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115th Congress } { Report
HOUSE OF REPRESENTATIVES
2d Session } { 115-943
======================================================================
EXPANDING CONTRACTING OPPORTUNITIES FOR SMALL BUSINESSES ACT OF 2018
_______
September 12, 2018.--Committed to the Committee of the Whole House on
the State of the Union and ordered to be printed
_______
Mr. Chabot, from the Committee on Small Business, submitted the
following
R E P O R T
[To accompany H.R. 6369]
The Committee on Small Business, to whom was referred the
bill (H.R. 6369) to amend the Small Business Act to eliminate
the inclusion of option years in the award price for sole
source contracts, and for other purposes, having considered the
same, report favorably thereon with an amendment and recommend
that the bill as amended do pass.
CONTENTS
Page
I. Purpose and Bill Summary........................................4
II. Need for Legislation............................................4
III. Hearings........................................................6
IV. Committee Consideration.........................................7
V. Committee Votes.................................................7
VI. Section-by-Section of H.R. 6369.................................9
VII. Congressional Budget Office Cost Estimate......................10
VIII. Unfunded Mandates..............................................10
IX. New Budget Authority, Entitlement Authority, and Tax Expenditur10
X. Oversight Findings.............................................10
XI. Statement of Constitutional Authority..........................10
XII. Congressional Accountability Act...............................10
XIII. Federal Advisory Committee Act Statement.......................10
XIV. Statement of No Earmarks.......................................10
XV. Statement of Duplication of Federal Programs...................11
XVI. Disclosure of Directed Rule Makings............................11
XVII. Performance Goals and Objectives...............................11
XVIII.Changes in Existing Law, Made by the Bill, As Reported.........11
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Expanding Contracting Opportunities
for Small Businesses Act of 2018''.
SEC. 2. AMENDMENTS TO CONTRACTING AUTHORITY FOR CERTAIN SMALL BUSINESS
CONCERNS.
(a) Qualified HUBZone Small Business Concerns.--Subparagraph (A) of
section 31(b)(2) of the Small Business Act (15 U.S.C. 657a(b)(2)) is
amended to read as follows:
``(A) Sole source contracts.--A contracting officer
may award sole source contracts under this section to
any qualified HUBZone small business concern, if--
``(i) the qualified HUBZone small business
concern is determined to be a responsible
contractor with respect to performance of such
contract opportunity;
``(ii) the contracting officer does not have
a reasonable expectation that two or more
qualified HUBZone small business concerns will
submit offers for the contracting opportunity;
``(iii) the anticipated award price of the
contract will not exceed--
``(I) $7,000,000, in the case of a
contract opportunity assigned a
standard industrial classification code
for manufacturing; or
``(II) $4,000,000, in the case of all
other contract opportunities; and
``(iv) in the estimation of the contracting
officer, the contract award can be made at a
fair and reasonable price.''.
(b) Small Business Concern Owned and Controlled by Service-Disabled
Veterans.--Subsection (a) of section 36 of the Small Business Act (15
U.S.C. 657f) is amended to read as follows:
``(a) Sole Source Contracts.--In accordance with this section, a
contracting officer may award a sole source contract to any small
business concern owned and controlled by service-disabled veterans if--
``(1) such concern is determined to be a responsible
contractor with respect to performance of such contract
opportunity;
``(2) the contracting officer does not have a reasonable
expectation that two or more small business concerns owned and
controlled by service-disabled veterans will submit offers for
the contracting opportunity;
``(3) the anticipated award price of the contract will not
exceed--
``(A) $7,000,000, in the case of a contract
opportunity assigned a standard industrial
classification code for manufacturing; or
``(B) $4,000,000, in the case of any other contract
opportunity;
``(4) in the estimation of the contracting officer, the
contract award can be made at a fair and reasonable price;
``(5) the contracting officer has notified the Administration
of the intent to make such award and requested that the
Administration determine the concern's eligibility for award;
and
``(6) the Administration has determined that such concern is
eligible for award.''.
(c) Certain Small Business Concerns Owned and Controlled by Women.--
Section 8(m) of the Small Business Act (15 U.S.C. 637(m)) is amended--
(1) by amending paragraph (7) to read as follows:
``(7) Authority for sole source contracts for economically
disadvantaged small business concerns owned and controlled by
women.--A contracting officer may award a sole source contract
under this subsection to any small business concern owned and
controlled by women described in paragraph (2)(A) and certified
under paragraph (2)(E) if--
``(A) such concern is determined to be a responsible
contractor with respect to performance of the contract
opportunity;
``(B) the contracting officer does not have a
reasonable expectation that two or more businesses
described in paragraph (2)(A) will submit offers;
``(C) the anticipated award price of the contract
will not exceed--
``(i) $7,000,000, in the case of a contract
opportunity assigned a standard industrial
classification code for manufacturing; or
``(ii) $4,000,000, in the case of any other
contract opportunity;
``(D) in the estimation of the contracting officer,
the contract award can be made at a fair and reasonable
price;
``(E) the contracting officer has notified the
Administration of the intent to make such award and
requested that the Administration determine the
concern's eligibility for award; and
``(F) the Administration has determined that such
concern is eligible for award.''; and
(2) by amending paragraph (8) to read as follows:
``(8) Authority for sole source contracts for small business
concerns owned and controlled by women in substantially
underrepresented industries.--A contracting officer may award a
sole source contract under this subsection to any small
business concern owned and controlled by women certified under
paragraph (2)(E) that is in an industry in which small business
concerns owned and controlled by women are substantially
underrepresented (as determined by the Administrator under
paragraph (3)) if--
``(A) such concern is determined to be a responsible
contractor with respect to performance of the contract
opportunity;
``(B) the contracting officer does not have a
reasonable expectation that two or more businesses in
an industry that has received a waiver under paragraph
(3) will submit offers;
``(C) the anticipated award price of the contract
will not exceed--
``(i) $7,000,000, in the case of a contract
opportunity assigned a standard industrial
classification code for manufacturing; or
``(ii) $4,000,000, in the case of any other
contract opportunity;
``(D) in the estimation of the contracting officer,
the contract award can be made at a fair and reasonable
price;
``(E) the contracting officer has notified the
Administration of the intent to make such award and
requested that the Administration determine the
concern's eligibility for award; and
``(F) the Administration has determined that such
concern is eligible for award.''.
(d) Elimination of the Inclusion of Option Years in the Award Price
for Contracts.--Section 8 of the Small Business Act (15 U.S.C. 637) is
amended by striking ``(including options)'' each place such term
appears.
SEC. 3. SBA CERTIFICATION PROGRAM NOTIFICATION.
The Administrator of the Small Business Administration shall notify
the Committee on Small Business of the House of Representatives and the
Committee on Small Business and Entrepreneurship of the Senate when the
Administrator has implemented each of the following:
(1) A program to certify small business concerns owned and
controlled by women.
(2) A program to certify small business concerns owned and
controlled by service-disabled veterans.
SEC. 4. GAO REPORT.
(a) Study.--With respect to the Small Business Administration's
procurement programs for women-owned small business concerns and for
small business concerns owned and controlled by service-disabled
veterans, the Comptroller General of the United States shall conduct an
evaluation of the policies and practices used by the Administration and
other Federal agencies to provide assurance that contracting officers
are properly classifying sole source awards under those programs in the
Federal Procurement Data System and that sole source contracts awarded
under those programs are being awarded to eligible concerns.
(b) Report.--No later than 18 months after the Small Business
Administration implements the certification programs described under
section 3, the Comptroller General shall issue a report to the
Committee on Small Business of the House of Representatives and the
Committee on Small Business and Entrepreneurship of the Senate
containing the findings made in carrying out the study required under
subsection (a).
(c) SBA Consideration of GAO Report.--
(1) In general.--The Administrator of the Small Business
Administration shall review the report issued under subsection
(b) and take such actions as the Administrator may determine
appropriate to address any concerns raised in such report and
any recommendations contained in such report.
(2) Report to congress.--After the review described under
paragraph (1), the Administrator shall issue a report to the
Congress--
(A) stating that no additional actions were necessary
to address any concerns or recommendations contained in
the report; or
(B) describing the actions taken by the Administrator
to resolve such concerns or implement such
recommendations.
SEC. 5. REMOVAL OF ELIGIBILITY DETERMINATION UPON IMPLEMENTATION OF
CERTIFICATION PROGRAMS.
Effective upon the notification described under section 3, the Small
Business Act (15 U.S.C. 631 et seq.) is amended--
(1) in section 8(m)--
(A) in paragraph (7)--
(i) in subparagraph (C), by adding ``and'' at
the end;
(ii) in subparagraph (D), by striking the
semicolon at the end and inserting a period;
and
(iii) by striking subparagraphs (E) and (F);
and
(B) in paragraph (8)--
(i) in subparagraph (C), by adding ``and'' at
the end;
(ii) in subparagraph (D), by striking the
semicolon at the end and inserting a period;
and
(iii) by striking subparagraphs (E) and (F);
and
(2) in section 36(a)--
(A) in paragraph (3), by adding ``and'' at the end;
(B) in paragraph (4), by striking the semicolon at
the end and inserting a period; and
(C) by striking paragraphs (5) and (6).
I. Purpose and Bill Summary
The purpose of H.R. 6369, the ``Expanding Contracting
Opportunities for Small Businesses Act of 2018,'' is to promote
greater use of sole-source contracting to small businesses by
contracting officers while also ensuring only eligible firms
receive these contracts.
H.R. 6369 raises the dollar amount of sole-source awards so
that they are closer in line with the size of current contracts
being awarded in the procurement landscape. To mitigate the
risk of fraud and abuse, the bill strengthens oversight by
instituting a new eligibility determination check by the Small
Business Administration (SBA) before sole-source contracts are
awarded, and by requiring SBA to notify Congress when front-end
certification programs for Women-Owned Small Businesses (WOSBs)
and Service-Disabled Veteran-Owned Small Businesses (SDVOSBs)
are implemented. The bill also provides insight into federal
sole source contracting activities by requiring the Government
Accountability Office (GAO) to assess whether federal sole-
source award data is accurate and identifying sole-source
awards made to ineligible entities. The bill also mitigates
errors made where the GAO has identified ineligible sole-source
awards by requiring the SBA to take corrective action as
needed.
II. Background and Need for Legislation
H.R. 6369 was introduced by Rep. Roger Marshall (R-KS) and
Rep. Bradley Schneider (D-IL) on July 13, 2018. Background on
each of these provisions will be provided along with an
explanation of the need for legislation.
A. SOLE SOURCE CONTRACTS
Under the Small Business Act, the SBA plays a critical role
in safeguarding federal contracting opportunities for small
businesses. The SBA negotiates agency-specific small business
goals to help ensure that the federal government collectively
meets the 23 percent statutory goal for contract dollars
awarded to small businesses. In addition, SBA administers the
8(a) Business Development program, the HUBZone program, the
SDVOSB program, and the WOSB programs\1\ that are intended to
assist small businesses of various socioeconomic categories.
The Small Business Act also provides contracting officers with
the authority to award sole-source, or uncompetitive contracts
to certain small businesses, provided they meet the eligibility
criteria and are the only firm in that socioeconomic group
eligible and willing to perform the contract at a reasonable
price.\2\ However, the current statutory dollar upper-limit
threshold for sole-source awards has fallen behind, failing to
keep pace with the size of contract awards favored by
contracting officers and agencies presently.
---------------------------------------------------------------------------
\1\15 U.S.C. Sec. 631(a), 644(a).
\2\Contracting officers are permitted to award sole-source
contracts to 8(a) firms even if the firm is not the only 8(a) firm
eligible and willing to perform the contract at a reasonable price.
---------------------------------------------------------------------------
B. WOMEN-OWNED SMALL BUSINESS PROGRAM
In order to increase federal contracting opportunities for
WOSBs, in 1994, Congress established an annual goal of not less
than 5 percent of prime contract and subcontract awards for
each fiscal year for WOSBs. In 2000, Congress authorized the
WOSB program and SBA issued implementing regulations that
became effective in 2011. Under the program, set-aside and
sole-source contracts are reserved for WOSBs and economically
disadvantaged WOSBs (EDWOSBs) in designated industries in which
they were historically underrepresented.\3\ Among other
eligibility requirements, a business must be at least 51
percent owned and controlled by one or more women; it must be
certified as eligible by a third party or be self-certified by
the business owner; and the owner must provide documents
demonstrating that the business meets program requirements.
---------------------------------------------------------------------------
\3\Set-asides and sole source contracts can be made only in
industries in which WOSBs were substantially underrepresented and
economically disadvantaged WOSBs were underrepresented, according to
the program regulation.
---------------------------------------------------------------------------
Various changes have been made to the WOSB program since it
was established, including allowing sole source awards starting
in October 2015. Additionally, in Section 825 of the National
Defense Authorization Act for Fiscal Year 2015, the Small
Business Act was amended to remove the option of self-
certification for WOSBs, thereby ending self-certification for
WOSBs and EDWOSBs, requiring the SBA to implement a front-end
certification process. As of the date of this report, SBA has
not issued rules for certifying WOSBs and EDWOSBs. Due in part
to the lack of accountability through the current self-
certification scheme, the SBA Inspector General released a
report finding that contracting officers and firms failed to
comply with federal regulations for a significant portion of
WOSB sole-source contracts sampled, indicating low assurance
that these sole-source contracts were awarded to eligible
WOSBs.\4\
---------------------------------------------------------------------------
\4\https://www.sba.gov/sites/default/files/oig/SBA-OIG-Report-18-
18.pdf?utm_medium=email&utm;_source=govdelivery.
---------------------------------------------------------------------------
C. SERVICE-DISABLED VETERAN-OWNED SMALL BUSINESS PROGRAM
The Veterans Entrepreneurship and Small Business
Development Act of 1999 established an annual government-wide
goal of not less than 3 percent of the total value of all prime
contract and subcontract awards for SDVOSBs.\5\ In addition,
the Veterans Benefits Act of 2003 gave federal contracting
officers the authority to restrict competition to SDVOSBs and
award a sole source or set-aside contract where certain
criteria are met.\6\ To be eligible, the business must be
majority-owned by one or more service-disabled veterans who
manage and control daily business operations, and it must
qualify as a small business under SBA's size standards. There
is currently no front-end certification program in place at the
SBA; SDVOSBs are permitted to self-certify their status.
---------------------------------------------------------------------------
\5\Pub. L. No. 106-50, Sec. 502, 113 Stat. 233, 247 (1999).
\6\Pub. L. No. 108-183, Sec. 308, 117 Stat. 2651, 2662 (2003).
