Construction Consensus Procurement Improvement Act of 2016

SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

    (a) Short Title.--This Act may be cited as the ``Construction 
Consensus Procurement Improvement Act of 2016''.
    (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.

SEC. 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 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 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 purchase of products 
        that are commercially equivalent to commodities.
            (6) Despite their success in other contexts, reverse 
        auctions are generally inappropriate for procurement of design 
        and construction services, given the unique nature of each such 
        project.

SEC. 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 $750,000  
        $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 when a contracting officer 
        determines that the project has a value of $750,000 $3,000,000 
        or greater, as adjusted for inflation in accordance with 
        section 1908 of this title.
            ``(2) Contracts with a value less than $750,000 
        $3,000,000.--For projects that a contracting officer determines 
        have a value of less than $750,000 $3,000,000, the contracting 
        officer shall make a determination 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 when--
                    ``(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 
                2017, 2018, 2019, 2020, and 2021, the head of each 
                agency shall compile an annual report of each instance 
                in which the agency awarded a design-build contract 
                pursuant to section 3309 of title 41, United States 
                Code, during the fiscal year ending in such calendar 
                year, in which--
                            (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.
    (b) GAO Reports.--Not later than 270 days after the deadline for 
the final reports required under subsection (f) of section 3309 of 
title 41, United States Code, as added by subsection (a)(1), the 
Comptroller General of the United States shall issue a report analyzing 
the compliance of the various Federal agencies with the requirements of 
such section.

SEC. 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 Regulatory Council, in 
consultation with the Administrator for Federal Procurement Policy, 
shall amend the Federal Acquisition Regulation to prohibit the use of 
reverse auctions as part of the two-phase selection procedure for 
awarding contracts for construction and design services.
    (c) Definitions.--For purposes of this section--
            (1) the term ``design and construction services'' means--
                    (A) site planning and landscape design;
                    (B) architectural and engineering services 
                (including surveying and mapping defined in section 
                1101 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'' means, with respect to 
        procurement by an agency--
                    (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 
                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.

Summary: Construction Consensus Procurement Improvement Act of 2016 (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 when 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 when the officer anticipates at least three offers for the contract.  Federal agencies must report, each year through FY2021,&nbsp;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 Government Accountability Office must report on agency compliance with design-build contract procedures. (Sec. 4) The Federal Acquisition Regulatory Council must amend the Federal Acquisition Regulation to prohibit the use of reverse auctions as part of the two-phase selection procedure for awarding contracts for construction and design services. A "reverse auction," with respect to procurement by an 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 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&nbsp;offeror based on the price obtained through the auction process.