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116th Congress } { Report
HOUSE OF REPRESENTATIVES
1st Session } { 116-361
======================================================================
UNLOCKING OPPORTUNITIES FOR SMALL BUSINESSES ACT OF 2019
_______
December 19, 2019.--Committed to the Committee of the Whole House on
the State of the Union and ordered to be printed
_______
Ms. Velazquez, from the Committee on Small Business, submitted the
following
R E P O R T
[To accompany H.R. 5146]
The Committee on Small Business, to whom was referred the
bill (H.R. 5146) to amend the Small Business Act to require
contracting officers to take a small business concern's past
performance as part of a joint venture into account when
evaluating the small business concern, and for other purposes,
having considered the same, report favorably thereon without
amendment and recommend that the bill do pass.
CONTENTS
Page
I. Purpose and Bill Summary.......................................2
II. Background and Need for Legislation............................2
III. Hearings.......................................................4
IV. Committee Consideration........................................4
V. Committee Votes................................................4
VI. Section-by-Section of H.R. 5146................................6
VII. Congressional Budget Office Estimate...........................6
VIII. Unfunded Mandates..............................................6
IX. New Budget Authority, Entitled Authority, and Tax Expenditures.6
X. Oversight Findings.............................................7
XI. Statement of Constitutional Authority..........................7
XII. Congressional Accountability Act...............................7
XIII. Federal Advisory Committee Act Statement.......................7
XIV. Statement of No Earmarks.......................................7
XV. Statement of Duplication of Federal Programs...................7
XVI. Disclosure of Directed Rule Makings............................7
XVII. Performance Goals and Objectives...............................7
XVIII. Changes in Existing Law, Made by the Bill, as Reported.........8
I. Purpose and Bill Summary
The purpose of H.R. 5146, the Unlocking Opportunities for
Small Businesses Act of 2019, is to require federal contracting
officers to consider a joint venture's past performance when
evaluating the past performance of a small business joint
venture member that is seeking to compete for federal prime
contracts. It also requires contracting officers to accept past
performance information provided by a prime contractor
regarding its subcontractor.
II. Background and Need for Legislation
H.R. 5146, the Unlocking Opportunities for Small Businesses
Act, was introduced by Representative James Hagedorn (R-MN) and
Representative Dwight Evans (D-PA) on November 18, 2019.
The Federal Acquisition Regulation authorizes contractors
to form teams to compete for federal contracts. These teaming
arrangements can consist of teaming agreements or joint
ventures. Joint ventures are essentially business partnerships
formed between two parties for a temporary period to fulfill a
business interest, in which the joint venture becomes its own
formal, legal entity independent of the members that make up
the joint venture. In a joint venture, the joint venture itself
becomes the prime contractor, meaning that each member to the
joint venture has a direct contractual relationship with the
government. The joint venture's members are collectively
responsible for the joint venture's performance and share in
its benefits and obligations as a prime contractor. For
purposes of the SBA, the joint venture members must be small
businesses themselves, with the exception of an SBA-approved
Mentor-Protege relationship which permits a small protege and a
large mentor to form a joint venture.
Joint ventures have become increasingly popular as small
businesses seek ways to effectively compete in the federal
marketplace since it permits small businesses to pool their
resources together to form a new, more competitive entity.
However, understanding how to assess past performance generated
by joint ventures has not yet caught up with the rate in which
joint ventures have been utilized.
In addition to teaming arrangements, contractors can
develop business relationships with other businesses in the
form of the traditional subcontracting arrangement. In this
business model, the prime contractor receives the contract
directly from the government, has a direct legal relationship
(privity) with the government and is responsible for
contractual obligations and benefits. If the prime contractor
awards contracts to subcontractors, the latter has no privity
with the government and must work through the prime contractor.
For many small businesses, particularly those new to the
federal marketplace, subcontracting is the best and only method
for a small business to gain a foothold in the federal space.
Past performance is an important indicator of an offeror's
ability to successfully perform future contracts by relaying
information regarding the contractor's actions under previous
contracts and task orders. Past performance is one of the most
relevant selection factors a contracting officer considers when
making an award decision. Therefore, being able to utilize past
performance experience in future solicitations is critically
important for contractor's competitiveness, particularly for
small businesses who have not generated as much past
performance experience as their larger counterparts.
An often-cited issue within the small business community is
the circular problem of past performance--small businesses
cannot compete for prime contracts without demonstrating
relevant past performance, but they cannot obtain past
performance experience without winning contracts. Small
businesses that have performed work as part of a joint venture
often experience this problem because a relevant past
performance rating solely for the small business may not exist.
Moreover, while the Small Business Act requires agencies in
certain circumstances to consider the past performance of each
participant in a joint venture as the past performance of the
joint venture itself, there is no distinct provision which
would allow the reverse: for the past performance experience
generated by the joint venture to flow back to the individual
joint venture member. Thus, while some agencies at their
discretion may consider the relevant past performance
information of individual members of a team arrangement in
certain situations (i.e. if they are performing major or
critical aspects of a contract requirement), they are under no
obligation to do so. This results in differing and arbitrary
treatment of joint venture past performance experience by
federal agencies and may even differ from contracting officer
to contracting officer within the same federal agency, creating
uncertainty and confusion for small businesses interested in
competing for federal contracts.
This situation is even worse for subcontractors because
federal agencies do not generate official records pertaining to
subcontractor's past performance.\1\ Thus, while subcontractors
may be performing substantial work, they do not receive an USG-
issued rating to build the past performance record, which is
what contracting officers generally consider for determining if
a business has the necessary past performance. To demonstrate
past performance as part of an offer for a prime contract,
former subcontractors often resort to providing past
performance information generated by their former primes.
However, contracting officers are under no obligation to
consider such past performance, regardless of how relevant it
might be to the current contract.
---------------------------------------------------------------------------
\1\Section 1822 of the National Defense Authorization Act for
Fiscal Year 2017, Pub. L. No. 114-328, Sec. 1822, 130 Stat. 2000, 2654
(2016), created a pilot program to allow qualified subcontractors to
receive a government past performance rating (commonly known as a
Contractor Performance Assessment Reports System rating or CPARS
rating). However, pursuant to conversations with the Small Business
Administration, that pilot program proved impossible to implement.
---------------------------------------------------------------------------
H.R. 5146 provides a solution by allowing past performance
information on joint ventures and subcontractors to be
consistently and uniformly accepted across the government and
considered when evaluating the past performance of a small
business seeking to perform as a prime contractor. This
legislation will have the effect of broadening the field of
competition and the growth of the industrial base by
encouraging more small businesses with relevant past
performance experience to compete for prime contracts. In turn
this competition may ultimately decrease costs, benefitting
taxpayers.
III. Hearings
In the 116th Congress, the Small Business Committee held a
hearing on July 16, 2019, titled ``Challenges and Opportunities
in the Federal Procurement Marketplace'' which underscored the
importance of subcontracting as a way for small business to
gain a foothold in the federal marketplace.\2\ H.R. 5146 allows
small businesses to capitalize on the past performance
experience obtained while performing as a subcontractor so that
small businesses can then advance to bigger and better
opportunities. Moreover, the hearing highlighted the need to
enhance the competitive viability of small businesses, and H.R.
5146 does just that by eliminating an important barrier to
entry.
---------------------------------------------------------------------------
\2\Challenges and Opportunities in the Federal Procurement
Marketplace: Hearing Before the Subcomm. on Contracting and
Infrastructure of the H. Comm. on Small Bus., 116th Cong. (2019)
---------------------------------------------------------------------------
IV. Committee Consideration
The Committee on Small Business met in open session, with a
quorum being present, on November 20th, 2019 and ordered H.R.
5146 favorably reported to the House. During the markup, no
amendments were offered.
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. 5146 to the House at 12:11 p.m.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
VI. Section-by-Section of H.R. 5146
Section 1. Short title
This section designates the short title as the ``Unlocking
Opportunities for Small Businesses Act of 2019''.