---------------------------------------------------------------------------
D. THE NEED FOR LEGISLATION
As the federal government continues to exercise contract
consolidation principles, contract awards and task orders
continue to grow in size and scope. Even as typical contract
awards continue to grow, the statutory maximum dollar threshold
for sole-source contracts has remained stagnant and unchanged,
even to adjust for inflation. The authority to award sole-
source contracts prescribes upper-limit dollar thresholds that
encompass the entirety of the contract, including base and
option years. Current sole source awards do not reflect the
true size of contracts typically issued by contracting
officers, resulting in these types of awards becoming
increasingly rare and difficult to use, disadvantaging small
businesses that are eligible for these types of awards. H.R.
6369 raises the dollar limit prescribed in statute to adjust
for inflation and removes the limitation imposed by inclusion
of option years to the total dollar amount. This removal should
increase the size of sole source contracts, incentivizing
greater use of sole-source awards by contracting officers.
Furthermore, the SBA has been slow to implement a front-end
certification program for WOSBs and the SBA's SDVOSB program
relies on self-certification. This poses risks of fraud and
abuse when and if sole source awards are made to WOSBs and
SDVOSBs. H.R. 6369 establishes a new oversight procedure in
order to mitigate this risk. The new process requires
contracting officers to contact the SBA prior to awarding a
sole source contract to a WOSB or SDVOSB. The SBA would be
required to confirm the status of the WOSB or SDVOSB prior to
the contracting officer making the sole-source award. This new
oversight process will expire once the SBA implements a front-
end certification program for WOSB and SDVOSB.
III. Hearings
The Committee did not hold any hearing specifically on the
issues addressed in H.R. 6369. However, in the 115th Congress,
the Committee held a hearing examining the federal government's
growing dependence on using large, multiple-award contracts and
continued use of contract consolidation principles. This
hearing, held on June 13, 2018 by the Committee on Small
Business, was titled ``The Impact of Category Management on the
Small Business Industrial Base.'' The primary concern examined
in this hearing focused on the potential significant loss of
small business contracting opportunities. Witnesses included
subject matter experts representing the HUBZone Contractors
National Council, Professional Services Council, National
Defense Industrial Association, and the U.S. Women's Chamber of
Commerce.
IV. Committee Consideration
The Committee on Small Business met in open session, with a
quorum being present, on July 18, 2018 and ordered H.R. 6369
favorably reported to the House. During the markup, one
amendment was offered.
Amendment Number One was offered by Rep. Bradley
Schneider of Illinois. This amendment eliminated the
inclusion of option years in the award price for
contracts in section 8 of the Small Business Act,
ensuring that all contracting programs comport with the
intent of this bill. The amendment also removed the
eligibility determinations established in this bill
upon implementation of government certification
programs by the SBA. The amendment passed by voice vote
at 11:39 am.
V. Committee Votes
Clause 3(b) of rule XIII of the Rules of the House of
Representatives requires the Committee to list the recorded
votes on the motion to report legislation and amendments
thereto. The Committee voted by voice vote to favorably report
H.R. 6369 to the House at 11:39 am.
VI. Section-by-Section Analysis of H.R. 6369
Section 1. Short title
This section designates the bill as the ``Expanding
Contracting Opportunities for Small Businesses Act of 2018.''
Section 2. Amendments to contracting authority for certain small
business concerns
Section 2(a) amends 15 U.S.C. 657a, the HUBZone Program
statutes in the Small Business Act, to remove the option year
inclusion limiting the sole-source contract dollar award
threshold for HUBZone small business concerns. This section
also adjusts these dollar amounts in statute for inflation.
Section 2(b) amends 15 U.S.C. 657f, the Service-Disabled
Veteran-Owned Small Business (SDVOSB) Program statutes in the
Small Business Act, to remove the option year inclusion
limiting the sole-source contract dollar award threshold for
SDVOSBs, and adjusts these dollar amounts for inflation. This
section also implements a new eligibility determination
process, which requires a contracting officer to notify the
Small Business Administration (SBA) of its intent to award a
sole-source contract to a SDVOSB; the SBA to determine whether
the SDVOSB is in fact an eligible SDVOSB; and for the SBA to
notify the contracting officer of its findings. The contracting
officer must receive a positive determination by the SBA that
the SDVOSB is eligible before making the sole-source contract
award to that SDVOSB.
Section 2(c) amends the sole-source contracting authority
in 15 U.S.C. 637m, the Women-Owned Small Business (WOSB)
Program statutes in the Small Business Act, with parallel
changes reflected in the sole-source statutes for both
economically-disadvantaged WOSBs and WOSBs in substantially
underrepresented industries. These amendments remove the option
year inclusion limiting the sole-source contract dollar award
threshold for WOSBs, and adjusts these dollar amounts for
inflation. This section also implements a new eligibility
determination process, which requires a contracting officer to
notify the SBA of their intent to award a sole-source contract
to a WOSB; the SBA to determine whether the WOSB is in fact an
eligible WOSB; and for the SBA to notify the contracting
officer of its findings. The contracting officer must receive a
positive determination by the SBA that the WOSB is eligible
before making the sole-source contract award to that WOSB.
Section 3. SBA certification program notification
Section 3 requires the SBA to notify Congress when the
agency has implemented front-end eligibility certification
programs for WOSBs and SDVOSBs.
Section 4. GAO report
Section 4 requires the Government Accountability Office
(GAO) to issue a report within a year of enactment of this bill
assessing whether contracting officers are accurately entering
WOSB and SDVOSB sole-source award information into the federal
procurement database, and whether these awards are being made
to eligible WOSB and SDVOSB entities. This section further
requires the SBA to consider the findings and recommendations
arising from this report, take appropriate actions as
necessary, and notify Congress of any SBA actions resulting
from the GAO's report.
VII. Congressional Budget Office Cost Estimate
At the time H.R. 6369 was reported to the House, the
Congressional Budget Office had not provided a cost estimate.
VIII. Unfunded Mandates
H.R. 6369 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act, Public
Law No. 104-4, and would impose no costs on state, local, or
tribal governments.
IX. New Budget Authority, Entitlement Authority, and Tax Expenditures
In compliance with clause 3(c)(2) of rule XIII of the Rules
of the House, the Committee provides the following opinion and
estimate with respect to new budget authority, entitlement
authority, and tax expenditures. While the Committee has not
received an estimate of new budget authority contained in the
cost estimate prepared by the Director of the Congressional
Budget Office pursuant to Sec. 402 of the Congressional Budget
Act of 1974, the Committee does not believe that there will be
any additional costs attributable to this legislation. H.R.
6369 does not direct new spending, but instead reallocates
funding independently authorized and appropriated.
X. Oversight Findings
In accordance with clause 2(b)(1) of rule X of the Rules of
the House, the oversight findings and recommendations of the
Committee on Small Business with respect to the subject matter
contained in H.R. 6369 are incorporated into the descriptive
portions of this report.
XI. Statement of Constitutional Authority
Pursuant to clause 7 of rule VII of the Rules of the House,
the Committee finds that the authority for this legislation in
Art. I, Sec. 8, cl.1.
XII. Congressional Accountability Act
H.R. 6369 does not relate to the terms and conditions of
employment or access to public services or accommodations
within the meaning of Sec. 102(b)(3) of Public Law No. 104-1.
XIII. Federal Advisory Committee Act Statement
H.R. 6369 does not establish or authorize the establishment
of any new advisory committees as that term is defined in the
Federal Advisory Committee Act, 5 U.S.C. App.2.
XIV. Statement of No Earmarks
Pursuant to clause 9 of rule XXI, H.R. 6369 does not
contain any congressional earmarks, limited tax benefits, or
limited tariff benefits as defined in subsections (d), (e), or
(f) of clause 9 of rule XXI of the Rules of the House.
XV. Statement of Duplication of Federal Programs
Pursuant to clause 3 of rule XIII of the Rules of the
House, no provision of H.R. 6369 establishes or reauthorizes a
program of the federal government known to be duplicative of
another federal program, a program that was included in any
report from the United States Government Accountability Office
pursuant to Sec. 21 of Pub. L. No. 111-139, or a program
related to a program identified in the most recent catalog of
federal domestic assistance.
XVI. Disclosure of Directed Rulemakings
Pursuant to clause 3 of the rule XIII of the Rules of the
House, H.R. 6369 does not direct any rulemaking.
XVII. Performance Goals and Objectives
Pursuant to clause 3(c)(4) of rule XIII of the Rules of the
House, the Committee establishes the following performance-
related goals and objectives for this legislation:
H.R. 6369 adjusts the statutory dollar amount for
small business sole-source contracts for inflation and
removes the option year limitation to that dollar
amount. The bill also includes a new oversight process
requiring contracting officers to confirm the status of
a women-owned or service-disabled veteran-owned small
business with the Small Business Administration prior
to awarding the sole-source contract.
XVIII. Changes in Existing Law Made by the Bill, as Reported
In compliance with clause (E) of rule XIII of the Rules of
the House, changes in existing law made by the bill, as
reported, are shown as follows: existing law proposed to be
omitted is enclosed in black brackets, new matter is printed in
italic, and existing law in which no change is proposed is
shown in roman:
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italic, and existing law in which no
change is proposed is shown in roman):
SMALL BUSINESS ACT
* * * * * * *
Sec. 8. (a)(1) It shall be the duty of the Administration and
it is hereby empowered, whenever it determines such action is
necessary or appropriate--
(A) to enter into contracts with the United States
Government and any department, agency, or officer
thereof having procurement powers obligating the
Administration to furnish articles, equipment,
supplies, services, or materials to the Government or
to perform construction work for the Government. In any
case in which the Administration certifies to any
officer of the Government having procurement powers
that the Administration is competent and responsible to
perform any specific Government procurement contract to
be let by any such officer, such officer shall be
authorized in his discretion to let such procurement
contract to the Administration upon such terms and
conditions as may be agreed upon between the
Administration and the procurement officer. Whenever
the Administration and such procurement officer fail to
agree, the matter shall be submitted for determination
to the Secretary or the head of the appropriate
department or agency by the Administrator. Not later
than 5 days from the date the Administration is
notified of a procurement officer's adverse decision,
the Administration may notify the contracting officer
of the intent to appeal such adverse decision, and
within 15 days of such date the Administrator shall
file a written request for a reconsideration of the
adverse decision with the Secretary of the department
or agency head. For the purposes of this subparagraph,
a procurement officer's adverse decision includes a
decision not to make available for award pursuant to
this subsection a particular procurement requirement or
the failure to agree on the terms and conditions of a
contract to be awarded noncompetitively under the
authority of this subsection. Upon receipt of the
notice of intent to appeal, the Secretary of the
department or the agency head shall suspend further
action regarding the procurement until a written
decision on the Administrator's request for
reconsideration has been issued by such Secretary or
agency head, unless such officer makes a written
determination that urgent and compelling circumstances
which significantly affect interests of the United
States will not permit waiting for a reconsideration of
the adverse decision. If the Administrator's request
for reconsideration is denied, the Secretary of the
department or agency head shall specify the reasons why
the selected firm was determined to be incapable to
perform the procurement requirement, and the findings
supporting such determination, which shall be made a
part of the contract file for the requirement. A
contract may not be awarded under this subsection if
the award of the contract would result in a cost to the
awarding agency which exceeds a fair market price;
(B) to arrange for the performance of such
procurement contracts by negotiating or otherwise
letting subcontracts to socially and economically
disadvantaged small business concerns for construction
work, services, or the manufacture, supply, assembly of
such articles, equipment, supplies, materials, or parts
thereof, or servicing or processing in connection
therewith, or such management services as may be
necessary to enable the Administration to perform such
contracts;
(C) to make an award to a small business
concern owned and controlled by socially and
economically disadvantaged individuals which
has completed its period of Program
Participation as prescribed by section
7(j)(15), if--
(i) the contract will be awarded as a
result of an offer (including price)
submitted in response to a published
solicitation relating to a competition
conducted pursuant to subparagraph (D);
and
(ii) the prospective contract awardee
was a Program Participant eligible for
award of the contract on the date
specified for receipt of offers
contained in the contract solicitation;
and
(D)(i) A contract opportunity offered for award
pursuant to this subsection shall be awarded on the
basis of competition restricted to eligible Program
Participants if--
(I) there is a reasonable expectation that at
least two eligible Program Participants will
submit offers and that award can be made at a
fair market price, and
(II) the anticipated award price of the
contract [(including options)] will exceed
$5,000,000 in the case of a contract
opportunity assigned a standard industrial
classification code for manufacturing and
$3,000,000 [(including options)] in the case of
all other contract opportunities.
(ii) The Associate Administrator for Minority Small
Business and Capital Ownership Development, on a
nondelegable basis, is authorized to approve a request
from an agency to award a contract opportunity under
this subsection on the basis of a competition
restricted to eligible Program Participants even if the
anticipated award price is not expected to exceed the
dollar amounts specified in clause (i)(II). Such
approvals shall be granted only on a limited basis.
(2) Notwithstanding subsections (a) and (c) of the first
section of the Act entitled ``An Act requiring contracts for
the construction, alteration, and repair of any public building
or public work of the United States to be accompanied by a
performance bond protecting the United States and by additional
bond for the protection of persons furnishing material and
labor for the construction, alteration, or repair of said
public buildings or public work,'' approved August 24, 1935 (49
Stat. 793), no small business concern shall be required to
provide any amount of any bond as a condition or receiving any
subcontract under this subsection if the Administrator
determines that such amount is inappropriate for such concern
in performing such contract: Provided, That the Administrator
shall exercise the authority granted by the paragraph only if--
(A) the Administration takes such measures as it
deems appropriate for the protection of persons
furnishing materials and labor to a small business
receiving any benefit pursuant to this paragraph;
(B) the Administration assists, insofar as
practicable, a small business receiving the benefits of
this paragraph to develop, within a reasonable period
of time, such financial and other capability as may be
needed to obtain such bonds as the Administration may
subsequently require for the successful completion of
any program conducted under the authority of this
subsection;
(C) the Administration finds that such small business
is unable to obtain the requisite bond or bonds from a
surety and that no surety is willing to issue such bond
or bonds subject to the guarantee provisions of Title
IV of the Small Business Investment Act of 1958; and
(D) that small business is determined to be a start-
up concern and such concern has not been participating
in any program conducted under the authority of this
subsection for a period exceeding one year.
The authority to waive bonds provided in this paragraph (2) may
not be exercised after September 30, 1988.
