§ 637. — Additional powers.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 15USC637]
TITLE 15--COMMERCE AND TRADE
CHAPTER 14A--AID TO SMALL BUSINESS
Sec. 637. Additional powers
(a) Procurement contracts; subcontracts to disadvantaged small business
concerns; performance bonds; contract negotiations; definitions;
eligibility; determinations; publication; recruitment;
construction subcontracts; annual estimates; Indian tribes
(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 636(j)(15) of this title, if--
(i) the contract will be awarded as a result of an offer
(including price) submitted in response to a published
solicitation relating to a competition conducted pursuant to
subparagraph (D); and
(ii) the prospective contract awardee was a Program
Participant eligible for award of the contract on the date
specified for receipt of offers contained in the contract
solicitation; and
(D)(i) A contract opportunity offered for award pursuant to this
subsection shall be awarded on the basis of competition restricted
to eligible Program Participants if--
(I) there is a reasonable expectation that at least two
eligible Program Participants will submit offers and that award
can be made at a fair market price, and
(II) the anticipated award price of the contract (including
options) will exceed $5,000,000 in the case of a contract
opportunity assigned a standard industrial classification code
for manufacturing and $3,000,000 (including options) in the case
of all other contract opportunities.
(ii) The Associate Administrator for Minority Small Business and
Capital Ownership Development, on a nondelegable basis, is
authorized to approve a request from an agency to award a contract
opportunity under this subsection on the basis of a competition
restricted to eligible Program Participants even if the anticipated
award price is not expected to exceed the dollar amounts specified
in clause (i)(II). Such approvals shall be granted only on a limited
basis.
(2) Notwithstanding subsections (a) and (c) of section 270a of title
40, no small business concern shall be required to provide any amount of
any bond as a condition of 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 bond or bonds subject to the guarantee
provisions of Title IV of the Small Business Investment Act of 1958
[15 U.S.C. 692 et seq.]; and
(D) the 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 636(j)(10)(G) of this title 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 636(j)(10)(F) of this title, 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.
(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 636(j)(10)(F) of this
title;
(iii) a graduation pursuant to section 636(j)(10)(G) of this
title; 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 644(k) of this
title 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 [43 U.S.C. 1601 et seq.]) 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)(A) A concern may not be awarded a contract under this
subsection as a small business concern unless the concern agrees that--
(i) in the case of a contract for services (except
construction), at least 50 percent of the cost of contract
performance incurred for personnel shall be expended for employees
of the concern; and
(ii) in the case of a contract for procurement of supplies
(other than procurement from a regular dealer in such supplies), the
concern will perform work for at least 50 percent of the cost of
manufacturing the supplies (not including the cost of materials).
(B) The Administrator may change the percentage under clause (i) or
(ii) of subparagraph (A) if the Administrator determines that such
change is necessary to reflect conventional industry practices among
business concerns that are below the numerical size standard for
businesses in that industry category. A percentage established under the
preceding sentence may not differ from a percentage established under
section 644(o) of this title.
(C) The Administration shall establish, through public rulemaking,
requirements similar to those specified in subparagraph (A) to be
applicable to contracts for general and specialty construction and to
contracts for any other industry category not otherwise subject to the
requirements of such subparagraph. The percentage applicable to any such
requirement shall be determined in accordance with subparagraph (B),
except that such a percentage may not differ from a percentage
established under section 644(o) of this title for the same industry
category.
(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
636(j)(10)(I) of this title.
(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 for the supply of a product to be let pursuant to
this subsection or subsection (a) of section 644 of this title 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)
\1\ of title 41 (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 636(j)(13)(C) of
this title; and
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\1\ See References in Text note below.
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(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.
(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 636(j)(10) of this
title, or section 636(a)(20) of this title.
(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 636(j)(10) of this title; 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 636(j) of this title, 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 \2\ or directed.
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\2\ So in original. Probably should be ``solicited''.
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(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 636(j)(10) of this title 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 636(j)(10)(F) of this title.
(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)
of this section;
(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 [15 U.S.C. 661 et seq.]
shall be treated in the same manner as interests held by the individuals
upon whom eligibility is based.
(b) Procurement and property disposal powers; determination of small-
business concerns
It shall also be the duty of the Administration and it is 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 subparagraph
(A); and to facilitate the implementation of such volunteer programs
the Administration may maintain at its headquarters and pay the
expenses of a team of volunteers subject to such conditions and
limitations as the Administration deems appropriate: Provided, That
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
chapter, and may use payments made by the Administration pursuant to
this subparagraph for such solicitation.
(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 services:
(i) such volunteers, while carrying out activities under
this paragraph shall be deemed Federal employees for the
purposes of the Federal tort claims provisions in title 28; and
for the purposes of subchapter I of chapter 81 of title 5
(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, 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 chapter, 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 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 this paragraph 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 prescribe, 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 this paragraph, to which volunteers have
been made parties.
(G) In carrying out its functions under this chapter and to
carry out the activities authorized by title IV of the Women's
Business Ownership Act of 1988 [15 U.S.C. 7101 et seq.], the
Administration is authorized to accept, in the name of the
Administration, and employ or dispose of in furtherance of the
purposes of this chapter, 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 cooperate 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 chapter. 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 chapter.
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) \3\ of title 41, 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.
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\3\ See References in Text note below.
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(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 chapter;
(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
chapter;
(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 contracts 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 chapter and of the Small
Business Investment Act of 1958 [15 U.S.C. 661 et seq.]; 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 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
meeting 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 636(b)(3)
of this title, to local public agencies (as defined in section
110(h) of the Housing Act of 1949 [42 U.S.C. 1460(h)]) 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 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).
(c) [Reserved]
(d) Performance of contracts by small business concerns; inclusion of
required contract clause; subcontracting plans; contract
eligibility; incentives; breach of contract; review; report to
Congress
(1) It is the policy of the United States that small business
concerns, small business concerns owned and controlled by veterans,
small business concerns owned and controlled by service-disabled
veterans, qualified HUBZone small business concerns, small business
concerns owned and controlled by socially and economically disadvantaged
individuals, and small business concerns owned and controlled by women,
shall have the maximum practicable opportunity to participate in the
performance of contracts let by any Federal agency, including contracts
and subcontracts for subsystems, assemblies, components, and related
services for major systems. It is further the policy of the United
States that its prime contractors establish procedures to ensure the
timely payment of amounts due pursuant to the terms of their
subcontracts with small business concerns, small business concerns owned
and controlled by veterans, small business concerns owned and controlled
by service-disabled veterans, qualified HUBZone small business concerns,
small business concerns owned and controlled by socially and
economically disadvantaged individuals, and small business concerns
owned and controlled by women.
(2) The clause stated in paragraph (3) shall be included in all
contracts let by any Federal agency except any contract which--
(A) does not exceed the simplified acquisition threshold;
(B) including all subcontracts under such contracts will be
performed entirely outside of any State, territory, or possession of
the United States, the District of Columbia, or the Commonwealth of
Puerto Rico; or
(C) is for services which are personal in nature.
(3) The clause required by paragraph (2) shall be as follows:
``(A) It is the policy of the United States that small business
concerns, small business concerns owned and controlled by veterans,
small business concerns owned and controlled by service-disabled
veterans, qualified HUBZone small business concerns, small business
concerns owned and controlled by socially and economically
disadvantaged individuals, and small business concerns owned and
controlled by women shall have the maximum practicable opportunity
to participate in the performance of contracts let by any Federal
agency, including contracts and subcontracts for subsystems,
assemblies, components, and related services for major systems. It
is further the policy of the United States that its prime
contractors establish procedures to ensure the timely payment of
amounts due pursuant to the terms of their subcontracts with small
business concerns, small business concerns owned and controlled by
veterans, small business concerns owned and controlled by service-
disabled veterans, qualified HUBZone small business concerns, small
business concerns owned and controlled by socially and economically
disadvantaged individuals, and small business concerns owned and
controlled by women.
``(B) The contractor hereby agrees to carry out this policy in
the awarding of subcontracts to the fullest extent consistent with
the efficient performance of this contract. The contractor further
agrees to cooperate in any studies or surveys as may be conducted by
the United States Small Business Administration or the awarding
agency of the United States as may be necessary to determine the
extent of the contractor's compliance with this clause.
``(C) As used in this contract, the term `small business
concern' shall mean a small business as defined pursuant to section
3 of the Small Business Act and relevant regulations promulgated
pursuant thereto. The term `small business concern owned and
controlled by socially and economically disadvantaged individuals'
shall mean a small business concern--
``(i) which is at least 51 per centum owned by one or more
socially and economically disadvantaged individuals; or, in the
case of any publicly owned business, at least 51 per centum of
the stock of which is owned by one or more socially and
economically disadvantaged individuals; and
``(ii) whose management and daily business operations are
controlled by one or more of such individuals.
``The contractor shall presume that socially and economically
disadvantaged individuals include Black Americans, Hispanic
Americans, Native Americans, Asian Pacific Americans, and other
minorities, or any other individual found to be disadvantaged by the
Administration pursuant to section 8(a) of the Small Business Act.
``(D) The term `small business concern owned and controlled by
women' shall mean a small business concern--
``(i) which is at least 51 per centum owned by one or more
women; or, in the case of any publicly owned business, at least
51 per centum of the stock of which is owned by one or more
women; and
``(ii) whose management and daily business operations are
controlled by one or more women.
``(E) The term `small business concern owned and controlled by
veterans' shall mean a small business concern--
``(i) which is at least 51 per centum owned by one or more
eligible veterans; or, in the case of any publicly owned
business, at least 51 per centum of the stock of which is owned
by one or more veterans; and
``(ii) whose management and daily business operations are
controlled by such veterans. The contractor shall treat as
veterans all individuals who are veterans within the meaning of
the term under section 3(q) of the Small Business Act.
``(F) Contractors acting in good faith may rely on written
representations by their subcontractors regarding their status as
either a small business concern, small business concern owned and
controlled by veterans, small business concern owned and controlled
by service-disabled veterans, a small business concern owned and
controlled by socially and economically disadvantaged individuals,
or a small business concern owned and controlled by women.
``(G) In this contract, the term `qualified HUBZone small
business concern' has the meaning given that term in section 3(p) of
the Small Business Act.''
(4)(A) Each solicitation of an offer for a contract to be let by a
Federal agency which is to be awarded pursuant to the negotiated method
of procurement and which may exceed $1,000,000, in the case of a
contract for the construction of any public facility, or $500,000, in
the case of all other contracts, shall contain a clause notifying
potential offering companies of the provisions of this subsection
relating to contracts awarded pursuant to the negotiated method of
procurement.
(B) Before the award of any contract to be let, or any amendment or
modification to any contract let, by any Federal agency which--
(i) is to be awarded, or was let, pursuant to the negotiated
method of procurement,
(ii) is required to include the clause stated in paragraph (3),
(iii) may exceed $1,000,000 in the case of a contract for the
construction of any public facility, or $500,000 in the case of all
other contracts, and
(iv) which offers subcontracting possibilities,
the apparent successful offeror shall negotiate with the procurement
authority a subcontracting plan which incorporates the information
prescribed in paragraph (6). The subcontracting plan shall be included
in and made a material part of the contract.
(C) If, within the time limit prescribed in regulations of the
Federal agency concerned, the apparent successful offeror fails to
negotiate the subcontracting plan required by this paragraph, such
offeror shall become ineligible to be awarded the contract. Prior
compliance of the offeror with other such subcontracting plans shall be
considered by the Federal agency in determining the responsibility of
that offeror for the award of the contract.
(D) No contract shall be awarded to any offeror unless the
procurement authority determines that the plan to be negotiated by the
offeror pursuant to this paragraph provides the maximum practicable
opportunity for small business concerns, qualified HUBZone small
business concerns, small business concerns owned and controlled by
veterans, small business concerns owned and controlled by service-
disabled veterans, small business concerns owned and controlled by
socially and economically disadvantaged individuals, and small business
concerns owned and controlled by women to participate in the performance
of the contract.
(E) Notwithstanding any other provision 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
contract: 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 imposition 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);
(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; and
(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.
