§ 644. — Awards or contracts.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 15USC644]
TITLE 15--COMMERCE AND TRADE
CHAPTER 14A--AID TO SMALL BUSINESS
Sec. 644. Awards or contracts
(a) Determination
To effectuate the purposes of this chapter, small-business concerns
within the meaning of this chapter shall receive any award or contract
or any part thereof, and be awarded any contract for the sale of
Government property, as to which it is determined by the Administration
and the contracting procurement or disposal agency (1) to be in the
interest of maintaining or mobilizing the Nation's full productive
capacity, (2) to be in the interest of war or national defense programs,
(3) to be in the interest of assuring that a fair proportion of the
total purchases and contracts for property and services for the
Government in each industry category are placed with small-business
concerns, or (4) to be in the interest of assuring that a fair
proportion of the total sales of Government property be made to small-
business concerns; but nothing contained in this chapter shall be
construed to change any preferences or priorities established by law
with respect to the sale of electrical power or other property by the
Government or any agency thereof. These determinations may be made for
individual awards or contracts or for classes of awards or contracts. If
a proposed procurement includes in its statement of work goods or
services currently being performed by a small business, and if the
proposed procurement is in a quantity or estimated dollar value the
magnitude of which renders small business prime contract participation
unlikely, or if a proposed procurement for construction seeks to package
or consolidate discrete construction projects, or the solicitation
involves an unnecessary or unjustified bundling of contract
requirements, as determined by the Administration, the Procurement
Activity shall provide a copy of the proposed procurement to the
Procurement Activity's Small Business Procurement Center Representative
at least 30 days prior to the solicitation's issuance along with a
statement explaining (1) why the proposed acquisition cannot be divided
into reasonably small lots (not less than economic production runs) to
permit offers on quantities less than the total requirement, (2) why
delivery schedules cannot be established on a realistic basis that will
encourage small business participation to the extent consistent with the
actual requirements of the Government, (3) why the proposed acquisition
cannot be offered so as to make small business participation likely, (4)
why construction cannot be procured as separate discrete projects, or
(5) why the agency has determined that the bundled contract (as defined
in section 632(o) of this title) is necessary and justified. The thirty-
day notification process shall occur concurrently with other processing
steps required prior to issuance of the solicitation. Within 15 days
after receipt of the proposed procurement and accompanying statement, if
the Procurement Center Representative believes that the procurement as
proposed will render small business prime contract participation
unlikely, the Representative shall recommend to the Procurement Activity
alternative procurement methods which would increase small business
prime contracting opportunities. Whenever the Administration and the
contracting procurement agency 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. For purposes of
clause (3) of the first sentence of this subsection, an industry
category is a discrete group of similar goods and services. Such groups
shall be determined by the Administration in accordance with the
definition of a ``United States industry'' under the North American
Industry Classification System, as established by the Office of
Management and Budget, except that the Administration shall limit such
an industry category to a greater extent than provided under such
classification codes if the Administration receives evidence indicating
that further segmentation for purposes of this paragraph is warranted
due to special capital equipment needs or special labor or geographic
requirements or to recognize a new industry. A market for goods or
services may not be segmented under the preceding sentence due to
geographic requirements unless the Government typically designates the
area where work for contracts for such goods or services is to be
performed and Government purchases comprise the major portion of the
entire domestic market for such goods or services and, due to the fixed
location of facilities, high mobilization costs, or similar economic
factors, it is unreasonable to expect competition from business concerns
located outside of the general areas where such concerns are located. 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) Placement of contracts by contracting procurement agency
With respect to any work to be performed the amount of which would
exceed the maximum amount of any contract for which a surety may be
guaranteed against loss under section 694b of this title, the
contracting procurement agency shall, to the extent practicable, place
contracts so as to allow more than one small business concern to perform
such work.
(c) Programs for blind and handicapped individuals
(1) As used in this subsection:
(A) The term ``Committee'' means the Committee for Purchase From
People Who Are Blind or Severely Disabled established under section
46 of title 41.
(B) The term ``public or private organization for the
handicapped'' has the same meaning given such term in section 632(e)
of this title.
(C) The term ``handicapped individual'' has the same meaning
given such term in section 632(f) of this title.
(2)(A) During fiscal year 1995, public or private organizations for
the handicapped shall be eligible to participate in programs authorized
under this section in an aggregate amount not to exceed $40,000,000.
(B) None of the amounts authorized for participation by subparagraph
(A) may be placed on the procurement list maintained by the Committee
pursuant to section 47 of title 41.
(3) The Administrator shall monitor and evaluate such participation.
(4)(A) Not later than ten days after the announcement of a proposed
award of a contract by an agency or department to a public or private
organization for the handicapped, a for-profit small business concern
that has experienced or is likely to experience severe economic injury
as the result of the proposed award may file an appeal of the proposed
award with the Administrator.
(B) If such a concern files an appeal of a proposed award under
subparagraph (A) and the Administrator, after consultation with the
Executive Director of the Committee, finds that the concern has
experienced or is likely to experience severe economic injury as the
result of the proposed award, not later than thirty days after the
filing of the appeal, the Administration shall require each agency and
department having procurement powers to take such action as may be
appropriate to alleviate economic injury sustained or likely to be
sustained by the concern.
(5) Each agency and department having procurement powers shall
report to the Office of Federal Procurement Policy each time a contract
subject to paragraph (2)(A) is entered into, and shall include in its
report the amount of the next higher bid submitted by a for-profit small
business concern. The Office of Federal Procurement Policy shall collect
data reported under the preceding sentence through the Federal
procurement data system and shall report to the Administration which
shall notify all such agencies and departments when the maximum amount
of awards authorized under paragraph (2)(A) has been made during any
fiscal year.
(6) For the purpose of this subsection, a contract may be awarded
only if at least 75 per centum of the direct labor performed on each
item being produced under the contract in the sheltered workshop or
performed in providing each type of service under the contract by the
sheltered workshop is performed by handicapped individuals.
(7) Agencies awarding one or more contracts to such an organization
pursuant to the provisions of this subsection may use multiyear
contracts, if appropriate.
(d) Priority
For purposes of this section priority shall be given to the awarding
of contracts and the placement of subcontracts to small business
concerns which shall perform a substantial proportion of the production
on those contracts and subcontracts within areas of concentrated
unemployment or underemployment or within labor surplus areas.
Notwithstanding any other provision of law, total labor surplus area
set-asides pursuant to Defense Manpower Policy Number 4 (32A C.F.R.
Chapter 1) or any successor policy shall be authorized if the Secretary
or his designee specifically determines that there is a reasonable
expectation that offers will be obtained from a sufficient number of
eligible concerns so that awards will be made at reasonable prices. As
soon as practicable and to the extent possible, in determining labor
surplus areas, consideration shall be given to those persons who would
be available for employment were suitable employment available. Until
such definition reflects such number, the present criteria of such
policy shall govern.
(e) Procurement strategies; contract bundling
(1) In general
To the maximum extent practicable, procurement strategies used
by the various agencies having contracting authority shall
facilitate the maximum participation of small business concerns as
prime contractors, subcontractors, and suppliers.
(2) Market research
(A) In general
Before proceeding with an acquisition strategy that could
lead to a contract containing consolidated procurement
requirements, the head of an agency shall conduct market
research to determine whether consolidation of the requirements
is necessary and justified.
(B) Factors
For purposes of subparagraph (A), consolidation of the
requirements may be determined as being necessary and justified
if, as compared to the benefits that would be derived from
contracting to meet those requirements if not consolidated, the
Federal Government would derive from the consolidation
measurably substantial benefits, including any combination of
benefits that, in combination, are measurably substantial.
Benefits described in the preceding sentence may include the
following:
(i) Cost savings.
(ii) Quality improvements.
(iii) Reduction in acquisition cycle times.
(iv) Better terms and conditions.
(v) Any other benefits.
(C) Reduction of costs not determinative
The reduction of administrative or personnel costs alone
shall not be a justification for bundling of contract
requirements unless the cost savings are expected to be
substantial in relation to the dollar value of the procurement
requirements to be consolidated.
(3) Strategy specifications
If the head of a contracting agency determines that a proposed
procurement strategy for a procurement involves a substantial
bundling of contract requirements, the proposed procurement strategy
shall--
(A) identify specifically the benefits anticipated to be
derived from the bundling of contract requirements;
(B) set forth an assessment of the specific impediments to
participation by small business concerns as prime contractors
that result from the bundling of contract requirements and
specify actions designed to maximize small business
participation as subcontractors (including suppliers) at various
tiers under the contract or contracts that are awarded to meet
the requirements; and
(C) include a specific determination that the anticipated
benefits of the proposed bundled contract justify its use.
(4) Contract teaming
In the case of a solicitation of offers for a bundled contract
that is issued by the head of an agency, a small-business concern
may submit an offer that provides for use of a particular team of
subcontractors for the performance of the contract. The head of the
agency shall evaluate the offer in the same manner as other offers,
with due consideration to the capabilities of all of the proposed
subcontractors. If a small business concern teams under this
paragraph, it shall not affect its status as a small business
concern for any other purpose.
(f) Repealed. Pub. L. 103-355, title VII, Sec. 7101(a), Oct. 13, 1994,
108 Stat. 3367
(g) Goals for participation of small business concerns in procurement
contracts
(1) The President shall annually establish Government-wide goals for
procurement contracts awarded to small business concerns, small business
concerns owned and controlled by service disabled \1\ 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. The
Government-wide goal for participation by small business concerns shall
be established at not less than 23 percent of the total value of all
prime contract awards for each fiscal year. The Government-wide goal for
participation by small business concerns owned and controlled by
service-disabled veterans shall be established at not less than 3
percent of the total value of all prime contract and subcontract awards
for each fiscal year. The Governmentwide goal for participation by
qualified HUBZone small business concerns shall be established at not
less than 1 percent of the total value of all prime contract awards for
fiscal year 1999, not less than 1.5 percent of the total value of all
prime contract awards for fiscal year 2000, not less than 2 percent of
the total value of all prime contract awards for fiscal year 2001, not
less than 2.5 percent of the total value of all prime contract awards
for fiscal year 2002, and not less than 3 percent of the total value of
all prime contract awards for fiscal year 2003 and each fiscal year
thereafter. The Government-wide goal for participation by small business
concerns owned and controlled by socially and economically disadvantaged
individuals shall be established at not less than 5 percent of the total
value of all prime contract and subcontract awards for each fiscal year.
The Government-wide goal for participation by small business concerns
owned and controlled by women shall be established at not less than 5
percent of the total value of all prime contract and subcontract awards
for each fiscal year. Notwithstanding the Government-wide goal, each
agency shall have an annual goal that presents, for that agency, the
maximum practicable opportunity for small business concerns, small
business concerns owned and controlled by service-disabled veterans,
qualified HUBZone small business concerns, small business concerns owned
and controlled by socially and economically disadvantaged individuals,
and small business concerns owned and controlled by women to participate
in the performance of contracts let by such agency. The Administration
and the Administrator of the Office of Federal Procurement Policy shall,
when exercising their authority pursuant to paragraph (2), insure that
the cumulative annual prime contract goals for all agencies meet or
exceed the annual Government-wide prime contract goal established by the
President pursuant to this paragraph.
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\1\ So in original. Probably should be ``service-disabled''.
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(2) The head of each Federal agency shall, after consultation with
the Administration, establish goals for the participation by small
business concerns, by small business concerns owned and controlled by
service-disabled veterans, by qualified HUBZone small business concerns,
by small business concerns owned and controlled by socially and
economically disadvantaged individuals, and by small business concerns
owned and controlled by women in procurement contracts of such agency.
Goals established under this subsection shall be jointly established by
the Administration and the head of each Federal agency and shall
realistically reflect the potential of small business concerns, small
business concerns owned and controlled by service-disabled veterans,
qualified HUBZone small business concerns, small business concerns owned
and controlled by socially and economically disadvantaged individuals,
and small business concerns owned and controlled by women to perform
such contracts and to perform subcontracts under such contracts.
Whenever the Administration and the head of any Federal agency fail to
agree on established goals, the disagreement shall be submitted to the
Administrator of the Office of Federal Procurement Policy for final
determination. For the purpose of establishing goals under this
subsection, the head of each Federal agency shall make consistent
efforts to annually expand participation by small business concerns from
each industry category in procurement contracts of the agency, including
participation by small business concerns owned and controlled by
service-disabled veterans, by qualified HUBZone small business concerns,
by small business concerns owned and controlled by socially and
economically disadvantaged individuals, and by small business concerns
owned and controlled by women. The head of each Federal agency, in
attempting to attain such participation, shall consider--
(A) contracts awarded as the result of unrestricted competition;
and
(B) contracts awarded after competition restricted to eligible
small business concerns under this section and under the program
established under section 637(a) of this title.
(h) Reports to Administration; submittal of information to Congress
(1) At the conclusion of each fiscal year, the head of each Federal
agency shall report to the Administration on the extent of participation
by small business concerns, small business concerns owned and controlled
by veterans (including service-disabled veterans), qualified HUBZone
small business concerns, small business concerns owned and controlled by
socially and economically disadvantaged individuals, and small business
concerns owned and controlled by women in procurement contracts of such
agency. Such reports shall contain appropriate justifications for
failure to meet the goals established under subsection (g) of this
section.
(2) The Administration shall annually compile and analyze the
reports submitted by the individual agencies pursuant to paragraph (1)
and shall submit them to the President and the Congress. The
Administration's submission to the President shall include the
following:
(A) The Government-wide goals for participation by small
business concerns, small business concerns owned and controlled by
service-disabled veterans, qualified HUBZone small business
concerns, small business concerns owned and controlled by socially
and economically disadvantaged individuals, and small business
concerns owned and controlled by women and the performance in
attaining such goals.
(B) The goals in effect for each agency and the agency's
performance in attaining such goals.
(C) An analysis of any failure to achieve the Government-wide
goals or any individual agency goals and the actions planned by such
agency (and approved by the Administration) to achieve the goals in
the succeeding fiscal year.
(D) The number and dollar value of contracts awarded to small
business concerns, small business concerns owned and controlled by
service-disabled veterans, qualified HUBZone small business
concerns, small business concerns owned and controlled by socially
and economically disadvantaged individuals, and small business
concerns owned and controlled by women through--
(i) noncompetitive negotiation,
(ii) competition restricted to small business concerns owned
and controlled by socially and economically disadvantaged
individuals,
(iii) competition restricted to small business concerns,
qualified HUBZone small business concerns, and
(iv) unrestricted competitions,
for each agency and on a Government-wide basis.