(3)(A) Any Program Participant selected by the Administration
to perform a contract to be let noncompetitively pursuant to
this subsection shall, when practicable, participate in any
negotiation of the terms and conditions of such contract.
(B)(i) For purposes of paragraph (1) a ``fair market price''
shall be determined by the agency offering the procurement
requirement to the Administration, in accordance with clauses
(ii) and (iii).
(ii) The estimate of a current fair market price for a new
procurement requirement, or a requirement that does not have a
satisfactory procurement history, shall be derived from a price
or cost analysis. Such analysis may take into account
prevailing market conditions, commercial prices for similar
products or services, or data obtained from any other agency.
Such analysis shall consider such cost or pricing data as may
be timely submitted by the Administration.
(iii) The estimate of a current fair market price for a
procurement requirement that has a satisfactory procurement
history shall be based on recent award prices adjusted to
insure comparability. Such adjustments shall take into account
differences in quantities, performance times, plans,
specifications, transportation costs, packaging and packing
costs, labor and materials costs, overhead costs, and any other
additional costs which may be deemed appropriate.
(C) An agency offering a procurement requirement for
potential award pursuant to this subsection shall, upon the
request of the Administration, promptly submit to the
Administration a written statement detailing the method used by
the agency to estimate the current fair market price for such
contract, identifying the information, studies, analyses, and
other data used by such agency. The agency's estimate of the
current fair market price (and any supporting data furnished to
the Administration) shall not be disclosed to any potential
offeror (other than the Administration).
(D) A small business concern selected by the Administration
to perform or negotiate a contract to be let pursuant to this
subsection may request the Administration to protest the
agency's estimate of the fair market price for such contract
pursuant to paragraph (1)(A).
(4)(A) For purposes of this section, the term ``socially and
economically disadvantaged small business concern'' means any
small business concern which meets the requirements of
subparagraph (B) and--
(i) which is at least 51 per centum unconditionally
owned by--
(I) one or more socially and economically
disadvantaged individuals,
(II) an economically disadvantaged Indian
tribe (or a wholly owned business entity of
such tribe), or
(III) an economically disadvantaged Native
Hawaiian organization, or
(ii) in the case of any publicly owned business, at
least 51 per centum of the stock of which is
unconditionally owned by--
(I) one or more socially and economically
disadvantaged individuals,
(II) an economically disadvantaged Indian
tribe (or a wholly owned business entity of
such tribe), or
(III) an economically disadvantaged Native
Hawaiian organization.
(B) A small business concern meets the requirements of this
subparagraph if the management and daily business operations of
such small business concern are controlled by one or more--
(i) socially and economically disadvantaged
individuals described in subparagraph (A)(i)(I) or
subparagraph (A)(ii)(I),
(ii) members of an economically disadvantaged Indian
tribe described in subparagraph (A)(i)(II) or
subparagraph (A)(ii)(II), or
(iii) Native Hawaiian organizations described in
subparagraph (A)(i)(III) or subparagraph (A)(ii)(III).
(C) Each Program Participant shall certify, on an annual
basis, that it meets the requirements of this paragraph
regarding ownership and control.
(5) Socially disadvantaged individuals are those who have
been subjected to racial or ethnic prejudice or cultural bias
because of their identity as a member of a group without regard
to their individual qualities.
(6)(A) Economically disadvantaged individuals are those
socially disadvantaged individuals whose ability to compete in
the free enterprise system has been impaired due to diminished
capital and credit opportunities as compared to others in the
same business area who are not socially disadvantaged. In
determining the degree of diminished credit and capital
opportunities the Administration shall consider, but not be
limited to, the assets and net worth of such socially
disadvantaged individual. In determining the economic
disadvantage of an Indian tribe, the Administration shall
consider, where available, information such as the following:
the per capita income of members of the tribe excluding
judgment awards, the percentage of the local Indian population
below the poverty level, and the tribe's access to capital
markets.
(B) Each Program Participant shall annually submit to the
Administration--
(i) a personal financial statement for each
disadvantaged owner;
(ii) a record of all payments made by the Program
Participant to each of its disadvantaged owners or to
any person or entity affiliated with such owners; and
(iii) such other information as the Administration
may deem necessary to make the determinations required
by this paragraph.
(C)(i) Whenever, on the basis of information provided by a
Program Participant pursuant to subparagraph (B) or otherwise,
the Administration has reason to believe that the standards to
establish economic disadvantage pursuant to subparagraph (A)
have not been met, the Administration shall conduct a review to
determine whether such Program Participant and its
disadvantaged owners continue to be impaired in their ability
to compete in the free enterprise system due to diminished
capital and credit opportunities when compared to other
concerns in the same business area, which are not socially
disadvantaged.
(ii) If the Administration determines, pursuant to such
review, that a Program Participant and its disadvantaged owners
are no longer economically disadvantaged for the purpose of
receiving assistance under this subsection, the Program
Participant shall be graduated pursuant to section 7(j)(10)(G)
subject to the right to a hearing as provided for under
paragraph (9).
(D)(i) Whenever, on the basis of information provided by a
Program Participant pursuant to subparagraph (B) or otherwise,
the Administration has reason to believe that the amount of
funds or other assets withdrawn from a Program Participant for
the personal benefit of its disadvantaged owners or any person
or entity affiliated with such owners may have been unduly
excessive, the Administration shall conduct a review to
determine whether such withdrawal of funds or other assets was
detrimental to the achievement of the targets, objectives, and
goals contained in such Program Participant's business plan.
(ii) If the Administration determines, pursuant to such
review, that funds or other assets have been withdrawn to the
detriment of the Program Participant's business, the
Administration shall--
(I) initiate a proceeding to terminate the Program
Participant pursuant to section 7(j)(10)(F), subject to
the right to a hearing under paragraph (9); or
(II) require an appropriate reinvestment of funds or
other assets and such other steps as the Administration
may deem necessary to ensure the protection of the
concern.
(E) Whenever the Administration computes personal net worth
for any purpose under this paragraph, it shall exclude from
such computation--
(i) the value of investments that disadvantaged
owners have in their concerns, except that such value
shall be taken into account under this paragraph when
comparing such concerns to other concerns in the same
business area that are owned by other than socially
disadvantaged persons;
(ii) the equity that disadvantaged owners have in
their primary personal residences, except that any
portion of such equity that is attributable to unduly
excessive withdrawals from a Program Participant or a
concern applying for program participation shall be
taken into account.
(7)(A) No small business concern shall be deemed eligible for
any assistance pursuant to this subsection unless the
Administration determines that with contract, financial,
technical, and management support the small business concern
will be able to perform contracts which may be awarded to such
concern under paragraph (1)(C) and has reasonable prospects for
success in competing in the private sector.
(B) Limitations established by the Administration in its
regulations and procedures restricting the award of contracts
pursuant to this subsection to a limited number of standard
industrial classification codes in an approved business plan
shall not be applied in a manner that inhibits the logical
business progression by a participating small business concern
into areas of industrial endeavor where such concern has the
potential for success.
(8) All determinations made pursuant to paragraph (5) with
respect to whether a group has been subjected to prejudice or
bias shall be made by the Administrator after consultation with
the Associate Administrator for Minority Small Business and
Capital Ownership Development. All other determinations made
pursuant to paragraphs (4), (5), (6), and (7) shall be made by
the Associate Administrator for Minority Small Business and
Capital Ownership Development under the supervision of, and
responsible to, the Administrator.
(9)(A) Subject to the provisions of subparagraph (E), the
Administration, prior to taking any action described in
subparagraph (B), shall provide the small business concern that
is the subject of such action, an opportunity for a hearing on
the record, in accordance with chapter 5 of title 5, United
States Code.
(B) The actions referred to in subparagraph (A) are--
(i) denial of program admission based upon a negative
determination pursuant to paragraph (4), (5), or (6);
(ii) a termination pursuant to section 7(j)(10)(F);
(iii) a graduation pursuant to section 7(j)(10)(G);
and
(iv) the denial of a request to issue a waiver
pursuant to paragraph (21)(B).
(C) The Administration's proposed action, in any proceeding
conducted under the authority of this paragraph, shall be
sustained unless it is found to be arbitrary, capricious, or
contrary to law.
(D) A decision rendered pursuant to this paragraph shall be
the final decision of the Administration and shall be binding
upon the Administration and those within its employ.
(E) The adjudicator selected to preside over a proceeding
conducted under the authority of this paragraph shall decline
to accept jurisdiction over any matter that--
(i) does not, on its face, allege facts that, if
proven to be true, would warrant reversal or
modification of the Administration's position;
(ii) is untimely filed;
(iii) is not filed in accordance with the rules of
procedure governing such proceedings; or
(iv) has been decided by or is the subject of an
adjudication before a court of competent jurisdiction
over such matters.
(F) Proceedings conducted pursuant to the authority of this
paragraph shall be completed and a decision rendered, insofar
as practicable, within ninety days after a petition for a
hearing is filed with the adjudicating office.
(10) The Administration shall develop and implement an
outreach program to inform and recruit small business concerns
to apply for eligibility for assistance under this subsection.
Such program shall make a sustained and substantial effort to
solicit applications for certification from small business
concerns located in areas of concentrated unemployment or
underemployment or within labor surplus areas and within States
having relatively few Program Participants and from small
disadvantaged business concerns in industry categories that
have not substantially participated in the award of contracts
let under the authority of this subsection.
(11) To the maximum extent practicable, construction
subcontracts awarded by the Administration pursuant to this
subsection shall be awarded within the county or State where
the work is to be performed.
(12)(A) The Administration shall require each concern
eligible to receive subcontracts pursuant to this subsection to
annually prepare and submit to the Administration a capability
statement. Such statement shall briefly describe such concern's
various contract performance capabilities and shall contain the
name and telephone number of the Business Opportunity
Specialist assigned such concern. The Administration shall
separate such statements by those primarily dependent upon
local contract support and those primarily requiring a national
marketing effort. Statements primarily dependent upon local
contract support shall be disseminated to appropriate buying
activities in the marketing area of the concern. The remaining
statements shall be disseminated to the Directors of Small and
Disadvantaged Business Utilization for the appropriate agencies
who shall further distribute such statements to buying
activities with such agencies that may purchase the types of
items or services described on the capability statements.
(B) Contracting activities receiving capability statements
shall, within 60 days after receipt, contact the relevant
Business Opportunity Specialist to indicate the number, type,
and approximate dollar value of contract opportunities that
such activities may be awarding over the succeeding 12-month
period and which may be appropriate to consider for award to
those concerns for which it has received capability statements.
(C) Each executive agency reporting to the Federal
Procurement Data System contract actions with an aggregate
value in excess of $50,000,000 in fiscal year 1988, or in any
succeeding fiscal year, shall prepare a forecast of expected
contract opportunities or classes of contract opportunities for
the next and succeeding fiscal years that small business
concerns, including those owned and controlled by socially and
economically disadvantaged individuals, are capable of
performing. Such forecast shall be periodically revised during
such year. To the extent such information is available, the
agency forecasts shall specify:
(i) The approximate number of individual contract
opportunities (and the number of opportunities within a
class).
(ii) The approximate dollar value, or range of dollar
values, for each contract opportunity or class of
contract opportunities.
(iii) The anticipated time (by fiscal year quarter)
for the issuance of a procurement request.
(iv) The activity responsible for the award and
administration of the contract.
(D) The head of each executive agency subject to the
provisions of subparagraph (C) shall within 10 days of
completion furnish such forecasts to--
(i) the Director of the Office of Small and
Disadvantaged Business Utilization established pursuant
to section 15(k) for such agency; and
(ii) the Administrator.
(E) The information reported pursuant to subparagraph (D) may
be limited to classes of items and services for which there are
substantial annual purchases.
(F) Such forecasts shall be available to small business
concerns.
(13) For purposes of this subsection, the term ``Indian
tribe'' means any Indian tribe, band, nation, or other
organized group or community of Indians, including any Alaska
Native village or regional or village corporation (within the
meaning of the Alaska Native Claims Settlement Act) which--
(A) is recognized as eligible for the special
programs and services provided by the United States to
Indians because of their status as Indians, or
(B) is recognized as such by the State in which such
tribe, band, nation, group, or community resides.
(14) Limitations on subcontracting.--A concern may
not be awarded a contract under this subsection as a
small business concern unless the concern agrees to
satisfy the requirements of section 46.
(15) For purposes of this subsection, the term ``Native
Hawaiian Organization'' means any community service
organization serving Native Hawaiians in the State of Hawaii
which--
(A) is a nonprofit corporation that has filed
articles of incorporation with the director (or the
designee thereof) of the Hawaii Department of Commerce
and Consumer Affairs, or any successor agency,
(B) is controlled by Native Hawaiians, and
(C) whose business activities will principally
benefit such Native Hawaiians.
(16)(A) The Administration shall award sole source contracts
under this section to any small business concern recommended by
the procuring agency offering the contract opportunity if--
(i) the Program Participant is determined to be a
responsible contractor with respect to performance of
such contract opportunity;
(ii) the award of such contract would be consistent
with the Program Participant's business plan; and
(iii) the award of the contract would not result in
the Program Participant exceeding the requirements
established by section 7(j)(10)(I).
(B) To the maximum extent practicable, the Administration
shall promote the equitable geographic distribution of sole
source contracts awarded pursuant to this subsection.
(17)(A) An otherwise responsible business concern that is in
compliance with the requirements of subparagraph (B) shall not
be denied the opportunity to submit and have considered its
offer for any procurement contract, which contract has as its
principal purpose the supply of a product to be let pursuant to
this subsection, subsection (m), section 15(a), section 31, or
section 36, solely because such concern is other than the
actual manufacturer or processor of the product to be supplied
under the contract.
(B) To be in compliance with the requirements referred to in
subparagraph (A), such a business concern shall--
(i) be primarily engaged in the wholesale or retail
trade;
(ii) be a small business concern under the numerical
size standard for the Standard Industrial
Classification Code assigned to the contract
solicitation on which the offer is being made;
(iii) be a regular dealer, as defined pursuant to
section 35(a) of title 41, United States Code
(popularly referred to as the Walsh-Healey Public
Contracts Act), in the product to be offered the
Government or be specifically exempted from such
section by section 7(j)(13)(C); and
(iv) represent that it will supply the product of a
domestic small business manufacturer or processor,
unless a waiver of such requirement is granted--
(I) by the Administrator, after reviewing a
determination by the contracting officer that
no small business manufacturer or processor can
reasonably be expected to offer a product
meeting the specifications (including period
for performance) required of an offeror by the
solicitation; or
(II) by the Administrator for a product (or
class of products), after determining that no
small business manufacturer or processor is
available to participate in the Federal
procurement market.
