
From the U.S. Code Online via GPO Access
[wais.access.gpo.gov]
[Laws in effect as of January 2, 2001]
[Document not affected by Public Laws enacted between
  January 2, 2001 and January 28, 2002]
[CITE: 10USC2305a]

 
                         TITLE 10--ARMED FORCES
 
                    Subtitle A--General Military Law
 
                PART IV--SERVICE, SUPPLY, AND PROCUREMENT
 
                   CHAPTER 137--PROCUREMENT GENERALLY
 
Sec. 2305a. Design-build selection procedures

    (a) Authorization.--Unless the traditional acquisition approach of 
design-bid-build established under the Brooks Architect-Engineers Act 
(40 U.S.C. 541 et seq.) is used or another acquisition procedure 
authorized by law is used, the head of an 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 
determination 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 the contracting officer 
anticipates that three or more offers will be received for such 
contract, design work must be performed before an offeror can develop a 
price or cost proposal for such contract, the offeror will incur a 
substantial amount of expense in preparing the offer, and the 
contracting officer has considered information such as the following:
        (1) The extent to which the project requirements have been 
    adequately defined.
        (2) The time constraints for delivery of the project.
        (3) The capability and experience of potential contractors.
        (4) The suitability of the project for use of the two-phase 
    selection procedures.
        (5) The capability of the agency to manage the two-phase 
    selection process.
        (6) Other criteria established by the agency.

    (c) Procedures Described.--Two-phase selection procedures consist of 
the following:
        (1) 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 Government's requirements (which may 
    include criteria and preliminary design, budget parameters, and 
    schedule or delivery requirements) to enable the offerors to submit 
    proposals which meet the Government's needs. If the agency contracts 
    for development of the scope of work statement, the agency shall 
    contract for architectural and engineering services as defined by 
    and in accordance with the Brooks Architect-Engineers Act (40 U.S.C. 
    541 et seq.).
        (2) 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) 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) 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--
            (A) the technical submission for the proposal, including 
        design concepts or proposed solutions to requirements addressed 
        within the scope of work (or both), and
            (B) the evaluation factors and subfactors, including cost or 
        price, that must be considered in the evaluations of proposals 
        in accordance with paragraphs (2), (3), and (4) of section 
        2305(a) of this title.

    The contracting officer separately evaluates the submissions 
    described in subparagraphs (A) and (B).
        (5) The agency awards the contract in accordance with section 
    2305(b)(4) 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 Government's interest and is consistent with the 
purposes and objectives of the two-phase selection process.
    (e) Requirement for Guidance and Regulations.--The Federal 
Acquisition 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.

(Added Pub. L. 104-106, div. D, title XLI, Sec. 4105(a)(1), Feb. 10, 
1996, 110 Stat. 645; amended Pub. L. 105-85, div. A, title X, 
Sec. 1073(a)(44), Nov. 18, 1997, 111 Stat. 1902.)

                       References in Text

    The Brooks Architect-Engineers Act, referred to in subsecs. (a) and 
(c)(1), is title IX of act June 30, 1949, ch. 288, as added by act Oct. 
27, 1972, Pub. L. 92-582, 86 Stat. 1278, as amended, which is classified 
generally to subchapter VI (Sec. 541 et seq.) of chapter 10 of Title 40, 
Public Buildings, Property, and Works. For complete classification of 
this Act to the Code, see Short Title note set out under section 541 of 
Title 40 and Tables.


                            Prior Provisions

    A prior section 2305a was renumbered section 2438 of this title.


                               Amendments

    1997--Subsec. (a). Pub. L. 105-85 substituted ``(40 U.S.C.'' for 
``(41 U.S.C.''


                             Effective Date

    For effective date and applicability of section, see section 4401 of 
Pub. L. 104-106, set out as an Effective Date of 1996 Amendment note 
under section 251 of Title 41, Public Contracts.
