Construction Consensus Procurement Improvement Act of 2016
A BILL
To amend title 41, United States Code, to improve the manner in which Federal contracts for construction and design services are awarded, and to prohibit the use of reverse auctions for design and construction services procurements.
Sec. 2 Congressional findings
Congress makes the following findings:
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.
Federal procurement officials often adopt contracting techniques from the private sector and have used those techniques effectively to procure products and services.
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.
The current statutory framework for design-build could benefit from legislative refinement.
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.
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.
Sec. 3 Design-build construction process improvement
Civilian contracts—
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 $750,000 $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 when a contracting officer determines that the project has a value of $750,000 $3,000,000 or greater, as adjusted for inflation in accordance with section 1908 of this title.
“(2) Contracts with a value less than $750,000 $3,000,000—For projects that a contracting officer determines have a value of less than $750,000 $3,000,000, 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.”
Annual reports—
In general— Not later than November 30 of 2017, 2018, 2019, 2020, and 2021, 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—
more than 5 finalists were selected for phase-two requests for proposals; or
the contract or order was awarded without using two-phase selection procedures.
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.
GAO reports— 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.
Sec. 4 Prohibition on the use of a reverse auction for the award of a contract for design and construction services
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.
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 as part of the two-phase selection procedure for awarding contracts for construction and design services.
Definitions— For purposes of this section—
the term design and construction services means—
site planning and landscape design;
architectural and engineering services (including surveying and mapping defined in section 1101 of title 40, United States Code);
interior design;
performance of substantial construction work for facility, infrastructure, and environmental restoration projects;
delivery and supply of construction materials to construction sites; or
construction or substantial alteration of public buildings or public works; and
the term reverse auction means, with respect to procurement by an agency—
a real-time auction conducted through an electronic medium among 2 or more offerors who compete by submitting bids for a supply or service contract with the ability to submit revised lower bids at any time before the closing of the auction; and
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.