(C) Limitation.--This paragraph shall not apply to a
contract that has as its principal purpose the
acquisition of services or construction.
(18)(A) No person within the employ of the Administration
shall, during the term of such employment and for a period of
two years after such employment has been terminated, engage in
any activity or transaction specified in subparagraph (B) with
respect to any Program Participant during such person's term of
employment, if such person participated personally (either
directly or indirectly) in decision-making responsibilities
relating to such Program Participant or with respect to the
administration of any assistance provided to Program
Participants generally under this subsection, section 7(j)(10),
or section 7(a)(20).
(B) The activities and transactions prohibited by
subparagraph (A) include--
(i) the buying, selling, or receiving (except by
inheritance) of any legal or beneficial ownership of
stock or any other ownership interest or the right to
acquire any such interest;
(ii) the entering into or execution of any written or
oral agreement (whether or not legally enforceable) to
purchase or otherwise obtain any right or interest
described in clause (i); or
(iii) the receipt of any other benefit or right that
may be an incident of ownership.
(C)(i) The employees designated in clause (ii) shall annually
submit a written certification to the Administration regarding
compliance with the requirements of this paragraph.
(ii) The employees referred to in clause (i) are--
(I) regional administrators;
(II) district directors;
(III) the Associate Administrator for Minority Small
Business and Capital Ownership Development;
(IV) employees whose principal duties relate to the
award of contracts or the provision of other assistance
pursuant to this subsection or section 7(j)(10); and
(V) such other employees as the Administrator may
deem appropriate.
(iii) Any present or former employee of the Administration
who violates this paragraph shall be subject to a civil
penalty, assessed by the Attorney General, that shall not
exceed 300 per centum of the maximum amount of gain such
employee realized or could have realized as a result of
engaging in those activities and transactions prescribed by
subparagraph (B).
(iv) In addition to any other remedy or sanction provided for
under law or regulation, any person who falsely certifies
pursuant to clause (i) shall be subject to a civil penalty
under the Program Fraud Civil Remedies Act of 1986 (31 U.S.C.
3801-3812).
(19)(A) Any employee of the Administration who has authority
to take, direct others to take, recommend, or approve any
action with respect to any program or activity conducted
pursuant to this subsection or section 7(j), shall not, with
respect to any such action, exercise or threaten to exercise
such authority on the basis of the political activity or
affiliation of any party. Employees of the Administration shall
expeditiously report to the Inspector General of the
Administration any such action for which such employee's
participation has been solicitated or directed.
(B) Any employee who willfully and knowingly violates
subparagraph (A) shall be subject to disciplinary action, which
may consist of separation from service, reduction in grade,
suspension, or reprimand.
(C) Subparagraph (A) shall not apply to any action taken as a
penalty or other enforcement of a violation of any law, rule,
or regulation prohibiting or restricting political activity.
(D) The prohibitions of subparagraph (A), and remedial
measures provided for under subparagraphs (B) and (C) with
regard to such prohibitions, shall be in addition to, and not
in lieu of, any other prohibitions, measures or liabilities
that may arise under any other provision of law.
(20)(A) Small business concerns participating in the Program
under section 7(j)(10) and eligible to receive contracts
pursuant to this section shall semiannually report to their
assigned Business Opportunity Specialist the following:
(i) A listing of any agents, representatives,
attorneys, accountants, consultants, and other parties
(other than employees) receiving compensation to assist
in obtaining a Federal contract for such Program
Participant.
(ii) The amount of compensation received by any
person listed under clause (i) during the relevant
reporting period and a description of the activities
performed in return for such compensation.
(B) The Business Opportunity Specialist shall promptly review
and forward such report to the Associate Administrator for
Minority Small Business and Capital Ownership Development. Any
report that raises a suspicion of improper activity shall be
reported immediately to the Inspector General of the
Administration.
(C) The failure to submit a report pursuant to the
requirements of this subsection and applicable regulations
shall be considered ``good cause'' for the initiation of a
termination proceeding pursuant to section 7(j)(10)(F).
(21)(A) Subject to the provisions of subparagraph (B), a
contract [(including options)] awarded pursuant to this
subsection shall be performed by the concern that initially
received such contract. Notwithstanding the provisions of the
preceding sentence, if the owner or owners upon whom
eligibility was based relinquish ownership or control of such
concern, or enter into any agreement to relinquish such
ownership or control, such contract or option shall be
terminated for the convenience of the Government, except that
no repurchase costs or other damages may be assessed against
such concerns due solely to the provisions of this
subparagraph.
(B) The Administrator may, on a nondelegable basis, waive the
requirements of subparagraph (A) only if one of the following
conditions exist:
(i) When it is necessary for the owners of the
concern to surrender partial control of such concern on
a temporary basis in order to obtain equity financing.
(ii) The head of the contracting agency for which the
contract is being performed certifies that termination
of the contract would severely impair attainment of the
agency's program objectives or missions;
(iii) Ownership and control of the concern that is
performing the contract will pass to another small
business concern that is a program participant, but
only if the acquiring firm would otherwise be eligible
to receive the award directly pursuant to subsection
(a);
(iv) The individuals upon whom eligibility was based
are no longer able to exercise control of the concern
due to incapacity or death; or
(v) When, in order to raise equity capital, it is
necessary for the disadvantaged owners of the concern
to relinquish ownership of a majority of the voting
stock of such concern, but only if--
(I) such concern has exited the Capital
Ownership Development Program;
(II) the disadvantaged owners will maintain
ownership of the largest single outstanding
block of voting stock (including stock held by
affiliated parties); and
(III) the disadvantaged owners will maintain
control of daily business operations.
(C) The Administrator may waive the requirements of
subparagraph (A) if--
(i) in the case of subparagraph (B) (i), (ii)
and (iv), he is requested to do so prior to the
actual relinquishment of ownership or control;
and
(ii) in the case of subparagraph (B)(iii), he
is requested to do so as soon as possible after
the incapacity or death occurs.
(D) Concerns performing contracts awarded pursuant to this
subsection shall be required to notify the Administration
immediately upon entering an agreement (either oral or in
writing) to transfer all or part of its stock or other
ownership interest to any other party.
(E) Notwithstanding any other provision of law, for the
purposes of determining ownership and control of a concern
under this section, any potential ownership interests held by
investment companies licensed under the Small Business
Investment Act of 1958 shall be treated in the same manner as
interests held by the individuals upon whom eligibility is
based.
(b) It shall also be the duty of the Administration and it is
hereby empowered, whenever it determines such action is
necessary--
(1)(A) to provide--
(i) technical, managerial, and informational
aids to small business concerns--
(I) by advising and counseling on
matters in connection with Government
procurement and policies, principles,
and practices of good management;
(II) by cooperating and advising
with--
(aa) voluntary business,
professional, educational, and
other nonprofit organizations,
associations, and institutions
(except that the Administration
shall take such actions as it
determines necessary to ensure
that such cooperation does not
constitute or imply an
endorsement by the
Administration of the
organization or its products or
services, and shall ensure that
it receives appropriate
recognition in all printed
materials); and
(bb) other Federal and State
agencies;
(III) by maintaining a clearinghouse
for information on managing, financing,
and operating small business
enterprises; and
(IV) by disseminating such
information, including through
recognition events, and by other
activities that the Administration
determines to be appropriate; and
(ii) through cooperation with a profit-making
concern (referred to in this paragraph as a
``cosponsor''), training, information, and
education to small business concerns, except
that the Administration shall--
(I) take such actions as it
determines to be appropriate to ensure
that--
(aa) the Administration
receives appropriate
recognition and publicity;
(bb) the cooperation does not
constitute or imply an
endorsement by the
Administration of any product
or service of the cosponsor;
(cc) unnecessary promotion of
the products or services of the
cosponsor is avoided; and
(dd) utilization of any one
cosponsor in a marketing area
is minimized; and
(II) develop an agreement, executed
on behalf of the Administration by an
employee of the Administration in
Washington, the District of Columbia,
that provides, at a minimum, that--
(aa) any printed material to
announce the cosponsorship or
to be distributed at the
cosponsored activity, shall be
approved in advance by the
Administration;
(bb) the terms and conditions
of the cooperation shall be
specified;
(cc) only minimal charges may
be imposed on any small
business concern to cover the
direct costs of providing the
assistance;
(dd) the Administration may
provide to the cosponsorship
mailing labels, but not lists
of names and addresses of small
business concerns compiled by
the Administration;
(ee) all printed materials
containing the names of both
the Administration and the
cosponsor shall include a
prominent disclaimer that the
cooperation does not constitute
or imply an endorsement by the
Administration of any product
or service of the cosponsor;
and
(ff) the Administration shall
ensure that it receives
appropriate recognition in all
cosponsorship printed
materials.
(B) To establish, conduct, and publicize, and to
recruit, select, and train volunteers for (and to enter
into contracts, grants, or cooperative agreements
therefor), volunteer programs, including a Service
Corps of Retired Executives (SCORE) and an Active Corps
of Executive (ACE) for the purposes of section
8(b)(1)(A) of this Act. To facilitate the
implementation of such volunteer programs the
Administration shall maintain at its headquarters and
pay the salaries, benefits, and expenses of a volunteer
and professional staff to manage and oversee the
program. Any such payments made pursuant to this
subparagraph shall be effective only to such extent or
in such amounts as are provided in advance in
appropriation Acts. Notwithstanding any other provision
of law, SCORE may solicit cash and in-kind
contributions from the private sector to be used to
carry out its functions under this Act, and may use
payments made by the Administration pursuant to this
subparagraph for such solicitation and the management
of the contributions received.
(C) To allow any individual or group of persons
participating with it in furtherance of the purposes of
subparagraphs (A) and (B) to use the Administration's
office facilities and related material and services as
the Administration deems appropriate, including
clerical and stenographic service:
(i) such volunteers, while carrying out
activities under section 8(b)(1) of this Act
shall be deemed Federal employees for the
purposes of the Federal tort claims provisions
in title 28, United States Code; and for the
purposes of subchapter I of chapter 81 of title
5, United States Code (relative to compensation
to Federal employees for work injuries) shall
be deemed civil employees of the United States
within the meaning of the term ``employee'' as
defined in section 8101 of title 5, United
States Code, and the provisions of that
subchapter shall apply except that in computing
compensation benefits for disability or death,
the monthly pay of a volunteer shall be deemed
that received under the entrance salary for a
grade GS-11 employee:
(ii) the Administrator is authorized to
reimburse such volunteers for all necessary
out-of-pocket expenses incident to their
provision of services under this Act, or in
connection with attendance at meetings
sponsored by the Administration, or for the
cost of malpractice insurance, as the
Administrator shall determine, in accordance
with regulations which he or she shall
prescribe, and, while they are carrying out
such activities away from their homes or
regular places of business, for travel expenses
(including per diem in lieu of subsistence) as
authorized by section 5703 of title 5, United
States Code, for individuals serving without
pay; and
(iii) such volunteers shall in no way provide
services to a client of such Administration
with a delinquent loan outstanding, except upon
a specific request signed by such client for
assistance in connection with such matter.
(D) Notwithstanding any other provision of law, no
payment for supportive services or reimbursement of
out-of-pocket expenses made to persons serving pursuant
to section 8(b)(1) of this Act shall be subject to any
tax or charge or be treated as wages or compensation
for the purposes of unemployment, disability,
retirement, public assistance, or similar benefit
payments, or minimum wage laws.
(E) In carrying out its functions under subparagraph
(A), to make grants (including contracts and
cooperative agreements) to any public or private
institution of higher education for the establishment
and operation of a small business institute, which
shall be used to provide business counseling and
assistance to small business concerns through the
activities of students enrolled at the institution,
which students shall be entitled to receive educational
credits for their activities.
(F) Notwithstanding any other provision of law and
pursuant to regulations which the Administrator shall
provide, counsel may be employed and counsel fees,
court costs, bail, and other expenses incidental to the
defense of volunteers may be paid in judicial or
Administrative proceedings arising directly out of the
performance of activities pursuant to section 8(b)(1)
of this Act, as amended (15 U.S.C. 637(b)(1)) to which
volunteers have been made parties.
(G) In carrying out its functions under this Act and
to carry out the activities authorized by title IV of
the Women's Business Ownership Act of 1988, the
Administration is authorized to accept, in the name of
the Administration, and employ or dispose of in
furtherance of the purposes of this Act, any money or
property, real, personal, or mixed, tangible, or
intangible, received by gift, devise, bequest, or
otherwise; and, further, to accept gratuitous services
and facilities.
(2) to make a complete inventory of all productive
facilities of small-business concerns or to arrange for
such inventory to be made by any other governmental
agency which has the facilities. In making any such
inventory, the appropriate agencies in the several
States may be requested to furnish an inventory of the
productive facilities of small-business concerns in
each respective State if such an inventory is available
or in prospect;
(3) to coordinate and to ascertain the means by which
the productive capacity of small-business concerns can
be most effectively utilized;
(4) to consult and cooperative with officers of the
Government having procurement or property disposal
powers, in order to utilize the potential productive
capacity of plants operated by small-business concerns;
(5) to obtain information as to methods and practices
which Government prime contractors utilize in letting
subcontracts and to take action to encourage the
letting of subcontracts by prime contractors to small-
business concerns at prices and on conditions and terms
which are fair and equitable;
(6) to determine within any industry the concerns,
firms, persons, corporations, partnerships,
cooperatives, or other business enterprises which are
to be designated ``small-business concerns'' for the
purpose of effectuating the provisions of this Act. To
carry out this purpose the Administrator, when
requested to do so, shall issue in response to each
such request an appropriate certificate certifying an
individual concern as a ``small-business concern'' in
accordance with the criteria expressed in this Act. Any
such certificate shall be subject to revocation when
the concern covered thereby ceases to be a ``small-
business concern.'' Offices of the Government having
procurement or lending powers, or engaging in the
disposal of Federal property or allocating materials or
supplies, or promulgating regulations affecting the
distribution of materials or supplies, shall accept as
conclusive the Administration's determination as to
which enterprises are to be designated ``small-business
concerns'', as authorized and directed under this
paragraph;
(7)(A) to certify to Government procurement officers,
and officers engaged in the sale and disposal of
Federal property, with respect to all elements of
responsibility, including, but not limited to,
capability, competency, capacity, credit, integrity,
perseverance, and tenacity, of any small business
concern or group of such concerns to receive and
perform a specific Government contract. A Government
procurement officer or an officer engaged in the sale
and disposal of Federal property may not, for any
reason specified in the preceding sentence, preclude
any small business concern or group of such concerns
from being awarded such contract without referring the
matter for a final disposition to the Administration.
