41 U.S.C. § 3309 — Design-build selection procedures

Page 99 TITLE 41—PUBLIC CONTRACTS § 3309 cial products or commercial services’’ for ‘‘commercial items’’ and, in cl. (i), substituted ‘‘commercial prod- ucts, commercial components, or commercial services’’ for ‘‘commercial items or commercial components’’. Subsec. (e)(2)(D). Pub. L. 115–232, § 836(b)(10)(A)(v)(IV), substituted ‘‘commercial products, commercial compo- nents, or commercial services’’ for ‘‘commercial items or commercial components’’. Subsec. (e)(4)(A). Pub. L. 115–232, § 836(b)(10)(A)(v)(VI), substituted ‘‘commercial products or commercial serv- ices’’ for ‘‘commercial items’’ in introductory provi- sions. Subsec. (e)(4)(C)(i). Pub. L. 115–232, § 836(b)(10)(A)(v)(VII), substituted ‘‘commercial product, as described in section 103a(1)’’ for ‘‘commercial item, as described in section 103(5)’’. Subsec. (e)(5). Pub. L. 115–232, § 836(b)(10)(A)(v)(VIII), substituted ‘‘products’’ for ‘‘items’’ wherever appear- ing. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2018 AMENDMENT Amendment by Pub. L. 115–232 effective Jan. 1, 2020, subject to a savings provision, see section 836(h) of Pub. L. 115–232, set out as an Effective Date of 2018 Amend- ment; Savings Provision note under section 453b of Title 6, Domestic Security. § 3308. Planning for future competition in con- tracts for major systems (a) DEVELOPMENT CONTRACT.— (1) DETERMINING WHETHER PROPOSALS ARE NECESSARY.—In preparing a solicitation for the award of a development contract for a major system, the head of an agency shall consider requiring in the solicitation that an offeror in- clude in its offer proposals described in para- graph (2). In determining whether to require the proposals, the head of the agency shall consider the purposes for which the system is being procured and the technology necessary to meet the system’s required capabilities. If the proposals are required, the head of the agency shall consider them in evaluating the offeror’s price. (2) CONTENTS OF PROPOSALS.—The proposals that the head of an agency is to consider re- quiring in a solicitation for the award of a de- velopment contract are the following: (A) Proposals to incorporate in the design of the major system items that are currently available within the supply system of the Federal agency responsible for the major system, available elsewhere in the national supply system, or commercially available from more than one source. (B) With respect to items that are likely to be required in substantial quantities dur- ing the system’s service life, proposals to in- corporate in the design of the major system items that the Federal Government will be able to acquire competitively in the future. (b) PRODUCTION CONTRACT.— (1) DETERMINING WHETHER PROPOSALS ARE NECESSARY.—In preparing a solicitation for the award of a production contract for a major system, the head of an agency shall consider requiring in the solicitation that an offeror in- clude in its offer proposals described in para- graph (2). In determining whether to require the proposals, the head of the agency shall consider the purposes for which the system is being procured and the technology necessary to meet the system’s required capabilities. If the proposals are required, the head of the agency shall consider them in evaluating the offeror’s price. (2) CONTENT OF PROPOSALS.—The proposals that the head of an agency is to consider re- quiring in a solicitation for the award of a pro- duction contract are proposals identifying op- portunities to ensure that the Federal Govern- ment will be able to obtain on a competitive basis items procured in connection with the system that are likely to be reprocured in sub- stantial quantities during the service life of the system. Proposals submitted in response to this requirement may include the following: (A) Proposals to provide to the Federal Government the right to use technical data to be provided under the contract for com- petitive reprocurement of the item, together with the cost to the Federal Government of acquiring the data and the right to use the data. (B) Proposals for the qualification or de- velopment of multiple sources of supply for the item. (c) CONSIDERATION OF FACTORS AS OBJECTIVES IN NEGOTIATIONS.—If the head of an agency is making a noncompetitive award of a develop- ment contract or a production contract for a major system, the factors specified in sub- sections (a) and (b) to be considered in evalu- ating an offer for a contract may be considered as objectives in negotiating the contract to be awarded. (Pub. L. 111–350, § 3, Jan. 4, 2011, 124 Stat. 3758.) HISTORICAL AND REVISION NOTES Revised Section Source (U.S. Code) Source (Statutes at Large) 3308 ............ 41:253b(j). June 30, 1949, ch. 288, title III, § 303B(j), formerly § 303B(f), as added Pub. L. 98–577, title II, § 201(a), Oct. 30, 1984, 98 Stat. 3068; redesignated as § 303B(g), Pub. L. 103–355, title I, § 1064(1), Oct. 13, 1994, 108 Stat. 3268; redesignated as § 303B(j), Pub. L. 104–106, title XLI, § 4104(b)(2), Feb. 10, 1996, 110 Stat. 645. § 3309. Design-build selection procedures (a) AUTHORIZATION.