub. L. 116–283, div. A, title XVIII, § 1816(c)(2)(B), (4), Jan. 1, 2021, 134 Stat. 4182.)
heading: Effective Date
text: Section and amendment by Pub. L. 116–283 effective Jan. 1, 2022, with additional provisions for delayed implementation and applicability of existing law, see section 1801(d) of Pub. L. 116–283, set out as an Effective Date of 2021 Amendment note preceding section 3001 of this title.
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.
(Added and amended Pub. L. 116–283, div. A, title XVIII, § 1816(c)(2)(C), (5), Jan. 1, 2021, 134 Stat. 4182, 4183.)
heading: Effective Date
text: Section and amendment by Pub. L. 116–283 effective Jan. 1, 2022, with additional provisions for delayed implementation and applicability of existing law, see section 1801(d) of Pub. L. 116–283, set out as an Effective Date of 2021 Amendment note preceding section 3001 of this title.
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.
(Added and amended Pub. L. 116–283, div. A, title XVIII, § 1816(c)(2)(E), (7), Jan. 1, 2021, 134 Stat. 4182, 4183.)
heading: Effective Date
text: Section and amendment by Pub. L. 116–283 effective Jan. 1, 2022, with additional provisions for delayed implementation and applicability of existing law, see section 1801(d) of Pub. L. 116–283, set out as an Effective Date of 2021 Amendment note preceding section 3001 of this title.
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.
(Added and amended Pub. L. 116–283, div. A, title XVIII, § 1816(c)(2)(F), (8), Jan. 1, 2021, 134 Stat. 4182, 4185.)
heading: Effective Date
text: Section and amendment by Pub. L. 116–283 effective Jan. 1, 2022, with additional provisions for delayed implementation and applicability of existing law, see section 1801(d) of Pub. L. 116–283, set out as an Effective Date of 2021 Amendment note preceding section 3001 of this title.
10 U.S.C. § 3307 (ARMED FORCES)
§ 3307. Antitrust violations
If the head of an agency considers that a bid or proposal evidences a violation of the antitrust laws, he shall refer the bid or proposal to the Attorney General for appropriate action.
(Added and amended Pub. L. 116–283, div. A, title XVIII, § 1816(c)(2)(G), (9), Jan. 1, 2021, 134 Stat. 4182, 4185.)
heading: Effective Date
text: Section and amendment by Pub. L. 116–283 effective Jan. 1, 2022, with additional provisions for delayed implementation and applicability of existing law, see section 1801(d) of Pub. L. 116–283, set out as an Effective Date of 2021 Amendment note preceding section 3001 of this title.
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.
(Added and amended Pub. L. 116–283, div. A, title XVIII, § 1816(d), (e), Jan. 1, 2021, 134 Stat. 4185.)
heading: Effective Date
text: Section and amendment by Pub. L. 116–283 effective Jan. 1, 2022, with additional provisions for delayed implementation and applicability of existing law, see section 1801(d) of Pub. L. 116–283, set out as an Effective Date of 2021 Amendment note preceding section 3001 of this title.
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.
(Added and amended Pub. L. 116–283, div. A, title XVIII, § 1816(d), (f), Jan. 1, 2021, 134 Stat. 4185.)
heading: Effective Date
text: Section and amendment by Pub. L. 116–283 effective Jan. 1, 2022, with additional provisions for delayed implementation and applicability of existing law, see section 1801(d) of Pub. L. 116–283, set out as an Effective Date of 2021 Amendment note preceding section 3001 of this title.
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.
(Added and amended Pub. L. 116–283, div. A, title XVIII, § 1817(a), (b), (d), Jan. 1, 2021, 134 Stat. 4186.)
heading: Effective Date
text: Section and amendment by Pub. L. 116–283 effective Jan. 1, 2022, with additional provisions for delayed implementation and applicability of existing law, see section 1801(d) of Pub. L. 116–283, set out as an Effective Date of 2021 Amendment note preceding section 3001 of this title.
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.
(Added and amended Pub. L. 116–283, div. A, title XVIII, § 1817(a), (c), (e), (f), Jan. 1, 2021, 134 Stat. 4186, 4187.)
heading: Effective Date
text: Section and amendment by Pub. L. 116–283 effective Jan. 1, 2022, with additional provisions for delayed implementation and applicability of existing law, see section 1801(d) of Pub. L. 116–283, set out as an Effective Date of 2021 Amendment note preceding section 3001 of this title.
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.
(Added and amended Pub. L. 116–283, div. A, title XVIII, § 1817(a), (g), Jan. 1, 2021, 134 Stat. 4186, 4187.)
heading: Effective Date
text: Section and amendment by Pub. L. 116–283 effective Jan. 1, 2022, with additional provisions for delayed implementation and applicability of existing law, see section 1801(d) of Pub. L. 116–283, set out as an Effective Date of 2021 Amendment note preceding section 3001 of this title.
10 U.S.C. § 3324 (ARMED FORCES)
§ 3324. Preference for fixed-price contracts
[Reserved].
