Construction Consensus Procurement Improvement Act of 2017

To amend title 41, United States Code, to improve the manner in which Federal contracts for design and construction services are awarded, to prohibit the use of reverse auctions for design and construction services procurements, and for other purposes. 1. Short title; table of contents (a) Short title This Act may be cited as the Construction Consensus Procurement Improvement Act of 2017 (b) Table of contents The table of contents for 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. 2. Congressional findings Congress makes the following findings: (1) The acquisition procedures that are often used effectively to procure products and other forms of services are not always appropriate for the procurement of design and construction services. (2) Federal procurement officials often adopt contracting techniques from the private sector and have used those techniques effectively to procure products and services. (3) Design-build is a procurement technique Federal officials have adopted from the private sector that has worked well for the procurement of design and construction services. (4) The current statutory framework for design-build could benefit from legislative refinement. (5) Reverse auctions are another procurement technique Federal officials have adopted from the private sector and used successfully to award contracts for the procurement of products that are commercially equivalent to commodities. (6) Despite their success in other contexts, reverse auctions are generally inappropriate for the procurement of design and construction services, given the unique nature of each such project. 3. Design-build construction process improvement (a) Civilian contracts (1) In general Section 3309(b) of title 41, United States Code, is amended to read as follows: (b) Criteria for use (1) Contracts with a value of at least $3,000,000 Two-phase selection procedures shall be used for entering into a contract for the design and construction of a public building, facility, or work if a contracting officer determines that the project has a value of $3,000,000 or greater. (2) Contracts with a value less than $3,000,000 For any project that a contracting officer determines has a value of less than $3,000,000, the contracting officer shall make a determination on whether two-phase selection procedures are appropriate for use for entering into a contract for the design and construction of a public building, facility, or work if— (A) the contracting officer anticipates that 3 or more offers will be received for the contract; (B) design work must be performed before an offeror can develop a price or cost proposal for the contract; (C) the offeror will incur a substantial amount of expense in preparing the offer; and (D) the contracting officer has considered information such as— (i) the extent to which the project requirements have been adequately defined; (ii) the time constraints for delivery of the project; (iii) the capability and experience of potential contractors; (iv) the suitability of the project for use of the two-phase selection procedures; (v) the capability of the agency to manage the two-phase selection process; and (vi) other criteria established by the agency. . (2) Annual reports (A) In general Not later than November 30 of 2018, 2019, 2020, 2021, and 2022, the head of each executive agency shall compile and submit to the Director of the Office of Management and Budget (i) more than 5 finalists were selected for phase-two requests for proposals; or (ii) the contract or order was awarded without using two-phase selection procedures. (B) Public availability The Director of the Office of Management and Budget shall facilitate public access to the reports, including by posting them on a publicly available Internet website. A notice of the availability of each report shall be published in the Federal Register. (C) Submission to GAO Not later than 30 days after the deadline described under subparagraph (A), the Director of the Office of Management and Budget shall compile and submit the reports submitted to the Director under such subparagraph to the Comptroller General. (b) GAO reports Not later than 270 days after the deadline for each annual report the compliance of each executive agency the reports submitted under subsection (a)(2)(C) and agency compliance 4. Prohibition on the use of a reverse auction for the award of a contract for design and construction services (a) Finding Congress finds that, in contrast to a traditional auction in which the buyers bid up the price, sellers bid down the price in a reverse auction. (b) Prohibition Not later than 180 days after the date of the enactment of this Act, the Federal Acquisition Regulation shall be amended to prohibit the use of reverse auctions as part of the two-phase selection procedures for awarding contracts for design and construction services. (c) Definitions For purposes of this section— (1) the term design and construction services (A) site planning and landscape design; (B) architectural and engineering services (as defined in section 1102 of title 40, United States Code); (C) interior design; (D) performance of substantial construction work for facility, infrastructure, and environmental restoration projects; (E) delivery and supply of construction materials to construction sites; or (F) construction or substantial alteration of public buildings or public works; and (2) the term reverse auction (A) a real-time auction conducted through an electronic medium among 2 or more offerors who compete by submitting bids for a supply or service contract, or a delivery order, task order, or purchase order under the contract, with the ability to submit revised lower bids at any time before the closing of the auction; and (B) the award of the contract, delivery order, task order, or purchase order to the offeror, in whole or in part, based on the price obtained through the auction process. March 29, 2017 Reported with amendments, committed to the Committee of the Whole House on the State of the Union, and ordered to be printed

Summary: Construction Consensus Procurement Improvement Act of 2017 (Sec. 3) This bill modifies the design-build selection procedures used by federal agencies soliciting offers to enter into civilian contracts for the design and construction of a public building, facility, or work. Two-phase selection procedures (i.e., submission of qualifications and then the submission of price and technical proposals in response to a request for proposal) must be used if a contracting officer determines that a project has a value of $3 million or greater. But for contracts valued at less than $3 million, the contracting officer makes the same determination under current law as to whether the use of two-phase selection procedures is appropriate if the officer anticipates at least three offers for the contract. Federal agencies must report to the Office of Management and Budget (OMB), each year over a five-year period, on each instance where the agency awarded a design-build contract in which: (1) more than five finalists were selected for phase-two requests for proposals, or (2) the contract or order was awarded without using two-phase selection procedures. The OMB must compile and submit such reports to the Government Accountability Office, which must issue a report analyzing such reports and agency compliance with design-build contract procedures. (Sec. 4) The Federal Acquisition Regulation shall be amended to prohibit the use of reverse auctions as part of the two-phase selection procedures for awarding contracts for construction and design services. A "reverse auction," with respect to any procurement by an executive agency, is: (1) a real-time auction conducted through an electronic medium among at least two offerors who compete by submitting bids for a supply or service contract, or a delivery order, task order, or purchase order under the contract, with the ability to submit revised lower bids before the closing of the auction; and (2) the award of the contract, delivery order, task order, or purchase order to the offeror based on the price obtained through the auction process.