10 U.S.C. § 3206 | Planning and solicitation requirements

(a)

Planning and Specifications.—

(1)

Preparing for procurement .—

In preparing for the procurement of property or services, the head of an agency shall—

(A)

specify the agency’s needs and solicit bids or proposals in a manner designed to achieve full and open competition for the procurement;

(B)

use advance procurement planning and market research; and

(C)

develop specifications in such manner as is necessary to obtain full and open competition with due regard to the nature of the property or services to be acquired.

(2)

Requirements of specifications .—

Each solicitation under chapter 137 legacy provisions shall include specifications which—

(A)

consistent with the provisions of chapter 137 legacy provisions, permit full and open competition; and

(B)

include restrictive provisions or conditions only to the extent necessary to satisfy the needs of the agency or as authorized by law.

(3)

Types of specifications .—

For the purposes of paragraphs (1) and (2), the type of specification included in a solicitation shall depend on the nature of the needs of the agency and the market available to satisfy such needs. Subject to such needs, specifications may be stated in terms of—

(A)

function, so that a variety of products or services may qualify;

(B)

performance, including specifications of the range of acceptable characteristics or of the minimum acceptable standards; or

(C)

design requirements.

(b)

Contents of solicitation .—

In addition to the specifications described in subsection (a), a solicitation for sealed bids or competitive proposals (other than for a procurement for commercial products or commercial services using special simplified procedures or a purchase for an amount not greater than the simplified acquisition threshold) shall at a minimum include—

(1)

a statement of—

(A)

all significant factors and significant subfactors which the head of the agency reasonably expects to consider in evaluating sealed bids (including price) or competitive proposals (including cost or price, cost-related or price-related factors and subfactors, and noncost-related or nonprice-related factors and subfactors); and

(B)

the relative importance assigned to each of those factors and subfactors; and

(2)

(A)

in the case of sealed bids—

(i)

a statement that sealed bids will be evaluated without discussions with the bidders; and

(ii)

the time and place for the opening of the sealed bids; or

(B)

in the case of competitive proposals—

(i)

either a statement that the proposals are intended to be evaluated with, and award made after, discussions with the offerors, or a statement that the proposals are intended to be evaluated, and award made, without discussions with the offerors (other than discussions conducted for the purpose of minor clarification) unless discussions are determined to be necessary; and

(ii)

the time and place for submission of proposals.

(c)

Evaluation Factors.—

(1)

In general .—

In prescribing the evaluation factors to be included in each solicitation for competitive proposals, the head of an agency—

(A)

shall (except as provided in paragraph (3)) clearly establish the relative importance assigned to the evaluation factors and subfactors, including the quality of the product or services to be provided (including technical capability, management capability, prior experience, and past performance of the offeror);

(B)

shall (except as provided in paragraph (3)) include cost or price to the Federal Government as an evaluation factor that must be considered in the evaluation of proposals; and

(C)

shall disclose to offerors whether all evaluation factors other than cost or price, when combined, are—

(i)

significantly more important than cost or price;

(ii)

approximately equal in importance to cost or price; or

(iii)

significantly less important than cost or price.

(2)

Restriction on implementing regulations .—

The regulations implementing paragraph (1)(C) may not define the terms “significantly more important” and “significantly less important” as specific numeric weights that would be applied uniformly to all solicitations or a class of solicitations.

(3)

Exceptions for certain multiple task or delivery order contracts .—

section 3403(d)(1)(B) of this titleIf the head of an agency issues a solicitation for multiple task or delivery order contracts under for the same or similar services and intends to make a contract award to each qualifying offeror—

(A)

cost or price to the Federal Government need not, at the Government’s discretion, be considered under paragraph (1)(B) as an evaluation factor for the contract award; and

(B)

if, pursuant to subparagraph (A), cost or price to the Federal Government is not considered as an evaluation factor for the contract award—

(i)

the disclosure requirement of paragraph (1)(C) shall not apply; and

(ii)

section 3406(c) of this title cost or price to the Federal Government shall be considered in conjunction with the issuance pursuant to of a task or delivery order under any contract resulting from the solicitation.

