[House Report 118-383]
[From the U.S. Government Publishing Office]
118th Congress } { Report
HOUSE OF REPRESENTATIVES
2d Session } { 118-383
======================================================================
THE WOSB INTEGRITY ACT OF 2024
_______
February 13, 2024.--Committed to the Committee of the Whole House on
the State of the Union and ordered to be printed
_______
Mr. Williams of Texas, from the Committee on Small Business, submitted
the following
R E P O R T
together with
MINORITY VIEWS
[To accompany H.R. 7128]
The Committee on Small Business, to whom was referred the
bill (H.R. 7128) to establish requirements relating to size
standard compliance of small business concerns owned and
controlled by women for certain purposes, and for other
purposes, having considered the same, reports favorably thereon
without amendment and recommends that the bill do pass.
CONTENTS
Page
I. Purpose and Bill Summary........................................2
II. Need for Legislation............................................2
III. Hearings........................................................2
IV. Committee Consideration.........................................3
V. Committee Votes.................................................3
VI. Section-by-Section of H.R. 7128.................................6
VII. Congressional Budget Office Cost Estimate.......................6
VIII. New Budget Authority, Entitlement Authority, and Tax Expenditure6
IX. Oversight Findings & Recommendations............................6
X. Performance Goals and Objectives................................7
XI. Statement of Duplication of Federal Programs....................7
XII. Congressional Earmarks, Limited Tax Benefits, and Limited Tariff
Benefits........................................................7
XIII. Federal Mandates Statement......................................7
XIV. Federal Advisory Committee Statement............................7
XV. Applicability to Legislative Branch.............................7
XVI. Statement of Constitutional Authority...........................7
XVII. Changes in Existing Law Made by the Bill, as Reported...........7
XVIII.Minority Views.................................................41
I. Purpose and Bill Summary
On January 30, 2024, Rep. Maloy, along with Rep. Scholten,
introduced H.R. 7128. The purpose of H.R. 7128, the ``WOSB
Integrity Act of 2024,'' is to ensure that the U.S. Small
Business Administration (SBA) develops processes and procedures
to ensure that applicants in the SBA Women Owned Small Business
(WOSB) program are small businesses.
II. Need for Legislation
The SBA Office of Inspector General (OIG) found that the
SBA does not have processes in place to ensure that WOSB
applicants are in fact small businesses. Women small business
owners certified in the WOSB contracting program deserve the
peace of mind that other certified firms are actually small
businesses. The SBA currently allows firms applying for
certification to self-certify that they are a small business.
This loophole could lead to fraud, and negatively impact truly
small businesses owned by women entrepreneurs.
The intent of this bill is to ensure that SBA develops
processes and procedures to consider size as a factor during
its WOSB certification process. However, the intent is not to
require the SBA to perform a full, formal size determination as
a condition to become certified. Nothing precludes the SBA from
referring a potentially large WOSB applicant for a formal size
determination, if it deems necessary, as it is a current
process. The SBA should take every possible measure to ensure
that considering an applicant's size does not slow the
certification process.
This bill is based on the SBA OIG recommendation that the
SBA develop procedures to verify size. The SBA OIG provided
additional context in Report Number 22-20:
``Both of the approved third-party certifiers that we
reviewed had documented certification procedures that required
the application reviewers verify that the firm met applicable
size standards under its primary NAICS code. In addition to
requiring applicants to submit business size documentation,
program officials should establish procedures similar to the
third-party certifiers, HUBZone, and 8(a) programs to ensure
analysts consistently verify that WOSB applicants are small
businesses.''\1\
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\1\U.S. Small Bus. Admin. Inspector Gen., 22-20, SBA'S
Implementation of the Women-Owned Small Business Certification Program,
5 (Sep. 29, 2022).
---------------------------------------------------------------------------
``OIG acknowledges that a size determination is a specific
process and is not recommending SBA perform size determinations
for each applicant. OIG believes program officials can still
certify that the business meets size standards, similar to the
procedures used to certify that 8(a) applicants meet size
requirements, to participate in the program. Without clear
regulations and procedures to verify the applicant's business
size, we believe the program is vulnerable to abuse.''\2\
---------------------------------------------------------------------------
\2\Id. at 14.
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III. Hearings
In the 118th Congress, the Committee held one hearing
examining the issues covered in H.R. 7128. On May 11, 2023, the
Committee held a hearing titled ``Leveling the Playing Field:
The State of Small Business Contracting.'' Witnesses at this
hearing discussed challenges they face taking advantage of
federal contracting opportunities like the WOSB program. This
bill will help ensure that businesses participating in the WOSB
program are actually small businesses.
IV. Committee Consideration
The Committee on Small Business met in open session, with a
quorum being present, on January 31, 2024, and ordered H.R.
7128 reported to the House of Representatives. 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 to favorably report H.R. 7128 to
the House of Representatives at 12:08 p.m.