(7) The provisions of paragraphs (4), (5), and (6) shall not apply
to offerors or bidders who are small business concerns.
(8) The failure of any contractor or subcontractor to comply in good
faith with--
(A) the clause contained in paragraph (3) of this subsection, or
(B) any plan required of such contractor pursuant to the
authority of this subsection to be included in its contract or
subcontract,
shall be a material breach of such contract or subcontract.
(9) 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.
(10) 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, either on a
contract-by-contract basis, or in the case contractors having
multiple contracts, on an aggregate basis.
(11) For purposes of determining the attainment of a subcontract
utilization goal under any subcontracting plan entered into with any
executive agency pursuant to this subsection, a mentor firm providing
development assistance to a protege firm under the pilot Mentor-Protege
Program established pursuant to section 831 of the National Defense
Authorization Act for Fiscal Year 1991 (Public Law 101-510; 10 U.S.C.
2301 note [2302 note]) shall be granted credit for such assistance in
accordance with subsection (g) of such section.
(e) Covered executive agency activities; procurement notice;
publication; time limitations
(1) Except as provided in subsection (g) of this section--
(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, basic ordering agreement, or similar
arrangement,
shall publish a notice described in subsection (f) of this section;
(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) of this section--
(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;
(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 416(a)(7) of title 41; 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) Contents of notice
Each notice of solicitation required by subparagraph (A) or (B) of
subsection (e)(1) of this section 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) Exempted, etc., activities of executive agency
(1) A notice is not required under subsection (e)(1) of this section
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 638 of this title;
(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) of this section 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), or (7) of section 2304(c) of title 10.
(3) The requirements of subsection (a)(1)(A) of this section 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) Award of contracts; procedures other than competitive ones;
exceptions
(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 414(3) of title 41 (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 seq.) or
chapter 137 of title 10, as appropriate, have been satisfied.
(2) The same exceptions as are provided in section 303(f)(2) of the
Federal Property and Administrative Services Act of 1949 (41 U.S.C.
253(f)(2)) or section 2304(f)(2) of title 10 shall apply with respect to
the requirements of paragraph (1)(A) of this subsection in the same
manner as such exceptions apply to the requirements of section 303(f)(1)
of such Act or section 2304(f)(1) of such title, as appropriate.
(i) Availability; complete solicitation package; fees
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) of this section. An executive agency may require
the payment of a fee, not exceeding the actual cost of duplication, for
a copy of such package.
(j) ``Executive agency'' defined
For purposes of this section, the term ``executive agency'' has the
meaning provided such term in section 403(1) of title 41.
(k) Notices of subcontracting opportunities
(1) In general
Notices of subcontracting opportunities may be submitted for
publication in the Commerce Business Daily by--
(A) a business concern awarded a contract by an executive
agency subject to subsection (e)(1)(C) of this section; 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) of this section; and
(B) the due date for receipt of offers.
(l) Management assistance for small businesses affected by military
operations
The Administration shall utilize, as appropriate, its
entrepreneurial development and management assistance programs,
including programs involving State or private sector partners, to
provide business counseling and training to any small business concern
adversely affected by the deployment of units of the Armed Forces of the
United States in support of a period of military conflict (as defined in
section 636(n)(1) of this title).
(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 423(f)(5) of title 41.
(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 632(n) of
this title, except that ownership shall be determined without
regard to any community property law.
(2) Authority to restrict competition
In accordance with this subsection, a contracting officer may
restrict competition for any contract for the procurement of goods
or services by the Federal Government to small business concerns
owned and controlled by women, if--
(A) each of the concerns is not less than 51 percent owned
by one or more women who are economically disadvantaged (and
such ownership is determined without regard to any community
property law);
(B) the contracting officer has a reasonable expectation
that two or more small business concerns owned and controlled by
women will submit offers for the contract;
(C) the contract is for the procurement of goods or services
with respect to an industry identified by the Administrator
pursuant to paragraph (3);
(D) the anticipated award price of the contract (including
options) does not exceed--
(i) $5,000,000, in the case of a contract assigned an
industrial classification code for manufacturing; or
(ii) $3,000,000, in the case of all other contracts;
(E) in the estimation of the contracting officer, the
contract award can be made at a fair and reasonable price; and
(F) each of the concerns--
(i) is certified by a Federal agency, a State
government, or a national certifying entity approved by the
Administrator, as a small business concern owned and
controlled by women; or
(ii) certifies to the contracting officer that it is a
small business concern owned and controlled by women and
provides adequate documentation, in accordance with
standards established by the Administration, to support such
certification.
(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)(F)); 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)(F).
(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)(F).
(C) Penalties
In addition to the penalties described in section 645(d) of
this title, 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; and
(ii) sections 3729 through 3733 of title 31.
(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.
(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.
(Pub. L. 85-536, Sec. 2[8], July 18, 1958, 72 Stat. 389; Pub. L. 87-305,
Secs. 7, 8, Sept. 26, 1961, 75 Stat. 667, 668; Pub. L. 88-560, title
III, Sec. 305(c), Sept. 2, 1964, 78 Stat. 786; Pub. L. 89-754, title X,
Sec. 1017, Nov. 3, 1966, 80 Stat. 1295; Pub. L. 90-104, title I,
Secs. 105-107, Oct. 11, 1967, 81 Stat. 268, 269; Pub. L. 91-375,
Sec. 6(g), Aug. 12, 1970, 84 Stat. 776; Pub. L. 95-89, title V,
Sec. 501, Aug. 4, 1977, 91 Stat. 561; Pub. L. 95-507, title II,
Secs. 202(a), 211, Oct. 24, 1978, 92 Stat. 1761, 1767; Pub. L. 95-510,
Sec. 101, Oct. 24, 1978, 92 Stat. 1780; Pub. L. 96-302, title I,
Sec. 118(b), July 2, 1980, 94 Stat. 840; Pub. L. 96-481, title I,
Secs. 101, 105, Oct. 21, 1980, 94 Stat. 2321, 2322; Pub. L. 98-47,
Secs. 1(a), 2, 3, July 13, 1983, 97 Stat. 243; Pub. L. 98-72, Sec. 1(a),
Aug. 11, 1983, 97 Stat. 403; Pub. L. 98-362, Sec. 5(a), July 16, 1984,
98 Stat. 433; Pub. L. 98-577, title IV, Secs. 401, 402, 404(a), Oct. 30,
1984, 98 Stat. 3079, 3082; Pub. L. 99-272, title XVIII, Sec. 18015(b)-
(d), Apr. 7, 1986, 100 Stat. 370, 371; Pub. L. 99-500 Sec. 101(c) [title
X, Secs. 921(b)(2), (c)(1), 922(a), (d)(1)], Oct. 18, 1986, 100 Stat.
1783-82, 1783-147, 1783-151, 1783-152, and Pub. L. 99-591, Sec. 101(c)
[title X, Secs. 921(b)(2), (c)(1), 922(a), (d)(1)], Oct. 30, 1986, 100
Stat. 3341-82, 3341-147, 3341-151, 3341-152; Pub. L. 99-567, Secs. 1(a),
2, 3, Oct. 27, 1986, 100 Stat. 3188; Pub. L. 99-661, div. A, title IX,
formerly title IV, Secs. 921(b)(2), (c)(1), 922(a), (d)(1), Nov. 14,
1986, 100 Stat. 3927, 3930, 3932, renumbered title IX, Pub. L. 100-26,
Sec. 3(5), Apr. 21, 1987, 101 Stat. 273; Pub. L. 100-26, Sec. 10(b)(3),
Apr. 21, 1987, 101 Stat. 288; Pub. L. 100-533, title II, Secs. 201, 202,
Oct. 25, 1988, 102 Stat. 2690, 2692; Pub. L. 100-590, title I,
Secs. 127(a), (b), 131(b), Nov. 3, 1988, 102 Stat. 3001, 3003, 3004;
Pub. L. 100-656, title II, Secs. 201(b), 207(a), (c), 209, title III,
Secs. 303(b)-(e), (g), (h), 304(a), title IV, Secs. 402-404, 407, 409,
title V, Sec. 501, Nov. 15, 1988, 102 Stat. 3858, 3861, 3863, 3869,
3870, 3872-3874, 3876, 3878, 3880; Pub. L. 101-37, Secs. 6(b), (d),
7(b), 10(c), (e), 12-14, 16, 17, June 15, 1989, 103 Stat. 72-74; Pub. L.
101-162, title V, (3), Nov. 21, 1989, 103 Stat. 1025; Pub. L. 101-510,
div. A, title VIII, Sec. 806(e)(2), Nov. 5, 1990, 104 Stat. 1593; Pub.
L. 101-574, title II, Secs. 204(b), 207, 210, 244, Nov. 15, 1990, 104
Stat. 2819-2821, 2827; Pub. L. 102-190, div. A, title VIII, Sec. 814(c),
Dec. 5, 1991, 105 Stat. 1425; Pub. L. 102-191, Sec. 3, Dec. 5, 1991, 105
Stat. 1591; Pub. L. 102-366, title II, Sec. 232(a), Sept. 4, 1992, 106
Stat. 1001; Pub. L. 102-564, title III, Secs. 303(a), 304, Oct. 28,
1992, 106 Stat. 4262; Pub. L. 103-355, title I, Sec. 1055(b)(2), title
IV, Secs. 4202(d), 4404(b), title VII, Sec. 7106(b), Oct. 13, 1994, 108
Stat. 3265, 3345, 3349, 3375; Pub. L. 103-403, title IV,
Secs. 401(a)(1), 407, 415, Oct. 22, 1994, 108 Stat. 4190, 4192, 4198;
Pub. L. 104-106, div. D, title XLIII, Sec. 4321(c)(1), (2), Feb. 10,
1996, 110 Stat. 674; Pub. L. 105-85, div. A, title VIII, Sec. 850(e)(1),
Nov. 18, 1997, 111 Stat. 1848; Pub. L. 105-135, title IV, Secs. 415,
416(a), (c), title VI, Sec. 603(a), title VII, Sec. 708, Dec. 2, 1997,
111 Stat. 2619, 2620, 2631, 2637; Pub. L. 106-50, title III,
Sec. 303(a), title V, Sec. 501, Aug. 17, 1999, 113 Stat. 243, 247; Pub.
L. 106-398, Sec. 1 [[div. A], title VIII, Sec. 810(c)], Oct. 30, 2000,
114 Stat. 1654, 1654A-209; Pub. L. 106-554, Sec. 1(a)(8) [Sec. 2],
Sec. 1(a)(9) [title V, Sec. 504(a), title VI, Sec. 615(b), title VIII,
Secs. 803, 807, 809, 811], Dec. 21, 2000, 114 Stat. 2763, 2763A-666,
2763A-695, 2763A-701, 2763A-702, 2763A-706, 2763A-708.)
Amendment of Section
For repeal by section 401(a) of Pub. L. 103-403 of amendments
made by section 5(a) of Pub. L. 98-362, see 1994 Amendment note and
Effective and Termination Dates of 1984 Amendments note below.
References in Text
The Small Business Investment Act of 1958, referred to in subsecs.
(a)(2)(C), (21)(D), and (b)(13), is Pub. L. 85-699, Aug. 21, 1958, 72
Stat. 689, as amended, which is classified principally to chapter 14B
(Sec. 661 et seq.) of this title. Title IV of the Small Business
Investment Act of 1958 is classified generally to subchapter IV-A
(Sec. 692 et seq.) of chapter 14B of this title. For complete
classification of this Act to the Code, see Short Title note set out
under section 661 of this title and Tables.
The Alaska Native Claims Settlement Act, referred to in subsec.
(a)(13), is Pub. L. 92-203, Dec. 18, 1971, 85 Stat. 688, as amended,
which is classified generally to chapter 33 (Sec. 1601 et seq.) of Title
43, Public Lands. For complete classification of this Act to the Code,
see Short Title note set out under section 1601 of Title 43 and Tables.
Section 35(a) of title 41, referred to in subsecs. (a)(17)(B)(iii)
and (b)(7)(B), was struck out and former section 35(b) of title 41
redesignated section 35(a) by Pub. L. 103-355, title VII, Sec. 7201(1),
Oct. 13, 1994, 108 Stat. 3378.
