[Congressional Bills 118th Congress]
[From the U.S. Government Publishing Office]
[S. 2720 Introduced in Senate (IS)]
<DOC>
118th CONGRESS
1st Session
S. 2720
To amend the Small Business Act regarding Federal contract
requirements.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
September 5, 2023
Ms. Ernst introduced the following bill; which was read twice and
referred to the Committee on Small Business and Entrepreneurship
_______________________________________________________________________
A BILL
To amend the Small Business Act regarding Federal contract
requirements.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Accountability and Clarity in
Contracts to Engage Small Suppliers and Small Businesses Act''.
SEC. 2. SMALL BUSINESS INDUSTRIAL BASE FEDERAL CONTRACTING MATTERS.
(a) Accessibility and Clarity in Small Business Contracts.--
(1) Definitions.--In this section--
(A) the term ``covered notice'' means a notice
pertaining to small business concerns, such as a
sources sought notice or solicitation restricted to
competition among small business concerns or covered
small business concerns, published by a Federal agency
on SAM.gov or any successor website marketing Federal
contract opportunities;
(B) the term ``covered small business concern''
means--
(i) a small business concern owned and
controlled by women, a small business concern
owned and controlled by veterans, a small
business concern owned and controlled by
service-disabled veterans, or a qualified
HUBZone small business concern, as those terms
are defined in section 3 of the Small Business
Act (15 U.S.C. 632); and
(ii) a socially and economically
disadvantaged small business concern, as
defined in section 8(a)(4)(A) of the Small
Business Act (15 U.S.C. 637(a)(4)(A)); and
(C) the terms ``Federal agency'' and ``small
business concern'' have the meanings given those terms
in section 3 of the Small Business Act (15 U.S.C. 632).
(2) Inclusion of key words in notices for small business
contract actions.--Each covered notice shall, to the maximum
extent practicable, include key words and contract requirements
in the title or description of the covered notice such that
small business concerns seeking contract opportunities using
the search function of SAM.gov or any successor website can
easily identify and understand those opportunities.
(3) Plain language.--
(A) In general.--Each covered notice shall be
written in a manner that is clear, concise, and
accessible to the reader such that a small business
concern can easily understand the intent of the Federal
agency.
(B) Exception.--If the covered notice cannot meet
the requirement under subparagraph (A) due to
requirements applicable to the covered notice from
regulation or law, the Federal agency shall include
with the covered notice a cover page adequately
summarizing the contents of the covered notice, written
in a clear, concise, and accessible manner, such that a
small business concern can easily understand the intent
of the Federal agency.
(4) Attachments.--A Federal agency may not meet the
requirement in paragraph (2) by only including key words and
contract requirements in a document that is attached to the
covered notice.
(5) Rulemaking.--Not later than 90 days after the date of
enactment of this Act, the Administrator of the Small Business
Administration shall promulgate regulations to carry out this
section.
(b) Prioritizing Engaging More Small Businesses in Federal
Procurement.--
(1) In general.--Section 15 of the Small Business Act (15
U.S.C. 644) is amended--
(A) in subsection (g)--
(i) by inserting after ``(g)'' the
following: ``Goals for Participation of Small
Business Concerns in Procurement Contracts.--
''; and
(ii) in paragraph (1)--
(I) in subparagraph (A)(i), by
striking the second sentence; and
(II) by adding at the end the
following:
``(C) Requirement.--In meeting each of the goals
under subparagraph (A), the Government shall ensure the
participation of a broad spectrum of small business
concerns from a wide variety of industries.'';
(B) in subsection (h)(1)--
(i) in subparagraph (C), by striking
``and'' at the end;
(ii) in subparagraph (D), by striking the
period at the end and inserting ``; and''; and
(iii) by adding at the end the following:
``(E) the information described in clauses (ii)
through (iv) of subsection (y)(2)(B).''; and
(C) in subsection (y)--
(i) in paragraph (2)--
(I) by redesignating subparagraphs
(A) and (B) as clauses (i) and (ii),
respectively, and adjusting the margins
accordingly;
(II) by inserting before clause
(i), as so redesignated, the following:
``(A) Goals.--'';
(III) in clause (i), as so
redesignated, by inserting ``Prime
contract goals.--'' before ``A
determination'';
(IV) in clause (ii), as so
redesignated, by inserting
``Subcontract goals.--'' before ``A
determination'';
(V) by striking subparagraphs (C)
and (D) and inserting the following:
``(B) Composition of the small business industrial
base.--
``(i) Total number of small business
concerns.--The number 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--
``(I) awarded prime contracts
during the fiscal year compared to the
prior fiscal year, including a
breakdown by North American Industry
Classification System code, if
available; and
``(II) awarded subcontracts during
the fiscal year compared to the prior
fiscal year, including a breakdown by
North American Industry Classification
System code, if available.
