S.Amdt. 2016

SA 2016. Mr. PORTMAN (for himself and Ms. Hirono) submitted an
amendment intended to be proposed to amendment SA 1463 proposed by Mr.
McCain to the bill H.R. 1735, to authorize appropriations for fiscal
year 2016 for military activities of the Department of Defense, for
military construction, and for defense activities of the Department of
Energy, to prescribe military personnel strengths for such fiscal year,
and for other purposes; which was ordered to lie on the table; as
follows:

At the end of title VIII, add the following:

Subtitle F--Construction Consensus Procurement Improvement

SEC. 891. SHORT TITLE.

(a) Short Title.--This subtitle may be cited as the
``Construction Consensus Procurement Improvement Act of
2015''.

SEC. 892. DESIGN-BUILD CONSTRUCTION PROCESS IMPROVEMENT.

(a) Civilian Contracts.--
(1) In general.--Section 3309 of title 41, United States
Code, is amended--
(A) by amending subsection (b) to read as follows:
``(b) Criteria for Use.--
``(1) Contracts with a value of at least $750,000.--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 contract has a value of $750,000 or
greater, as adjusted for inflation in accordance with section
1908 of this title.
``(2) Contracts with a value less than $750,000.--For
projects that a contracting officer determines have a value
of less than $750,000, 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.''; and

[[Page S4142]]

(B) in subsection (d), by striking ``The maximum number
specified in the solicitation shall not exceed 5 unless the
agency determines with respect to'' and all that follows
through the period at the end and inserting the following:
``The maximum number specified in the solicitation shall not
exceed 5 unless the head of the contracting activity,
delegable to a level no lower than the senior contracting
official within the contracting activity, approves the
contracting officer's justification that an individual
solicitation must have greater than 5 finalists to be in the
Federal Government's interest. The contracting officer shall
provide written documentation of how a maximum number of
offerors exceeding 5 is consistent with the purposes and
objectives of the two-phase selection process.''.
(2) Annual reports.--
(A) In general.--Not later than November 30 of 2016, 2017,
2018, 2019, and 2020, 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 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) Defense Contracts.--
(1) In general.--Section 2305a of title 10, United States
Code, is amended--
(A) by amending subsection (b) to read as follows:
``(b) Criteria for Use.--
``(1) Contracts with a value of at least $750,000.--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 contract has a value of $750,000 or
greater, as adjusted for inflation in accordance with section
1908 of title 41, United States Code.
``(2) Contracts with a value less than $750,000.--For
projects that a contracting officer determines have a value
of less than $750,000, 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 Department of
Defense.''; and
(B) in subsection (d), by striking ``The maximum number
specified in the solicitation shall not exceed 5 unless the
agency determines with respect to'' and all that follows
through the period at the end and inserting the following:
``The maximum number specified in the solicitation shall not
exceed 5 unless the head of the contracting activity approves
the contracting officer's justification that an individual
solicitation must have greater than 5 finalists to be in the
Federal Government's interest. The contracting officer shall
provide written documentation of how a maximum number of
offerors exceeding 5 is consistent with the purposes and
objectives of the two-phase selection process.''.
(2) Annual reports.--
(A) In general.--Not later than November 30 of 2016, 2017,
2018, 2019, and 2020, the Secretary of Defense shall compile
an annual report of each instance in which the Department
awarded a design-build contract pursuant to section 2305a of
title 10, 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 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) GAO Reports.--
(1) Civilian contracts.--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.
(2) Defense contracts.--Not later than 270 days after the
deadline for the final reports required under subsection (f)
of section 2305a of title 10, United States Code, as added by
subsection (b)(1), the Comptroller General of the United
States shall issue a report analyzing the compliance of the
Department of Defense with the requirements of such section.

SEC. 893. PROHIBITION ON THE USE OF A REVERSE AUCTION FOR THE
AWARD OF A CONTRACT FOR DESIGN AND CONSTRUCTION
SERVICES.

(a) 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 for
awarding contracts for construction and design services.
(b) 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; and
(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 between a group of offerors who compete against each
other by submitting bids for a contract or task order with
the ability to submit revised bids throughout the course of
the auction; and
(B) the award of the contract or task order to the offeror
who submits the lowest bid.

SEC. 894. ASSURING PAYMENT PROTECTIONS FOR CONSTRUCTION
SUBCONTRACTORS AND SUPPLIERS UNDER AN
ALTERNATIVE TO A MILLER ACT PAYMENT BOND.

Chapter 93 of subtitle VI of title 31, United States Code,
is amended--
(1) by adding at the end the following new section:

``Sec. 9310. Individual sureties

``If another applicable 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
assets with a depository described under section 9303(b).'';
and
(2) in the table of sections for such chapter, by adding at
the end the following new item:

``9310. Individual sureties.''.

SEC. 895. SBA SURETY BOND GUARANTEE PROGRAM.

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''.
______