The Walsh-Healey Public Contracts Act, referred to in subsec.
(a)(17)(B)(iii), probably means act June 30, 1936, ch. 881, 49 Stat.
2036, as amended, known as the Walsh-Healey Act, which is classified
generally to sections 35 to 45 of Title 41, Public Contracts. For
complete classification of this Act to the Code, see Short Title note
set out under section 35 of Title 41 and Tables. See also section 262 of
Title 29, Labor.
The Program Fraud Civil Remedies Act of 1986, referred to in subsec.
(a)(18)(C)(iv), is subtitle B of title VI of Pub. L. 99-509, Oct. 21,
1986, 100 Stat. 1934, as amended, which is classified generally to
chapter 38 (Sec. 3801 et seq.) of Title 31, Money and Finance. For
complete classification of this Act to the Code, see Short Title note
set out under section 3801 of Title 31 and Tables.
The Federal tort claims provisions in title 28, referred to in
subsec. (b)(1)(C)(i), are classified to section 1346(b) and chapter 171
(Sec. 2671 et seq.) of Title 28, Judiciary and Judicial Procedure.
The Women's Business Ownership Act of 1988, referred to in subsec.
(b)(1)(G), is Pub. L. 100-533, Oct. 25, 1988, 102 Stat. 2689, as
amended. Title IV of the Act is classified generally to chapter 97
(Sec. 7101 et seq.) of this title. For complete classification of this
Act to the Code, see Short Title of 1988 Amendments note set out under
section 631 of this title and Tables.
Section 110 of the Housing Act of 1949 [42 U.S.C. 1460], referred to
in subsec. (b)(14), was omitted from the Code pursuant to section 5316
of Title 42, The Public Health and Welfare, which terminated authority
to make grants or loans under title I of that Act [42 U.S.C. 1450 et
seq.] after Jan. 1, 1975.
Sections 3 and 8 of the Small Business Act, referred to in subsec.
(d)(3)(C), (E)(ii), (G), are classified to sections 632 and 637,
respectively, of this title.
The Contract Disputes Act of 1978, referred to in subsec.
(d)(4)(F)(ii), is Pub. L. 95-563, Nov. 1, 1978, 92 Stat. 2383, as
amended, which is classified principally to chapter 9 (Sec. 601 et seq.)
of Title 41, Public Contracts. For complete classification of this Act
to the Code, see Short Title note set out under section 601 of Title 41
and Tables.
The Federal Property and Administrative Services Act of 1949,
referred to in subsec. (h)(1)(B), is act June 30, 1949, ch. 288, 63
Stat. 377, as amended. Title III of the Act is classified generally to
subchapter IV (Sec. 251 et seq.) of chapter 4 of Title 41, Public
Contracts. For complete classification of this Act to the Code, see
Tables.
Codification
Pub. L. 99-591 is a corrected version of Pub. L. 99-500.
Prior Provisions
Prior similar provisions were contained in sections 207(b)(2),
(b)(4), 208, 210, 212 and 216 of act July 30, 1953, ch. 282, title II,
67 Stat. 235-239, as amended by acts Aug. 9, 1955, ch. 628, Secs. 2, 5,
7, 69 Stat. 547, 550; Feb. 2, 1956, ch. 29, Secs. 2, 3, 70 Stat. 10,
which were previously classified to this section and sections 636, 639,
641, and 645 of this title. See Codification note set out under section
631 of this title.
Amendments
2000--Subsec. (a)(15)(A). Pub. L. 106-554, Sec. 1(a)(9) [title VIII,
Sec. 807], amended subpar. (A) generally. Prior to amendment, subpar.
(A) read as follows: ``is a not-for-profit organization chartered by the
State of Hawaii,''.
Subsec. (b)(1)(A). Pub. L. 106-554, Sec. 1(a)(9) [title V,
Sec. 504(a)], amended subpar. (A) generally. Prior to amendment, subpar.
(A) read as follows: ``to provide technical and managerial aids to
small-business concerns, by advising and counseling on matters in
connection with Government procurement and property disposal and on
policies, principles, and practices of good management, including but
not limited to cost accounting, methods of financing, business
insurance, accident control, wage incentives, computer security, and
methods engineering, by cooperating and advising with voluntary
business, professional, educational, and other nonprofit organizations,
associations, and institutions and with other Federal and State
agencies, by maintaining a clearinghouse for information concerning the
managing, financing, and operation of small-business enterprises,
including information on the benefits and risks of franchising, by
disseminating such information, and by such other activities as are
deemed appropriate by the Administration; and In the case of cosponsored
activities which include the participation of a Federal, State, or local
public official or agency, the Administration shall take such actions as
it deems necessary to ensure that the cooperation does not constitute or
imply an endorsement by the Administration of or give undue recognition
to the public official or agency, and the Administration shall ensure
that it receives appropriate recognition in all cosponsored printed
materials, whether the participant is a profit making concern or a
governmental agency or public official.''
Subsec. (b)(1)(B). Pub. L. 106-554, Sec. 1(a)(9) [title VIII,
Sec. 809], inserted at end ``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 chapter, and may use
payments made by the Administration pursuant to this subparagraph for
such solicitation.''
Subsec. (d)(1). Pub. L. 106-554, Sec. 1(a)(9) [title VIII,
Sec. 803(1)], inserted ``small business concerns owned and controlled by
veterans,'' after ``small business concerns,'' the first place appearing
in the first and second sentences.
Subsec. (d)(3)(A). Pub. L. 106-554, Sec. 1(a)(9) [title VIII,
Sec. 803(2)(A)], inserted ``small business concerns owned and controlled
by service-disabled veterans,'' after ``small business concerns owned
and controlled by veterans,'' in two places.
Subsec. (d)(3)(F). Pub. L. 106-554, Sec. 1(a)(9) [title VIII,
Sec. 803(2)(B)], inserted ``small business concern owned and controlled
by service-disabled veterans,'' after ``small business concern owned and
controlled by veterans,''.
Subsec. (d)(4)(D). Pub. L. 106-554, Sec. 1(a)(9) [title VIII,
Sec. 803(3)], inserted ``small business concerns owned and controlled by
service-disabled veterans,'' after ``small business concerns owned and
controlled by veterans,''.
Pub. L. 106-554, Sec. 1(a)(9) [title VI, Sec. 615(b)], inserted
``qualified HUBZone small business concerns,'' after ``small business
concerns,''.
Subsec. (d)(4)(E), (6)(A), (C), (F), (10)(B). Pub. L. 106-554,
Sec. 1(a)(9) [title VIII, Sec. 803(3)], inserted ``small business
concerns owned and controlled by service-disabled veterans,'' after
``small business concerns owned and controlled by veterans,''.
Subsec. (e)(1)(A). Pub. L. 106-398, Sec. 1 [[div. A], title VIII,
Sec. 810(c)(1)], substituted ``publish'' for ``furnish for publication
by the Secretary of Commerce'' in concluding provisions.
Subsec. (e)(2). Pub. L. 106-398, Sec. 1 [[div. A], title VIII,
Sec. 810(c)(2)], added par. (2) and struck out former par. (2) which
read as follows: ``The Secretary of Commerce shall publish promptly in
the Commerce Business Daily each notice required by paragraph (1).''
Subsec. (e)(3). Pub. L. 106-398, Sec. 1 [[div. A], title VIII,
Sec. 810(c)(3)], substituted ``publish a notice of solicitation'' for
``furnish a notice to the Secretary of Commerce'' in introductory
provisions and struck out ``by the Secretary of Commerce'' after
``notice is published'' in subpar. (A).
Subsec. (m). Pub. L. 106-554, Sec. 1(a)(9) [title VIII, Sec. 811],
added subsec. (m).
Subsec. (n). Pub. L. 106-554, Sec. 1(a)(8) [Sec. 2], added subsec.
(n).
1999--Subsec. (d)(1). Pub. L. 106-50, Sec. 501(a), inserted ``small
business concerns owned and controlled by service-disabled veterans,''
after ``small business concerns,'' in two places.
Subsec. (d)(3)(A). Pub. L. 106-50, Sec. 501(b)(1), inserted ``small
business concerns owned and controlled by veterans,'' after ``small
business concerns,'' in two places.
Subsec. (d)(3)(E). Pub. L. 106-50, Sec. 501(b)(2), added subpar.
(E). Former subpar. (E) redesignated (F).
Subsec. (d)(3)(F). Pub. L. 106-50, Sec. 501(b)(2), (3), redesignated
subpar. (E) as (F) and inserted ``small business concern owned and
controlled by veterans,'' after ``small business concern,''. Former
subpar. (F) redesignated (G).
Subsec. (d)(3)(G). Pub. L. 106-50, Sec. 501(b)(2), redesignated
subpar. (F) as (G).
Subsec. (d)(4)(D), (E), (6)(A), (C), (F), (10)(B). Pub. L. 106-50,
Sec. 501(c), inserted ``small business concerns owned and controlled by
veterans,'' after ``small business concerns,'' the first place
appearing.
Subsec. (l). Pub. L. 106-50, Sec. 303(a), added subsec. (l).
1997--Subsec. (b)(16). Pub. L. 105-135, Sec. 708(3), struck out the
par. (16) added by Pub. L. 100-590, Sec. 127(b). See 1988 Amendment note
below.
Subsec. (b)(17). Pub. L. 105-135, Sec. 708, added par. (17).
Subsec. (d)(1). Pub. L. 105-135, Sec. 603(a)(1)(B), inserted
``qualified HUBZone small business concerns,'' after ``small business
concerns,'' in second sentence.
Pub. L. 105-135, Sec. 603(a)(1)(A), which directed substitution of
``, qualified HUBZone small business concerns, small business concerns
owned and controlled by socially and economically disadvantaged
individuals'' for ``,, small business concerns owned and controlled by
socially and economically disadvantaged individuals'' in first sentence,
was executed by making the substitution for ``, small business concerns
owned and controlled by socially and economically disadvantaged
individuals'' to reflect the probable intent of Congress and the
amendment by Pub. L. 104-106, Sec. 4321(c)(1)(A). See 1996 Amendment
note below.
Subsec. (d)(3)(A). Pub. L. 105-135, Sec. 603(a)(2)(A), inserted
``qualified HUBZone small business concerns,'' after ``small business
concerns,'' in two places.
Subsec. (d)(3)(F). Pub. L. 105-135, Sec. 603(a)(2)(B), added subpar.
(F).
Subsec. (d)(4)(E). Pub. L. 105-135, Sec. 603(a)(3), substituted
``small business concerns, qualified HUBZone small business concerns,
and'' for ``small business concerns and'' after ``opportunities for''.
Subsec. (d)(4)(G). Pub. L. 105-135, Sec. 415, added subpar. (G).
Subsec. (d)(6). Pub. L. 105-135, Sec. 603(a)(4), inserted
``qualified HUBZone small business concerns,'' after ``small business
concerns,'' wherever appearing.
Subsec. (d)(10)(B). Pub. L. 105-135, Sec. 603(a)(5), inserted
``qualified HUBZone small business concerns,'' after ``small business
concerns,''.
Subsec. (e)(1)(C). Pub. L. 105-135, Sec. 416(c), substituted
``$100,000'' for ``$25,000'' in two places.
Subsec. (g)(1). Pub. L. 105-85 added subpar. (A), redesignated
subpars. (C) to (H) as (B) to (G), respectively, and struck out former
subpars. (A) and (B) which read as follows:
``(A) the proposed procurement is for an amount not greater than the
simplified acquisition threshold and is to be made through a system with
interim FACNET capability certified pursuant to section 426a(a)(1) of
title 41 or with full FACNET capability certified pursuant to section
426a(a)(2) of title 41;
``(B)(i) the proposed procurement is for an amount not greater than
$250,000 and is to be made through a system with full FACNET capability
certified pursuant to section 426a(a)(2) of title 41; and
``(ii) a certification has been made pursuant to section 426a(b)
title 41 that Government-wide FACNET capability has been implemented;''.
Subsec. (k). Pub. L. 105-135, Sec. 416(a), added subsec. (k).
