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
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.
Short title; table of contents
This Act may be cited as the
Construction Consensus Procurement Improvement Act of 2017.
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.
Congress makes the following findings:
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.
Federal procurement officials often adopt contracting techniques from the private sector and have used those techniques effectively to procure products and services.
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.
The current statutory framework for design-build could benefit from legislative refinement.
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.
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.
Design-build construction process improvement
Section 3309(b) of title 41, United States Code, is amended to read as follows:
Criteria for use
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.
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—
the contracting officer anticipates that three or more offers will be received for the contract;
design work must be performed before an offeror can develop a price or cost proposal for the contract;
the offeror will incur a substantial amount of expense in preparing the offer; and
the contracting officer has considered information such as—
the extent to which the project requirements have been adequately defined;
the time constraints for delivery of the project;
the capability and experience of potential contractors;
the suitability of the project for use of the two-phase selection procedures;
the capability of the agency to manage the two-phase selection process; and
other criteria established by the agency.
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—
more than 5 finalists were selected for phase-two requests for proposals; or
the contract or order was awarded without using two-phase selection procedures.
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.
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.
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).
Prohibition on the use of a reverse auction for the award of a contract for design and construction services
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.
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.
For purposes of this section—
the term design and construction services means—
site planning and landscape design;
architectural and engineering services (as defined in section 1102 of title 40, United States Code);
performance of substantial construction work for facility, infrastructure, and environmental restoration projects;
delivery and supply of construction materials to construction sites; or
construction or substantial alteration of public buildings or public works; and
the term reverse auction means, with respect to any procurement by an executive agency—
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
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.