(E) The number and dollar value of subcontracts awarded to small
business concerns, small business concerns owned and controlled by
service-disabled veterans, qualified HUBZone small business
concerns, small business concerns owned and controlled by socially
and economically disadvantaged individuals, and small business
concerns owned and controlled by women.
(F) The number and dollar value of prime contracts and
subcontracts awarded to small business concerns owned and controlled
by women.
(3) The President shall include the information required by
paragraph (2) in each annual report to the Congress on the state of
small business prepared pursuant to section 631b(a) of this title.
(i) Small business set-asides
Nothing in this chapter or any other provision of law precludes
exclusive small business set-asides for procurements of architectural
and engineering services, research, development, test and evaluation,
and each Federal agency is authorized to develop such set-asides to
further the interests of small business in those areas.
(j) Small business reservation
(1) Each contract for the purchase of goods and services that has an
anticipated value greater than $2,500 but not greater than $100,000
shall be reserved exclusively for small business concerns unless the
contracting officer is unable to obtain offers from two or more small
business concerns that are competitive with market prices and are
competitive with regard to the quality and delivery of the goods or
services being purchased.
(2) In carrying out paragraph (1), a contracting officer shall
consider a responsive offer timely received from an eligible small
business offeror.
(3) Nothing in paragraph (1) shall be construed as precluding an
award of a contract with a value not greater than $100,000 under the
authority of subsection (a) of section 637 of this title, section 2323
of title 10, section 712 of the Business Opportunity Development Reform
Act of 1988 (Public Law 100-656; 15 U.S.C. 644 note), or section 7102 of
the Federal Acquisition Streamlining Act of 1994.
(k) Office of Small and Disadvantaged Business Utilization; Director
There is hereby established in each Federal agency having
procurement powers an office to be known as the ``Office of Small and
Disadvantaged Business Utilization''. The management of each such office
shall be vested in an officer or employee of such agency who shall--
(1) be known as the ``Director of Small and Disadvantaged
Business Utilization'' for such agency,
(2) be appointed by the head of such agency,
(3) be responsible only to, and report directly to, the head of
such agency or to the deputy of such head, except that the director
for the Office of the Secretary of Defense shall be responsible only
to, and report directly to, such Secretary or the Secretary's
designee,
(4) be responsible for the implementation and execution of the
functions and duties under this section and section 637 of this
title which relate to such agency,
(5) identify proposed solicitations that involve significant
bundling of contract requirements, and work with the agency
acquisition officials and the Administration to revise the
procurement strategies for such proposed solicitations where
appropriate to increase the probability of participation by small
businesses as prime contractors, or to facilitate small business
participation as subcontractors and suppliers, if a solicitation for
a bundled contract is to be issued;
(6) assist small business concerns to obtain payments, required
late payment interest penalties, or information regarding payments
due to such concerns from an executive agency or a contractor, in
conformity with chapter 39 of title 31 or any other protection for
contractors or subcontractors (including suppliers) that is included
in the Federal Acquisition Regulation or any individual agency
supplement to such Government-wide regulation,
(7) have supervisory authority over personnel of such agency to
the extent that the functions and duties of such personnel relate to
functions and duties under this section and section 637 of this
title,
(8) assign a small business technical adviser to each office to
which the Administration has assigned a procurement center
representative--
(A) who shall be a full-time employee of the procuring
activity and shall be well qualified, technically trained and
familiar with the supplies or services purchased at the
activity, and
(B) whose principal duty shall be to assist the
Administration procurement center representative in his duties
and functions relating to this section and section 637 of this
title,
(9) cooperate, and consult on a regular basis, with the
Administration with respect to carrying out the functions and duties
described in paragraph (4) of this subsection, and
(10) make recommendations to contracting officers as to whether
a particular contract requirement should be awarded pursuant to
subsection (a) of this section, or section 637(a) of this title or
section 2323 of title 10. Such recommendations shall be made with
due regard to the requirements of subsection (m) of this section,
and the failure of the contracting officer to accept any such
recommendations shall be documented and included within the
appropriate contract file.
This subsection shall not apply to the Administration.
(l) Breakout procurement center representatives
(1) The Administration shall assign to each major procurement center
a breakout procurement center representative with such assistance as may
be appropriate. The breakout procurement center representative shall
carry out the activities described in paragraph (2), and shall be an
advocate for the breakout of items for procurement through full and open
competition, whenever appropriate, while maintaining the integrity of
the system in which such items are used, and an advocate for the use of
full and open competition, whenever appropriate, for the procurement of
supplies and services by such center. Any breakout procurement center
representative assigned under this subsection shall be in addition to
the representative referred to in subsection (k)(6) of this section.
(2) In addition to carrying out the responsibilities assigned by the
Administration, a breakout procurement center representative is
authorized to--
(A) attend any provisioning conference or similar evaluation
session during which determinations are made as to whether
requirements are to be procured through other than full and open
competition and make recommendations with respect to such
requirements to the members of such conference or session;
(B) review, at any time, restrictions on competition previously
imposed on items through acquisition method coding or similar
procedures, and recommend to personnel of the appropriate activity
the prompt reevaluation of such limitations;
(C) review restrictions on competition arising out of
restrictions on the rights of the United States in technical data,
and, when appropriate, recommend that personnel of the appropriate
activity initiate a review of the validity of such an asserted
restriction;
(D) obtain from any governmental source, and make available to
personnel of the appropriate activity, technical data necessary for
the preparation of a competitive solicitation package for any item
of supply or service previously procured noncompetitively due to the
unavailability of such technical data;
(E) have access to procurement records and other data of the
procurement center commensurate with the level of such
representative's approved security clearance classification;
(F) receive unsolicited engineering proposals and, when
appropriate (i) conduct a value analysis of such proposal to
determine whether such proposal, if adopted, will result in lower
costs to the United States without substantially impeding legitimate
acquisition objectives and forward to personnel of the appropriate
activity recommendations with respect to such proposal, or (ii)
forward such proposals without analysis to personnel of the activity
responsible for reviewing such proposals and who shall furnish the
breakout procurement center representative with information
regarding the disposition of any such proposal; and
(G) review the systems that account for the acquisition and
management of technical data within the procurement center to assure
that such systems provide the maximum availability and access to
data needed for the preparation of offers to sell to the United
States those supplies to which such data pertain which potential
offerors are entitled to receive.
(3) A breakout procurement center representative is authorized to
appeal the failure to act favorably on any recommendation made pursuant
to paragraph (2). Such appeal shall be filed and processed in the same
manner and subject to the same conditions and limitations as an appeal
filed by the Administrator pursuant to subsection (a) of this section.
(4) The Administration shall assign and co-locate at least two small
business technical advisers to each major procurement center in addition
to such other advisers as may be authorized from time to time. The sole
duties of such advisers shall be to assist the breakout procurement
center representative for the center to which such advisers are assigned
in carrying out the functions described in paragraph (2) and the
representatives referred to in subsection (k)(6) of this section.
(5)(A) The breakout procurement center representatives and technical
advisers assigned pursuant to this subsection shall be--
(i) full-time employees of the Administration; and
(ii) fully qualified, technically trained, and familiar with the
supplies and services procured by the major procurement center to
which they are assigned.
(B) In addition to the requirements of subparagraph (A), each
breakout procurement center representative, and at least one technical
adviser assigned to such representative, shall be an accredited
engineer.
(C) The Administration shall establish personnel positions for
breakout procurement representatives and advisers assigned pursuant to
this subsection, which are classified at a grade level of the General
Schedule sufficient to attract and retain highly qualified personnel.
(6) For purposes of this subsection, the term ``major procurement
center'' means a procurement center that, in the opinion of the
Administrator, purchases substantial dollar amounts of other than
commercial items and which has the potential to incur significant
savings as the result of the placement of a breakout procurement center
representative.
(7)(A) At such times as the Administrator deems appropriate, the
breakout procurement center representative shall conduct familiarization
sessions for contracting officers and other appropriate personnel of the
procurement center to which such representative is assigned. Such
sessions shall acquaint the participants with the provisions of this
subsection and shall instruct them in methods designed to further the
purposes of such subsection.
(B) The breakout procurement center representative shall prepare and
personally deliver an annual briefing and report to the head of the
procurement center to which such representative is assigned. Such
briefing and report shall detail the past and planned activities of the
representative and shall contain such recommendations for improvement in
the operation of the center as may be appropriate. The head of such
center shall personally receive such briefing and report and shall,
within sixty calendar days after receipt, respond, in writing, to each
recommendation made by such representative.
(m) Relationship to other procurement programs
(1) Each agency subject to the requirements of section 2323 of title
10 shall, when implementing such requirements--
(A) establish policies and procedures that insure that there
will be no reduction in the number of dollar value of contracts
awarded pursuant to this section and section 637(a) of this title in
order to achieve any goal or other program objective; and
(B) assure that such requirements will not alter or change the
procurement process used to implement this section or section 637(a)
of this title.
(2) All procurement center representatives (including those referred
to in subsection (k)(6) of this section), in addition to such other
duties as may be assigned by the Administrator, shall--
(A) monitor the performance of the procurement activities to
which they are assigned to ascertain the degree of compliance with
the requirements of paragraph (1);
(B) report to their immediate supervisors all instances of
noncompliance with such requirements; and
(C) increase, insofar as possible, the number and dollar value
of procurements that may be used for the programs established under
this section, section 637(a) of this title, and section 2323 of
title 10.
(n) Determination of labor surplus areas
For purposes of this section, the determination of labor surplus
areas shall be made on the basis of the criteria in effect at the time
of the determination, except that any minimum population criteria shall
not exceed twenty-five thousand. Such determination, as modified by the
preceding sentence, shall be made by the Secretary of Labor.
(o) Requirements for performance of contracts by employees of small
business concerns
(1) A concern may not be awarded a contract under subsection (a) of
this section as a small business concern unless the concern agrees
that--
(A) 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;
(B) 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).
(2) The Administrator may change the percentage under subparagraph
(A) or (B) of paragraph (1) 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.
(3) The Administration shall establish, through public rulemaking,
requirements similar to those specified in paragraph (1) 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 paragraph. The percentage applicable to any such
requirement shall be determined in accordance with paragraph (2).
(p) Database, analysis, and annual report with respect to bundled
contracts
(1) Bundled contract defined
In this subsection, the term ``bundled contract'' has the
meaning given such term in section 632(o)(1) of this title.
(2) Database
(A) \2\ In general
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\2\ So in original. No subpar. (B) has been enacted.
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Not later than 180 days after December 21, 2000, the
Administrator of the Small Business Administration shall develop
and shall thereafter maintain a database containing data and
information regarding--
(i) each bundled contract awarded by a Federal agency;
and
(ii) each small business concern that has been displaced
as a prime contractor as a result of the award of such a
contract.
(3) Analysis
For each bundled contract that is to be recompeted as a bundled
contract, the Administrator shall determine--
(A) the amount of savings and benefits (in accordance with
subsection (e) of this section) achieved under the bundling of
contract requirements; and
(B) whether such savings and benefits will continue to be
realized if the contract remains bundled, and whether such
savings and benefits would be greater if the procurement
requirements were divided into separate solicitations suitable
for award to small business concerns.
(4) Annual report on contract bundling
(A) In general
Not later than 1 year after December 21, 2000, and annually
in March thereafter, the Administration shall transmit a report
on contract bundling to the Committees on Small Business of the
House of Representatives and the Senate.
(B) Contents
Each report transmitted under subparagraph (A) shall
include--
(i) data on the number, arranged by industrial
classification, of small business concerns displaced as
prime contractors as a result of the award of bundled
contracts by Federal agencies; and
(ii) a description of the activities with respect to
previously bundled contracts of each Federal agency during
the preceding year, including--
(I) data on the number and total dollar amount of
all contract requirements that were bundled; and
(II) with respect to each bundled contract, data or
information on--
(aa) the justification for the bundling of
contract requirements;
(bb) the cost savings realized by bundling the
contract requirements over the life of the contract;
(cc) the extent to which maintaining the bundled
status of contract requirements is projected to
result in continued cost savings;
(dd) the extent to which the bundling of
contract requirements complied with the contracting
agency's small business subcontracting plan,
including the total dollar value awarded to small
business concerns as subcontractors and the total
dollar value previously awarded to small business
concerns as prime contractors; and
(ee) the impact of the bundling of contract
requirements on small business concerns unable to
compete as prime contractors for the consolidated
requirements and on the industries of such small
business concerns, including a description of any
changes to the proportion of any such industry that
is composed of small business concerns.
(5) Access to data
(A) Federal procurement data system
To assist in the implementation of this section, the
Administration shall have access to information collected
through the Federal Procurement Data System.
(B) Agency procurement data sources
To assist in the implementation of this section, the head of
each contracting agency shall provide, upon request of the
Administration, procurement information collected through
existing agency data collection sources.
(Pub. L. 85-536, Sec. 2[15], July 18, 1958, 72 Stat. 395; Pub. L. 95-89,
title V, Sec. 502, Aug. 4, 1977, 91 Stat. 562; Pub. L. 95-507, title II,
Secs. 221, 232, 233, Oct. 24, 1978, 92 Stat. 1770, 1772; Pub. L. 96-302,
title I, Secs. 116, 117, July 2, 1980, 94 Stat. 839; Pub. L. 98-577,
title IV, Sec. 403(a), Oct. 30, 1984, 98 Stat. 3080; Pub. L. 99-272,
title XVIII, Sec. 18003(a), Apr. 7, 1986, 100 Stat. 363; Pub. L. 99-500,
Sec. 101(c) [title X, Secs. 903(d), 921(a), (b)(1), (c)(2)-(e), 922(c)],
Oct. 18, 1986, 100 Stat. 1783-82, 1783-132, 1783-147 to 1783-149, 1783-
152, and Pub. L. 99-591, Sec. 101(c) [title X, Secs. 903(d), 921(a),
(b)(1), (c)(2)-(e), 922(c)], Oct. 30, 1986, 100 Stat. 3341-82, 3341-132,
3341-147 to 3341-149, 3341-152; Pub. L. 99-661, div. A, title IX,
formerly title IV, Secs. 903(d), 921(a), (b)(1), (c)(2)-(e), 922(c),
Nov. 14, 1986, 100 Stat. 3912, 3926-3928, 3932, renumbered title IX,
Pub. L. 100-26, Sec. 3(5), Apr. 21, 1987, 101 Stat. 273; Pub. L. 100-26,
Sec. 10(a)(1), (b)(1), Apr. 21, 1987, 101 Stat. 288; Pub. L. 100-180,
div. A, title VIII, Sec. 809(a)-(c), Dec. 4, 1987, 101 Stat. 1130; Pub.
