[Congressional Bills 114th Congress]
[From the U.S. Government Publishing Office]
[S. 2139 Reported in Senate (RS)]
<DOC>
Calendar No. 308
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
December 2, 2015
Reported by Mr. Vitter, with amendments
[Omit the part struck through and insert the part printed in italic]
_______________________________________________________________________
A BILL
To amend the Small Business Act to prohibit the use of reverse auctions
for the procurement of covered contracts.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Small Contractors Improve
Competition Act of 2015''.
SEC. 2. LIMITATIONS ON REVERSE AUCTIONS.
(a) Sense of Congress.--It is the sense of Congress that, when used
appropriately, reverse auctions may improve procurement by the Federal
Government of commercially available commodities by increasing
competition, reducing prices, and improving opportunities for small
businesses.
(b) Limitations on Reverse Auctions.--The Small Business Act (15
U.S.C. 631 et seq.) is amended--
(1) by redesignating section 47 as section 48; and
(2) by inserting after section 46 the following:
``SEC. 47. LIMITATIONS ON REVERSE AUCTIONS FOR COVERED CONTRACTS.
``(a) Definitions.--In this section--
``(1) the term `contracting officer' has the meaning given
the term in section 2101 of title 41, United States Code;
``(2) the term `covered contract' means a contract--
``(A) for design and construction services;
``(B) for goods purchased to protect Federal
employees, members of the Armed Forces, or civilians
from bodily harm; or
``(C) for goods or services other than those goods
or services described in subparagraph (A) or (B)--
``(i) to be awarded based on factors other
than price and technical responsibility; or
``(ii) if awarding the contract requires
the contracting officer to conduct discussions
with the offerors about their offer;
``(3) the term `design and construction services' means--
``(A) site planning and landscape design;
``(B) architectural and interior design;
``(C) engineering system design;
``(D) performance of construction work for
facility, infrastructure, and environmental restoration
projects;
``(E) delivery and supply of construction materials
to construction sites;
``(F) construction, alteration, or repair,
including painting and decorating, of public buildings
and public works; and
``(G) architectural and engineering services, as
defined in section 1102 of title 40, United States
Code;
``(4) the term `responsible source' has the meaning given
the term in section 113 of title 41, United States Code; and
``(5) the term `reverse auction', with respect to
procurement by an agency, means an auction between a group of
offerors who compete against each other by submitting offers
for a contract or task or delivery order with the ability to
submit revised offers with lower prices throughout the course
of the auction.
``(b) Prohibition on Using Reverse Auctions for Covered
Contracts.--In the case of a covered contract, a reverse auction may
not be used if the award of the covered contract is to be made under--
``(1) section 8(a);
``(2) section 8(m);
``(3) section 15(a);
``(4) section 15(j);
``(5) section 31; or
``(6) section 36.
``(c) Limitations on Using Reverse Auctions.--In the case of the
award of a contract made under a provision of law described in
paragraphs (1) through (6) of subsection (b) that is not a covered
contract, a reverse auction may be used for the award of such a
contract only if the following requirements are met:
``(1) Decisions regarding use of a reverse auction.--
Subject to paragraph (2), the following decisions with respect
to such a contract shall only be made by a contracting officer:
``(A) A decision to use a reverse auction as part
of the competition for award of such a contract.
``(B) Any decision made after the decision
described in subparagraph (A) regarding the appropriate
evaluation criteria, the inclusion of vendors, the
acceptability of vendor submissions (including
decisions regarding timeliness), and the selection of
the winner.
``(2) Training required.--
``(A) In general.--Only a contracting officer who
has received training on the appropriate use and
supervision of reverse auctions may use or supervise a
reverse auction for the award of such a contract.
``(B) Training.--The training described in
subparagraph (A) shall be provided by, or similar to
the training provided by, the Defense Acquisition
University as described in section 824 of the Carl
Levin and Howard P. `Buck' McKeon National Defense
Authorization Act for Fiscal Year 2015 (Public Law 113-
291; 127 Stat. 3436) (10 U.S.C. 2304 note).
``(3) Number of offers; revisions to bids.--A Federal
agency may not award such a contract using a reverse auction
if--
``(A) only 1 offer is received; or
``(B) offerors do not have the ability to submit
revised bids with lower prices throughout the course of
the auction.
``(4) Technically acceptable offers.--A Federal agency
awarding such a contract using a reverse auction shall evaluate
the technical acceptability of offers only as technically
acceptable or unacceptable.
``(5) Use of price rankings.--A Federal agency may not
award such a contract using a reverse auction if at any time
during the procurement process the Federal agency misinforms an
offeror about the price ranking of the last offer of the
offeror submitted in relation to offers submitted by other
offerors.
``(6) Use of third-party agents.--If a Federal agency uses
a third-party agent to assist with the award of such a contract
using a reverse auction, the Federal agency shall ensure that--
``(A) inherently governmental functions are not
performed by private contractors, including by the
third-party agent;
``(B) information on the past contract performance
of offerors created by the third-party agent and shared
with the Federal agency is collected, maintained, and
shared in compliance with section 1126 of title 41,
United States Code;
``(C) information on whether an offeror is a
responsible source that is created by the third-party
agent and shared with the Federal agency is shared with
the offeror and complies with section 8(b)(7); and
``(D) disputes between the third-party agent and an
offeror may not be used to justify a determination that
an offeror is not a responsible source or to otherwise
restrict the ability of an offeror to compete for the
award of a contract or task.''.
SEC. 3. SURETY BOND REQUIREMENTS AND AMOUNT OF GUARANTEE.
(a) Surety Bond Requirements.--Chapter 93 of title 31, United
States Code, is amended--
(1) by adding at the end the following:
``Sec. 9310. Individual sureties
``If another applicable Federal law or regulation permits the
acceptance of a bond from a surety that is not subject to sections 9305
and 9306 and is based on a pledge of assets by the surety, the assets
pledged by such surety shall--
``(1) consist of eligible obligations described under
section 9303(a); and
``(2) be submitted to the official of the Government
required to approve or accept the bond, who shall deposit the
obligations as described under section 9303(b).''; and
(2) in the table of sections, by adding at the end the
following:
``9310. Individual sureties.''.
(b) Amount of Surety Bond Guarantee From Small Business
Administration.--Section 411(c)(1) of the Small Business Investment Act
of 1958 (15 U.S.C. 694b(c)(1)) is amended by striking ``70'' and
inserting ``90''.
(c) Effective Date.--The amendments made by this section shall take
effect 1 year after the date of enactment of this Act.
Calendar No. 308
114th CONGRESS
1st Session
S. 2139
_______________________________________________________________________
A BILL
To amend the Small Business Act to prohibit the use of reverse auctions
for the procurement of covered contracts.
_______________________________________________________________________
December 2, 2015
Reported with amendments