Collapse to view only § 3405. Task order contracts: advisory and assistance services
- § 3401. Task and delivery order contracts: definitions
- § 3403. Task and delivery order contracts: general authority
- § 3405. Task order contracts: advisory and assistance services
- § 3406. Task and delivery order contracts: orders
§ 3401. Task and delivery order contracts: definitionsIn this chapter:
(1)Delivery order contract.—The term “delivery order contract” means a contract for property—
(A) that does not procure or specify a firm quantity of property (other than a minimum or maximum quantity); and
(B) that provides for the issuance of orders for the delivery of property during the period of the contract.
(2)Task order contract.—The term “task order contract” means a contract for services—
(A) that does not procure or specify a firm quantity of services (other than a minimum or maximum quantity); and
(B) that provides for the issuance of orders for the performance of tasks during the period of the contract.
(Added Pub. L. 103–355, title I, § 1004(a)(1), Oct. 13, 1994, 108 Stat. 3253, § 2304d; renumbered § 3401 and amended Pub. L. 116–283, div. A, title XVIII, § 1820(b), Jan. 1, 2021, 134 Stat. 4191.)
§ 3403. Task and delivery order contracts: general authority
(a)Authority To Award.—Subject to the requirements of this section, section 3406 of this title, and other applicable law, the head of an agency may enter into a task or delivery order contract (as defined in section 3401 of this title) for procurement of services or property.
(b)Solicitation.—The solicitation for a task or delivery order contract shall include the following:
(1) The period of the contract, including the number of options to extend the contract and the period for which the contract may be extended under each option, if any.
(2) The maximum quantity or dollar value of the services or property to be procured under the contract.
(3) A statement of work, specifications, or other description that reasonably describes the general scope, nature, complexity, and purposes of the services or property to be procured under the contract.
(c)Applicability of Restriction on Use of Noncompetitive Procedures.—The head of an agency may use procedures other than competitive procedures to enter into a task or delivery order contract under this section only if—
(1) an exception in subsection (a) of section 3204 of this title applies to the contract; and
(2) the use of such procedures is approved in accordance with subsection (e) of such section.
(d)Single and Multiple Contract Awards.—
(1)Exercise of authority.—The head of an agency may exercise the authority provided in this section—
(A) to award a single task or delivery order contract; or
(B) if the solicitation states that the head of the agency has the option to do so, to award separate task or delivery order contracts for the same or similar services or property to two or more sources.
(2)Determination not required.—No determination under section 3203 of this title is required for award of multiple task or delivery order contracts under paragraph (1)(B).
(3)When Single Source Awards for Task or Delivery Order Contracts Exceeding $100,000,000 Are Allowed.—
(A) Except as provided under subparagraph (B), no task or delivery order contract in an amount estimated to exceed $100,000,000 (including all options) may be awarded to a single source unless the head of the agency determines in writing that—
(i) the task or delivery orders expected under the contract are so integrally related that only a single source can efficiently perform the work;
(ii) the contract provides only for firm, fixed price task orders or delivery orders for—(I) products for which unit prices are established in the contract; or(II) services for which prices are established in the contract for the specific tasks to be performed;
(iii) only one source is qualified and capable of performing the work at a reasonable price to the government; or
(iv) because of exceptional circumstances, it is necessary in the public interest to award the contract to a single source.
(B) A task or delivery order contract in an amount estimated to exceed $100,000,000 (including all options) may be awarded to a single source without the written determination otherwise required under subparagraph (A) if the head of the agency has made a written determination pursuant to section 3204(a) of this title that procedures other than competitive procedures may be used for the awarding of such contract.
(4)Regulations.—The regulations implementing this subsection shall—
(A) establish a preference for awarding, to the maximum extent practicable, multiple task or delivery order contracts for the same or similar services or property under the authority of paragraph (1)(B); and
(B) establish criteria for determining when award of multiple task or delivery order contracts would not be in the best interest of the Federal Government.
