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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-
104 
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.
105 
(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
106 
(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.