L. 100-496, Sec. 12, Oct. 17, 1988, 102 Stat. 2465; Pub. L. 100-590,
title I, Secs. 110, 133(a), Nov. 3, 1988, 102 Stat. 2994, 3005; Pub. L.
100-656, title V, Secs. 502, 503, title VI, Secs. 601, 603, Nov. 15,
1988, 102 Stat. 3881, 3887, 3888; Pub. L. 101-37, Secs. 19, 21, June 15,
1989, 103 Stat. 74, 75; Pub. L. 101-510, div. A, title VIII,
Sec. 806(e)(3), Nov. 5, 1990, 104 Stat. 1593; Pub. L. 101-574, title II,
Sec. 208, Nov. 15, 1990, 104 Stat. 2820; Pub. L. 102-190, div. A, title
VIII, Sec. 806(d), Dec. 5, 1991, 105 Stat. 1419; Pub. L. 102-366, title
II, Sec. 232(b), Sept. 4, 1992, 106 Stat. 1002; Pub. L. 102-484, div. A,
title VIII, Sec. 801(h)(8), Oct. 23, 1992, 106 Stat. 2446; Pub. L. 102-
569, title IX, Sec. 911(b), Oct. 29, 1992, 106 Stat. 4486; Pub. L. 103-
355, title IV, Sec. 4004, title VII, Secs. 7101(a), 7106(a), Oct. 13,
1994, 108 Stat. 3338, 3367, 3374; Pub. L. 103-403, title III, Sec. 305,
Oct. 22, 1994, 108 Stat. 4189; Pub. L. 104-106, div. D, title XLIII,
Sec. 4321(c)(3), Feb. 10, 1996, 110 Stat. 674; Pub. L. 105-135, title
IV, Sec. 413, title VI, Sec. 603(b), Dec. 2, 1997, 111 Stat. 2618, 2632;
Pub. L. 106-50, title V, Sec. 502, title VI, Sec. 601, Aug. 17, 1999,
113 Stat. 247, 248; Pub. L. 106-554, Sec. 1(a)(9) [title VIII,
Secs. 806(a), 810], Dec. 21, 2000, 114 Stat. 2763, 2763A-706.)
References in Text
Section 7102 of the Federal Acquisition Streamlining Act of 1994,
referred to in subsec. (j)(3), is section 7102 of Pub. L. 103-355, which
is set out below.
Codification
Pub. L. 99-591 is a corrected version of Pub. L. 99-500.
Prior Provisions
Prior similar provisions were contained in section 214 of act July
30, 1953, ch. 282, title II, 67 Stat. 238, as amended by act Aug. 9,
1955, ch. 628, Sec. 9, 69 Stat. 551, which was previously classified to
section 643 of this title. The provisions of section 215 of act July 30,
1953, formerly classified to this section, were transferred to section
2[10] of Pub. L. 85-536, and are classified to section 639 of this
title. See Codification note set out under section 631 of this title.
Amendments
2000--Subsec. (a). Pub. L. 106-554, Sec. 1(a)(9) [title VIII,
Sec. 806(a)], in eighth sentence, substituted ``definition of a `United
States industry' under the North American Industry Classification
System, as established'' for ``four-digit standard industrial
classification codes contained in the Standard Industrial Classification
Manual published''.
Subsec. (p). Pub. L. 106-554, Sec. 1(a)(9) [title VIII, Sec. 810],
added subsec. (p).
1999--Subsec. (g)(1). Pub. L. 106-50, Sec. 502(a)(3), inserted
``small business concerns owned and controlled by service-disabled
veterans,'' after ``the maximum practicable opportunity for small
business concerns,'' in penultimate sentence.
Pub. L. 106-50, Sec. 502(a)(2), inserted after second sentence ``The
Government-wide goal for participation by small business concerns owned
and controlled by service-disabled veterans shall be established at not
less than 3 percent of the total value of all prime contract and
subcontract awards for each fiscal year.''
Pub. L. 106-50, Sec. 502(a)(1), inserted ``small business concerns
owned and controlled by service disabled veterans,'' after ``small
business concerns,'' the first place appearing in first sentence.
Subsec. (g)(2). Pub. L. 106-50, Sec. 502(b)(3), inserted ``small
business concerns owned and controlled by service-disabled veterans,
by'' after ``including participation by'' in fourth sentence.
Pub. L. 106-50, Sec. 502(b)(2), inserted ``small business concerns
owned and controlled by service-disabled veterans,'' after ``small
business concerns,'' the first place appearing in second sentence.
Pub. L. 106-50, Sec. 502(b)(1), inserted ``by small business
concerns owned and controlled by service-disabled veterans,'' after
``small business concerns,'' the first place appearing in first
sentence.
Subsec. (h)(1). Pub. L. 106-50, Sec. 601(a), inserted ``small
business concerns owned and controlled by veterans (including service-
disabled veterans),'' after ``small business concerns,'' the first place
appearing.
Subsec. (h)(2). Pub. L. 106-50, Sec. 601(b)(1), inserted ``and the
Congress'' before period at end of first sentence in introductory
provisions.
Subsec. (h)(2)(A), (D), (E). Pub. L. 106-50, Sec. 601(b)(2),
inserted ``small business concerns owned and controlled by service-
disabled veterans,'' after ``small business concerns,'' the first place
appearing.
1997--Subsec. (a). Pub. L. 105-135, Sec. 413(b), in third sentence,
inserted ``or the solicitation involves an unnecessary or unjustified
bundling of contract requirements, as determined by the
Administration,'' after ``discrete construction projects,'', substituted
``(4)'' for ``or (4)'', and inserted before period at end ``, or (5) why
the agency has determined that the bundled contract (as defined in
section 632(o) of this title) is necessary and justified''.
Subsec. (e). Pub. L. 105-135, Sec. 413(a), added subsec. (e).
Subsec. (g)(1). Pub. L. 105-135, Sec. 603(b)(1), inserted
``qualified HUBZone small business concerns,'' after ``small business
concerns,'' in two places, substituted ``not less than 23 percent of the
total value'' for ``not less than 20 percent of the total value'', and
inserted after second sentence ``The Governmentwide goal for
participation by qualified HUBZone small business concerns shall be
established at not less than 1 percent of the total value of all prime
contract awards for fiscal year 1999, not less than 1.5 percent of the
total value of all prime contract awards for fiscal year 2000, not less
than 2 percent of the total value of all prime contract awards for
fiscal year 2001, not less than 2.5 percent of the total value of all
prime contract awards for fiscal year 2002, and not less than 3 percent
of the total value of all prime contract awards for fiscal year 2003 and
each fiscal year thereafter.''
Subsec. (g)(2). Pub. L. 105-135, Sec. 603(b)(2)(B), (C), inserted
``qualified HUBZone small business concerns,'' after ``small business
concerns,'' in second sentence and substituted ``by qualified HUBZone
small business concerns, by small business concerns owned and controlled
by socially and economically disadvantaged individuals, and by small
business concerns owned and controlled by women'' for ``by small
business concerns from each industry category in procurement contracts
of the agency, including participation by small business concerns owned
and controlled by socially and economically disadvantaged individuals
and participation by small business concerns owned and controlled by
women'' before period at end of fourth sentence.
Pub. L. 105-135, Sec. 603(b)(2)(A), which directed substitution of
``, by qualified HUBZone small business concerns, by small business
concerns owned and controlled by socially and economically disadvantaged
individuals'' for ``,, by small business concerns owned and controlled
by socially and economically disadvantaged individuals'' in first
sentence, was executed by making the insertion for the quoted language
which started with a single comma to reflect the probable intent of
Congress and the amendment by Pub. L. 104-106, Sec. 4321(c)(3). See 1996
Amendment note below.
Subsec. (h). Pub. L. 105-135, Sec. 603(b)(3), inserted ``qualified
HUBZone small business concerns,'' after ``small business concerns,''
wherever appearing.
Subsec. (k)(5) to (10). Pub. L. 105-135, Sec. 413(c)(1), (2), added
par. (5) and redesignated former pars. (5) to (9) as (6) to (10),
respectively.
1996--Subsec. (g)(2). Pub. L. 104-106 struck out second comma after
``goals for the participation by small business concerns,''.
1994--Subsec. (c)(2)(A). Pub. L. 103-403, Sec. 305(1), amended
subpar. (A) generally. Prior to amendment, subpar. (A) read as follows:
``During each of fiscal years 1989 through 1993, public or private
organizations for the handicapped shall be eligible to participate in
programs authorized under this section in an aggregate amount for each
year as follows: In 1989 not more than $30,000,000, in 1990 not more
than $40,000,000, and in each of 1991, 1992 and 1993 not more than
$50,000,000.''
Subsec. (c)(7). Pub. L. 103-403, Sec. 305(2), added par. (7).
Subsec. (e). Pub. L. 103-355, Sec. 7101(a), struck out subsec. (e)
which read as follows: ``In carrying out small business set-aside
programs, departments, agencies, and instrumentalities of the executive
branch shall award contracts, and encourage the placement of
subcontracts for procurement to the following in the manner and in the
order stated:
``(1) concerns which are small business concerns and which are
located in labor surplus areas, on the basis of a total set-aside;
``(2) concerns which are small business concerns, on the basis
of a total set-aside;
``(3) concerns which are small business concerns and which are
located in a labor surplus area, on the basis of a partial set-
aside;
``(4) concerns which are small business concerns, on the basis
of a partial set-aside.''
Subsec. (f). Pub. L. 103-355, Sec. 7101(a), struck out subsec. (f)
which read as follows: ``After priority is given to the small business
concerns specified in subsection (e) of this section, priority shall
also be given to the awarding of contracts and the placement of
subcontracts, on the basis of a total set-aside, to concerns which--
``(1) are not eligible under subsection (e) of this section;
``(2) are not small business concerns; and
``(3) will perform a substantial proportion of the production on
those contracts and subcontracts within areas of concentrated
unemployment or underemployment or within labor surplus areas.''
Subsec. (g)(1). Pub. L. 103-355, Sec. 7106(a)(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 first sentence and in sentence beginning with ``Notwithstanding
the''.
Pub. L. 103-355, Sec. 7106(a)(2)(A), inserted after third sentence
``The Government-wide goal for participation by small business concerns
owned and controlled by women shall be established at not less than 5
percent of the total value of all prime contract and subcontract awards
for each fiscal year.''
Subsec. (g)(2). Pub. L. 103-355, Sec. 7106(a)(2)(B), in first
sentence substituted ``, by small business concerns owned and controlled
by socially and economically disadvantaged individuals, and by small
business concerns owned and controlled by women'' for ``and by small
business concerns owned and controlled by socially and economically
disadvantaged individuals,''.
Pub. L. 103-355, Sec. 7106(a)(1), in second sentence 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''.
Pub. L. 103-355, Sec. 7106(a)(2)(C), in fourth sentence inserted at
end ``and participation by small business concerns owned and controlled
by women''.
Subsec. (h)(1), (2)(A), (D), (E). Pub. L. 103-355, Sec. 7106(a)(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. (h)(2)(F). Pub. L. 103-355, Sec. 7106(a)(3), substituted
``small business concerns owned and controlled by women'' for ``women-
owned small business enterprises''.
Subsec. (j). Pub. L. 103-355, Sec. 4004, amended subsec. (j)
generally. Prior to amendment, subsec. (j) read as follows: ``Each
contract for the procurement of goods and services which has an
anticipated value not in excess of the small purchase threshold and
which is subject to small purchase procedures shall be reserved
exclusively for small business concerns unless the contracting officer
is unable to obtain offers from two or more small business concerns that
are competitive with market prices and in terms of quality and delivery
of the goods or services being purchased. In utilizing small purchase
procedures, contracting officers shall, wherever circumstances permit,
choose a method of payment which minimizes paperwork and facilitates
prompt payment to contractors.''
1992--Subsec. (c)(1)(A). Pub. L. 102-569 substituted ``From People
Who Are Blind or Severely Disabled'' for ``from the Blind and Other
Severely Handicapped''.
Subsec. (c)(2)(B). Pub. L. 102-366, Sec. 232(b)(1), which directed
the substitution of ``Blind-made'' for ``Blindmade'', could not be
executed to text because ``Blindmade'' did not appear in subpar. (B).
Subsec. (k)(3), (5). Pub. L. 102-366, Sec. 232(b)(2), substituted
comma for semicolon at end of pars. (3) and (5).
Subsec. (k)(9). Pub. L. 102-484, Sec. 801(h)(8)(A), substituted
``section 2323 of title 10'' for ``section 1207 of Public Law 99-661''.
Subsec. (l)(6). Pub. L. 102-366, Sec. 232(b)(3), inserted period at
end.
Subsec. (m)(1). Pub. L. 102-484, Sec. 801(h)(8)(B), substituted
``section 2323 of title 10'' for ``section 1207 of the National Defense
Authorization Act for Fiscal Year 1987 (10 U.S.C. 2301 note)''.
Subsec. (m)(2)(B). Pub. L. 102-366, Sec. 232(b)(4), substituted
``requirements'' for ``requirement''.
Subsec. (m)(2)(C). Pub. L. 102-484, Sec. 801(h)(8)(C), substituted
``section 2323 of title 10'' for ``section 1207 of the National Defense
Authorization Act for Fiscal Year 1987 (10 U.S.C. 2301 note)''.
1991--Subsec. (k)(5). Pub. L. 102-190 amended par. (5) generally.
Prior to amendment, par. (5) read as follows: ``assist small business
concerns to obtain payments, late payment interest penalties, or
information due to such concerns, in conformity with chapter 39 of title
31;''.
