II 

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 

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’’. 

6 SEC. 2. LIMITATIONS ON REVERSE AUCTIONS. 

7 (a) SENSE OF CONGRESS.—It is the sense of Con8 gress that, when used appropriately, reverse auctions may 

9 improve procurement by the Federal Government of com10 mercially available commodities by increasing competition, 


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1 reducing prices, and improving opportunities for small 

2 businesses. 

3 (b) LIMITATIONS ON REVERSE AUCTIONS.—The 

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

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

6 and 

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

8 ‘‘SEC. 47. LIMITATIONS ON REVERSE AUCTIONS FOR COV9 ERED CONTRACTS. 

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

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

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

13 United States Code; 

14 ‘‘(2) the term ‘covered contract’ means a con15 tract— 

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

17 ‘‘(B) for goods purchased to protect Fed18 eral employees, members of the Armed Forces, 

19 or civilians from bodily harm; or 

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

21 goods or services described in subparagraph (A) 

22 or (B)— 

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

24 other than price and technical responsi25 bility; or 


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1 ‘‘(ii) if awarding the contract requires 

2 the contracting officer to conduct discus3 sions with the offerors about their offer; 

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

5 means— 

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

7 ‘‘(B) architectural and interior design; 

8 ‘‘(C) engineering system design; 

9 ‘‘(D) performance of construction work for 

10 facility, infrastructure, and environmental res11 toration projects; 

12 ‘‘(E) delivery and supply of construction 

13 materials to construction sites; 

14 ‘‘(F) construction, alteration, or repair, in15 cluding painting and decorating, of public build16 ings and public works; and 

17 ‘‘(G) architectural and engineering serv18 ices, as defined in section 1102 of title 40, 

19 United States Code; 

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

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

22 United States Code; and 

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

24 procurement by an agency, means an auction be25 tween a group of offerors who compete against each 


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1 other by submitting offers for a contract or task or 

2 delivery order with the ability to submit revised of3 fers with lower prices throughout the course of the 

4 auction. 

5 ‘‘(b) PROHIBITION ON USING REVERSE AUCTIONS

6 FOR COVERED CONTRACTS.—In the case of a covered con7 tract, a reverse auction may not be used if the award of 

8 the covered contract is to be made under— 

9 ‘‘(1) section 8(a); 

10 ‘‘(2) section 8(m); 

11 ‘‘(3) section 15(a); 

12 ‘‘(4) section 15(j); 

13 ‘‘(5) section 31; or 

14 ‘‘(6) section 36. 

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

16 In the case of the award of a contract made under para17 graphs (1) through (6) of subsection (b) that is not a cov18 ered contract, a reverse auction may be used for the award 

19 of such a contract only if the following requirements are 

20 met: 

21 ‘‘(1) DECISIONS REGARDING USE OF A RE22 VERSE AUCTION.—Subject to paragraph (2), the fol23 lowing decisions with respect to such a contract shall 

24 only be made by a contracting officer: 


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

2 part of the competition for award of such a con3 tract. 

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

5 described in subparagraph (A) regarding the 

6 appropriate evaluation criteria, the inclusion of 

7 vendors, the acceptability of vendor submissions 

8 (including decisions regarding timeliness), and 

9 the selection of the winner. 

10 ‘‘(2) TRAINING REQUIRED.— 

11 ‘‘(A) IN GENERAL.—Only a contracting of12 ficer who has received training on the appro13 priate use and supervision of reverse auctions 

14 may use or supervise a reverse auction for the 

15 award of such a contract. 

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

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

18 similar to the training provided by, the Defense 

19 Acquisition University as described in section 

20 824 of the Carl Levin and Howard P. ‘Buck’ 

21 McKeon National Defense Authorization Act 

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

23 127 Stat. 3436). 


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

2 BIDS.—A Federal agency may not award such a con3 tract using a reverse auction if— 

4 ‘‘(A) only 1 offer is received; or 

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

6 submit revised bids with lower prices through7 out the course of the auction. 

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

9 Federal agency awarding such a contract using a re10 verse auction shall evaluate the technical accept11 ability of offers only as technically acceptable or un12 acceptable. 

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

14 agency may not award such a contract using a re15 verse auction if at any time during the procurement 

16 process the Federal agency misinforms an offeror 

17 about the price ranking of the last offer of the offer18 or submitted in relation to offers submitted by other 

19 offerors. 

20 ‘‘(6) USE OF THIRD-PARTY AGENTS.—If a Fed21 eral agency uses a third-party agent to assist with 

22 the award of such a contract using a reverse auc23 tion, the Federal agency shall ensure that— 


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1 ‘‘(A) inherently governmental functions are 

2 not performed by private contractors, including 

3 by the third-party agent; 

4 ‘‘(B) information on the past contract per5 formance of offerors created by the third-party 

6 agent and shared with the Federal agency is 

7 collected, maintained, and shared in compliance 

8 with section 1126 of title 41, United States 

9 Code; 

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

11 a responsible source that is created by the 

12 third-party agent and shared with the Federal 

13 agency is shared with the offeror and complies 

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

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

16 agent and an offeror may not be used to justify 

17 a determination that an offeror is not a respon18 sible source or to otherwise restrict the ability 

19 of an offeror to compete for the award of a con20 tract or task.’’. 

Æ 


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