I 

114TH CONGRESS 

2D SESSION H. R. 5199 

To amend title 41, United States Code, to improve the manner in which 

Federal contracts for construction and design services are awarded, and 

to prohibit the use of reverse auctions for design and construction services procurements. 

IN THE HOUSE OF REPRESENTATIVES 

MAY 11, 2016 

Mr. MEADOWS introduced the following bill; which was referred to the 

Committee on Oversight and Government Reform 

A BILL 

To amend title 41, United States Code, to improve the 

manner in which Federal contracts for construction and 

design services are awarded, and to prohibit the use 

of reverse auctions for design and construction services 

procurements. 

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 2016’’. 


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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 procure8 ment 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 procurement of design 

16 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 purchase of products that are commer23 cially equivalent to commodities. 


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1 (6) Despite their success in other contexts, re2 verse auctions are generally inappropriate for pro3 curement of design and construction services, given 

4 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 $750,000.—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 

15 when a contracting officer determines that the 

16 project has a value of $750,000 or greater, as ad17 justed for inflation in accordance with section 1908 

18 of this title. 

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

20 $750,000.—For projects that a contracting officer de21 termines have a value of less than $750,000, the 

22 contracting officer shall make a determination 

23 whether two-phase selection procedures are appro24 priate for use for entering into a contract for the deVerDate Sep 11 2014 02:28 May 14, 2016 Jkt 059200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H5199.IH H5199

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1 sign and construction of a public building, facility, 

2 or work when— 

3 ‘‘(A) the contracting officer anticipates 

4 that 3 or more offers will be received for the 

5 contract; 

6 ‘‘(B) design work must be performed be7 fore an offeror can develop a price or cost pro8 posal for the contract; 

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

10 amount of expense in preparing the offer; and 

11 ‘‘(D) the contracting officer has considered 

12 information such as— 

13 ‘‘(i) the extent to which the project re14 quirements have been adequately defined; 

15 ‘‘(ii) the time constraints for delivery 

16 of the project; 

17 ‘‘(iii) the capability and experience of 

18 potential contractors; 

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

20 use of the two-phase selection procedures; 

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

22 manage the two-phase selection process; 

23 and 

24 ‘‘(vi) other criteria established by the 

25 agency.’’. 


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1 (2) ANNUAL REPORTS.— 

2 (A) IN GENERAL.—Not later than Novem3 ber 30 of 2017, 2018, 2019, 2020, and 2021, 

4 the head of each agency shall compile an annual 

5 report of each instance in which the agency 

6 awarded a design-build contract pursuant to 

7 section 3309 of title 41, United States Code, 

8 during the fiscal year ending in such calendar 

9 year, in which— 

10 (i) more than 5 finalists were selected 

11 for phase-two requests for proposals; or 

12 (ii) the contract or order was awarded 

13 without using two-phase selection proce14 dures. 

15 (B) PUBLIC AVAILABILITY.—The Director 

16 of the Office of Management and Budget shall 

17 facilitate public access to the reports, including 

18 by posting them on a publicly available Internet 

19 website. A notice of the availability of each re20 port shall be published in the Federal Register. 

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

22 the deadline for the final reports required under sub23 section (f) of section 3309 of title 41, United States Code, 

24 as added by subsection (a)(1), the Comptroller General of 

25 the United States shall issue a report analyzing the comVerDate Sep 11 2014 02:28 May 14, 2016 Jkt 059200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H5199.IH H5199

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1 pliance of the various Federal agencies with the require2 ments of such section. 

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

4 FOR THE AWARD OF A CONTRACT FOR DE5 SIGN AND CONSTRUCTION SERVICES. 

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

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

8 sellers bid down the price in a reverse auction. 

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

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

11 Regulatory Council, in consultation with the Adminis12 trator for Federal Procurement Policy, shall amend the 

13 Federal Acquisition Regulation to prohibit the use of re14 verse auctions as part of the two-phase selection procedure 

15 for awarding contracts for construction and design serv16 ices. 

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

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

19 means— 

20 (A) site planning and landscape design; 

21 (B) architectural and engineering services 

22 (including surveying and mapping defined in 

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

24 (C) interior design; 


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1 (D) performance of substantial construc2 tion work for facility, infrastructure, and envi3 ronmental restoration projects; 

4 (E) delivery and supply of construction 

5 materials to construction sites; or 

6 (F) construction or substantial alteration 

7 of public buildings or public works; and 

8 (2) the term ‘‘reverse auction’’ means, with re9 spect to procurement by an agency— 

10 (A) a real-time auction conducted through 

11 an electronic medium among 2 or more offerors 

12 who compete by submitting bids for a supply or 

13 service contract with the ability to submit re14 vised lower bids at any time before the closing 

15 of the auction; and 

16 (B) the award of the contract, delivery 

17 order, task order, or purchase order to the of18 feror, in whole or in part, based on the price 

19 obtained through the auction process. 

Æ 


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