41 Usc 3306

Page 67

TITLE 41—PUBLIC CONTRACTS

utive agency shall comply with the Federal Acquisition Regulation provisions referred to in
section 1901(e) of this title.
(Pub. L. 111–350, § 3, Jan. 4, 2011, 124 Stat. 3752.)
HISTORICAL AND REVISION NOTES
Revised
Section
3305 ............

Source (U.S. Code)
41:253(g).

Source (Statutes at Large)
June 30, 1949, ch. 288, title
III, § 303(g), 63 Stat. 395;
July 12, 1952, ch. 703,
§ 1(m), 66 Stat. 594; Pub. L.
90–268, § 2, Mar. 16, 1968, 82
Stat. 49; Pub. L. 98–369,
title VII, § 2711(a)(1), July
18, 1984, 98 Stat. 1178; Pub.
L.
99–145,
title
XIII,
§ 1304(c)(3), Nov. 8, 1985, 99
Stat. 742; Pub. L. 101–510,
title VIII, § 806(c), Nov. 5,
1990, 104 Stat. 1592; Pub. L.
103–355, title I, § 1051(2),
title IV, § 4402(a), Oct. 13,
1994, 108 Stat. 3260, 3348;
Pub. L. 104–106, title XLII,
§ 4202(b)(1), Feb. 10, 1996,
110 Stat. 653; Pub. L.
105–85,
title
VIII,
§ 850(f)(4)(B), Nov. 18, 1997,
111 Stat. 1850.

§ 3306. Planning and solicitation requirements
(a) PLANNING AND SPECIFICATIONS.—
(1) PREPARING FOR PROCUREMENT.—In preparing for the procurement of property or services, an executive agency shall—
(A) specify its 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 the manner
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 this division shall include
specifications that—
(A) consistent with this division, permit
full and open competition; and
(B) include restrictive provisions or conditions only to the extent necessary to satisfy
the needs of the executive 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 executive agency and the market available to satisfy those needs. Subject to those 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),
each solicitation for sealed bids or competitive
proposals (other than for a procurement for
commercial items using special simplified procedures or a purchase for an amount not greater
than the simplified acquisition threshold) shall
at a minimum include—

§ 3306

(1) a statement of—
(A) all significant factors and significant
subfactors that the executive 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 the
award made after, discussions with the offerors, or a statement that the proposals are intended to be evaluated, and the 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, an executive agency
shall—
(A) establish clearly 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) include cost or price to the Federal
Government as an evaluation factor that
must be considered in the evaluation of proposals; and
(C) 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.—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.
(d) ADDITIONAL INFORMATION IN SOLICITATION.—
This section does not prohibit an executive
agency from—
(1) providing additional information in a solicitation, including numeric weights for all
evaluation factors and subfactors on a caseby-case basis; or
(2) stating in a solicitation that award will
be made to the offeror that meets the solicita-

§ 3307

TITLE 41—PUBLIC CONTRACTS

tion’s mandatory requirements at the lowest
cost or price.
(e) LIMITATION ON EVALUATION OF PURCHASE
OPTIONS.—An executive agency, in issuing a solicitation for a contract to be awarded using
sealed bid procedures, may not include in the solicitation a clause providing for the evaluation
of prices for options to purchase additional property or services under the contract unless the
executive agency has determined that there is a
reasonable likelihood that the options will be
exercised.
(f) AUTHORIZATION OF TELECOMMUTING FOR
FEDERAL CONTRACTORS.—
(1) DEFINITION.—In this subsection, the term
‘‘executive agency’’ has the meaning given
that term in section 133 of this title.
(2) FEDERAL ACQUISITION REGULATION TO
ALLOW TELECOMMUTING.—The Federal Acquisition Regulation issued in accordance with sections 1121(b) and 1303(a)(1) of this title shall
permit telecommuting by employees of Federal Government contractors in the performance of contracts entered into with executive
agencies.
(3) SCOPE OF ALLOWANCE.—The Federal Acquisition Regulation at a minimum shall provide that a solicitation for the acquisition of
property or services may not set forth any requirement or evaluation criteria that would—
(A) render an offeror ineligible to enter
into a contract on the basis of the inclusion
of a plan of the offeror to allow the offeror’s
employees to telecommute, unless the contracting officer concerned first determines
that the requirements of the agency, including security requirements, cannot be met if
telecommuting is allowed and documents in
writing the basis for the determination; or
(B) reduce the scoring of an offer on the
basis of the inclusion in the offer of a plan of
the offeror to allow the offeror’s employees
to telecommute, unless the contracting officer concerned first determines that the requirements of the agency, including security
requirements, would be adversely impacted
if telecommuting is allowed and documents
in writing the basis for the determination.
(Pub. L. 111–350, § 3, Jan. 4, 2011, 124 Stat. 3752.)
HISTORICAL AND REVISION NOTES
Revised
Section

