[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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