41 U.S.C. § 3308 — Planning for future competition in con-

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;