—Unless the traditional ac- quisition approach of design-bid-build estab- lished 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 author- ized in this section for entering into a contract for the design and construction of a public build- ing, 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 con- struction of a public building, facility, or work when— (1) the contracting officer anticipates that 3 or more offers will be received for the con- tract; Page 100 TITLE 41—PUBLIC CONTRACTS § 3309 (2) design work must be performed before an offeror can develop a price or cost proposal for the contract; (3) the offeror will incur a substantial amount of expense in preparing the offer; and (4) the contracting officer has considered in- formation such as the following: (A) The extent to which the project re- quirements have been adequately defined. (B) The time constraints for delivery of the project. (C) The capability and experience of poten- tial contractors. (D) The suitability of the project for use of the two-phase selection procedures. (E) The capability of the agency to man- age the two-phase selection process. (F) Other criteria established by the agen- cy. (c) PROCEDURES DESCRIBED.—Two-phase selec- tion procedures consist of the following: (1) DEVELOPMENT OF SCOPE OF WORK STATE- MENT.—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 in- clude criteria and preliminary design, budget parameters, and schedule or delivery require- ments) to enable the offerors to submit pro- posals 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 engineer- ing 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 pro- posals that— (A) include information on the offeror’s— (i) technical approach; and (ii) technical qualifications; and (B) do not include— (i) detailed design information; or (ii) cost or price information. (3) EVALUATION FACTORS.—The evaluation factors to be used in evaluating phase-one pro- posals are stated in the solicitation and in- clude specialized experience and technical competence, capability to perform, past per- formance 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 eval- uation factors are not permitted. Each solici- tation establishes the relative importance as- signed to the evaluation factors and subfac- tors 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 solici- tation. (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 solici- tation 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 solicita- tion establishes with respect to phase two— (i) the technical submission for the pro- posal, including design concepts or pro- posed solutions to requirements addressed within the scope of work, or both; and (ii) the evaluation factors and subfac- tors, including cost or price, that must be considered in the evaluations of proposals in accordance with subsections (b) to (d) of section 3306 of this title. (B) SEPARATE EVALUATIONS.—The con- tracting officer separately evaluates the submissions described in clauses (i) and (ii) of subparagraph (A). (5) AWARDING OF CONTRACT.—The agency awards the contract in accordance with chap- ter 37 of this title. (d) SOLICITATION TO STATE NUMBER OF OFFERORS TO BE SELECTED FOR PHASE-TWO RE- QUESTS FOR COMPETITIVE PROPOSALS.—A solici- tation issued pursuant to the procedures de- scribed in subsection (c) shall state the max- imum number of offerors that are to be selected to submit competitive proposals pursuant to subsection (c)(4). The maximum number speci- fied in the solicitation shall not exceed 5 unless the agency determines with respect to an indi- vidual 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 REGULA- TIONS.—The Federal Acquisition Regulation shall include guidance— (1) regarding the factors that may be consid- ered in determining whether the two-phase contracting procedures authorized by sub- section (a) are appropriate for use in indi- vidual contracting situations; (2) regarding the factors that may be used in selecting contractors; and (3) providing for a uniform approach to be used Government-wide. (Pub. L. 111–350, § 3, Jan. 4, 2011, 124 Stat. 3759.) HISTORICAL AND REVISION NOTES Revised Section Source (U.S. Code) Source (Statutes at Large) 3309 ............ 41:253m. 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 Ar- chitect-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) of Public 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. Page 101 TITLE 41—PUBLIC CONTRACTS § 3311 Statutory Notes and Related Subsidiaries PROHIBITION ON USE OF A REVERSE AUCTION FOR THE AWARD OF A CONTRACT FOR COMPLEX, SPECIALIZED, OR SUBSTANTIAL DESIGN AND CONSTRUCTION SERVICES Pub. L. 116–260, div. U, title IV, § 402, Dec. 27, 2020, 134 Stat. 2292, as amended by Pub. L. 117–28, § 2, July 26, 2021, 135 Stat. 304, provided that: ‘‘(a) FINDINGS.—Congress makes the following find- ings: ‘‘(1) In contrast to a traditional auction in which the buyers bid up the price, sellers bid down the price in a reverse auction. ‘‘(2) Reverse auctions, while providing value for the vast majority of Federal acquisitions, including cer- tain construction-related acquisitions, are limited in value for complex, specialized, or substantial design and construction services. ‘‘(b) REVERSE AUCTION DEFINED.