[Congressional Bills 115th Congress]
[From the U.S. Government Publishing Office]
[S. 2113 Reported in Senate (RS)]
<DOC>
Calendar No. 382
115th CONGRESS
2d Session
S. 2113
[Report No. 115-231]
To amend title 41, United States Code, to improve the manner in which
Federal contracts for design and construction services are awarded, to
prohibit the use of reverse auctions for design and construction
services procurements, and for other purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
November 9, 2017
Mr. Portman (for himself and Ms. Hirono) introduced the following bill;
which was read twice and referred to the Committee on Homeland Security
and Governmental Affairs
April 18, 2018
Reported by Mr. Johnson, without amendment
_______________________________________________________________________
A BILL
To amend title 41, United States Code, to improve the manner in which
Federal contracts for design and construction services are awarded, to
prohibit the use of reverse auctions for design and construction
services procurements, and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``Construction
Consensus Procurement Improvement Act of 2017''.
(b) Table of Contents.--The table of contents for this Act is as
follows:
Sec. 1. Short title; table of contents.
Sec. 2. Congressional findings.
Sec. 3. Design-build construction process improvement.
Sec. 4. Prohibition on the use of a reverse auction for the award of a
contract for design and construction
services.
SEC. 2. CONGRESSIONAL FINDINGS.
Congress makes the following findings:
(1) The acquisition procedures that are often used
effectively to procure products and other forms of services are
not always appropriate for the procurement of design and
construction services.
(2) Federal procurement officials often adopt contracting
techniques from the private sector and have used those
techniques effectively to procure products and services.
(3) Design-build is a procurement technique Federal
officials have adopted from the private sector that has worked
well for the procurement of design and construction services.
(4) The current statutory framework for design-build could
benefit from legislative refinement.
(5) Reverse auctions are another procurement technique
Federal officials have adopted from the private sector and used
successfully to award contracts for the procurement of products
that are commercially equivalent to commodities.
(6) Despite their success in other contexts, reverse
auctions are generally inappropriate for the procurement of
design and construction services, given the unique nature of
each such project.
SEC. 3. DESIGN-BUILD CONSTRUCTION PROCESS IMPROVEMENT.
(a) Civilian Contracts.--
(1) In general.--Section 3309(b) of title 41, United States
Code, is amended to read as follows:
``(b) Criteria for Use.--
``(1) Contracts with a value of at least $3,000,000.--Two-
phase selection procedures shall be used for entering into a
contract for the design and construction of a public building,
facility, or work if a contracting officer determines that the
project has a value of $3,000,000 or greater.
``(2) Contracts with a value less than $3,000,000.--For any
project that a contracting officer determines has a value of
less than $3,000,000, the contracting officer shall make a
determination on 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 if--
``(A) the contracting officer anticipates that
three or more offers will be received for the contract;
``(B) design work must be performed before an
offeror can develop a price or cost proposal for the
contract;
``(C) the offeror will incur a substantial amount
of expense in preparing the offer; and
``(D) the contracting officer has considered
information such as--
``(i) the extent to which the project
requirements have been adequately defined;
``(ii) the time constraints for delivery of
the project;
``(iii) the capability and experience of
potential contractors;
``(iv) the suitability of the project for
use of the two-phase selection procedures;
``(v) the capability of the agency to
manage the two-phase selection process; and
``(vi) other criteria established by the
agency.''.
(2) Annual reports.--
(A) In general.--Not later than November 30 of
2018, 2019, 2020, 2021, and 2022, the head of each
executive agency shall compile and submit to the
Director of the Office of Management and Budget an
annual report of each instance in which the agency
awarded a design-build contract pursuant to section
3309 of title 41, United States Code, during the fiscal
year ending in such calendar year, in which--
(i) more than 5 finalists were selected for
phase-two requests for proposals; or
(ii) the contract or order was awarded
without using two-phase selection procedures.
(B) Public availability.--The Director of the
Office of Management and Budget shall facilitate public
access to the reports, including by posting them on a
publicly available Internet website. A notice of the
availability of each report shall be published in the
Federal Register.
(C) Submission to gao.--Not later than 30 days
after the deadline described under subparagraph (A),
the Director of the Office of Management and Budget
shall compile and submit the reports submitted to the
Director under such subparagraph to the Comptroller
General.
(b) GAO Reports.--Not later than 270 days after the deadline under
subsection (a)(2)(A), the Comptroller General of the United States
shall issue a report analyzing the reports submitted under subsection
(a)(2)(C) and agency compliance with the requirements of section
3309(b) of title 41, United States Code, as amended by subsection
(a)(1).
SEC. 4. PROHIBITION ON THE USE OF A REVERSE AUCTION FOR THE AWARD OF A
CONTRACT FOR DESIGN AND CONSTRUCTION SERVICES.
(a) Finding.--Congress finds that, in contrast to a traditional
auction in which the buyers bid up the price, sellers bid down the
price in a reverse auction.
(b) Prohibition.--Not later than 180 days after the date of the
enactment of this Act, the Federal Acquisition Regulation shall be
amended to prohibit the use of reverse auctions as part of the two-
phase selection procedures for awarding contracts for design and
construction services.
(c) Definitions.--For purposes of this section--
(1) the term ``design and construction services'' means--
(A) site planning and landscape design;
(B) architectural and engineering services (as
defined in section 1102 of title 40, United States
Code);
(C) interior design;
(D) performance of substantial construction work
for facility, infrastructure, and environmental
restoration projects;
(E) delivery and supply of construction materials
to construction sites; or
(F) construction or substantial alteration of
public buildings or public works; and
(2) the term ``reverse auction'' means, with respect to any
procurement by an executive agency--
(A) a real-time auction conducted through an
electronic medium among two or more offerors who
compete by submitting bids for a supply or service
contract, or a delivery order, task order, or purchase
order under the contract, with the ability to submit
revised lower bids at any time before the closing of
the auction; and
(B) the award of the contract, delivery order, task
order, or purchase order to the offeror, in whole or in
part, based on the price obtained through the auction
process.
Calendar No. 382
115th CONGRESS
2d Session
S. 2113
[Report No. 115-231]
_______________________________________________________________________
A BILL
To amend title 41, United States Code, to improve the manner in which
Federal contracts for design and construction services are awarded, to
prohibit the use of reverse auctions for design and construction
services procurements, and for other purposes.
_______________________________________________________________________
April 18, 2018
Reported without amendment