II 

Calendar No. 382 

115TH CONGRESS 

2D SESSION S. 2113 

[Report No. 115–231] 

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 

APRIL 18, 2018 

Reported by Mr. JOHNSON, without amendment 

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. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 


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1 SECTION 1. SHORT TITLE; TABLE OF CONTENTS. 

2 (a) SHORT TITLE.—This Act may be cited as the 

3 ‘‘Construction Consensus Procurement Improvement Act 

4 of 2017’’. 

5 (b) TABLE OF CONTENTS.—The table of contents for 

6 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. 

7 SEC. 2. CONGRESSIONAL FINDINGS. 

8 Congress makes the following findings: 

9 (1) The acquisition procedures that are often 

10 used effectively to procure products and other forms 

11 of services are not always appropriate for the pro12 curement of design and construction services. 

13 (2) Federal procurement officials often adopt 

14 contracting techniques from the private sector and 

15 have used those techniques effectively to procure 

16 products and services. 

17 (3) Design-build is a procurement technique 

18 Federal officials have adopted from the private sec19 tor that has worked well for the procurement of de20 sign and construction services. 

21 (4) The current statutory framework for de22 sign-build could benefit from legislative refinement. 


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1 (5) Reverse auctions are another procurement 

2 technique Federal officials have adopted from the 

3 private sector and used successfully to award con4 tracts for the procurement of products that are com5 mercially equivalent to commodities. 

6 (6) Despite their success in other contexts, re7 verse auctions are generally inappropriate for the 

8 procurement of design and construction services, 

9 given the unique nature of each such project. 

10 SEC. 3. DESIGN-BUILD CONSTRUCTION PROCESS IMPROVE11 MENT. 

12 (a) CIVILIAN CONTRACTS.— 

13 (1) IN GENERAL.—Section 3309(b) of title 41, 

14 United States Code, is amended to read as follows: 

15 ‘‘(b) CRITERIA FOR USE.— 

16 ‘‘(1) CONTRACTS WITH A VALUE OF AT LEAST

17 $3,000,000.—Two-phase selection procedures shall be 

18 used for entering into a contract for the design and 

19 construction of a public building, facility, or work if 

20 a contracting officer determines that the project has 

21 a value of $3,000,000 or greater. 

22 ‘‘(2) CONTRACTS WITH A VALUE LESS THAN

23 $3,000,000.—For any project that a contracting offi24 cer determines has a value of less than $3,000,000, 

25 the contracting officer shall make a determination 


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1 on whether two-phase selection procedures are ap2 propriate for use for entering into a contract for the 

3 design and construction of a public building, facility, 

4 or work if— 

5 ‘‘(A) the contracting officer anticipates 

6 that three or more offers will be received for the 

7 contract; 

8 ‘‘(B) design work must be performed be9 fore an offeror can develop a price or cost pro10 posal for the contract; 

11 ‘‘(C) the offeror will incur a substantial 

12 amount of expense in preparing the offer; and 

13 ‘‘(D) the contracting officer has considered 

14 information such as— 

15 ‘‘(i) the extent to which the project re16 quirements have been adequately defined; 

17 ‘‘(ii) the time constraints for delivery 

18 of the project; 

19 ‘‘(iii) the capability and experience of 

20 potential contractors; 

21 ‘‘(iv) the suitability of the project for 

22 use of the two-phase selection procedures; 

23 ‘‘(v) the capability of the agency to 

24 manage the two-phase selection process; 

25 and 


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1 ‘‘(vi) other criteria established by the 

2 agency.’’. 

3 (2) ANNUAL REPORTS.— 

4 (A) IN GENERAL.—Not later than Novem5 ber 30 of 2018, 2019, 2020, 2021, and 2022, 

6 the head of each executive agency shall compile 

7 and submit to the Director of the Office of 

8 Management and Budget an annual report of 

9 each instance in which the agency awarded a 

10 design-build contract pursuant to section 3309 

11 of title 41, United States Code, during the fis12 cal year ending in such calendar year, in 

13 which— 

14 (i) more than 5 finalists were selected 

15 for phase-two requests for proposals; or 

16 (ii) the contract or order was awarded 

17 without using two-phase selection proce18 dures. 

19 (B) PUBLIC AVAILABILITY.—The Director 

20 of the Office of Management and Budget shall 

21 facilitate public access to the reports, including 

22 by posting them on a publicly available Internet 

23 website. A notice of the availability of each re24 port shall be published in the Federal Register. 


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1 (C) SUBMISSION TO GAO.—Not later than 

2 30 days after the deadline described under sub3 paragraph (A), the Director of the Office of 

4 Management and Budget shall compile and sub5 mit the reports submitted to the Director under 

6 such subparagraph to the Comptroller General. 

7 (b) GAO REPORTS.—Not later than 270 days after 

8 the deadline under subsection (a)(2)(A), the Comptroller 

9 General of the United States shall issue a report analyzing 

10 the reports submitted under subsection (a)(2)(C) and 

11 agency compliance with the requirements of section 

12 3309(b) of title 41, United States Code, as amended by 

13 subsection (a)(1). 

14 SEC. 4. PROHIBITION ON THE USE OF A REVERSE AUCTION 

15 FOR THE AWARD OF A CONTRACT FOR DE16 SIGN AND CONSTRUCTION SERVICES. 

17 (a) FINDING.—Congress finds that, in contrast to a 

18 traditional auction in which the buyers bid up the price, 

19 sellers bid down the price in a reverse auction. 

20 (b) PROHIBITION.—Not later than 180 days after the 

21 date of the enactment of this Act, the Federal Acquisition 

22 Regulation shall be amended to prohibit the use of reverse 

23 auctions as part of the two-phase selection procedures for 

24 awarding contracts for design and construction services. 

25 (c) DEFINITIONS.—For purposes of this section— 


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1 (1) the term ‘‘design and construction services’’ 

2 means— 

3 (A) site planning and landscape design; 

4 (B) architectural and engineering services 

5 (as defined in section 1102 of title 40, United 

6 States Code); 

7 (C) interior design; 

8 (D) performance of substantial construc9 tion work for facility, infrastructure, and envi10 ronmental restoration projects; 

11 (E) delivery and supply of construction 

12 materials to construction sites; or 

13 (F) construction or substantial alteration 

14 of public buildings or public works; and 

15 (2) the term ‘‘reverse auction’’ means, with re16 spect to any procurement by an executive agency— 

17 (A) a real-time auction conducted through 

18 an electronic medium among two or more 

19 offerors who compete by submitting bids for a 

20 supply or service contract, or a delivery order, 

21 task order, or purchase order under the con22 tract, with the ability to submit revised lower 

23 bids at any time before the closing of the auc24 tion; and 


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1 (B) the award of the contract, delivery 

2 order, task order, or purchase order to the of3 feror, in whole or in part, based on the price 

4 obtained through the auction process. 


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Calendar No. 382 

115TH CONGRESS 

2D SESSION S. 2113 

[Report No. 115–231] 

A BILL 

To amend title 41, United States Code, to improve 

purposes. construction services procurements, and for other hibit the use of reverse auctions for design and and construction services are awarded, to prothe manner in which Federal contracts for design 

APRIL 18, 2018 

Reported without amendment 


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