U.S. Code, Title 41, Public Contracts

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Author: "U.S. Congress, Office of the Law Revision Counsel"

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§ 416. Procurement Notice

(a) Covered executive agency activities; publication of notice; time limitations

     (1) Except as provided in subsection (c) of this section—

     (A) an executive agency intending to—

     (i) solicit bids or proposals for a contract for property or services for a price expected to exceed $25,000; or

     (ii) place an order, expected to exceed $25,000, under a basic agreement, basic ordering agreement, or similar arrangement,

shall publish a notice of solicitation described in subsection (b) of this section;

     (B) an executive agency intending to solicit bids or proposals for a contract for property or services for a price expected to exceed $10,000, but not to exceed $25,000, shall post, for a period of not less than ten days, in a public place at the contracting office issuing the solicitation a notice of solicitation described in subsection (b) of this section; and

     (C) an executive agency awarding a contract for property or services for a price exceeding $25,000, or placing an order referred to in clause (A)(ii) exceeding $25,000, shall furnish for publication by the Secretary of Commerce a notice announcing the award or order if there is likely to be any subcontract under such contract or order.

     (2)(A) A notice of solicitation required to be published under paragraph (1) may be published—

     (i) by electronic means that meets the requirements for accessibility under paragraph (7); or

     (ii) by the Secretary of Commerce in the Commerce Business Daily.

     (B) The Secretary of Commerce shall promptly publish in the Commerce Business Daily each notice or announcement received under this subsection for publication by that means.

     (3) Whenever an executive agency is required by paragraph (1)(A) to publish a notice of solicitation, such executive agency may not—

     (A) issue the solicitation earlier than 15 days after the date on which the notice is published; or

     (B) in the case of a contract or order expected to be greater than the simplified acquisition threshold, establish a deadline for the submission of all bids or proposals in response to the notice required by paragraph (1)(A) that—

     (i) in the case of an order under a basic agreement, basic ordering agreement, or similar arrangement, is earlier than the date 30 days after the date the notice required by paragraph (1)(A)(ii) is published;

     (ii) in the case of a solicitation for research and development, is earlier than the date 45 days after the date the notice required by paragraph (1)(A)(i) is published; or

     (iii) in any other case, is earlier than the date 30 days after the date the solicitation is issued.

     (4) An executive agency intending to solicit offers for a contract for which a notice of solicitation is required to be posted under paragraph (1)(B) shall ensure that contracting officers consider each responsive offer timely received from an offeror.

     (5) An executive agency shall establish a deadline for the submission of all bids or proposals in response to a solicitation with respect to which no such deadline is provided by statute. Each deadline for the submission of offers shall afford potential offerors a reasonable opportunity to respond.

     (6) The Administrator shall prescribe regulations defining limited circumstances in which flexible deadlines can be used under paragraph (3) for the issuance of solicitations and the submission of bids or proposals for the procurement of commercial items.

     (7) A publication of a notice of solicitation by electronic means meets the requirements for accessibility under this paragraph if the notice is electronically accessible in a form that allows convenient and universal user access through the single Government-wide point of entry designated in the Federal Acquisition Regulation.

(b) Contents of notice

     Each notice of solicitation required by subparagraph (A) or (B) of subsection (a)(1) shall include—

     (1) an accurate description of the property or services to be contracted for, which description (A) shall not be unnecessarily restrictive of competition, and (B) shall include, as appropriate, the agency nomenclature, National Stock Number or other part number, and a brief description of the item’s form, fit, or function, physical dimensions, predominant material of manufacture, or similar information that will assist a prospective contractor to make an informed business judgment as to whether a copy of the solicitation should be requested;

     (2) provisions that—

     (A) state whether the technical data required to respond to the solicitation will not be furnished as part of such solicitation, and identify the source in the Government, if any, from which the technical data may be obtained; and

     (B) state whether an offeror, its product, or service must meet a qualification requirement in order to be eligible for award, and, if so, identify the office from which the qualification requirement may be obtained;