(4)

Definition .—

In paragraph (3), the term “qualifying offeror” means an offeror that—

(A)

is determined to be a responsible source;

(B)

submits a proposal that conforms to the requirements of the solicitation; and

(C)

the contracting officer has no reason to believe would likely offer other than fair and reasonable pricing.

(5)

Exclusion of applicability to certain contracts .—

15 U.S.C. 637(a)Paragraph (3) shall not apply to multiple task or delivery order contracts if the solicitation provides for sole source task or delivery order contracts pursuant to section 8(a) of the Small Business Act ().

(d)

Additional Information in Solicitation .—

Nothing in this section prohibits an agency from—

(1)

providing additional information in a solicitation, including numeric weights for all evaluation factors and subfactors on a case-by-case basis; or

(2)

stating in a solicitation that award will be made to the offeror that meets the solicitation’s mandatory requirements at the lowest cost or price.

(e)

Limitation on Evaluation of Purchase Options .—

The head of an agency, in issuing a solicitation for a contract to be awarded using sealed bid procedures, may not include in such solicitation a clause providing for the evaluation of prices for options to purchase additional property or services under the contract unless the head of the agency has determined that there is a reasonable likelihood that the options will be exercised.

Pub. L. 116–283, div. A, title XVIII, § 1811(e)Jan. 1, 2021134 Stat. 4170 Pub. L. 117–81, div. A, title XVII, § 1701(b)(4)(F)Dec. 27, 2021135 Stat. 2133(Added and amended , , ; , (d)(4), , , 2136.)

Editorial Notes

Codification

section 2305 of this title Pub. L. 116–283, § 1811(e)(2)Pub. L. 98–369, div. B, title VII, § 2723(b)July 18, 198498 Stat. 1191 Pub. L. 99–500, § 101(c) [title X, § 924(a)]Oct. 18, 1986100 Stat. 1783–82 Pub. L. 99–591, § 101(c) [title X, § 924(a)]Oct. 30, 1986100 Stat. 3341–82 Pub. L. 99–661, div. A, title IXNov. 14, 1986100 Stat. 3932 Pub. L. 100–26, § 3(5)Apr. 21, 1987101 Stat. 273 Pub. L. 101–510, div. A, title VIII, § 802(a)Nov. 5, 1990104 Stat. 1588 Pub. L. 103–355, title I, § 1011Oct. 13, 1994108 Stat. 3254 Pub. L. 104–106, div. D, title XLII, § 4202(a)(2)Feb. 10, 1996110 Stat. 653 Pub. L. 114–328, div. A, title VIII, § 825(a)Dec. 23, 2016130 Stat. 2279 Pub. L. 115–232, div. A, title VIII, § 836(c)(3)(A)Aug. 13, 2018132 Stat. 1864The text of subsec. (a) of , which was transferred to this section and amended by –(7), was based on , , ; , , , 1783–153, and , , , 3341–153; , formerly title IV, § 924(a), , , renumbered title IX, , , ; –(c), , , 1589; , 1012, title IV, § 4401(b), , , 3255, 3347; , , ; , , ; , , .

Prior Provisions

act Aug. 10, 1956, ch. 1041 70A Stat. 173 Pub. L. 85–155, title I, § 101(4)Aug. 21, 195771 Stat. 376 Pub. L. 90–130, § 1(9)(A)Nov. 8, 196781 Stat. 375 Pub. L. 96–513, title II, § 202Dec. 12, 198094 Stat. 2878Sept. 15, 1981A prior section 3206, , ; , , ; , (B), , , prescribed authorized strength of Regular Army Nurse Corps in commissioned officers on active list of Regular Army, prior to repeal by , title VII, § 701, , , 2955, effective .

