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

(a) (1) When an agency prepares to buy property or services, its head must state the agency's needs, seek bids or proposals in a way that aims for full and open competition, use advance planning and market research, and write specifications suited to the property or services while allowing full and open competition. (2) Each solicitation under "chapter 137 legacy provisions" must have specifications that allow full and open competition consistently with that chapter and contain restrictive terms only as needed to meet the agency's needs or as authorized by law. (3) The specification type must fit the agency's needs and the available market. Subject to those needs, it may describe (A) function, so different products or services can qualify; (B) performance, including acceptable ranges or minimum standards; or (C) design requirements. (b) Besides the specifications in subsection (a), a sealed-bid or competitive-proposal solicitation must, at a minimum, include the following, unless it is for commercial products or services using special simplified procedures or is for an amount no greater than the simplified acquisition threshold: (1) A statement of (A) every significant factor and subfactor the agency head reasonably expects to use in evaluating sealed bids, including price, or competitive proposals, including cost or price and cost-related, price-related, noncost-related, and nonprice-related factors and subfactors; and (B) how important each factor and subfactor is compared with the others. (2) (A) For sealed bids, a statement that bids will be evaluated without discussions with bidders and the time and place for opening them; or (B) for competitive proposals, a statement whether proposals and awards are intended to follow discussions with offerors, or to occur without discussions except minor clarification unless discussions are found necessary, and the time and place for submitting proposals. (c) (1) For each competitive-proposal solicitation, the agency head (A) must clearly state the relative importance of the evaluation factors and subfactors, including product or service quality, technical and management ability, prior experience, and past performance, except as paragraph (3) provides; (B) must include Federal cost or price as an evaluation factor, except as paragraph (3) provides; and (C) must tell offerors whether all other factors together are (i) significantly more important than cost or price, (ii) about equally important, or (iii) significantly less important. (2) Regulations implementing paragraph (1)(C) may not turn “significantly more important” or “significantly less important” into fixed numerical weights used uniformly for all solicitations or a class of solicitations. (3) If the agency head solicits multiple task or delivery order contracts under section 3403(d)(1)(B) for the same or similar services and intends to award one to each qualifying offeror, (A) the Government may choose not to use Federal cost or price as an award factor; and (B) if it does not, the paragraph (1)(C) disclosure is unnecessary, but cost or price must be considered when a task or delivery order is issued under section 3406(c) from a resulting contract. (4) “Qualifying offeror” means an offeror that (A) is found to be a responsible source, (B) submits a proposal meeting the solicitation, and (C) the contracting officer has no reason to think would probably offer other than fair and reasonable prices. (5) Paragraph (3) does not apply if the solicitation provides for sole-source task or delivery orders under section 8(a) of the Small Business Act (15 U.S.C. 637(a)). (d) This section does not stop an agency from (1) adding information, including case-by-case numerical weights for all factors and subfactors, or (2) saying that the award will go to the offeror meeting mandatory requirements at the lowest cost or price. (e) In a sealed-bid solicitation, the agency head may not include evaluation of prices for options to buy more property or services unless the head finds it reasonably likely that the options will be exercised.