[Congressional Bills 115th Congress]
[From the U.S. Government Publishing Office]
[S. 2113 Introduced in Senate (IS)]

<DOC>






115th CONGRESS
  1st Session
                                S. 2113

 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

_______________________________________________________________________

                                 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.
                                 <all>