     (3) the name, business address, and telephone number of the contracting officer;

     (4) a statement that all responsible sources may submit a bid, proposal, or quotation (as appropriate) which shall be considered by the agency;

     (5) in the case of a procurement using procedures other than competitive procedures, a statement of the reason justifying the use of such procedures and the identity of the intended source; and

     (6) in the case of a contract in an amount estimated to be greater than $25,000 but not greater than the simplified acquisition threshold, or a contract for the procurement of commercial items using special simplified procedures—

     (A) a description of the procedures to be used in awarding the contract; and

     (B) a statement specifying the periods for prospective offerors and the contracting officer to take the necessary preaward and award actions.

(c) Exempted, etc., activities of executive agency

     (1) A notice is not required under subsection (a)(1) of this section if—

     (A) the proposed procurement is for an amount not greater than the simplified acquisition threshold and is to be conducted by—

     (i) using widespread electronic public notice of the solicitation in a form that allows convenient and universal user access through a single, Government-wide point of entry; and

     (ii) permitting the public to respond to the solicitation electronically;

     (B) the notice would disclose the executive agency’s needs and the disclosure of such needs would compromise the national security;

     (C) the proposed procurement would result from acceptance of—

     (i) any unsolicited proposal that demonstrates a unique and innovative research concept and the publication of any notice of such unsolicited research proposal would disclose the originality of thought or innovativeness of the proposal or would disclose proprietary information associated with the proposal; or

     (ii) a proposal submitted under section 638 of title 15;

     (D) the procurement is made against an order placed under a requirements contract, a task order contract, or a delivery order contract;

     (E) the procurement is made for perishable subsistence supplies;

     (F) the procurement is for utility services, other than telecommunication services, and only one source is available; or

     (G) the procurement is for the services of an expert for use in any litigation or dispute (including any reasonably foreseeable litigation or dispute) involving the Federal Government in any trial, hearing, or proceeding before any court, administrative tribunal, or agency, or in any part of an alternative dispute resolution process, whether or not the expert is expected to testify.

     (2) The requirements of subsection (a)(1)(A) of this section do not apply to any procurement under conditions described in paragraph (2), (3), (4), (5), or (7) of section 253(c) of this title or paragraph (2), (3), (4), (5), or (7) of section 2304(c) of title 10.

     (3) The requirements of subsection (a)(1)(A) of this section shall not apply in the case of any procurement for which the head of the executive agency makes a determination in writing, after consultation with the Administrator for Federal Procurement Policy and the Administrator of the Small Business Administration, that it is not appropriate or reasonable to publish a notice before issuing a solicitation.

(d) Availability of complete solicitation package; payment of fee

     An executive agency shall make available to any business concern, or the authorized representative of such concern, the complete solicitation package for any on-going procurement announced pursuant to a notice of solicitation under subsection (a) of this section. An executive agency may require the payment of a fee, not exceeding the actual cost of duplication, for a copy of such package.

(Pub. L. 93–400, § 18, as added Pub. L. 98–369, div. B, title VII, § 2732(a), July 18, 1984, 98 Stat. 1195; amended Pub. L. 98–577, title III, § 303(a), Oct. 30, 1984, 98 Stat. 3077; Pub. L. 99–500, § 101(c) [title X, § 922(b), (d)(2)], Oct. 18, 1986, 100 Stat. 1783–82, 1783–151, 1783–152, and Pub. L. 99–591, § 101(c) [title X, § 922(b), (d)(2)], Oct. 30, 1986, 100 Stat. 3341–82, 3341–151, 3341–152; Pub. L. 99–661, div. A, title IX, formerly title IV, § 922(b), (d)(2), Nov. 14, 1986, 100 Stat. 3931, 3932; renumbered title IX, Pub. L. 100–26, § 3(5), Apr. 21, 1987, 101 Stat. 273; Pub. L. 101–510, div. A, title VIII, § 806(d), Nov. 5, 1990, 104 Stat. 1592; Pub. L. 103–355, title I, § 1055(b)(1), title IV, §§ 4201(b), (c), 4202(a)–(c), title VIII, § 8302, title IX, § 9001(b), Oct. 13, 1994, 108 Stat. 3265, 3344, 3398, 3402; Pub. L. 104–106, div. D, title XLI, § 4101(c), title XLII, § 4202(d), title XLIII, §§ 4310, 4321(h)(3), Feb. 10, 1996, 110 Stat. 642, 654, 670, 675; Pub. L. 105–85, div. A, title VIII, § 850(e)(2), Nov. 18, 1997, 111 Stat. 1849; Pub. L. 105–261, div. A, title X, § 1069(d)(1), Oct. 17, 1998, 112 Stat. 2136; Pub. L. 106–398, § 1 [[div. A], title VIII, § 810(a), (b)], Oct. 30, 2000, 114 Stat. 1654, 1654A–209.)

