H. R. 1107—83 
(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 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) CONTENT OF PROPOSALS.—The proposals that the head 
of an agency is to consider requiring in a solicitation for the 
award of a production contract are proposals identifying 
opportunities to ensure that the Federal Government will be 
able to obtain on a competitive basis items procured in connec-
tion with the system that are likely to be reprocured in substan-
tial 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 competitive 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 mul-
tiple sources of supply for the item. 
(c) CONSIDERATION
OF FACTORS
AS OBJECTIVES
IN NEGOTIA-
TIONS.—If the head of an agency is making a noncompetitive award 
of a development contract or a production contract for a major 
system, the factors specified in subsections (a) and (b) to be consid-
ered 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 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 deter-
mination 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— 
(1) the contracting officer anticipates that 3 or more offers 
will be received for the contract; 
(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 information such 
as the following: 
(A) The extent to which the project requirements have 
been adequately defined. 
(B) The time constraints for delivery of the project. 
(C) The capability and experience of potential contractors.
H. R. 1107—84 
(D) The suitability of the project for use of the two- 
phase selection procedures. 
(E) The capability of the agency to manage the two- 
phase selection process. 
(F) Other criteria established by the agency. 
(c) PROCEDURES DESCRIBED.—Two-phase selection procedures con-
sist 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 Govern-
ment’s needs. If the agency contracts for development of the 
scope of work statement, the agency shall contract for architec-
tural 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— 
(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 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 evalua-
tions of proposals in accordance with subsections (b) 
to (d) of section 3306 of this title.