(Added Pub. L. 116–283, div. A, title XVIII, § 1817(a), Jan. 1, 2021, 134 Stat. 4186.)
heading: Effective Date
text: Section effective Jan. 1, 2022, with additional provisions for delayed implementation and applicability of existing law, see section 1801(d) of Pub. L. 116–283, set out as an Effective Date of 2021 Amendment note preceding section 3001 of this title.
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.
(Added Pub. L. 97–295, § 1(26)(A), Oct. 12, 1982, 96 Stat. 1291, § 2316; renumbered § 3344, Pub. L. 116–283, div. A, title XVIII, § 1818(b), Jan. 1, 2021, 134 Stat. 4188.)
heading: Effective Date of 2021 Amendment
text: Amendment by Pub. L. 116–283 effective Jan. 1, 2022, with additional provisions for delayed implementation and applicability of existing law, see section 1801(d) of Pub. L. 116–283, set out as a note preceding section 3001 of this title.
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.
(Added Pub. L. 115–91, div. A, title VIII, § 861(a)(1), Dec. 12, 2017, 131 Stat. 1493, § 2302e; renumbered § 3345 and amended Pub. L. 116–283, div. A, title XVIII, § 1818(c), Jan. 1, 2021, 134 Stat. 4188.)
heading: Effective Date of 2021 Amendment
text: Amendment by Pub. L. 116–283 effective Jan. 1, 2022, with additional provisions for delayed implementation and applicability of existing law, see section 1801(d) of Pub. L. 116–283, set out as a note preceding section 3001 of this title.
10 U.S.C. § 3371 (ARMED FORCES)
§ 3371. Undefinitized contractual actions: required description of anticipated effect on military department requirements if use of undefinitized contractual action results in delay
The head of an agency may not enter into an undefinitized contractual action unless the request to the head of the agency for authorization of the contractual action includes a description of the anticipated effect on requirements of the military department concerned if a delay is incurred for purposes of determining contractual terms, specifications, and price before performance is begun under the contractual action.
(Added and amended Pub. L. 116–283, div. A, title XVIII, § 1819(a), (b), Jan. 1, 2021, 134 Stat. 4189.)
heading: Effective Date
text: Section and amendment by Pub. L. 116–283 effective Jan. 1, 2022, with additional provisions for delayed implementation and applicability of existing law, see section 1801(d) of Pub. L. 116–283, set out as an Effective Date of 2021 Amendment note preceding section 3001 of this title.
10 U.S.C. § 3373 (ARMED FORCES)
§ 3373. Undefinitized contractual actions: limitation on inclusion of non-urgent requirements and on modification of scope
(a) Inclusion of Non-Urgent Requirements.—
Requirements for spare parts and support equipment that are not needed on an urgent basis may not be included in an undefinitized contractual action for spare parts and support equipment that are needed on an urgent basis unless the head of the agency approves such inclusion as being—
(1) good business practice; and
(2) in the best interests of the United States.
(b) Modification of Scope.—
The scope of an undefinitized contractual action under which performance has begun may not be modified unless the head of the agency approves such modification as being—
(1) good business practice; and
(2) in the best interests of the United States.
(Added and amended Pub. L. 116–283, div. A, title XVIII, § 1819(a), (d), Jan. 1, 2021, 134 Stat. 4189, 4190.)
heading: Effective Date
text: Section and amendment by Pub. L. 116–283 effective Jan. 1, 2022, with additional provisions for delayed implementation and applicability of existing law, see section 1801(d) of Pub. L. 116–283, set out as an Effective Date of 2021 Amendment note preceding section 3001 of this title.
10 U.S.C. § 3374 (ARMED FORCES)
§ 3374. Undefinitized contractual actions: allowable profit
(a) Allowed Profit to Reflect Certain Reduced Cost Risks of Contractor.—
The head of an agency shall ensure that the profit allowed on an undefinitized contractual action for which the final price is negotiated after a substantial portion of the performance required is completed reflects—
(1) the possible reduced cost risk of the contractor with respect to costs incurred during performance of the contract before the final price is negotiated; and
(2) the reduced cost risk of the contractor with respect to costs incurred during performance of the remaining portion of the contract.
(b) Date as of Which Contractor Cost Risk to Be Determined.—
If a contractor submits a qualifying proposal to definitize an undefinitized contractual action and the contracting officer for such action definitizes the contract after the end of the 180-day period beginning on the date on which the contractor submitted the qualifying proposal, the head of the agency concerned shall ensure that the profit allowed on the contract accurately reflects the cost risk of the contractor as such risk existed on the date the contractor submitted the qualifying proposal.
(Added and amended Pub. L. 116–283, div. A, title XVIII, § 1819(a), (e), Jan. 1, 2021, 134 Stat. 4189, 4190.)
heading: Effective Date
text: Section and amendment by Pub. L. 116–283 effective Jan. 1, 2022, with additional provisions for delayed implementation and applicability of existing law, see section 1801(d) of Pub. L. 116–283, set out as an Effective Date of 2021 Amendment note preceding section 3001 of this title.