[Congressional Bills 114th Congress]
[From the U.S. Government Publishing Office]
[S. 1526 Introduced in Senate (IS)]

114th CONGRESS
  1st Session
                                S. 1526

  To amend title 10 and title 41, United States Code, to improve the 
manner in which Federal contracts for construction and design services 
  are awarded, to prohibit the use of reverse auctions for design and 
  construction services procurements, to amend title 31 and title 41, 
  United States Code, to improve the payment protections available to 
   construction contractors, subcontractors, and suppliers for work 
                   performed, and for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                              June 8, 2015

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

_______________________________________________________________________

                                 A BILL


 
  To amend title 10 and title 41, United States Code, to improve the 
manner in which Federal contracts for construction and design services 
  are awarded, to prohibit the use of reverse auctions for design and 
  construction services procurements, to amend title 31 and title 41, 
  United States Code, to improve the payment protections available to 
   construction contractors, subcontractors, and suppliers for work 
                   performed, 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 2015''.
    (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. 5. Assuring payment protections for construction subcontractors 
                            and suppliers under an alternative to a 
                            Miller Act payment bond.
Sec. 6. SBA surety bond guarantee program.

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 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 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 purchase of products 
        that are commercially equivalent to commodities.
            (6) Despite their success in other contexts, reverse 
        auctions are generally inappropriate for procurement of design 
        and construction services, given the unique nature of each such 
        project.
            (7) To ensure payment protection for contractors, 
        subcontractors, and suppliers working on Federal construction 
        projects, bonds backed by individual sureties must be placed in 
        the care and custody of the Federal Government and be supported 
        by assets that are real, sufficient, verifiable, and readily 
        convertible into cash.

SEC. 3. DESIGN-BUILD CONSTRUCTION PROCESS IMPROVEMENT.

    (a) Civilian Contracts.--
            (1) In general.--Section 3309 of title 41, United States 
        Code, is amended--
                    (A) by amending subsection (b) to read as follows:
    ``(b) Criteria for Use.--
            ``(1) Contracts with a value of at least $750,000.--Two-
        phase selection procedures shall be used for entering into a 
        contract for the design and construction of a public building, 
        facility, or work when a contracting officer determines that 
        the contract has a value of $750,000 or greater, as adjusted 
        for inflation in accordance with section 1908 of this title.
            ``(2) Contracts with a value less than $750,000.--For 
        projects that a contracting officer determines have a value of 
        less than $750,000, the contracting officer shall make a 
        determination 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 when--
                    ``(A) the contracting officer anticipates that 3 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.''; and
                    (B) in subsection (d), by striking ``The maximum 
                number specified in the solicitation shall not exceed 5 
                unless the agency determines with respect to'' and all 
                that follows through the period at the end and 
                inserting the following: ``The maximum number specified 
                in the solicitation shall not exceed 5 unless the head 
                of the contracting activity, delegable to a level no 
                lower than the senior contracting official within the 
                contracting activity, approves the contracting 
                officer's justification that an individual solicitation 
                must have greater than 5 finalists to be in the Federal 
                Government's interest. The contracting officer shall 
                provide written documentation of how a maximum number 
                of offerors exceeding 5 is consistent with the purposes 
                and objectives of the two-phase selection process.''.
            (2) Annual reports.--
                    (A) In general.--Not later than November 30 of 
                2016, 2017, 2018, 2019, and 2020, the head of each 
                agency shall compile 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 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.
    (b) Defense Contracts.--
            (1) In general.--Section 2305a of title 10, United States 
        Code, is amended--
                    (A) by amending subsection (b) to read as follows:
    ``(b) Criteria for Use.--
            ``(1) Contracts with a value of at least $750,000.--Two-
        phase selection procedures shall be used for entering into a 
        contract for the design and construction of a public building, 
        facility, or work when a contracting officer determines that 
        the contract has a value of $750,000 or greater, as adjusted 
        for inflation in accordance with section 1908 of title 41, 
        United States Code.
            ``(2) Contracts with a value less than $750,000.--For 
        projects that a contracting officer determines have a value of 
        less than $750,000, the contracting officer shall make a 
        determination 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 when--
                    ``(A) the contracting officer anticipates that 3 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 
                        Department of Defense.''; and
                    (B) in subsection (d), by striking ``The maximum 
                number specified in the solicitation shall not exceed 5 
                unless the agency determines with respect to'' and all 
                that follows through the period at the end and 
                inserting the following: ``The maximum number specified 
                in the solicitation shall not exceed 5 unless the head 
                of the contracting activity approves the contracting 
                officer's justification that an individual solicitation 
                must have greater than 5 finalists to be in the Federal 
                Government's interest. The contracting officer shall 
                provide written documentation of how a maximum number 
                of offerors exceeding 5 is consistent with the purposes 
                and objectives of the two-phase selection process.''.
            (2) Annual reports.--
                    (A) In general.--Not later than November 30 of 
                2016, 2017, 2018, 2019, and 2020, the Secretary of 
                Defense shall compile an annual report of each instance 
                in which the Department awarded a design-build contract 
                pursuant to section 2305a of title 10, 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 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) GAO Reports.--
            (1) Civilian contracts.--Not later than 270 days after the 
        deadline for the final reports required under subsection (f) of 
        section 3309 of title 41, United States Code, as added by 
        subsection (a)(1), the Comptroller General of the United States 
        shall issue a report analyzing the compliance of the various 
        Federal agencies with the requirements of such section.
            (2) Defense contracts.--Not later than 270 days after the 
        deadline for the final reports required under subsection (f) of 
        section 2305a of title 10, United States Code, as added by 
        subsection (b)(1), the Comptroller General of the United States 
        shall issue a report analyzing the compliance of the Department 
        of Defense with the requirements of such section.

