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.
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.
Pub. L. 116–283, div. A, title XVIII, § 1816(c)(2)(A)134 Stat. 4182(Added and amended , (3), , .)
Editorial Notes
Codification
section 2305 of this titlePub. L. 116–283, § 1816(c)(1)Pub. L. 98–369, div. B, title VII, § 2723(b)98 Stat. 1191Pub. L. 101–510, div. A, title VIII, § 802(d)(1)104 Stat. 1589The text of subsec. (b)(1), (2) of , which was transferred to this section and amended by , (2)(A), (3), was based on , , , 1192; , , .
Amendments
Pub. L. 116–283, § 1816(c)(3)section 2305 of this title2021—, redesignated subsec. (b)(1) and (2) of as subsecs. (a) and (b), respectively, of this section and inserted headings.
Statutory Notes and Related Subsidiaries
Effective Date
Pub. L. 116–283section 1801(d) of Pub. L. 116–283section 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 .
Increasing Competition in Defense Contracting
Pub. L. 119–60, div. A, title VIII, § 824139 Stat. 956
Uses of Past Performance.—
In general .—
Not later than 1 year after the date of the enactment of this Act [], the Secretary of Defense shall issue guidance, including examples and templates where appropriate, on—
when the Department of Defense should accept past performance on a wider range of projects, such as a requirement without much precedent, in order to have increased competition among eligible firms with capability to perform a requirement, by including commercial or non-government projects as relevant past performance for the purposes of awarding contracts or other agreements;
a means by which the Department may validate non-government past performance references, including by requiring an official of an entity providing past performance references to attest to their authenticity and by providing verifiable contact information for the references; and
using alternative methods of evaluation other than past performance that may be appropriate for a requirement without much precedent, such as demonstrations and testing of technologies as part of the proposal process for contracts or other awards of the Department.
Supplement not supplant .—
The guidance issued under paragraph (1) shall supplement existing Department of Defense policy and procedures for consideration of past performance and other evaluation factors and methods.
Enhancing Competition in Defense Procurement.—
Council recommendations .—
Not later than 90 days after the date of the enactment of this Act, the Secretary of Defense shall convene the Defense Acquisition Regulations Council (in this section referred to as the ‘Council’), to make recommendations to identify and eliminate specific, unnecessary procedural barriers that disproportionately affect the ability of small business concerns and nontraditional defense contractors, to compete for contracts with the Department of Defense, with a focus on streamlining documentation and qualification requirements unrelated to the protection of privacy and civil liberties.
Consultation .—
The Council shall obtain input from the public, including from the APEX Accelerators program (formerly known as Procurement Technical Assistance Center network) and other contractor representatives, to identify procurement policies and regulations that are obsolete, overly burdensome or restrictive, not adequately harmonized, or otherwise serve to create barriers to small business concerns and nontraditional defense contractors contracting with the Department or that unnecessarily increase bid and proposal costs.
Examination of actions .—
The Council shall consider the input obtained under paragraph (2) and any other information determined to be relevant by the Council to identify legislative, regulatory, and other actions to increase competition and remove barriers to small business concerns and nontraditional defense contractors participating in the procurement process of the Department of Defense.
Implementation .—
Not later than 2 years after the date of the enactment of this Act, the Secretary of Defense shall implement the regulatory and other non-legislative actions identified under paragraph (3), as determined necessary by the Secretary, to remove barriers to entry for small business concerns and nontraditional defense contractors seeking to participate in Department of Defense procurement.
Briefing .—
Not later than two years after the date of the enactment of this Act, the Secretary of Defense shall provide to the Committees on Armed Services of the Senate and House of Representatives a briefing on the legislative actions identified under paragraph (3) and the actions implemented under paragraph (4).
Consideration of Cost-efficiency and Qualify .—
The Secretary of Defense shall advocate for and prioritize contracting policies that ensure that cost-efficiency and quality of goods and services are key determining factors in awarding procurement contracts.
Definitions .—
In this section—
section 3014 of title 10 the term ‘nontraditional defense contractors’ has the meaning given such term in , United States Code; and
15 U.S.C. 632 the term ‘small business concern’ has the meaning given such term under section 3 of the Small Business Act ().”
Consideration of the Past Performance of Affiliate Companies of Small Business Concerns
Pub. L. 118–31, div. A, title VIII, § 865137 Stat. 348
“Not later than , the Secretary of Defense shall amend section 215.305 of the Defense Federal Acquisition Supplement (or any successor regulation) to require that when small business concerns bid on Department of Defense contracts, the past performance evaluation and source selection processes shall consider, if relevant, the past performance information of affiliate companies of the small business concerns.”
