[Congressional Record Volume 167, Number 3 (Tuesday, January 5, 2021)]
[House]
[Pages H68-H69]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
CONSTRUCTION CONSENSUS PROCUREMENT IMPROVEMENT ACT OF 2021
Mrs. CAROLYN B. MALONEY of New York. Mr. Speaker, I move to suspend
the rules and pass the bill (H.R. 26) to amend the Consolidated
Appropriations Act, 2021, to correct a provision on the prohibition on
the use of a reverse auction, and for other purposes.
The Clerk read the title of the bill.
The text of the bill is as follows:
H.R. 26
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 ``Construction Consensus
Procurement Improvement Act of 2021''.
SEC. 2. AMENDMENT.
Section 402 of title IV of division U of the Consolidated
Appropriations Act, 2021, is amended to read as follows:
``prohibition on use of a reverse auction for the award of a contract
for complex, specialized, or substantial design and construction
services
``Sec. 402.
``(a) Findings.--Congress makes the following findings:
``(1) In contrast to a traditional auction in which the
buyers bid up the price, sellers bid down the price in a
reverse auction.
``(2) Reverse auctions, while providing value for the vast
majority of Federal acquisitions, including certain
construction-related acquisitions, are limited in value for
complex, specialized, or substantial design and construction
services.
``(b) Reverse Auction Defined.--In this section, the term
`reverse auction' means, with respect to any procurement by
an executive agency, a real-time auction generally 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.
``(c) Prohibition.--
``(1) In general.--Not later than 270 days after the date
of the enactment of this section, the Federal Acquisition
Regulation shall be amended to prohibit the use of reverse
auctions for awarding contracts for complex, specialized, or
substantial design and construction services.
``(2) Applicability to acquisitions above the simplified
acquisition threshold.--The prohibition on reverse auctions
for complex, specialized, or substantial design and
construction services shall apply only to acquisitions above
the simplified acquisition threshold (SAT) for construction
and design services pursuant to part 36 of the Federal
Acquisition Regulation.
``(d) Rulemaking for Complex, Specialized, or Substantial
Services.--Not later than 180 days after the date of the
enactment of this section, the Federal Acquisition Regulatory
Council shall promulgate a definition of complex,
specialized, or substantial design and construction services,
which shall include--
``(1) site planning and landscape design;
``(2) architectural and engineering services (as defined in
section 1102 of title 40, United States Code);
``(3) interior design;
``(4) performance of substantial construction work for
facility, infrastructure, and environmental restoration
projects; and
``(5) construction or substantial alteration of public
buildings or public works.
``(e) Rule of Construction.--Nothing in this section shall
be construed to restrict the use of reverse auctions for the
procurement of other goods and services except as
specifically provided for under this section.
``(f) Report.--Not later than two years after the date of
the enactment of this section, the Administrator of General
Services shall submit to the Committee on Homeland Security
and Governmental Affairs of the Senate and the Committee on
Oversight and Reform of the House of Representatives a report
on the effectiveness of this section in delivering complex,
specialized, or substantial design and construction services
to the United States Government.''.
SEC. 3. DETERMINATION OF BUDGETARY EFFECTS.
The budgetary effects of this Act, for the purpose of
complying with the Statutory Pay-As-You-Go Act of 2010, shall
be determined by reference to the latest statement titled
``Budgetary Effects of PAYGO Legislation'' for this Act,
submitted for printing in the Congressional Record by the
Chairman of the House Budget Committee, provided that such
statement has been submitted prior to the vote on passage.
The SPEAKER pro tempore. Pursuant to the rule, the gentlewoman from
New York (Mrs. Carolyn B. Maloney) and the gentleman from Alabama (Mr.
Palmer) each will control 20 minutes.
The Chair recognizes the gentlewoman from New York.
General Leave
Mrs. CAROLYN B. MALONEY of New York. Mr. Speaker, I ask unanimous
consent that all Members may have 5 legislative days in which to revise
and extend their remarks and include extraneous material on the measure
before us.
The SPEAKER pro tempore. Is there objection to the request of the
gentlewoman from New York?
There was no objection.
Mrs. CAROLYN B. MALONEY of New York. Mr. Speaker, I yield myself such
time as I may consume.
[[Page H69]]
Mr. Speaker, I thank Representatives Comer and Khanna for their work
on this bipartisan bill, and I thank Senators Portman and Peters for
their work on last year's Senate companion.
This measure would correct a provision of the Consolidated
Appropriations Act for fiscal year 2021 that was incorrectly inserted
into the law.
The language of this bill had been carefully crafted by the House
Oversight and Reform Committee and the Senate Committee on Homeland
Security and Governmental Affairs over many months prior to the
agreement to include it in last year's Consolidated Appropriations Act.
The bill you see before you today honors that agreement and resolves
the drafting error.
The bill would prohibit the use of reverse auctions for the
procurement of complex, specialized, or substantial design and
construction services procured by the Federal Government.