Section 2. Past performance ratings of joint ventures for small
business concerns
This section amends section 15(e) of the Small Business Act
to include a provision requiring the Small Business
Administration to establish regulations requiring contracting
officers to consider the past performance of a joint venture,
when evaluating an offer on a prime contract presented by the
small business concern that participated in the joint venture.
The small business concern must specify its own duties and
responsibilities independent of its joint venture partner.
Section 3. Past performance ratings of first-tier small business
subcontractors
This section amends section 8(d)(17) of the Small Business
Act to include a provision requiring the Small Business
Administration to establish regulations requiring contracting
officers to consider the subcontractor past performance of a
small business that participated as a first-tier subcontractor
when evaluating an offer on a prime contract by the small
business concern. The prime contractor shall, at the request of
the first-tier small business subcontractor, submit a record of
past performance to either the agency or the small business
concern.
Section 4. Rulemaking
This section requires the Small Business Administration to
issue rules pertaining to this Act within 120 days of enactment
of this Act and the Federal Acquisition Regulation to be
amended within 120 days of the Small Business Administration's
issuance of its rules.
VII. Congressional Budget Cost Estimate
At the time H.R. 5146 was reported to the House, the
Congressional Budget Office had not provided a cost estimate.
VIII. Unfunded Mandates
H.R. 5146 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.
5146 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. 5146 are incorporated into the descriptive
portions of this report.
XI. Statement of Constitutional Authority
Pursuant to clause 7 of rule XII of the Rules of the House,
the Committee finds the authority for this legislation in Art.
I, Sec. 8, cl. 1.
XII. Congressional Accountability Act
H.R. 5146 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 104-1.
XIII. Federal Advisory Committee Act Statement
H.R. 5146 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. 5146 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. 5146 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 rule XIII of the Rules of the
House, H.R. 5146 would require the Small Business
Administration to issue rules to carry out this Act within 120
days of enactment of this Act.
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:
The objective of H.R. 5146 is to allow past performance
information on joint ventures and subcontractors to be accepted
government-wide and considered when evaluating the past
performance of a small business seeking to perform as a prime
contractor.
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.
(H) In this contract, the term ``small business
concern owned and controlled by service-disabled
veterans'' has the meaning given that term in section
3(q).
(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).]
(17) Past performance ratings for certain small
business subcontractors.--
(A) In general.--Upon request by a small
business concern that performed as a first-tier
subcontractor on a covered contract (as defined
in paragraph 13(A)) that is submitting an offer
for a solicitation, the prime contractor for
such covered contract shall submit to the
contracting agency issuing the solicitation or
to such small business concern a record of past
performance for such small business concern
with respect to such covered contract.
(B) Consideration.--A contracting officer
shall consider the record of past performance
of a small business concern provided under
subparagraph (A) when evaluating an offer for a
prime contract made by such small business
concern.
(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.
(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. 15.
(a) Small Business Procurements.--
(1) In general.--For purposes of this Act, small
business concerns shall receive any award or contract
if such award or contract is, in the determination of
the Administrator and the contracting agency, in the
interest of--
(A) maintaining or mobilizing the full
productive capacity of the United States;
(B) war or national defense programs; or
(C) assuring that a fair proportion of the
total purchases and contracts for goods and
services of the Government in each industry
category (as defined under paragraph (2)) are
awarded to small business concerns.
(2) Industry category defined.--
(A) In general.--In this subsection, the term
``industry category'' means a discrete group of
similar goods and services, as determined by
the Administrator in accordance with the North
American Industry Classification System codes
used to establish small business size
standards, except that the Administrator shall
limit an industry category to a greater extent
than provided under the North American Industry
Classification System codes if the
Administrator receives evidence indicating that
further segmentation of the industry category
is warranted--
(i) due to special capital equipment
needs;
(ii) due to special labor
requirements;
(iii) due to special geographic
requirements, except as provided in
subparagraph (B);
(iv) due to unique Federal buying
patterns or requirements; or
(v) to recognize a new industry.
(B) Exception for geographic requirements.--
The Administrator may not further segment an
industry category based on geographic
requirements unless--
(i) the Government typically
designates the geographic area where
work for contracts for goods or
services is to be performed;
(ii) Government purchases comprise
the major portion of the entire
domestic market for such goods or
services; and
(iii) it is unreasonable to expect
competition from business concerns
located outside of the general
geographic area due to the fixed
location of facilities, high
mobilization costs, or similar economic
factors.
(3) Determinations with respect to awards or
contracts.--Determinations made pursuant to paragraph
(1) may be made for individual awards or contracts, any
part of an award or contract or task order, or for
classes of awards or contracts or task orders.
(4) Increasing prime contracting opportunities for
small business concerns.--
(A) Description of covered proposed
procurements.--The requirements of this
paragraph shall apply to a proposed procurement
that includes in its statement of work goods or
services currently being supplied or performed
by a small business concern and, as determined
by the Administrator--
(i) is in a quantity or of an
estimated dollar value which makes the
participation of a small business
concern as a prime contractor unlikely;
(ii) in the case of a proposed
procurement for construction, seeks to
bundle or consolidate discrete
construction projects; or
(iii) is a solicitation that involves
an unnecessary or unjustified bundling
of contract requirements.
(B) Notice to procurement center
representatives.--With respect to proposed
procurements described in subparagraph (A), at
least 30 days before issuing a solicitation and
concurrent with other processing steps required
before issuing the solicitation, the
contracting agency shall provide a copy of the
proposed procurement to the procurement center
representative of the contracting agency (as
described in subsection (l)) along with a
statement explaining--
(i) why the proposed procurement
cannot be divided into reasonably small
lots (not less than economic production
runs) to permit offers on quantities
less than the total requirement;
(ii) why delivery schedules cannot be
established on a realistic basis that
will encourage the participation of
small business concerns in a manner
consistent with the actual requirements
of the Government;
(iii) why the proposed procurement
cannot be offered to increase the
likelihood of the participation of
small business concerns;
(iv) in the case of a proposed
procurement for construction, why the
proposed procurement cannot be offered
as separate discrete projects; or
(v) why the contracting agency has
determined that the bundling of
contract requirements is necessary and
justified.
(C) Alternatives to increase prime
contracting opportunities for small business
concerns.--If the procurement center
representative believes that the proposed
procurement will make the participation of
small business concerns as prime contractors
unlikely, the procurement center
representative, within 15 days after receiving
the statement described in subparagraph (B),
shall recommend to the contracting agency
alternative procurement methods for increasing
prime contracting opportunities for small
business concerns.
(D) Failure to agree on an alternative
procurement method.--If the procurement center
representative and the contracting agency fail
to agree on an alternative procurement method,
the Administrator shall submit the matter to
the head of the appropriate department or
agency for a determination.
(5) Contracts for sale of Government property.--With
respect to a contract for the sale of Government
property, small business concerns shall receive any
such contract if, in the determination of the
Administrator and the disposal agency, the award of
such contract is in the interest of assuring that a
fair proportion of the total sales of Government
property be made to small business concerns.
(6) Sale of electrical power or other property.--
Nothing in this subsection shall be construed to change
any preferences or priorities established by law with
respect to the sale of electrical power or other
property by the Federal Government.
(7) Costs exceeding fair market price.--A contract
may not be awarded under this subsection if the cost of
the contract to the awarding agency exceeds a fair
market price.
(b) With respect to any work to be performed the amount of
which would exceed the maximum amount of any contract for which
a surety may be guaranteed against loss under section 411 of
the Small Business Investment Act of 1958 (15 U.S.C. 694(b)),
the contracting procurement agency shall, to the extent
practicable, place contracts so as to allow more than one small
business concern to perform such work.
(c)(1) As used in this subsection:
(A) The term ``Committee'' means the Committee for
Purchase from the Blind and Other Severely Handicapped
established under the first section of the Act entitled
``An Act to create a Committee on Purchases of Blind-
made Products, and for other purposes'', approved June
25, 1938 (41 U.S.C. 46).
