10 U.S.C. § 3301: Basis of award and rejection

The head of an agency shall evaluate sealed bids and competitive proposals and make an award based solely on the factors specified in the solicitation. All sealed bids or competitive proposals received in response to a solicitation may be rejected if the head of the agency determines that such action is in the public interest. when the Department of Defense should accept past performance on a wider range of projects, such as a requirement without much precedent, in order to have increased competition among eligible firms with capability to perform a requirement, by including commercial or non-government projects as relevant past performance for the purposes of awarding contracts or other agreements; a means by which the Department may validate non-government past performance references, including by requiring an official of an entity providing past performance references to attest to their authenticity and by providing verifiable contact information for the references; and using alternative methods of evaluation other than past performance that may be appropriate for a requirement without much precedent, such as demonstrations and testing of technologies as part of the proposal process for contracts or other awards of the Department. The guidance issued under paragraph (1) shall supplement existing Department of Defense policy and procedures for consideration of past performance and other evaluation factors and methods. Not later than 90 days after the date of the enactment of this Act, the Secretary of Defense shall convene the Defense Acquisition Regulations Council (in this section referred to as the ‘Council’), to make recommendations to identify and eliminate specific, unnecessary procedural barriers that disproportionately affect the ability of small business concerns and nontraditional defense contractors, to compete for contracts with the Department of Defense, with a focus on streamlining documentation and qualification requirements unrelated to the protection of privacy and civil liberties. The Council shall obtain input from the public, including from the APEX Accelerators program (formerly known as Procurement Technical Assistance Center network) and other contractor representatives, to identify procurement policies and regulations that are obsolete, overly burdensome or restrictive, not adequately harmonized, or otherwise serve to create barriers to small business concerns and nontraditional defense contractors contracting with the Department or that unnecessarily increase bid and proposal costs. The Council shall consider the input obtained under paragraph (2) and any other information determined to be relevant by the Council to identify legislative, regulatory, and other actions to increase competition and remove barriers to small business concerns and nontraditional defense contractors participating in the procurement process of the Department of Defense. Not later than 2 years after the date of the enactment of this Act, the Secretary of Defense shall implement the regulatory and other non-legislative actions identified under paragraph (3), as determined necessary by the Secretary, to remove barriers to entry for small business concerns and nontraditional defense contractors seeking to participate in Department of Defense procurement. Not later than two years after the date of the enactment of this Act, the Secretary of Defense shall provide to the Committees on Armed Services of the Senate and House of Representatives a briefing on the legislative actions identified under paragraph (3) and the actions implemented under paragraph (4). The Secretary of Defense shall advocate for and prioritize contracting policies that ensure that cost-efficiency and quality of goods and services are key determining factors in awarding procurement contracts. the term ‘nontraditional defense contractors’ has the meaning given such term in section 3014 of title 10 , United States Code; and the term ‘small business concern’ has the meaning given such term under section 3 of the Small Business Act ( 15 U.S.C. 632 ).” the information included in rating the subcontractor is not inconsistent with the information included in the rating for the prime contractor; the subcontractor evaluation is conducted consistent with the provisions of section 42.15 of the Federal Acquisition Regulation; negative evaluations of a subcontractor in no way obviate the prime contractor’s responsibility for successful completion of the contract and management of its subcontractors; and that in the judgment of the contracting officer, the overall execution of the work is impacted by the performance of the subcontractor or subcontractors. at a minimum, the rating for joint ventures includes an identification that allows the evaluation to be retrieved for each partner of the joint venture; each partner, through the joint venture, is given the same opportunity to submit comments, rebutting statements, or additional information, consistent with the provisions of section 42.15 of the Federal Acquisition Regulation; and the rating clearly identifies the responsibilities of joint venture partners for discrete elements of the work where the partners are not jointly and severally responsible for the project. where no severable element of the work has been completed; an insubstantial portion of the contract work has been completed in the preceding year; and the lack of performance is at no fault to the contractor; or where the contracting officer determines that there is an issue in dispute which, until resolved, would likely cause the annual rating to inaccurately reflect the past performance of the contractor.” Not later than 180 days after the date of the enactment of this Act [ Dec. 31, 2011 ], the Under Secretary of Defense for Acquisition and Sustainment shall develop a strategy for ensuring that timely, accurate, and complete information on contractor performance is included in past performance databases used for making source selection decisions. establish standards for the timeliness and completeness of past performance submissions for purposes of databases described in subsection (a); assign responsibility and management accountability for the completeness of past performance submissions for such purposes; and ensure that past performance submissions for such purposes are consistent with award fee evaluations in cases where such evaluations have been conducted. That affected contractors are provided, in a timely manner, information on contractor performance to be included in past performance databases in accordance with subsection (a). That such contractors are afforded up to 14 calendar days, from the date of delivery of the information provided in accordance with paragraph (1), to submit comments, rebuttals, or additional information pertaining to past performance for inclusion in such databases. That agency evaluations of contractor past performance, including any information submitted under paragraph (2), are included in the relevant past performance database not later than the date that is 14 days after the date of delivery of the information provided in accordance with paragraph (1). Nothing in this section shall be construed to prohibit a contractor from submitting comments, rebuttals, or additional information pertaining to past performance after the period described in subsection (c)(2) has elapsed or to prohibit a contractor from challenging a past performance evaluation in accordance with applicable laws, regulations, or procedures. Not later than 18 months after the date of the enactment of this Act [ Dec. 31, 2011 ], the Comptroller General of the United States shall submit to the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives] a report on the actions taken by the Under Secretary of Defense for Acquisition and Sustainment pursuant to this section, including an assessment of the extent to which such actions have achieved the objectives of this section.”