,i #aacth ,,congress #ast ,session ,h4 ,r4 #aidb ,,in ,,the ,,house ,,of ,,representatives ,may #i1 #bjac ,mrs4 ,carolyn ,b4 ,maloney of ,new ,york introduced the following bill2 which was referred to the ,committee on ,oversight and ,government ,reform ,a ,,bill ,to assure quality and best value with respect to ,federal construction projects by prohibiting the practice known as bid shopping4 #a4 ,short title ,this ,act may be cited as the ,construction ,quality ,assurance ,act of #bjac4 #b4 ,findings ,congress finds the following3 7#a7 ,federal construction project sealed bid contractor selection procedure is a valuable project acquisition method that should be preserved and strengthened for projects of appropriate scope4 7#b7 ,federal procurement data trends indicate that agencies increasingly are relying on other negotiated contractor selection procedures1 rather than price-only selection procedures4 7#c7 ,requirements for ,federal agencies to use major subcontractor bid listing on price-only prime contractor selection procedures would restore the balance in use of low-bid and competitive negotiations1 which has proven results in other public procurement systems4 7#d7 ,bid shopping occurs when the successful prime contract low bidder1 after project award1 uses the successful subcontract low bids as the beginning point for a post-award auction to the same or other subcontractors to agree to perform the subcontract work at an even lower price1 with the savings accruing only to the benefit of the low-bid prime contractor1 not the agency program1 the project1 or the taxpayer4 7#e7 ,bid peddling occurs when other subcontractors approach the successful prime contractor bidder after award of the prime contract and offer to perform the subcontract work at a lower price than submitted by the subcontractor whose sub-bid price was relied on by the successful prime contractor1 again with the ostensible savings accruing to the prime contract low bidder only1 not the agency program1 the project1 or the taxpayers4 7#f7 ,listing of major subcontract bids in the prime contractor's sealed bid by agencies will effectively stem the detrimental and inequitable practices of bid shopping and bid peddling on direct ,federal construction contracts that are detrimental to the taxpayers' interest in ,government procurement transparency1 sound public contract administration1 and successful construction project completion4 7#g7 ,agencies will receive better project performance1 by restoring integrity to the low-bid selection system for both prime contractors and major subcontractors1 as abusive selection procedures often lead to greater project disputes1 claims1 changes1 product and material substitutions1 and in some cases even contractor defaults--again1 all to the detriment of the agency program1 the project1 and the taxpayers generally4 7#h7 ,restoring equitable safeguards in the low-bid system will assure that agency practice will conform to the highest standards adhered to by industry professionals and contractor associations1 and will reflect best practices followed by a great many other public procurement systems nationally and internationally4 #c4 ,definitions ,in this ,act3 7#a7 ,contract ,the term contract means any contract with the ,federal ,government1 exceeding #a1jjj1jjj in amount1 for the construction1 alteration1 or repair of any public building or public work of the ,united ,states4 7#b7 ,contractor ,the term contractor means an individual or entity that has been awarded or is seeking to be awarded a construction contract by the ,federal ,government4 7#c7 ,subcontractor ,the term subcontractor means an individual or entity that subcontracts with a contractor in an amount in excess of #ajj1jjj for work on a contract4 #d4 ,requirements regarding subcontractors for ,federal contractors on construction projects 7a7 ,requirement ,to ,list ,subcontractors 7#a7 ,in general ,each solicitation by an executive agency for the procurement of construction in an amount in excess of #a1jjj1jjj shall require each bidder to submit as part of its bid the name1 location of the place of business1 and nature of the work of each subcontractor with whom the bidder1 if awarded the contract1 will subcontract for work in an amount in excess of #ajj1jjj on the contract4 7#b7 ,requirements for specific categories 7,a7 ,except as provided in subparagraphs 7,b7 and 7,c71 the bidder shall list only one subcontractor for each category of work as defined by the bidder in its bid or proposal4 7,b7 ,a bidder may list multiple subcontractors for a category of work if each such subcontractor is listed to perform a discrete portion of the work within a category4 7,c7 ,a bidder may list itself for any portion of work under the contract1 which shall be deemed a representation by the bidder that it is fully qualified to perform that portion of the work itself and that the bidder will perform that portion itself4 7#c7 ,result of failure to list subcontractors ,an executive agency shall consider any bidder that fails to list subcontractors in accordance with this ,act and the regulations promulgated pursuant to section #g of this ,act to be non-responsive and bids by such bidders shall not be considered4 7b7 ,procedures for ,substitution of a ,listed ,subcontractor 7#a7 ,consent and good cause required ,no contractor shall substitute a subcontractor in place of the subcontractor listed in the original bid or proposal1 except with the consent of the contracting