124 STAT. 3759 PUBLIC LAW 111–350—JAN. 4, 2011 (1) DETERMINING WHETHER PROPOSALS ARE NECESSARY.—In preparing a solicitation for the award of a production contract for a major system, the head of an agency shall consider requiring in the solicitation 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) CONTENT OF PROPOSALS.—The proposals that the head of an agency is to consider requiring in a solicitation for the award of a production contract are proposals identifying opportunities to ensure that the Federal Government will be able to obtain on a competitive basis items procured in connec- tion with the system that are likely to be reprocured in substan- tial 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 competitive 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 mul- tiple sources of supply for the item. (c) CONSIDERATION OF FACTORS AS OBJECTIVES IN NEGOTIA- TIONS.—If the head of an agency is making a noncompetitive award of a development contract or a production contract for a major system, the factors specified in subsections (a) and (b) to be consid- ered 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 design-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 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 deter- mination 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 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 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.