1996--Subsec. (d)(1). Pub. L. 104-106, Sec. 4321(c)(1)(A),
substituted ``that small business concerns,'' for ``that small business
concerns,,''.
Subsec. (d)(6)(C). Pub. L. 104-106, Sec. 4321(c)(1)(B), substituted
``, small business concerns owned and controlled by socially and
economically disadvantaged individuals, and small business concerns
owned and controlled by women'' for ``and small business concerns owned
and controlled by the socially and economically disadvantaged
individuals''.
Subsec. (f)(5). Pub. L. 104-106, Sec. 4321(c)(2), inserted ``and''
at end.
1994--Subsec. (b)(1)(A). Pub. L. 103-403, Sec. 407, inserted
``including information on the benefits and risks of franchising,''
after ``small-business enterprises,'' in first sentence.
Pub. L. 103-403, Sec. 401(a)(1), provided for prospective repeal of
amendments made by Pub. L. 98-362, Sec. 5(a). Amendment by Pub. L. 98-
362, Sec. 5(a)(2), previously repealed effective Oct. 1, 1994, by
section 7(b) of Pub. L. 98-362, as amended. See Effective and
Termination Dates of 1984 Amendments notes below.
Subsec. (b)(1)(G). Pub. L. 103-403, Sec. 415, substituted ``this
chapter and to carry out the activities authorized by title IV of the
Women's Business Ownership Act of 1988'' for ``this paragraph''.
Subsec. (d)(1). Pub. L. 103-355, Sec. 7106(b)(1), substituted ``,
small business concerns owned and controlled by socially and
economically disadvantaged individuals, and small business concerns
owned and controlled by women'' for ``and small business concerns owned
and controlled by socially and economically disadvantaged individuals''
in two places.
Subsec. (d)(2)(A). Pub. L. 103-355, Sec. 4404(b), substituted
``simplified acquisition threshold'' for ``small purchase threshold''.
Subsec. (d)(3)(A). Pub. L. 103-355, Sec. 7106(b)(1), substituted ``,
small business concerns owned and controlled by socially and
economically disadvantaged individuals, and small business concerns
owned and controlled by women'' for ``and small business concerns owned
and controlled by socially and economically disadvantaged individuals''
in two places.
Subsec. (d)(3)(D), (E). Pub. L. 103-355, Sec. 7106(b)(2), (3), added
subpars. (D) and (E) and struck out former subpar. (D) which read as
follows: `` `Contractors acting in good faith may rely on written
representations by their subcontractors regarding their status as either
a small business concern or a small business concern owned and
controlled by socially and economically disadvantaged individuals.' ''
Subsec. (d)(4)(D). Pub. L. 103-355, Sec. 7106(b)(1), substituted ``,
small business concerns owned and controlled by socially and
economically disadvantaged individuals, and small business concerns
owned and controlled by women'' for ``and small business concerns owned
and controlled by socially and economically disadvantaged individuals''.
Subsec. (d)(4)(E). Pub. L. 103-355, Sec. 7106(b)(4), inserted ``and
for small business concerns owned and controlled by women'' after ``(3)
of this subsection''.
Subsec. (d)(6)(A). Pub. L. 103-355, Sec. 7106(b)(1), substituted ``,
small business concerns owned and controlled by socially and
economically disadvantaged individuals, and small business concerns
owned and controlled by women'' for ``and small business concerns owned
and controlled by socially and economically disadvantaged individuals''.
Subsec. (d)(6)(C). Pub. L. 103-355, Sec. 7106(b)(1), which directed
that subpar. (C) be amended by substituting ``, small business concerns
owned and controlled by socially and economically disadvantaged
individuals, and small business concerns owned and controlled by women''
for ``and small business concerns owned and controlled by socially and
economically disadvantaged individuals'', could not be executed because
the words ``and small business concerns owned and controlled by socially
and economically disadvantaged individuals'' did not appear in subpar.
(C).
Subsec. (d)(6)(F), (10)(B). Pub. L. 103-355, Sec. 7106(b)(1),
substituted ``, small business concerns owned and controlled by socially
and economically disadvantaged individuals, and small business concerns
owned and controlled by women'' for ``and small business concerns owned
and controlled by socially and economically disadvantaged individuals''.
Subsec. (e)(1). Pub. L. 103-355, Sec. 4202(d)(1)(A), substituted
``$25,000'' for ``the small purchase threshold'' wherever appearing.
Subsec. (e)(3)(B). Pub. L. 103-355, Sec. 4202(d)(1)(B), inserted
``in the case of a contract or order estimated to be greater than the
simplified acquisition threshold,'' after ``(B)''.
Subsec. (f)(6). Pub. L. 103-355, Sec. 4202(d)(2), added par. (6).
Subsec. (g)(1)(A) to (E). Pub. L. 103-355, Sec. 4202(d)(3)(A), (B),
added subpars. (A) and (B) and redesignated former subpars. (A) to (C)
as (C) to (E), respectively. Former subpars. (D) and (E) redesignated
(F) and (G), respectively.
Subsec. (g)(1)(F). Pub. L. 103-355, Sec. 4202(d)(3)(A), redesignated
subpar. (D) as (F). Former subpar. (F) redesignated (H).
Pub. L. 103-355, Sec. 1055(b)(2), added subpar. (F).
Subsec. (g)(1)(G), (H). Pub. L. 103-355, Sec. 4202(d)(3)(A),
redesignated subpars. (E) and (F) as (G) and (H), respectively.
1992--Subsec. (a). Pub. L. 102-366, Sec. 232(a)(1)-(5), substituted
semicolon for period at end of par. (1)(B), ``; and'' for period at end
of par. (1)(C), ``to subparagraph (A)'' for ``to (A)'' in par.
(6)(C)(i), ``636(j)(10)(G)'' for ``636(j)(10)(H)'' in par. (6)(C)(ii),
and ``to subparagraph (D)'' for ``to (D)'' in par. (12)(E).
Subsec. (b)(1)(E) to (G). Pub. L. 102-564, Sec. 304, added subpar.
(E) and redesignated former subpars. (E) and (F) as (F) and (G),
respectively.
Subsec. (c). Pub. L. 102-366, Sec. 232(a)(7), designated subsec. (c)
as reserved. Former subsec. (c) redesignated (d).
Subsec. (d). Pub. L. 102-366, Sec. 232(a)(6), (8), redesignated
subsec. (c) as (d) and substituted ``imposition'' for ``impositon'' in
par. (4)(F)(ii). Former subsec. (d) redesignated (e).
Subsec. (d)(11), (12). Pub. L. 102-564, Sec. 303(a), redesignated
par. (12) as (11) and struck out former par. (11) which read as follows:
``At the conclusion of each fiscal year, the Administration shall submit
to the Senate Select Committee on Small Business and the Committee on
Small Business of the House of Representatives a report on
subcontracting plans found acceptable by any Federal agency which the
Administration determines do not contain maximum practicable
opportunities for small business concerns and small business concerns
owned and controlled by socially and economically disadvantaged
individuals to participate in the performance of contracts described in
this subsection.''
Subsecs. (e) to (g). Pub. L. 102-366, Sec. 232(a)(6), redesignated
subsecs. (d) to (f) as (e) to (g), respectively. Former subsec. (g)
redesignated (h).
Subsec. (h). Pub. L. 102-366, Sec. 232(a)(6), (9), redesignated
subsec. (g) as (h) and substituted ``Administrative'' for
``Administration'' in par. (2). Former subsec. (h) redesignated (i).
Subsecs. (i), (j). Pub. L. 102-366, Sec. 232(a)(6), redesignated
subsecs. (h) and (i) as (i) and (j), respectively.
1991--Subsec. (c). Pub. L. 102-191 redesignated subsec. (d) as (c)
and struck out former subsec. (c) which related to management and
technical assistance for small businesses owned by women. See section
656 of this title.
Subsec. (d). Pub. L. 102-191 redesignated subsec. (e) as (d). Former
subsec. (d) redesignated (c).
Subsec. (d)(12). Pub. L. 102-190 added par. (12).
Subsecs. (e) to (j). Pub. L. 102-191, which directed the
redesignation of subsecs. (e) to (j) as (d) to (k), was executed by
redesignating subsecs. (e) to (j) as (d) to (i), respectively, to
reflect the probable intent of Congress.
1990--Subsec. (a)(1). Pub. L. 101-574, Sec. 207(2), struck out after
subpar. (C) ``No contract may be entered into under subparagraph (B)
after September 30, 1988.''
Subsec. (a)(1)(B). Pub. L. 101-574, Sec. 207(1), (3), redesignated
subpar. (C) as (B) and struck out former subpar. (B) which read as
follows: ``to enter into contracts with such agency as shall be
designated by the President, to furnish articles, equipment, supplies,
services, or materials, or to perform construction work for such agency.
In any case in which the Administration certifies to any officer of such
agency having procurement powers that the Administration is competent
and responsible to perform any specific procurement contract to be let
by any such officer, such officer shall let such procurement contract to
the Administration upon such terms and conditions as may be agreed upon
between the Administration and the procurement officer. If the
Administration and such procurement officer fail to agree on such terms
and conditions, either the Administration or such officer shall promptly
notify, in writing, the head of such agency. The head of such agency
shall have five days (exclusive of Saturdays, Sundays, and legal
holidays) to establish the terms and conditions upon which such
procurement contract may be let to the Administration, and shall
communicate in writing to the Administration the terms and conditions so
established. Within five days (exclusive of Saturdays, Sundays, and
legal holidays) after the receipt of such written communication, the
Administration shall decide whether to perform such procurement contract
or withdraw its prior certification that the Administration is competent
and responsible to perform such contract; and''.
Subsec. (a)(1)(C). Pub. L. 101-574, Sec. 207(4), added subpar. (C).
Former subpar. (C) redesignated (B).
Subsec. (a)(4)(A)(i)(II), (ii)(II). Pub. L. 101-574, Sec. 204(b),
inserted ``(or a wholly owned business entity of such tribe)'' after
``tribe''.
Subsec. (a)(17)(B)(iv). Pub. L. 101-574, Sec. 210, amended cl. (iv)
generally. Prior to amendment, cl. (iv) read as follows: ``represent
that it will supply the product of a domestic small business
manufacturer or processor, except that, the Administrator may waive the
application of the clause, as it pertains to the furnishing of a product
manufactured or processed by a small business, for any class of products
for which there are no small business manufacturers or processors in the
Federal market.''
Subsec. (d)(2)(A). Pub. L. 101-510, Sec. 806(e)(2)(A), substituted
``the small purchase threshold'' for ``$10,000''.
Subsec. (e)(1)(A). Pub. L. 101-510, Sec. 806(e)(2)(B), inserted
``or'' at end of subcl. (i), substituted a comma for ``; or'' at end of
subcl. (ii), substituted ``the small purchase threshold'' for
``$25,000'' in subcls. (i) and (ii), and struck out subcl. (iii) which
read as follows: ``solicit bids or proposals for a contract for property
or services for a price expected to exceed $10,000, if there is not a
reasonable expectation that at least two offers will be received from
responsive and responsible offerors,''.
Subsec. (e)(1)(B), (C). Pub. L. 101-510, Sec. 806(e)(2)(B)(i),
substituted ``the small purchase threshold'' for ``$25,000'' wherever
appearing.
Subsec. (g)(1). Pub. L. 101-574, Sec. 244, substituted ``subsection
(e)(1)'' for ``subsection (a)(1)''.
1989--Subsec. (a)(1)(D)(i). Pub. L. 101-37, Sec. 10(c), substituted
``Program Participants'' for ``program participants''.
Subsec. (a)(4)(A)(i). Pub. L. 101-37, Sec. 6(d)(1), inserted
``unconditionally'' after ``per centum''.
Subsec. (a)(4)(A)(ii). Pub. L. 101-37, Sec. 6(d)(2), inserted
``unconditionally'' after ``which is''.
Subsec. (a)(6)(C). Pub. L. 101-37, Sec. 7(b), which directed
substitution of ``636(j)(10)(G)'' for ``636(j)(10)(H)'' in cl. (iii),
could not be executed because there was no cl. (iii). See 1992 Amendment
note above.