Source (U.S. Code)

3306(a)–(e) ..

41:253a.

3306(f) ........

41:253a note.

Source (Statutes at Large)
June 30, 1949, ch. 288, title
III, § 303A, as added Pub.
L.
98–369,
title
VII,
§ 2711(a)(2), July 18, 1984, 98
Stat. 1178; Pub. L. 103–355,
title I, §§ 1061(a), (b), 1062,
title IV, § 4402(b), Oct. 13,
1994, 108 Stat. 3266, 3267,
3348; Pub. L. 104–106, title
XLII, § 4202(b)(2), Feb. 10,
1996, 110 Stat. 653.
Pub. L. 108–136, title XIV,
§ 1428, Nov. 24, 2003, 117
Stat. 1670.

In subsection (f)(2), the words ‘‘Not later than 180
days after the date of the enactment of this Act, the
Federal Acquisition Regulatory Council shall amend’’
are omitted as obsolete.

§ 3307. Preference for commercial items
(a) RELATIONSHIP OF PROVISIONS OF LAW TO
PROCUREMENT OF COMMERCIAL ITEMS.—

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(1) THIS DIVISION.—Unless otherwise specifically provided, all other provisions in this division also apply to the procurement of commercial items.
(2) LAWS LISTED IN FEDERAL ACQUISITION REGULATION.—A contract for the procurement of a
commercial item entered into by the head of
an executive agency is not subject to a law
properly listed in the Federal Acquisition Regulation pursuant to section 1906 of this title.
(b) PREFERENCE.—The head of each executive
agency shall ensure that, to the maximum extent practicable—
(1) requirements of the executive agency
with respect to a procurement of supplies or
services are stated in terms of—
(A) functions to be performed;
(B) performance required; or
(C) essential physical characteristics;
(2) those requirements are defined so that
commercial items or, to the extent that commercial items suitable to meet the executive
agency’s needs are not available, nondevelopmental items other than commercial items
may be procured to fulfill those requirements;
and
(3) offerors of commercial items and nondevelopmental items other than commercial
items are provided an opportunity to compete
in any procurement to fill those requirements.
(c) IMPLEMENTATION.—The head of each executive agency shall ensure that procurement officials in that executive agency, to the maximum
extent practicable—
(1) acquire commercial items or nondevelopmental items other than commercial items to
meet the needs of the executive agency;
(2) require that prime contractors and subcontractors at all levels under contracts of the
executive agency incorporate commercial
items or nondevelopmental items other than
commercial items as components of items supplied to the executive agency;
(3) modify requirements in appropriate cases
to ensure that the requirements can be met by
commercial items or, to the extent that commercial items suitable to meet the executive
agency’s needs are not available, nondevelopmental items other than commercial items;
(4) state specifications in terms that enable
and encourage bidders and offerors to supply
commercial items or, to the extent that commercial items suitable to meet the executive
agency’s needs are not available, nondevelopmental items other than commercial items in
response to the executive agency solicitations;
(5) revise the executive agency’s procurement policies, practices, and procedures not
required by law to reduce any impediments in
those policies, practices, and procedures to the
acquisition of commercial items; and
(6) require training of appropriate personnel
in the acquisition of commercial items.
(d) MARKET RESEARCH.—
(1) WHEN TO BE USED.—The head of an executive agency shall conduct market research appropriate to the circumstances—
(A) before developing new specifications
for a procurement by that executive agency;
and