[Congressional Bills 114th Congress]
[From the U.S. Government Publishing Office]
[S. 2139 Reported in Senate (RS)]

<DOC>





                                                       Calendar No. 308
114th CONGRESS
  1st Session
                                S. 2139

To amend the Small Business Act to prohibit the use of reverse auctions 
               for the procurement of covered contracts.


_______________________________________________________________________


                   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

                            December 2, 2015

                Reported by Mr. Vitter, with amendments
  [Omit the part struck through and insert the part printed in italic]

_______________________________________________________________________

                                 A BILL


 
To amend the Small Business Act to prohibit the use of reverse auctions 
               for the procurement of covered contracts.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Small Contractors Improve 
Competition Act of 2015''.

SEC. 2. LIMITATIONS ON REVERSE AUCTIONS.

    (a) 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.
    (b) Limitations on Reverse Auctions.--The Small Business Act (15 
U.S.C. 631 et seq.) is amended--
            (1) by redesignating section 47 as section 48; and
            (2) by inserting after section 46 the following:

``SEC. 47. LIMITATIONS ON REVERSE AUCTIONS FOR COVERED CONTRACTS.

    ``(a) Definitions.--In this section--
            ``(1) the term `contracting officer' has the meaning given 
        the term in section 2101 of title 41, United States Code;
            ``(2) the term `covered contract' means a contract--
                    ``(A) for design and construction services;
                    ``(B) for goods purchased to protect Federal 
                employees, members of the Armed Forces, or civilians 
                from bodily harm; or
                    ``(C) for goods or services other than those goods 
                or services described in subparagraph (A) or (B)--
                            ``(i) to be awarded based on factors other 
                        than price and technical responsibility; or
                            ``(ii) if awarding the contract requires 
                        the contracting officer to conduct discussions 
                        with the offerors about their offer;
            ``(3) the term `design and construction services' means--
                    ``(A) site planning and landscape design;
                    ``(B) architectural and interior design;
                    ``(C) engineering system design;
                    ``(D) performance of construction work for 
                facility, infrastructure, and environmental restoration 
                projects;
                    ``(E) delivery and supply of construction materials 
                to construction sites;
                    ``(F) construction, alteration, or repair, 
                including painting and decorating, of public buildings 
                and public works; and
                    ``(G) architectural and engineering services, as 
                defined in section 1102 of title 40, United States 
                Code;
            ``(4) the term `responsible source' has the meaning given 
        the term in section 113 of title 41, United States Code; and
            ``(5) 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.
    ``(b) 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--
            ``(1) section 8(a);
            ``(2) section 8(m);
            ``(3) section 15(a);
            ``(4) section 15(j);
            ``(5) section 31; or
            ``(6) section 36.
    ``(c) Limitations on Using Reverse Auctions.--In the case of the 
award of a contract made under a provision of law described in 
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:
            ``(1) 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) A decision to use a reverse auction as part 
                of the competition for award of such a contract.
                    ``(B) 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.
            ``(2) Training required.--
                    ``(A) In general.--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.
                    ``(B) Training.--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) (10 U.S.C. 2304 note).
            ``(3) Number of offers; revisions to bids.--A Federal 
        agency may not award such a contract using a reverse auction 
        if--
                    ``(A) only 1 offer is received; or
                    ``(B) offerors do not have the ability to submit 
                revised bids with lower prices throughout the course of 
                the auction.
            ``(4) 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.
            ``(5) 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.
            ``(6) 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--
                    ``(A) inherently governmental functions are not 
                performed by private contractors, including by the 
                third-party agent;
                    ``(B) 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;
                    ``(C) 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
                    ``(D) 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.''.

SEC. 3. SURETY BOND REQUIREMENTS AND AMOUNT OF GUARANTEE.

    (a) Surety Bond Requirements.--Chapter 93 of title 31, United 
States Code, is amended--
            (1) by adding at the end the following:
``Sec. 9310. Individual sureties
    ``If another applicable Federal 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 
        obligations as described under section 9303(b).''; and
            (2) in the table of sections, by adding at the end the 
        following:

``9310. Individual sureties.''.
    (b) Amount of Surety Bond Guarantee From Small Business 
Administration.--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''.
    (c) Effective Date.--The amendments made by this section shall take 
effect 1 year after the date of enactment of this Act.
                                                       Calendar No. 308

114th CONGRESS

  1st Session

                                S. 2139

_______________________________________________________________________

                                 A BILL

To amend the Small Business Act to prohibit the use of reverse auctions 
               for the procurement of covered contracts.

_______________________________________________________________________

                            December 2, 2015

                        Reported with amendments