Subsec. (a)(9). Pub. L. 101-37, Sec. 17, substituted
``Administration'' for ``Administrator'' in subpar. (A), ``section
636(j)(10)(G) of this title'' for ``section 636(j)(10)(H) of this
title'' in subpar. (B)(iii), and ``Administration's'' for
``Administrator's'' in subpar. (C).
Subsec. (a)(15). Pub. L. 101-37, Sec. 6(b), substituted
``Organization'' for ``organizations''.
Subsec. (a)(17)(B)(ii) to (iv). Pub. L. 101-37, Sec. 10(e), added
cl. (ii) and redesignated former cls. (ii) and (iii) as (iii) and (iv),
respectively.
Subsec. (a)(18)(A). Pub. L. 101-37, Sec. 12, struck out
``certified'' before ``during such person's term''.
Subsec. (a)(19)(B). Pub. L. 101-37, Sec. 13, struck out ``, imposed
by the Administrator,'' after ``disciplinary action''.
Subsec. (a)(20)(A). Pub. L. 101-37, Sec. 14, substituted ``Business
Opportunity Specialist'' for ``business opportunity specialist''.
Subsec. (a)(21). Pub. L. 101-37, Sec. 16, in subpar. (B) struck out
discretionary authority of the Administrator and preconditions
respecting request prior to relinquishment of ownership or control in
introductory provisions, added subpar. (C), and redesignated former
subpars. (C) and (D) as (D) and (E), respectively.
Subsec. (b)(1)(A). Pub. L. 101-162 amended last sentence generally,
substituting ``the Administration shall ensure that it receives
appropriate recognition in all cosponsored printed materials, whether
the participant is a profit making concern or a governmental agency or
public official'' for ``that the Administration is given primary
recognition in all cosponsored printed materials, whether the
participant is a profit-making concern or a governmental agency or
official''.
1988--Subsec. (a)(1)(A). Pub. L. 100-656, Sec. 303(d), inserted
provisions authorizing Administration appeal from procurement officer's
adverse decisions and providing for decision by the Secretary or agency
head on the appeal.
Subsec. (a)(1)(D). Pub. L. 100-656, Sec. 303(b), added subpar. (D).
Subsec. (a)(3). Pub. L. 100-656, Sec. 303(e), amended par. (3)
generally. Prior to amendment, par. (3) read as follows: ``Any small
business concern selected by the Administration to perform any Federal
Government procurement contract to be let pursuant to this subsection
shall, when practicable, participate in any negotiation of the terms and
conditions of such contract.''
Subsec. (a)(4). Pub. L. 100-656, Sec. 207(c), amended par. (4)
generally, in subpar. (A)(i) adding subcl. (III), in subpar. (A)(ii)
adding subcl. (III), and in subpar. (B) adding cl. (iii).
Subsec. (a)(4)(C). Pub. L. 100-656, Sec. 209(b), added subpar. (C).
Subsec. (a)(6). Pub. L. 100-656, Sec. 209(a), designated existing
provisions as subpar. (A) and added subpars. (B) to (E).
Subsec. (a)(7). Pub. L. 100-656, Sec. 303(g), designated existing
provisions as subpar. (A) and added subpar. (B).
Subsec. (a)(9). Pub. L. 100-656, Sec. 409, amended par. (9)
generally. Prior to amendment, par. (9) read as follows: ``Within ninety
days after the effective date of this paragraph, the Administration
shall publish in the Federal Register rules setting forth those
conditions or circumstances pursuant to which a firm previously deemed
eligible by the Administration may be denied assistance under the
provisions of this subsection: Provided, That no such firm shall be
denied total participation in any program conducted under the authority
of this subsection without first being afforded a hearing on the record
in accordance with chapter 5 of title 5.''
Subsec. (a)(10). Pub. L. 100-656, Sec. 201(b), inserted sentence at
end requiring such program to make a sustained and substantial effort to
solicit applications for certification from small business concerns
located in areas of concentrated unemployment or underemployment.
Subsec. (a)(12). Pub. L. 100-656, Sec. 501, amended par. (12)
generally. Prior to amendment, par. (12) read as follows: ``To the
maximum extent practicable the Associate Administrator for Minority
Small Business and Capital Ownership Development shall submit, no less
frequently than annually, a yearly estimate of the dollar amounts and
types of contracts required for the efficient use of any program
conducted under the authority of this subsection, to each agency which
may participate in such program.''
Subsec. (a)(15). Pub. L. 100-656, Sec. 207(a), added par. (15).
Subsec. (a)(16). Pub. L. 100-656, Sec. 303(c), added par. (16).
Subsec. (a)(17). Pub. L. 100-656, Sec. 303(h), added par. (17).
Subsec. (a)(18). Pub. L. 100-656, Sec. 402, added par. (18).
Subsec. (a)(19). Pub. L. 100-656, Sec. 403, added par. (19).
Subsec. (a)(20). Pub. L. 100-656, Sec. 404, added par. (20).
Subsec. (a)(21). Pub. L. 100-656, Sec. 407, added par. (21).
Subsec. (b)(1)(A). Pub. L. 100-590, Sec. 131(b), inserted ``that any
Administration program participating in such cosponsored activities
receives appropriate recognition and publicity, and'' in provisions
preceding cl. (i), inserted ``, executed on behalf of the agency by an
employee of the agency in Washington, District of Columbia, and who
shall also approve, in advance, any printed materials to be distributed
at the conference,'' in cl. (1), and inserted provisions at end which
authorized Administration, in case of cosponsored activities, to ensure
that cooperation does not constitute endorsement or give undue
recognition to public official or agency, and that Administration is
given primary recognition in all cosponsored printed materials.
Subsec. (b)(16). Pub. L. 100-533, Sec. 202, and Pub. L. 100-590,
Sec. 127(b), made identical amendments adding par. (16).
Subsec. (c). Pub. L. 100-590, Sec. 127(a), amended subsec. (c)
generally, inserting provisions substantially identical to provisions
contained in prior general amendment by Pub. L. 100-533, Sec. 201.
Pub. L. 100-533, Sec. 201, amended subsec. (c) generally. Prior to
amendment, subsec. (c) read as follows: ``The Administration shall from
time to time 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 shall make
recommendations to the appropriate Federal agency or agencies for the
adjustment of such programs and regulations to the needs of small
business.''
Subsec. (d)(4)(F). Pub. L. 100-656, Sec. 304(a), added subpar. (F).
1987--Subsec. (a)(14)(B), (C). Pub. L. 100-26, Sec. 10(b)(3),
substituted ``section 644(o)'' for ``section 644(n)''.
1986--Subsec. (a)(1). Pub. L. 99-567, Sec. 2, substituted provision
that no contract may be entered into under subpar. (B) after Sept. 30,
1988, for provision that no such contract could be entered into prior to
Oct. 1, 1983, nor after Sept. 30, 1985, in closing provisions.
Subsec. (a)(1)(A). Pub. L. 99-500 and Pub. L. 99-591, Sec. 101(c)
[Sec. 921(b)(2)], Pub. L. 99-661, Sec. 921(b)(2), amended subpar. (A)
identically, inserting provision that a contract not be awarded if the
award would result in a cost to the awarding agency which exceeds a fair
market price.
Subsec. (a)(1)(B). Pub. L. 99-567, Sec. 1(a), struck out ``(other
than the Department of Defense or any component thereof)'' after
``contracts with such agency''.
Subsec. (a)(2). Pub. L. 99-567, Sec. 3, substituted provision that
the authority to waive bonds as provided in par. (2) may not be
exercised after Sept. 30, 1988, for provision that such authority could
not be exercised prior to Oct. 1, 1983, nor after Sept. 30, 1985, in
closing provisions.
Subsec. (a)(4). Pub. L. 99-272, Sec. 18015(b), in amending par. (4)
generally, included economically disadvantaged Indian tribe within
definition of ``socially and economically disadvantaged small business
concern''.
Subsec. (a)(6). Pub. L. 99-272, Sec. 18015(c), inserted provision
enumerating factors to be considered by the Administration in
determining the economic disadvantage of an Indian tribe.
Subsec. (a)(13). Pub. L. 99-272, Sec. 18015(d), added par. (13).
Subsec. (a)(14). Pub. L. 99-500 and Pub. L. 99-591, Sec. 101(c)
[Sec. 921(c)(1)], Pub. L. 99-661, Sec. 921(c)(1), amended subsec. (a)
identically, adding par. (14).
Subsec. (e)(1). Pub. L. 99-500 and Pub. L. 99-591, Sec. 101(c)
[Sec. 921(a)], Pub. L. 99-661, Sec. 921(a), amended par. (1)
identically, in subpar. (A) substituting ``$25,000'' for ``$10,000'' in
cls. (i) and (ii), adding cl. (iii), and in provision following cl.
(iii) substituting ``subsection (f) of this section'' for ``subsection
(b) of this section'', adding subpar. (B), and redesignating former
subpar. (B) as (C).
Subsec. (f). Pub. L. 99-500 and Pub. L. 99-591, Sec. 101(c)
[Sec. 922(d)], Pub. L. 99-661, Sec. 922(d), amended subsec. (f)
identically, substituting ``subparagraph (A) or (B) of subsection (e)(1)
of this section'' for ``subsection (e)(1)(A) of this section'' in
provisions preceding par. (1).
1984--Subsec. (b)(1)(A). Pub. L. 98-362, Secs. 5(a)(2), 7(b),
inserted provisions at end of subpar. (A) relating to providing of
assistance through cooperation of cosponsors, and provisions respecting
activities of the Administration related to furnishing of assistance by
cosponsors, and provided for the future repeal of such provisions. See
Effective and Termination Dates of 1984 Amendments note below.
Pub. L. 98-362, Sec. 5(a)(1), inserted ``computer security,'' after
``wage incentives,''.
Subsec. (b)(7)(C). Pub. L. 98-577, Sec. 401, inserted
``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.''
Subsec. (d)(1). Pub. L. 98-577, Sec. 402(a), inserted ``, 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 and small business concerns
owned and controlled by socially and economically disadvantaged
individuals''.
Subsec. (d)(3)(A). Pub. L. 98-577, Sec. 402(b), inserted ``,
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 and small
business concerns owned and controlled by socially and economically
disadvantaged individuals''.
Subsec. (e). Pub. L. 98-577, Sec. 404(a), added subsec. (e). Former
subsec. (e), which related to notice and publication of procurement
actions, exceptions, departmental procedures, contents of notice, sole
source contracts and unsolicited proposals, was struck out.
Subsecs. (f) to (j). Pub. L. 98-577 added subsecs. (f) to (j).
1983--Subsec. (a)(1). Pub. L. 98-47, Sec. 2, substituted provision
that no contract may be entered into under subpar. (B) prior to Oct. 1,
1983, nor after Sept. 30, 1985, for provision that such contracts may
not be entered into after Sept. 30, 1981.
Subsec. (a)(1)(B). Pub. L. 98-47, Sec. 1(a), substituted ``(other
than the Department of Defense or any component thereof) as shall be
designated by the President'' for ``, as shall be designated by the
President within 60 days after the effective date of this paragraph''.
Subsec. (a)(2). Pub. L. 98-47, Sec. 3, substituted provision that
the authority to waive bonds as provided in par. (2) may not be
exercised prior to Oct. 1, 1983, nor after Sept. 30, 1985, for provision
that par. (2) shall not apply after Sept. 30, 1981.