Amendments

Pub. L. 116–283, § 1811(e)(2)section 2305 of this title2021—, transferred subsec. (a) of to this section and redesignated pars. (2) to (5) thereof as subsecs. (b) to (e), respectively.

Pub. L. 116–283, § 1811(e)(3)(A)Subsec. (a). , (E)(i), inserted heading and redesignated subpars. (A) to (C) of par. (1) as pars. (1) to (3), respectively.

Pub. L. 116–283, § 1811(e)(3)(E)Pub. L. 117–81, § 1701(b)(4)(F)Subsec. (a)(1). , as amended by , redesignated par. (1)(A) as (1), inserted heading, redesignated cls. (i) to (iii) as subpars. (A) to (C), respectively, and realigned margins.

Pub. L. 116–283, § 1811(e)(3)(A)Subsec. (a)(2). , (B), (D), redesignated par. (1)(B) as (2), inserted heading, and realigned margin, redesignated cls. (i) and (ii) as subpars. (A) and (B), respectively, and substituted “chapter 137 legacy provisions” for “this chapter” in introductory provisions and in subpar. (A). Former par. (2) redesignated subsec. (b).

Pub. L. 117–81, § 1701(d)(4)Subsec. (a)(3). , substituted “paragraphs (1) and (2)” for “subparagraphs (A) and (B)” in introductory provisions.

Pub. L. 116–283, § 1811(e)(3)(A)Pub. L. 117–81, § 1701(b)(4)(F), (C), (D), as amended by , redesignated par. (1)(C) as (3), inserted heading, and realigned margin and redesignated cls. (i) to (iii) as subpars. (A) to (C), respectively. Former par. (3) redesignated subsec. (c).

Pub. L. 116–283, § 1811(e)(2)Subsec. (b). , (4), redesignated subsec. (a)(2) as (b), inserted heading, and substituted “subsection (a)” for “paragraph (1)” in introductory provisions, redesignated subpar. (A) and its cls. (i) and (ii) as par. (1) and subpars. (A) and (B), respectively, and redesignated subpar. (B), its cls. (i) and (ii), and each of their subcls. (I) and (II) as par. (2), subpars. (A) and (B), and cls. (i) and (ii), respectively.

Pub. L. 116–283, § 1811(e)(2)Subsec. (c). , (5)(A), (B), redesignated subsec. (a)(3) as (c), inserted heading, redesignated subpars. (A) to (E) as pars. (1) to (5), respectively, and realigned margins.

Pub. L. 116–283, § 1811(e)(5)(A)Subsec. (c)(1). , (C), inserted heading, substituted “paragraph (3)” for “subparagraph (C)” in two places, redesignated cls. (i) to (iii) as subpars. (A) to (C), respectively, and, in subpar. (C) as redesignated, redesignated subcls. (I) to (III) as cls. (i) to (iii), respectively.

Pub. L. 116–283, § 1811(e)(5)(B)Subsec. (c)(2). , (D), redesignated par. (3)(B) as (2), inserted heading, and substituted “paragraph (1)(C)” for “clause (iii) of subparagraph (A)”.

Pub. L. 116–283, § 1811(e)(5)(B)Subsec. (c)(3). , (E), redesignated par. (3)(C) as (3), inserted heading, and substituted “section 3403(d)(1)(B)” for “section 2304a(d)(1)(B)” in introductory provisions; redesignated cl. (i) as subpar. (A) and substituted “paragraph (1)(B)” for “clause (ii) of subparagraph (A)”; and redesignated cl. (ii) and its subcls. (I) and (II) as subpar. (B) and cls. (i) and (ii), respectively, and substituted “subparagraph (A)” for “clause (i)” in introductory provisions, “paragraph (1)(C)” for “clause (iii) of subparagraph (A)” in cl. (i), and “section 3406(c)” for “section 2304c(b)” in cl. (ii).