(B) if a Government procurement officer finds that an
otherwise qualified small business concern may be
ineligible due to the provisions of section 35(a) of
title 41, United States Code (the Walsh-Healey Public
Contracts Act), he shall notify the Administration in
writing of such finding. The Administration shall
review such finding and shall either dismiss it and
certify the small business concern to be an eligible
Government contractor for a specific Government
contract or if it concurs in the finding, forward the
matter to the Secretary of Labor for final disposition,
in which case the Administration may certify the small
business concern only if the Secretary of Labor finds
the small business concern not to be in violation.
(C) in any case in which a small business concern or
group of such concerns has been certified by the
Administration pursuant to (A) or (B) to be a
responsible or eligible Government contractor as to a
specific Government contract, the officers of the
Government having procurement or property disposal
powers are directed to accept such certification as
conclusive, and shall let such Government contract to
such concern or group of concerns without requiring it
to meet any other requirement of responsibility or
eligibility. Notwithstanding the first sentence of this
subparagraph, the Administration may not establish an
exemption from referral or notification or refuse to
accept a referral or notification from a Government
procurement officer made pursuant to subparagraph (A)
or (B) of this paragraph, but nothing in this paragraph
shall require the processing of an application for
certification if the small business concern to which
the referral pertains declines to have the application
processed.
(8) to obtain from any Federal department,
establishment, or agency engaged in procurement or in
the financing of procurement or production such reports
concerning the letting of contracts and subcontracts
and the making of loans to business concerns as it may
deem pertinent in carrying out its functions under this
Act;
(9) to obtain from any Federal department,
establishment, or agency engaged in the disposal of
Federal property such reports concerning the
solicitation of bids, time of sale, or otherwise as it
may deem pertinent in carrying out its functions under
this Act;
(10) to obtain from suppliers of materials
information pertaining to the method of filling orders
and the bases for allocating their supply, whenever it
appears that any small business is unable to obtain
materials from its normal sources;
(11) to make studies and recommendations to the
appropriate Federal agencies to insure that a fair
proportion of the total purchases and contracts for
property and services for the Government be placed with
small-business enterprises, to insure that a fair
proportion of Government contacts for research and
development be placed with small-business concerns, to
insure that a fair proportion of the total sales of
Government property be made to small-business concerns,
and to insure a fair and equitable share of materials,
supplies, and equipment to small-business concerns;
(12) to consult and cooperate with all Government
agencies for the purpose of insuring that small-
business concerns shall receive fair and reasonable
treatment from such agencies;
(13) to establish such advisory boards and committees
as may be necessary to achieve the purposes of this Act
and of the Small Business Investment Act of 1958; to
call meetings of such boards and committees from time
to time; to pay the transportation expenses and a per
diem allowance in accordance with section 5703 of title
5, United States Code, to the members of such boards
and committees for travel and subsistence expenses
incurred at the request of the Administration in
connection with travel to points more than fifty miles
distant from the homes of such members in attending the
meetings of such boards and committees; and to rent
temporarily, within the District of Columbia or
elsewhere, such hotel or other accommodations as are
needed to facilitate the conduct of such meetings;
(14) to provide at the earliest practicable time such
information and assistance as may be appropriate,
including information concerning eligibility for loans
under section 7(b)(3), to local public agencies (as
defined in section 110(h) of the Housing Act of 1949)
and to small-business concerns to be displaced by
federally aided urban renewal projects in order to
assist such small-business concerns in reestablishing
their operations;
(15) to disseminate, without regard to the provisions
of section 3204 of title 39, United States Code, data
and information, in such form as it shall deem
appropriate, to public agencies, private organizations,
and the general public;
(16) to make studies of matters materially affecting
the competitive strength of small business, and of the
effect on small business of Federal laws, programs, and
regulations, and to make recommendations to the
appropriate Federal agency or agencies for the
adjustment of such programs and regulations to the
needs of small business; and
(17) to make grants to, and enter into contracts and
cooperative agreements with, educational institutions,
private businesses, veterans' nonprofit community-based
organizations, and Federal, State, and local
departments and agencies for the establishment and
implementation of outreach programs for disabled
veterans (as defined in section 4211(3) of title 38,
United States Code), veterans, and members of a reserve
component of the Armed Forces.
(c) [Reserved.]
(d)(1) It is the policy of the United States that small
business concerns, small business concerns owned and controlled
by veterans, small business concerns owned and controlled by
service-disabled veterans, qualified HUBZone small business
concerns, small business concerns owned and controlled by
socially and economically disadvantaged individuals, and small
business concerns owned and controlled by women, shall have the
maximum practicable opportunity to participate in the
performance of contracts let by any Federal agency, including
contracts and subcontracts for subsystems, assemblies,
components, and related services for major systems. It is
further the policy of the United States that its prime
contractors establish procedures to ensure the timely payment
of amounts due pursuant to the terms of their subcontracts with
small business concerns, small business concerns owned and
controlled by veterans, small business concerns owned and
controlled by service-disabled veterans, qualified HUBZone
small business concerns, small business concerns owned and
controlled by socially and economically disadvantaged
individuals, and small business concerns owned and controlled
by women.
(2) The clause stated in paragraph (3) shall be included in
all contracts let by any Federal agency except any contract
which--
(A) does not exceed the simplified acquisition
threshold;
(B) including all subcontracts under such contracts
will be performed entirely outside of any State,
territory, or possession of the United States, the
District of Columbia, or the Commonwealth of Puerto
Rico; or
(C) is for services which are personal in nature.
(3) The clause required by paragraph (2) shall be as follows:
(A) It is the policy of the United States that small
business concerns, small business concerns owned and
controlled by veterans, small business concerns owned
and controlled by service-disabled veterans, qualified
HUBZone small business concerns, small business
concerns owned and controlled by socially and
economically disadvantaged individuals, and small
business concerns owned and controlled by women shall
have the maximum practicable opportunity to participate
in the performance of contracts let by any Federal
agency, including contracts and subcontracts for
subsystems, assemblies, components, and related
services for major systems. It is further the policy of
the United States that its prime contractors establish
procedures to ensure the timely payment of amounts due
pursuant to the terms of their subcontracts with small
business concerns, small business concerns owned and
controlled by veterans, small business concerns owned
and controlled by service-disabled veterans, qualified
HUBZone small business concerns, small business
concerns owned and controlled by socially and
economically disadvantaged individuals, and small
business concerns owned and controlled by women.
(B) The contractor hereby agrees to carry out this
policy in the awarding of subcontracts to the fullest
extent consistent with the efficient performance of
this contract. The contractor further agrees to
cooperate in any studies or surveys as may be conducted
by the United States Small Business Administration or
the awarding agency of the United States as may be
necessary to determine the extent of the contractor's
compliance with this clause.
(C) As used in this contract, the term ``small
business concern'' shall mean a small business as
defined pursuant to section 3 of the Small Business Act
and relevant regulations promulgated pursuant thereto.
The term ``small business concern owned and controlled
by socially and economically disadvantaged
individuals'' shall mean a small business concern--
(i) which is at least 51 per centum owned by
one or more socially and economically
disadvantaged individuals; or, in the case of
any publicly owned business, at least 51 per
centum of the stock of which is owned by one or
more socially and economically disadvantaged
individuals; and
(ii) whose management and daily business
operations are controlled by one or more of
such individuals.
The contractor shall presume that socially and
economically disadvantaged individuals include Black
Americans, Hispanic Americans, Native Americans, Asian
Pacific Americans, and other minorities, or any other
individual found to be disadvantaged by the
Administration pursuant to section 8(a) of the Small
Business Act.
(D) The term ``small business concern owned and
controlled by women'' shall mean a small business
concern--
(i) which is at least 51 per centum owned by
one or more women; or, in the case of any
publicly owned business, at least 51 per centum
of the stock of which is owned by one or more
women; and
(ii) whose management and daily business
operations are controlled by one or more women.
(E) The term ``small business concern owned and
controlled by veterans'' shall mean a small business
concern--
(i) which is at least 51 per centum owned by
one or more eligible veterans; or, in the case
of any publicly owned business, at least 51 per
centum of the stock of which is owned by one or
more veterans; and
(ii) whose management and daily business
operations are controlled by such veterans. The
contractor shall treat as veterans all
individuals who are veterans within the meaning
of the term under section 3(q) of the Small
Business Act.
(F) Contractors acting in good faith may rely on
written representations by their subcontractors
regarding their status as either a small business
concern, small business concern owned and controlled by
veterans, small business concern owned and controlled
by service-disabled veterans, a small business concern
owned and controlled by socially and economically
disadvantaged individuals, or a small business concern
owned and controlled by women.
(G) In this contract, the term ``qualified HUBZone
small business concern'' has the meaning given that
term in section 3(p) of the Small Business Act.
(4)(A) Each solicitation of an offer for a contract to be let
by a Federal agency which is to be awarded pursuant to the
negotiated method of procurement and which may exceed
$1,000,000, in the case of a contract for the construction of
any public facility, or $500,000, in the case of all other
contracts, shall contain a clause notifying potential offering
companies of the provisions of this subsection relating to
contracts awarded pursuant to the negotiated method of
procurement.
(B) Before the award of any contract to be let, or any
amendment or modification to any contract let, by any Federal
agency which--
(i) is to be awarded, or was let, pursuant to the
negotiated method of procurement,
(ii) is required to include the clause stated in
paragraph (3),
(iii) may exceed $1,000,000 in the case of a contract
for the construction of any public facility, or
$500,000 in the case of all other contracts, and
(iv) which offers subcontracting possibilities,
the apparent successful offeror shall negotiate with the
procurement authority a subcontracting plan which incorporates
the information prescribed in paragraph (6). The subcontracting
plan shall be included in and made a material part of the
contract.
(C) If, within the time limit prescribed in regulations of
the Federal agency concerned, the apparent successful offeror
fails to negotiate the subcontracting plan required by this
paragraph, such offeror shall become ineligible to be awarded
the contract. Prior compliance of the offeror with other such
subcontracting plans shall be considered by the Federal agency
in determining the responsibility of that offeror for the award
of the contract.
(D) No contract shall be awarded to any offeror unless the
procurement authority determines that the plan to be negotiated
by the offeror pursuant to this paragraph provides the maximum
practicable opportunity for small business concerns, qualified
HUBZone small business concerns, small business concerns owned
and controlled by veterans, small business concerns owned and
controlled by service-disabled veterans, small business
concerns owned and controlled by socially and economically
disadvantaged individuals, and small business concerns owned
and controlled by women to participate in the performance of
the contract.
(E) Notwithstanding any other provisions of law, every
Federal agency, in order to encourage subcontracting
opportunities for small business concerns, small business
concerns owned and controlled by veterans, small business
concerns owned and controlled by service-disabled veterans,
qualified HUBZone small business concerns, and small business
concerns owned and controlled by the socially and economically
disadvantaged individuals as defined in paragraph (3) of this
subsection and for small business concerns owned and controlled
by women, is hereby authorized to provide such incentives as
such Federal agency may deem appropriate in order to encourage
such subcontracting opportunities as may be commensurate with
the efficient and economical performance of the contact:
Provided, That, this subparagraph shall apply only to contracts
let pursuant to the negotiated method of procurement.
(F)(i) Each contract subject to the requirements of this
paragraph or paragraph (5) shall contain a clause for the
payment of liquidated damages upon a finding that a prime
contractor has failed to make a good faith effort to comply
with the requirements imposed on such contractor by this
subsection.
(ii) The contractor shall be afforded an opportunity to
demonstrate a good faith effort regarding compliance prior to
the contracting officer's final decision regarding the
impositon of damages and the amount thereof. The final decision
of a contracting officer regarding the contractor's obligation
to pay such damages, or the amounts thereof, shall be subject
to the Contract Disputes Act of 1978 (41 U.S.C. 601-613).
(iii) Each agency shall ensure that the goals offered by the
apparent successful bidder or offeror are attainable in
relation to--
(I) the subcontracting opportunities available to the
contractor, commensurate with the efficient and
economical performance of the contract;
(II) the pool of eligible subcontractors available to
fulfill the subcontracting opportunities; and
(III) the actual performance of such contractor in
fulfilling the subcontracting goals specified in prior
plans.
(G) The following factors shall be designated by the
Federal agency as significant factors for purposes of
evaluating offers for a bundled contract where the head
of the agency determines that the contract offers a
significant opportunity for subcontracting:
(i) A factor that is based on the rate
provided under the subcontracting plan for
small business participation in the performance
of the contract.
(ii) For the evaluation of past performance
of an offeror, a factor that is based on the
extent to which the offeror attained applicable
goals for small business participation in the
performance of contracts.
(5)(A) Each solicitation of a bid for any contract to be let,
or any amendment or modification to any contract let, by any
Federal agency which--
(i) is to be awarded pursuant to the formal
advertising method of procurement,
(ii) is required to contain the clause stated in
paragraph (3) of this subsection,
(iii) may exceed $1,000,000 in the case of a contract
for the construction of any public facility, or
$500,000, in the case of all other contracts, and
(iv) offers subcontracting possibilities,
shall contain a clause requiring any bidder who is selected to
be awarded a contract to submit to the Federal agency concerned
a subcontracting plan which incorporates the information
prescribed in paragraph (6).
(B) If, within the time limit prescribed in regulations of
the Federal agency concerned, the bidder selected to be awarded
the contract fails to submit the subcontracting plan required
by this paragraph, such bidder shall become ineligible to be
awarded the contract. Prior compliance of the bidder with other
such subcontracting plans shall be considered by the Federal
agency in determining the responsibility of such bidder for the
award of the contract. The subcontracting plan of the bidder
awarded the contract shall be included in and made a material
part of the contract.