Subsec. (e). Pub. L. 98-72 amended subsec. (e) generally,
designating existing provisions as par. (1) and in par. (1) as so
designated substituting: ``It shall be the duty of the Secretary of
Commerce, and the Secretary is hereby empowered, to obtain notice of all
proposed competitive and noncompetitive civilian and defense procurement
actions of $10,000 and above from any Federal department, establishment
or agency (hereinafter in this subsection referred to as `department')
engaged in procurement of property, supplies, and services in the United
States; and to publicize such notices in the daily publication Commerce
Business Daily, immediately after the necessity for the procurement is
established: Provided, That nothing in this paragraph shall require
publication of such notices with respect to those procurements in which
it is determined on a case-by-case basis that (A) the procurement for
security reasons is of a classified nature; (B) the Federal department's
need for the property, supplies, or services is of such unusual and
compelling urgency that the Government would be seriously injured if the
time periods provided for in paragraph (2) were complied with; (C) a
foreign government reimburses the Federal department for the cost of the
procurement of the property, supplies, or services for such government
and only one source is available, or the terms of an international
agreement or treaty between the United States and a foreign government
authorize or require that all such procurement shall be from sources
specified within such international agreement or treaty; (D) the
procurement is made from another Government department or agency, or a
mandatory source of supply; (E) the procurement is for utility services
and only one source is available; (F) the procurement is made against an
order placed under a requirement or similar contract, including orders
for perishable subsistence supplies; (G) the procurement results from
acceptance of a proposal pursuant to the Small Business Innovation
Development Act of 1982 or an unsolicited proposal that demonstrates a
unique or innovative research concept and publication of such
unsolicited proposal would improperly disclose the originality of
thought or innovativeness of the proposed research; or (H) it is
determined in writing by the head of the Federal department, with the
concurrence of the Administrator, that advance notice is not appropriate
or reasonable'' for ``It shall be the duty of the Secretary of Commerce,
and he is empowered, to obtain notice of all proposed defense
procurement actions of $10,000 and above, and all civilian procurement
actions of $5,000 and above, from any Federal department, establishment,
or agency engaged in procurement of supplies and services in the United
States; and to publicize such notices in the daily publication `United
States Department of Commerce Synopsis of the United States Government
Proposed Procurements, Sales, and Contract Awards', immediately after
the necessity for the procurement is established; except that nothing
herein shall require publication of such notices with respect to those
procurements (1) which for security reasons are of a classified nature,
or (2) which involve perishable subsistence supplies, or (3) which are
for utility services and the procuring agency in accordance with
applicable law has predetermined the utility concern to whom the award
will be made, or (4) which are of such unusual and compelling emergency
that the Government would be seriously injured if bids or offers were
permitted to be made more than 15 days after the issuance of the
invitation for bids or solicitation for proposals, or (5) which are made
by an order placed under an existing contract, or (6) which are made
from another Government department or agency, or a mandatory source of
supply, or (7) which are for personal or professional services, or (8)
which are for services from educational institutions, or (9) in which
only foreign sources are to be solicited, or (10) for which it is
determined in writing by the procuring agency, with the concurrence of
the Administrator, that advance publicity is not appropriate or
reasonable'', and adding pars. (2) to (6).
1980--Subsec. (a)(1), (2). Pub. L. 96-481, Sec. 101, substituted
``September 30, 1981'' for ``September 30, 1980''.
Subsec. (a)(8). Pub. L. 96-481, Sec. 105, substituted provisions
that all determinations may pursuant to par. (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 and that all
other determinations made pursuant to (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, for provision that all determinations made
pursuant to pars. (4), (5), (6) and (7), shall be made by the Associate
Administrator for Minority Small Business and Capital Ownership
Development.
Subsec. (d)(3)(C). Pub. L. 96-302 included in the presumption of
being disadvantaged individuals Asian Pacific Americans.
1978--Subsec. (a). Pub. L. 95-507, Sec. 202(a), redesignated pars.
(1) and (2) as (1)(A) and (C) and as redesignated inserted provision
giving the Administration sole discretion in choosing procurement
requirements from agencies or departments for use in the program,
provided that the terms and conditions of the proposed contract are to
be negotiated, made provision for the submission of stalemated matters
for resolution, and added pars. (1)(B) and (2) to (12).
Subsec. (b)(1). Pub. L. 95-510 substituted in subpar. (B) provisions
relating to the establishment and implementation of volunteer programs
for provisions relating to the use of office facilities etc., and the
payment of transportation expenses and per diem allowances and added
subpars. (C) to (F).
Subsec. (d). Pub. L. 95-507, Sec. 211, substituted provisions
relating to the performance of contracts by small business concerns,
requiring, among other things, the inclusion of a specific contract
clause in most Federal prime contracts, requiring as a condition of the
solicitation of any offer of a Federal contract in excess of $500,000,
the submission of a summary contract plan, and relating to incentives
for small business subcontracting, contract eligibility, breach of
contract or subcontract, administrative review of contract solicitation
and subcontract planning, and relating to submission to congressional
committees of a report on subcontracting plans for provisions relating
generally to the small business subcontract program and regulations
issued thereunder.
1977--Subsec. (b)(7). Pub. L. 95-89, in revising par. (7),
incorporated existing introductory text in provisions designated subpar.
(A) and substituted ``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'' for ``with respect to the competency, as to capacity and
credit, of any small-business concern or group of such concerns to
perform a specific Government contract''; added subpar. (B); and
incorporated existing end text in provisions designated subpar. (C),
substituting therein ``certified by the Administration pursuant to (A)
or (B) to be a responsible or eligible Government contractor as to a
specific Government contract'' for ``certified by or under the authority
of the Administration to be a competent Government contractor with
respect to capacity and credit as to a specific Government contract''
and ``shall let'' and ``other requirement of responsibility or
eligibility'' for ``are authorized to let'' and ``other requirement with
respect to capacity and credit''.
1970--Subsec. (b)(15). Pub. L. 91-375 substituted ``section 3204 of
title 39'' for ``section 4154 of title 39''.
1967--Subsec. (b)(1)(B). Pub. L. 90-104, Sec. 105, designated
existing provisions as cl. (i) and added cl. (ii).
Subsec. (b)(13). Pub. L. 90-104, Sec. 106, substituted ``advisory
boards and committees'' for ``small business advisory boards and
committees truly representative of small business'', included
achievement of purposes of the Small Business Investment Act of 1958,
and required the Administrator to call board and committee meetings, pay
transportation expenses and per diem allowances, and rent temporarily
necessary accommodations to facilitate conduct of meetings.
Subsec. (b)(15). Pub. L. 90-104, Sec. 107, added par. (15).
1966--Subsec. (b)(1). Pub. L. 89-754 designated existing provisions
as subpar. (A) and added subpar. (B).
1964--Subsec. (b)(14). Pub. L. 88-560 added par. (14).
1961--Subsec. (d). Pub. L. 87-305, Sec. 7, added subsec. (d).
Subsec. (e). Pub. L. 87-305, Sec. 8, added subsec. (e).
Effective Date of 2000 Amendment
Pub. L. 106-398, Sec. 1 [[div. A], title VIII, Sec. 810(e)], Oct.
30, 2000, 114 Stat. 1654, 1654A-210, provided that: ``The amendments
made by this section [amending this section and sections 416 and 426 of
Title 41, Public Contracts] shall take effect on October 1, 2000. The
amendments made by subsections (a), (b), and (c) [amending this section
and section 416 of Title 41] shall apply with respect to solicitations
issued on or after that date.''
Effective Date of 1997 Amendments
Amendment by Pub. L. 105-135 effective Oct. 1, 1997, see section 3
of Pub. L. 105-135, set out as a note under section 631 of this title.
Amendment by Pub. L. 105-85 effective 180 days after Nov. 18, 1997,
see section 850(g) of Pub. L. 105-85, set out as a note under section
2302c of Title 10, Armed Forces.
Effective Date of 1996 Amendment
For effective date and applicability of amendment by Pub. L. 104-
106, see section 4401 of Pub. L. 104-106, set out as a note under
section 251 of Title 41, Public Contracts.
Effective Date of 1994 Amendment
For effective date and applicability of amendment by Pub. L. 103-
355, see section 10001 of Pub. L. 103-355, set out as a note under
section 251 of Title 41, Public Contracts.
Effective Date of 1989 Amendment
Amendment by Pub. L. 101-37 applicable as if included in Pub. L.
100-656, see section 32 of Pub. L. 101-37, set out as a note under
section 631 of this title.
Effective Date of 1988 Amendment
Amendment by sections 207(a), (c) and 303(d), (e) of Pub. L. 100-656
effective Nov. 15, 1988, see section 803(a) of Pub. L. 100-656, set out
as a note under section 631 of this title.
Amendment by sections 201(b), 303(c), (g), (h), 304(a), 402-404, and
409 of Pub. L. 100-656 effective Aug. 15, 1989, see section
803(b)(1)(A)-(C) of Pub. L. 100-656, as amended, set out as a note under
section 631 of this title.
Amendment by section 407 of Pub. L. 100-656 effective with respect
to contracts entered into on or after June 1, 1989, see section
803(b)(3) of Pub. L. 100-656, as amended, set out as a note under
section 631 of this title.
Amendment by sections 209 and 303(b) of Pub. L. 100-656 effective
Oct. 1, 1989, see section 803(b)(4)(A), (B) of Pub. L. 100-656, as
amended, set out as a note under section 631 of this title.
Effective Date of 1987 Amendment
Amendment by section 10(b)(3) of Pub. L. 100-26 applicable as if
included in each instance of the Defense Acquisition Improvement Act (as
specified in section 2 of Pub. L. 100-26) [title X of section 101(c) of
Pub. L. 99-500 and Pub. L. 99-591, and title IX of div. A of Pub. L. 99-
661] when each was enacted [Oct. 18, 1986, Oct. 30, 1986, and Nov. 14,
1986, respectively], see section 12(c) of Pub. L. 100-26, set out as a
note under section 632 of this title.
Effective Date of 1986 Amendment
Amendment by section 101(c) [title X, Sec. 921(b)(2), (c)(1)] of
Pub. L. 99-500 and Pub. L. 99-591, and section 921(b)(2), (c)(1) of Pub.
L. 99-661 effective Oct. 1, 1987, see section 101(c) of Pub. L. 99-500
and Pub. L. 99-591, and section 921(g) of Pub. L. 99-661, set out as a
note under section 632 of this title.
Effective and Termination Dates of 1984 Amendments
Section 401(a) of Pub. L. 103-403, as amended by Pub. L. 105-135,
title V, Sec. 504, Dec. 2, 1997, 111 Stat. 2624; Pub. L. 106-554,
Sec. 1(a)(9) [title V, Sec. 504(b)], Dec. 21, 2000, 114 Stat. 2763,
2763A-696, provided that:
``(1) Repeal.--The amendments made by section 5(a) of Small Business
Computer Security and Education Act of 1984 [Pub. L. 98-362, amending
this section] (15 U.S.C. 633 note) are hereby repealed.
``(2) Effective date.--Paragraph (1) shall take effect on September
30, 2003.''
[Repeal by section 401(a) of Pub. L. 103-403, set out as a note
above, effective Sept. 30, 1997, was not executed to reflect the
probable intent of Congress and subsequent amendment by Pub. L. 105-135,
changing the effective date to Sept. 30, 2000. Similarly, repeal
effective Sept. 30, 2000, was not executed because of subsequent
amendment by Pub. L. 106-554, changing the effective date to Sept. 30,
2003.]
Amendment by section 5(a)(1), (2) of Pub. L. 98-362 effective Oct.
1, 1984, and amendment by section 5(a)(2) of Pub. L. 98-362 repealed
Oct. 1, 1994, see section 7 of Pub. L. 98-362, as amended, set out as a
note under section 633 of this title.
Section 404(b) of Pub. L. 98-577 provided that: ``The amendment made
by subsection (a) [amending this section] shall take effect with respect
to any solicitation for bids or proposals issued after March 31, 1985.''
Effective Date of 1983 Amendments
Section 1(b)(1), (2) of Pub. L. 98-72 provided that:
``(1) Except as to the amendments made to section 8(e)(4) of the
Small Business Act as added by section (a) of this Act [subsec. (e)(4)
of this section], the amendments made by this Act [amending this
section] shall apply to procurement actions initiated ninety days after
the date of enactment of this Act [Aug. 11, 1983].
``(2) The amendments made to section 8(e)(4) of the Small Business
Act as added by section (a) of this Act shall apply to procurement
actions initiated on or after October 1, 1983.''
Section 1(b) of Pub. L. 98-47 provided that: ``The designation of an
agency pursuant to the amendment made by subsection (a) [amending this
section] shall be made not later than sixty days after the date of
enactment of this Act [July 13, 1983].''