SEC. 4. PROHIBITION ON THE USE OF A REVERSE AUCTION FOR THE AWARD OF A 
              CONTRACT FOR DESIGN AND CONSTRUCTION SERVICES.

    (a) Prohibition.--Not later than 180 days after the date of the 
enactment of this Act, the Federal Acquisition Regulatory Council, in 
consultation with the Administrator for Federal Procurement Policy, 
shall amend the Federal Acquisition Regulation to prohibit the use of 
reverse auctions for awarding contracts for construction and design 
services.
    (b) 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 
                (including surveying and mapping defined in section 
                1101 of title 40, United States Code);
                    (C) interior design;
                    (D) performance of construction work for facility, 
                infrastructure, and environmental restoration projects;
                    (E) delivery and supply of construction materials 
                to construction sites; and
                    (F) construction or substantial alteration or 
                repair of public buildings or public works; and
            (2) the term ``reverse auction'' means, with respect to 
        procurement by an agency--
                    (A) a real-time auction conducted through an 
                electronic medium between a group of offerors who 
                compete against each other by submitting bids for a 
                contract or task order with the ability to submit 
                revised bids throughout the course of the auction; and
                    (B) the award of the contract or task order to the 
                offeror who submits the lowest bid.

SEC. 5. ASSURING PAYMENT PROTECTIONS FOR CONSTRUCTION SUBCONTRACTORS 
              AND SUPPLIERS UNDER AN ALTERNATIVE TO A MILLER ACT 
              PAYMENT BOND.

    Chapter 93 of subtitle VI of title 31, United States Code, is 
amended--
            (1) by adding at the end the following new section:
``Sec. 9310. Individual sureties
    ``If another applicable law or regulation permits the acceptance of 
a bond from a surety that is not subject to sections 9305 and 9306 and 
is based on a pledge of assets by the surety, the assets pledged by 
such surety shall--
            ``(1) consist of eligible obligations described under 
        section 9303(a); and
            ``(2) be submitted to the official of the Government 
        required to approve or accept the bond, who shall deposit the 
        assets with a depository described under section 9303(b).''; 
        and
            (2) in the table of sections for such chapter, by adding at 
        the end the following new item:

``9310. Individual sureties.''.

SEC. 6. SBA SURETY BOND GUARANTEE PROGRAM.

    Section 411(c)(1) of the Small Business Investment Act of 1958 (15 
U.S.C. 694b(c)(1)) is amended by striking ``70'' and inserting ``90''.
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