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(b) CRITERIA FOR USE.—A contracting officer shall make a determina-
tion whether two-phase selection procedures are appropriate for use for en-
tering 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 pre-
paring 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. 
(D) The suitability of the project for use of the two-phase selec-
tion procedures. 
(E) The capability of the agency to manage the two-phase selec-
tion process. 
(F) Other criteria established by the agency. 
(c) PROCEDURES DESCRIBED.—Two-phase selection procedures consist 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 pro-
spective offerors with sufficient information regarding the Federal Gov-
ernment’s requirements (which may include criteria and preliminary de-
sign, budget parameters, and schedule or delivery requirements) to en-
able 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 architectural and engi-
neering services as defined by and in accordance with sections 1101 to 
1104 of title 40. 
(2) SOLICITATION OF PHASE-ONE PROPOSALS.—The contracting offi-
cer 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 
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(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 per-
mitted. 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 pro-
posals 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 pro-
vide 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 so-
licitation establishes with respect to phase two— 
(i) the technical submission for the proposal, including de-
sign 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 evaluations of proposals 
in accordance with subsections (b) to (d) of section 3306 of 
this title. 
(B) SEPARATE
EVALUATIONS.—The contracting officer sepa-
rately evaluates the submissions described in clauses (i) and (ii) 
of subparagraph (A). 
(5) AWARDING OF CONTRACT.—The agency awards the contract in 
accordance with chapter 37 of this title. 
(d) SOLICITATION TO STATE NUMBER OF OFFERORS TO BE SELECTED 
FOR PHASE-TWO REQUESTS FOR COMPETITIVE PROPOSALS.—A solicitation 
issued pursuant to the procedures described in subsection (c) shall state the 
maximum number of offerors that are to be selected to submit competitive 
proposals pursuant to subsection (c)(4). The maximum number specified in 
the solicitation shall not exceed 5 unless the agency determines with respect 
to an individual solicitation that a specified number greater than 5 is in the 
Federal Government’s interest and is consistent with the purposes and ob-
jectives of the two-phase selection process. 
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(e) REQUIREMENT FOR GUIDANCE AND REGULATIONS.—The Federal Ac-
quisition Regulation shall include guidance— 
(1) regarding the factors that may be considered in determining 
whether the two-phase contracting procedures authorized by subsection 
(a) are appropriate for use in individual 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. 
§ 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 Government, where practicable; and 
(2) does not exceed the quantity reasonably expected to be required 
by the agency. 
(b) OFFEROR’S OPINION OF QUANTITY.—Each solicitation for a contract 
for supplies shall, if practicable, include a provision inviting each offeror re-
sponding to the solicitation to state an opinion on whether the quantity of 
supplies proposed to be procured is economically advantageous to the Fed-
eral Government and, if applicable, to recommend a quantity that would be 
more economically advantageous to the Federal Government. Each rec-
ommendation shall include a quotation of the total price and the unit price 
for supplies procured in each recommended quantity. 
§ 3311. Qualification requirement 
(a) DEFINITION.—In this section, the term ‘‘qualification requirement’’ 
means a requirement for testing or other quality assurance demonstration 
that must be completed by an offeror before award of a contract. 
(b) ACTIONS BEFORE ENFORCING QUALIFICATION REQUIREMENT.—Ex-
cept 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 estab-
lishing the qualification requirement and specify why the qualification 
requirement must be demonstrated before contract 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 requirements to be limited to 
those least restrictive to meet the purposes necessitating the establish-
ment of the qualification requirement; 
(3) specify an estimate of the cost of testing and evaluation likely 
to be incurred by a potential offeror to become qualified; 
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(4) ensure that a potential offeror is provided, on request, a prompt 
opportunity to demonstrate at its own expense (except as provided in 
subsection (d)) its ability to meet the standards specified for qualifica-
tion using— 
(A) qualified personnel and facilities— 
(i) of the agency concerned; 
(ii) of another agency obtained through interagency agree-
ment; or 
(iii) under contract; or 
(B) other methods approved by the agency (including use of ap-
proved testing and evaluation services not provided under contract 
to the agency); 
(5) if testing and evaluation services are provided under contract to 
the agency for the purposes of paragraph (4), provide to the extent 
possible that those services be provided by a contractor that— 
(A) is not expected to benefit from an absence of additional 
qualified sources; and 
(B) is required in the contract to adhere to any restriction on 
technical data asserted by the potential offeror seeking qualifica-
tion; and 
(6) ensure that a potential offeror seeking qualification is promptly 
informed whether qualification is attained and, if not attained, is 
promptly furnished specific information about why qualification was 
not attained. 
(c) APPLICABILITY, WAIVER AUTHORITY, AND REFERRAL OF OFFERS.— 
(1) APPLICABILITY.—Subsection (b) does not apply to a qualification 
requirement established by statute prior to October 30, 1984. 
(2) WAIVER AUTHORITY.— 
(A) 
SUBMISSION
OF
DETERMINATION
OF 
UNREASONABLENESS.—Except as provided in subparagraph (C), if 
it is unreasonable to specify the standards for qualification that 
a prospective offeror or its product must satisfy, a determination 
to that effect shall be submitted to the advocate for competition 
of the procuring activity responsible for the purchase of the item 
subject to the qualification requirement. 
(B) AUTHORITY
TO
GRANT
WAIVER.—After considering any 
comments of the advocate for competition reviewing the deter-
mination, the head of the procuring activity may waive the re-
quirements of paragraphs (2) to (5) of subsection (b) for up to 
2 years with respect to the item subject to the qualification re-
quirement. 
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