Effective Date of 1980 Amendment
Amendment by Pub. L. 96-302 effective Oct. 1, 1980, see section 507
of Pub. L. 96-302, set out as a note under section 631 of this title.
Effective Date of 1978 Amendment
Amendment by Pub. L. 95-510 effective Oct. 1, 1979, see section 105
of Pub. L. 95-510, set out as a note under section 634 of this title.
Effective Date of 1970 Amendment
For effective date of amendment by Pub. L. 91-375, see section 15(a)
of Pub. L. 91-375, set out as an Effective Date note preceding section
101 of Title 39, Postal Service.
Transfer of Functions
Transfer to Director of ACTION [now Corporation for National and
Community Service] of functions of Small Business Administration under
subsec. (b) of this section insofar as they relate to individuals or
groups of persons cooperating with it in the furtherance of purposes of
this section, such individuals or groups of persons, in providing
technical and managerial aids to small concerns, remaining subject to
direction of Small Business Administration, see section 601 of Pub. L.
93-113, set out as a note under section 5041 of Title 42, The Public
Health and Welfare, which superseded section 2(a)(3) of Reorg. Plan No.
1 of 1971, eff. July 1, 1971, 36 F.R. 11181, 85 Stat. 819, set out in
the Appendix to Title 5, Government Organization and Employees.
Regulations
Pub. L. 106-50, Sec. 303(c), Aug. 17, 1999, 113 Stat. 243, provided
that: ``Not later than 30 days after the date of the enactment of this
section [Aug. 17, 1999], the Administrator of the Small Business
Administration shall issue such guidelines as the Administrator
determines to be necessary to carry out this section [amending this
section and enacting provisions set out as a note under this section]
and the amendment made by this section.''
Enhanced Publicity During Operation Allied Force
Pub. L. 106-50, Sec. 303(b), Aug. 17, 1999, 113 Stat. 243, provided
that: ``For the duration of Operation Allied Force and for 120 days
thereafter, the Administration shall enhance its publicity of the
availability of assistance provided pursuant to the amendment made by
this section [amending this section], including information regarding
the appropriate local office at which affected small businesses may seek
such assistance.''
Federal Acquisition Regulation
Section 416(b) of Pub. L. 105-135 provided that: ``The Federal
Acquisition Regulation shall be amended to provide uniform
implementation of the amendments made by this section [amending this
section].''
Implementation of Amendment by Pub. L. 105-85
Section 850(e)(3) of Pub. L. 105-85 provided that: ``The amendments
made by paragraphs (1) and (2) [amending this section and section 416 of
Title 41, Public Contracts] shall be implemented in a manner consistent
with any applicable international agreements.''
Mobile Resource Center Pilot Program
Section 406 of Pub. L. 103-403 provided that:
``(a) Establishment.--The Administrator of the Small Business
Administration may establish and carry out in each of fiscal years 1995,
1996, and 1997 a mobile resource pilot program (hereafter in this
section referred to as the `program') in accordance with the
requirements of this section.
``(b) Mobile Resource Center Vehicles.--Under the program, the
Administration may use mobile resource center vehicles to provide
technical assistance, information, and other services available from the
Small Business Administration to traditionally underserved populations.
Two of such vehicles should be utilized in rural areas and 2 of such
vehicles should be utilized in urban areas.
``(c) Report to Congress.--If the Administrator conducts the program
authorized in this section, the Administrator shall, not later than
December 31, 1996, transmit to the Congress a report containing the
results of such program, together with recommendations for appropriate
legislative and administrative action.
``(d) Authorization of Appropriations.--There are authorized to be
appropriated to carry out this section $900,000 for each of fiscal years
1995, 1996, and 1997, such sums to remain available until expended. Of
such sums--
``(1) $800,000 may be made available for the purchase or lease
of mobile resource center vehicles and operating expenses; and
``(2) $100,000 may be made available for studies, startup
expenses, and other administrative expenses.''
Projects Funded Pursuant to Former Provisions
Section 3 of Pub. L. 102-191 provided that: ``Projects funded
pursuant to the provisions of former subsection (c) [15 U.S.C. 637(c)]
shall be deemed to be funded under and shall be treated as if funded
under section 28 of the Small Business Act [15 U.S.C. 656], as added by
section 2.''
Two-Year Rule for Eligibility in Minority Small Business and Capital
Ownership Development Program
Section 203 of Pub. L. 101-574 provided that:
``(a) In General.--The Small Business Administration may prescribe a
minimum period of time during which a prospective Program Participant
must be in operation in order to meet the eligibility requirements of
section 8(a)(7)(A) of the Small Business Act (15 U.S.C. 637(a)(7)(A)),
only if the Administration provides a waiver of such minimum period as
set forth in subsection (b).
``(b) Waiver of Minimum Period of Operation.--(1) The Administration
shall provide that any requirement it establishes regarding the period
of time a prospective Program Participant must be in operation may be
waived and, a prospective Program Participant, who otherwise meets the
requirements of section 8(a)(7)(A) of the Small Business Act [15 U.S.C.
637(a)(7)(A)], shall be considered to have demonstrated reasonable
prospects for success, if--
``(A) the individual or individuals upon whom eligibility is to
be based have substantial and demonstrated business management
experience;
``(B) the prospective Program Participant has demonstrated
technical expertise to carry out its business plan with a
substantial likelihood for success;
``(C) the prospective Program Participant has adequate capital
to carry out its business plan;
``(D) the prospective Program Participant has a record of
successful performance on contracts from governmental and
nongovernmental sources in the primary industry category in which
the prospective Program Participant is seeking Program
certification; and
``(E) the prospective Program Participant has, or can
demonstrate its ability to timely obtain, the personnel, facilities,
equipment, and any other requirements needed to perform such
contracts.
``(2) The authority to make the determination that a prospective
Program Participant has demonstrated its potential for success by
meeting the criteria specified in paragraph (1) of this subsection shall
be made by the Administrator of the Small Business Administration, or a
designee of such officer.''
References in Other Laws to GS-16, 17, or 18 Pay Rates
References in laws to the rates of pay for GS-16, 17, or 18, or to
maximum rates of pay under the General Schedule, to be considered
references to rates payable under specified sections of Title 5,
Government Organization and Employees, see section 529 [title I,
Sec. 101(c)(1)] of Pub. L. 101-509, set out in a note under section 5376
of Title 5.
Credit for Indian Contracting in Meeting Certain Minority Subcontracting
Goals
For provisions that credit toward meeting a subcontracting goal
specified in a Department of Defense contract in implementing subsec.
(d) of this section may be given for work performed on Indian land or by
certain Indian joint ventures, see section 832 of Pub. L. 101-189, set
out as a note under section 2302 of Title 10, Armed Forces.
Test Program for Negotiation of Comprehensive Small Business
Subcontracting Plans
Section 402 of Pub. L. 101-574 provided that: ``To facilitate
participation in the test program for the negotiation of comprehensive
small business subcontracting plans pursuant to section 834 of the
National Defense Authorization Act for Fiscal Years 1990 and 1991
(Public Law 101-189; 103 Stat. 1510) [set out below], subsection (d) of
such section is hereby suspended for the period of the test program as
specified in subsection (e) of such section.''
Pub. L. 101-189, div. A, title VIII, Sec. 834, Nov. 29, 1989, 103
Stat. 1509, as amended by Pub. L. 102-484, div. A, title VIII, Sec. 805,
Oct. 23, 1992, 106 Stat. 2447; Pub. L. 103-355, title VII, Sec. 7103,
Oct. 13, 1994, 108 Stat. 3368; Pub. L. 104-106, div. A, title VIII,
Sec. 811, Feb. 10, 1996, 110 Stat. 394; Pub. L. 105-85, div. A, title
VIII, Sec. 822, Nov. 18, 1997, 111 Stat. 1840; Pub. L. 106-65, div. A,
title VIII, Sec. 817, Oct. 5, 1999, 113 Stat. 712; Pub. L. 106-398,
Sec. 1 [[div. A], title X, Sec. 1087(g)(1)], Oct. 30, 2000, 114 Stat.
1654, 1654A-293, provided that:
``(a) Test Program.--(1) The Secretary of Defense shall establish a
test program under which contracting activities in the military
departments and the Defense Agencies are authorized to undertake one or
more demonstration projects to determine whether the negotiation and
administration of comprehensive subcontracting plans will reduce
administrative burdens on contractors while enhancing opportunities
provided under Department of Defense contracts for small business
concerns and small business concerns owned and controlled by socially
and economically disadvantaged individuals. In selecting the contracting
activities to undertake demonstration projects, the Secretary shall take
such action as is necessary to ensure that a broad range of the supplies
and services acquired by the Department of Defense are included in the
test program.
``(2) In developing the test program, the Secretary of Defense
shall--
``(A) consult with the Administrator of the Small Business
Administration; and
``(B) provide an opportunity for public comment on the test
program.
``(b) Comprehensive Small Business Subcontracting Plan.--(1) In a
demonstration project under the test program, the Secretary of a
military department or head of a Defense Agency shall negotiate,
monitor, and enforce compliance with a comprehensive subcontracting plan
with a Department of Defense contractor described in paragraph (3).
``(2) The comprehensive subcontracting plan of a contractor--
``(A) shall apply to the entire business organization of the
contractor or to one or more of the contractor's divisions or
operating elements, as specified in the subcontracting plan; and
``(B) shall cover each Department of Defense contract that is
entered into by the contractor and each subcontract that is entered
into by the contractor as the subcontractor under a Department of
Defense contract.
``(3) A Department of Defense contractor referred to in paragraph
(1) is, with respect to a comprehensive subcontracting plan negotiated
in any fiscal year, a business concern that, during the immediately
preceding fiscal year, furnished the Department of Defense with supplies
or services (including professional services, research and development
services, and construction services) pursuant to at least three
Department of Defense contracts having an aggregate value of at least
$5,000,000.
``(c) Waiver of Certain Small Business Act Subcontracting Plan
Requirements.--A Department of Defense contractor is not required to
negotiate or submit a subcontracting plan under paragraph (4) or (5) of
section 8(d) of the Small Business Act (15 U.S.C. 637(d)) with respect
to a Department of Defense contract if--
``(1) the contractor has negotiated a comprehensive
subcontracting plan under the test program that includes the matters
specified in section 8(d)(6) of the Small Business Act (15 U.S.C.
637(d)(6));
``(2) such matters have been determined acceptable by the
Secretary of the military department or head of a Defense Agency
negotiating such comprehensive subcontracting plan; and
``(3) the comprehensive subcontracting plan applies to the
contract.
``(d) Failure To Make a Good Faith Effort To Comply With a Company-
wide Subcontracting Plan.--A contractor that has negotiated a
comprehensive subcontracting plan under the test program shall be
subject to section 8(d)(4)(F) of the Small Business Act (15 U.S.C.
637(d)(4)(F)) regarding the assessment of liquidated damages for failure
to make a good faith effort to comply with its company-wide plan and the
goals specified in that plan.
``(e) Test Program Period.--The test program authorized by
subsection (a) shall begin on October 1, 1990, unless Congress adopts a
resolution disapproving the test program. The test program shall
terminate on September 30, 2005.
``(f) Report.--(1) Not later than March 1, 1994, the Secretary of
Defense shall submit a report on the results of the test program to the
Committees on Armed Services and on Small Business of the Senate and the
House of Representatives.
``(2) Before submitting such report to the committees referred to in
paragraph (1), the Secretary shall transmit the proposed report to the
Administrator of the Small Business Administration. The report submitted
to the committees shall include any comments and recommendations
relating to the report that are transmitted to the Secretary by the
Administrator before the date specified in such paragraph.
``(g) Definitions.--As used in this section:
``(1) The term `small business concern' shall have the same
meaning as is provided in section 8(d)(3)(C) of the Small Business
Act (15 U.S.C. 637(d)(3)(C)), and includes a small business concern
owned and controlled by socially and economically disadvantaged
individuals.
``(2) The term `small business concern owned and controlled by
socially and economically disadvantaged individuals' shall have the
same meaning as is provided in section 8(d)(3)(C) of the Small
Business Act (15 U.S.C. 637(d)(3)(C)).''