VI. Section-by-Section of H.R. 7128
Section 1--Short title
This section cites the bill as ``The WOSB Integrity Act of
2024''.
Section 2--Women owned small business size standard compliance for
restricted competition
This section amends the Small Business Act to ensure that
WOSB firms do not exceed the relevant size standard.
This section also ensures that current WOSB firms are not
removed from the program, or lose access to contracts, because
the SBA is delayed in verifying size.
It further clarifies that the bill does not require the SBA
to conduct a full, formal size determination for each
applicant.
Finally, this section includes a technical amendment to an
incorrect reference in statute, language to ensure that no
additional funds are authorized to be appropriated to carry out
the bill, as well as definitions for Administrator, small
business concern, and small business concern owned and
controlled by women.
VII. Congressional Budget Office Cost Estimate
Pursuant to clause 3(d)(1) of House rule XIII, the
Committee adopts as its own the cost estimate prepared by the
Director of the Congressional Budget Office pursuant to section
402 of the Congressional Budget Act of 1974. The Committee has
requested but not received from the Director of the
Congressional Budget Office a cost estimate for the Committee's
provisions. Once available, the cost estimate will be published
in the Congressional Record.
VIII. New Budget Authority, Entitlement Authority, and Tax Expenditures
Pursuant to clause 3(c)(2) of rule XIII of the Rules of the
House of Representatives and section 308(a)(I) of the
Congressional Budget Act of 1974, 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. 7128 does not direct new
spending, but instead reallocates funding independently
authorized and appropriated.
IX. Oversight Findings & Recommendations
In accordance with clause 3(c)(1) of rule XIII and clause
2(b)(1) of rule X of the Rules of the House of Representatives,
the oversight findings and recommendations of the Committee on
Small Business with respect to the subject matter contained in
the H.R. 7128 are incorporated into the descriptive portions of
this report.
X. Performance Goals and Objectives
With respect to the requirements of clause 3(c)(1) of rule
XIII of the Rules of the House of Representatives, the
performance goals and objectives of H.R. 7128 do not require
additional reporting metrics. The SBA already provides
information related to WOSB certification, such as the number
of firms certified in the WOSB program.
XI. Statement of Duplication of Federal Programs
Pursuant to clause 3(c)(5) of rule XIII of the Rules of the
House of Representatives, no provision of H.R. 7128 is known to
be duplicative of another Federal program, including any
program that was included in a report to Congress pursuant to
section 21 of Public Law 111-139 or the most recent Catalog of
Federal Domestic Assistance.
XII. Congressional Earmarks, Limited Tax Benefits, and Limited Tariff
Benefits
With respect to clause 9 of rule XXI of the Rules of the
House of Representatives, the Committee finds that the bill
does not contain any congressional earmarks, limited tax
benefits, or limited tariff benefits as defined in clause 9(e),
9(f), or 9(g) of rule XXI of the Rules of the House of
Representatives.
XIII. Federal Mandates Statement
The Committee adopts as its own the estimate of Federal
mandates prepared by the Director of the Congressional Budget
Office pursuant to section 423 of the Unfunded Mandates Reform
Act.
XIV. Federal Advisory Committee Statement
No advisory committees within the meaning of section 5(b)
of the Federal Advisory Committee Act were created by this
legislation.
XV. Applicability to Legislative Branch
The Committee finds that the legislation does not relate to
the terms and conditions of employment or access to public
services or accommodations within the meaning of section
102(b)(3) of the Congressional Accountability Act.
XVI. Statement of Constitutional Authority
Pursuant to clause 7 of rule XII of the Rules of the House
of Representatives, the Committee finds that the authority for
this legislation in Art. I, Sec. 8, cl. 1 of the Constitution
of the United States.
XVII. 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 italics, 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 italics, 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
$7,000,000 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 31(b).
(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 that procedures have been adopted to
substantiate the credit the successful offeror or
bidder will elect to receive under paragraph (16)(A);
(H) 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
(I) 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 Mentor-Protege Program established under
section 4902 of title 10, United States Code, shall be granted
credit for such assistance in accordance with subsection (f) 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 30 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--
(i) 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; and
(ii) may enter or modify past performance
information of the prime contractor in
connection with the unjustified failure to make
a full or timely payment to a subcontractor
subject to this paragraph before or after
close-out of the covered contract.
(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 (F).
(E) Cooperation.--
(i) In general.--Once a contracting officer
determines, with respect to the past
performance of a prime contractor, that there
was an unjustified failure by the prime
contractor on a covered contract to make a full
or timely payment to a subcontractor covered by
subparagraph (B) or (C), the prime contractor
is required to cooperate with the contracting
officer, who shall consult with the Director of
Small Business Programs or the Director of
Small and Disadvantaged Business Utilization
acting pursuant to section 15(k)(6) and other
representatives of the Government, regarding
correcting and mitigating the unjustified
failure to make a full or timely payment to a
subcontractor.