—In this section, the term ‘reverse auction’ means, with respect to any pro- curement by an executive agency, a real-time auction generally conducted through an electronic medium among two or more offerors who compete by submit- ting bids for a supply or service contract, or a delivery order, task order, or purchase order under the contract, with the ability to submit revised lower bids at any time before the closing of the auction. ‘‘(c) PROHIBITION.— ‘‘(1) IN GENERAL.—Not later than 270 days after the date of the enactment of this section [July 26, 2021], the Federal Acquisition Regulation shall be amended to prohibit the use of reverse auctions for awarding contracts for complex, specialized, or substantial de- sign and construction services. ‘‘(2) APPLICABILITY TO ACQUISITIONS ABOVE THE SIM- PLIFIED ACQUISITION THRESHOLD.—The prohibition on reverse auctions for complex, specialized, or substan- tial design and construction services shall apply only to acquisitions above the simplified acquisition threshold (SAT) for construction and design services pursuant to part 36 of the Federal Acquisition Regu- lation. ‘‘(d) RULEMAKING FOR COMPLEX, SPECIALIZED, OR SUB- STANTIAL SERVICES.—Not later than 180 days after the date of the enactment of this section, the Federal Ac- quisition Regulatory Council shall promulgate a defini- tion of complex, specialized, or substantial design and construction services, which shall include— ‘‘(1) site planning and landscape design; ‘‘(2) architectural and engineering services (as de- fined in section 1102 of title 40, United States Code); ‘‘(3) interior design; ‘‘(4) performance of substantial construction work for facility, infrastructure, and environmental res- toration projects; and ‘‘(5) construction or substantial alteration of public buildings or public works. ‘‘(e) RULE OF CONSTRUCTION.—Nothing in this section shall be construed to restrict the use of reverse auc- tions for the procurement of other goods and services except as specifically provided for under this section. ‘‘(f) REPORT.—Not later than two years after the date of the enactment of this section, the Administrator of General Services shall submit to the Committee on Homeland Security and Governmental Affairs of the Senate and the Committee on Oversight and Reform [now Committee on Oversight and Accountability] of the House of Representatives a report on the effective- ness of this section in delivering complex, specialized, or substantial design and construction services to the United States Government.’’ § 3310. Quantities to order (a) FACTORS AFFECTING QUANTITY TO ORDER.— Each executive agency shall procure supplies in a quantity that— (1) will result in the total cost and unit cost most advantageous to the Federal Govern- ment, where practicable; and (2) does not exceed the quantity reasonably expected to be required by the agency. (b) OFFEROR’S OPINION OF QUANTITY.—Each so- licitation for a contract for supplies shall, if practicable, include a provision inviting each of- feror responding to the solicitation to state an opinion on whether the quantity of supplies pro- posed to be procured is economically advan- tageous to the Federal Government and, if appli- cable, to recommend a quantity that would be more economically advantageous to the Federal Government. Each recommendation shall in- clude a quotation of the total price and the unit price for supplies procured in each recommended quantity. (Pub. L. 111–350, § 3, Jan. 4, 2011, 124 Stat. 3761.) HISTORICAL AND REVISION NOTES Revised Section Source (U.S. Code) Source (Statutes at Large) 3310 ............ 41:253f. June 30, 1949, ch. 288, title III, § 303F, formerly § 303G, as added Pub. L. 98–577, title II, § 205(a), Oct. 30, 1984, 98 Stat. 3073; renum- bered § 303F, Pub. L. 99–145, title XIII, § 1304(c)(4)(A), Nov. 8, 1985, 99 Stat. 742. In subsection (b), the words ‘‘or quantities’’ are omit- ted because of 1:1. § 3311. Qualification requirement (a) DEFINITION.—In this section, the term ‘‘qualification requirement’’ means a require- ment for testing or other quality assurance demonstration that must be completed by an of- feror before award of a contract. (b) ACTIONS BEFORE ENFORCING QUALIFICATION REQUIREMENT.—Except as provided in subsection (c), the head of an agency, before enforcing any qualification requirement, shall— (1) prepare a written justification stating the necessity for establishing the qualification requirement and specify why the qualification requirement must be demonstrated before con- tract award; (2) specify in writing and make available to a potential offeror on request all requirements that a prospective offeror, or its product, must satisfy to become qualified, with those re- quirements to be limited to those least re- strictive to meet the purposes necessitating the establishment of the qualification require- ment; (3) specify an estimate of the cost of testing and evaluation likely to be incurred by a po- tential offeror to become qualified; (4) ensure that a potential offeror is pro- vided, on request, a prompt opportunity to demonstrate at its own expense (except as pro- vided in subsection (d)) its ability to meet the standards specified for qualification using— (A) qualified personnel and facilities— (i) of the agency concerned; (ii) of another agency obtained through interagency agreement; or (iii) under contract; or (B) other methods approved by the agency (including use of approved testing and eval- uation services not provided under contract to the agency);