1990--Subsec. (a). Pub. L. 101-574 inserted after second sentence
``If a proposed procurement includes in its statement of work goods or
services currently being performed by a small business, and if the
proposed procurement is in a quantity or estimated dollar value the
magnitude of which renders small business prime contract participation
unlikely, or if a proposed procurement for construction seeks to package
or consolidate discrete construction projects, the Procurement Activity
shall provide a copy of the proposed procurement to the Procurement
Activity's Small Business Procurement Center Representative at least 30
days prior to the solicitation's issuance along with a statement
explaining (1) why the proposed acquisition cannot be divided into
reasonably small lots (not less than economic production runs) to permit
offers on quantities less than the total requirement, (2) why delivery
schedules cannot be established on a realistic basis that will encourage
small business participation to the extent consistent with the actual
requirements of the Government, (3) why the proposed acquisition cannot
be offered so as to make small business participation likely, or (4) why
construction cannot be procured as separate discrete projects. The
thirty-day notification process shall occur concurrently with other
processing steps required prior to issuance of the solicitation. Within
15 days after receipt of the proposed procurement and accompanying
statement, if the Procurement Center Representative believes that the
procurement as proposed will render small business prime contract
participation unlikely, the Representative shall recommend to the
Procurement Activity alternative procurement methods which would
increase small business prime contracting opportunities.''
Subsec. (j). Pub. L. 101-510 substituted ``not in excess of the
small purchase threshold'' for ``of less than $25,000''.
1989--Subsec. (h)(2)(A). Pub. L. 101-37, Sec. 19, inserted
``individuals'' after ``economically disadvantaged''.
Subsec. (m)(1)(A). Pub. L. 101-37, Sec. 21, substituted
``procedures'' for ``procedure''.
1988--Subsec. (c). Pub. L. 100-590, Sec. 133(a), amended subsec. (c)
generally, substituting provisions relating to programs for blind and
handicapped individuals for provisions relating to eligibility,
participating organizations, monitoring and evaluation, and report to
Congressional committees.
Subsec. (g). Pub. L. 100-656, Sec. 502, added par. (1) and
designated existing provisions as par. (2) and former pars. (1) and (2)
as subpars. (A) and (B).
Subsec. (h). Pub. L. 100-656, Sec. 503, designated existing
provisions as par. (1), struck out at end ``The Administration shall
submit to the Select Committee on Small Business of the Senate and the
Committee on Small Business of the House of Representatives information
obtained from such reports, together with appropriate comments.'', and
added pars. (2) and (3).
Subsec. (k)(3). Pub. L. 100-656, Sec. 603(1), amended par. (3)
generally. Prior to amendment, par. (3) read as follows: ``be
responsible only to, and report directly to, the head of such agency or
to his deputy, except that in the case of the Department of Defense the
Director of the Office of Small and Disadvantaged Business Utilization
shall be responsible to, and report directly to, the Under Secretary of
Defense for Acquisition,''.
Subsec. (k)(5) to (8). Pub. L. 100-496 added par. (5) and
redesignated former pars. (5) to (7) as (6) to (8), respectively.
Subsec. (k)(9). Pub. L. 100-656, Sec. 603(2)-(4), added par. (9).
Subsec. (l)(2)(D). Pub. L. 100-590, Sec. 110(1), struck out
``unrestricted'' before ``technical data'' in two places.
Subsec. (l)(2)(E). Pub. L. 100-590, Sec. 110(2), amended subpar. (E)
generally. Prior to amendment, subpar. (E) read as follows: ``have
access to the unclassified procurement records and other data of the
procurement center;''.
Subsec. (l)(3). Pub. L. 100-590, Sec. 110(3), amended par. (3)
generally. Prior to amendment, par. (3) read as follows: ``A breakout
procurement center representative is authorized to appeal a failure to
act favorably on any recommendation made pursuant to paragraph (2). Such
appeal shall be in writing, specifically reciting both the circumstances
of the appeal and the basis of the recommendation. The appeal shall be
decided by a person within the employ of the appropriate activity who is
at least one supervisory level above the person who initially failed to
act favorably on the recommendation. Such appeal shall be decided within
30 calendar days of its receipt.''
Subsec. (l)(6). Pub. L. 100-590, Sec. 110(4), amended par. (6)
generally. Prior to amendment, par. (6) read as follows: ``For purposes
of this subsection, the term `major procurement center' means a
procurement center of the Department of Defense that awarded contracts
for items other than commercial items totaling at least $150,000,000 in
the preceding fiscal year, and such other procurement centers as
designated by the Administrator.''
Subsec. (l)(7). Pub. L. 100-590, Sec. 110(5), added par. (7).
Subsec. (m). Pub. L. 100-656, Sec. 601, amended subsec. (m)
generally, substituting provisions related to implementation of section
1207 of Pub. L. 99-661 for former provisions related to labor surplus
area procurement and manpower programs.
1987--Subsec. (a). Pub. L. 100-26, Sec. 10(a)(1), made technical
amendment to directory language of section 921(a)(1) of Pub. L. 99-500,
Pub. L. 99-591, and Pub. L. 99-661. See 1986 Amendment note below.
Subsec. (g). Pub. L. 100-180, Sec. 809(a)(2), struck out ``having a
value of $25,000 or more'' after ``procurement contracts of such
agency''.
Pub. L. 100-180, Sec. 809(a)(1), provided for temporarily inserting
``having a value of $25,000 or more'' after ``procurement contracts of
such agency''. See Effective Date of 1987 Amendments note below.
Subsec. (o)(1). Pub. L. 100-180, Sec. 809(b)(1), substituted
``subsection (a)'' for ``this subsection'' in introductory provisions.
Subsec. (o)(1)(A). Pub. L. 100-26, Sec. 10(b)(1)(A), substituted
``at least 50 percent of the cost of contract performance incurred for
personnel shall be expended for employees of the concern'' for ``the
concern will perform at least 50 percent of the cost of the contract
with its own employees''.
Subsec. (o)(3). Pub. L. 100-26, Sec. 10(b)(1)(B), substituted
``requirements of such paragraph'' for ``requirements of such
subparagraph'' and inserted at end ``The percentage applicable to any
such requirement shall be determined in accordance with paragraph (2).''
Subsec. (p). Pub. L. 100-180, Sec. 809(c), struck out subsec. (p)
which read as follows:
``(1) Except as provided in paragraphs (2) and (3), the head of any
Federal agency shall, within five days of the agency's decision to set
aside a procurement for small business concerns under this section,
provide the names and addresses of the small business concerns expected
to respond to the procurement to any person who requests such
information.
``(2) The Secretary of Defense may decline to provide information
under paragraph (1) in order to protect national security interests.
``(3) The head of a Federal agency is not required to release any
information under paragraph (1) that is not required to be released
under section 552 of title 5.''
1986--Subsec. (a). Pub. L. 99-500 and Pub. L. 99-591, Sec. 101(c)
[Sec. 921(a), (b)], Pub. L. 99-661, Sec. 921(a), (b), as amended by Pub.
L. 100-26, Sec. 10(a)(1), amended subsec. (a) identically, inserting
``in each industry category'' in cl. (3), and inserting provision
identifying an industry category, providing for determination of such
category by the Administrator, and permitting segmentation of a market
for goods and services under certain circumstances and 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. (g). Pub. L. 99-500 and Pub. L. 99-591, Sec. 101(c)
[Sec. 921(d)], Pub. L. 99-661, Sec. 921(d), amended subsec. (g)
identically, striking out ``having values of $10,000 or more'' after
``such agency'' and inserting provision requiring the head of each
Federal agency to make consistent efforts to annually expand
participation by small business concerns from each industry category in
procurement contracts of the agency.
Subsec. (j). Pub. L. 99-500 and Pub. L. 99-591, Sec. 101(c)
[Sec. 922(c)], Pub. L. 99-661, Sec. 922(c), amended subsec. (j)
identically, substituting ``$25,000'' for ``$10,000''.
Subsec. (k)(3). Pub. L. 99-500 and Pub. L. 99-591, Sec. 101(c)
[Sec. 903(d)], Pub. L. 99-661, Sec. 903(d), which directed identical
amendments to par. (3) by inserting ``, except that in the case of the
Department of Defense the Director of the Office of Small and
Disadvantaged Business Utilization shall be responsible to, and report
directly to, the Under Secretary of Defense for Acquisition'' was
executed by inserting that phrase immediately before the comma at the
end as the probable intent of Congress.
Subsec. (n). Pub. L. 99-272 added subsec. (n).
Subsecs. (o), (p). Pub. L. 99-500 and Pub. L. 99-591, Sec. 101(c)
[Sec. 921(c)(2), (e)], Pub. L. 99-661, Sec. 921(c)(2), (e), amended
section identically, adding subsecs. (o) and (p).
1984--Subsecs. (l), (m). Pub. L. 98-577 added subsec. (l) and
redesignated former subsec. (l) as (m).
1980--Subsec. (c). Pub. L. 96-302, Sec. 116, substituted provisions
covering participation of not-for-profit organizations in certain
authorized programs during fiscal years 1981, through 1983, the
monitoring and evaluation of such participation as causing severe
economic injury to for-profit small businesses and transmission of
report to congressional committees not later than Jan. 1, 1982,
respecting impact of contracts on the for-profit small businesses for
provisions respecting eligibility during fiscal year 1978, of public and
private organizations and individuals to participate in the award of
contracts and requiring transmission of a report by March 1, 1979.
Subsec. (d). Pub. L. 96-302, Sec. 117(a), substituted ``small
business concerns'' for ``concerns''.
Subsec. (e). Pub. L. 96-302, Sec. 117(b), in revising text, struck
out from introductory clause reference to labor surplus areas; reenacted
par. (1) reversing order of reference to small business concerns and
location in labor surplus areas; reenacted par. (2); added par. (3);
redesignated former par. (3) as (4); and struck out former par. (4) as
to concerns located in labor surplus areas on basis of total set-aside,
as covered in par. (1).
Subsec. (f). Pub. L. 96-302, Sec. 117(b), substituted provision
respecting other priorities in placement of contracts for requirement
that subsecs. (d) and (e) of this section cease to be effective
subsequent to Sept. 30, 1980, unless renewed prior to such date.
1978--Subsec. (f). Pub. L. 95-507, Sec. 232, substituted ``September
30, 1980'' for ``September 30, 1979''.
Subsecs. (g) to (k). Pub. L. 95-507, Sec. 221, added subsecs. (g) to
(k).
Subsec. (l). Pub. L. 95-507, Sec. 233, added subsec. (l).
1977--Pub. L. 95-89 designated existing provisions as subsec. (a)
and added subsecs. (b) to (f).
Effective Date of 1997 Amendment
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.
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 sections 4004
and 7106(a) of 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 Amendments
Amendment by sections 502 and 503 of Pub. L. 100-656 effective Oct.
1, 1989, and amendment by sections 601 and 603 of Pub. L. 100-656
effective Nov. 15, 1988, see section 803(a)(7), (b)(4)(C), of Pub. L.
100-656, as amended, set out as a note under section 631 of this title.
Amendment by Pub. L. 100-496 applicable to payments under contracts
awarded, contracts renewed, and contract options exercised during or
after the first fiscal quarter which begins more than 90 days after Oct.
17, 1988, see section 14(a) of Pub. L. 100-496, set out as a note under
section 3902 of Title 31, Money and Finance.
Effective Date of 1987 Amendments
Section 809(a)(1) of Pub. L. 100-180 provided that the amendment
made by that section is in effect until Sept. 30, 1988.
Section 809(a)(2) of Pub. L. 100-180, as amended by Pub. L. 100-656,
title VII, Sec. 731, Nov. 15, 1988, 102 Stat. 3897, provided that the
amendment made by that section is effective Oct. 1, 1989.
Amendment by section 10(a)(1), (b)(1) 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 Amendments
Section 18003(b) of Pub. L. 99-272 provided that: ``The amendment
made by subsection (a) [amending this section] shall take effect on the
ninetieth day after the date of the enactment of this Act [Apr. 7,
1986].
Amendment by section 101(c) [title X, Sec. 921(a), (b)(1), (c)(2)-
(e)] of Pub. L. 99-500 and Pub. L. 99-591, and section 921(a), (b)(1),
(c)(2)-(e) 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 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.
Manufacturing Contracts Through Manufacturing Application and Education
Centers
Section 303 of Pub. L. 103-403 provided that:
``(a) In General.--The Small Business Administration shall promote
the award of Federal manufacturing contracts to small business concerns
that participate in manufacturing application and education centers by
working with the Department of Commerce and other agencies to identify
components and subsystems that are both critical and currently foreign-
sourced.
``(b) Qualifications.--In order to qualify as a manufacturing
application and education center under this section, an entity shall
have the capacity to assist small business concerns in a shared-use
production environment and to offer the following services:
``(1) Technology demonstration.
``(2) Technology education.
``(3) Technology application support.
``(4) Technology advancement support.
``(c) Inapplicability of Certain Requirements.--The requirements of
section 15(o)(1)(B) of the Small Business Act [15 U.S.C. 644(o)(1)(B)]
shall not apply with respect to any manufacturing contract carried out
by a small business concern in conjunction with a manufacturing
application and education center under this section.
``(d) Regulations.--Not later than 180 days after the date of
enactment of this Act [Oct. 22, 1994], the Administrator of the Small
Business Administration shall promulgate final regulations to carry out
this section.
``(e) Termination of Authority.--The authority of the Small Business
Administration under this section shall terminate on September 30, 1997.
``(f) Authorization of Appropriations.--There are authorized to be
appropriated to the Small Business Administration, such sums as may be
necessary to carry out this section.''
Pilot Program for Very Small Business Concerns
Section 304 of Pub. L. 103-403, as amended by Pub. L. 105-135, title
V, Sec. 508, Dec. 2, 1997, 111 Stat. 2627; Pub. L. 106-554, Sec. 1(a)(9)
[title V, Sec. 503(c)], Dec. 21, 2000, 114 Stat. 2763, 2763A-695,
provided that:
``(a) Establishment.--The Administrator shall establish and carry
out a pilot program in accordance with the requirements of this section
to provide improved access to Federal contract opportunities for very
small business concerns.
``(b) Procurement Contracts.--
``(1) In general.--In carrying out subsection (a), the
Administrator shall identify procurement contracts of Federal
agencies for award under the program.
``(2) Contract awards.--Under the program established pursuant
to this section, the award of a procurement contract of a Federal
agency identified by the Administration pursuant to paragraph (1)
shall be made by the agency to an eligible program participant
selected, and determined to be responsible, by the agency.
``(3) Competition.--All contract opportunities offered for award
under the program shall be awarded on the basis of competition among
eligible very small business concerns.
