10 U.S.C. § 3241 — Design-build selection procedures

Page 2450 TITLE 10—ARMED FORCES § 3241 ‘‘(b) ASSESSMENT OF TRAINING AND EDUCATION.—The Secretary of Defense shall assess the need to establish a program, or enhance existing programs, for training and educating Department of Defense procurement offi- cials to ensure that they are aware of any Department requirements, preferences, or goals for the procurement of environmentally preferable procurement items or procurement items made with recovered material. ‘‘(c) REPORTING REQUIREMENT.—Not later than March 1, 2004, and each March 1 thereafter through 2007, the Secretary of Defense shall submit to the Committee on Armed Services of the Senate and the Committee on Armed Services of the House of Representatives a re- port detailing the results obtained from the tracking system developed under subsection (a). ‘‘(d) RELATION TO OTHER LAWS.—Nothing in this sec- tion shall be construed to alter the requirements of the Solid Waste Disposal Act (42 U.S.C. 6901 et seq.). ‘‘(e) DEFINITIONS.—In this section: ‘‘(1) The term ‘environmentally preferable’, in the case of a procurement item, means that the item has a lesser or reduced effect on human health and the environment when compared with competing prod- ucts that serve the same purpose. The comparison may consider raw materials acquisition, production, manufacturing, packaging, distribution, reuse, oper- ation, maintenance, or disposal of the product. ‘‘(2) The terms ‘procurement item’ and ‘recovered material’ have the meanings given such terms in sec- tion 1004 of the Solid Waste Disposal Act (42 U.S.C. 6903).’’ REQUIREMENT TO DISREGARD CERTAIN AGREEMENTS IN AWARDING CONTRACTS FOR PURCHASE OF FIREARMS OR AMMUNITION Pub. L. 106–398, § 1 [[div. A], title VIII, § 826], Oct. 30, 2000, 114 Stat. 1654, 1654A–220, provided that: ‘‘In accord- ance with the requirements contained in the amend- ments enacted in the Competition in Contracting Act of 1984 (title VII of division B of Public Law 98–369; 98 Stat. 1175) [see Tables for classification], the Secretary of Defense may not, in awarding a contract for the pur- chase of firearms or ammunition, take into account whether a manufacturer or vendor of firearms or am- munition is a party to an agreement under which the manufacturer or vendor agrees to adopt limitations with respect to importing, manufacturing, or dealing in firearms or ammunition in the commercial market.’’ PROCUREMENT OF CONVENTIONAL AMMUNITION Pub. L. 105–261, div. A, title VIII, § 806, Oct. 17, 1998, 112 Stat. 2084, provided that: ‘‘(a) AUTHORITY.—The official in the Department of Defense designated as the single manager for conven- tional ammunition in the Department shall have the authority to restrict the procurement of conventional ammunition to sources within the national technology and industrial base in accordance with the authority in section 2304(c) of title 10, United States Code [now 10 U.S.C. 3204(a)]. ‘‘(b) REQUIREMENT.—The official in the Department of Defense designated as the single manager for conven- tional ammunition in the Department of Defense shall limit a specific procurement of ammunition to sources within the national technology and industrial base in accordance with section 2304(c)(3) of title 10, United States Code [now 10 U.S.C. 3204(a)(3)], in any case in which that manager determines that such limitation is necessary to maintain a facility, producer, manufac- turer, or other supplier available for furnishing an es- sential item of ammunition or ammunition component in cases of national emergency or to achieve industrial mobilization. ‘‘(c) CONVENTIONAL AMMUNITION DEFINED.—For pur- poses of this section, the term ‘conventional ammuni- tion’ has the meaning given that term in Department of Defense Directive 5160.65, dated March 8, 1995.’’ FIGHTER AIRCRAFT ENGINE WARRANTY Pub. L. 97–377, title I, § 101(c) [title VII, § 797], Dec. 21, 1982, 96 Stat. 1865, provided that: ‘‘None of the funds made available in the Act or any subsequent Act shall be available for the purchase of the alternate or new model fighter aircraft engine that does not have a writ- ten warranty or guarantee attesting that it will per- form not less than 3,000 tactical cycles. The warranty will provide that the manufacturer must perform the necessary improvements or replace any parts to achieve the required performance at no cost to the Gov- ernment.’’ § 3241. Design-build selection procedures (a) AUTHORIZATION.—Unless the traditional ac- quisition approach of design-bid-build estab- lished under chapter 11 of title 40 is used or an- other acquisition procedure authorized by law is used, the head of an agency shall use the two- phase selection procedures authorized in this section for entering into a contract for the de- sign and construction of a public building, facil- ity, or work when a determination is made under subsection (b) that the procedures are ap- propriate 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 three or more offers will be received for such contract; (2) design work must be performed before an offeror can develop a price or cost proposal for such 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 Govern- ment’s requirements (which may include cri- teria and preliminary design, budget param- eters, and schedule or delivery requirements) to enable the offerors to submit proposals which meet the 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 chapter 11 of title 40. (2) SOLICITATION OF PHASE-ONE PROPOSALS.— The contracting officer solicits phase-one pro- posals that— Page 2451 TITLE 10—ARMED FORCES § 3241 (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.— (A) EVALUATION FACTORS TO BE USED.—The evaluation factors to be used in evaluating phase-one proposals are stated in the solici- tation and include— (i) specialized experience and technical competence; (ii) capability to perform; (iii) past performance of the offeror’s team (including the architect-engineer and construction members of the team); and (iv) other appropriate factors, except that cost-related or price-related evalua- tion factors are not permitted. (B) RELATIVE IMPORTANCE OF EVALUATION FACTORS AND SUBFACTORS.—Each solicitation establishes the relative importance assigned to the evaluation factors and subfactors that must be considered in the evaluation of phase-one proposals. (C) EVALUATION OF PROPOSALS.—The agen- cy 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 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), (c), and (d) of section 3206 of this title. (B) The contracting 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 sec- tion 3303 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). If the contract value exceeds $4,000,000, the maximum number specified in the solicitation shall not exceed 5 unless— (1) the solicitation is issued pursuant to an indefinite delivery-indefinite quantity con- tract for design-build construction; or (2)(A) the head of the contracting activity, delegable to a level no lower than the senior contracting official within the contracting ac- tivity, approves the contracting officer’s jus- tification with respect to an individual solici- tation that a maximum number greater than 5 is in the interest of the Federal Government; and (B) the contracting officer provides written documentation of how a maximum number greater than 5 is consistent with the purposes and objectives of the two-phase selection pro- cedures. (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. (f) SPECIAL AUTHORITY FOR MILITARY CON- STRUCTION PROJECTS.—(1) The Secretary of a military department may use funds available to the Secretary under section 2807(a) or 18233(e) of this title to accelerate the design effort in con- nection with a military construction project for which the two-phase selection procedures de- scribed in subsection (c) are used to select the contractor for both the design and construction portion of the project before the project is spe- cifically authorized by law and before funds are appropriated for the construction portion of the project. Notwithstanding the limitations con- tained in such sections, use of such funds for the design portion of a military construction project may continue despite the subsequent authoriza- tion of