Codification

     Pub. L. 99–591 is a corrected version of Pub. L. 99–500.

Amendments

     2000—Subsec. (a)(1)(A). Pub. L. 106–398, § 1 [[div. A], title VIII, § 810(a)(1)], substituted "publish" for "furnish for publication by the Secretary of Commerce" in concluding provisions.

     Subsec. (a)(2). Pub. L. 106–398, § 1 [[div. A], title VIII, § 810(a)(2)], added par. (2) and struck out former par. (2) which read as follows: "The Secretary of Commerce shall publish promptly in the Commerce Business Daily each notice required by paragraph (1)."

     Subsec. (a)(3). Pub. L. 106–398, § 1 [[div. A], title VIII, § 810(b)], substituted "publish a notice of solicitation" for "furnish a notice to the Secretary of Commerce" in introductory provisions and struck out "by the Secretary of Commerce" after "notice is published" in subpar. (A).

     Subsec. (a)(7). Pub. L. 106–398, § 1 [[div. A], title VIII, § 810(a)(3)], added par. (7).

     1998—Subsec. (c)(1)(A)(ii). Pub. L. 105–261 substituted a semicolon for period at end.

     1997—Subsec. (c)(1). Pub. L. 105–85 added subpar. (A), redesignated subpars. (C) to (H) as (B) to (G), respectively, and struck out former subpars. (A) and (B) which read as follows:

     "(A) the proposed procurement is for an amount not greater than the simplified acquisition threshold and is to be made through a system with interim FACNET capability certified pursuant to section 426a(a)(1) of this title or with full FACNET capability certified pursuant to section 426a(a)(2) of this title;

     "(B)(i) the proposed procurement is for an amount not greater than $250,000 and is to be made through a system with full FACNET capability certified pursuant to section 426a(a)(2) of this title; and

     "(ii) a certification has been made pursuant to section 426a(b) of this title that Government-wide FACNET capability has been implemented;".

     1996—Subsec. (a)(1)(B). Pub. L. 104–106, § 4101(c)(B), inserted "for a price expected to exceed $10,000, but not to exceed $25,000," after "property or services".

     Pub. L. 104–106, § 4101(c)(A), substituted "subsection (b) of this section; and" for "subsection (f) of this section—" and struck out cls. (i) and (ii) which read as follows:

     "(i) in the case of an executive agency other than the Department of Defense, if the contract is for a price expected to exceed $10,000, but not to exceed $25,000; and

     "(ii) in the case of the Department of Defense, if the contract is for a price expected to exceed $5,000, but not to exceed $25,000; and".

     Subsec. (a)(6). Pub. L. 104–106, § 4202(d)(1)(A), inserted "issuance of solicitations and the" after "paragraph (3) for the".

     Subsec. (b)(5). Pub. L. 104–106, § 4321(h)(3), inserted "and" after "source;".

     Subsec. (b)(6). Pub. L. 104–106, § 4202(d)(1)(B), substituted "threshold, or a contract for the procurement of commercial items using special simplified procedures—" for "threshold—".

