(a)
(b)
(1) the contracting officer anticipates that three or more offers will be received for such contract;
(2) design work must be performed before an offeror can develop a price or cost proposal for such 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.
(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)
(1)
(2)
(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)
(A)
(i) specialized experience and technical competence;
(ii) capability to perform;
(iii) past performance of the offeror's team (including the architect-engineer and construction members of the team); and
(iv) other appropriate factors, except that cost-related or price-related evaluation factors are not permitted.
(B)
(C)
(4)
(A)
(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 evaluations of proposals in accordance with subsections (b), (c), and (d) of section 3206 of this title.
(B) The contracting officer separately evaluates the submissions described in clauses (i) and (ii) of subparagraph (A).
(5)
(d)
(1) the solicitation is issued pursuant to an indefinite delivery-indefinite quantity contract for design-build construction; or
(2)
(A) the head of the contracting activity, delegable to a level no lower than the senior contracting official within the contracting activity, approves the contracting officer's justification with respect to an individual solicitation that a maximum number greater than 5 is in the interest of the Federal Government; and
(B) the contracting officer provides written documentation of how a maximum number greater than 5 is consistent with the purposes and objectives of the two-phase selection procedures.
(e)
(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.
(f)
(2) Any military construction contract that provides for an accelerated design effort, as authorized by paragraph (1), shall include as a condition of the contract that the liability of the United States in a termination for convenience before funds are first made available for construction may not exceed an amount attributable to the final design of the project.
(3) For each fiscal year during which the authority provided by this subsection is in effect, the Secretary of a military department may select not more than two military construction projects to include the accelerated design effort authorized by paragraph (1) for each armed force under the jurisdiction of the Secretary. To be eligible for selection under this subsection, a request for the authorization of the project, and for the authorization of appropriations for the project, must have been included in the annual budget of the President for a fiscal year submitted to Congress under section 1105(a) of title 31.
(4) Not later than March 1, 2008, the Secretary of Defense shall submit to the congressional defense committees a report evaluating the usefulness of the authority provided by this subsection in expediting the design and construction of military construction projects. The authority provided by this subsection expires September 30, 2008, except that, if the report required by this paragraph is not submitted by March 1, 2008, the authority shall expire on that date.
Editorial Notes
Amendments
2021—Pub. L. 116–283, §1813(b), renumbered section 2305a of this title as this section.
Subsec. (b). Pub. L. 116–283, §1813(b)(1), inserted dash after "or work when", reorganized remainder of former introductory provisions of subsec. (b) into designated pars. (1) to (4), and redesignated former pars. (1) to (6) as subpars. (A) to (F), respectively, of par. (4) and realigned margins.
Subsec. (c)(1), (2). Pub. L. 116–283, §1813(b)(2)(A), (B), inserted headings.
Subsec. (c)(3). Pub. L. 116–283, §1813(b)(2)(C)(i), (ii), inserted par. heading, designated first, second, and third sentences of existing provisions as subpars. (A), (B), and (C), respectively, and inserted subpar. headings.
Subsec. (c)(3)(A). Pub. L. 116–283, §1813(b)(2)(C)(iii), inserted dash after "and include—" and reorganized remainder of subpar. (A) into designated cls. (i) to (iv).
Subsec. (c)(4). Pub. L. 116–283, §1813(b)(2)(D)(i), (ii), (iv), inserted par. heading, designated first sentence as subpar. (A), inserted subpar. heading, and redesignated former subpars. (A) and (B) as cls. (i) and (ii), respectively, and designated concluding provisions as subpar. (B) and realigned margin.
Subsec. (c)(4)(A)(ii). Pub. L. 116–283, §1813(b)(2)(D)(iii), substituted "subsections (b), (c), and (d) of section 3206" for "paragraphs (2), (3), and (4) of section 2305(a)".
Subsec. (c)(4)(B). Pub. L. 116–283, §1813(b)(2)(D)(v), substituted "clauses (i) and (ii) of subparagraph (A)" for "subparagraphs (A) and (B)".
Subsec. (c)(5). Pub. L. 116–283, §1813(b)(2)(E), inserted heading and substituted "section 3303" for "section 2305(b)(4)".
2019—Subsec. (d)(1). Pub. L. 116–92 substituted "an indefinite" for "a indefinite".
2017—Subsec. (d). Pub. L. 115–91 substituted "If the contract value exceeds $4,000,000, the maximum number specified in the solicitation shall not exceed 5 unless—" and pars. (1) and (2) for "If the contract value exceeds $4,000,000, the maximum number specified in the solicitation shall not exceed 5 unless the head of the contracting activity, delegable to a level no lower than the senior contracting official within the contracting activity, approves the contracting officer's justification with respect to an individual solicitation that a number greater than 5 is in the Federal Government's interest. The contracting officer shall provide written documentation of how a maximum number exceeding 5 is consistent with the purposes and objectives of the two-phase selection procedures."
2014—Subsec. (d). Pub. L. 113–291 substituted "If the contract value exceeds $4,000,000, the maximum number specified in the solicitation shall not exceed 5 unless the head of the contracting activity, delegable to a level no lower than the senior contracting official within the contracting activity, approves the contracting officer's justification with respect to an individual solicitation that a number greater than 5 is in the Federal Government's interest. The contracting officer shall provide written documentation of how a maximum number exceeding 5 is consistent with the purposes and objectives of the two-phase selection procedures." for "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."
2006—Subsec. (f)(2). Pub. L. 109–163, §2807(a), amended par. (2) generally. Prior to amendment, par. (2) read as follows: "Any military construction contract that provides for an accelerated design effort, as authorized by paragraph (1), shall include as a condition of the contract that the liability of the United States in a termination for convenience may not exceed the actual costs incurred as of the termination date."
Subsec. (f)(4). Pub. L. 109–163, §2807(b), substituted "2008" for "2007" wherever appearing.
2004—Subsec. (f). Pub. L. 108–375 added subsec. (f).
2003—Subsec. (c)(1). Pub. L. 108–178 substituted "chapter 11 of title 40" for "the Brooks Architect-Engineers Act (40 U.S.C. 541 et seq.)".
2002—Subsec. (a). Pub. L. 107–217 substituted "chapter 11 of title 40" for "the Brooks Architect-Engineers Act (40 U.S.C. 541 et seq.)".
1997—Subsec. (a). Pub. L. 105–85 substituted "(40 U.S.C." for "(41 U.S.C.".
Statutory Notes and Related Subsidiaries
Effective Date of 2021 Amendment
Amendment by Pub. L. 116–283 effective Jan. 1, 2022, with additional provisions for delayed implementation and applicability of existing law, see section 1801(d) of Pub. L. 116–283, set out as a note preceding section 3001 of this title.
Effective Date of 2003 Amendment
Amendment by Pub. L. 108–178 effective Aug. 21, 2002, see section 5 of Pub. L. 108–178, set out as a note under section 5334 of Title 5, Government Organization and Employees.
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 2220 of this title.