Contract Options and Modifications
Section 303(f) of Pub. L. 100-656, as amended by Pub. L. 101-37,
Sec. 10(d), June 15, 1989, 103 Stat. 73, provided that:
``(1) The Small Business Administration shall make substantial and
sustained efforts to achieve a maximum ten-day period as the average
processing time for approving options and modifications to contracts
awarded pursuant to section 8(a) of the Small Business Act (15 U.S.C.
637(a)) and submitted to such Administration for approval.
``(2) Within sixty days after the date of enactment of this Act
[Nov. 15, 1988], the Small Business Administration, and the appropriate
Federal agency, shall make substantial and sustained efforts to
negotiate contract modifications for fair market price for any and all
unpriced options contained in active contracts previously awarded
pursuant to section 8(a) of the Small Business Act (15 U.S.C. 637(a))
with the contractor that was initially awarded such contract.
``(3) During the period of time described in paragraph (2), such
agencies shall refrain from procuring such requirements from alternative
sources except that, no delay may be incurred pursuant to this paragraph
that would cause substantial harm to a public interest.
``(4) The Small Business Administration shall take appropriate
actions, including publication in the Federal Register, to advise small
business concerns and Federal agencies of the requirements of this
subsection.
``(5) The Administration shall, to the maximum extent practicable,
minimize delay, eliminate excess regulation, and require only such
paperwork as may be necessary to effect the orderly and efficient
management of the Program established by section 7(j)(10) of the Small
Business Act (15 U.S.C. 636(j)(10)) and the award of contracts pursuant
to section 8(a) of such Act (15 U.S.C. 637(a)).''
Liquidated Damages Clauses
Section 304(b) of Pub. L. 100-656 provided that: ``The contract
clause required by section 8(d)(4)(F) of the Small Business Act [15
U.S.C. 637(d)(4)(F)] (as added by subsection (a)) shall be made part of
the Federal Acquisition Regulation and promulgated pursuant to section
22 of the Office of Federal Procurement Policy Act (41 U.S.C. 418b).''
[Section 304(b) of Pub. L. 100-656 effective Aug. 15, 1989, see
section 803(b)(1)(B) of Pub. L. 100-656, as amended, set out as an
Effective Date of 1988 Amendment note under section 631 of this title.]
Indian Tribe Exemption
Section 602 of Pub. L. 100-656, as amended by Pub. L. 101-37,
Sec. 22, June 15, 1989, 103 Stat. 75; Pub. L. 101-515, title V, Sec. 2,
Nov. 5, 1990, 104 Stat. 2140; Pub. L. 101-574, title II, Sec. 205, Nov.
15, 1990, 104 Stat. 2819; Pub. L. 103-403, title VI, Sec. 608, Oct. 22,
1994, 108 Stat. 4204, provided that:
``(a) Competitive Thresholds.--Section 8(a)(1)(D) of the Small
Business Act [15 U.S.C. 637(a)(1)(D)], as added by section 303 of this
Act, shall not apply to Program Participants that are owned and
controlled by economically disadvantaged Indian tribes, as defined
pursuant to paragraphs (4) and (13) of section 8(a) of the Small
Business Act (15 U.S.C. 637(a)(4) and (13)).
``(b) Joint Ventures.--The Administration is authorized to award a
contract pursuant to section 8(a) of the Small Business Act (15 U.S.C.
637(a)) to a joint venture notwithstanding the size status of such joint
venture if--
``(1) a party to the joint venture is a Program Participant that
is owned and controlled by an economically disadvantaged Indian
tribe (as defined pursuant to paragraphs (4) and (13) of section
8(a) of the Small Business Act (15 U.S.C. 637(a)(4) and (13)); and
``(2) such Program Participant:
``(A) owns 51 per centum or more of such joint venture;
``(B) is located on the reservation or former reservation of
such tribe as determined by the Secretary of the Interior of
such tribe;
``(C) performs most of its activities on such reservation,
or such former reservation; and
``(D) employs members of such tribe for at least 50 per
centum of its total workforce.
``(c) Limitations.--A Program Participant, as a party to a joint
venture shall receive no more than 5 contracts due solely to the
provisions of subsection (b).
``(d) Sunset.--Subsection (b) shall cease to be effective after
September 30, 1997.''
[Section 602 of Pub. L. 100-656 effective Aug. 15, 1989, see section
803(b)(1)(D) of Pub. L. 100-656, as amended, set out as an Effective
Date of 1988 Amendment note under section 631 of this title.]
GAO Evaluation of Service Corps of Retired Executives; Report
Section 107 of Pub. L. 100-590 directed Comptroller General, not
later than Dec. 1, 1989, to transmit a report to Small Business
Committees of Senate and House of Representatives on functions being
performed by volunteers in Service Corps of Retired Executives and
Active Corps of Executives, including his evaluation of programs and
including conclusions and recommendations concerning efficiency and cost
effectiveness of such volunteers.
Authorization of Appropriations for Women-Owned Small Business
Demonstration Projects
Section 127(c) of Pub. L. 100-590 provided that: ``There is
authorized to be appropriated $10,000,000 to carry out the demonstration
projects required pursuant to subsection (a) [amending this section].
The initial projects authorized to be financed by this section [amending
this section and enacting provisions set out as notes under this
section] shall be funded by January 31, 1989. Notwithstanding any other
provision of law, the Small Business Administration may use such
expedited acquisition methods as it deems appropriate to achieve the
purposes of this subsection, except that it shall insure that all
eligible sources are provided a reasonable opportunity to submit
proposals.''
Similar provisions were contained in Pub. L. 100-533, title II,
Sec. 203, Oct. 25, 1988, 102 Stat. 2692.
Spending Authority for Contracts Authorized for Women-Owned Small
Business Demonstration Projects
Section 127(e) of Pub. L. 100-590 provided that: ``New spending
authority or authority to enter into contracts as authorized in this
section [amending this section and enacting provisions set out as notes
under this section] shall be effective only to such extent and in such
amounts as are provided in advance in appropriation Acts.''
Rural Area Business Development Plans
Section 129 of Pub. L. 100-590 provided that: ``Within six months of
the effective date of this Act [see Effective Date of 1988 Amendment
note set out under section 631 of this title], the Administrator shall
identify each Federal agency having substantial procurement or
grantmaking authority and shall notify each agency so identified. Within
six months of notification, each agency shall develop rural area
business enterprise development plans. Such plans shall establish rural
area enterprise development objectives for the agency and methods for
encouraging prime contractors, subcontractors and grant recipients to
use small business concerns located in rural areas as subcontractors,
suppliers, and otherwise. Such plans shall, to the extent the agency
deems appropriate and feasible, include incentive techniques as
encouragement.''
Background Check Policy; Fingerprinting
Section 132 of Pub. L. 100-590 provided that: ``The Small Business
Administration shall not require fingerprints to be obtained for
background check purposes from any participant in any Administration
program who is serving on a voluntary basis and without compensation
unless the Administration has reasonable grounds to believe that the
participant's record or background is such as to make the participant
ineligible to participate in the relevant program.''
Time for Designation of Agency
Section 1(b) of Pub. L. 99-567 provided that: ``The designation of
an agency pursuant to the amendment made by subsection (a) [amending
this section] shall be made not later than sixty days after the date of
enactment of this Act [Oct. 27, 1986].''
Report to Congress Respecting Assistance Furnished by Profitmaking
Concerns to Small Business Concerns; Contents
Section 5(b) of Pub. L. 98-362 directed Small Business
Administration, not later than Dec. 1, 1987, to report to Committees on
Small Business of Senate and House of Representatives on impact of
assistance provided in cooperation with profitmaking concerns pursuant
to amendment made by section 5(a)(2) of the Small Business Computer
Security and Education Act of 1984 [amending this section], including
information on benefits provided to small business concerns assisted by
Administration's cooperation with profitmaking concerns and any negative
impact upon small businesses resulting from such cooperation with
profitmaking concerns.
Tennessee Valley Authority; Procurement Procedures Under 1983 and 1984
Amendments Applicable Only to Procurements Paid From Appropriated Funds
Section 404(c) of Pub. L. 98-577 provided that: ``The provisions of
the amendment made by subsection (a) of this section [enacting subsecs.
(e) to (j) of this section and striking out former subsec. (e) of this
section] shall apply to the Tennessee Valley Authority only with respect
to procurements to be paid from appropriated funds.''
Section 1(b)(3) of Pub. L. 98-72 provided that: ``The provisions of
this Act [amending this section] shall apply to the Tennessee Valley
Authority only with respect to procurements to be paid from appropriated
funds.''
Asian Pacific Americans as Disadvantaged Minority in 1978
Section 118(c)(2) of Pub. L. 96-302 provided that the amendment of
subsec. (d)(3)(C) by Pub. L. 96-302, including Asian Pacific Americans
among the disadvantaged minorities, shall apply as if included in the
amendment made by section 211 of Pub. L. 95-507, to subsec. (d) of this
section.
Business Plans; Submittal by Concerns Eligible To Receive Contracts
Concerns eligible to receive contracts pursuant to subsec. (a) of
this section required to submit business plans required under section
636(j)(10)(A)(i) of this title within certain time limits, provided that
no determination made under this paragraph shall be considered a denial
of total participation for the purposes of subsec. (a)(9) of this
section, see section 106(b) of Pub. L. 96-481 set out as a note under
section 636 of this title.
Reports to Congress; General Accounting Office Report on Business
Development; Quarterly Reports by Small Business Administration to
Congressional Committees
Section 202(b) of Pub. L. 95-507, as amended by Pub. L. 96-481,
title I, Sec. 102, Oct. 21, 1980, 94 Stat. 2321, provided not later than
Jan. 31, 1981, the General Accounting Office submit to Congress a report
which, with respect to provisions of subsec. (a)(1)(B) and (2) of this
section, evaluated the implementation of such provisions and whether
such implementation furthered the purposes under section 631(e) of this
title, and required the Small Business Administration and the agency
designated pursuant to subsec. (a)(1)(B) of this section to submit
separate quarterly reports to specific congressional committees, which
reports were to contain a review and evaluation of all activities
conducted pursuant to subsec. (a)(1)(B) during the previous three-month
period, with the first such report submitted commencing on Jan. 2, 1981,
for the preceding three-month period, and to continue quarterly through,
and include, the quarter ending Sept. 30, 1981.
Termination of Advisory Boards and Committees
Advisory boards and committees in existence on Jan. 5, 1973, to
terminate not later than the expiration of the 2-year period following
Jan. 5, 1973, unless, in the case of a board or committee established by
the President or an officer of the Federal Government, such board or
committee is renewed by appropriate action prior to the expiration of
such 2-year period, or in the case of a board or committee established
by the Congress, its duration is otherwise provided by law. See sections
3(2) and 14 of Pub. L. 92-463, Oct. 6, 1972, 86 Stat. 770, 776, set out
in the Appendix to Title 5, Government Organization and Employees.
Definition
Section 127(d) of Pub. L. 100-590 provided that: ``For the purposes
of this section [amending this section and enacting provisions set out
as notes under this section], the term `small business concern owned and
controlled by women' means any small business concern--
``(1) that is at least 51 per centum owned by one or more women;
and
``(2) whose management and daily business operations are
controlled by one or more of such women.''
Similar provisions were contained in Pub. L. 100-533, title II,
Sec. 204, Oct. 25, 1988, 102 Stat. 2692.
Section Referred to in Other Sections
This section is referred to in sections 631, 631b, 633, 634d, 636,
638, 639, 644, 645, 657c, 694b, 7107 of this title; title 6 section 426;
title 10 sections 2225, 2304, 2304b, 2304c, 2304e, 2319, 2323, 2323a,
2410d, 2855; title 12 sections 635, 635g; title 14 sections 681, 687;
title 20 section 1018a; title 31 sections 3718, 6701; title 41 sections
253, 253c, 253i, 253j, 417a, 428; title 42 sections 2473b, 3608, 4370d,
9815, 13556; title 43 section 1626; title 49 section 47113; title 50
App. section 2152.