the project. The advance notice require- ment of section 2807(b) of this title shall con- tinue to apply whenever the estimated cost of the design portion of the project exceeds the amount specified in such section. (2) Any military construction contract that provides for an accelerated design effort, as au- thorized by paragraph (1), shall include as a con- dition of the contract that the liability of the United States in a termination for convenience before funds are first made available for con- struction may not exceed an amount attrib- utable to the final design of the project. (3) For each fiscal year during which the au- thority provided by this subsection is in effect, the Secretary of a military department may se- lect not more than two military construction projects to include the accelerated design effort authorized by paragraph (1) for each armed force under the jurisdiction of the Secretary. To be el- igible for selection under this subsection, a re- quest for the authorization of the project, and for the authorization of appropriations for the project, must have been included in the annual budget of the President for a fiscal year sub- mitted to Congress under section 1105(a) of title 31. (4) Not later than March 1, 2008, the Secretary of Defense shall submit to the congressional de- Page 2452 TITLE 10—ARMED FORCES § 3242 fense committees a report evaluating the useful- ness of the authority provided by this subsection in expediting the design and construction of military construction projects. The authority provided by this subsection expires September 30, 2008, except that, if the report required by this paragraph is not submitted by March 1, 2008, the authority shall expire on that date. (Added Pub. L. 104–106, div. D, title XLI, § 4105(a)(1), Feb. 10, 1996, 110 Stat. 645, § 2305a; amended Pub. L. 105–85, div. A, title X, § 1073(a)(44), Nov. 18, 1997, 111 Stat. 1902; Pub. L. 107–217, § 3(b)(4), Aug. 21, 2002, 116 Stat. 1295; Pub. L. 108–178, § 4(b)(3), Dec. 15, 2003, 117 Stat. 2641; Pub. L. 108–375, div. B, title XXVIII, § 2807, Oct. 28, 2004, 118 Stat. 2123; Pub. L. 109–163, div. B, title XXVIII, § 2807, Jan. 6, 2006, 119 Stat. 3508; Pub. L. 113–291, div. A, title VIII, § 814, Dec. 19, 2014, 128 Stat. 3430; Pub. L. 115–91, div. A, title VIII, § 823, Dec. 12, 2017, 131 Stat. 1465; Pub. L. 116–92, div. A, title XVII, § 1731(a)(38), Dec. 20, 2019, 133 Stat. 1814; renumbered § 3241 and amend- ed Pub. L. 116–283, div. A, title XVIII, § 1813(b), Jan. 1, 2021, 134 Stat. 4177.) Editorial Notes AMENDMENTS 2021—Pub. L. 116–283, § 1813(b), renumbered section 2305a of this title as this section. Subsec. (b). Pub. L. 116–283, § 1813(b)(1), inserted dash after ‘‘or work when’’, reorganized remainder of former introductory provisions of subsec. (b) into designated pars. (1) to (4), and redesignated former pars. (1) to (6) as subpars. (A) to (F), respectively, of par. (4) and re- aligned margins. Subsec. (c)(1), (2). Pub. L. 116–283, § 1813(b)(2)(A), (B), inserted headings. Subsec. (c)(3). Pub. L. 116–283, § 1813(b)(2)(C)(i), (ii), in- serted par. heading, designated first, second, and third sentences of existing provisions as subpars. (A), (B), and (C), respectively, and inserted subpar. headings. Subsec. (c)(3)(A). Pub. L. 116–283, § 1813(b)(2)(C)(iii), in- serted dash after ‘‘and include—’’ and reorganized re- mainder of subpar. (A) into designated cls. (i) to (iv). Subsec. (c)(4). Pub. L. 116–283, § 1813(b)(2)(D)(i), (ii), (iv), inserted par. heading, designated first sentence as subpar. (A), inserted subpar. heading, and redesignated former subpars. (A) and (B) as cls. (i) and (ii), respec- tively, and designated concluding provisions as subpar. (B) and realigned margin. Subsec. (c)(4)(A)(ii). Pub. L. 116–283, § 1813(b)(2)(D)(iii), substituted ‘‘subsections (b), (c), and (d) of section 3206’’ for ‘‘paragraphs (2), (3), and (4) of section 2305(a)’’. Subsec. (c)(4)(B). Pub. L. 116–283, § 1813(b)(2)(D)(v), substituted ‘‘clauses (i) and (ii) of subparagraph (A)’’ for ‘‘subparagraphs (A) and (B)’’. Subsec. (c)(5). Pub. L. 116–283, § 1813(b)(2)(E), inserted heading and substituted ‘‘section 3303’’ for ‘‘section 2305(b)(4)’’. 