---
kind: "section"
citation: "23 C.F.R. § 636.302"
title: "23"
number: "636.302"
heading: "Are there any limitations on the selection and use of proposal evaluation factors?"
url: "https://uscodex.org/cfr/23/636.302"
---

# §636.302. Are there any limitations on the selection and use of proposal evaluation factors?

- (a) The selection of the evaluation factors, significant subfactors and their relative importance are within your broad discretion subject to the following requirements:
  - (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](/cfr/23/636.109.md)), then the following requirements apply:
    - (i) It is not necessary to evaluate the total contract price;
    - (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;
    - (iii) The evaluation of proposals and award of the contract may be based on qualitative considerations;
    - (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;
    - (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:
      - (A) Compliance with the applicable procurement requirements for part [172](/cfr/23/part172.md), [635](/cfr/23/part635.md), or 636, where the contractor providing the final design or construction services, or both, is a person or entity other than the design-builder;
      - (B) A negotiated price determined on an open-book basis by both the design-builder and contracting agency; or
      - (C) An independent estimate by the contracting agency based on the price of similar work;
    - (vi) **The contracting agency's finding of price reasonableness is subject to FHWA concurrence.**
  - (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:
    - (i) Compliance with solicitation requirements;
    - (ii) Completion schedule (contractual incentives and disincentives for early completion may be used where appropriate); or
    - (iii) **Technical solutions.**
  - (3) At your discretion, you may evaluate past performance, technical experience and management experience (subject to [§ 636.303(b)](/cfr/23/636.303.md?p=b)).
- (b) All factors and significant subfactors that will affect contract award and their relative importance must be stated clearly in the solicitation.

## Notes

### Amendments

[67 FR 75926, Dec. 10, 2002, as amended at 72 FR 45338, Aug. 14, 2007]

### Authority

Authority: Sec. 1503 of Pub. L. 109-59, 119 Stat. 1144; Sec. 1307 of Pub. L. 105-178, 112 Stat. 107; 23 U.S.C. 101, 109, 112, 113, 114, 115, 119, 128, and 315; 49 CFR 1.48(b).

### Source

Source: 67 FR 75926, Dec. 10, 2002, unless otherwise noted.

### Amendments

[67 FR 75926, Dec. 10, 2002, as amended at 72 FR 45338, Aug. 14, 2007]