``(ii) Maturity of small business
concerns.--A breakdown of the number of new
small business entrants, recent small business
entrants, and established small business
concerns awarded prime contracts or
subcontracts during the fiscal year, including
a breakdown of such entities that are 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.
``(iii) Dollar distribution among small
business concerns.--The total dollar value of
prime contract awards for the top 20 small
business concerns that received the most
Federal procurement funding in the fiscal year,
compared to the combined total dollar value for
the remaining small business concerns, and a
comparison of that data with the prior fiscal
year.
``(iv) Small business participation by
industry.--The total dollar value of prime
contract awards made to small business concerns
in all industry sectors and sorted by highest
dollar amount per major industry sector to the
least, including--
``(I) the number of individual
small business contractors awarded
contracts in each industry sector; and
``(II) the top 10 industries in
which 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 participate, compared to the
10 industries in which those concerns
have the least participation.''; and
(VI) in subparagraph (E), by
striking ``(E)'' and inserting ``(C)
Other factors.--''; and
(ii) in paragraph (3), by striking
subparagraphs (A) and (B) and inserting the
following:
``(A) not more than 40 percent of the score on the
dollar value of prime contracts described in paragraph
(2)(A), as determined by the Administrator;
``(B) not less than 30 percent of the score on the
information provided in paragraph (2)(B), as determined
by the Administrator; and
``(C) the appropriate percent of the score on the
information provided in paragraph (2)(C), as determined
by the Administrator.''.
(2) Regulations.--Not later than 90 days after the date of
enactment of this Act, the Administrator of the Small Business
Administration shall issue regulations to define the terms
``new small business entrant'', ``recent small business
entrant'', and ``established small business concern'' for
purposes of subparagraph (B)(ii) of section 15(y)(2) of the
Small Business Act (15 U.S.C. 644(y)(2)), as added by paragraph
(1).
(c) Limitation on Federal Agency Credit for Meeting Contracting
Goals.--Section 15(g) of the Small Business Act (15 U.S.C. 644(g)), as
amended by subsection (b), is amended by adding at the end the
following:
``(4) Limitation on credit for meeting contracting goals.--
``(A) Definitions.--In this paragraph--
``(i) the term `covered category of small
business concern' means--
``(I) a small business concern
owned and controlled by service-
disabled veterans;
``(II) a qualified HUBZone small
business concern;
``(III) a small business concern
owned and controlled by socially and
economically disadvantaged individuals;
or
``(IV) a small business concern
owned and controlled by women; and
``(ii) the term `credit' means the value of
a prime contract.
``(B) General rule.--A Federal agency may allocate
credit for a single prime contract awarded to a small
business concern not more than 2 times for purposes of
demonstrating compliance with the goals of the Federal
agency established under paragraph (2)(A).
``(C) Allocation of credit.--
``(i) First allocation.--The first
allocation of credit described in subparagraph
(B) shall be applied towards the goal of the
Federal agency established under paragraph
(2)(A) for participation by small business
concerns.
``(ii) Second allocation.--A second
allocation of credit described in subparagraph
(B) shall be applied as follows:
``(I) If the prime contract was
awarded as a sole-source contract or
through competition restricted to a
covered category of small business
concern, the credit shall be applied
towards the goal of the Federal agency
established under paragraph (2)(A) for
participation by the applicable covered
category of small business concern.
``(II) If the prime contract was
not awarded as a sole-source contract
or through competition restricted to a
covered category of small business
concern, the credit may only be applied
towards a single goal of the Federal
agency established under paragraph
(2)(A), determined at the election of
the contracting officer, for
participation by a covered category of
small business concern that is
applicable to the recipient of the
prime contract, without regard to
whether the recipient of the prime
contract qualifies as more than 1
covered category of small business
concern.''.
(d) Testimony on Small Business Engagement Before Congress.--
Section 15(g) of the Small Business Act (15 U.S.C. 644(g)), as amended
by subsections (b) and (c), is amended--
(1) in paragraph (2)--
(A) by striking ``(2) (A) The head'' and inserting
the following:
``(2) Agency goals.--
``(A) Establishment.--The head'';
(B) by moving subparagraphs (B), (C), and (D) 2 ems
to the right;
(C) in subparagraph (B), by inserting
``Requirements for goals.--'' before ``Goals
established'';
(D) in subparagraph (C), by inserting ``Failure to
agree on goals.--'' before ``Whenever'';
(E) in subparagraph (D), by inserting ``Plan for
achieving goals.--'' before ``After establishing'';
(F) in subparagraph (E), by inserting
``Considerations for achieving goals.--'' before ``The
head'';
(G) in subparagraph (F)--
(i) by inserting ``Communication of
goals.--'' after (F);
(ii) by striking ``(i) Each'' and
inserting:
``(i) In general.--Each''; and
(iii) by striking ``(ii) A procurement''
and inserting:
``(ii) Procurement employee or program
manager defined.--A procurement''; and
(H) by adding at the end the following:
``(G) Remediation.--Any Federal agency failing to
receive a score equivalent to a letter grade of `A' or
above in a letter graded rating system, as established
under subsection (y), in a fiscal year shall--
``(i) submit to the Committee on Small
Business and Entrepreneurship of the Senate and
the Committee on Small Business of the House of
Representatives the report required under
subsection (h)(1); and
``(ii) testify before the Committee on
Small Business and Entrepreneurship of the
Senate and the Committee on Small Business of
the House of Representatives on the reasons for
failing to meet a letter grade of `A' or above,
and the details of the report submitted under
clause (i), in particular the justifications
and remediation plan described in subparagraphs
(C) and (D) of subsection (h)(1).''; and
(2) by striking ``(3) First'' and inserting the following:
``(3) Department of energy subcontracts.--First''.