(e)Contract Modifications.—A task or delivery order may not increase the scope, period, or maximum value of the task or delivery order contract under which the order is issued. The scope, period, or maximum value of the contract may be increased only by modification of the contract.
(f)Contract Period.—The head of an agency entering into a task or delivery order contract under this section may provide for the contract to cover any period up to five years and may extend the contract period for one or more successive periods pursuant to an option provided in the contract or a modification of the contract. The total contract period as extended may not exceed 10 years unless such head of an agency determines in writing that exceptional circumstances necessitate a longer contract period.
(g)Inapplicability to Contracts for Advisory and Assistance Services.—Except as otherwise specifically provided in section 3405 of this title, this section does not apply to a task or delivery order contract for the procurement of advisory and assistance services (as defined in section 1105(g) of title 31).
(h)Relationship to Other Contracting Authority.—Nothing in this section may be construed to limit or expand any authority of the head of an agency or the Administrator of General Services to enter into schedule, multiple award, or task or delivery order contracts under any other provision of law.
(Added Pub. L. 103–355, title I, § 1004(a)(1), Oct. 13, 1994, 108 Stat. 3249, § 2304a; amended Pub. L. 108–136, div. A, title VIII, § 843(b), Nov. 24, 2003, 117 Stat. 1553; Pub. L. 108–375, div. A, title VIII, § 813(a), Oct. 28, 2004, 118 Stat. 2014; Pub. L. 110–181, div. A, title VIII, § 843(a)(1), Jan. 28, 2008, 122 Stat. 236; Pub. L. 111–84, div. A, title VIII, § 814(a), Oct. 28, 2009, 123 Stat. 2407; Pub. L. 112–81, div. A, title VIII, § 809(b), Dec. 31, 2011, 125 Stat. 1490; Pub. L. 115–232, div. A, title VIII, § 816, Aug. 13, 2018, 132 Stat. 1852; Pub. L. 116–92, div. A, title VIII, § 816, Dec. 20, 2019, 133 Stat. 1487; renumbered § 3403 and amended Pub. L. 116–283, div. A, title XVIII, § 1820(c), Jan. 1, 2021, 134 Stat. 4191; Pub. L. 117–81, div. A, title XVII, § 1701(b)(8)(B), Dec. 27, 2021, 135 Stat. 2133.)
§ 3405. Task order contracts: advisory and assistance services
(a)Advisory and Assistance Services Defined.—In this section, the term “advisory and assistance services” has the meaning given such term in section 1105(g) of title 31.
(b)Authority To Award.—
(1) Subject to the requirements of this section, section 3406 of this title, and other applicable law, the head of an agency may enter into a task order contract (as defined in section 3401 of this title) for procurement of advisory and assistance services.
(2) The head of an agency may enter into a task order contract for procurement of advisory and assistance services only under the authority of this section.
(c)Limitation on Contract Period.—The period of a task order contract entered into under this section, including all periods of extensions of the contract under options, modifications, or otherwise, may not exceed five years unless a longer period is specifically authorized in a law that is applicable to such contract.
(d)Content of Notice.—The notice required by section 1708 of title 41 and section 8(e) of the Small Business Act (15 U.S.C. 637(e)) shall reasonably and fairly describe the general scope, magnitude, and duration of the proposed task order contract in a manner that would reasonably enable a potential offeror to decide whether to request the solicitation and consider submitting an offer.
(e)Required Content of Solicitation and Contract.—
(1)Solicitation.—The solicitation for the proposed task order contract shall include the information (regarding services) described in section 3403(b) of this title.
(2)Contract.—A task order contract entered into under this section shall contain the same information that is required by paragraph (1) to be included in the solicitation of offers for that contract.
(f)Multiple Awards.—
(1)Authority to make multiple awards.—The head of an agency may, on the basis of one solicitation, award separate task order contracts under this section for the same or similar services to two or more sources if the solicitation states that the head of the agency has the option to do so.
