II 

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. 

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

3 SECTION 1. SHORT TITLE; TABLE OF CONTENTS. 

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

5 ‘‘Construction Consensus Procurement Improvement Act 

6 of 2017’’. 


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

2 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. 

3 SEC. 2. CONGRESSIONAL FINDINGS. 

4 Congress makes the following findings: 

5 (1) The acquisition procedures that are often 

6 used effectively to procure products and other forms 

7 of services are not always appropriate for the pro8 curement of design and construction services. 

9 (2) Federal procurement officials often adopt 

10 contracting techniques from the private sector and 

11 have used those techniques effectively to procure 

12 products and services. 

13 (3) Design-build is a procurement technique 

14 Federal officials have adopted from the private sec15 tor that has worked well for the procurement of de16 sign and construction services. 

17 (4) The current statutory framework for de18 sign-build could benefit from legislative refinement. 

19 (5) Reverse auctions are another procurement 

20 technique Federal officials have adopted from the 

21 private sector and used successfully to award con22 tracts for the procurement of products that are com23 mercially equivalent to commodities. 


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1 (6) Despite their success in other contexts, re2 verse auctions are generally inappropriate for the 

3 procurement of design and construction services, 

4 given the unique nature of each such project. 

5 SEC. 3. DESIGN-BUILD CONSTRUCTION PROCESS IMPROVE6 MENT. 

7 (a) CIVILIAN CONTRACTS.— 

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

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

10 ‘‘(b) CRITERIA FOR USE.— 

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

12 $3,000,000.—Two-phase selection procedures shall be 

13 used for entering into a contract for the design and 

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

15 a contracting officer determines that the project has 

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

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

18 $3,000,000.—For any project that a contracting offi19 cer determines has a value of less than $3,000,000, 

20 the contracting officer shall make a determination 

21 on whether two-phase selection procedures are ap22 propriate for use for entering into a contract for the 

23 design and construction of a public building, facility, 

24 or work if— 


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1 ‘‘(A) the contracting officer anticipates 

2 that three or more offers will be received for the 

3 contract; 

4 ‘‘(B) design work must be performed be5 fore an offeror can develop a price or cost pro6 posal for the contract; 

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

8 amount of expense in preparing the offer; and 

9 ‘‘(D) the contracting officer has considered 

10 information such as— 

11 ‘‘(i) the extent to which the project re12 quirements have been adequately defined; 

13 ‘‘(ii) the time constraints for delivery 

14 of the project; 

15 ‘‘(iii) the capability and experience of 

16 potential contractors; 

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

18 use of the two-phase selection procedures; 

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

20 manage the two-phase selection process; 

21 and 

22 ‘‘(vi) other criteria established by the 

23 agency.’’. 

24 (2) ANNUAL REPORTS.— 


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1 (A) IN GENERAL.—Not later than Novem2 ber 30 of 2018, 2019, 2020, 2021, and 2022, 

3 the head of each executive agency shall compile 

4 and submit to the Director of the Office of 

5 Management and Budget an annual report of 

6 each instance in which the agency awarded a 

7 design-build contract pursuant to section 3309 

8 of title 41, United States Code, during the fis9 cal year ending in such calendar year, in 

10 which— 

11 (i) more than 5 finalists were selected 

12 for phase-two requests for proposals; or 

13 (ii) the contract or order was awarded 

14 without using two-phase selection proce15 dures. 

16 (B) PUBLIC AVAILABILITY.—The Director 

17 of the Office of Management and Budget shall 

18 facilitate public access to the reports, including 

19 by posting them on a publicly available Internet 

20 website. A notice of the availability of each re21 port shall be published in the Federal Register. 

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

23 30 days after the deadline described under sub24 paragraph (A), the Director of the Office of 

25 Management and Budget shall compile and subVerDate Sep 11 2014 21:25 Nov 16, 2017 Jkt 079200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S2113.IS S2113

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1 mit the reports submitted to the Director under 

2 such subparagraph to the Comptroller General. 

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

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

5 General of the United States shall issue a report analyzing 

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

7 agency compliance with the requirements of section 

8 3309(b) of title 41, United States Code, as amended by 

9 subsection (a)(1). 

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

11 FOR THE AWARD OF A CONTRACT FOR DE12 SIGN AND CONSTRUCTION SERVICES. 

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

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

15 sellers bid down the price in a reverse auction. 

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

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

18 Regulation shall be amended to prohibit the use of reverse 

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

20 awarding contracts for design and construction services. 

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

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

23 means— 

24 (A) site planning and landscape design; 


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1 (B) architectural and engineering services 

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

3 States Code); 

4 (C) interior design; 

5 (D) performance of substantial construc6 tion work for facility, infrastructure, and envi7 ronmental restoration projects; 

8 (E) delivery and supply of construction 

9 materials to construction sites; or 

10 (F) construction or substantial alteration 

11 of public buildings or public works; and 

12 (2) the term ‘‘reverse auction’’ means, with re13 spect to any procurement by an executive agency— 

14 (A) a real-time auction conducted through 

15 an electronic medium among two or more 

16 offerors who compete by submitting bids for a 

17 supply or service contract, or a delivery order, 

18 task order, or purchase order under the con19 tract, with the ability to submit revised lower 

20 bids at any time before the closing of the auc21 tion; and 

22 (B) the award of the contract, delivery 

23 order, task order, or purchase order to the ofVerDate Sep 11 2014 21:25 Nov 16, 2017 Jkt 079200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S2113.IS S2113

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1 feror, in whole or in part, based on the price 

2 obtained through the auction process. 

Æ 


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