(e) Evaluation of Offers for Contracts Including Subcontracting
Plans.--Section 8(d)(4) of the Small Business Act (15 U.S.C. 637(d)(4))
is amended--
(1) by moving subparagraph (G) 2 ems to the left; and
(2) in subparagraph (G)--
(A) in the matter preceding clause (i), by striking
``bundled contract where the head of the agency
determines that the contract offers a significant
opportunity for subcontracting'' and inserting
``contract that includes a subcontracting plan required
under this paragraph or paragraph (5)''; and
(B) in clause (i), by striking ``the rate provided
under the subcontracting plan for small business
participation'' and inserting ``a description of the
extent to which the offeror proposes to use small
business concerns as subcontractors at any tier''.
(f) Rule of Two Analysis Applies Before Using a Multiple Award
Contract.--Section 15(r) of the Small Business Act (15 U.S.C. 644(r))
is amended--
(1) by redesignating paragraphs (1) and (2) as
subparagraphs (A) and (B), respectively, and adjusting the
margins accordingly;
(2) in the matter before subparagraph (A), as so
redesignated, by striking ``Not later than'' and all that
follows through ``discretion--'' and inserting the following:
``(1) In general.--Except as provided in paragraph (2),
Federal agencies shall--'';
(3) in paragraph (1)(A), as so redesignated, by adding
``and'' at the end;
(4) in paragraph (1)(B), as so redesignated, by striking
``; and'' and inserting a period;
(5) by striking paragraph (3); and
(6) by adding at the end the following:
``(2) Exceptions.--The requirements in paragraph (1) shall
not apply--
``(A) in the case of contracts, including orders,
awarded under subpart 8.4 of the Federal Acquisition
Regulation (or any successor regulation); or
``(B) if the contracting officer is unable to
obtain offers from 2 or more small business concerns
that are--
``(i) competitive with market prices; and
``(ii) competitive with regard to the
quality and delivery of the goods or services
being purchased.
``(3) Small business reserve.--Notwithstanding paragraphs
(1) and (2), a Federal agency may reserve 1 or more contract
awards for small business concerns under full and open multiple
award procurements, including the subcategories of small
business concerns identified in subsection (g)(2).''.
(g) Aligning OSDBU and PCR Collaboration Regarding Bundled or
Consolidated Contracts.--Section 15 of the Small Business Act (15
U.S.C. 644) is amended--
(1) in subsection (k)--
(A) in paragraph (5)--
(i) by inserting ``or consolidation'' after
``bundling'';
(ii) by inserting ``procurement center
representative,'' after ``work with the'';
(iii) by inserting a comma after
``acquisition officials''; and
(iv) by inserting ``or consolidated'' after
``bundled'';
(B) in paragraph (8), in the matter preceding
subparagraph (A), by inserting ``, as required under
subsection (l)(4)'' after ``procurement center
representative,''; and
(C) in paragraph (17)--
(i) in subparagraph (B), by striking
``and'' at the end;
(ii) by redesignating subparagraph (C) as
subparagraph (D); and
(iii) by inserting after subparagraph (B)
the following:
``(C) inform the procurement center representative
at such agency of the notice if the notice pertains to
contract bundling or consolidation and work with the
procurement center representative and appropriate
agency personnel to increase the opportunity for
competition; and''; and
(2) in subsection (l)(2)--
(A) by moving subparagraph (A) 2 ems to the right;
(B) by redesignating subparagraphs (H), (I), (J),
and (K) as subparagraphs (I), (J), (K), and (L),
respectively;
(C) by inserting after subparagraph (G) the
following:
``(H) consult with the Director of the Office of
Small and Disadvantaged Business Utilization of that
agency and appropriate agency personnel with regard
to--
``(i) proposed solicitations involving
significant bundling or consolidation of
contract requirements as described in
subsection (k)(5); and
``(ii) notices by small business concerns
of undue restrictions on the ability of the
small business concern to compete for the award
due to significant bundling or consolidation of
contract requirements, as described in
subsection (k)(17);''; and
(D) in subparagraph (K), as so redesignated, by
adding ``and'' at the end.
<all>