(B) The term ``public or private organization for the
handicapped'' has the same meaning given such term in
section 3(e).
(C) The term ``handicapped individual'' has the same
meaning given such term in section 3(f).
(2)(A) During fiscal year 1995, public or private
organizations for the handicapped shall be eligible to
participate in programs authorized under this section in an
aggregate amount not to exceed $40,000,000.
(B) None of the amounts authorized for participation by
subparagraph (A) may be placed on the procurement list
maintained by the Committee pursuant to section 2 of the Act
entitled ``An Act to create a Committee on Purchases of Blind-
made Products, and for other purposes'', approved June 25, 1938
(41 U.S.C. 47).
(3) The Administrator shall monitor and evaluate such
participation.
(4)(A) Not later than ten days after the announcement of a
proposed award of a contract by an agency or department to a
public or private organization for the handicapped, a for-
profit small business concern that has experienced or is likely
to experience severe economic injury as the result of the
proposed award may file an appeal of the proposed award with
the Administrator.
(B) If such a concern files an appeal of a proposed award
under subparagraph (A) and the Administrator, after
consultation with the Executive Director of the Committee,
finds that the concern has experienced or is likely to
experience severe economic injury as the result of the proposed
award, not later than thirty days after the filing of the
appeal, the Administration shall require each agency and
department having procurement powers to take such action as may
be appropriate to alleviate economic injury sustained or likely
to be sustained by the concern.
(5) Each agency and department having procurement powers
shall report to the Office of Federal Procurement Policy each
time a contract subject to paragraph (2)(A) is entered into,
and shall include in its report the amount of the next higher
bid submitted by a for-profit small business concern. The
Office of Federal Procurement Policy shall collect data
reported under the preceding sentence through the Federal
procurement data system and shall report to the Administration
which shall notify all such agencies and departments when the
maximum amount of awards authorized under paragraph (2)(A) has
been made during any fiscal year.
(6) For the purpose of this subsection, a contract may be
awarded only if at least 75 per centum of the direct labor
performed on each item being produced under the contract in the
sheltered workshop or performed in providing each type of
service under the contract by the sheltered workshop is
performed by handicapped individuals.
(7) Agencies awarding one or more contracts to such an
organization pursuant to the provisions of this subsection may
use multiyear contracts, if appropriate.
(d) For purposes of this section priority shall be given to
the awarding of contracts and the placement of subcontracts to
small business concerns which shall perform a substantial
proportion of the production on those contracts and
subcontracts within areas of concentrated unemployment or
underemployment or within labor surplus areas. Notwithstanding
any other provison of law, total labor surplus area set-asides
pursuant to Defense Manpower Policy Number 4 (32A C.F.R.
Chapter 1) or any successor policy shall be authorized if the
Secretary or his designee specifically determines that there is
a reasonable expectation that offers will be obtained from a
sufficient number of eligible concerns so that awards will be
made at reasonable prices. As soon as practicable and to the
extent possible, in determining labor surplus areas,
consideration shall be given to those persons who would be
available for employment were suitable employment available.
Until such definition reflects such number, the present
criteria of such policy shall govern.
(e) Procurement Strategies; Contract Bundling.--
(1) In general.--To the maximum extent practicable,
procurement strategies used by a Federal department or
agency having contracting authority shall facilitate
the maximum participation of small business concerns as
prime contractors, subcontractors, and suppliers, and
each such Federal department or agency shall--
(A) provide opportunities for the
participation of small business concerns during
acquisition planning processes and in
acquisition plans; and
(B) invite the participation of the
appropriate Director of Small and Disadvantaged
Business Utilization in acquisition planning
processes and provide that Director access to
acquisition plans.
(2) Market research.--
(A) In general.--Before proceeding with an
acquisition strategy that could lead to a
contract containing consolidated procurement
requirements, the head of an agency shall
conduct market research to determine whether
consolidation of the requirements is necessary
and justified.
(B) Factors.--For purposes of subparagraph
(A), consolidation of the requirements may be
determined as being necessary and justified if,
as compared to the benefits that would be
derived from contracting to meet those
requirements if not consolidated, the Federal
Government would derive from the consolidation
measurably substantial benefits, including any
combination of benefits that, in combination,
are measurably substantial. Benefits described
in the preceding sentence may include the
following:
(i) Cost savings.
(ii) Quality improvements.
(iii) Reduction in acquisition cycle
times.
(iv) Better terms and conditions.
(v) Any other benefits.
(C) Reduction of costs not determinative.--
The reduction of administrative or personnel
costs alone shall not be a justification for
bundling of contract requirements unless the
cost savings are expected to be substantial in
relation to the dollar value of the procurement
requirements to be consolidated.
(3) Strategy specifications.--If the head of a
contracting agency determines that an acquisition plan
for a procurement involves a substantial bundling of
contract requirements, the head of a contracting agency
shall publish a notice on a public website that such
determination has been made not later than 7 days after
making such determination. Any solicitation for a
procurement related to the acquisition plan may not be
published earlier than 7 days after such notice is
published. Along with the publication of the
solicitation, the head of a contracting agency shall
publish a justification for the determination, which
shall include the following information:
(A) The specific benefits anticipated to be
derived from the bundling of contract
requirements and a determination that such
benefits justify the bundling.
(B) An identification of any alternative
contracting approaches that would involve a
lesser degree of bundling of contract
requirements.
(C) An assessment of--
(i) the specific impediments to
participation by small business
concerns as prime contractors that
result from the bundling of contract
requirements; and
(ii) the specific actions designed to
maximize participation of small
business concerns as subcontractors
(including suppliers) at various tiers
under the contract or contracts that
are awarded to meet the requirements.
(4) Contract teaming.--
(A) In general.--In the case of a
solicitation of offers for a bundled or
consolidated contract that is issued by the
head of an agency, a small business concern
that provides for use of a particular team of
subcontractors or a joint venture of small
business concerns may submit an offer for the
performance of the contract.
(B) Evaluation of offers.--The head of the
agency shall evaluate an offer described in
subparagraph (A) in the same manner as other
offers, with due consideration to the
capabilities of all of the proposed
subcontractors or members of the joint venture
as follows:
(i) Teams.--When evaluating an offer
of a small business prime contractor
that includes a proposed team of small
business subcontractors, the head of
the agency shall consider the
capabilities and past performance of
each first tier subcontractor that is
part of the team as the capabilities
and past performance of the small
business prime contractor.
(ii) Joint ventures.--When evaluating
an offer of a joint venture of small
business concerns, if the joint venture
does not demonstrate sufficient
capabilities or past performance to be
considered for award of a contract
opportunity, the head of the agency
shall consider the capabilities and
past performance of each member of the
joint venture as the capabilities and
past performance of the joint venture.
(C) Status as a small business concern.--
Participation of a small business concern in a
team or a joint venture under this paragraph
shall not affect the status of that concern as
a small business concern for any other purpose.
(5) Past performance ratings of joint ventures for
small business concerns.--With respect to evaluating an
offer for a prime contract made by a small business
concern that previously participated in a joint venture
with another business concern (whether or not such
other business concern was itself a small business
concern), the Administrator shall establish
regulations--
(A) requiring contracting officers to
consider the record of past performance of the
joint venture when evaluating the past
performance of the small business concern; and
(B) requiring the small business concern to
inform the contracting officer what duties and
responsibilities the small business concern
carried out as part of the joint venture.
(f) Contracting Preference for Small Business Concerns in a
Major Disaster Area.--
(1) Definition.--In this subsection, the term
``disaster area'' means the area for which the
President has declared a major disaster, during the
period of the declaration.
(2) Contracting preference.--An agency shall provide
a contracting preference for a small business concern
located in a disaster area if the small business
concern will perform the work required under the
contract in the disaster area.
(3) Credit for meeting contracting goals.--If an
agency awards a contract to a small business concern
under the circumstances described in paragraph (2), the
value of the contract shall be doubled for purposes of
determining compliance with the goals for procurement
contracts under subsection (g)(1)(A).
