Collapse to view only § 3304. Post-award debriefings
- § 3301. Basis of award and rejection
- § 3302. Sealed bids
- § 3303. Competitive proposals
- § 3304. Post-award debriefings
- § 3305. Pre-award debriefings
- § 3306. Encouragement of alternative dispute resolution
- § 3307. Antitrust violations
- § 3308. Protests
- § 3309. Prohibition on release of contractor proposals
§ 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.
(Added and amended Pub. L. 116–283, div. A, title XVIII, § 1816(c)(2)(A), (3), Jan. 1, 2021, 134 Stat. 4182.)
§ 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.)
§ 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.
(e)Exception for Perishable Subsistence Items.—Subsections (c) and (d) do 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; Pub. L. 117–81, div. A, title XVII, § 1701(b)(6)(A), Dec. 27, 2021, 135 Stat. 2133.)
§ 3304. Post-award debriefings
(a)Request for Debriefing.—When a contract is awarded by the head of an agency on the basis of competitive proposals, an unsuccessful offeror, upon written request received by the agency within 3 days after the date on which the unsuccessful offeror receives the notification of the contract award, shall be debriefed and furnished the basis for the selection decision and contract award.
(b)When Debriefing to Be Conducted.—The head of the agency shall debrief the offeror within, to the maximum extent practicable, five days after receipt of the request by the agency.
(c)Information to Be Provided.—
(1) The debriefing shall include, at a minimum—
(A) the agency’s evaluation of the significant weak or deficient factors in the offeror’s offer;
(B) the overall evaluated cost and technical rating of the offer of the contractor awarded the contract and the overall evaluated cost and technical rating of the offer of the debriefed offeror;
(C) the overall ranking of all offers;
(D) a summary of the rationale for the award;
(E) in the case of a proposal that includes a commercial product that is an end item under the contract, the make and model of the item being provided in accordance with the offer of the contractor awarded the contract;
(F) 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 agency; and
(G) an opportunity for a disappointed offeror to submit, within two business days after receiving a post-award debriefing, additional questions related to the debriefing.
(2) The agency shall respond in writing to any additional question submitted under paragraph (1)(G) within five business days after receipt of the question. The agency shall not consider the debriefing to be concluded until the agency delivers its written responses to the disappointed offeror.
(d)Information Not to Be Included.—The debriefing may not include point-by-point comparisons of the debriefed offeror’s offer with other offers and may not disclose any information that is exempt from disclosure under section 552(b) of title 5.
(e)Inclusion of Statement in Solicitation.—Each solicitation for competitive proposals shall include a statement that information described in subsection (c) may be disclosed in post-award debriefings.
(f)After Successful Protest.—If, within one year after the date of the contract award and as a result of a successful procurement protest, the agency seeks to fulfill the requirement under the protested contract either on the basis of a new solicitation of offers or on the basis of new best and final offers requested for that contract, the agency shall make available to all offerors—
(1) the information provided in debriefings under this paragraph regarding the offer of the contractor awarded the contract; and
(2) the same information that would have been provided to the original offerors.
(g)Summary to Be Included in File.—The contracting officer shall include a summary of any debriefing conducted under this section in the contract file.
(Added and amended Pub. L. 116–283, div. A, title XVIII, § 1816(c)(2)(D), (6), Jan. 1, 2021, 134 Stat. 4182, 4183; Pub. L. 118–31, div. A, title XVIII, § 1801(a)(26), Dec. 22, 2023, 137 Stat. 684.)
§ 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 span, 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 under this section 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; Pub. L. 117–81, div. A, title XVII, § 1701(b)(6)(B), Dec. 27, 2021, 135 Stat. 2133.)
§ 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.)
§ 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.)
§ 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.)
§ 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.)