41 U.S. Code § 3309 - Design-build selection procedures
(a) Authorization.— Unless the traditional acquisition approach of design-bid-build established under sections 1101 to 1104 of title 40 or another acquisition procedure authorized by law is used, the head of an executive agency shall use the two-phase selection procedures authorized in this section for entering into a contract for the design and construction of a public building, facility, or work when a determination is made under subsection (b) that the procedures are appropriate for use.
(b) Criteria for Use.— A contracting officer shall make a determination whether two-phase selection procedures are appropriate for use for entering into a contract for the design and construction of a public building, facility, or work when—
(2) design work must be performed before an offeror can develop a price or cost proposal for the contract;
(4) the contracting officer has considered information such as the following:
(c) Procedures Described.— Two-phase selection procedures consist of the following:
(1) Development of scope of work statement.— The agency develops, either in-house or by contract, a scope of work statement for inclusion in the solicitation that defines the project and provides prospective offerors with sufficient information regarding the Federal Government’s requirements (which may include criteria and preliminary design, budget parameters, and schedule or delivery requirements) to enable the offerors to submit proposals that meet the Federal Government’s needs. If the agency contracts for development of the scope of work statement, the agency shall contract for architectural and engineering services as defined by and in accordance with sections 1101 to 1104 of title 40.
(2) Solicitation of phase-one proposals.— The contracting officer solicits phase-one proposals that—
(A) include information on the offeror’s—
(3) Evaluation factors.— The evaluation factors to be used in evaluating phase-one proposals are stated in the solicitation and include specialized experience and technical competence, capability to perform, past performance of the offeror’s team (including the architect-engineer and construction members of the team), and other appropriate factors, except that cost-related or price-related evaluation factors are not permitted. Each solicitation establishes the relative importance assigned to the evaluation factors and subfactors that must be considered in the evaluation of phase-one proposals. The agency evaluates phase-one proposals on the basis of the phase-one evaluation factors set forth in the solicitation.
(4) Selection by contracting officer.—
(A) Number of offerors selected and what is to be evaluated.— The contracting officer selects as the most highly qualified the number of offerors specified in the solicitation to provide the property or services under the contract and requests the selected offerors to submit phase-two competitive proposals that include technical proposals and cost or price information. Each solicitation establishes with respect to phase two—
(i) the technical submission for the proposal, including design concepts or proposed solutions to requirements addressed within the scope of work, or both; and
(ii) the evaluation factors and subfactors, including cost or price, that must be considered in the evaluations of proposals in accordance with subsections (b) to (d) ofsection 3306 of this title.
(d) Solicitation To State Number of Offerors To Be Selected for Phase-Two Requests for Competitive Proposals.— A solicitation issued pursuant to the procedures described in subsection (c) shall state the maximum number of offerors that are to be selected to submit competitive proposals pursuant to subsection (c)(4). The maximum number specified in the solicitation shall not exceed 5 unless the agency determines with respect to an individual solicitation that a specified number greater than 5 is in the Federal Government’s interest and is consistent with the purposes and objectives of the two-phase selection process.
(e) Requirement for Guidance and Regulations.— The Federal Acquisition Regulation shall include guidance—
(1) regarding the factors that may be considered in determining whether the two-phase contracting procedures authorized by subsection (a) are appropriate for use in individual contracting situations;
Source(Pub. L. 111–350, § 3,Jan. 4, 2011, 124 Stat. 3759.)
|Revised Section||Source (U.S. Code)||Source (Statutes at Large)|
|June 30, 1949, ch. 288, title III, § 303M, as added Pub. L. 104–106, div. D, title XLI, § 4105(b)(1), Feb. 10, 1996, 110 Stat. 647.|
In subsections (a) and (c)(1), the words “sections 1101 to 1104 of title 40” are substituted for “the Brooks Architect-Engineers Act (title IX of this Act)” and “the Brooks Architect-Engineers Act (40 U.S.C. 541 et seq.)”, respectively, because of section 5(c) ofPublic Law 107–217 (40 U.S.C. note prec. 101) and for consistency with title 40.
In subsection (c)(5), the reference to section 253b of this title is limited to chapter 37 of the revised title for clarity.