§ 3241. Design-build selection procedures

• (a) Unless the traditional acquisition approach of design-bid-build established under chapter 11 of title 40 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) 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—
  • (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) 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 chapter 11 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)
    • (A) The evaluation factors to be used in evaluating phase-one proposals are stated in the solicitation and include—
      • (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) Each solicitation establishes the relative importance assigned to the evaluation factors and subfactors that must be considered in the evaluation of phase-one proposals.
    • (C) The agency evaluates phase-one proposals on the basis of the phase-one evaluation factors set forth in the solicitation.
  • (4)
    • (A) 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—
      • (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) The agency awards the contract in accordance with section 3303 of this title .
• (d) 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). If the contract value exceeds $4,000,000, the maximum number specified in the solicitation shall not exceed 5 unless—
  • (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) 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.
• (f)
  • (1) Subject to paragraph (4), each Secretary concerned may use funds available to the Secretary under section 2807(a) or 18233(e) of this title to accelerate the design effort in connection with a military construction project for which the two-phase selection procedures described in subsection (c) are used to select the contractor for both the design and construction portion of the project before the project is specifically authorized by law and before funds are appropriated for the construction portion of the project. Notwithstanding the limitations contained in such sections, use of such funds for the design portion of a military construction project may continue despite the subsequent authorization of the project. The advance notice requirement of section 2807(b) of this title shall continue to apply whenever the estimated cost of the design portion of the project exceeds the amount specified in such section.
  • (2) Any construction contract for a military construction project 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) Not later than March 1, 2028 , and annually thereafter until March 1, 2033 , the Secretary of Defense shall submit to the congressional defense committees a report on the use of the authority under this subsection that includes the following:
    • (A) A description of the military construction project for which such authority was used, including project title, location, scope, and rationale for selecting such project.
    • (B) The date of award of a contract for such military construction project, the initial estimated contract value, and the current projected total cost of such project.
    • (C) A comparison of projected schedule for completion of such project with the actual schedule, including dates for completing the design of such project and commencing construction.
    • (D) Any realized or anticipated cost savings or efficiencies, including those related to time, resources, or design innovation, attributable to the use of the authority under this subsection for a military construction project.
    • (E) An assessment of risk management benefits, including any improvements in design flexibility or coordination between contractors and the Secretary concerned.
    • (F) Any challenges encountered, and mitigation efforts made, in the use of such authority for a military construction project.
  • (4) Each Secretary concerned may exercise the authority under this subsection using amounts appropriated for such purpose on or after the date of the enactment of this paragraph.
• (g)
  • (1) Notwithstanding subsections (b) through (e), the Secretary concerned may enter into a progressive design-build contract for a military construction project under the authority of subsection (a) in accordance with the following requirements:
    • (A) The contract is awarded in a single phase based on qualifications and demonstrated capabilities of the offeror without submission of a detailed construction cost or price proposal at the time of award.
    • (B) The contract provides for collaboration between the Secretary concerned and the contractor to develop and refine the project scope and design, including cost estimates.
    • (C) Following development of the project scope and preliminary design, the contract provide for the Secretary concerned and contractor to negotiate a guaranteed maximum price or other fixed-price agreement for the construction phase of the military construction project.
    • (D) If negotiations described in subparagraph (C) fail, the contract includes terms for termination or renegotiation.
  • (2) The Secretary concerned shall issue rules to ensure appropriate oversight, risk management, and contract administration consistent with the requirements of this subsection.
  • (3) Not later than March 1, 2028 , and annually thereafter until March 1, 2033 , the Secretary of Defense shall submit to the congressional defense committees a report on the use of the authority under this subsection that includes the following:
    • (A) A description of the military construction project for which such authority was used, including project title, location, scope, and rationale for selecting such project.
    • (B) The date of award of a contract for such military construction project, the initial estimated contract value, and the current projected total cost of such project.
    • (C) A comparison of projected schedule for completion of such project with the actual schedule, including dates for completing the design of such project and commencing construction.
    • (D) Any realized or anticipated cost savings or efficiencies, including those related to time, resources, or design innovation, attributable to the use of the authority under this subsection for a military construction project.
    • (E) An assessment of risk management benefits, including any improvements in design flexibility or coordination between contractors and the Secretary concerned.
    • (F) Any challenges encountered, and mitigation efforts made, in the use of such authority for the military construction project.
  • (4) Each Secretary concerned may exercise the authority under this subsection using amounts appropriated for such purpose on or after the date of the enactment of this paragraph.