, , , provided that:
Inclusion of Best Available Information Regarding Past Performance of Subcontractors and Joint Venture Partners
Pub. L. 115–232, div. A, title VIII, § 823132 Stat. 1855
“Not later than 180 days after the date of the enactment of this Act [], the Secretary of Defense, in consultation with the Federal Acquisition Regulatory Council and the Administrator for Federal Procurement Policy, shall develop policies for the Department of Defense to ensure the best information regarding past performance of certain subcontractors and joint venture partners is available when awarding Department of Defense contracts. The policies shall include proposed revisions to the Defense Federal Acquisition Regulation Supplement as follows:“(1)“(A) “(B) “(C) “(D)
“(2)“(A) “(B) “(C)
“(3)“(A) “(B)“(i) “(ii)
“(C)
, , , provided that:
Required performance evaluations, as part of a government-wide evaluation reporting tool, for first-tier subcontractors on construction and architect-engineer contracts performing a portion of the contract valued at the threshold set forth in section 42.1502(e) of the Federal Acquisition Regulation, or 20 percent of the value of the prime contract, whichever is higher, provided—
the information included in rating the subcontractor is not inconsistent with the information included in the rating for the prime contractor;
the subcontractor evaluation is conducted consistent with the provisions of section 42.15 of the Federal Acquisition Regulation;
negative evaluations of a subcontractor in no way obviate the prime contractor’s responsibility for successful completion of the contract and management of its subcontractors; and
that in the judgment of the contracting officer, the overall execution of the work is impacted by the performance of the subcontractor or subcontractors.
Required performance evaluations, as part of a government-wide evaluation reporting tool, of individual partners of joint venture-awarded construction and architect-engineer contracts valued at the threshold set forth in section 42.1502(e) of the Federal Acquisition Regulation, to ensure that past performance on joint venture projects is considered in future awards to individual joint venture partners, provided—
at a minimum, the rating for joint ventures includes an identification that allows the evaluation to be retrieved for each partner of the joint venture;
each partner, through the joint venture, is given the same opportunity to submit comments, rebutting statements, or additional information, consistent with the provisions of section 42.15 of the Federal Acquisition Regulation; and
the rating clearly identifies the responsibilities of joint venture partners for discrete elements of the work where the partners are not jointly and severally responsible for the project.
Processes to request exceptions from the annual evaluation requirement under section 42.1502(a) of the Federal Acquisition Regulation for construction and architect-engineer contracts where submission of the annual evaluations would not provide the best representation of the performance of a contractor, including subcontractors and joint venture partners, including—
where no severable element of the work has been completed;
where the contracting officer determines that—
an insubstantial portion of the contract work has been completed in the preceding year; and
the lack of performance is at no fault to the contractor; or
where the contracting officer determines that there is an issue in dispute which, until resolved, would likely cause the annual rating to inaccurately reflect the past performance of the contractor.”
Inclusion of Data on Contractor Performance in Past Performance Databases for Source Selection Decisions
Pub. L. 112–81, div. A, title VIII, § 806125 Stat. 1487Pub. L. 112–239, div. A, title X, § 1076(a)(11)126 Stat. 1948Pub. L. 116–92, div. A, title IX, § 902(35)133 Stat. 1547
Strategy on Inclusion Required .—
Not later than 180 days after the date of the enactment of this Act [], the Under Secretary of Defense for Acquisition and Sustainment shall develop a strategy for ensuring that timely, accurate, and complete information on contractor performance is included in past performance databases used for making source selection decisions.
Elements .—
The strategy required by subsection (a) shall, at a minimum—
establish standards for the timeliness and completeness of past performance submissions for purposes of databases described in subsection (a);
assign responsibility and management accountability for the completeness of past performance submissions for such purposes; and
ensure that past performance submissions for such purposes are consistent with award fee evaluations in cases where such evaluations have been conducted.
Contractor Comments .—
Not later than 180 days after the date of the enactment of this Act [], the Under Secretary of Defense for Acquisition and Sustainment shall revise the Defense Supplement to the Federal Acquisition Regulation to require the following:
That affected contractors are provided, in a timely manner, information on contractor performance to be included in past performance databases in accordance with subsection (a).
That such contractors are afforded up to 14 calendar days, from the date of delivery of the information provided in accordance with paragraph (1), to submit comments, rebuttals, or additional information pertaining to past performance for inclusion in such databases.
That agency evaluations of contractor past performance, including any information submitted under paragraph (2), are included in the relevant past performance database not later than the date that is 14 days after the date of delivery of the information provided in accordance with paragraph (1).
Construction .—
Nothing in this section shall be construed to prohibit a contractor from submitting comments, rebuttals, or additional information pertaining to past performance after the period described in subsection (c)(2) has elapsed or to prohibit a contractor from challenging a past performance evaluation in accordance with applicable laws, regulations, or procedures.
Comptroller General Report .—
Not later than 18 months after the date of the enactment of this Act [], the Comptroller General of the United States shall submit to the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives] a report on the actions taken by the Under Secretary of Defense for Acquisition and Sustainment pursuant to this section, including an assessment of the extent to which such actions have achieved the objectives of this section.”