(g)
(1) Governmentwide goals.--
(A) Establishment.--The President shall
annually establish Governmentwide goals for
procurement contracts awarded to small business
concerns, 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 in accordance with the
following:
(i) The Governmentwide goal for
participation by small business
concerns shall be established at not
less than 23 percent of the total value
of all prime contract awards for each
fiscal year. In meeting this goal, the
Government shall ensure the
participation of small business
concerns from a wide variety of
industries and from a broad spectrum of
small business concerns within each
industry.
(ii) The Governmentwide goal for
participation by small business
concerns owned and controlled by
service-disabled veterans shall be
established at not less than 3 percent
of the total value of all prime
contract and subcontract awards for
each fiscal year.
(iii) The Governmentwide goal for
participation by qualified HUBZone
small business concerns shall be
established at not less than 3 percent
of the total value of all prime
contract and subcontract awards for
each fiscal year.
(iv) The Governmentwide goal for
participation by small business
concerns owned and controlled by
socially and economically disadvantaged
individuals shall be established at not
less than 5 percent of the total value
of all prime contract and subcontract
awards for each fiscal year.
(v) The Governmentwide goal for
participation by small business
concerns owned and controlled by women
shall be established at not less than 5
percent of the total value of all prime
contract and subcontract awards for
each fiscal year.
(B) Achievement of governmentwide goals.--
Each agency shall have an annual goal that
presents, for that agency, the maximum
practicable opportunity for small business
concerns, 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 in the
performance of contracts let by such agency.
The Small Business Administration and the
Administrator for Federal Procurement Policy
shall, when exercising their authority pursuant
to paragraph (2), insure that the cumulative
annual prime contract goals for all agencies
meet or exceed the annual Governmentwide prime
contract goal established by the President
pursuant to this paragraph.
(2)(A) The head of each Federal agency shall, after
consultation with the Administration, establish goals for the
participation by small business concerns, by small business
concerns owned and controlled by service-disabled veterans, by
qualified HUBZone small business concerns, by small business
concerns owned and controlled by socially and economically
disadvantaged individuals, and by small business concerns owned
and controlled by women in procurement contracts of such
agency. Such goals shall separately address prime contract
awards and subcontract awards for each category of small
business covered.
(B) Goals established under this subsection shall be jointly
established by the Administration and the head of each Federal
agency and shall realistically reflect the potential of small
business concerns, 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 perform such
contracts and to perform subcontracts under such contracts.
(C) Whenever the Administration and the head of any Federal
agency fail to agree on established goals, the disagreement
shall be submitted to the Administrator for Federal Procurement
Policy for final determination.
(D) After establishing goals under this paragraph for a
fiscal year, the head of each Federal agency shall develop a
plan for achieving such goals at both the prime contract and
the subcontract level, which shall apportion responsibilities
among the agency's acquisition executives and officials. In
establishing goals under this paragraph, the head of each
Federal agency shall make a consistent effort to annually
expand participation by small business concerns from each
industry category in procurement contracts and subcontracts of
such agency, including participation by 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.
(E) The head of each Federal agency, in attempting to
attain expanded participation under subparagraph (D),
shall consider--
(i) contracts awarded as the result of
unrestricted competition; and
(ii) contracts awarded after competition
restricted to eligible small business concerns
under this section and under the program
established under section 8(a).
(F)(i) Each procurement employee or program manager
described in clause (ii) shall communicate to the
subordinates of the procurement employee or program
manager the importance of achieving goals established
under subparagraph (A).
(ii) A procurement employee or program
manager described in this clause is a senior
procurement executive, senior program manager,
or Director of Small and Disadvantaged Business
Utilization of a Federal agency having
contracting authority.
(3) First tier subcontracts that are awarded by Management
and Operating contractors sponsored by the Department of Energy
to small business concerns, small businesses 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 be considered toward the annually established
agency and Government-wide goals for procurement contracts
awarded.
(h) Reporting on Goals for Procurement Contracts Awarded to
Small Business Concerns.--
(1) Agency reports.--At the conclusion of each fiscal
year, the head of each Federal agency shall submit to
the Administrator a report describing--
(A) the extent of the participation by small
business concerns, small business concerns
owned and controlled by veterans (including
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 in the procurement contracts of such
agency during such fiscal year;
(B) whether the agency achieved the goals
established for the agency under subsection
(g)(2) with respect to such fiscal year;
(C) any justifications for a failure to
achieve such goals; and
(D) a remediation plan with proposed new
practices to better meet such goals, including
analysis of factors leading to any failure to
achieve such goals.
(2) Reports by administrator.--Not later than 60 days
after receiving a report from each Federal agency under
paragraph (1) with respect to a fiscal year, the
Administrator shall submit to the President and
Congress, and to make available on a public Web site, a
report that includes--
(A) a copy of each report submitted to the
Administrator under paragraph (1);
(B) a determination of whether each goal
established by the President under subsection
(g)(1) for such fiscal year was achieved;
(C) a determination of whether each goal
established by the head of a Federal agency
under subsection (g)(2) for such fiscal year
was achieved;
(D) the reasons for any failure to achieve a
goal established under paragraph (1) or (2) of
subsection (g) for such fiscal year and a
description of actions planned by the
applicable agency to address such failure,
including the Administrator's comments and
recommendations on the proposed remediation
plan; and
(E) for the Federal Government and each
Federal agency, an analysis of the number and
dollar amount of prime contracts awarded during
such fiscal year to--
(i) small business concerns--
(I) in the aggregate;
(II) through sole source
contracts;
(III) through competitions
restricted to small business
concerns;
(IV) through unrestricted
competition;
(V) that were purchased by
another entity after the
initial contract was awarded
and as a result of the
purchase, would no longer be
deemed to be small business
concerns for purposes of the
initial contract; and
(VI) that were awarded using
a procurement method that
restricted competition to 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, small business
concerns owned and controlled
by women, or a subset of any
such concerns;
(ii) small business concerns owned
and controlled by service-disabled
veterans--
(I) in the aggregate;
(II) through sole source
contracts;
(III) through competitions
restricted to small business
concerns;
(IV) through competitions
restricted to small business
concerns owned and controlled
by service-disabled veterans;
(V) through unrestricted
competition;
(VI) that were purchased by
another entity after the
initial contract was awarded
and as a result of the
purchase, would no longer be
deemed to be small business
concerns owned and controlled
by service-disabled veterans
for purposes of the initial
contract; and
(VII) that were awarded using
a procurement method that
restricted competition to
qualified HUBZone small
business concerns, small
business concerns owned and
controlled by socially and
economically disadvantaged
individuals, small business
concerns owned and controlled
by women, or a subset of any
such concerns;
(iii) qualified HUBZone small
business concerns--
(I) in the aggregate;
(II) through sole source
contracts;
(III) through competitions
restricted to small business
concerns;
(IV) through competitions
restricted to qualified HUBZone
small business concerns;
(V) through unrestricted
competition where a price
evaluation preference was used;
(VI) through unrestricted
competition where a price
evaluation preference was not
used;
(VII) that were purchased by
another entity after the
initial contract was awarded
and as a result of the
purchase, would no longer be
deemed to be qualified HUBZone
small business concerns for
purposes of the initial
contract; and
(VIII) that were awarded
using a procurement method that
restricted competition to small
business concerns owned and
controlled by service-disabled
veterans, small business
concerns owned and controlled
by socially and economically
disadvantaged individuals,
small business concerns owned
and controlled by women, or a
subset of any such concerns;
(iv) small business concerns owned
and controlled by socially and
economically disadvantaged
individuals--
(I) in the aggregate;
(II) through sole source
contracts;
(III) through competitions
restricted to small business
concerns;
(IV) through competitions
restricted to small business
concerns owned and controlled
by socially and economically
disadvantaged individuals;
(V) through unrestricted
competition;
(VI) by reason of that
concern's certification as a
small business owned and
controlled by socially and
economically disadvantaged
individuals;
(VII) that were purchased by
