II 

114TH CONGRESS 

1ST SESSION S. 1526 

To amend title 10 and title 41, United States Code, to improve the manner 

in which Federal contracts for construction and design services are 

awarded, to prohibit the use of reverse auctions for design and construction services procurements, to amend title 31 and title 41, United States 

Code, to improve the payment protections available to construction contractors, subcontractors, and suppliers for work performed, and for other 

purposes. 

IN THE SENATE OF THE UNITED STATES 

JUNE 8, 2015 

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 10 and title 41, United States Code, to 

improve the manner in which Federal contracts for construction and design services are awarded, to prohibit 

the use of reverse auctions for design and construction 

services procurements, to amend title 31 and title 41, 

United States Code, to improve the payment protections 

available to construction contractors, subcontractors, and 

suppliers for work performed, 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 2015’’. 

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. 

Sec. 5. Assuring payment protections for construction subcontractors and suppliers under an alternative to a Miller Act payment bond. 

Sec. 6. SBA surety bond guarantee program. 

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 procure12 ment 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 procurement of design 

20 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 purchase of products that are commer5 cially equivalent to commodities. 

6 (6) Despite their success in other contexts, re7 verse auctions are generally inappropriate for pro8 curement of design and construction services, given 

9 the unique nature of each such project. 

10 (7) To ensure payment protection for contrac11 tors, subcontractors, and suppliers working on Fed12 eral construction projects, bonds backed by indi13 vidual sureties must be placed in the care and cus14 tody of the Federal Government and be supported 

15 by assets that are real, sufficient, verifiable, and 

16 readily convertible into cash. 

17 SEC. 3. DESIGN-BUILD CONSTRUCTION PROCESS IMPROVE18 MENT. 

19 (a) CIVILIAN CONTRACTS.— 

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

21 United States Code, is amended— 

22 (A) by amending subsection (b) to read as 

23 follows: 

24 ‘‘(b) CRITERIA FOR USE.— 


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

2 $750,000.—Two-phase selection procedures shall be 

3 used for entering into a contract for the design and 

4 construction of a public building, facility, or work 

5 when a contracting officer determines that the con6 tract has a value of $750,000 or greater, as adjusted 

7 for inflation in accordance with section 1908 of this 

8 title. 

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

10 $750,000.—For projects that a contracting officer de11 termines have a value of less than $750,000, the 

12 contracting officer shall make a determination 

13 whether two-phase selection procedures are appro14 priate for use for entering into a contract for the de15 sign and construction of a public building, facility, 

16 or work when— 

17 ‘‘(A) the contracting officer anticipates 

18 that 3 or more offers will be received for the 

19 contract; 

20 ‘‘(B) design work must be performed be21 fore an offeror can develop a price or cost pro22 posal for the contract; 

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

24 amount of expense in preparing the offer; and 


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1 ‘‘(D) the contracting officer has considered 

2 information such as— 

3 ‘‘(i) the extent to which the project re4 quirements have been adequately defined; 

5 ‘‘(ii) the time constraints for delivery 

6 of the project; 

7 ‘‘(iii) the capability and experience of 

8 potential contractors; 

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

10 use of the two-phase selection procedures; 

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

12 manage the two-phase selection process; 

13 and 

14 ‘‘(vi) other criteria established by the 

15 agency.’’; and 

16 (B) in subsection (d), by striking ‘‘The 

17 maximum number specified in the solicitation 

18 shall not exceed 5 unless the agency determines 

19 with respect to’’ and all that follows through 

20 the period at the end and inserting the fol21 lowing: ‘‘The maximum number specified in the 

22 solicitation shall not exceed 5 unless the head 

23 of the contracting activity, delegable to a level 

24 no lower than the senior contracting official 

25 within the contracting activity, approves the 


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1 contracting officer’s justification that an indi2 vidual solicitation must have greater than 5 fi3 nalists to be in the Federal Government’s inter4 est. The contracting officer shall provide writ5 ten documentation of how a maximum number 

6 of offerors exceeding 5 is consistent with the 

7 purposes and objectives of the two-phase selec8 tion process.’’. 

9 (2) ANNUAL REPORTS.— 

10 (A) IN GENERAL.—Not later than Novem11 ber 30 of 2016, 2017, 2018, 2019, and 2020, 

12 the head of each agency shall compile an annual 

13 report of each instance in which the agency 

14 awarded a design-build contract pursuant to 

15 section 3309 of title 41, United States Code, 

16 during the fiscal year ending in such calendar 

17 year, in which— 

18 (i) more than 5 finalists were selected 

19 for phase-two requests for proposals; or 

20 (ii) the contract was awarded without 

21 using two-phase selection procedures. 

22 (B) PUBLIC AVAILABILITY.—The Director 

23 of the Office of Management and Budget shall 

24 facilitate public access to the reports, including 

25 by posting them on a publicly available Internet 


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1 website. A notice of the availability of each re2 port shall be published in the Federal Register. 

3 (b) DEFENSE CONTRACTS.— 

4 (1) IN GENERAL.—Section 2305a of title 10, 

5 United States Code, is amended— 

6 (A) by amending subsection (b) to read as 

7 follows: 

8 ‘‘(b) CRITERIA FOR USE.— 

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

10 $750,000.—Two-phase selection procedures shall be 

11 used for entering into a contract for the design and 

12 construction of a public building, facility, or work 

13 when a contracting officer determines that the con14 tract has a value of $750,000 or greater, as adjusted 

15 for inflation in accordance with section 1908 of title 

16 41, United States Code. 

