41 U.S.C. § 3306 — Planning and solicitation requirements

(a) Planning and specifications. (1) In preparing to buy property or services, an executive agency must specify its needs and seek bids or proposals in a way designed for full and open competition; use advance planning and market research; and write specifications as needed for full and open competition while considering the property or services. (2) Every solicitation must have specifications that, consistently with this division, allow full and open competition and contain restrictive provisions only as needed for agency needs or authorized by law. (3) The specification type must fit the agency's needs and the available market. It may state (A) function, allowing different products or services; (B) performance, including acceptable ranges or minimum standards; or (C) design requirements.

(b) Solicitation contents. Besides (a)'s specifications, every sealed-bid or competitive-proposal solicitation, except a commercial-product or commercial-service procurement using special simplified procedures or a purchase at or below the simplified acquisition threshold, must at minimum include (1)(A) every significant factor and subfactor reasonably expected to be used to evaluate bids or proposals, including price or cost-related and noncost or nonprice factors; and (B) the relative importance of each; and (2)(A) for sealed bids, a statement that bids will be evaluated without bidder discussions and the time and place of opening; or (B) for competitive proposals, either a statement that evaluation and award will follow discussions, or that they will occur without discussions other than minor clarifications unless discussions become necessary, plus the time and place for proposals.

(c) Evaluation factors. (1) For every competitive-proposal solicitation, the agency must (A) clearly state the relative importance of factors and subfactors, including product or service quality, technical and management ability, prior experience, and past performance; (B) except under (3), include Federal cost or price as a factor that must be considered; and (C) except under (3), tell offerors whether all other factors together are (i) significantly more important, (ii) about equally important, or (iii) significantly less important than cost or price. (2) Regulations may not define significantly more important or significantly less important as fixed numeric weights used uniformly for all solicitations or a class of them. (3) If an agency solicits one or more hourly-rate service contracts under the cited authorities, intends to award to every qualifying offeror, and will separately compete task or delivery orders based on hourly rates, (A) the contracting officer need not consider price for the contract award; but (B) if price is omitted, cost or price must be considered when issuing each task or delivery order under a resulting contract. (4) Qualifying offeror means one that (A) is a responsible source; (B) submits a conforming proposal; (C) meets all technical requirements; and (D) is otherwise eligible for award.

(d) Additional solicitation information. This section does not stop an agency from (1) providing more information, including numeric factor weights case by case, or (2) stating that award goes to the offeror meeting mandatory requirements at the lowest cost or price.

(e) Purchase options. In a sealed-bid solicitation, an agency may not include a clause evaluating prices for options to buy additional property or services unless it finds the options are reasonably likely to be exercised.

(f) Telecommuting by Federal contractors. (1) Executive agency has the meaning given in section 133. (2) The Federal Acquisition Regulation must allow contractor employees to telecommute while performing contracts with executive agencies. (3) At minimum, a solicitation may not (A) make an offeror ineligible because its plan allows employees to telecommute, unless the contracting officer first determines that agency needs, including security, cannot be met with telecommuting and documents the basis; or (B) lower an offer's score because of such a plan, unless the officer first determines that agency needs, including security, would be harmed and documents the basis.