``(c) Eligibility.--Only a very small business concern shall be
eligible to compete for a contract to be awarded under the program. A
contracting officer may rely in good faith on a written certification
that a small business concern is a very small business concern.
``(d) Delegation of Authority.--The authority of the Administrator
under subsections (b)(1) and (c) shall be delegated to not less than 5
and not more than 10 districts of the Administration to promote the
award of contracts that can be performed by very small business
concerns.
``(e) Financial Assistance.--In order to assist very small business
concerns receiving contract awards under the program, the Administrator
shall establish a preauthorization program for such concerns for the
purpose of receiving financial assistance under section 7(a) of the
Small Business Act [15 U.S.C. 636(a)].
``(f) Attainment of Contract Goals.--All contract awards made under
the program shall be counted toward the attainment of the goals
specified in section 15(g) of the Small Business Act [15 U.S.C. 644(g)].
``(g) Regulations.--The Administrator shall--
``(1) issue proposed regulations to carry out this section not
later than 180 days after the date of enactment of this Act [Oct.
22, 1994]; and
``(2) issue final regulations to carry out this section not
later than 270 days after the date of enactment of this Act.
``(h) Report to Congress.--Not later than April 30, 1997, the
Administrator shall transmit to the Congress a report on the results of
the program, together with such recommendations as the Administrator
deems appropriate.
``(i) Program Term.--Implementation of the program shall begin not
later than August 30, 1995. The program authorized by this section shall
expire on September 30, 2003.
``(j) Definitions.--For purposes of this section, the following
definitions shall apply:
``(1) Administration.--The term `Administration' means the Small
Business Administration.
``(2) Administrator.--The term `Administrator' means the
Administrator of the Small Business Administration.
``(3) Program.--The term `program' means a program established
pursuant to subsection (a).
``(4) Very small business concern.--The term `very small
business concern' means a small business concern that--
``(A) has not more than 15 employees; and
``(B) has average annual receipts that total not more than
$1,000,000.''
Expedited Resolution of Contract Administration Matters
Section 2353 of Pub. L. 103-355 provided that:
``(a) Regulations Required.--(1) The Federal Acquisition Regulation
shall include provisions that require a contracting officer--
``(A) to make every reasonable effort to respond in writing
within 30 days to any written request made to a contracting officer
with respect to a matter relating to the administration of a
contract that is received from a small business concern; and
``(B) in the event that the contracting officer is unable to
reply within the 30-day period, to transmit to the contractor within
such period a written notification of a specific date by which the
contracting officer expects to respond.
``(2) The provisions shall not apply to a request for a contracting
officer's decision under the Contract Disputes Act of 1978 (41 U.S.C.
601 et seq.).
``(b) Rule of Construction.--Nothing in this section shall be
considered as creating any rights under the Contract Disputes Act of
1978 (41 U.S.C. 601 et seq.).
``(c) Definition.--In this section, the term `small business
concern' means a business concern that meets the requirements of section
3(a) of the Small Business Act (15 U.S.C. 632(a)) and the regulations
promulgated pursuant to that section.''
Contracting Program for Certain Small Businesses
Section 7102 of Pub. L. 103-355, as amended by Pub. L. 106-554,
Sec. 1(a)(9) [title V, Sec. 503(d)], Dec. 21, 2000, 114 Stat. 2763,
2763A-695, provided that:
``(a) Procurement Procedures Authorized.--(1) To facilitate the
attainment of a goal for the participation of small business concerns
owned and controlled by socially and economically disadvantaged
individuals that is established for a Federal agency pursuant to section
15(g)(1) of the Small Business Act (15 U.S.C. 644(g)(1)), the head of
the agency may enter into contracts using--
``(A) less than full and open competition by restricting the
competition for such awards to small business concerns owned and
controlled by socially and economically disadvantaged individuals
described in subsection (d)(3)(C) of section 8 of the Small Business
Act (15 U.S.C. 637); and
``(B) a price evaluation preference not in excess of 10 percent
when evaluating an offer received from such a small business concern
as the result of an unrestricted solicitation.
``(2) Paragraph (1) does not apply to the Department of Defense, the
Coast Guard, and the National Aeronautics and Space Administration.
``(b) Implementation Through the Federal Acquisition Regulation.--
``(1) In general.--The Federal Acquisition Regulation shall be
revised to provide for uniform implementation of the authority
provided in subsection (a).
``(2) Matters to be addressed.--The revisions of the Federal
Acquisition Regulation made pursuant to paragraph (1) shall
include--
``(A) conditions for the use of advance payments;
``(B) provisions for contract payment terms that provide
for--
``(i) accelerated payment for work performed during the
period for contract performance; and
``(ii) full payment for work performed;
``(C) guidance on how contracting officers may use, in
solicitations for various classes of products or services, a
price evaluation preference pursuant to subsection (a)(1)(B), to
provide a reasonable advantage to small business concerns owned
and controlled by socially and economically disadvantaged
individuals without effectively eliminating any participation of
other small business concerns; and
``(D)(i) procedures for a person to request the head of a
Federal agency to determine whether the use of competitions
restricted to small business concerns owned and controlled by
socially and economically disadvantaged individuals at a
contracting activity of such agency has caused a particular
industry category to bear a disproportionate share of the
contracts awarded to attain the goal established for that
contracting activity; and
``(ii) guidance for limiting the use of such restricted
competitions in the case of any contracting activity and class
of contracts determined in accordance with such procedures to
have caused a particular industry category to bear a
disproportionate share of the contracts awarded to attain the
goal established for that contracting activity.
``(c) Termination.--This section shall cease to be effective at the
end of September 30, 2003.''
[For transfer of authorities, functions, personnel, and assets of
the Coast Guard, including the authorities and functions of the
Secretary of Transportation relating thereto, to the Department of
Homeland Security, and for treatment of related references, see sections
468(b), 551(d), 552(d), and 557 of Title 6, Domestic Security, and the
Department of Homeland Security Reorganization Plan of November 25,
2002, as modified, set out as a note under section 542 of Title 6.]
Small Business Procurement Advisory Council
Section 7104 of Pub. L. 103-355 provided that:
``(a) Establishment.--There is hereby established an interagency
council to be known as the `Small Business Procurement Advisory Council'
(hereinafter in this section referred to as the `Council').
``(b) Duties.--The duties of the Council are--
``(1) to develop positions on proposed procurement regulations
affecting the small business community; and
``(2) to submit comments reflecting such positions to
appropriate regulatory authorities.
``(c) Membership.--The Council shall be composed of the following
members:
``(1) The Administrator of the Small Business Administration (or
the designee of the Administrator).
``(2) The Director of the Minority Business Development Agency.
``(3) The head of each Office of Small and Disadvantaged
Business Utilization (established under section 15(k) of the Small
Business Act (15 U.S.C. 644(k))[)] in each Federal agency having
procurement powers.
``(d) Chairman.--The Council shall be chaired by the Administrator
of the Small Business Administration.
``(e) Meetings.--The Council shall meet at the call of the chairman
as necessary to consider proposed procurement regulations affecting the
small business community.
``(f) Consideration of Council Comments.--The Federal Acquisition
Regulatory Council and other appropriate regulatory authorities shall
consider comments submitted in a timely manner pursuant to subsection
(b)(2).''
Procurement Procedures Under Small Business Competitiveness
Demonstration Program Act of 1988
Section 202(h) of Pub. L. 102-366 provided that: ``Restricted
competitions pursuant to section 713(b) of the Small Business
Competitiveness Demonstration Program Act of 1988 [Pub. L. 100-656] (15
U.S.C. 644 note, 102 Stat. 3892) shall not be imposed with respect to
the designated industry group of architectural and engineering services
if the rate of small business participation exceeds 35 percent, until
the improvements to the collection of data regarding prime contract
awards (as required by subsection (g) [amending section 717 of Pub. L.
100-656, set out below]) and the system for collecting data regarding
other than prime contract awards (as required by subsection (d)
[amending section 714 of Pub. L. 100-656, set out below]) have been
implemented, as determined by the Administrator for Federal Procurement
Policy.''
Modifications of Test Plan and Policy Direction Under Small Business
Competitiveness Demonstration Program Act of 1988
Section 202(i) of Pub. L. 102-366 provided that: ``The Administrator
for Federal Procurement Policy shall issue appropriate modifications to
the test plan and policy direction issued pursuant to section 715 of the
Small Business Competitiveness Demonstration Program Act of 1988 [Pub.
L. 100-656, set out below], to conform to the amendments made by this
section and section 201(a) [amending sections 711 to 714, 716, and 717
of Pub. L. 100-656, set out below].''
Contract Bundling Study
Section 321 of Pub. L. 102-366 provided that:
``(a) In General.--The Administrator of the Small Business
Administration, acting through the Associate Administrator for
Procurement Assistance, shall conduct a study regarding the impact of
the practice known as `contract bundling' on the participation of small
business concerns in the Federal procurement process.
``(b) Purpose.--In addition to such other matters as the Associate
Administrator for Procurement Assistance deems appropriate to assure the
conduct of a comprehensive study and the development of practical
recommendations, the study required by subsection (a) shall--
``(1) identify the benefits and adverse effects of contract
bundling to the procuring agencies;
``(2) identify the benefits and adverse effects of contract
bundling on small business concerns;
``(3) examine the adequacy of the policy direction to agency
procurement officials regarding the bundling of contract
requirements;
``(4) examine the extent to which agencies have been combining
their requirements for the procurement of goods and services
(including construction) into solicitations requiring an offeror to
be able to perform increasingly larger contracts covering multiple
and diverse elements of performance;
``(5) consider the appropriateness of the explanatory statements
submitted by the procuring agencies pursuant to section 15(a) of the
Small Business Act [15 U.S.C. 644(a)] regarding bundling of contract
requirements; and
``(6) determine whether procurement center representatives,
small business specialists, or other agency procurement officials
can, under existing guidance and authority, have the necessary
policy direction and effective authority to make an independent
assessment regarding a proposed bundling of contract requirements.
``(c) Participation.--
``(1) In general.--In conducting the study described in
subsection (b), the Associate Administrator for Procurement
Assistance shall provide for participation by representatives of--
``(A) the Office of the Chief Counsel for Advocacy;
``(B) the Office of Federal Procurement Policy; and
``(C) the 10 Federal departments or agencies having the
greatest dollar value of procurement awards during fiscal year
1991.
``(2) Additional consultation.--In conducting the study, the
Associate Administrator for Procurement Assistance shall consult
with representatives of organizations representing small business
government contractors and such other public and private entities as
may be appropriate.
``(d) Schedule.--Not later than 90 days after the date of enactment
of this Act [Sept. 4, 1992], the Associate Administrator for Procurement
Assistance shall publish in the Federal Register a plan for the study
required by this section. The study shall be completed not later than
March 31, 1993.
``(e) Report.--Not later than May 15, 1993, the Administrator of the
Small Business Administration shall submit a report to the Committees on
Small Business of the Senate and the House of Representatives. The
report shall contain the results of the study required by subsection
(a), together with recommendations for legislative and regulatory
changes to maintain small business participation in the Federal
procurement process, as the Administrator deems appropriate.
``(f) Definition.--For purposes of this section, the term
`contracting bundling' or `bundling of contract requirements' refers to
the practice of consolidating into a single large contract solicitation
multiple procurement requirements that were previously solicited and
awarded as separate smaller contracts, generally resulting in a contract
opportunity unsuitable for award to a small business concern due to the
diversity and size of the elements of performance specified and the
aggregate dollar value of the anticipated award.''
Small Business Competitiveness Demonstration Program
Sections 701 to 722 of title VII of Pub. L. 100-656, as amended by
Pub. L. 101-37, Secs. 23-29, June 15, 1989, 103 Stat. 75, 76; Pub. L.
101-574, title II, Sec. 243, Nov. 15, 1990, 104 Stat. 2827; Pub. L. 102-
54, Sec. 13(e), June 13, 1991, 105 Stat. 275; Pub. L. 102-366, title II,
Secs. 201-202(g), 203, Sept. 4, 1992, 106 Stat. 993-996; Pub. L. 102-
484, div. A, title VIII, Sec. 801(h)(9), Oct. 23, 1992, 106 Stat. 2446;
Pub. L. 102-564, title III, Sec. 307(a), Oct. 28, 1992, 106 Stat. 4263;
Pub. L. 103-160, div. A, title VIII, Sec. 850(2), Nov. 30, 1993, 107
Stat. 1726; Pub. L. 103-446, title XII, Sec. 1202(a)(1), Nov. 2, 1994,
108 Stat. 4689; Pub. L. 104-208, div. D, title I, Sec. 108(a)-(c)(1),
Sept. 30, 1996, 110 Stat. 3009-732, 3009-733; Pub. L. 105-18, title II,
Sec. 2002, June 12, 1997, 111 Stat. 174; Pub. L. 105-135, title IV,
Secs. 401-405, Dec. 2, 1997, 111 Stat. 2616, provided that:
``part a--short title and findings
``SEC. 701. SHORT TITLE.
``This title [amending section 632 of this title and section 541 of
former Title 40, Public Buildings, Property, and Works [now 40 U.S.C.
1102], enacting provisions set out as notes under sections 632 and 644
of this title, and amending provisions set out as a note under section
644 of this title] may be cited as the `Small Business Competitiveness
Demonstration Program Act of 1988'.
``SEC. 702. FINDINGS.
``The Congress finds that--
``(1) many small business concerns have repeatedly demonstrated
their ability to fulfill a broad range of Government requirements
for products, services (including research, development, technical,
and professional services), and construction, through the Federal
procurement process;
``(2) various Congressional mandated reforms to the Federal
procurement process, including the Competition in Contracting Act of
1984 [Pub. L. 98-369, div. B, title VII, see Tables for
classification], the Defense Procurement Reform Act of 1984 [Pub. L.
98-525, title XII, see Tables for classification], and the Small
Business and Federal Procurement Competition Enhancement Act of 1984
[Pub. L. 98-577, see Tables for classification], were designed to
eliminate obstacles to competition and thereby to broaden small
business participation; and
``(3) traditional agency efforts to implement the mandate for
small business participation in a fair proportion of Federal
procurements as required by section 15(a) of the Small Business Act
[15 U.S.C. 644(a)] have resulted in--
``(A) a concentration of procurement contract awards in a
limited number of industry categories, often dominated by small
business concerns, through the use of set-asides, for the
purpose of assuring the attainment of the agency's overall small
business contracting goals; and
``(B) inadequate efforts to expand small business
participation in agency procurements of products or services
which have historically demonstrated low rates of small business
participation despite substantial potential for expanded small
business participation.
