II 

Calendar No. 308 

114TH CONGRESS 

1ST SESSION S. 2139 

To amend the Small Business Act to prohibit the use of reverse auctions 

for the procurement of covered contracts. 

IN THE SENATE OF THE UNITED STATES 

OCTOBER 6, 2015 

Mr. VITTER (for himself and Mrs. SHAHEEN) introduced the following bill; 

which was read twice and referred to the Committee on Small Business 

and Entrepreneurship 

DECEMBER 2, 2015 

Reported by Mr. VITTER, with amendments 

[Omit the part struck through and insert the part printed in italic] 

A BILL 

To amend the Small Business Act to prohibit the use of 

reverse auctions for the procurement of covered contracts. 

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. 

4 This Act may be cited as the ‘‘Small Contractors Im5 prove Competition Act of 2015’’. 


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1 SEC. 2. LIMITATIONS ON REVERSE AUCTIONS. 

2 (a) SENSE OF CONGRESS.—It is the sense of Con3 gress that, when used appropriately, reverse auctions may 

4 improve procurement by the Federal Government of com5 mercially available commodities by increasing competition, 

6 reducing prices, and improving opportunities for small 

7 businesses. 

8 (b) LIMITATIONS ON REVERSE AUCTIONS.—The 

9 Small Business Act (15 U.S.C. 631 et seq.) is amended— 

10 (1) by redesignating section 47 as section 48; 

11 and 

12 (2) by inserting after section 46 the following: 

13 ‘‘SEC. 47. LIMITATIONS ON REVERSE AUCTIONS FOR COV14 ERED CONTRACTS. 

15 ‘‘(a) DEFINITIONS.—In this section— 

16 ‘‘(1) the term ‘contracting officer’ has the 

17 meaning given the term in section 2101 of title 41, 

18 United States Code; 

19 ‘‘(2) the term ‘covered contract’ means a con20 tract— 

21 ‘‘(A) for design and construction services; 

22 ‘‘(B) for goods purchased to protect Fed23 eral employees, members of the Armed Forces, 

24 or civilians from bodily harm; or 


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1 ‘‘(C) for goods or services other than those 

2 goods or services described in subparagraph (A) 

3 or (B)— 

4 ‘‘(i) to be awarded based on factors 

5 other than price and technical responsi6 bility; or 

7 ‘‘(ii) if awarding the contract requires 

8 the contracting officer to conduct discus9 sions with the offerors about their offer; 

10 ‘‘(3) the term ‘design and construction services’ 

11 means— 

12 ‘‘(A) site planning and landscape design; 

13 ‘‘(B) architectural and interior design; 

14 ‘‘(C) engineering system design; 

15 ‘‘(D) performance of construction work for 

16 facility, infrastructure, and environmental res17 toration projects; 

18 ‘‘(E) delivery and supply of construction 

19 materials to construction sites; 

20 ‘‘(F) construction, alteration, or repair, in21 cluding painting and decorating, of public build22 ings and public works; and 

23 ‘‘(G) architectural and engineering serv24 ices, as defined in section 1102 of title 40, 

25 United States Code; 


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1 ‘‘(4) the term ‘responsible source’ has the 

2 meaning given the term in section 113 of title 41, 

3 United States Code; and 

4 ‘‘(5) the term ‘reverse auction’, with respect to 

5 procurement by an agency, means an auction be6 tween a group of offerors who compete against each 

7 other by submitting offers for a contract or task or 

8 delivery order with the ability to submit revised of9 fers with lower prices throughout the course of the 

10 auction. 

11 ‘‘(b) PROHIBITION ON USING REVERSE AUCTIONS

12 FOR COVERED CONTRACTS.—In the case of a covered con13 tract, a reverse auction may not be used if the award of 

14 the covered contract is to be made under— 

15 ‘‘(1) section 8(a); 

16 ‘‘(2) section 8(m); 

17 ‘‘(3) section 15(a); 

18 ‘‘(4) section 15(j); 

19 ‘‘(5) section 31; or 

20 ‘‘(6) section 36. 

21 ‘‘(c) LIMITATIONS ON USING REVERSE AUCTIONS.— 

22 In the case of the award of a contract made under a provi23 sion of law described in paragraphs (1) through (6) of sub24 section (b) that is not a covered contract, a reverse auction 


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1 may be used for the award of such a contract only if the 

2 following requirements are met: 

3 ‘‘(1) DECISIONS REGARDING USE OF A RE4 VERSE AUCTION.—Subject to paragraph (2), the fol5 lowing decisions with respect to such a contract shall 

6 only be made by a contracting officer: 

7 ‘‘(A) A decision to use a reverse auction as 

8 part of the competition for award of such a con9 tract. 