another entity after the
initial contract was awarded
and as a result of the
purchase, would no longer be
deemed to be small business
concerns owned and controlled
by socially and economically
disadvantaged individuals for
purposes of the initial
contract; and
(VIII) that were awarded
using a procurement method that
restricted competition to small
business concerns owned and
controlled by service-disabled
veterans, qualified HUBZone
small business concerns, small
business concerns owned and
controlled by women, or a
subset of any such concerns;
(v) small business concerns owned by
an Indian tribe (as such term is
defined in section 8(a)(13)) other than
an Alaska Native Corporation--
(I) in the aggregate;
(II) through sole source
contracts;
(III) through competitions
restricted to small business
concerns;
(IV) through competitions
restricted to small business
concerns owned and controlled
by socially and economically
disadvantaged individuals;
(V) through unrestricted
competition; and
(VI) that were purchased by
another entity after the
initial contract was awarded
and as a result of the
purchase, would no longer be
deemed to be small business
concerns owned by an Indian
tribe other than an Alaska
Native Corporation for purposes
of the initial contract;
(vi) small business concerns owned by
a Native Hawaiian Organization--
(I) in the aggregate;
(II) through sole source
contracts;
(III) through competitions
restricted to small business
concerns;
(IV) through competitions
restricted to small business
concerns owned and controlled
by socially and economically
disadvantaged individuals;
(V) through unrestricted
competition; and
(VI) that were purchased by
another entity after the
initial contract was awarded
and as a result of the
purchase, would no longer be
deemed to be small business
concerns owned by a Native
Hawaiian Organization for
purposes of the initial
contract;
(vii) small business concerns owned
by an Alaska Native Corporation--
(I) in the aggregate;
(II) through sole source
contracts;
(III) through competitions
restricted to small business
concerns;
(IV) through competitions
restricted to small business
concerns owned and controlled
by socially and economically
disadvantaged individuals;
(V) through unrestricted
competition; and
(VI) that were purchased by
another entity after the
initial contract was awarded
and as a result of the
purchase, would no longer be
deemed to be small business
concerns owned by an Alaska
Native Corporation for purposes
of the initial contract; and
(viii) small business concerns owned
and controlled by women--
(I) in the aggregate;
(II) through competitions
restricted to small business
concerns;
(III) through competitions
restricted using the authority
under section 8(m)(2);
(IV) through competitions
restricted using the authority
under section 8(m)(2) and in
which the waiver authority
under section 8(m)(3) was used;
(V) through sole source
contracts awarded using the
authority under subsection
8(m)(7);
(VI) through sole source
contracts awarded using the
authority under section
8(m)(8);
(VII) by industry for
contracts described in
subclause (III), (IV), (V), or
(VI);
(VIII) through unrestricted
competition;
(IX) that were purchased by
another entity after the
initial contract was awarded
and as a result of the
purchase, would no longer be
deemed to be small business
concerns owned and controlled
by women for purposes of the
initial contract; and
(X) that were awarded using a
procurement method that
restricted competition to 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, or a subset of any
such concerns; and
(F) for the Federal Government, the number,
dollar amount, and distribution with respect to
the North American Industry Classification
System of subcontracts awarded during such
fiscal year to small business concerns, 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, provided that such information is
publicly available through data systems
developed pursuant to the Federal Funding
Accountability and Transparency Act of 2006
(Public Law 109-282), or otherwise available as
provided in paragraph (3).
(3) Procurement data.--
(A) Federal procurement data system.--
(i) In general.--To assist in the
implementation of this section, the
Administrator shall have access to
information collected through the
Federal Procurement Data System,
Federal Subcontracting Reporting
System, or any new or successor system.
(ii) GSA report.--On the date that
the Administrator makes available the
report required under paragraph (2),
the Administrator of the General
Services Administration shall submit to
the President and Congress, and shall
make available on a public website, a
report in the same form and manner, and
including the same information, as the
report required under paragraph (2).
The report shall include all
procurements made for the period
covered by the report and may not
exclude any contract awarded.
(B) Agency procurement data sources.--To
assist in the implementation of this section,
the head of each contracting agency shall
provide, upon request of the Administrator,
procurement information collected through
agency data collection sources in existence at
the time of the request. Contracting agencies
shall not be required to establish new data
collection systems to provide such data.
(i) Nothing in this Act or any other provision of law
precludes exclusive small business set-asides for procurements
of architectural and engineering services, research,
development, test and evaluation, and each Federal agency is
authorized to develop such set-asides to further the interests
of small business in those areas.
(j)(1) Each contract for the purchase of goods and services
that has an anticipated value greater than the micro-purchase
threshold, but not greater than the simplified acquisition
threshold shall be reserved exclusively for small business
concerns unless the contracting officer is unable to obtain
offers from two or more small business concerns that are
competitive with market prices and are competitive with regard
to the quality and delivery of the goods or services being
purchased.
(2) In carrying out paragraph (1), a contracting officer
shall consider a responsive offer timely received from an
eligible small business offeror.
(3) Nothing in paragraph (1) shall be construed as precluding
an award of a contract with a value not greater than $100,000
under the authority of subsection (a) of section 8 of this Act,
section 712 of the Business Opportunity Development Reform Act
of 1988 (Public Law 100-656; 15 U.S.C. 644 note), or section
7102 of the Federal Acquisition Streamlining Act of 1994.
(k) There is hereby established in each Federal agency having
procurement powers an office to be known as the ``Office of
Small and Disadvantaged Business Utilization''. The management
of each such office shall be vested in an officer or employee
of such agency, with experience serving in any combination of
the following roles: program manager, deputy program manager,
or assistant program manager for Federal acquisition program;
chief engineer, systems engineer, assistant engineer, or
product support manager for Federal acquisition program;
Federal contracting officer; small business technical advisor;
contracts administrator for Federal Government contracts;
attorney specializing in Federal procurement law; small
business liaison officer; officer or employee who managed
Federal Government contracts for a small business; or
individual whose primary responsibilities were for the
functions and duties of section 8, 15, 31, 36, or 44 of this
Act. Such officer or employee--
(1) shall be known as the ``Director of Small and
Disadvantaged Business Utilization'' for such agency;
(2) shall be appointed by the head of such agency to
a position that is a Senior Executive Service position
(as such term is defined under section 3132(a) of title
5, United States Code), except that, for any agency in
which the positions of Chief Acquisition Officer and
senior procurement executive (as such terms are defined
under section 44(a) of this Act) are not Senior
Executive Service positions, the Director of Small and
Disadvantaged Business Utilization may be appointed to
a position compensated at not less than the minimum
rate of basic pay payable for grade GS-15 of the
General Schedule under section 5332 of such title
(including comparability payments under section 5304 of
such title);
(3) shall be responsible only to (including with
respect to performance appraisals), and report directly
and exclusively to, the head of such agency or to the
deputy of such head, except that the Director for the
Office of the Secretary of Defense shall be responsible
only to (including with respect to performance
appraisals), and report directly and exclusively to,
such Secretary or the Secretary's designee;
(4) shall be responsible for the implementation and
execution of the functions and duties under sections 8,
15, 31, 36, and 44 of this Act which relate to such
agency;
(5) shall identify proposed solicitations that
involve significant bundling of contract requirements,
and work with the agency acquisition officials and the
Administration to revise the procurement strategies for
such proposed solicitations where appropriate to
increase the probability of participation by small
businesses as prime contractors, or to facilitate small
business participation as subcontractors and suppliers,
if a solicitation for a bundled contract is to be
issued;
(6) shall assist small business concerns to obtain
payments, required late payment interest penalties, or
information regarding payments due to such concerns
from an executive agency or a contractor, in conformity
with chapter 39 of title 31, United States Code, or any
other protection for contractors or subcontractors
(including suppliers) that is included in the Federal
Acquisition Regulation or any individual agency
supplement to such Government-wide regulation;
(7) shall have supervisory authority over personnel
of such agency to the extent that the functions and
duties of such personnel relate to functions and duties
under sections 8, 15, 31, 36, and 44 of this Act;
(8) shall assign a small business technical adviser
to each office to which the Administration has assigned
a procurement center representative--