officer for good cause4 7#b7 ,examples of good cause ,good cause under paragraph 7#a7 shall include the following3 7,a7 ,failure of the subcontractor to execute a written contract after a reasonable period if such written contract1 based upon the terms1 conditions1 plans1 and specifications of the contract and the terms of the subcontractor's bid or proposal1 is presented to the subcontractor by the contractor4 7,b7 ,bankruptcy of the subcontractor4 7,c7 ,the death or physical disability of the subcontractor1 if the subcontractor is an individual4 7,d7 ,dissolution of the subcontractor1 if the subcontractor is a corporation or partnership4 7,e7 ,failure of a subcontractor to meet the surety bond requirements specified by the bidder as a condition of the subcontractor to perform on the contract1 if awarded to the bidder4 7,f7 ,the subcontractor is ineligible to perform on the subcontract because the subcontractor is suspended1 debarred1 or otherwise ineligible to perform4 7,g7 ,a series of failures by the subcontractor to perform in accordance with the specification1 terms1 and conditions of its subcontract resulting in the withholding of amounts requested by the subcontractor in accordance with section #cije of title #ca1 ,united ,states ,code1 and the regulations implementing such section4 7,h7 ,failure of the subcontractor to comply with a requirement of law applicable to the subcontractor4 7,i7 ,failure or refusal of the subcontractor to perform the subcontract4 7#c7 ,requests for substitution ,a request of a contractor for a substitution of a listed subcontractor shall be submitted in writing to the contracting officer and shall include the reasons for the request4 ,the contractor shall provide a copy of its request for substitution to the listed subcontractor by any means that provides written third-party verification of delivery to the last known address of the subcontractor4 ,a subcontractor who has been so notified shall have five working days within which to submit written objections to the substitution to the contracting officer4 ,failure to file such written objections shall constitute the consent of the listed subcontractor to the substitution4 7c7 ,limitation on ,assignment1 ,transfer1 or ,substitution 7#a7 ,limitation on assignment or transfer ,no contractor shall permit any subcontract to be voluntarily assigned or transferred or to be performed by any entity other than the subcontractor listed in the bid or proposal without the consent of the contracting officer4 ,consent of the contracting officer to a contractor for a substitution shall-- 7,a7 be promptly made in writing2 and 7,b7 be included in the contract file4 7#b7 ,limitation on substitution ,no contractor that listed itself for a portion of the work under the contract shall subcontract any portion of the work for which it listed itself1 unless authorized by the contracting officer to substitute one or more subcontractors to perform such work4 #e4 ,penalties 7a7 ,in general 7#a7 ,a contractor shall be subject to penalties if1 without obtaining the approval of the contracting officer1 the contractor-- 7,a7 replaces a listed subcontractor for a contract with an executive agency2 or 7,b7 awards a subcontract to a subcontractor to perform work which the contractor had identified as work to be performed directly by the contractor4 7#b7 ,a subcontractor shall also be subject to penalties if the subcontractor is determined to have knowingly participated in the failure of the contractor to comply with the regulatory provisions relating to the substitution of a listed subcontractor4 7b7 ,amount of penalties ,to be imposed ,the amount of penalties imposed under this section shall be equal to the greater of-- 7#a7 #aj percent of the amount of the bid by the listed subcontractor2 7#b7 the difference between the amount of the bid by the listed subcontractor and the amount of the bid by the substituted subcontractor2 or 7#c7 the difference between the amount of the bid by a substituted subcontractor and the dollar value specified by the contractor for the work which the contractor had listed for its own performance4 7c7 ,source of funds for penalties ,penalties assessed pursuant to this section shall be deducted from the remaining unpaid contract balance and deposited into the fund from which the contract was awarded4 #f4 ,grounds for suspension or debarment ,the imposition of penalties on a contractor or subcontractor for failure to comply with the procedures for the substitution of subcontractors on #b contracts within a #c-year period shall be deemed to be adequate evidence of the commission of an offense indicating a lack of business integrity or business honesty that seriously and directly affects the present responsibility of a ,government contractor within the meaning of part #i4d of the ,federal ,acquisition ,regulation 7,debarment1 ,suspension1 and ,eligibility7 7#dh ,,cfr #i4d74 #g4 ,implementation through the ,federal ,acquisition ,regulation 7a7 ,proposed ,revisions ,proposed revisions to the ,government-wide ,federal ,acquisition ,regulation to implement the provisions in this ,act shall be published not later than #abj days after the date of the enactment of this ,act and provide not less than #fj days for public comment4 7b7 ,final ,regulations ,final regulations shall be published not less than #ahj days after the date of the enactment of this ,act and shall be effective on the date that is #cj days after the date of publication4