``part b--demonstration program
``SEC. 711. SMALL BUSINESS COMPETITIVENESS DEMONSTRATION PROGRAM.
``(a) Establishment.--There is established a Small Business
Competitiveness Demonstration Program (hereafter referred to in this
title as `the Program') pursuant to section 15 of the Office of Federal
Procurement Policy Act (41 U.S.C. 413) to provide for the testing of
innovative procurement methods and procedures. The Administrator of
Federal Procurement Policy shall designate the Administrator of the
Small Business Administration as the executive agent responsible for
conducting the test.
``(b) Purposes.--The purposes of the Program are to demonstrate
whether--
``(1) the competitive capabilities of small business firms in
certain industry categories will enable them to successfully compete
on an unrestricted basis for Federal contracting opportunities,
``(2) the use of targeted goaling and management techniques by
procuring agencies, in conjunction with the Small Business
Administration, can expand small business participation in Federal
contracting opportunities which have been historically low, despite
adequate numbers of qualified small business contractors in the
economy, and
``(3) expanded use of full and open competition, as specified by
the Competition in Contracting Act of 1984 (10 U.S.C. 2302(3) and 41
U.S.C. 403(7)), adversely affects small business participation in
certain industry categories, taking into consideration the numerical
dominance of small firms, the size and scope of most contracting
opportunities, and the competitive capabilities of small firms.
``(c) Program Term.--The Program shall commence on January 1, 1989.
``(d) Application.--The Program shall apply to contract
solicitations for the procurement of services in industry groups
designated in section 717.
``SEC. 712. ENHANCED SMALL BUSINESS PARTICIPATION GOALS.
``(a) Enhanced Goals for Designated Industry Groups.--Each
participating agency shall establish an annual small business
participation goal that is 40 percent of the dollar value of the
contract awards for each of the designated industry groups. In attaining
its small business participation goal for contract awards for each of
the designated industry groups, each participating agency shall make a
good faith effort to assure that emerging small business concerns are
awarded not less than 15 percent of the dollar value of the contract
awards for each of the designated industry groups.
``(b) Special Assistance for Emerging Small Business Concerns.--
``(1) Small business reserve.--During the term of the Program,
all contract opportunities in the industry groups designated in
section 717 shall be reserved for exclusive competition among
emerging small business concerns in accordance with the competition
standard specified in section 15(j) of the Small Business Act (15
U.S.C. 644(j)), if the estimated award value of the contract is
equal to or less than the greater of:
``(A) $25,000, or
``(B) such larger dollar amount established pursuant to
paragraph (2).
``(2) Adjustments to the small business reserve.--If the goal of
awarding emerging small business concerns 15 percent of the total
dollar value of contracts in a designated industry category is
determined not to have been attained, upon the review of award data
conducted in accordance with subsection (d)(1) of this section, the
Administrator for Federal Procurement Policy, to ensure attainment
of such goal, shall prescribe, on a semiannual basis, appropriate
adjustments to the dollar threshold for contract opportunities in
such designated industry category below which competition shall be
conducted exclusively among emerging small business concerns.
``(3) Small business small purchase reserve.--The requirements
of this subsection dealing with the reserve amount shall apply
notwithstanding the amount specified in section 15(j) of the Small
Business Act (15 U.S.C. 644(j)).
``(4) Exclusion of modifications to existing contracts above the
small purchase threshold.--Any modification or follow-on award to a
contract having an initial award value in excess of $25,000 shall
not be subject to the limitations on competition required by this
subsection.
``(c) Targeting Industry Categories With Limited Small Business
Participation.--(1) Concurrent with the term of the Small Business
Competitiveness Demonstration Program, the head of each participating
agency shall implement a program to expand small business participation
in the agency's acquisition of selected products and services in 10
industry categories which have historically demonstrated low rates of
small business participation. The products and services to be targeted
for the small business participation expansion program and the special
goals for such program, shall be developed in conjunction with the
Administrator of the Small Business Administration, and shall be subject
to the requirements of section 15(g) of the Small Business Act (15
U.S.C. 644(g)).
``(2) The products or services selected for the small business
participation expansion program shall be drawn from industry categories
that:
``(A) are the recipients of substantial purchases by the Federal
Government;
``(B) have less than 10 percent of such annual purchases made
from small business concerns; and
``(C) have significant amounts of small business productive
capacity that have not been utilized by the Government.
``(3) In developing its small business participation expansion
program, each participating agency shall:
``(A) prepare, and furnish to the Administration, a detailed,
time-phased strategy (with incremental numerical goals); and
``(B) encourage and promote joint ventures, teaming agreements
and other similar arrangements, which permit small business concerns
to effectively compete for contract solicitations for which an
individual small business concern would lack the requisite capacity
or capability needed to establish responsibility for the award of a
contract.
``(d) Monitoring Agency Performance.--
``(1) Participating agencies shall monitor the attainment of
their small business participation goals on an annual basis. An
annual review by each participating agency shall be completed not
later than January 31 of each year, based on the data for the
preceding fiscal year, from October 1 through September 30.
``(2) All awards to small business concerns (including small
business concerns owned and controlled by socially and economically
disadvantaged individuals) shall be counted toward attainment of the
goals specified in subsection (a) of this section.
``(3) Modifications to a participating agency's solicitation
practices, pursuant to section 713(b), shall be made at the
beginning of the fiscal year quarter following each review, if the
rate of small business participation is less than 40 percent of the
contract awards.
``SEC. 713. PROCUREMENT PROCEDURES.
``(a) Full and Open Competition.--Except as provided in subsections
(b) and (c), each contract opportunity with an anticipated value of more
than $25,000 for the procurement of services from firms in the
designated industry groups (unless set aside pursuant to section 8(a) of
the Small Business Act (15 U.S.C. 637(a)) or section 2323 of title 10,
United States Code) shall be solicited on an unrestricted basis during
the term of the Program, if the participating agency has attained its
small business participation goal pursuant to section 712(a). Any
regulatory requirements which are inconsistent with this provision shall
be waived.
``(b) Restricted Competition.--If a participating agency has failed
to attain its small business participation goal under section 712(a),
subsequent contracting opportunities, which are in excess of the reserve
thresholds specified pursuant to section 712(b) shall be solicited
through a competition restricted to eligible small business concerns
pursuant to section 15(a) of the Small Business Act (15 U.S.C. 644(a))
only at those buying activities of the participating agency that failed
to attain the small business participation goal required by section
712(a). Upon determining that its contract awards to small business
concerns again meet the goals required by section 712(a), a
participating agency shall promptly resume the use of unrestricted
solicitations pursuant to subsection (a). Such modifications in the
participating agency's solicitation practices shall be made as soon as
practicable, but not later than the beginning of the quarter following
completion of the review made pursuant to section 712(d) indicating that
changes to solicitation practices are required.
``(c) Relationship With the Competition in Contracting Act of
1984.--Subsections (a) and (b) shall not be construed to supersede the
application of the Competition in Contracting Act of 1984 (98 Stat.
1175) [Pub. L. 98-369, div. B, title VII, see Tables for
classification].
``(d) Relationship to Other Applicable Law.--Solicitations for the
award of contracts for architectural and engineering services (including
surveying and mapping) issued by a Military Department or a Defense
agency shall comply with the requirements of subsections (a) and (b) of
section 2855 of title 10, United States Code.
``SEC. 714. REPORTING.
``(a) Awards of $25,000 or Less.--During the term of the Small
Business Competitiveness Demonstration Program, each award of $25,000 or
less made by a participating agency for the procurement of a service in
any of the designated industry categories shall be reported to the
Federal Procurement Data Center in the same manner as if the purchase
were in excess of $25,000.
``(b) Subcontracting Activity.--
``(1) Simplified data collection system.--The Administrator for
Federal Procurement Policy shall develop and implement a simplified
system to collect data on the participation of small business
concerns (including small business concerns owned and controlled by
socially and economically disadvantaged individuals) as other than
prime contractors.
``(2) Participating industries.--The system established under
paragraph (1) shall be used to collect data regarding contracts for
architectural and engineering services (including surveying and
mapping). The Administrator for Federal Procurement Policy may
expand such system to collect data regarding such other designated
industry groups as deemed appropriate.
``(3) Participating agencies.--As part of the system established
under paragraph (1) data shall be collected from--
``(A) the Environmental Protection Agency;
``(B) the National Aeronautics and Space Administration;
``(C) the United States Army Corps of Engineers (Civil
Works); and
``(D) the Department of Energy.
The Administrator for Federal Procurement Policy may require the
participation of additional departments or agencies from the list of
participating agencies designated in section 718.
``(4) Determining small business participation rates.--The value
of other than prime contract awards to small business concerns
furnishing architectural and engineering services (including
surveying and mapping) or other services in support of such
contracts (or other services provided by small business concerns in
other designated industry groups as may be designated for
participation by the Administrator for Federal Procurement) shall be
counted towards determining whether the small business participation
goal required by section 712(a) has been attained.
``(5) Duration.--The system described in subsection (a) shall be
established not later than October 1, 1996 (or as soon as
practicable thereafter on the first day of a subsequent quarter of
fiscal year 1997), and shall terminate on September 30, 1997.
``(c) Size and Status of Small Business Concerns.--During the term
of the Program, each participating agency shall collect data pertaining
to the size of the small business concern and the status of the small
business concern (as a small business concern owned and controlled by
socially and economically disadvantaged individuals) receiving any award
for the procurement of--
``(1) services in each of the designated industry groups; and
``(2) products or services from industry categories selected for
participation in the small business participation expansion program,
pursuant to section 712(c).
``SEC. 715. TEST PLAN AND POLICY DIRECTION.
``(a) Test Plan.--The Administrator for Federal Procurement Policy
may further specify the manner and conduct of the test activities
required by this title through a test plan issued pursuant to section 15
of the Office of Federal Procurement Policy Act (41 U.S.C. 413).
``(b) Policy Direction.--The Administrator for Federal Procurement
Policy, in cooperation with the Administrator of the Small Business
Administration, shall issue a policy directive (which shall be binding
on all participating agencies) to ensure consistent Government-wide
implementation of this title in the Federal Acquisition Regulation,
title 48 of the Code of Federal Regulations, issued pursuant to the
Office of Federal Procurement Policy Act [41 U.S.C. 401 et seq.].
``SEC. 716. REPORTS TO CONGRESS.
``(a) In General.--Within 180 days after data for each of fiscal
years 1991 through 2000 are available from the Federal Procurement Data
Center, the Administrator of the Small Business Administration shall
report the results of the Small Business Competitiveness Demonstration
Program to the Committees on Small Business of the Senate and House of
Representatives, to the Committee on Governmental Affairs of the Senate,
and to the Committee on Government Reform and Oversight of the House of
Representatives [now Committee on Government Reform of House of
Representatives]. The views of the Administrator of the Small Business
Administration shall be included in the report.
``(b) Analysis of Program.--The report shall include a section
prepared by the Administrator of the Small Business Administration
specifying the cumulative results of the intensive goaling and
management program conducted to expand small business participation in
agency acquisitions of selected products and services.
``(c) Recommendations.--To the extent the results of the Program
demonstrate sufficiently high small business participation based on
unrestricted contract competition in the designated industry groups, the
report to be submitted during calendar year 1997 shall include
recommendations (if appropriate) for changes in legislation or
modifications of procurement regulations aimed at increasing reliance on
unrestricted competition if high rates of small business participation
in the Federal procurement market can be maintained.
``SEC. 717. DESIGNATED INDUSTRY GROUPS.
``(a) In General.--For the purposes of participation in this
Program, the designated industry groups are--
``(1) construction (excluding dredging);
``(2) refuse systems and related services;
``(3) architectural and engineering services (including
surveying and mapping); and
``(4) non-nuclear ship repair.
``(b) Construction.--Construction shall include contract awards
assigned one of the standard industrial classification codes or North
American Industrial Classification Codes that comprise--
``(1) Major Group 15 (Building Construction--General Contractors
and Operative Builders),
``(2) Major Group 16 (Heavy Construction Other Than Building
Construction--Contractors) (excluding dredging); [, and]
``(3) Major Group 17 (Construction--Special Trade Contractors).
``(c) Refuse.--Refuse systems and related services shall include
contract awards assigned to standard industrial classification code or
North American Industrial Classification Code 4212 or 4953.
``(d) Architectural and Engineering.--Architectural and engineering
services (including surveying and mapping) shall include contract awards
assigned to standard industrial classification code or North American
Industrial Classification Code 7389 (if identified as pertaining to
mapping services), 8711, 8712, or 8713, and such contract was awarded
under the qualification-based selection procedures required by title IX
of the Federal Property and Administrative Services Act of 1949 (40
U.S.C. 541 et seq.) [now 40 U.S.C. 1101 to 1104].
``(e) Alternative Data.--In the event that standard industrial
classification codes or North American Industrial Classification Codes
are not assigned to individual contract awards reported to the Federal
Procurement Data Center by January 1, 1989, the Program may be conducted
on the basis of the product and service codes used to report data
pertaining to such contract awards, related to the maximum practicable
extent to the standard industrial classification code or North American
Industrial Classification Code for the service being provided by the
contractor.
``SEC. 718. DEFINITIONS.
``(a) Designated Industry Groups.--`Designated industry groups'
means the groups specified in section 717 for participation in the Small
Business Competitiveness Demonstration Program.
``(b) Emerging Small Business Concern.--`Emerging small business
concern' means a small business concern whose size is no greater than 50
percent of the numerical size standard applicable to the standard
industrial classification code assigned to a contracting opportunity.
``(c) Participating Agency.--`Participating agency' shall have the
same meaning as the term `executive agency' in section (4)(1) [4(1)] of
the Office of Federal Procurement Policy Act (41 U.S.C. 403(1)). The
Administrator for Federal Procurement Policy is authorized to specify as
part of the Program test plan the list of executive agencies designated
to participate in the Program, which shall include:
``(1) the Department of Agriculture,
``(2) the Department of Defense (with the Department of the
Army, the Department of the Navy, the Department of the Air Force,
and the defense agencies reporting separately),
``(3) the Department of Energy,
``(4) the Department of Health and Human Services,
``(5) the Department of the Interior,
``(6) the Department of Transportation,
``(7) the Environmental Protection Agency,
``(8) the General Services Administration (with the Public
Building Service reporting separately),
``(9) the National Aeronautics and Space Administration, and
``(10) the Department of Veterans Affairs.