(A) who shall be a full-time employee of the
procuring activity and shall be well qualified,
technically trained and familiar with the
supplies or services purchased at the activity;
and
(B) whose principal duty shall be to assist
the Administration procurement center
representative in his duties and functions
relating to sections 8, 15, 31, 36, and 44 of
this Act,
(9) shall cooperate, and consult on a regular basis,
with the Administration with respect to carrying out
the functions and duties described in paragraph (4) of
this subsection;
(10) shall make recommendations to contracting
officers as to whether a particular contract
requirement should be awarded pursuant to subsection
(a) or section 8, 15, 31, or 36 of this Act, and the
failure of the contracting officer to accept any such
recommendations shall be documented and included within
the appropriate contract file;
(11) shall review and advise such agency on any
decision to convert an activity performed by a small
business concern to an activity performed by a Federal
employee;
(12) shall provide to the Chief Acquisition Officer
and senior procurement executive of such agency advice
and comments on acquisition strategies, market
research, and justifications related to section 44 of
this Act;
(13) may provide training to small business concerns
and contract specialists, except that such training may
only be provided to the extent that the training does
not interfere with the Director carrying out other
responsibilities under this subsection;
(14) shall receive unsolicited proposals and, when
appropriate, forward such proposals to personnel of the
activity responsible for reviewing such proposals;
(15) shall carry out exclusively the duties
enumerated in this Act, and shall, while the Director,
not hold any other title, position, or responsibility,
except as necessary to carry out responsibilities under
this subsection;
(16) shall submit, each fiscal year, to the Committee
on Small Business of the House of Representatives and
the Committee on Small Business and Entrepreneurship of
the Senate a report describing--
(A) the training provided by the Director
under paragraph (13) in the most recently
completed fiscal year;
(B) the percentage of the budget of the
Director used for such training in the most
recently completed fiscal year;
(C) the percentage of the budget of the
Director used for travel in the most recently
completed fiscal year; and
(D) any failure of the agency to comply with
section 8, 15, 31, or 36;
(17) shall, when notified by a small business concern
prior to the award of a contract that the small
business concern believes that a solicitation, request
for proposal, or request for quotation unduly restricts
the ability of the small business concern to compete
for the award--
(A) submit the notice of the small business
concern to the contracting officer and, if
necessary, recommend ways in which the
solicitation, request for proposal, or request
for quotation may be altered to increase the
opportunity for competition;
(B) inform the advocate for competition of
such agency (as established under section 1705
of title 41, United States Code, or section
2318 of title 10, United States Code) of such
notice; and
(C) ensure that the small business concern is
aware of other resources and processes
available to address unduly restrictive
provisions in a solicitation, request for
proposal, or request for quotation, even if
such resources and processes are provided by
such agency, the Administration, the
Comptroller General, or a procurement technical
assistance program established under chapter
142 of title 10, United States Code;
(18) shall review summary data provided by purchase
card issuers of purchases made by the agency greater
than the micro-purchase threshold (as defined under
section 1902 of title 41, United Stated Code) and less
than the simplified acquisition threshold to ensure
that the purchases have been made in compliance with
the provisions of this Act and have been properly
recorded in the Federal Procurement Data System, if the
method of payment is a purchase card issued by the
Department of Defense pursuant to section 2784 of title
10, United States Code, or by the head of an executive
agency pursuant to section 1909 of title 41, United
States Code;
(19) shall provide assistance to a small business
concern awarded a contract or subcontract under this
Act or under title 10 or title 41, United States Code,
in finding resources for education and training on
compliance with contracting regulations (including the
Federal Acquisition Regulation) after award of such a
contract or subcontract; and
(20) shall review all subcontracting plans required
by paragraph (4) or (5) of section 8(d) to ensure that
the plan provides maximum practicable opportunity for
small business concerns to participate in the
performance of the contract to which the plan applies.
This subsection shall not apply to the Administration.
(l) Procurement Center Representatives.--
(1) Assignment and role.--The Administrator shall
assign to each major procurement center a procurement
center representative with such assistance as may be
appropriate.
(2) Activities.--A procurement center representative
is authorized to--
(A) attend any provisioning conference or similar
evaluation session during which determinations are made
as to whether requirements are to be procured through
other than full and open competition and make
recommendations with respect to such requirements to
the members of such conference or session;
(B) review, at any time, barriers to small
business participation in Federal contracting
previously imposed on goods and services
through acquisition method coding or similar
procedures, and recommend to personnel of the
appropriate activity the prompt reevaluation of
such barriers;
(C) review barriers to small business
participation in Federal contracting arising
out of restrictions on the rights of the United
States in technical data, and, when
appropriate, recommend that personnel of the
appropriate activity initiate a review of the
validity of such an asserted restriction;
(D) review any bundled or consolidated
solicitation or contract in accordance with
this Act;
(E) have access to procurement records and
other data of the procurement center
commensurate with the level of such
representative's approved security clearance
classification, with such data provided upon
request in electronic format, when available;
(F) receive unsolicited proposals from small
business concerns and transmit such proposals
to personnel of the activity responsible for
reviewing such proposals, who shall furnish the
procurement center representative with
information regarding the disposition of any
such proposal;
(G) consult with the Director the Office of
Small and Disadvantaged Business Utilization of
that agency and the agency personnel described
in paragraph (7) and (8) of subsection (k) with
regard to agency insourcing decisions covered
by subsection (k)(11);
(H) be an advocate for the maximum
practicable utilization of small business
concerns in Federal contracting, including by
advocating against the consolidation or
bundling of contract requirements when not
justified;
(I) assist small business concerns with
finding resources for education and training on
compliance with contracting regulations
(including the Federal Acquisition Regulation)
after award of a contract or subcontract; and
(J) carry out any other responsibility
assigned by the Administrator.
(3) Appeals.--A procurement center representative is
authorized to appeal the failure to act favorably on
any recommendation made pursuant to paragraph (2). Such
appeal shall be filed and processed in the same manner
and subject to the same conditions and limitations as
an appeal filed by the Administrator pursuant to
subsection (a).
(4) The Administration shall assign and co-locate at least
two small business technical advisers to each major procurement
center in addition to such other advisers as may be authorized
from time to time. The sole duties of such advisers shall be to
assist the procurement center representative for the center to
which such advisers are assigned in carrying out the functions
described in paragraph (2) and the representatives referred to
in subsection (k)(6).
(5) Position requirements.--
(A) In general.--A procurement center
representative assigned under this subsection
shall--
(i) be a full-time employee of the
Administration;
(ii) be fully qualified, technically
trained, and familiar with the goods
and services procured by the major
procurement center to which that
representative is assigned; and
(iii) have the certification
described in subparagraph (C).
(B) Compensation.--The Administrator shall
establish personnel positions for procurement
center representatives assigned under this
subsection, which are classified at a grade
level of the General Schedule sufficient to
attract and retain highly qualified personnel.
(C) Certification requirements.--
(i) In general.--Consistent with the
requirements of clause (ii), a
procurement center representative shall
have a Level III Federal Acquisition
Certification in Contracting (or any
successor certification) or the
equivalent Department of Defense
certification, except that any person
serving in such a position on or before
January 3, 2013, may continue to serve
in that position for a period of 5
years without the required
certification.
(ii) Delay of certification
requirements.--
(I) Timing.--The
certification described in
clause (i) is not required for
any person serving as a
procurement center
representative until the date
that is one calendar year after
the date such person is
appointed as a procurement
center representative.
(II) Application.--The
requirements of subclause (I)
shall--
(aa) be included in
any initial job posting
for the position of a
procurement center
representative; and
(bb) apply to any
person appointed as a
procurement center
representative after
January 3, 2013.
(6) Major procurement center defined.--For purposes
of this subsection, the term ``major procurement
center'' means a procurement center that, in the
opinion of the Administrator, purchases substantial
dollar amounts of goods or services, including goods or
services that are commercially available.