     Subsec. (c)(1)(E). Pub. L. 104–106, § 4310, inserted ", a task order contract, or a delivery order contract" after "requirements contract".

     1994—Subsec. (a)(1). Pub. L. 103–355, § 4202(a)(1), substituted "$25,000" for "the small purchase threshold" wherever appearing.

     Subsec. (a)(1)(A). Pub. L. 103–355, § 9001(b)(1), substituted "notice of solicitation" for "notice" in concluding provisions.

     Subsec. (a)(3)(B). Pub. L. 103–355, § 4202(a)(2), inserted "in the case of a contract or order expected to be greater than the simplified acquisition threshold," before "establish a deadline".

     Subsec. (a)(4), (5). Pub. L. 103–355, § 4201(b), (c), added pars. (4) and (5).

     Subsec. (a)(6). Pub. L. 103–355, § 8302, added par. (6).

     Subsec. (b)(6). Pub. L. 103–355, § 4202(b), added par. (6).

     Subsec. (c)(1)(A) to (E). Pub. L. 103–355, § 4202(c), added subpars. (A) and (B) and redesignated former subpars. (A) to (C) as (C) to (E), respectively. Former subpars. (D) and (E) redesignated (F) and (G), respectively.

     Subsec. (c)(1)(F). Pub. L. 103–355, § 4202(c)(1), redesignated subpar. (D) as (F). Former subpar. (F) redesignated (H).

     Pub. L. 103–355, § 1055(b)(1), added subpar. (F).

     Subsec. (c)(1)(G), (H). Pub. L. 103–355, § 4202(c)(1), redesignated subpars. (E) and (F) as (G) and (H), respectively.

     Subsec. (d). Pub. L. 103–355, § 9001(b)(2), substituted "a notice of solicitation under subsection (a)" for "a notice under subsection (e)" in first sentence.

     1990—Subsec. (a)(1)(A). Pub. L. 101–510 substituted "the small purchase threshold; or" for "$25,000;" in cl. (i), substituted "the small purchase threshold" for "$25,000" and a comma for "; or" in cl. (ii), and struck out cl. (iii) which read as follows: "solicit bids or proposals for a contract for property or services for a price expected to exceed $10,000, if there is not a reasonable expectation that at least two offers will be received from responsive and responsible offerors,".

     Subsec. (a)(1)(B), (C). Pub. L. 101–510, § 806(d)(1), substituted "the small purchase threshold" for "$25,000" wherever appearing.

     1986—Subsec. (a)(1)(A). Pub. L. 99–500 and Pub. L. 99–591, § 101(c) [title X, § 922(b)(1)], and Pub. L. 99–661, § 922(b)(1), amended subpar. (A) identically, substituting "$25,000" for "$10,000" in cls. (i) and (ii) and adding cl. (iii).

     Subsec. (a)(1)(B), (C). Pub. L. 99–500 and Pub. L. 99–591, § 101(c) [title X, § 922(b)(2), (3)], and Pub. L. 99–661, § 922(b)(2), (3), amended par. (1) identically, adding subpar. (B) and redesignating former subpar. (B) as (C).

     Subsec. (b). Pub. L. 99–500 and Pub. L. 99–591, § 101(c) [title X, § 922(d)(2)], and Pub. L. 99–661, § 922(d)(2), amended subsec. (b) identically, substituting "subparagraph (A) or (B) of subsection (a)(1)" for "subsection (a)(1)(A)".

     1984—Subsec. (a)(1)(A). Pub. L. 98–577 designated existing provisions as cl. (i) and added cl. (ii).

     Subsec. (a)(1)(B). Pub. L. 98–577 inserted ", or placing an order referred to in clause (A)(ii) exceeding $25,000," before "shall furnish".

     Subsec. (a)(3)(B). Pub. L. 98–577 designated existing provisions as cl. (i), substituted provisions relating to an order under a basic agreement for former provisions which related to all bids, and added cls. (ii) and (iii).

