§ 253m. — Designbuild selection procedures.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 41USC253m]
TITLE 41--PUBLIC CONTRACTS
CHAPTER 4--PROCUREMENT PROCEDURES
SUBCHAPTER IV--PROCUREMENT PROVISIONS
Sec. 253m. Design-build selection procedures
(a) Authorization
Unless the traditional acquisition approach of design-bid-build
established under sections 1101 to 1104 of title 40 is used 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) of this section 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 sections 1101 to 1104 of title 40.
(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 subsections (b), (c), and (d) of section 253a
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
253b 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) of this section shall state the maximum number of
offerors that are to be selected to submit competitive proposals
pursuant to subsection (c)(4) of this section. 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) of this section 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.
(June 30, 1949, ch. 288, title III, Sec. 303M, as added Pub. L. 104-106,
div. D, title XLI, Sec. 4105(b)(1), Feb. 10, 1996, 110 Stat. 647.)
Codification
``Sections 1101 to 1104 of title 40'' substituted in subsec. (a) for
``the Brooks Architect-Engineers Act (title IX of this Act)'' and in
subsec. (c)(1) for ``the Brooks Architect-Engineers Act (40 U.S.C. 541
et seq.)'' on authority of Pub. L. 107-217, Sec. 5(c), Aug. 21, 2002,
116 Stat. 1303, the first section of which enacted Title 40, Public
Buildings, Property, and Works.
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 this title.
