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labor-hour contracts for purchases of the commercial 
services in the category. 
(5) CONTRACT
QUALITY
REQUIREMENTS.—Regulations prescribed 
under paragraph (1) shall include provisions that— 
(A) allow, to the maximum extent practicable, a contractor 
under a commercial items acquisition to use the existing quality 
assurance system of the contractor as a substitute for compliance 
with an otherwise applicable requirement for the Federal Govern-
ment to inspect or test the commercial items before the contrac-
tor’s tender of those items for acceptance by the Federal Govern-
ment; 
(B) require that, to the maximum extent practicable, the execu-
tive agency take advantage of warranties (including extended war-
ranties) offered by offerors of commercial items and use those 
warranties for the repair and replacement of commercial items; 
and 
(C) set forth guidance regarding the use of past performance of 
commercial items and sources as a factor in contract award deci-
sions. 
§ 3308. Planning for future competition in contracts for 
major systems 
(a) DEVELOPMENT CONTRACT.— 
(1) DETERMINING WHETHER PROPOSALS ARE NECESSARY.—In pre-
paring a solicitation for the award of a development contract for a 
major system, the head of an agency shall consider requiring in the so-
licitation that an offeror include in its offer proposals described in 
paragraph (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 requiring 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 else-
where 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 sub-
stantial quantities during the system’s service life, proposals to in-
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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 pre-
paring a solicitation for the award of a production contract for a major 
system, the head of an agency shall consider requiring in the solicita-
tion that an offeror include 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 requiring in a solicitation for the award of a pro-
duction contract are proposals identifying opportunities to ensure that 
the Federal Government will be able to obtain on a competitive basis 
items procured in connection with the system that are likely to be re-
procured in substantial 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 development 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 spec-
ified in subsections (a) and (b) to be considered in evaluating an offer for 
a contract may be considered as objectives in negotiating the contract to 
be awarded. 
§ 3309. Design-build selection procedures 
(a) AUTHORIZATION.—Unless the traditional acquisition approach of de-
sign-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 sec-
tion 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. 
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