{"data":{"id":"us/23-cfr-636.302","jurisdiction":"us","citation":"23 CFR 636.302","heading":"Are there any limitations on the selection and use of proposal evaluation factors?","body":"(a) The selection of the evaluation factors, significant subfactors and their relative importance are within your broad discretion subject to the following requirements:\n(1) You must evaluate price in every source selection where construction is a significant component of the scope of work. However, where the contracting agency elects to release the final RFP and award the design-build contract before the conclusion of the NEPA process (see § 636.109), then the following requirements apply:\n(i) It is not necessary to evaluate the total contract price;\n(ii) Price must be considered to the extent the contract requires the contracting agency to make any payments to the design-builder for any work performed prior to the completion of the NEPA process and the contracting agency wishes to use Federal-aid highway funds for those activities;\n(iii) The evaluation of proposals and award of the contract may be based on qualitative considerations;\n(iv) If the contracting agency wishes to use Federal-aid highway funds for final design and construction, the subsequent approval of final design and construction activities will be contingent upon a finding of price reasonableness by the contracting agency;\n(v) The determination of price reasonableness for any design-build project funded with Federal-aid highway funds shall be based on at least one of the following methods:\n(A) Compliance with the applicable procurement requirements for part 172, 635, or 636, where the contractor providing the final design or construction services, or both, is a person or entity other than the design-builder;\n(B) A negotiated price determined on an open-book basis by both the design-builder and contracting agency; or\n(C) An independent estimate by the contracting agency based on the price of similar work;\n(vi) The contracting agency's finding of price reasonableness is subject to FHWA concurrence.\n(2) You must evaluate the quality of the product or service through consideration of one or more non-price evaluation factors. These factors may include (but are not limited to) such criteria as:\n(i) Compliance with solicitation requirements;\n(ii) Completion schedule (contractual incentives and disincentives for early completion may be used where appropriate); or\n(iii) Technical solutions.\n(3) At your discretion, you may evaluate past performance, technical experience and management experience (subject to § 636.303(b)).\n(b) All factors and significant subfactors that will affect contract award and their relative importance must be stated clearly in the solicitation.","path":["Title 23—Highways","CHAPTER I—FEDERAL HIGHWAY ADMINISTRATION, DEPARTMENT OF TRANSPORTATION","SUBCHAPTER G—ENGINEERING AND TRAFFIC OPERATIONS","PART 636—DESIGN-BUILD CONTRACTING","Subpart C—Proposal Evaluation Factors"],"source_url":"https://www.ecfr.gov/api/versioner/v1/full/2026-08-25/title-23.xml","current_through":"2026-08-25","vintage":"","retrieved_at":"2026-08-27T02:24:50Z","sha256":"70b633da8a0e20815ff05ceb7970b42ca573ae5f02a4f69394ec52b0b84816f5","source_id":"us-cfr","stale":true,"prev":"us/23-cfr-636.301","next":"us/23-cfr-636.303"},"notice":"GroundRules: Original legal text. Not legal advice."}