Such services would include site planning, architectural and
engineering services, interior design, construction or substantial
alteration of public buildings or public works, and substantial
construction work for facility, infrastructure, and environmental
restoration projects.
Reverse auctions are generally a valuable tool to ensure the
responsible stewardship of taxpayer dollars through the acquisition
process.
{time} 1245
In a reverse auction, a buyer seeking a good or service--in this case
the Federal Government--solicits bids. Multiple sellers offer bids and
the seller with the lowest bid wins the competition.
However, in the specific instance of complex, specialized, or
substantial design and construction services, the use of reverse
auctions can be problematic. While the lowest price is often the goal
for standardized goods and services, it is not the only factor that
should be considered for these unique projects.
Quality is also an important evaluation factor, especially for
complex services, like design-build contracts for major public
buildings or works.
This bill would not prevent contracting officers from considering
price in evaluating proposals for complex construction services, just
the use of reverse auctions designed to achieve the lowest price
without regard to quality.
Mr. Speaker, I urge Members to support this bill, and I reserve the
balance of my time.
Mr. PALMER. Mr. Speaker, I yield myself such time as I may consume.
Mr. Speaker, I rise in support of H.R. 26, the Construction Consensus
Procurement Improvement Act of 2021. This bill would prohibit the
Federal Government's use of reverse auctions for complex design and
construction services. A reverse auction is one where the sellers bid
down the price instead of the buyers driving up the price. Most often,
the contractor with the lowest bid wins the contract. While we all wish
for the Federal Government to get the lowest price, it is important
that these complex projects are done properly, on time, and on budget.
Reverse auctions are not always appropriate for the types of services
this bill deals with because design-build or complex construction
projects often have variables which cannot be contemplated during the
original bidding process.
The use of reverse auctions can often result in products that are
subpar and, ultimately, over budget. Often, the winning low bid is
nowhere near the final cost to the government after unanticipated
factors lead to time and budget overruns.
Specifically, the Office of Federal Procurement Policy found that,
for complex design and construction contracts, the expertise required
to complete these projects was not built in to reverse auction bids.
Construction projects have a high degree of variability and the
reverse auction process often does not yield the low costs intended for
the taxpayer. This legislation is tailored to ensure that products and
services which do not benefit from the reverse auction process will not
be affected.
Going forward, we must continue to fight for the best possible
products at the best price to the taxpayer. That includes ensuring
benefits are brought to our constituents on time and on budget. This
legislation will help to achieve that.
Mr. Speaker, I thank my colleague, Representative Ro Khanna, for his
work and support on this legislation. I urge my colleagues to support
the bill, and I reserve the balance of my time.
Mrs. CAROLYN B. MALONEY of New York. Mr. Speaker, I reserve the
balance of my time.
Mr. PALMER. Mr. Speaker, I yield 3 minutes to the gentleman from
Kentucky (Mr. Comer).
Mr. COMER. Mr. Speaker, I rise in strong support of my bill, H.R. 26,
the Construction Consensus Procurement Improvement Act of 2021.
It is vitally important that the Federal Government procure complex
design and construction services that remain on time and on budget.
This bill would prevent the Federal reverse auctions procurement
process from being used for complex projects. Using reverse auctions
for major construction projects only causes problems, such as delays
and wasteful spending.
Who pays the price?
The taxpayer.
The Federal Government must be good stewards of taxpayer dollars and
get the best possible services for the best price. As ranking member of
the Committee on Oversight and Reform, I want to continue to deliver
savings to the taxpayer and make stakeholder interaction with the
government much easier, and H.R. 26 does just that.
This bill is the result of strong bipartisan, bicameral negotiations
and the hard work of many private sector groups. I thank Senator
Portman for his hard work on this legislation last Congress. I am also
thankful for the support of my Committee on Oversight and Reform
colleague, Mr. Khanna.
Mr. Speaker, I would also like to particularly thank the Construction
Industry Procurement Coalition, the Association of General Contractors,
the Design-Build Institute of America, the American Subcontractors
Association, and numerous others for their hard work on this
legislation.
I look forward to continuing to work with the majority to advance
commonsense legislation to make government more efficient and
effective. I encourage the Senate to quickly consider this bill and
send it to the President's desk.
Mr. Speaker, I urge my House colleagues to support H.R. 26.
Mr. PALMER. Mr. Speaker, I yield myself such time as I may consume.
Mr. Speaker, this is a sensible and needed bipartisan reform. I am
hopeful to see similar bipartisan procurement reform bills this
Congress, and I urge my colleagues to support this legislation.
Mr. Speaker, I yield back the balance of my time.
Mrs. CAROLYN B. MALONEY of New York. Mr. Speaker, I urge passage of
H.R. 26, and I yield back the balance of my time.
The SPEAKER pro tempore. The question is on the motion offered by the
gentlewoman from New York (Mrs. Carolyn B. Maloney) that the House
suspend the rules and pass the bill, H.R. 26.
The question was taken; and (two-thirds being in the affirmative) the
rules were suspended and the bill was passed.
A motion to reconsider was laid on the table.
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