IN THE SENATE OF THE UNITED STATES
October 6, 2015
Mr. Vitter (for himself and Mrs. Shaheen) introduced the following bill; which was read twice and referred to the Committee on Small Business and Entrepreneurship
To amend the Small Business Act to prohibit the use of reverse auctions for the procurement of covered contracts.
This Act may be cited as the
Small Contractors Improve Competition Act of 2015.
Limitations on reverse auctions
Sense of Congress
It is the sense of Congress that, when used appropriately, reverse auctions may improve procurement by the Federal Government of commercially available commodities by increasing competition, reducing prices, and improving opportunities for small businesses.
Limitations on reverse auctions
The Small Business Act (15 U.S.C. 631 et seq.) is amended—
by redesignating section 47 as section 48; and
by inserting after section 46 the following:
Limitations on reverse auctions for covered contracts
In this section—
the term contracting officer has the meaning given the term in section 2101 of title 41, United States Code;
the term covered contract means a contract—
for design and construction services;
for goods purchased to protect Federal employees, members of the Armed Forces, or civilians from bodily harm; or
for goods or services other than those goods or services described in subparagraph (A) or (B)—
to be awarded based on factors other than price and technical responsibility; or
if awarding the contract requires the contracting officer to conduct discussions with the offerors about their offer;
the term design and construction services means—
site planning and landscape design;
architectural and interior design;
engineering system design;
performance of construction work for facility, infrastructure, and environmental restoration projects;
delivery and supply of construction materials to construction sites;
construction, alteration, or repair, including painting and decorating, of public buildings and public works; and
architectural and engineering services, as defined in section 1102 of title 40, United States Code;
the term responsible source has the meaning given the term in section 113 of title 41, United States Code; and
the term reverse auction, with respect to procurement by an agency, means an auction between a group of offerors who compete against each other by submitting offers for a contract or task or delivery order with the ability to submit revised offers with lower prices throughout the course of the auction.
Prohibition on using reverse auctions for covered contracts
In the case of a covered contract, a reverse auction may not be used if the award of the covered contract is to be made under—
section 31; or
Limitations on using reverse auctions
In the case of the award of a contract made under paragraphs (1) through (6) of subsection (b) that is not a covered contract, a reverse auction may be used for the award of such a contract only if the following requirements are met:
Decisions regarding use of a reverse auction
Subject to paragraph (2), the following decisions with respect to such a contract shall only be made by a contracting officer:
A decision to use a reverse auction as part of the competition for award of such a contract.
Any decision made after the decision described in subparagraph (A) regarding the appropriate evaluation criteria, the inclusion of vendors, the acceptability of vendor submissions (including decisions regarding timeliness), and the selection of the winner.
Only a contracting officer who has received training on the appropriate use and supervision of reverse auctions may use or supervise a reverse auction for the award of such a contract.
The training described in subparagraph (A) shall be provided by, or similar to the training provided by, the Defense Acquisition University as described in section 824 of the Carl Levin and Howard P.
Buck McKeon National Defense Authorization Act for Fiscal Year 2015 (Public Law 113–291; 127 Stat. 3436).
Number of offers; revisions to bids
A Federal agency may not award such a contract using a reverse auction if—
only 1 offer is received; or
offerors do not have the ability to submit revised bids with lower prices throughout the course of the auction.
Technically acceptable offers
A Federal agency awarding such a contract using a reverse auction shall evaluate the technical acceptability of offers only as technically acceptable or unacceptable.
Use of price rankings
A Federal agency may not award such a contract using a reverse auction if at any time during the procurement process the Federal agency misinforms an offeror about the price ranking of the last offer of the offeror submitted in relation to offers submitted by other offerors.
Use of third-party agents
If a Federal agency uses a third-party agent to assist with the award of such a contract using a reverse auction, the Federal agency shall ensure that—
inherently governmental functions are not performed by private contractors, including by the third-party agent;
information on the past contract performance of offerors created by the third-party agent and shared with the Federal agency is collected, maintained, and shared in compliance with section 1126 of title 41, United States Code;
information on whether an offeror is a responsible source that is created by the third-party agent and shared with the Federal agency is shared with the offeror and complies with section 8(b)(7); and
disputes between the third-party agent and an offeror may not be used to justify a determination that an offeror is not a responsible source or to otherwise restrict the ability of an offeror to compete for the award of a contract or task.