The Administrator for Federal Procurement Policy is authorized to
require any participating agencies to report separately in any manner
deemed appropriate to enhance the attainment of the test activities
authorized by this title.
``(d) Small Business Participation.--`Small business participation'
shall include the aggregate dollar value of every procurement contract
award made to a small business concern, without regard to whether such
award was based on restricted or unrestricted competition, or was made
on a sole source basis.
``(e) Standard Industrial Classification Code.--`Standard industrial
classification code' means a four digit code assigned to an industry
category in the Standard Industrial Classification Manual published by
the Office of Management and Budget in effect on the date of enactment
of this Act [Nov. 15, 1988].
``part c--alternative program for clothing and textiles
``SEC. 721. ALTERNATIVE PROGRAM FOR CLOTHING AND TEXTILES.
``(a) Establishment.--Subject to the requirements of subsection (b),
of the total dollar amount of contracts for each standard industrial
classification code for clothing and textiles awarded by the Defense
Logistics Agency for each of the fiscal years 1989, 1990, and 1991:
``(1) To the maximum extent practicable, 50 percent shall not be
restricted by the size status of the competing business concerns.
``(2) To the maximum extent practicable, 50 percent shall be
made available for award pursuant to--
``(A) section 8(a) of the Small Business Act (15 U.S.C. 637(a));
``(B) section 2323 of title 10, United States Code; and
``(C) section 15(a) of the Small Business Act (15 U.S.C.
644(a)), if the criteria for such awards are met pursuant to part
19.5 (Set-Asides for Small Business) of title 48, Code of Federal
Regulations, as in effect on September 1, 1988.
``(b) Computation.--In order to calculate the percent limitation
established pursuant to subsection (a), the Department may establish,
after consultation with the Small Business Administration, major
groupings of standard industrial classification codes that are closely
related and apply such limitations to such groupings.
``(c) Program Term.--The Program shall commence on January 1, 1989,
and terminate on September 30, 1996.
``(d) Report.--The Secretary of Defense shall issue reports to the
Congress on the operations of the program established pursuant to this
section. Such reports shall detail the effects of the program on the
mobilization base and on small business concerns and small business
concerns owned and controlled by socially and economically disadvantaged
individuals. Interim reports shall be submitted every 6 months during
the term of the program to the Committees on Armed Services and Small
Business of the House of Representatives and the Senate.
``SEC. 722. EXPANDING SMALL BUSINESS PARTICIPATION IN DREDGING.
``(a) Establishment.--The Secretary of the Army (hereafter in this
section referred to as the `Secretary') shall conduct a program to
expand the participation of small business concerns and emerging small
business concerns in contracting opportunities for dredging solicited on
or after January 1, 1989, commencing on October 1, 1989.
``(b) Enhanced Goals.--Of the aggregate value of all suitable
contracts for dredging, the Department of the Army (hereafter in this
section referred to as the `Department') shall make every reasonable
effort to award to small business concerns:
``(1) 20 percent during fiscal year 1989, including 5 percent of
the total dollar value of contracts which is reserved for emerging
small business concerns;
``(2) 25 percent during fiscal year 1990, including 7.5 percent
of the total dollar value of contracts which is reserved for
emerging small business concerns;
``(3) 30 percent during fiscal year 1991, including 10 percent
of the total dollar value of contracts which is reserved for
emerging small business concerns;
``(4) 30 percent during fiscal year 1992, including 10 percent
of the total dollar value of contracts which is reserved for
emerging small business concerns; and
``(5) not less than 20 percent during fiscal year 1993, and each
subsequent year during the term of the program, including not less
than 5 percent of the dollar value of suitable contracts that shall
be reserved for emerging small business concerns.
The total value of contracts to be performed exclusively through the use
of so-called dustpan dredges or seagoing hopper dredges is deemed to be
generally unsuitable for performance by small business concerns and is
to be excluded in calculating whether the rates of small business
participation specified in subsection (b) have been attained.
``(c) Contract Award Procedures.--(1) Except as provided in
paragraphs (3) and (4), the Department shall solicit and award contracts
for dredging through full and open competition in conformity with
section 2304 of title 10, United States Code, section 15 of the Small
Business Act (15 U.S.C. 644), and the implementing procurement
regulations promulgated in conformity with section 6 of the Office of
Federal Procurement Policy Act (41 U.S.C. 405). Nothing herein shall
impair the award of contracts pursuant to section 8(a) of the Small
Business Act (15 U.S.C. 637(a)) or section 2323 of title 10, United
States Code.
``(2) Prior to making a determination to restrict a solicitation for
the performance of a dredging contract for exclusive competition among 2
or more eligible small business concerns in accordance with section 19.5
of the Governmentwide Federal Procurement Regulation (48 C.F.R. 19.5, or
any successor thereto), the contracting officer shall make a
determination that each anticipated offeror is a responsible source (as
defined under section 4(7) of the Office of Federal Procurement Policy
Act (41 U.S.C. 403(7)) and has (or can demonstrate the capability to
obtain) the specialized dredging equipment deemed necessary to perform
the work to be required in accordance with the schedule to be specified
in the solicitation.
``(3) Contracting opportunities for dredging shall be reserved for
competition among emerging small business concerns if their estimated
award value is below an amount to be specified by the Administrator for
Federal Procurement Policy (hereafter in this section referred to as the
`Administrator'), upon the recommendation of the Secretary. Such reserve
amount shall be established by the Administrator at the start of the
program at a level which can reasonably be expected to result in the
Department attaining the applicable participation goal for emerging
small business concerns. Such reserve threshold shall be reviewed by the
Secretary and adjusted by the Administrator to the extent necessary on a
semiannual basis beginning after the end of the second quarter of fiscal
year 1989 on the basis of the aggregate of contract awards for the four
fiscal year quarters preceding the date of the review.
``(4) The Secretary shall restrict for competition among all
eligible small business concerns such additional contracting
opportunities for dredging in such numbers and at such estimated award
values as can reasonably be expected to result in the Department
exceeding the applicable participation goal for small business concerns
generally.
``(d) Acquisition Strategies To Foster Small Business
Participation.--(1) In attaining the goals for participation by small
business concerns and emerging small business concerns, the Secretary is
encouraged to:
``(A) specify contract requirements and contractual terms and
conditions that are conducive to competition by small business
concerns and emerging small business concerns, consistent with the
mission or program requirements of the Department;
``(B) foster joint ventures, teaming agreements, and other
similar arrangements, which permit small business concerns to
effectively compete for contract opportunities for which an
individual firm would lack the requisite capacity or capability
needed to establish responsibility for the award of a contract; and
``(C) foster subcontracting through plans negotiated and
enforced pursuant to section 8(d) of the Small Business Act (15
U.S.C. 637(d)) or solicitation requirements specifying minimum
percentages of subcontracting for the purpose of determining the
responsiveness of an offer.
``(2) During the term of the program, data shall be collected
pertaining to the actual size of the firm receiving an award as a small
business concern or an emerging small business concern.
``(e) Size Standard.--For the purposes of the program established by
subsection (a), the size standard pertaining to standard industrial
classification code 1629 (Dredging and Surface Cleanup Activities) in
effect on October 1, 1988 shall remain in effect until September 30,
1990.
``(f) Reports.--
``(1) The Secretary shall furnish a report to the Committees on
Small Business of the Senate and House of Representatives, the
Administrator of the Small Business Administration, and the
Administrator for Federal Procurement Policy within 120 days after
September 30, 1995, regarding compliance with this section.
``(2) Interim reports shall be submitted annually within 90 days
after the close of each fiscal year during the term of the program
established under subsection (a). The Secretary may include
recommendations regarding adjustments to the Department's
participation goals for small business concerns and emerging small
business concerns and to the applicable size standard, if the
Secretary determines that such goals cannot reasonably be attained
from the pool of firms meeting the current size standard.''
[Section 1202(a)(1) of Pub. L. 103-446 provided that the amendment
made by that section to section 13(e) of Pub. L. 102-54 [amending
section 718 of Pub. L. 100-656, set out above] is effective as of June
13, 1991, and as if included in the enactment of Pub. L. 102-54.]
Segmentation of Industry Category of Shipbuilding and Ship Repair
Section 741 of Pub. L. 100-656 provided that: ``The Small Business
Administration, pursuant to the authority of section 15(a) of the Small
Business Act (15 U.S.C. 644(a)), shall segment the industry category of
shipbuilding and ship repair, as follows:
``(1) nuclear shipbuilding and repair;
``(2) non-nuclear shipbuilding; and
``(3) non-nuclear ship repair, which shall be further segmented
by, at least, East Coast and West Coast facilities.''
Programs for Blind and Handicapped Individuals; Report on Impact on
Small Business Concerns
Section 133(b) of Pub. L. 100-590 provided that: ``Not later than
September 30, 1992, the General Accounting Office shall prepare a report
describing the impact that contracts awarded under section 15(c) of the
Small Business Act [15 U.S.C. 644(c)] have had on for-profit small
business concerns for fiscal years 1989 through 1991. The report shall
be transmitted to the Committees on Small Business of the Senate and the
House of Representatives.''
Task Force on Purchases From Blind and Severely Handicapped Individuals;
Establishment; Meetings; Recommendations
Section 133(c) of Pub. L. 100-590 provided that: ``There is
established within the Small Business Administration a task force on
purchases from the blind and severely handicapped which shall consist of
one representative of the small business community appointed by the
Administrator of the Small Business Administration and one individual
knowledgeable in the affiars [sic] of or experienced in the work of
sheltered workshops appointed by the Executive Director of the Committee
for Purchase from the Blind and Other Severely Handicapped established
under the first section of the Act entitled `An Act to create a
Committee on Purchases of Blind-made Products, and for other purposes',
approved June 25, 1938 (41 U.S.C. 46). The task force shall meet at
least once every six months for the purpose of reviewing the award of
contracts under section 15(c) of the Small Business Act [15 U.S.C.
644(c)] and recommending to the Small Business Administration such
administrative or statutory changes as it deems appropriate.''
Standards for Measuring Cost Savings From Breakout Procurement Center
Representatives
Section 403(b) of Pub. L. 98-577 provided that:
``(1) The Administrator of the Small Business Administration and the
Comptroller General of the United States shall jointly establish
standards for measuring cost savings achieved through the efforts of
breakout procurement center representatives and for measuring the extent
to which competition has been increased as a result of such efforts.
Thereafter, the Administrator shall annually prepare and submit to the
Congress a report setting forth--
``(A) the cost savings achieved during the year covered by such
report through the efforts of breakout procurement center
representatives;
``(B) an evaluation of the extent to which competition has been
increased as a result of such efforts; and
``(C) such other information as the Administrator may deem
appropriate.
``(2) Within 180 days following the submission of the second annual
report to Congress by the Administrator, the Comptroller General shall
report to the Congress an evaluation of the Administration's adherence
to the standards jointly established and the accuracy of the information
the Administration has submitted to the Congress.''
Ex. Ord. No. 13157. Increasing Opportunities for Women-Owned Small
Businesses
Ex. Ord. No. 13157, May 23, 2000, 65 F.R. 34035, provided:
By the authority vested in me as President by the Constitution and
the laws of the United States of America, including the Small Business
Act, 15 U.S.C. 631, et seq., section 7106 of the Federal Acquisition
Streamlining Act of 1994 (Public Law 103-355) [amending 15 U.S.C. 632,
637, 644, 645], and the Office of Federal Procurement Policy [Act], 41
U.S.C. 403, et seq., and in order to strengthen the executive branch's
commitment to increased opportunities for women-owned small businesses,
it is hereby ordered as follows:
Section 1. Executive Branch Policy. In order to reaffirm and
strengthen the statutory policy contained in the Small Business Act, 15
U.S.C. 644(g)(1), it shall be the policy of the executive branch to take
the steps necessary to meet or exceed the 5 percent Government-wide goal
for participation in procurement by women-owned small businesses
(WOSBs). Further, the executive branch shall implement this policy by
establishing a participation goal for WOSBs of not less than 5 percent
of the total value of all prime contract awards for each fiscal year and
of not less than 5 percent of the total value of all subcontract awards
for each fiscal year.
Sec. 2. Responsibilities of Federal Departments and Agencies. Each
department and agency (hereafter referred to collectively as ``agency'')
that has procurement authority shall develop a long-term comprehensive
strategy to expand opportunities for WOSBs. Where feasible and
consistent with the effective and efficient performance of its mission,
each agency shall establish a goal of achieving a participation rate for
WOSBs of not less than 5 percent of the total value of all prime
contract awards for each fiscal year and of not less than 5 percent of
the total value of all subcontract awards for each fiscal year. The
agency's plans shall include, where appropriate, methods and programs as
set forth in section 4 of this order.
Sec. 3. Responsibilities of the Small Business Administration. The
Small Business Administration (SBA) shall establish an Assistant
Administrator for Women's Procurement within the SBA's Office of
Government Contracting. This officer shall be responsible for:
(a) working with each agency to develop and implement policies
to achieve the participation goals for WOSBs for the executive
branch and individual agencies;
(b) advising agencies on how to implement strategies that will
increase the participation of WOSBs in Federal procurement;
(c) evaluating, on a semiannual basis, using the Federal
Procurement Data System (FPDS), the achievement of prime and
subcontract goals and actual prime and subcontract awards to WOSBs
for each agency;
(d) preparing a report, which shall be submitted by the
Administrator of the SBA to the President, through the Interagency
Committee on Women's Business Enterprise and the Office of Federal
Procurement Policy (OFPP), on findings based on the FPDS, regarding
prime contracts and subcontracts awarded to WOSBs;
(e) making recommendations and working with Federal agencies to
expand participation rates for WOSBs, with a particular emphasis on
agencies in which the participation rate for these businesses is
less than 5 percent;
(f) providing a program of training and development seminars and
conferences to instruct women on how to participate in the SBA's
8(a) [15 U.S.C. 637(a)] program, the Small Disadvantaged Business
(SDB) program, the HUBZone program, and other small business
contracting programs for which they may be eligible;
(g) developing and implementing a single uniform Federal
Government-wide website, which provides links to other websites
within the Federal system concerning acquisition, small businesses,
and women-owned businesses, and which provides current procurement
information for WOSBs and other small businesses;
(h) developing an interactive electronic commerce database that
allows small businesses to register their businesses and
capabilities as potential contractors for Federal agencies, and
enables contracting officers to identify and locate potential
contractors; and
(i) working with existing women-owned business organizations,
State and local governments, and others in order to promote the
sharing of information and the development of more uniform State and
local standards for WOSBs that reduce the burden on these firms in
competing for procurement opportunities.