(2)Content of solicitation.—If, in the case of a task order contract for advisory and assistance services to be entered into under this section, the contract period is to exceed three years and the contract amount is estimated to exceed $10,000,000 (including all options), the solicitation shall—
(A) provide for a multiple award authorized under paragraph (1); and
(B) include a statement that the head of the agency may also elect to award only one task order contract if the head of the agency determines in writing that only one of the offerers is capable of providing the services required at the level of quality required.
(3)Nonapplication.—Paragraph (2) does not apply in the case of a solicitation for which the head of the agency concerned determines in writing that, because the services required under the task order contract are unique or highly specialized, it is not practicable to award more than one contract.
(g)Contract Modifications.—
(1)Increase in scope, period, or maximum value of contract only by modification of contract.—A task order may not increase the scope, period, or maximum value of the task order contract under which the order is issued. The scope, period, or maximum value of the contract may be increased only by modification of the contract.
(2)Use of competitive procedures.—Unless use of procedures other than competitive procedures is authorized by an exception in subsection (a) of section 3204 of this title and approved in accordance with subsection (e) of such section, competitive procedures shall be used for making such a modification.
(3)Notice.—Notice regarding the modification shall be provided in accordance with section 1708 of title 41 and section 8(e) of the Small Business Act (15 U.S.C. 637(e)).
(h)Contract Extensions.—
(1)When contract may be extended.—Notwithstanding the limitation on the contract period set forth in subsection (c) or in a solicitation or contract pursuant to subsection (f), a task order contract entered into by the head of an agency under this section may be extended on a sole-source basis for a period not exceeding six months if the head of such agency determines that—
(A) the award of a follow-on contract has been delayed by circumstances that were not reasonably foreseeable at the time the initial contract was entered into; and
(B) the extension is necessary in order to ensure continuity of the receipt of services pending the award of, and commencement of performance under, the follow-on contract.
(2)Limit of one extension.—A task order contract may be extended under the authority of paragraph (1) only once and only in accordance with the limitations and requirements of this subsection.
(i)Inapplicability to Certain Contracts.—This section does not apply to a contract for the acquisition of property or services that includes acquisition of advisory and assistance services if the head of an agency entering into such contract determines that, under the contract, advisory and assistance services are necessarily incident to, and not a significant component of, the contract.
(Added Pub. L. 103–355, title I, § 1004(a)(1), Oct. 13, 1994, 108 Stat. 3251, § 2304b; amended Pub. L. 111–350, § 5(b)(13), Jan. 4, 2011, 124 Stat. 3843; renumbered § 3405 and amended Pub. L. 116–283, div. A, title XVIII, § 1820(d), Jan. 1, 2021, 134 Stat. 4192; Pub. L. 117–81, div. A, title XVII, § 1701(b)(8)(C), Dec. 27, 2021, 135 Stat. 2133.)
§ 3406. Task and delivery order contracts: orders
(a)Applicability.—This section applies to task and delivery order contracts entered into under sections 3403 and 3405 of this title.
(b)Issuance of Orders.—The following actions are not required for issuance of a task or delivery order under a task or delivery order contract:
(1) A separate notice for such order under section 1708 of title 41 or section 8(e) of the Small Business Act (15 U.S.C. 637(e)).
(2) Except as provided in subsection (c), a competition (or a waiver of competition approved in accordance with section 3204(e) of this title) that is separate from that used for entering into the contract.
(c)Multiple Award Contracts.—When multiple task or delivery order contracts are awarded under section 3403(d)(1)(B) or 3405(f) of this title, all contractors awarded such contracts shall be provided a fair opportunity to be considered, pursuant to procedures set forth in the contracts, for each task or delivery order in excess of $2,500 that is to be issued under any of the contracts unless—
(1) the agency’s need for the services or property ordered is of such unusual urgency that providing such opportunity to all such contractors would result in unacceptable delays in fulfilling that need;
(2) only one such contractor is capable of providing the services or property required at the level of quality required because the services or property ordered are unique or highly specialized;
(3) the task or delivery order should be issued on a sole-source basis in the interest of economy and efficiency because it is a logical follow-on to a task or delivery order already issued on a competitive basis;
(4) it is necessary to place the order with a particular contractor in order to satisfy a minimum guarantee; or
(5) the task or delivery order satisfies one of the exceptions in section 3204(a) of this title to the requirement to use competitive procedures.