     Subsec. (b)(1). Pub. L. 98–577 designated existing provisions as subpar. (A) and added subpar. (B).

     Subsec. (b)(2). Pub. L. 98–577 added par. (2). Former par. (2), which related to information about the officer or employee of the executive agency who may be contacted for purposes of obtaining a copy of the solicitation, was struck out.

     Subsec. (c)(1)(B). Pub. L. 98–577 designated existing provisions as cl. (i) and added cl. (ii).

     Subsec. (c)(1)(E). Pub. L. 98–577 added subpar. (E).

     Subsec. (d). Pub. L. 98–577 added subsec. (d).

Effective Date of 2000 Amendment

     Amendment by Pub. L. 106–398 effective Oct. 1, 2000, and applicable with respect to solicitations issued on or after that date, see section 1 [[div. A], title VIII, § 810(e)] of Pub. L. 106–398, set out as a note under section 637 of Title 15, Commerce and Trade.

Effective Date of 1997 Amendment

     Amendment by Pub. L. 105–85 effective 180 days after Nov. 18, 1997, see section 850(g) of Pub. L. 105–85, set out as a note under section 2302c of Title 10, Armed Forces.

Effective Date of 1996 Amendment

     For effective date and applicability of amendment by Pub. L. 104–106, see section 4401 of Pub. L. 104–106, set out as a note under section 251 of this title.

Effective Date of 1994 Amendment

     For effective date and applicability of amendment by Pub. L. 103–355, see section 10001 of Pub. L. 103–355, set out as a note under section 251 of this title.

Effective Date of 1984 Amendment

     Section 303(b) of Pub. L. 98–577 provided that: "The amendment made by subsection (a) [amending this section] shall take effect with respect to any solicitation issued after March 31, 1985."

Effective Date

     Section applicable to any solicitation for bids or proposals issued after Mar. 31, 1985, see section 2751 of Pub. L. 98–369, set out as an Effective Date of 1984 Amendment note under section 251 of this title.

Implementation of Amendment by Pub. L. 105–85

     Amendment by Pub. L. 105–85 to be implemented in a manner consistent with any applicable international agreements, see section 850(e)(3) of Pub. L. 105–85, set out as a note under section 637 of Title 15, Commerce and Trade.

Applicability to Tennessee Valley Authority

     Section 303(c) of Pub. L. 98–577 provided that: "The provisions of the amendments made by subsection (a) of this section [amending this section] shall apply to the Tennessee Valley Authority only with respect to procurements to be paid from appropriated funds."

Section Referred to in Other Sections

     This section is referred to in sections 253, 253i, 253j, 427 of this title; title 10 sections 2304, 2304b, 2304c; title 15 section 637; title 20 section 1018a.

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Chicago: "U.S. Congress, Office of the Law Revision Counsel", "§ 416. Procurement Notice," U.S. Code, Title 41, Public Contracts in U.S. Code, Title 41, Public Contracts (Washington, D.C.: Government Printing Office, 2002), Original Sources, accessed April 17, 2024, http://www.originalsources.com/Document.aspx?DocID=95IPHESFX2RQ1AY.

MLA: "U.S. Congress, Office of the Law Revision Counsel". "§ 416. Procurement Notice." U.S. Code, Title 41, Public Contracts, in U.S. Code, Title 41, Public Contracts, Washington, D.C., Government Printing Office, 2002, Original Sources. 17 Apr. 2024. http://www.originalsources.com/Document.aspx?DocID=95IPHESFX2RQ1AY.

Harvard: "U.S. Congress, Office of the Law Revision Counsel", '§ 416. Procurement Notice' in U.S. Code, Title 41, Public Contracts. cited in 2002, U.S. Code, Title 41, Public Contracts, Government Printing Office, Washington, D.C.. Original Sources, retrieved 17 April 2024, from http://www.originalsources.com/Document.aspx?DocID=95IPHESFX2RQ1AY.