(ii) Duration.--The duty of cooperation under
this subparagraph for a prime contractor
described in clause (i) continues until the
subcontractor is made whole or the
determination of the contracting officer
determination is no longer effective, and
regardless of performance or close-out status
of the covered contract.
(F) 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 small business concern
subcontractors.--
(A) In general.--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
a Federal agency, the prime contractor
may elect to 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 total dollar value of any
subcontracts awarded to such small
business concerns; and
(ii) if the subcontracting goals
pertain to more than one contract with
one or more Federal agencies, or to one
contract with more than one Federal
agency, the prime contractor may only
receive credit for first tier
subcontractors that are small business
concerns.
(B) Collection and review of data on
subcontracting plans.--The head of each
contracting agency shall ensure that the
agency--
(i) collects and reports data on the
extent to which prime contractors of
the agency meet the goals and
objectives set forth in subcontracting
plans submitted pursuant to this
subsection; and
(ii) periodically reviews data
collected and reported pursuant to
clause (i) for the purpose of ensuring
that such contractors comply in good
faith with the requirements of this
subsection.
(C) Rule of construction.--Nothing in this
paragraph shall be construed to allow a Federal
agency to establish a goal for an number of
subcontracts with a subcontractor at any tier
for a prime contractor otherwise eligible to
receive credit under this paragraph.
(17) Past performance ratings for certain small
business subcontractors.--Upon request by a small
business concern that performed as a first tier
subcontractor on a covered contract (as defined in
paragraph (13)(A)), the prime contractor for such
covered contract shall submit to such small business
concern a record of past performance for such small
business concern with respect to such covered contract.
If a small business concern elects to use such record
of past performance, a contracting officer shall
consider such record of past performance 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 3204(a) 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 sections 3201 through 3205 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 paragraphs (3) and (4) of section
3204(e) 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 paragraphs (3)
and (4) of section 3204(e) 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.--
(1) In general.--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.
(2) Definition of period of military conflict.--In
this subsection, the term ``period of military
conflict'' means--
(A) a period of war declared by the Congress;
(B) a period of national emergency declared
by the Congress or by the President; or
(C) a period of a contingency operation, as
defined in section 101(a) of title 10, United
States Code.
(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)] paragraph (4);
(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,
including that each such concern does not
exceed the applicable size standard established
under section 3(a).
(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) $7,000,000, in the case of a
contract opportunity assigned a
standard industrial classification code
for manufacturing; or
(ii) $4,000,000, in the case of any
other contract opportunity; and
(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) $7,000,000, in the case of a
contract opportunity assigned a
standard industrial classification code
for manufacturing; or
(ii) $4,000,000, in the case of any
other contract opportunity; and
(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.
* * * * * * *
XVIII. MINORITY VIEWS
SBA's Women-Owned Small Business (WOSB) Program is designed
to help level the playing field for women-owned small
businesses and economically disadvantaged women-owned small
businesses (EDWOSBs) in the federal marketplace. The federal
government attempts to expand contracting opportunities for
WOSBs in two main ways: (a) setting an overall goal of sending
5% of federal contracting dollars to women-owned firms and (b)
using certain authorities to make it easier to contract with
women-owned firms. These authorities allow contracting officers
to set-aside a contract exclusively for WOSBs competition and
allow contracting officers to sole source contracts to a WOSB
firm, when certain conditions are met.
The federal government topline goal of 5% of federal
spending for WOSBs has only been met twice and federal agencies
routinely miss their individual WOSB goals.
To participate in the WOSB program, the firm must be: (a) a
small business; (b) owned and controlled by one or more women
who are U.S. citizens; (c) have women manage day-to-day
operations and make long-term decisions; and (d) be certified
by the SBA, or a national certifying entity approved by the
SBA.
The IG has stated that SBA is required to verify that WOSB
program applicants meet the program criteria, including that
the firm meets the small business size requirements. The
Inspector General further believes that SBA's implementation
``is inconsistent with the statutory requirement for SBA to
certify the business meets program requirements.''\1\
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\1\``SBA Inspector General Audit Report: SBA'S Implementation of
the Women-owned Small Business Certification Program.'' Report Number
22-20, September 29, 2022: https://www.sba.gov/sites/sbagov/files/2022-
09/SBA%20OIG%20Report%2022-20.pdf.
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The language and the intent of this legislation are to
align the SBA's implementation of the WOSB program with the
IG's recommendation that ``program officials should establish
procedures similar to the third-party certifiers, HUBZone, and
8(a) programs to ensure analysts consistently verify that WOSB
applicants are small businesses.''
The authors of this legislation deliberately and
specifically included the rule of construction in subsection
(c) to ensure that implementation is aligned with the IG's
comments: ``OIG acknowledges that a size determination is a
specific process and is not recommending SBA perform size
determinations for each applicant.'' The committee does not
intend for SBA to conduct a size determination for WOSB program
applicants.
Sincerely,
Nydia M. Velazquez,
Ranking Member.