(6) Each subcontracting plan required under paragraph (4) or
(5) shall include--
(A) percentage goals for the utilization as
subcontractors of small business concerns, small
business concerns owned and controlled by veterans,
small business concerns owned and controlled by
service-disabled veterans, qualified HUBZone small
business concerns, small business concerns owned and
controlled by socially and economically disadvantaged
individuals, and small business concerns owned and
controlled by women;
(B) the name of an individual within the employ of
the offeror or bidder who will administer the
subcontracting program of the offeror or bidder and a
description of the duties of such individual;
(C) a description of the efforts the offeror or
bidder will take to assure that small business
concerns, small business concerns owned and controlled
by veterans, small business concerns owned and
controlled by service-disabled veterans, qualified
HUBZone small business concerns, small business
concerns owned and controlled by socially and
economically disadvantaged individuals, and small
business concerns owned and controlled by women will
have an equitable opportunity to compete for
subcontracts;
(D) assurances that the offeror or bidder will
include the clause required by paragraph (2) of this
subsection in all subcontracts which offer further
subcontracting opportunities, and that the offeror or
bidder will require all subcontractors (except small
business concerns) who receive subcontracts in excess
of $1,000,000 in the case of a contract for the
construction of any public facility, or in excess of
$500,000 in the case of all other contracts, to adopt a
plan similar to the plan required under paragraph (4)
or (5), and assurances at a minimum that the offeror or
bidder, and all subcontractors required to maintain
subcontracting plans pursuant to this paragraph, will--
(i) review and approve subcontracting plans
submitted by their subcontractors;
(ii) monitor subcontractor compliance with
their approved subcontracting plans;
(iii) ensure that subcontracting reports are
submitted by their subcontractors when
required;
(iv) acknowledge receipt of their
subcontractors' reports;
(v) compare the performance of their
subcontractors to subcontracting plans and
goals; and
(vi) discuss performance with subcontractors
when necessary to ensure their subcontractors
make a good faith effort to comply with their
subcontracting plans;
(E) assurances that the offeror or bidder will submit
such periodic reports and cooperate in any studies or
surveys as may be required by the Federal agency or the
Administration in order to determine the extent of
compliance by the offeror or bidder with the
subcontracting plan;
(F) a recitation of the types of records the
successful offeror or bidder will maintain to
demonstrate procedures which have been adopted to
comply with the requirements and goals set forth in
this plan, including the establishment of source lists
of small business concerns, small business concerns
owned and controlled by veterans, small business
concerns owned and controlled by service-disabled
veterans, qualified HUBZone small business concerns,
small business concerns owned and controlled by
socially and economically disadvantaged individuals,
and small business concerns owned and controlled by
women; and efforts to identify and award subcontracts
to such small business concerns;
(G) a recitation of the types of records the
successful offeror or bidder will maintain to
demonstrate procedures which have been adopted to
ensure subcontractors at all tiers comply with the
requirements and goals set forth in the plan
established in accordance with subparagraph (D) of this
paragraph, including--
(i) the establishment of source lists of
small business concerns, small business
concerns owned and controlled by veterans,
small business concerns owned and controlled by
service-disabled veterans, qualified HUBZone
small business concerns, small business
concerns owned and controlled by socially and
economically disadvantaged individuals, and
small business concerns owned and controlled by
women; and
(ii) efforts to identify and award
subcontracts to such small business concerns;
and
(H) a representation that the offeror or bidder
will--
(i) make a good faith effort to acquire
articles, equipment, supplies, services, or
materials, or obtain the performance of
construction work from the small business
concerns used in preparing and submitting to
the contracting agency the bid or proposal, in
the same amount and quality used in preparing
and submitting the bid or proposal; and
(ii) provide to the contracting officer a
written explanation if the offeror or bidder
fails to acquire articles, equipment, supplies,
services, or materials or obtain the
performance of construction work as described
in clause (i).
(7) The head of the contracting agency shall ensure
that--
(A) the agency collects and reports data on
the extent to which contractors of the agency
meet the goals and objectives set forth in
subcontracting plans submitted pursuant to this
subsection; and
(B) the agency periodically reviews data
collected and reported pursuant to subparagraph
(A) for the purpose of ensuring that such
contractors comply in good faith with the
requirements of this subsection and
subcontracting plans submitted by the
contractors pursuant to this subsection.
(8) The provisions of paragraphs (4), (5), and (6) shall not
apply to offerors or bidders who are small business concerns.
(9) Material breach.--The failure of any contractor
or subcontractor to comply in good faith with--
(A) the clause contained in paragraph (3) of
this subsection,
(B) any plan required of such contractor
pursuant to the authority of this subsection to
be included in its contract or subcontract, or
(C) assurances provided under paragraph
(6)(E),
shall be a material breach of such contract or
subcontract and may be considered in any past
performance evaluation of the contractor.
(10) Nothing contained in this subsection shall be construed
to supersede the requirements of Defense Manpower Policy Number
4A (32A CFR Chap. 1) or any successor policy.
(11) In the case of contracts within the provisions of
paragraphs (4), (5), and (6), the Administration is authorized
to--
(A) assist Federal agencies and businesses in
complying with their responsibilities under the
provisions of this subsection, including the
formulation of subcontracting plans pursuant to
paragraph (4);
(B) review any solicitation for any contract to be
let pursuant to paragraphs (4) and (5) to determine the
maximum practicable opportunity for small business
concerns, small business concerns owned and controlled
by veterans, small business concerns owned and
controlled by service-disabled veterans, qualified
HUBZone small business concerns, small business
concerns owned and controlled by socially and
economically disadvantaged individuals, and small
business concerns owned and controlled by women to
participate as subcontractors in the performance of any
contract resulting from any solicitation, and to submit
its findings, which shall be advisory in nature, to the
appropriate Federal agency; and
(C) evaluate compliance with subcontracting plans as
a supplement to evaluations performed by the
contracting agency, either on a contract-by-contract
basis or, in the case of contractors having multiple
contracts, on an aggregate basis.
(12) For purposes of determining the attainment of a
subcontract utilization goal under any subcontracting plan
entered into with any executive agency pursuant to this
subsection, a mentor firm providing development assistance to a
protege firm under the pilot Mentor-Protege Program established
pursuant to section 831 of the National Defense Authorization
Act for Fiscal Year 1991 (Public Law 101-510; 10 U.S.C. 2301
note) shall be granted credit for such assistance in accordance
with subsection (g) of such section.
(13) Payment of Subcontractors.--
(A) Definition.--In this paragraph, the term
``covered contract'' means a contract relating to which
a prime contractor is required to develop a
subcontracting plan under paragraph (4) or (5).
(B) Notice.--
(i) In general.--A prime contractor for a
covered contract shall notify in writing the
contracting officer for the covered contract if
the prime contractor pays a reduced price to a
subcontractor for goods and services upon
completion of the responsibilities of the
subcontractor or the payment to a subcontractor
is more than 90 days past due for goods or
services provided for the covered contract for
which the Federal agency has paid the prime
contractor.
(ii) Contents.--A prime contractor shall
include the reason for the reduction in a
payment to or failure to pay a subcontractor in
any notice made under clause (i).
(C) Performance.--A contracting officer for a covered
contract shall consider the unjustified failure by a
prime contractor to make a full or timely payment to a
subcontractor in evaluating the performance of the
prime contractor.
(D) Control of funds.--If the contracting officer for
a covered contract determines that a prime contractor
has a history of unjustified, untimely payments to
contractors, the contracting officer shall record the
identity of the contractor in accordance with the
regulations promulgated under subparagraph (E).
(E) Regulations.--Not later than 1 year after the
date of enactment of this paragraph, the Federal
Acquisition Regulatory Council established under
section 25(a) of the Office of Federal Procurement
Policy Act (41 U.S.C. 421(a)) shall amend the Federal
Acquisition Regulation issued under section 25 of such
Act to--
(i) describe the circumstances under which a
contractor may be determined to have a history
of unjustified, untimely payments to
subcontractors;
(ii) establish a process for contracting
officers to record the identity of a contractor
described in clause (i); and
(iii) require the identity of a contractor
described in clause (i) to be incorporated in,
and made publicly available through, the
Federal Awardee Performance and Integrity
Information System, or any successor thereto.
(14) An offeror for a covered contract that intends
to identify a small business concern as a potential
subcontractor in a bid or proposal for the contract, or
in a plan submitted pursuant to this subsection in
connection with the contract, shall notify the small
business concern prior to making such identification.
(15) The Administrator shall establish a reporting
mechanism that allows a subcontractor or potential
subcontractor to report fraudulent activity or bad
faith by a contractor with respect to a subcontracting
plan submitted pursuant to this subsection.
(16) Credit for Certain Subcontractors.--
(A) For purposes of determining whether or not a
prime contractor has attained the percentage goals
specified in paragraph (6)--
(i) if the subcontracting goals pertain only
to a single contract with the executive agency,
the prime contractor shall receive credit for
small business concerns performing as first
tier subcontractors or subcontractors at any
tier pursuant to the subcontracting plans
required under paragraph (6)(D) in an amount
equal to the dollar value of work awarded to
such small business concerns; and
(ii) if the subcontracting goals pertain to
more than one contract with one or more
executive agencies, or to one contract with
more than one executive agency, the prime
contractor may only count first tier
subcontractors that are small business
concerns.
(B) Nothing in this paragraph shall abrogate the
responsibility of a prime contractor to make a good-
faith effort to achieve the first tier small business
subcontracting goals negotiated under paragraph (6)(A),
or the requirement for subcontractors with further
opportunities for subcontracting to make a good-faith
effort to achieve the goals established under paragraph
(6)(D).
(17) Pilot program providing past performance ratings
for other small business subcontractors.--
(A) Establishment.--The Administrator shall establish
a pilot program for a small business concern without a
past performance rating as a prime contractor
performing as a first tier subcontractor for a covered
contract (as defined in paragraph (13)(A)) to request a
past performance rating in the system used by the
Federal Government to monitor or record contractor past
performance.
(B) Application.--A small business concern described
in subparagraph (A) shall submit an application to the
appropriate official for a past performance rating no
later than 270 days after the small business concern
completed the work for which it seeks a past
performance rating or 180 days after the prime
contractor completes work on the covered contract,
whichever is earlier. Such application shall include
written evidence of the past performance factors for
which the small business concern seeks a rating and a
suggested rating.
(C) Determination.--The appropriate official shall
submit the application from the small business concern
to the Office of Small and Disadvantaged Business
Utilization for the covered contract and to the prime
contractor for review. The Office of Small and
Disadvantaged Business Utilization and the prime
contractor shall, not later than 30 days after receipt
of the application, submit to the appropriate official
a response regarding the application.
(i) Agreement on rating.--If the Office of
Small and Disadvantaged Business Utilization
and the prime contractor agree on a past
performance rating, or if either the Office of
Small and Disadvantaged Business Utilization or
the prime contractor fail to respond and the
responding person agrees with the rating of the
applicant small business concern, the
appropriate official shall enter the agreed-
upon past performance rating in the system
described in subparagraph (A).
(ii) Disagreement on rating.--If the Office
of Small and Disadvantaged Business Utilization
and the prime contractor fail to respond within
30 days or if they disagree about the rating,
or if either the Office of Small and
Disadvantaged Business Utilization or the prime
contractor fail to respond and the responding
person disagrees with the rating of the
applicant small business concern, the Office of
Small and Disadvantaged Business Utilization or
the prime contractor shall submit a notice
contesting the application to the appropriate
official. The appropriate official shall follow
the requirements of subparagraph (D).
(D) Procedure for rating.--Not later than 14 calendar
days after receipt of a notice under subparagraph
(C)(ii), the appropriate official shall submit such
notice to the applicant small business concern. Such
concern may submit comments, rebuttals, or additional
information relating to the past performance of such
concern not later 14 calendar days after receipt of
such notice. The appropriate official shall enter into
the system described in subparagraph (A) a rating that
is neither favorable nor unfavorable along with the
initial application from such concern, any responses of
the Office of Small and Disadvantaged Business
Utilization and the prime contractor, and any
additional information provided by such concern. A copy
of the information submitted shall be provided to the
contracting officer (or designee of such officer) for
the covered contract.
(E) Use of information.--A small business
subcontractor may use a past performance rating given
under this paragraph to establish its past performance
for a prime contract.
(F) Duration.--The pilot program established under
this paragraph shall terminate 3 years after the date
on which the first applicant small business concern
receives a past performance rating for performance as a
first tier subcontractor.
(G) Report.--The Comptroller General of the United
States shall begin an assessment of the pilot program 1
year after the establishment of such program. Not later
than 6 months after beginning such assessment, the
Comptroller General shall submit a report to the
Committee on Small Business and Entrepreneurship of the
Senate and the Committee on Small Business of the House
of Representatives, which shall include--
(i) the number of small business concerns
and, set forth separately, the number of small
business exporters, that have received past
performance ratings under the pilot program;
(ii) the number of applications, set forth
separately by applications from small business
concerns and from small business exporters, in
which the contracting officer (or designee) or
the prime contractor contested the application
of the small business concern;
(iii) any suggestions or recommendations the
Comptroller General or the small business
concerns participating in the program have to
address disputes between the small business
concern, the contracting officer (or designee),
and the prime contractor on past performance
ratings;
(iv) the number of small business concerns
awarded prime contracts after receiving a past
performance rating under this pilot program;
and
(v) any suggestions or recommendation the
Comptroller General has to improve the
operation of the pilot program.
(H) Definitions.--In this paragraph--
(i) the term ``appropriate official'' means--
(I) a commercial market
representative;
(II) another individual designated by
the senior official appointed by the
Administrator with responsibilities
under sections 8, 15, 31, and 36; or
(III) the Office of Small and
Disadvantaged Business Utilization of a
Federal agency, if the head of the
Federal agency and the Administrator
agree;
(ii) the term ``defense item'' has the
meaning given that term in section 38(j)(4)(A)
of the Arms Export Control Act (22 U.S.C.
2778(j)(4)(A));
(iii) the term ``major non-NATO ally'' means
a country designated as a major non-NATO ally
under section 517 of the Foreign Assistance Act
of 1961 (22 U.S.C. 2321k);
(iv) the term ``past performance'' includes
performance of a contract for a sale of defense
items (under section 38 of the Arms Export
Control Act (22 U.S.C. 2778)) to the government
of a member nation of North Atlantic Treaty
Organization, the government of a major non-
NATO ally, or the government of a country with
which the United States has a defense
cooperation agreement (as certified by the
Secretary of State); and
(v) the term ``small business exporter''
means a small business concern that exports
defense items under section 38 of the Arms
Export Control Act (22 U.S.C. 2778) to the
government of a member nation of the North
Atlantic Treaty Organization, the government of
a major non-NATO ally, or the government of a
country with which the United States has a
defense cooperation agreement (as certified by
the Secretary of State).