(d)Enhanced Competition for Orders in Excess of $5,000,000.—In the case of a task or delivery order in excess of $5,000,000, the requirement to provide all contractors a fair opportunity to be considered under subsection (c) is not met unless all such contractors are provided, at a minimum—
(1) a notice of the task or delivery order that includes a clear statement of the agency’s requirements;
(2) a reasonable period of time to provide a proposal in response to the notice;
(3) disclosure of the significant factors and subfactors, including cost or price, that the agency expects to consider in evaluating such proposals, and their relative importance;
(4) in the case of an award that is to be made on a best value basis, a written statement documenting the basis for the award and the relative importance of quality and price or cost factors; and
(5) an opportunity for a post-award debriefing consistent with the requirements of section 3304 of this title.
(e)Statement of Work.—A task or delivery order shall include a statement of work that clearly specifies all tasks to be performed or property to be delivered under the order.
(f)Protests.—
(1) A protest is not authorized in connection with the issuance or proposed issuance of a task or delivery order except for—
(A) a protest on the ground that the order increases the scope, period, or maximum value of the contract under which the order is issued; or
(B) a protest of an order valued in excess of $25,000,000.
(2) Notwithstanding section 3556 of title 31, the Comptroller General of the United States shall have exclusive jurisdiction of a protest authorized under paragraph (1)(B).
(g)Task and Delivery Order Ombudsman.—
(1)Appointment or designation and responsibilities.—Each head of an agency who awards multiple task or delivery order contracts pursuant to section 3403(d)(1)(B) or 3405(f) of this title shall appoint or designate a task and delivery order ombudsman who shall be responsible for reviewing complaints from the contractors on such contracts and ensuring that all of the contractors are afforded a fair opportunity to be considered for task or delivery orders when required under subsection (c).
(2)Who is eligible.—The task and delivery order ombudsman shall be a senior agency official who is independent of the contracting officer for the contracts and may be the agency’s competition advocate.
(h)Architectural and Engineering Services.—
(1)Qualification-based selections required.—Task or delivery orders for architectural and engineering services issued under section 3403 or 3405 of this title shall be qualification-based selections executed in accordance with chapter 11 of title 40.
(2)Multiple award contracts.—When issuing a task or delivery order for architectural and engineering services under a multiple award contract, the head of an agency may not routinely request additional information relating to qualifications from the contractor for such multiple award contract.
(Added Pub. L. 103–355, title I, § 1004(a)(1), Oct. 13, 1994, 108 Stat. 3252, § 2304c; amended Pub. L. 110–181, div. A, title VIII, § 843(a)(2), Jan. 28, 2008, 122 Stat. 237; Pub. L. 111–350, § 5(b)(14), Jan. 4, 2011, 124 Stat. 3843; Pub. L. 111–383, div. A, title VIII, § 825, title X, § 1075(f)(5)(A), Jan. 7, 2011, 124 Stat. 4270, 4376; Pub. L. 112–239, div. A, title VIII, § 830, Jan. 2, 2013, 126 Stat. 1842; Pub. L. 114–328, div. A, title VIII, §§ 825(b), 835(a), Dec. 23, 2016, 130 Stat. 2280, 2285; renumbered § 3406 and amended Pub. L. 116–283, div. A, title XVIII, § 1820(e), Jan. 1, 2021, 134 Stat. 4194; Pub. L. 117–263, div. A, title VIII, § 802, Dec. 23, 2022, 136 Stat. 2693.)