(7) Training.--
(A) Authorization.--At such times as the
Administrator deems appropriate, the breakout
procurement center representative shall conduct
familiarization sessions for contracting
officers and other appropriate personnel of the
procurement center to which such representative
is assigned. Such sessions shall acquaint the
participants with the provisions of this
subsection and shall instruct them in methods
designed to further the purposes of such
subsection.
(B) Limitation.--A procurement center
representative may provide training under
subparagraph (A) only to the extent that the
training does not interfere with the
representative carrying out other activities
under this subsection.
(8) Annual briefing and report.--A procurement center
representative shall prepare and personally deliver an
annual briefing and report to the head of the
procurement center to which such representative is
assigned. Such briefing and report shall detail the
past and planned activities of the representative and
shall contain such recommendations for improvement in
the operation of the center as may be appropriate. The
head of such center shall personally receive such
briefing and report and shall, within 60 calendar days
after receipt, respond, in writing, to each
recommendation made by such representative.
(9) Scope of review.--The Administrator--
(A) may not limit the scope of review by the
procurement center representative for any
solicitation of a contract or task order
without regard to whether the contract or task
order or part of the contract or task order is
set aside for small business concerns, whether
1 or more contracts or task order awards are
reserved for small business concerns under a
multiple award contract, or whether or not the
solicitation would result in a bundled or
consolidated contract (as defined in subsection
(s)) or a bundled or consolidated task order;
and
(B) shall, unless the contracting agency
requests a review, limit the scope of review by
the procurement center representative for any
solicitation of a contract or task order if
such solicitation is awarded by or for the
Department of Defense and--
(i) is conducted pursuant to section
22 of the Arms Export Control Act (22
U.S.C. 2762);
(ii) is a humanitarian operation as
defined in section 401(e) of title 10,
United States Code;
(iii) is for a contingency operation,
as defined in section 101(a)(13) of
title 10, United States Code;
(iv) is to be awarded pursuant to an
agreement with the government of a
foreign country in which Armed Forces
of the United States are deployed; or
(v) both the place of award and the
place of performance are outside of the
United States and its territories.
(m) Additional Duties of Procurement Center
Representatives.--All procurement center representatives
(including those referred to in subsection (k)(6)), in addition
to such other duties as may be assigned by the Administrator,
shall increase, insofar as possible, the number and dollar
value of procurements that may be used for the programs
established under this section and section 8(a).
(n) For purposes of this section, the determination of labor
surplus areas shall be made on the basis of the criteria in
effect at the time of the determination, except that any
minimum population criteria shall not exceed twenty-five
thousand. Such determination, as modified by the preceding
sentence, shall be made by the Secretary of Labor.
(o) Limitations on Subcontracting.--A concern may not be
awarded a contract under subsection (a) as a small business
concern unless the concern agrees to satisfy the requirements
of section 46.
(p) Access to Data.--
(1) Bundled contract defined.--In this subsection,
the term ``bundled contract'' has the meaning given
such term in section 3(o)(1).
(2) Database.--
(A) In general.--Not later than 180 days
after the date of the enactment of this
subsection, the Administrator of the Small
Business Administration shall develop and shall
thereafter maintain a database containing data
and information regarding--
(i) each bundled contract awarded by
a Federal agency; and
(ii) each small business concern that
has been displaced as a prime
contractor as a result of the award of
such a contract.
(3) Analysis.--For each bundled contract that is to
be recompeted as a bundled contract, the Administrator
shall determine--
(A) the amount of savings and benefits (in
accordance with subsection (e)) achieved under
the bundling of contract requirements; and
(B) whether such savings and benefits will
continue to be realized if the contract remains
bundled, and whether such savings and benefits
would be greater if the procurement
requirements were divided into separate
solicitations suitable for award to small
business concerns.
(4) Annual report on contract bundling.--
(A) In general.--Not later than 1 year after
the date of the enactment of this paragraph,
and annually in March thereafter, the
Administration shall transmit a report on
contract bundling to the Committees on Small
Business of the House of Representatives and
the Senate.
(B) Contents.--Each report transmitted under
subparagraph (A) shall include--
(i) data on the number, arranged by
industrial classification, of small
business concerns displaced as prime
contractors as a result of the award of
bundled contracts by Federal agencies;
and
(ii) a description of the activities
with respect to previously bundled
contracts of each Federal agency during
the preceding year, including--
(I) data on the number and
total dollar amount of all
contract requirements that were
bundled; and
(II) with respect to each
bundled contract, data or
information on--
(aa) the
justification for the
bundling of contract
requirements;
(bb) the cost savings
realized by bundling
the contract
requirements over the
life of the contract;
(cc) the extent to
which maintaining the
bundled status of
contract requirements
is projected to result
in continued cost
savings;
(dd) the extent to
which the bundling of
contract requirements
complied with the
contracting agency's
small business
subcontracting plan,
including the total
dollar value awarded to
small business concerns
as subcontractors and
the total dollar value
previously awarded to
small business concerns
as prime contractors;
and
(ee) the impact of
the bundling of
contract requirements
on small business
concerns unable to
compete as prime
contractors for the
consolidated
requirements and on the
industries of such
small business
concerns, including a
description of any
changes to the
proportion of any such
industry that is
composed of small
business concerns.
(5) Access to data.--
(A) Federal procurement data system.--To
assist in the implementation of this section,
the Administration shall have access to
information collected through the Federal
Procurement Data System.
(B) Agency procurement data sources.--To
assist in the implementation of this section,
the head of each contracting agency shall
provide, upon request of the Administration,
procurement information collected through
existing agency data collection sources.
(q) Reports Related to Procurement Center Representatives.--
(1) Teaming and joint venture requirements.--
(A) In general.--Each Federal agency shall
include in each solicitation for any multiple
award contract above the substantial bundling
threshold of the Federal agency a provision
soliciting bids from any responsible source,
including responsible small business concerns
and teams or joint ventures of small business
concerns.
(B) Teams.--When evaluating an offer of a
small business prime contractor that includes a
proposed team of small business subcontractors
for any multiple award contract above the
substantial bundling threshold of the Federal
agency, the head of the agency shall consider
the capabilities and past performance of each
first tier subcontractor that is part of the
team as the capabilities and past performance
of the small business prime contractor.
(C) Joint ventures.--When evaluating an offer
of a joint venture of small business concerns
for any multiple award contract above the
substantial bundling threshold of the Federal
agency, if the joint venture does not
demonstrate sufficient capabilities or past
performance to be considered for award of a
contract opportunity, the head of the agency
shall consider the capabilities and past
performance of each member of the joint venture
as the capabilities and past performance of the
joint venture.
(2) Policies on reduction of contract bundling.--
(A) In general.--Not later than 1 year after
the date of enactment of this subsection, the
Federal Acquisition Regulatory Council
established under section 25(a) of the Office
of Federal Procurement Policy Act (41 U.S.C.
4219(a)) shall amend the Federal Acquisition
Regulation issued under section 25 of such Act
to--
(i) establish a Government-wide
policy regarding contract bundling,
including regarding the solicitation of
teaming and joint ventures under
paragraph (1); and
(ii) require that the policy
established under clause (i) be
published on the website of each
Federal agency.
(B) Rationale for contract bundling.--Not
later than 30 days after the date on which the
head of a Federal agency submits data
certifications to the Administrator for Federal
Procurement Policy, the head of the Federal
agency shall publish on the website of the
Federal agency a list and rationale for any
bundled contract for which the Federal agency
solicited bids or that was awarded by the
Federal agency.
(3) Reporting.--Not later than 90 days after the date
of enactment of this subsection, and every 3 years
thereafter, the Administrator shall submit to the
Committee on Small Business and Entrepreneurship of the
Senate and the Committee on Small Business of the House
of Representatives a report regarding procurement
center representatives and commercial market
representatives, which shall--
(A) identify each area for which the
Administration has assigned a procurement
center representative or a commercial market
representative;
(B) explain why the Administration selected
the areas identified under subparagraph (A);
and
(C) describe the activities performed by
procurement center representatives and
commercial market representatives.