(e)(1) Except as provided in subsection (g)--
(A) an executive agency intending to--
(i) solicit bids or proposals for a contract
for property or services for a price expected
to exceed $25,000; or
(ii) place an order, expected to exceed
$25,000, under a basic agreement, basis
ordering agreement, or similar arrangement,
shall publish a notice described in subsection (f);
(B) an executive agency intending to solicit bids or
proposals for a contract for property or services shall
post, for a period of not less than ten days, in a
public place at the contracting office issuing the
solicitation a notice of solicitation described in
subsection (f)--
(i) in the case of an executive agency other
than the Department of Defense, if the contract
is for a price expected to exceed $10,000, but
not to exceed $25,000; and
(ii) in the case of the Department of
Defense, if the contract is for a price
expected to exceed $5,000, but not to exceed
$25,000; and
(C) an executive agency awarding a contract for
property or services for a price exceeding $100,000, or
placing an order referred to in clause (A)(ii)
exceeding $100,000, shall furnish for publication by
the Secretary of Commerce a notice announcing the award
or order if there is likely to be any subcontract under
such contract or order.
(2)(A) A notice of solicitation required to be published
under paragraph (1) may be published--
(i) by electronic means that meet the accessibility
requirements under section 18(a)(7) of the Office of
Federal Procurement Policy Act (41 U.S.C. 416(a)(7));
or
(ii) by the Secretary of Commerce in the Commerce
Business Daily.
(B) The Secretary of Commerce shall promptly publish in the
Commerce Business Daily each notice or announcement received
under this subsection for publication by that means.
(3) Whenever an executive agency is required by paragraph
(1)(A) to publish a notice of solicitation, such executive
agency may not--
(A) issue the solicitation earlier than 15 days after
the date on which the notice is published; or
(B) in the case of a contract or order estimated to
be greater than the simplified acquisition threshold,
establish a deadline for the submission of all bids or
proposals in response to the notice required by
paragraph (1)(A) that--
(i) in the case of an order under a basic
agreement, basic ordering agreement, or similar
arrangement, is earlier than the date 30 days
after the date the notice required by paragraph
(1)(A)(ii) is published;
(ii) in the case of a solicitation for
research and development, is earlier than the
date 45 days after the date the notice required
by paragraph (1)(A)(i) is published; or
(iii) in any other case, is earlier than the
date 30 days after the date the solicitation is
issued.
(f) Each notice of solicitation required by subparagraph (A)
or (B) of subsection (e)(1) shall include--
(1) an accurate description of the property or
services to be contracted for, which description (A)
shall not be unnecessarily restrictive of competition,
and (B) shall include, as appropriate, the agency
nomenclature, National Stock Number or other part
number, and a brief description of the item's form,
fit, or function, physical dimensions, predominant
material of manufacture, or similar information that
will assist a prospective contractor to make an
informed business judgment as to whether a copy of the
solicitation should be requested;
(2) provisions that--
(A) state whether the technical data required
to respond to the solicitation will not be
furnished as part of such solicitation, and
identify the source in the Government, if any,
from which the technical data may be obtained;
and
(B) state whether an offeror, its product, or
service must meet a qualification requirement
in order to be eligible for award, and, if so,
identify the office from which a qualification
requirement may be obtained;
(3) the name, business address, and telephone number
of the contracting officer;
(4) a statement that all responsible sources may
submit a bid, proposal, or quotation (as appropriate)
which shall be considered by the agency;
(5) in the case of a procurement using procedures
other than competitive procedures, a statement of the
reason justifying the use of such procedures and the
identity of the intended source; and
(6) in the case of a contract in an amount estimated
to be greater than $25,000 but not greater than the
simplified acquisition threshold--
(A) a description of the procedures to be
used in awarding the contract; and
(B) a statement specifying the periods for
prospective offerors and the contracting
officer to take the necessary preaward and
award actions.
(g)(1) A notice is not required under subsection (e)(1) if--
(A) the proposed procurement is for an amount not
greater than the simplified acquisition threshold and
is to be conducted by--
(i) using widespread electronic public notice
of the solicitation in a form that allows
convenient and universal user access through a
single, Government-wide point of entry; and
(ii) permitting the public to respond to the
solicitation electronically.
(B) the notice would disclose the executive agency's
needs and the disclosure of such needs would compromise
the national security;
(C) the proposed procurement would result from
acceptance of--
(i) any unsolicited proposal that
demonstrates a unique and innovative research
concept and the publication of any notice of
such unsolicited research proposal would
disclose the originality of thought or
innovativeness of the proposal or would
disclose proprietary information associated
with the proposal; or
(ii) a proposal submitted under section 9 of
this Act;
(D) the procurement is made against an order placed
under a requirements contract;
(E) the procurement is made for perishable
subsistence supplies;
(F) the procurement is for utility services, other
than telecommunication services, and only one source is
available; or
(G) the procurement is for the services of an expert
for use in any litigation or dispute (including
preparation for any foreseeable litigation or dispute)
that involves or could involve the Federal Government
in any trial, hearing, or proceeding before any court,
administrative tribunal, or agency, or in any part of
an alternative dispute resolution process, whether or
not the expert is expected to testify.
(2) The requirements of subsection (a)(1)(A) do not apply to
any procurement under conditions described in paragraph (2),
(3), (4), (5), or (7) of section 303(c) of the Federal Property
and Administrative Services Act of 1949 (41 U.S.C. 253(c)) or
paragraph (2), (3), (4), (5), and (7) of section 2304(c) of
title 10, United States Code.
(3) The requirements of subsection (a)(1)(A) shall not apply
in the case of any procurement for which the head of the
executive agency makes a determination in writing, after
consultation with the Administrator for Federal Procurement
Policy and the Administrator of the Small Business
Administration, that it is not appropriate or reasonable to
publish a notice before issuing a solicitation.
(h)(1) An executive agency may not award a contract using
procedures other than competitive procedures unless--
(A) except as provided in paragraph (2), a written
justification for the use of such procedures has been
approved--
(i) in the case of a contract for an amount
exceeding $100,000 (but equal to or less than
$1,000,000), by the advocate for competition
for the procuring activity (without further
delegation);
(ii) in the case of a contract for an amount
exceeding $1,000,000 (but equal to or less than
$10,000,000), by the head of the procuring
activity or a delegate who, if a member of the
Armed Forces, is a general or flag officer, or,
if a civilian, is serving in a position in
grade GS-16 or above under the General Schedule
(or in a comparable or higher position under
another schedule); or
(iii) in the case of a contract for an amount
exceeding $10,000,000, by the senior
procurement executive of the agency designated
pursuant to section 16(3) of the Office of
Federal Procurement Policy Act (41 U.S.C.
414(3)) (without further delegation); and
(B) all other requirements applicable to the use of
such procedures under title III of the Federal Property
and Administrative Services Act of 1949 (41 U.S.C. 251
et sq.) or chapter 137 of title 10, United States Code,
as appropriate, have been satisfied.
(2) The same exceptions as are provided in section 303(f)(2)
of the Federal Property and Administrative Services Act of 1949
(41 U.S.C. 253(f)(2)) or section 2304(f)(2) of title 10, United
States Code, shall apply with respect to the requirements of
paragraph (1)(A) of this subsection in the same manner as such
exceptions apply to the requirements of section 303(f)(1) of
such Act or section 2304(f)(1) of such title, as appropriate.
(i) An executive agency shall make available to any business
concern, or the authorized representative of such concern, the
complete solicitation package for any on-going procurement
announced pursuant to a notice under subsection (e). An
executive agency may require the payment of a fee, not
exceeding the actual cost of duplication, for a copy of such
package.
(j) For purposes of this section, the term ``executive
agency'' has the meaning provided such term in section 4(1) of
the Office of Federal Procurement Policy Act (41 U.S.C.
403(1)).
(k) Notices of Subcontracting Opportunities.--
(1) In general.--Notices of subcontracting
opportunities may be submitted for publication on the
appropriate Federal Web site (as determined by the
Administrator) by--
(A) a business concern awarded a contract by
an executive agency subject to subsection
(e)(1)(C); and
(B) a business concern that is a
subcontractor or supplier (at any tier) to such
contractor having a subcontracting opportunity
in excess of $10,000.
(2) Content of notice.--The notice of a
subcontracting opportunity shall include--
(A) a description of the business opportunity
that is comparable to the description specified
in paragraphs (1), (2), (3), and (4) of
subsection (f); and
(B) the due date for receipt of offers.
(l) Management Assistance for Small Businesses Affected by
Military Operations.--The Administration shall utilize, as
appropriate, its entrepreneurial development and management
assistance programs, including programs involving State or
private sector partners, to provide business counseling and
training to any small business concern adversely affected by
the deployment of units of the Armed Forces of the United
States in support of a period of military conflict (as defined
in section 7(n)(1)).
(m) Procurement Program for Women-owned Small Business
Concerns.--
(1) Definitions.--In this subsection, the following
definitions apply:
(A) Contracting officer.--The term
``contracting officer'' has the meaning given
such term in section 27(f)(5) of the Office of
Federal Procurement Policy Act (41 U.S.C.
423(f)(5)).
(B) Small business concern owned and
controlled by women.--The term ``small business
concern owned and controlled by women'' has the
meaning given such term in section 3(n), except
that ownership shall be determined without
regard to any community property law.
(2) Authority to restrict competition.--In accordance
with this subsection, a contracting officer may
restrict competition for any contract for the
procurement of goods or services by the Federal
Government to small business concerns owned and
controlled by women, if--
(A) each of the concerns is not less than 51
percent owned by one or more women who are
economically disadvantaged (and such ownership
is determined without regard to any community
property law);
(B) the contracting officer has a reasonable
expectation that two or more small business
concerns owned and controlled by women will
submit offers for the contract;
(C) the contract is for the procurement of
goods or services with respect to an industry
identified by the Administrator pursuant to
paragraph (3);
(D) in the estimation of the contracting
officer, the contract award can be made at a
fair and reasonable price; and
(E) each of the concerns is certified by a
Federal agency, a State government, the
Administrator, or a national certifying entity
approved by the Administrator as a small
business concern owned and controlled by women.
(3) Waiver.--With respect to a small business concern
owned and controlled by women, the Administrator may
waive subparagraph (2)(A) if the Administrator
determines that the concern is in an industry in which
small business concerns owned and controlled by women
are substantially underrepresented.
(4) Identification of industries.--The Administrator
shall conduct a study to identify industries in which
small business concerns owned and controlled by women
are underrepresented with respect to Federal
procurement contracting.
(5) Enforcement; penalties.--
(A) Verification of eligibility.--In carrying
out this subsection, the Administrator shall
establish procedures relating to--
(i) the filing, investigation, and
disposition by the Administration of
any challenge to the eligibility of a
small business concern to receive
assistance under this subsection
(including a challenge, filed by an
interested party, relating to the
veracity of a certification made or
information provided to the
Administration by a small business
concern under paragraph (2)(E)); and
(ii) verification by the
Administrator of the accuracy of any
certification made or information
provided to the Administration by a
small business concern under paragraph
(2)(E).
(B) Examinations.--The procedures established
under subparagraph (A) may provide for program
examinations (including random program
examinations) by the Administrator of any small
business concern making a certification or
providing information to the Administrator
under paragraph (2)(E).
(C) Penalties.--In addition to the penalties
described in section 16(d), any small business
concern that is determined by the Administrator
to have misrepresented the status of that
concern as a small business concern owned and
controlled by women for purposes of this
subsection, shall be subject to--
(i) section 1001 of title 18, United
States Code; and
(ii) sections 3729 through 3733 of
title 31, United States Code.
(6) Provision of data.--Upon the request of the
Administrator, the head of any Federal department or
agency shall promptly provide to the Administrator such
information as the Administrator determines to be
necessary to carry out this subsection.
[(7) Authority for sole source contracts for
economically disadvantaged small business concerns
owned and controlled by women.--A contracting officer
may award a sole source contract under this subsection
to any small business concern owned and controlled by
women described in paragraph (2)(A) and certified under
paragraph (2)(E) if--
[(A) such concern is determined to be a
responsible contractor with respect to
performance of the contract opportunity and the
contracting officer does not have a reasonable
expectation that 2 or more businesses described
in paragraph (2)(A) will submit offers;
[(B) the anticipated award price of the
contract (including options) will not exceed--
[(i) $6,500,000, in the case of a
contract opportunity assigned a
standard industrial classification code
for manufacturing; or
[(ii) $4,000,000, in the case of any
other contract opportunity; and
[(C) in the estimation of the contracting
officer, the contract award can be made at a
fair and reasonable price.
[(8) Authority for sole source contracts for small
business concerns owned and controlled by women in
substantially underrepresented industries.--A
contracting officer may award a sole source contract
under this subsection to any small business concern
owned and controlled by women certified under paragraph
(2)(E) that is in an industry in which small business
concerns owned and controlled by women are
substantially underrepresented (as determined by the
Administrator under paragraph (3)) if--
[(A) such concern is determined to be a
responsible contractor with respect to
performance of the contract opportunity and the
contracting officer does not have a reasonable
expectation that 2 or more businesses in an
industry that has received a waiver under
paragraph (3) will submit offers;
[(B) the anticipated award price of the
contract (including options) will not exceed--
[(i) $6,500,000, in the case of a
contract opportunity assigned a
standard industrial classification code
for manufacturing; or
[(ii) $4,000,000, in the case of any
other contract opportunity; and
[(C) in the estimation of the contracting
officer, the contract award can be made at a
fair and reasonable price.]
(7) Authority for sole source contracts for
economically disadvantaged small business concerns
owned and controlled by women.--A contracting officer
may award a sole source contract under this subsection
to any small business concern owned and controlled by
women described in paragraph (2)(A) and certified under
paragraph (2)(E) if--
(A) such concern is determined to be a
responsible contractor with respect to
performance of the contract opportunity;
(B) the contracting officer does not have a
reasonable expectation that two or more
businesses described in paragraph (2)(A) will
submit offers;
(C) the anticipated award price of the
contract will not exceed--
(i) $7,000,000, in the case of a
contract opportunity assigned a
standard industrial classification code
for manufacturing; or
(ii) $4,000,000, in the case of any
other contract opportunity;
(D) in the estimation of the contracting
officer, the contract award can be made at a
fair and reasonable price;
(E) the contracting officer has notified the
Administration of the intent to make such award
and requested that the Administration determine
the concern's eligibility for award; and
(F) the Administration has determined that
such concern is eligible for award.
