Full and open competition

41 U.S.C. § 3301

• Title: 41 — Public Contracts
• Chapter: 33 — PLANNING AND SOLICITATION

Text

(a) In General.—Except as provided in sections 3303, 3304(a), and 3305 of this title and except in the case of procurement procedures otherwise expressly authorized by statute, an executive agency in conducting a procurement for property or services shall—
(1) obtain full and open competition through the use of competitive procedures in accordance with the requirements of this division and the Federal Acquisition Regulation; and
(2) use the competitive procedure or combination of competitive procedures that is best suited under the circumstances of the procurement.
(b) Appropriate Competitive Procedures.—
(1) Use of sealed bids.—In determining the competitive procedures appropriate under the circumstance, an executive agency shall—
(A) solicit sealed bids if—
(i) time permits the solicitation, submission, and evaluation of sealed bids;
(ii) the award will be made on the basis of price and other price-related factors;
(iii) it is not necessary to conduct discussions with the responding sources about their bids; and
(iv) there is a reasonable expectation of receiving more than one sealed bid; or
(B) request competitive proposals if sealed bids are not appropriate under subparagraph (A).
(2) Sealed bid not required.—Paragraph (1)(A) does not require the use of sealed-bid procedures in cases in which section 204(e) 1 of title 23 applies.
(c) Efficient Fulfillment of Government Requirements.—The Federal Acquisition Regulation shall ensure that the requirement to obtain full and open competition is implemented in a manner that is consistent with the need to efficiently fulfill the Federal Government's requirements.

History

(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3745.)

Editorial Notes

Editorial Notes

References in Text
Section 204 of title 23, referred to in subsec. (b)(2), was repealed and a new section 204 enacted by Pub. L. 112–141, div. A, title I, §1119(a), July 6, 2012, 126 Stat. 473, 489.

Statutory Notes and Related Subsidiaries

Regulations
Pub. L. 113–291, div. A, title VIII, §836, Dec. 19, 2014, 128 Stat. 3449, provided that: "Not later than 180 days after the date of the enactment of this Act [Dec. 19, 2014], the Administrator for Federal Procurement Policy shall prescribe regulations providing that when the Federal Government makes a purchase of services and supplies offered under the Federal Strategic Sourcing Initiative (managed by the Office of Federal Procurement Policy) but such Initiative is not used, the contract file for the purchase shall include a brief analysis of the comparative value, including price and nonprice factors, between the services and supplies offered under such Initiative and services and supplies offered under the source or sources used for the purchase."

Construction
Pub. L. 98–369, div. B, title VII, §2711(c), July 18, 1984, 98 Stat. 1181, provided that: "The amendments made by this section [see Tables for classification] do not supersede or affect the provisions of section 8(a) of the Small Business Act (15 U.S.C. 637(a))."

Pilot Programs for Authority To Acquire Innovative Commercial Items Using General Solicitation Competitive Procedures
Pub. L. 114–328, div. A, title VIII, §880, Dec. 23, 2016, 130 Stat. 2313, as amended by Pub. L. 115–232, div. A, title VIII, §836(f)(10), Aug. 13, 2018, 132 Stat. 1872; Pub. L. 117–263, div. G, title LXXII, §7227(a), Dec. 23, 2022, 136 Stat. 3675, provided that:
"(a) Authority.—
"(1) In general.—The head of an agency may carry out a pilot program, to be known as a 'commercial solutions opening pilot program', under which innovative commercial products may be acquired through a competitive selection of proposals resulting from a general solicitation and the peer review of such proposals.
"(2) Head of an agency.—In this section, the term 'head of an agency' means the following:
"(A) The Secretary of Homeland Security.
"(B) The Administrator of General Services.
"(3) Applicability of section.—This section applies to the following agencies:
"(A) The Department of Homeland Security.
"(B) The General Services Administration.
"(b) Treatment as Competitive Procedures.—Use of general solicitation competitive procedures for the pilot program under subsection (a) shall be considered, in the case of the Department of Homeland Security and the General Services Administration, to be use of competitive procedures for purposes of division C of [subtitle I of] title 41, United States Code (as defined in section 152 of such title).
"(c) Limitation.—The head of an agency may not enter into a contract under the pilot program for an amount in excess of $25,000,000.
"(d) Guidance.—The head of an agency shall issue guidance for the implementation of the pilot program under this section within that agency. Such guidance shall be issued in consultation with the Office of Management and Budget and shall be posted for access by the public.
"(e) Report Required.—
"(1) In general.—Not later than three years after the date of the enactment of this Act [Dec. 23, 2016], the head of an agency shall submit to the congressional committees specified in paragraph (3) a report on the activities the agency carried out under the pilot program.
"(2) Elements of report.—Each report under this subsection shall include the following:
"(A) An assessment of the impact of the pilot program on competition.
"(B) A comparison of acquisition timelines for—
"(i) procurements made using the pilot program; and
"(ii) procurements made using other competitive procedures that do not use general solicitations.
"(C) A recommendation on whether the authority for the pilot program should be made permanent.
"(3) Specified congressional committees.—The congressional committees specified in this paragraph are the Committee on Homeland Security and Governmental Affairs of the Senate and the Committee on Oversight and Government Reform [now Committee on Oversight and Accountability] of the House of Representatives.
"(f) Definitions.—In this section—
"(1) the term 'commercial product'—
"(A) has the meaning given the term 'commercial item' in section 2.101 of the Federal Acquisition Regulation; and
"(B) includes a commercial product or a commercial service, as defined in sections 103 and 103a, respectively, of title 41, United States Code; and
"(2) the term 'innovative' means—
"(A) any new technology, process, or method, including research and development; or
"(B) any new application of an existing technology, process, or method.
"(g) Termination.—The authority to enter into a contract under a pilot program under this section terminates on September 30, 2027."

Governmentwide Software Purchasing Program
Pub. L. 113–291, div. A, title VIII, §837, Dec. 19, 2014, 128 Stat. 3450, provided that:
"(a) In General.—The Administrator of General Services shall identify and develop a strategic sourcing initiative to enhance Governmentwide acquisition, shared use, and dissemination of software, as well as compliance with end user license agreements.
"(b) Governmentwide User License Agreement.—The Administrator, in developing the initiative under subsection (a), shall allow for the purchase of a license agreement that is available for use by all Executive agencies (as defined in section 105 of title 5, United States Code) as one user to the maximum extent practicable and as appropriate."