Article Date: 01/03/2014


A/E Group ‘Deeply Concerned’ about Reverse Auctions in Federal Agency Acquisitions; ConstructionPro Week Summarizes 11 New Bills Addressing U.S. Construction Law


By Steve Rizer

 

Have certain federal agencies been trying to secure some engineering-related assistance through an off-limits procurement process? The Council on Federal Procurement of Architectural and Engineering Services (COFPAES) believes so, last month telling a House panel that it is “deeply concerned that reverse auctions have been attempted by federal agencies. We know of at least three instances in which such a process, which we believe to be in violation of the Brooks Act, was attempted.”

 

COFPAES testified that in one such instance, the U.S. Army, Fort Benning, Ga., issued a solicitation (No. 001025774) for a reverse auction for digital orthophoto mapping through FedBid Inc. Management Association for Private Photogrammetric Surveyors (MAPPS), a member of COFPAES, subsequently advised Fort Benning officials that the scope of work was for engineering-related surveying and mapping services as defined by the Brooks Act, Federal Acquisition Regulation (FAR), Corps of Engineers regulations, and applicable Comptroller General decisions, according to COFPAES, which earlier in its testimony noted that qualifications-based selection is codified in Section 1101 of United States Code Title 40 (40 U.S.C. 1101). “Moreover, such services are the practice of land surveying, as defined by the State of Georgia, Section 43-15-2, Code of Georgia, requiring compliance with 40 U.S.C. 1101 and FAR 36.6, requiring performance by a Georgia-licensed surveyor. Any Georgia-licensed surveyor who responds to the solicitation with a price quote would be in violation of state conduct regulation 180-6-.06.1. The Army did not require a surveyor licensed in Georgia.”

 

COFPAES -- whose members also include the American Institute of Architects, American Society of Civil Engineers, National Society of Professional Engineers, and National Society of Professional Surveyors -- submitted its testimony to the House Small Business Committee’s Contracting and Workforce Subcommittee.

 

The other two alleged instances of reverse auctions pursued at the federal level involve solicitation No. 0040073949 and solicitation No. G13PS00201, both of which the U.S. Geological Survey issued in 2013. COFPAES indicated that it wants to work with congressional committees with jurisdiction in this issue and certain federal agencies to ensure that reverse auctions “are no longer inappropriately applied to A/E services.” To read COFPAES’ complete written testimony on this matter, visit http://www.cofpaes.org/documents/COFPAES_Reverse_Auctions_House_Small_Business_Committee_December_2013.pdf.

 

A spokesperson for the Obama administration did not respond to ConstructionPro Week’s (CPW) questions about the allegations and COFPAES’ testimony.

 

Elsewhere in Congress, House and Senate legislators have introduced at least 11 bills concerning construction law -- including one proposal addressing reverse auctions -- since CPW’s last update in June (CPW, June 28, 2013, “Contracting Reform Amendment Clears House; ConstructionPro Week Profiles 21 Other Proposals Potentially Affecting the U.S. Construction Industry”). Lawmakers will have another year to decide the fate of these and all other bills introduced during the 113th Congress. Among the bills profiled are the following:

 

S. 1197 -- Associated General Contractors of America believes an amendment (No. 2286) to Sen. Carl Levin’s (D-Mich.) National Defense Authorization bill for fiscal 2014 would “help grow and enhance small-business opportunities by adding an incentive for general contractors to consider small firms for subcontracts. As it stands, current law only allows general contractors to count first-tier small-business subcontractors toward the goals. If enacted, this amendment would allow general contractors to count small-business subcontractors at all tiers toward small-business goals.” The House approved this small-business reform last June in its version of this spending bill (H. Rpt. 113-44). The Senate began reviewing the legislation in November.

 

H.R. 2750 -- Rep. Sam Graves’ (R-Mo.) Design-Build Efficiency and Jobs bill would modify the procedure for awarding design and construction contracts for federal buildings and facilities. One modification would require a contracting officer to provide a written justification to the head of an agency for requiring more than five finalists in the bidding process for such contracts and agency approval of such justification. Another modification would require the use of the two-phase selection process (i.e., submission of qualifications and then the submission of price and technical proposals in response to a request for proposal) for contracts having a value of at least $750,000. The measure would compel each agency that awards design and construction contracts to submit to the U.S. General Accountability Office (GAO) an annual report on all contracts for which more than five finalists were selected for phase-two requests for competitive proposals and contracts having a value of at least $750,000 for which the two-phase selection process was not used. GAO would publish a report analyzing federal agency compliance with the bill. The House Oversight and Government Reform Committee is reviewing the measure, which has 11 co-sponsors.

 

H.R. 2751 -- Rep. Richard Hanna’s (R-N.Y.) Commonsense Construction Contracting bill would amend the Small Business Act to prohibit reverse auction methods from being used in “the case of any contract for the procurement of design and construction services if the contract is suitable for award to a small business or if the award is made under Small Business Administration provisions concerning the federal award of procurement contracts or subcontracts to small businesses, HUBZone (historically underutilized business zone) small businesses, and small businesses owned and controlled by veterans, disabled veterans, socially and economically disadvantaged individuals, or women.” The legislation, which has two co-sponsors, is undergoing consideration in the House Small Business Committee.

 

Summaries of all 11 bills are included in the ConstructionPro Network member version of this article.

 



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