Pub. L. 116–283, § 1811(e)(5)(B)Subsec. (c)(4). , (F), redesignated par. (3)(D) as (4), inserted heading, substituted “paragraph (3)” for “subparagraph (C)” in introductory provisions, and redesignated cls. (i) to (iii) as subpars. (A) to (C), respectively.

Pub. L. 116–283, § 1811(e)(5)(B)Subsec. (c)(5). , (G), redesignated par. (3)(E) as (5), inserted heading, and substituted “Paragraph (3)” for “Subparagraph (C)”.

Pub. L. 116–283, § 1811(e)(2)Subsec. (d). , (6), redesignated subsec. (a)(4) as (d), inserted heading, substituted “this section” for “this subsection” in introductory provisions, and redesignated subpars. (A) and (B) as pars. (1) and (2), respectively.

Pub. L. 116–283, § 1811(e)(2)Subsec. (e). , (7), redesignated subsec. (a)(5) as (e) and inserted heading.

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

section 1701(b)(4)(F) of Pub. L. 117–81 Pub. L. 116–283 section 1701(a)(2) of Pub. L. 117–81 section 3001 of this titleAmendment by applicable as if included in the enactment of title XVIII of as enacted, see , set out in a note preceding and Effective Date note below.

section 1701(d)(4) of Pub. L. 117–81 Pub. L. 116–283 section 1701(a)(3) of Pub. L. 117–81 section 3001 of this titleAmendment by to take effect immediately after the amendments made by title XVIII of have taken effect, see , set out in a note preceding and Effective Date note below.

Effective Date

Pub. L. 116–283Jan. 1, 2022section 1801(d) of Pub. L. 116–283 section 3001 of this titleSection and amendment by effective , with additional provisions for delayed implementation and applicability of existing law, see , set out as an Effective Date of 2021 Amendment note preceding .

Balancing Security and Innovation in Software Development and Acquisition

Pub. L. 116–283, div. A, title VIII, § 835Jan. 1, 2021134 Stat. 3755

“(a)

Requirements for Solicitations of Commercial and Developmental Solutions .—

The Under Secretary of Defense for Acquisition and Sustainment, in coordination with the Chief Information Officer of the Department of Defense, shall develop requirements for appropriate software security criteria to be included in solicitations for commercial and developmental solutions and the evaluation of bids submitted in response to such solicitations, including a delineation of what processes were or will be used for a secure software development life cycle. Such requirements shall include—

“(1)

establishment and enforcement of secure coding practices;

“(2)

management of supply chain risks and third-party software sources and component risks;

“(3)

security of the software development environment;

“(4)

secure deployment, configuration, and installation processes; and

“(5)

an associated vulnerability management plan and identification of tools that will be applied to achieve an appropriate level of security.

“(b)

Security Review of Code .—

The Under Secretary of Defense for Acquisition and Sustainment, in coordination with the Chief Information Officer of the Department of Defense, shall develop—

“(1)

procedures for the security review of code; and

“(2)

Public Law 115–91 10 U.S.C. 2223 other procedures necessary to fully implement the pilot program required under section 875 of the National Defense Authorization Act for Fiscal Year 2018 (; note).

“(c)

Coordination With Cybersecurity Acquisition Policy Efforts .—

The Under Secretary of Defense for Acquisition and Sustainment shall develop the requirements and procedures described under subsections (a) and (b) in coordination with the efforts of the Department of Defense to develop new cybersecurity and program protection policies and guidance that are focused on cybersecurity in the context of acquisition and program management and on safeguarding information.”

, , , provided that:

Pilot Program To Use Alpha Contracting Teams for Complex Requirements

Pub. L. 116–92, div. A, title VIII, § 802Dec. 20, 2019133 Stat. 1483 Pub. L. 119–60, div. A, title VIII, § 811(b)(4)(B)Dec. 18, 2025139 Stat. 948, , , which required the Secretary of Defense to select initiatives to participate in a pilot program to use teams that focused on the development of complex contract technical requirements for services, was repealed by , , .