2019—Subsec. (d)(1). Pub. L. 116–92 substituted ‘‘an in- definite’’ for ‘‘a indefinite’’. 2017—Subsec. (d). Pub. L. 115–91 substituted ‘‘If the contract value exceeds $4,000,000, the maximum number specified in the solicitation shall not exceed 5 unless— ’’ and pars. (1) and (2) for ‘‘If the contract value exceeds $4,000,000, the maximum number specified in the solici- tation shall not exceed 5 unless the head of the con- tracting activity, delegable to a level no lower than the senior contracting official within the contracting ac- tivity, approves the contracting officer’s justification with respect to an individual solicitation that a num- ber greater than 5 is in the Federal Government’s inter- est. The contracting officer shall provide written docu- mentation of how a maximum number exceeding 5 is consistent with the purposes and objectives of the two- phase selection procedures.’’ 2014—Subsec. (d). Pub. L. 113–291 substituted ‘‘If the contract value exceeds $4,000,000, the maximum number specified in the solicitation shall not exceed 5 unless the head of the contracting activity, delegable to a level no lower than the senior contracting official with- in the contracting activity, approves the contracting officer’s justification with respect to an individual so- licitation that a number greater than 5 is in the Fed- eral Government’s interest. The contracting officer shall provide written documentation of how a max- imum number exceeding 5 is consistent with the pur- poses and objectives of the two-phase selection proce- dures.’’ for ‘‘The maximum number specified in the so- licitation shall not exceed 5 unless the agency deter- mines with respect to an individual solicitation that a specified number greater than 5 is in the Government’s interest and is consistent with the purposes and objec- tives of the two-phase selection process.’’ 2006—Subsec. (f)(2). Pub. L. 109–163, § 2807(a), amended par. (2) generally. Prior to amendment, par. (2) read as follows: ‘‘Any military construction contract that pro- vides for an accelerated design effort, as authorized by paragraph (1), shall include as a condition of the con- tract that the liability of the United States in a termi- nation for convenience may not exceed the actual costs incurred as of the termination date.’’ Subsec. (f)(4). Pub. L. 109–163, § 2807(b), substituted ‘‘2008’’ for ‘‘2007’’ wherever appearing. 2004—Subsec. (f). Pub. L. 108–375 added subsec. (f). 2003—Subsec. (c)(1). Pub. L. 108–178 substituted ‘‘chap- ter 11 of title 40’’ for ‘‘the Brooks Architect-Engineers Act (40 U.S.C. 541 et seq.)’’. 2002—Subsec. (a). Pub. L. 107–217 substituted ‘‘chapter 11 of title 40’’ for ‘‘the Brooks Architect-Engineers Act (40 U.S.C. 541 et seq.)’’. 1997—Subsec. (a). Pub. L. 105–85 substituted ‘‘(40 U.S.C.’’ for ‘‘(41 U.S.C.’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2021 AMENDMENT Amendment by Pub. L. 116–283 effective Jan. 1, 2022, with additional provisions for delayed implementation and applicability of existing law, see section 1801(d) of Pub. L. 116–283, set out as a note preceding section 3001 of this title. EFFECTIVE DATE OF 2003 AMENDMENT Amendment by Pub. L. 108–178 effective Aug. 21, 2002, see section 5 of Pub. L. 108–178, set out as a note under section 5334 of Title 5, Government Organization and Employees. EFFECTIVE DATE For effective date and applicability of section, see section 4401 of Pub. L. 104–106, set out as an Effective Date of 1996 Amendment note under section 2220 of this title. § 3242. Supplies: economic order quantities (a) QUANTITY TO PROCURE.— (1) An agency referred to in section 3063 of this title shall procure supplies in such quan- tity as— (A) will result in the total cost and unit cost most advantageous to the United States, where practicable; and (B) does not exceed the quantity reason- ably expected to be required by the agency. (2) The Secretary of Defense shall take para- graph (1) into account in approving rates of obligation of appropriations under section 2204 of this title. (b) OPINION OF OFFEROR WITH RESPECT TO QUANTITY TO BE PROCURED.—Each solicitation