(8) Authority for sole source contracts for small
business concerns owned and controlled by women in
substantially underrepresented industries.--A
contracting officer may award a sole source contract
under this subsection to any small business concern
owned and controlled by women certified under paragraph
(2)(E) that is in an industry in which small business
concerns owned and controlled by women are
substantially underrepresented (as determined by the
Administrator under paragraph (3)) if--
(A) such concern is determined to be a
responsible contractor with respect to
performance of the contract opportunity;
(B) the contracting officer does not have a
reasonable expectation that two or more
businesses in an industry that has received a
waiver under paragraph (3) will submit offers;
(C) the anticipated award price of the
contract will not exceed--
(i) $7,000,000, in the case of a
contract opportunity assigned a
standard industrial classification code
for manufacturing; or
(ii) $4,000,000, in the case of any
other contract opportunity;
(D) in the estimation of the contracting
officer, the contract award can be made at a
fair and reasonable price;
(E) the contracting officer has notified the
Administration of the intent to make such award
and requested that the Administration determine
the concern's eligibility for award; and
(F) the Administration has determined that
such concern is eligible for award.
[Section 2(c) of H.R. 6369 (as reported) provides for
amendments to amend paragraphs (7) and (8) of section 8(m) of
the Small Business Act (shown above) to read as follows.
Section 5(1) of H.R. 6369 provides for subsequent amendments to
paragraphs (7) and (8) of such section 8(m) ``[e]ffective upon
the notification described under section 3 [of such reported
bill]''. The following reflects paragraphs (7) and (8) as
amended by both sections 2(c) and 5(1) as follows:]
(7) Authority for sole source contracts for
economically disadvantaged small business concerns
owned and controlled by women.--A contracting officer
may award a sole source contract under this subsection
to any small business concern owned and controlled by
women described in paragraph (2)(A) and certified under
paragraph (2)(E) if--
(A) such concern is determined to be a
responsible contractor with respect to
performance of the contract opportunity;
(B) the contracting officer does not have a
reasonable expectation that two or more
businesses described in paragraph (2)(A) will
submit offers;
(C) the anticipated award price of the
contract will not exceed--
(i) $7,000,000, in the case of a
contract opportunity assigned a
standard industrial classification code
for manufacturing; or
(ii) $4,000,000, in the case of any
other contract opportunity; and
(D) in the estimation of the contracting
officer, the contract award can be made at a
fair and reasonable price[;].
[(E) the contracting officer has notified the
Administration of the intent to make such award
and requested that the Administration determine
the concern's eligibility for award; and
[(F) the Administration has determined that
such concern is eligible for award.]
(8) Authority for sole source contracts for small
business concerns owned and controlled by women in
substantially underrepresented industries.--A
contracting officer may award a sole source contract
under this subsection to any small business concern
owned and controlled by women certified under paragraph
(2)(E) that is in an industry in which small business
concerns owned and controlled by women are
substantially underrepresented (as determined by the
Administrator under paragraph (3)) if--
(A) such concern is determined to be a
responsible contractor with respect to
performance of the contract opportunity;
(B) the contracting officer does not have a
reasonable expectation that two or more
businesses in an industry that has received a
waiver under paragraph (3) will submit offers;
(C) the anticipated award price of the
contract will not exceed--
(i) $7,000,000, in the case of a
contract opportunity assigned a
standard industrial classification code
for manufacturing; or
(ii) $4,000,000, in the case of any
other contract opportunity; and
(D) in the estimation of the contracting
officer, the contract award can be made at a
fair and reasonable price[;].
[(E) the contracting officer has notified the
Administration of the intent to make such award
and requested that the Administration determine
the concern's eligibility for award; and
[(F) the Administration has determined that
such concern is eligible for award.]
(n) Business Grants and Cooperative Agreements.--
(1) In general.--In accordance with this subsection,
the Administrator may make grants to and enter into
cooperative agreements with any coalition of private
entities, public entities, or any combination of
private and public entities--
(A) to expand business-to-business
relationships between large and small
businesses; and
(B) to provide businesses, directly or
indirectly, with online information and a
database of companies that are interested in
mentor-protege programs or community-based,
statewide, or local business development
programs.
(2) Matching requirement.--Subject to subparagraph
(B), the Administrator may make a grant to a coalition
under paragraph (1) only if the coalition provides for
activities described in paragraph (1)(A) or (1)(B) an
amount, either in kind or in cash, equal to the grant
amount.
(3) Authorization of appropriations.--There is
authorized to be appropriated to carry out this
subsection $6,600,000, to remain available until
expended, for each of fiscal years 2001 through 2006.
* * * * * * *
SEC. 31. HUBZONE PROGRAM.
(a) In General.--There is established within the
Administration a program to be carried out by the Administrator
to provide for Federal contracting assistance to qualified
HUBZone small business concerns in accordance with this
section.
(b) Eligible Contracts.--
(1) Definitions.--In this subsection--
(A) the term ``contracting officer'' has the
meaning given that term in section 27(f)(5) of
the Office of Federal Procurement Policy Act
(41 U.S.C. 423(f)(5)); and
(B) the term ``full and open competition''
has the meaning given that term in section 4 of
the Office of Federal Procurement Policy Act
(41 U.S.C. 403).
(2) Authority of contracting officer.--
[(A) Sole source contracts.--A contracting
officer may award sole source contracts under
this section to any qualified HUBZone small
business concern, if--
[(i) the qualified HUBZone small
business concern is determined to be a
responsible contractor with respect to
performance of such contract
opportunity, and the contracting
officer does not have a reasonable
expectation that 2 or more qualified
HUBZone small business concerns will
submit offers for the contracting
opportunity;
[(ii) the anticipated award price of
the contract (including options) will
not exceed--
[(I) $5,000,000, in the case
of a contract opportunity
assigned a standard industrial
classification code for
manufacturing; or
[(II) $3,000,000, in the case
of all other contract
opportunities; and
[(iii) in the estimation of the
contracting officer, the contract award
can be made at a fair and reasonable
price.]
(A) Sole source contracts.--A contracting
officer may award sole source contracts under
this section to any qualified HUBZone small
business concern, if--
(i) the qualified HUBZone small
business concern is determined to be a
responsible contractor with respect to
performance of such contract
opportunity;
(ii) the contracting officer does not
have a reasonable expectation that two
or more qualified HUBZone small
business concerns will submit offers
for the contracting opportunity;
(iii) the anticipated award price of
the contract will not exceed--
(I) $7,000,000, in the case
of a contract opportunity
assigned a standard industrial
classification code for
manufacturing; or
(II) $4,000,000, in the case
of all other contract
opportunities; and
(iv) in the estimation of the
contracting officer, the contract award
can be made at a fair and reasonable
price.
(B) Restricted competition.--A contract
opportunity may be awarded pursuant to this
section on the basis of competition restricted
to qualified HUBZone small business concerns if
the contracting officer has a reasonable
expectation that not less than 2 qualified
HUBZone small business concerns will submit
offers and that the award can be made at a fair
market price.
(C) Appeals.--Not later than 5 days from the
date the Administration is notified of a
procurement officer's decision not to award a
contract opportunity under this section to a
qualified HUBZone small business concern, the
Administrator may notify the contracting
officer of the intent to appeal the contracting
officer's decision, and within 15 days of such
date the Administrator may file a written
request for reconsideration of the contracting
officer's decision with the Secretary of the
department or agency head.
(3) Price evaluation preference in full and open
competitions.--
(A) In general.--Subject to subparagraph (B),
in any case in which a contract is to be
awarded on the basis of full and open
competition, the price offered by a qualified
HUBZone small business concern shall be deemed
as being lower than the price offered by
another offeror (other than another small
business concern), if the price offered by the
qualified HUBZone small business concern is not
more than 10 percent higher than the price
offered by the otherwise lowest, responsive,
and responsible offeror.
(B) Procurement of commodities.--For
purchases by the Secretary of Agriculture of
agricultural commodities, the price evaluation
preference shall be--
(i) 10 percent, for the portion of a
contract to be awarded that is not
greater than 25 percent of the total
volume being procured for each
commodity in a single invitation;
(ii) 5 percent, for the portion of a
contract to be awarded that is greater
than 25 percent, but not greater than
40 percent, of the total volume being
procured for each commodity in a single
invitation; and
(iii) zero, for the portion of a
contract to be awarded that is greater
than 40 percent of the total volume
being procured for each commodity in a
single invitation.
(C) Procurement of commodities for
international food aid export operations.--The
price evaluation preference for purchases of
agricultural commodities by the Secretary of
Agriculture for export operations through
international food aid programs administered by
the Farm Service Agency shall be 5 percent on
the first portion of a contract to be awarded
that is not greater than 20 percent of the
total volume of each commodity being procured
in a single invitation.
(D) Treatment of preference.--A contract
awarded to a HUBZone small business concern
under a preference described in subparagraph
(B) shall not be counted toward the fulfillment
of any requirement partially set aside for
competition restricted to small business
concerns.
(4) Relationship to other contracting preferences.--A
procurement may not be made from a source on the basis
of a preference provided in paragraph (2) or (3), if
the procurement would otherwise be made from a
different source under section 4124 or 4125 of title
18, United States Code, or the Javits-Wagner-O'Day Act
(41 U.S.C. 46 et seq.).
(c) Enforcement; Penalties.--
(1) Verification of eligibility.--In carrying out
this section, the Administrator shall establish
procedures relating to--
(A) the filing, investigation, and
disposition by the Administration of any
challenge to the eligibility of a small
business concern to receive assistance under
this section (including a challenge, filed by
an interested party, relating to the veracity
of a certification made or information provided
to the Administration by a small business
concern under section 3(p)(5)); and
(B) verification by the Administrator of the
accuracy of any certification made or
information provided to the Administration by a
small business concern under section 3(p)(5).
(2) Examinations.--The procedures established under
paragraph (1) may provide for program examinations
(including random program examinations) by the
Administrator of any small business concern making a
certification or providing information to the
Administrator under section 3(p)(5).
(3) Provision of data.--Upon the request of the
Administrator, the Secretary of Labor, the
Administrator of the Federal Emergency Management
Agency, the Secretary of Housing and Urban Development,
and the Secretary of the Interior (or the Assistant
Secretary for Indian Affairs), shall promptly provide
to the Administrator such information as the
Administrator determines to be necessary to carry out
this subsection.
(4) Penalties.--In addition to the penalties
described in section 16(d), any small business concern
that is determined by the Administrator to have
misrepresented the status of that concern as a
``HUBZone small business concern'' for purposes of this
section, shall be subject to--
(A) section 1001 of title 18, United States
Code; and
(B) sections 3729 through 3733 of title 31,
United States Code.
(d) Authorization of Appropriations.--There is authorized to
be appropriated to carry out the program established by this
section $10,000,000 for each of fiscal years 2004 through 2006.
* * * * * * *
SEC. 36. PROCUREMENT PROGRAM FOR SMALL BUSINESS CONCERNS OWNED AND
CONTROLLED BY SERVICE-DISABLED VETERANS.
[(a) Sole Source Contracts.--In accordance with this section,
a contracting officer may award a sole source contract to any
small business concern owned and controlled by service-disabled
veterans if--
[(1) such concern is determined to be a responsible
contractor with respect to performance of such contract
opportunity and the contracting officer does not have a
reasonable expectation that 2 or more small business
concerns owned and controlled by service-disabled
veterans will submit offers for the contracting
opportunity;
[(2) the anticipated award price of the contract
(including options) will not exceed--
[(A) $5,000,000, in the case of a contract
opportunity assigned a standard industrial
classification code for manufacturing; or
[(B) $3,000,000, in the case of any other
contract opportunity; and
[(3) in the estimation of the contracting officer,
the contract award can be made at a fair and reasonable
price.]
(a) Sole Source Contracts.--In accordance with this section,
a contracting officer may award a sole source contract to any
small business concern owned and controlled by service-disabled
veterans if--
(1) such concern is determined to be a responsible
contractor with respect to performance of such contract
opportunity;
(2) the contracting officer does not have a
reasonable expectation that two or more small business
concerns owned and controlled by service-disabled
veterans will submit offers for the contracting
opportunity;
(3) the anticipated award price of the contract will
not exceed--
(A) $7,000,000, in the case of a contract
opportunity assigned a standard industrial
classification code for manufacturing; or
(B) $4,000,000, in the case of any other
contract opportunity;
(4) in the estimation of the contracting officer, the
contract award can be made at a fair and reasonable
price;
(5) the contracting officer has notified the
Administration of the intent to make such award and
requested that the Administration determine the
concern's eligibility for award; and
(6) the Administration has determined that such
concern is eligible for award.
[Section 2(b) of H.R. 6369 (as reported) provides for an
amendment to amend subsection (a) of section 36 of the Small
Business Act (shown above) to read as follows. Section 5(2) of
H.R. 6369 provides for subsequent amendments to subsection (a)
of such section 36 ``[e]ffective upon the notification
described under section 3 [of such reported bill]''. The
following reflects subsection (a) as amended by both sections
2(b) and 5(2) as follows:]
(a) Sole Source Contracts.--In accordance with this section,
a contracting officer may award a sole source contract to any
small business concern owned and controlled by service-disabled
veterans if--
(1) such concern is determined to be a responsible
contractor with respect to performance of such contract
opportunity;
(2) the contracting officer does not have a
reasonable expectation that two or more small business
concerns owned and controlled by service-disabled
veterans will submit offers for the contracting
opportunity;
(3) the anticipated award price of the contract will
not exceed--
(A) $7,000,000, in the case of a contract
opportunity assigned a standard industrial
classification code for manufacturing; or
(B) $4,000,000, in the case of any other
contract opportunity; and
(4) in the estimation of the contracting officer, the
contract award can be made at a fair and reasonable
price[;].
[(5) the contracting officer has notified the
Administration of the intent to make such award and
requested that the Administration determine the
concern's eligibility for award; and
[(6) the Administration has determined that such
concern is eligible for award.]
(b) Restricted Competition.--In accordance with this section,
a contracting officer may award contracts on the basis of
competition restricted to small business concerns owned and
controlled by service-disabled veterans if the contracting
officer has a reasonable expectation that not less than 2 small
business concerns owned and controlled by service-disabled
veterans will submit offers and that the award can be made at a
fair market price.
(c) Relationship to Other Contracting Preferences.--A
procurement may not be made from a source on the basis of a
preference provided under subsection (a) or (b) if the
procurement would otherwise be made from a different source
under section 4124 or 4125 of title 18, United States Code, or
the Javits-Wagner-O'Day Act (41 U.S.C. 46 et seq.).
(d) Enforcement; Penalties.--Rules similar to the rules of
paragraphs (5) and (6) of section 8(m) shall apply for purposes
of this section.
(e) Contracting Officer.--For purposes of this section, the
term ``contracting officer'' has the meaning given such term in
section 27(f)(5) of the Office of Federal Procurement Policy
Act (41 U.S.C. 423(f)(5)).
* * * * * * *
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