Sec. 4. Other Responsibilities of Federal Agencies. To the extent
permitted by law, each Federal agency shall work with the SBA to ensure
maximum participation of WOSBs in the procurement process by taking the
following steps:
(a) designating a senior acquisition official who will work with
the SBA to identify and promote contracting opportunities for WOSBs;
(b) requiring contracting officers, to the maximum extent
practicable, to include WOSBs in competitive acquisitions;
(c) prescribing procedures to ensure that acquisition planners,
to the maximum extent practicable, structure acquisitions to
facilitate competition by and among small businesses, HUBZone small
businesses, SDBs, and WOSBs, and providing guidance on structuring
acquisitions, including, but not limited to, those expected to
result in multiple award contracts, in order to facilitate
competition by and among these groups;
(d) implementing mentor-protege programs, which include women-
owned small business firms; and
(e) offering industry-wide as well as industry-specific
outreach, training, and technical assistance programs for WOSBs
including, where appropriate, the use of Government acquisitions
forecasts, in order to assist WOSBs in developing their products,
skills, business planning practices, and marketing techniques.
Sec. 5. Subcontracting Plans. The head of each Federal agency, or
designated representative, shall work closely with the SBA, OFPP, and
others to develop procedures to increase compliance by prime contractors
with subcontracting plans proposed under section 8(d) of the Small
Business Act (15 U.S.C. 637(d)) or section 834 of Public Law 101-189, as
amended (15 U.S.C. 637 note), including subcontracting plans involving
WOSBs.
Sec. 6. Action Plans. If a Federal agency fails to meet its annual
goals in expanding contract opportunities for WOSBs, it shall work with
the SBA to develop an action plan to increase the likelihood that
participation goals will be met or exceeded in future years.
Sec. 7. Compliance. Independent agencies are requested to comply
with the provisions of this order.
Sec. 8. Consultation and Advice. In developing the long-term
comprehensive strategies required by section 2 of this order, Federal
agencies shall consult with, and seek information and advice from, State
and local governments, WOSBs, other private-sector partners, and other
experts.
Sec. 9. Judicial Review. This order is for internal management
purposes for the Federal Government. It does not create any right or
benefit, substantive or procedural, enforceable at law or equity by a
party against the United States, its agencies, its officers, its
employees, or any other person.
William J. Clinton.
Ex. Ord. No. 13170. Increasing Opportunities and Access for
Disadvantaged Businesses
Ex. Ord. No. 13170, Oct. 6, 2000, 65 F.R. 60827, provided:
By the authority vested in me as President by the Constitution and
the laws of the United States of America, including the Small Business
Act (15 U.S.C. 631 et seq.), section 7102 of the Federal Acquisition
Streamlining Act of 1994 (Public Law 103-355, 15 U.S.C. 644 note), the
Office of Federal Procurement Policy Act (41 U.S.C. 403 et seq.),
Executive Order 11625 [15 U.S.C. 631 note], and to provide for increased
access for disadvantaged businesses to Federal contracting
opportunities, it is hereby ordered as follows:
Section 1. Policy. It is the policy of the executive branch to
ensure nondiscrimination in Federal procurement opportunities for
businesses in the Small Disadvantaged Business Program (SDBs),
businesses in the section 8(a) Business Development program of the Small
Business Administration (8(a)s), and Minority Business Enterprises
(MBEs) as defined in section 6 of Executive Order 11625, of October 13,
1971, and to take affirmative action to ensure inclusion of these
businesses in Federal contracting. These businesses are of vital
importance to job growth and the economic strength of the United States
but have faced historic exclusion and underutilization in Federal
procurement. All agencies within the executive branch with procurement
authority are required to take all necessary steps, as permitted by law,
to increase contracting between the Federal Government and SDBs, 8(a)s,
and MBEs.
Sec. 2. Responsibilities of Executive Departments and Agencies with
Procurement Authority. The head of each executive department and agency
shall carry out the terms of this order and shall designate, where
appropriate, his or her Deputy Secretary or equivalent to implement the
terms of this order.
(a) Each department and agency with procurement authority shall:
(i) aggressively seek to ensure that 8(a)s, SDBs, and MBEs are
aware of future prime contracting opportunities through wide
dissemination of contract announcements, including sources likely to
reach 8(a)s, SDBs, other small businesses, and MBEs. Each department
and agency shall use all available forms of communication to
implement this provision, including the Internet, speciality press,
and trade press;
(ii) work with the Small Business Administration (SBA) to ensure
that information regarding sole source contracts awarded through the
section 8(a) program receives the widest dissemination possible to
8(a)s;
(iii) ensure that the price evaluation preference programs
authorized by the Federal Acquisition Streamlining Act of 1994 [Pub.
L. 103-355, see Tables for classification] are used to the maximum
extent permitted by law in areas of economic activity in which SDBs
have historically been underused;
(iv) aggressively use the firms in the section 8(a) program,
particularly in the developmental stage of the program, so that
these firms have an opportunity to overcome artificial barriers to
Federal contracting and gain access to the Federal procurement
arena;
(v) ensure that department and agency heads take all reasonable
steps so that prime contractors meet or exceed Federal
subcontracting goals, and enforce subcontracting commitments as
required by the Small Business Act (15 U.S.C. 637(d)) and other
related laws. In particular, they shall ensure that prime
contractors actively solicit bids for subcontracting opportunities
from 8(a)s and SDBs, and fulfill their SDB and section 8(d)
subcontracting obligations. Enforcement of SDB subcontracting plan
commitments shall include assessments of liquidated damages, where
appropriate, pursuant to applicable contract clauses;
(vi) encourage the establishment of business-to-business
mentoring and teaming relationships, including the implementation of
Mentor-Protege programs, to foster the development of the technical
and managerial capabilities of 8(a)s and SDBs and to facilitate
long-term business relationships;
(vii) offer information, training, and technical assistance
programs for 8(a)s and SDBs including, where appropriate, Government
acquisition forecasts in order to assist 8(a)s and SDBs in
developing their products, skills, business planning practices, and
marketing techniques;
(viii) train program and procurement officials regarding the
policy of including 8(a)s and SDBs in Federal procurement. This
includes prescribing procedures to ensure that acquisition planners,
to the maximum extent practicable, structure acquisitions to
facilitate competition by SDBs and 8(a)s, including their
participation in the competition of multiple award requirements;
(ix) provide the information required by the Department of
Commerce when it requests data to develop the benchmarks used in the
price evaluation preference programs authorized by the Federal
Acquisition Streamlining Act of 1994;
(x) ensure that Directors of Offices of Small and Disadvantaged
Business Utilization carry out their responsibilities to maximize
the participation of 8(a)s and SDBs in Federal procurement and, in
particular, ensure that the Directors report directly to the head of
each department or agency as required by law; and
(xi) as required by law, establish with the Small Business
Administration small business goals to ensure that the government-
wide goal for participation of small business concerns is not less
than 23 percent of Federal prime contracts. Where feasible and
consistent with the effective and efficient performance of its
mission, each agency shall establish a goal of achieving a
participation rate for SDBs of not less than 5 percent of the total
value of prime contract awards for each fiscal year and of not less
than 5 percent of the total value of subcontract awards for each
year. Each agency shall also establish a goal for awards made to
8(a) firms pursuant to section 8(a) of the Small Business Act [15
U.S.C. 637(a)]. These goals shall be considered the minimum goals
and every effort shall be taken to exceed these goals wherever
feasible.
(b) Each department and agency with procurement authority shall:
(i) develop a long-term comprehensive plan to implement the
requirements of section 2(a) of this order and submit this plan to
the Director of the Office of Management and Budget (OMB) within 90
days of the date of this order. The Director of OMB shall review
each plan and report to the President on the sufficiency of each
plan to carry out the terms of this order; and
(ii) annually, by April 30 each year, assess its efforts and the
results of those efforts to increase utilization of 8(a)s, SDBs, and
MBEs as both prime contractors and subcontractors and report on
those efforts to the President through the Director of OMB, who
shall review the evaluations made of the agency assessments by the
Small Business Administration.
Sec. 3. Responsibilities of the Small Business Administration. The
Administrator of the SBA shall:
(a) evaluate on a semi-annual basis, using the Federal Procurement
Data System (FPDS), the achievement of government-wide prime and
subcontract goals and the actual prime and subcontract awards to 8(a)s
and SDBs for each department and agency. The OMB shall review SBA's
evaluation;
(b) ensure that Procurement Center Representatives receive adequate
training regarding the section 8(a) and SDB programs and that they
consistently and aggressively seek opportunities for maximizing the use
of 8(a)s and SDBs in department and agency procurements; and
(c) ensure that each department and agency's small and disadvantaged
business procurement goals as well as the amount of procurement of each
department and agency with 8(a)s, SDBs, and MBEs is publicly available
in an easily accessible and understandable format such as through
publication on the Internet.
Sec. 4. Federal Advertising. Each department or agency that
contracts with businesses to develop advertising for the department or
agency or to broadcast Federal advertising shall take an aggressive role
in ensuring substantial minority-owned entities' participation,
including 8(a), SDB, and MBE, in Federal advertising-related
procurements. Each department and agency shall ensure that all creation,
placement, and transmission of Federal advertising is fully reflective
of the Nation's diversity. To achieve this diversity, special attention
shall be given to ensure placement in publications and television and
radio stations that reach specific ethnic and racial audiences. Each
department and agency shall ensure that payment for Federal advertising
is commensurate with fair market rates in the relevant market. Each
department and agency shall structure advertising contracts as
commercial acquisitions consistent with part 12 of the Federal
Acquisition Regulation processes and paperwork to enhance participation
by 8(a)s, SDBs, and MBEs.
Sec. 5. Information Technology. Each department and agency shall
aggressively seek to ensure substantial 8(a), SDB, and MBE participation
in procurements for and related to information technology, including
procurements in the telecommunications industry. In so doing, the Chief
Information Officer in each department and agency shall coordinate with
procurement officials to implement this section.
Sec. 6. General Services Administration Schedules. The SBA and the
General Services Administration (GSA) shall act promptly to expand
inclusion of 8(a)s and SDBs on GSA Schedules, and provide greater
opportunities for 8(a) and SDB participation in orders under such
schedules. The GSA should ensure that procurement and program officials
at all levels that use GSA Schedules aggressively seek to utilize the
Schedule contracts of 8(a)s and SDBs. The GSA shall allow agencies
ordering from designated 8(a) firms under the Multiple Award Schedule to
count those orders toward their 8(a) procurement goals.
Sec. 7. Bundling Contracts. To the extent permitted by law,
departments and agencies must submit to the SBA for review any contracts
that are proposed to be bundled. The determination of the SBA with
regard to the appropriateness of bundling in each instance must be
carefully reviewed by the department or agency head, or his or her
designee, and must be given due consideration. If there is an
unresolvable conflict, then the SBA or the department or agency can seek
assistance from the OMB.
Sec. 8. Awards Program. The Secretary of Commerce and the
Administrator of the SBA shall jointly undertake a feasibility study to
determine the appropriateness of an awards program for executive
departments and agencies who best exemplify the letter and intent of
this order in increasing opportunities for 8(a)s, SDBs, and MBEs in
Federal procurement. Such study shall be presented to the President
within 90 days of the date of this order.
Sec. 9. Applicability. Independent agencies are requested to comply
with the provisions of this order.
Sec. 10. Administration, Enforcement, and Judicial Review.
(a) This order shall be carried out to the extent permitted by law
and consistent with the Administration's priorities and appropriations.
(b) This order is not intended and should not be construed to create
any right or benefit, substantive or procedural, enforceable at law by a
party against the United States, its agencies, its officers, or its
employees.
William J. Clinton.
Delegation of Authority To Establish Annual Goals for Participation of
Small Business Concerns in Procurement Contracts
Memorandum of the President of the United States, June 6, 1990, 55
F.R. 27453-27455, provided:
Memorandum for the Director of the Office of Management and Budget
By the authority vested in me as President by the Constitution and
laws of the United States, including section 15(g) of the Small Business
Act, as amended [subsec. (g) of this section], and section 301 of Title
3 of the United States Code, I hereby delegate to the Director of the
Office of Management and Budget the authority vested in the President to
establish the annual goals required by Section 502 of the Business
Opportunity Development Reform Act of 1988 (P.L. 100-656) [amending this
section].
You are authorized and directed to publish this memorandum in the
Federal Register.
George Bush.
Continued Commitment to Small, Small Disadvantaged, and Small Women-
Owned Businesses in Federal Procurement
Memorandum of President of the United States, Oct. 13, 1994, 59 F.R.
52397, provided:
Memorandum for the Heads of Executive Departments and Agencies [and]
the President's Management Council
It is the policy of the Federal Government that a fair proportion of
its contracts be placed with small, small disadvantaged, and small
women-owned businesses. Such businesses should also have the maximum
practicable opportunity to participate as subcontractors in contracts
awarded by the Federal Government consistent with efficient contract
performance. I am committed to the continuation of this policy.
Therefore, I ask that you encourage the use of various tools, including
set-asides, price preferences, and section 8(a) of the Small Business
Act (15 U.S.C. 637(a)), as necessary to achieve this policy objective.
The Federal Acquisition Streamlining Act of 1994 [Pub. L. 103-355,
see Short title of 1994 Amendment note set out under section 251 of
Title 41, Public Contracts] authorizes civilian agencies to utilize set-
aside procurements for small disadvantaged businesses. The Act also, for
the first time, establishes goals for contracting with small women-owned
businesses. These provisions, along with others in the Act, will provide
greater access to Federal Government business opportunities for small,
small disadvantaged, and small women-owned businesses. Department and
agency heads should ensure that efforts to streamline acquisition
procedures encourage the participation of these businesses in Federal
procurements.
This memorandum shall be published in the Federal Register.
William J. Clinton.
Section Referred to in Other Sections
This section is referred to in sections 637, 645, 648 of this title;
title 6 section 423; title 10 sections 2302, 2304, 2304e, 2323; title 20
section 1018a; title 41 sections 253, 259, 428, 431.
