§4106 — Title 41 Public Contracts | U.S. Code

Summary

Applies to task and delivery order contracts made under sections 4103 and 4105. Agencies do not have to give a separate public notice or run a new full competition each time they issue an order under those contracts, unless the rules for multiple-award contracts require it. When multiple contractors hold similar contracts, the agency must give all of them a fair chance to compete for any order above the micro-purchase threshold (see section 1902), unless the need is unusually urgent, only one contractor can meet the needed quality, the order is a logical follow-on to a prior competitive order, or the order must go to a particular contractor to meet a minimum guarantee. For orders over $5,000,000, contractors must get a clear notice of requirements, enough time to submit proposals, the main evaluation factors (including cost or price) and their importance, a written award explanation for best-value buys that shows how quality and price were weighed, and a post-award debriefing (per section 3704). Every order must include a clear statement of work. A protest is allowed only if the order expands the contract’s scope, period, or maximum value, or if the order is worth more than $10,000,000. Protests about orders over $10,000,000 go only to the Comptroller General. Agencies that award multiple such contracts must appoint a senior, independent task and delivery order ombudsman to review contractor complaints and help make sure everyone gets a fair opportunity; that person can also support competition.

Title 41, §4106

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(a)This section applies to task and delivery order contracts entered into under section 4103 and 4105 of this title.

(b)The following actions are not required for issuance of a task or delivery order under a task or delivery order contract:

(1)A separate notice for the order under section 1708 of this title or section 8(e) of the Small Business Act (15 U.S.C. 637(e)).

(2)Except as provided in subsection (c), a competition (or a waiver of competition approved in accordance with section 3304(e) of this title) that is separate from that used for entering into the contract.

(c)When multiple contracts are awarded under section 4103(d)(1)(B) or 4105(f) of this title, all contractors awarded the contracts shall be provided a fair opportunity to be considered, pursuant to procedures set forth in the contracts, for each task or delivery order in excess of the micro-purchase threshold under section 1902 of this title that is to be issued under any of the contracts, unless—

(1)the executive agency’s need for the services or property ordered is of such unusual urgency that providing the opportunity to all of those contractors would result in unacceptable delays in fulfilling that need;

(2)only one of those contractors is capable of providing the services or property required at the level of quality required because the services or property ordered are unique or highly specialized;

(3)the task or delivery order should be issued on a sole-source basis in the interest of economy and efficiency because it is a logical follow-on to a task or delivery order already issued on a competitive basis; or

(4)it is necessary to place the order with a particular contractor to satisfy a minimum guarantee.

(d)In the case of a task or delivery order in excess of $5,000,000, the requirement to provide all contractors a fair opportunity to be considered under subsection (c) is not met unless all such contractors are provided, at a minimum—

(1)a notice of the task or delivery order that includes a clear statement of the executive agency’s requirements;

(2)a reasonable period of time to provide a proposal in response to the notice;

(3)disclosure of the significant factors and subfactors, including cost or price, that the executive agency expects to consider in evaluating such proposals, and their relative importance;

(4)in the case of an award that is to be made on a best value basis, a written statement documenting—

(A)the basis for the award; and

(B)the relative importance of quality and price or cost factors; and

(5)an opportunity for a post-award debriefing consistent with the requirements of section 3704 of this title.

(e)A task or delivery order shall include a statement of work that clearly specifies all tasks to be performed or property to be delivered under the order.

(f)(1)A protest is not authorized in connection with the issuance or proposed issuance of a task or delivery order except for—

(A)a protest on the ground that the order increases the scope, period, or maximum value of the contract under which the order is issued; or

(B)a protest of an order valued in excess of $10,000,000.

(2)Notwithstanding section 3556 of title 31, the Comptroller General shall have exclusive jurisdiction of a protest authorized under paragraph (1)(B).

(g)(1)The head of each executive agency who awards multiple task or delivery order contracts under section 4103(d)(1)(B) or 4105(f) of this title shall appoint or designate a task and delivery order ombudsman who shall be responsible for reviewing complaints from the contractors on those contracts and ensuring that all of the contractors are afforded a fair opportunity to be considered for task or delivery orders when required under subsection (c).

(2)The task and delivery order ombudsman shall be a senior agency official who is independent of the contracting officer for the contracts and may be the executive agency’s advocate for competition.

Notes & Related Subsidiaries

Amendment Not Shown in TextThis section was derived from section 253j of former Title 41, Public Contracts, which was amended by Pub. L. 110–181, div. A, title VIII, § 843(b)(2)(C), Jan. 28, 2008, 122 Stat. 239, to add subsec. (e), from which subsec. (f) of this section was derived, prior to being repealed and reenacted as this section by Pub. L. 111–350, §§ 3, 7(b), Jan. 4, 2011, 124 Stat. 3677, 3855. The directory language of section 843(b)(2)(C) of Pub. L. 110–181 was amended by Pub. L. 111–383, div. A, title X, § 1075(f)(5)(B), Jan. 7, 2011, 124 Stat. 4376. For applicability of that amendment to this section, see section 6(a) of Pub. L. 111–350, set out as a Transitional and

Savings Provision

s note preceding section 101 of this title. section 843(b)(2)(C) of Pub. L. 110–181 was amended by striking “paragraph (1)” and inserting “subparagraph (A)”.

Historical and Revision Notes

Revised SectionSource (U.S. Code)Source (Statutes at Large) 4106(a)41:253j(g).June 30, 1949, ch. 288, title III, § 303J, as added Pub. L. 103–355, title I, § 1054(a), Oct. 13, 1994, 108 Stat. 3264; Pub. L. 110–181, div. A, title VIII, § 843(b)(2), Jan. 28, 2008, 122 Stat. 238. 4106(b)41:253j(a). 4106(c)41:253j(b). 4106(d)41:253j(d). 4106(e)41:253j(c). 4106(f)41:253j(e). 4106(g)41:253j(f). In subsection (g)(2), the words “advocate for competition” are substituted for “competition advocate” for consistency with section 1705 of the revised title.

Editorial Notes

Amendments

2019—Subsec. (c). Pub. L. 116–92 substituted “the micro-purchase threshold under section 1902 of this title” for “$2,500” in introductory provisions. 2016—Subsec. (f)(3). Pub. L. 114–260 and Pub. L. 114–328 amended subsec. (f) identically by striking out par. (3). Text read as follows: “Paragraph (1)(B) and paragraph (2) of this subsection shall not be in effect after

September 30, 2016.” 2011—Subsec. (f)(3). Pub. L. 112–81 amended par. (3) generally. Prior to amendment, text read as follows: “This subsection shall be in effect for three years, beginning on the date that is 120 days after

January 28, 2008.”

Statutory Notes and Related Subsidiaries

Postaward Explanations for Unsuccessful Offerors for Certain Contracts Pub. L. 116–92, div. A, title VIII, § 874, Dec. 20, 2019, 133 Stat. 1527, provided that: “Not later than 180 days after the date of the enactment of this Act [Dec. 20, 2019], the Federal Acquisition Regulation shall be revised to require that with respect to an offer for a task order or delivery order in an amount greater than the simplified acquisition threshold (as defined in section 134 of title 41, United States Code) and less than or equal to $5,500,000 issued under an indefinite delivery-indefinite quantity contract, the contracting officer for such contract shall, upon written request from an unsuccessful offeror, provide a brief explanation as to why such offeror was unsuccessful that includes a summary of the rationale for the award and an evaluation of the significant weak or deficient factors in the offeror’s offer.”

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