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Union Calendar No. 535 

114TH CONGRESS 

2D SESSION H. R. 5199 

[Report No. 114–691] 

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 

JULY 14, 2016 

Additional sponsors: Mr. MULVANEY and Mr. GROTHMAN

JULY 14, 2016 

Reported with an amendment, committed to the Committee of the Whole 

House on the State of the Union, and ordered to be printed 

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

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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. 

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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’’. 

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

8 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. 

9 SEC. 2. CONGRESSIONAL FINDINGS. 

10 Congress makes the following findings: 

11 (1) The acquisition procedures that are often 

12 used effectively to procure products and other forms 

13 of services are not always appropriate for procure14 ment of design and construction services. 

15 (2) Federal procurement officials often adopt 

16 contracting techniques from the private sector and 

17 have used those techniques effectively to procure 

18 products and services. 

19 (3) Design-build is a procurement technique 

20 Federal officials have adopted from the private sec21 tor that has worked well for procurement of design 

22 and construction services. 

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1 (4) The current statutory framework for de2 sign-build could benefit from legislative refinement. 

3 (5) Reverse auctions are another procurement 

4 technique Federal officials have adopted from the 

5 private sector and used successfully to award con6 tracts for the purchase of products that are commer7 cially equivalent to commodities. 

8 (6) Despite their success in other contexts, re9 verse auctions are generally inappropriate for pro10 curement of design and construction services, given 

11 the unique nature of each such project. 

12 SEC. 3. DESIGN-BUILD CONSTRUCTION PROCESS IMPROVE13 MENT. 

14 (a) CIVILIAN CONTRACTS.— 

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

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

17 ‘‘(b) CRITERIA FOR USE.— 

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

19 $750,000 $3,000,000.—Two-phase selection procedures 

20 shall be used for entering into a contract for the de21 sign and construction of a public building, facility, 

22 or work when a contracting officer determines that 

23 the project has a value of $750,000 $3,000,000 or 

24 greater, as adjusted for inflation in accordance with 

25 section 1908 of this title. 

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

2 $750,000 $3,000,000.—For projects that a contracting 

3 officer determines have a value of less than 

4 $750,000 $3,000,000, the contracting officer shall 

5 make a determination whether two-phase selection 

6 procedures are appropriate for use for entering into 

7 a contract for the design and construction of a pub8 lic building, facility, or work when— 

9 ‘‘(A) the contracting officer anticipates 

10 that 3 or more offers will be received for the 

11 contract; 

12 ‘‘(B) design work must be performed be13 fore an offeror can develop a price or cost pro14 posal for the contract; 

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

16 amount of expense in preparing the offer; and 

17 ‘‘(D) the contracting officer has considered 

18 information such as— 

19 ‘‘(i) the extent to which the project re20 quirements have been adequately defined; 

21 ‘‘(ii) the time constraints for delivery 

22 of the project; 

23 ‘‘(iii) the capability and experience of 

24 potential contractors; 

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

2 use of the two-phase selection procedures; 

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

4 manage the two-phase selection process; 

5 and 

6 ‘‘(vi) other criteria established by the 

7 agency.’’. 

8 (2) ANNUAL REPORTS.— 

9 (A) IN GENERAL.—Not later than Novem10 ber 30 of 2017, 2018, 2019, 2020, and 2021, 

11 the head of each agency shall compile an annual 

12 report of each instance in which the agency 

13 awarded a design-build contract pursuant to 

14 section 3309 of title 41, United States Code, 

15 during the fiscal year ending in such calendar 

16 year, in which— 

17 (i) more than 5 finalists were selected 

18 for phase-two requests for proposals; or 

19 (ii) the contract or order was awarded 

20 without using two-phase selection proce21 dures. 

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) GAO REPORTS.—Not later than 270 days after 

4 the deadline for the final reports required under sub5 section (f) of section 3309 of title 41, United States Code, 

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

7 the United States shall issue a report analyzing the com8 pliance of the various Federal agencies with the require9 ments of such section. 

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 Regulatory Council, in consultation with the Adminis19 trator for Federal Procurement Policy, shall amend the 

20 Federal Acquisition Regulation to prohibit the use of re21 verse auctions as part of the two-phase selection procedure 

22 for awarding contracts for construction and design serv23 ices. 

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

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

2 means— 

3 (A) site planning and landscape design; 

4 (B) architectural and engineering services 

5 (including surveying and mapping defined in 

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

7 (C) interior design; 

8 (D) performance of substantial construc9 tion work for facility, infrastructure, and envi10 ronmental restoration projects; 

11 (E) delivery and supply of construction 

12 materials to construction sites; or 

13 (F) construction or substantial alteration 

14 of public buildings or public works; and 

15 (2) the term ‘‘reverse auction’’ means, with re16 spect to procurement by an agency— 

17 (A) a real-time auction conducted through 

18 an electronic medium among 2 or more offerors 

19 who compete by submitting bids for a supply or 

20 service contract with the ability to submit re21 vised lower bids at any time before the closing 

22 of the auction; and 

23 (B) the award of the contract, delivery 

24 order, task order, or purchase order to the ofmstockstill on DSK3G9T082PROD with BILLS

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

2 obtained through the auction process. 

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Union Calendar No. 535 

114TH CONGRESS 

2D SESSION H. R. 5199 

[Report No. 114–691] 

A BILL 

To amend title 41, United States Code, to improve 

and construction services procurements. prohibit the use of reverse auctions for design struction and design services are awarded, and to the manner in which Federal contracts for conJULY 14, 2016 

Reported with an amendment, committed to the Comand ordered to be printed mittee of the Whole House on the State of the Union, 

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