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

18 $750,000.—For projects that a contracting officer de19 termines have a value of less than $750,000, the 

20 contracting officer shall make a determination 

21 whether two-phase selection procedures are appro22 priate for use for entering into a contract for the de23 sign and construction of a public building, facility, 

24 or work when— 


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1 ‘‘(A) the contracting officer anticipates 

2 that 3 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 Department of Defense.’’; and 

24 (B) in subsection (d), by striking ‘‘The 

25 maximum number specified in the solicitation 


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1 shall not exceed 5 unless the agency determines 

2 with respect to’’ and all that follows through 

3 the period at the end and inserting the fol4 lowing: ‘‘The maximum number specified in the 

5 solicitation shall not exceed 5 unless the head 

6 of the contracting activity approves the con7 tracting officer’s justification that an individual 

8 solicitation must have greater than 5 finalists 

9 to be in the Federal Government’s interest. The 

10 contracting officer shall provide written docu11 mentation of how a maximum number of 

12 offerors exceeding 5 is consistent with the pur13 poses and objectives of the two-phase selection 

14 process.’’. 

15 (2) ANNUAL REPORTS.— 

16 (A) IN GENERAL.—Not later than Novem17 ber 30 of 2016, 2017, 2018, 2019, and 2020, 

18 the Secretary of Defense shall compile an an19 nual report of each instance in which the De20 partment awarded a design-build contract pur21 suant to section 2305a of title 10, United 

22 States Code, during the fiscal year ending in 

23 such calendar year, in which— 

24 (i) more than 5 finalists were selected 

25 for phase-two requests for proposals; or 


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1 (ii) the contract was awarded without 

2 using two-phase selection procedures. 

3 (B) PUBLIC AVAILABILITY.—The Director 

4 of the Office of Management and Budget shall 

5 facilitate public access to the reports, including 

6 by posting them on a publicly available Internet 

7 website. A notice of the availability of each re8 port shall be published in the Federal Register. 

9 (c) GAO REPORTS.— 

10 (1) CIVILIAN CONTRACTS.—Not later than 270 

11 days after the deadline for the final reports required 

12 under subsection (f) of section 3309 of title 41, 

13 United States Code, as added by subsection (a)(1), 

14 the Comptroller General of the United States shall 

15 issue a report analyzing the compliance of the var16 ious Federal agencies with the requirements of such 

17 section. 

18 (2) DEFENSE CONTRACTS.—Not later than 270 

19 days after the deadline for the final reports required 

20 under subsection (f) of section 2305a of title 10, 

21 United States Code, as added by subsection (b)(1), 

22 the Comptroller General of the United States shall 

23 issue a report analyzing the compliance of the De24 partment of Defense with the requirements of such 

25 section. 


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

2 FOR THE AWARD OF A CONTRACT FOR DE3 SIGN AND CONSTRUCTION SERVICES. 

4 (a) PROHIBITION.—Not later than 180 days after the 

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

6 Regulatory Council, in consultation with the Adminis7 trator for Federal Procurement Policy, shall amend the 

8 Federal Acquisition Regulation to prohibit the use of re9 verse auctions for awarding contracts for construction and 

10 design services. 

11 (b) DEFINITIONS.—For purposes of this section— 

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

13 means— 

14 (A) site planning and landscape design; 

15 (B) architectural and engineering services 

16 (including surveying and mapping defined in 

17 section 1101 of title 40, United States Code); 

18 (C) interior design; 

19 (D) performance of construction work for 

20 facility, infrastructure, and environmental res21 toration projects; 

22 (E) delivery and supply of construction 

23 materials to construction sites; and 

24 (F) construction or substantial alteration 

25 or repair of public buildings or public works; 

26 and 


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1 (2) the term ‘‘reverse auction’’ means, with re2 spect to procurement by an agency— 

3 (A) a real-time auction conducted through 

4 an electronic medium between a group of 

5 offerors who compete against each other by 

6 submitting bids for a contract or task order 

7 with the ability to submit revised bids through8 out the course of the auction; and 

9 (B) the award of the contract or task order 

10 to the offeror who submits the lowest bid. 

11 SEC. 5. ASSURING PAYMENT PROTECTIONS FOR CON12 STRUCTION SUBCONTRACTORS AND SUP13 PLIERS UNDER AN ALTERNATIVE TO A MIL14 LER ACT PAYMENT BOND. 

15 Chapter 93 of subtitle VI of title 31, United States 

16 Code, is amended— 

17 (1) by adding at the end the following new sec18 tion: 

19 ‘‘§ 9310. Individual sureties 

20 ‘‘If another applicable law or regulation permits the 

21 acceptance of a bond from a surety that is not subject 

22 to sections 9305 and 9306 and is based on a pledge of 

23 assets by the surety, the assets pledged by such surety 

24 shall— 


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1 ‘‘(1) consist of eligible obligations described 

2 under section 9303(a); and 

3 ‘‘(2) be submitted to the official of the Govern4 ment required to approve or accept the bond, who 

5 shall deposit the assets with a depository described 

6 under section 9303(b).’’; and 

7 (2) in the table of sections for such chapter, by 

8 adding at the end the following new item: 

‘‘9310. Individual sureties.’’. 

9 SEC. 6. SBA SURETY BOND GUARANTEE PROGRAM. 

10 Section 411(c)(1) of the Small Business Investment 

11 Act of 1958 (15 U.S.C. 694b(c)(1)) is amended by strik12 ing ‘‘70’’ and inserting ‘‘90’’. 

Æ 


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