(r) Multiple Award Contracts.--Not later than 1 year after
the date of enactment of this subsection, the Administrator for
Federal Procurement Policy and the Administrator, in
consultation with the Administrator of General Services, shall,
by regulation, establish guidance under which Federal agencies
may, at their discretion--
(1) set aside part or parts of a multiple award
contract for small business concerns, including the
subcategories of small business concerns identified in
subsection (g)(2);
(2) notwithstanding the fair opportunity requirements
under section 2304c(b) of title 10, United States Code,
and section 303J(b) of the Federal Property and
Administrative Services Act of 1949 (41 U.S.C.
253j(b)), set aside orders placed against multiple
award contracts for small business concerns, including
the subcategories of small business concerns identified
in subsection (g)(2); and
(3) reserve 1 or more contract awards for small
business concerns under full and open multiple award
procurements, including the subcategories of small
business concerns identified in subsection (g)(2).
(s) Data Quality Improvement Plan.--
(1) In general.--Not later than October 1, 2015, the
Administrator of the Small Business Administration, in
consultation with the Small Business Procurement
Advisory Council, the Administrator for Federal
Procurement Policy, and the Administrator of General
Services, shall develop a plan to improve the quality
of data reported on bundled or consolidated contracts
in the Federal procurement data system (described in
section 1122(a)(4)(A) of title 41, United States Code).
(2) Plan requirements.--The plan shall--
(A) describe the roles and responsibilities
of the Administrator of the Small Business
Administration, each Director of Small and
Disadvantaged Business Utilization, the
Administrator for Federal Procurement Policy,
the Administrator of General Services, senior
procurement executives, and Chief Acquisition
Officers in--
(i) improving the quality of data
reported on bundled or consolidated
contracts in the Federal procurement
data system; and
(ii) contributing to the annual
report required by subsection (p)(4);
(B) recommend changes to policies and
procedures, including training procedures of
relevant personnel, to properly identify and
mitigate the effects of bundled or consolidated
contracts;
(C) recommend requirements for periodic and
statistically valid data verification and
validation; and
(D) recommend clear data verification
responsibilities.
(3) Plan submission.--The Administrator of the Small
Business Administration shall submit the plan to the
Committee on Small Business of the House of
Representatives and the Committee on Small Business and
Entrepreneurship of the Senate not later than December
1, 2016.
(4) Implementation.--Not later than October 1, 2016,
the Administrator of the Small Business Administration
shall implement the plan described in this subsection.
(5) Certification.--The Administrator shall annually
provide to the Committee on Small Business of the House
of Representatives and the Committee on Small Business
and Entrepreneurship of the Senate a certification of
the accuracy and completeness of data reported on
bundled and consolidated contracts.
(6) Definitions.--In this subsection, the following
definitions apply:
(A) Chief acquisition officer; senior
procurement executive.--The terms ``Chief
Acquisition Officer'' and ``senior procurement
executive'' have the meanings given such terms
in section 44(a) of this Act.
(B) Bundled or consolidated contract.--The
term ``bundled or consolidated contract'' means
a bundled contract (as defined in section 3(o))
or a contract resulting from the consolidation
of contracting requirements (as defined in
section 44(a)(2)).
(t) GAO Report on Small Business Administration Programs in
Puerto Rico.--Not later than one year after the date of
enactment of this subsection, the Comptroller General of the
United States shall submit to the Committee on Small Business
of the House of Representatives and the Committee on Small
Business and Entrepreneurship of the Senate a report on the
application and utilization of contracting activities of the
Administration (including contracting activities relating to
HUBZone small business concerns) in Puerto Rico. The report
shall also identify any provisions of Federal law that may
create an obstacle to the efficient implementation of such
contracting activities.
(u) Post-Award Compliance Resources.--The Administrator shall
provide to small business development centers and entities
participating in the Procurement Technical Assistance
Cooperative Agreement Program under chapter 142 of title 10,
United States Code, and shall make available on the website of
the Administration, a list of resources for small business
concerns seeking education and assistance on compliance with
contracting regulations (including the Federal Acquisition
Regulation) after award of a contract or subcontract.
(v) Regulatory Changes and Training Materials.--Not less than
annually, the Administrator shall provide to the Defense
Acquisition University (established under section 1746 of title
10, United States Code), the Federal Acquisition Institute
(established under section 1201 of title 41, United States
Code), the individual responsible for mandatory training and
education of the acquisition workforce of each agency
(described under section 1703(f)(1)(C) of title 41, United
States Code), small business development centers, and entities
participating in the Procurement Technical Assistance
Cooperative Agreement Program under chapter 142 of title 10,
United States Code--
(1) a list of all changes made in the prior year to
regulations promulgated--
(A) by the Administrator that affect Federal
acquisition; and
(B) by the Federal Acquisition Council that
implement amendments to this Act; and
(2) any materials the Administrator has developed
that explain, train, or assist Federal agencies or
departments or small business concerns with compliance
with the regulations described in paragraph (1).
(w) Solicitation Notice Regarding Administration of Change
Orders for Construction.--
(1) In general.--With respect to any solicitation for
the award of a contract for construction anticipated to
be awarded to a small business concern, the agency
administering such contract shall provide a notice
along with the solicitation to prospective bidders and
offerors that includes--
(A) information about the agency's policies
or practices in complying with the requirements
of the Federal Acquisition Regulation relating
to the timely definitization of requests for an
equitable adjustment; and
(B) information about the agency's past
performance in definitizing requests for
equitable adjustments in accordance with
paragraph (2).
(2) Requirements for agencies.--An agency shall
provide the past performance information described
under paragraph (1)(B) as follows:
(A) For the 3-year period preceding the
issuance of the notice, to the extent such
information is available.
(B) With respect to an agency that, on the
date of the enactment of this subsection, has
not compiled the information described under
paragraph (1)(B)--
(i) beginning 1 year after the date
of the enactment of this subsection,
for the 1-year period preceding the
issuance of the notice;
(ii) beginning 2 years after the date
of the enactment of this subsection,
for the 2-year period preceding the
issuance of the notice; and
(iii) beginning 3 years after the
date of the enactment of this
subsection and each year thereafter,
for the 3-year period preceding the
issuance of the notice.
(3) Format of past performance information.--In the
notice required under paragraph (1), the agency shall
ensure that the past performance information described
under paragraph (1)(B) is set forth separately for each
definitization action that was completed during the
following periods:
(A) Not more than 30 days after receipt of a
request for an equitable adjustment.
(B) Not more than 60 days after receipt of a
request for an equitable adjustment.
(C) Not more than 90 days after receipt of a
request for an equitable adjustment.
(D) Not more than 180 days after receipt of a
request for an equitable adjustment.
(E) Not more than 365 days after receipt of a
request for an equitable adjustment.
(F) More than 365 days after receipt of a
request for an equitable adjustment.
(G) After the completion of the performance
of the contract through a contract modification
addressing all undefinitized requests for an
equitable adjustment received during the term
of the contract.
(x) Small Business Credit for Puerto Rico Businesses.--
(1) Credit for meeting contracting goals.--If an
agency awards a prime contract to Puerto Rico business
during the period beginning on the date of enactment of
this subsection and ending on the date that is 4 years
after such date of enactment, the value of the contract
shall be doubled for purposes of determining compliance
with the goals for procurement contracts under
subsection (g)(1)(A)(i) during such period.
(2) Report.--Along with the report required under
subsection (h)(1), the head of each Federal agency
shall submit to the Administrator, and make publicly
available on the scorecard described in section 868(b)
of the National Defense Authorization Act for Fiscal
Year 2016 (15 U.S.C. 644 note), an analysis of the
number and dollar amount of prime contracts awarded
pursuant to paragraph (1) for each fiscal year of the
period described in such paragraph.
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