10 ‘‘(B) Any decision made after the decision 

11 described in subparagraph (A) regarding the 

12 appropriate evaluation criteria, the inclusion of 

13 vendors, the acceptability of vendor submissions 

14 (including decisions regarding timeliness), and 

15 the selection of the winner. 

16 ‘‘(2) TRAINING REQUIRED.— 

17 ‘‘(A) IN GENERAL.—Only a contracting of18 ficer who has received training on the appro19 priate use and supervision of reverse auctions 

20 may use or supervise a reverse auction for the 

21 award of such a contract. 

22 ‘‘(B) TRAINING.—The training described 

23 in subparagraph (A) shall be provided by, or 

24 similar to the training provided by, the Defense 

25 Acquisition University as described in section 


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1 824 of the Carl Levin and Howard P. ‘Buck’ 

2 McKeon National Defense Authorization Act 

3 for Fiscal Year 2015 (Public Law 113–291; 

4 127 Stat. 3436) (10 U.S.C. 2304 note). 

5 ‘‘(3) NUMBER OF OFFERS; REVISIONS TO

6 BIDS.—A Federal agency may not award such a con7 tract using a reverse auction if— 

8 ‘‘(A) only 1 offer is received; or 

9 ‘‘(B) offerors do not have the ability to 

10 submit revised bids with lower prices through11 out the course of the auction. 

12 ‘‘(4) TECHNICALLY ACCEPTABLE OFFERS.—A 

13 Federal agency awarding such a contract using a re14 verse auction shall evaluate the technical accept15 ability of offers only as technically acceptable or un16 acceptable. 

17 ‘‘(5) USE OF PRICE RANKINGS.—A Federal 

18 agency may not award such a contract using a re19 verse auction if at any time during the procurement 

20 process the Federal agency misinforms an offeror 

21 about the price ranking of the last offer of the offer22 or submitted in relation to offers submitted by other 

23 offerors. 

24 ‘‘(6) USE OF THIRD-PARTY AGENTS.—If a Fed25 eral agency uses a third-party agent to assist with 


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1 the award of such a contract using a reverse auc2 tion, the Federal agency shall ensure that— 

3 ‘‘(A) inherently governmental functions are 

4 not performed by private contractors, including 

5 by the third-party agent; 

6 ‘‘(B) information on the past contract per7 formance of offerors created by the third-party 

8 agent and shared with the Federal agency is 

9 collected, maintained, and shared in compliance 

10 with section 1126 of title 41, United States 

11 Code; 

12 ‘‘(C) information on whether an offeror is 

13 a responsible source that is created by the 

14 third-party agent and shared with the Federal 

15 agency is shared with the offeror and complies 

16 with section 8(b)(7); and 

17 ‘‘(D) disputes between the third-party 

18 agent and an offeror may not be used to justify 

19 a determination that an offeror is not a respon20 sible source or to otherwise restrict the ability 

21 of an offeror to compete for the award of a con22 tract or task.’’. 


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1 SEC. 3. SURETY BOND REQUIREMENTS AND AMOUNT OF 

2 GUARANTEE. 

3 (a) SURETY BOND REQUIREMENTS.—Chapter 93 of 

4 title 31, United States Code, is amended— 

5 (1) by adding at the end the following: 

6 ‘‘§ 9310. Individual sureties 

7 ‘‘If another applicable Federal law or regulation per8 mits the acceptance of a bond from a surety that is not 

9 subject to sections 9305 and 9306 and is based on a pledge 

10 of assets by the surety, the assets pledged by such surety 

11 shall— 

12 ‘‘(1) consist of eligible obligations described 

13 under section 9303(a); and 

14 ‘‘(2) be submitted to the official of the Govern15 ment required to approve or accept the bond, who 

16 shall deposit the obligations as described under section 

17 9303(b).’’; and 

18 (2) in the table of sections, by adding at the end 

19 the following: 

‘‘9310. Individual sureties.’’. 

20 (b) AMOUNT OF SURETY BOND GUARANTEE FROM

21 SMALL BUSINESS ADMINISTRATION.—Section 411(c)(1) of 

22 the Small Business Investment Act of 1958 (15 U.S.C. 

23 694b(c)(1)) is amended by striking ‘‘70’’ and inserting 

24 ‘‘90’’. 


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1 (c) EFFECTIVE DATE.—The amendments made by this 

2 section shall take effect 1 year after the date of enactment 

3 of this Act. 


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Calendar No. 308 

114TH CONGRESS 

1ST SESSION S. 2139 

A BILL 

To amend the Small Business Act to prohibit the 

covered contracts. use of reverse auctions for the procurement of 

DECEMBER 2, 2015 

Reported with amendments 


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