Text: H.R.4496 — 111th Congress (2009-2010)All Bill Information (Except Text)

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Introduced in House (01/21/2010)


111th CONGRESS
2d Session
H. R. 4496

To ensure that small businesses have their fair share of Federal procurement opportunities, and for other purposes.


IN THE HOUSE OF REPRESENTATIVES
January 21, 2010

Mr. Graves (for himself, Mr. Bartlett, Mr. Luetkemeyer, Mr. Buchanan, Mr. Akin, and Mr. Schock) introduced the following bill; which was referred to the Committee on Small Business, and in addition to the Committees on Oversight and Government Reform and the Judiciary, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned


A BILL

To ensure that small businesses have their fair share of Federal procurement opportunities, and for other purposes.

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 “Helping Small Business Compete Act of 2010”.

TITLE ISmall business goals

SEC. 101. Small business goal.

Section 15(g)(1) of the Small Business Act (15 U.S.C. 644(g)(1)) is amended by striking “23 percent” and inserting “25 percent”.

SEC. 102. Agency Goal Negotiation.

(a) Negotiation.—Section 15(g)(1) of the Small Business Act (15 U.S.C. 644(g)(1)) is amended by striking “The President shall annually establish Government-wide goals for procurement contracts” and inserting “The President shall before the close of each fiscal year establish new Government-wide procurement goals for the following fiscal year for procurement contracts.”.

(b) Minimum level.—Section 15(g)(1) of the Small Business Act (15 U.S.C. 644(g)(1)) is amended by striking “Notwithstanding the Government-wide goal, each agency shall have an annual goal” and inserting “Each agency shall have an annual goal, not lower than the Government-wide goal,”.

SEC. 103. Procedures and Methods for Goal Achievement.

(a) Goal responsibility.—Section 15(g)(2) of the Small Business Act (15 U.S.C. 644(g)(2)) is amended by adding the following after the first sentence: “The goals established by the head of each agency shall be apportioned within the agency to a contracting office or offices (as that term is defined in section 2.101 of title 48, Code of Federal Regulations on January 1, 2009) that reports to a career appointee in the Senior Executive Service.”.

(b) Senior Executive Service.—

(1) PURPOSES.—Section 3131 of title 5, United States Code, is amended by adding at the end the following:

“(15) ensure that the Government achieves the small business procurement goals set forth in section 15 of the Small Business Act (15 U.S.C. 644).”.

(2) TRAINING.—Section 3396(a) of title 5, United States Code, is amended by adding at the end the following: “The training provided to senior executives shall include federal procurement policy, including the procurement provisions of the Small Business Act.”.

(3) LIMITATION ON SABBATICALS.—Section 3396(c)(2) of title 5, United States Code—

(A) by striking the “and” at the end semi-colon at the end of subparagraph (B)(iii);

(B) by striking the period at the end of subparagraph (C), and adding “; or”; and

(C) by adding at the end the following:

“(D) who oversees a contracting office that did not meet its small business procurement goals established annually in accordance with the procedures of section 15(g)(2) of the Small Business Act (15 U.S.C. 644(g)(2)).”.

(4) LIMITATION ON INCENTIVE AWARDS.—An employee in the Senior Executive Service shall not be eligible for any incentive award specified in subchapter I, chapter 45 of title 5, United States Code, if the contracting office which reports to that member of the Senior Executive Service fails to meet the procurement goals established annually in accordance with the procedures of section 15(g)(2) of the Small Business Act (15 U.S.C. 644(g)(2)). Any member of the Senior Executive Service, whether career or non-career, to whom that member of the Senior Executive Service reports also shall not be eligible for any incentive award specified in subchapter I, chapter 45 of title 5, United States Code.

SEC. 104. Reporting requirements.

Section 15(h) of the Small Business Act (15 U.S.C. 644(h)) is amended by adding the following:

“(4) By November 1 of each year, the head of each Federal agency shall submit to Congress a report specifying the percentage of contracts awarded by that agency for the immediate preceding fiscal year that were awarded to small business concerns. If the percentage is less than the goal established by the head of the agency pursuant to this section, the head of the agency shall, in the report, explain why the agency did not reach the goal and what will be done to ensure that the goal for the following fiscal year will be achieved.”.

TITLE IIContract Bundling

SEC. 201. Definitions of bundling of contract requirements.

Section 3(o) of the Small Business Act (15 U.S.C. 632(o)) is amended to read as follows:

“(o) Definitions of bundling of contract requirements and related terms.—For purposes of this Act:

“(1) BUNDLED CONTRACT.—

“(A) IN GENERAL.—The term ‘bundled contract’ means a contract or order that is entered into to meet procurement requirements that are consolidated in a bundling of contract requirements, without regard to its designation by the procuring agency or whether a study of the effects of the solicitation on civilian or military personnel has been made.

“(B) EXCEPTIONS.—The term does not include—

“(i) a contract or order with an aggregate dollar value below the dollar threshold specified in paragraph (4); or

“(ii) a contract or order that is entered into to meet procurement requirements, all of which are exempted requirements under paragraph (5).

“(2) BUNDLING OF CONTRACT REQUIREMENTS.—

“(A) IN GENERAL.—The term ‘bundling of contract requirements’ means the use of any bundling methodology to satisfy 2 or more procurement requirements for new or existing goods or services, including any construction services, that is likely to be unsuitable for award to a small business concern due to—

“(i) the diversity, size or specialized nature of the elements of the performance specified;

“(ii) the aggregate dollar value of the anticipated award;

“(iii) the geographical dispersion of the contract or order performance; or

“(iv) any combination of the factors described in clauses (i), (ii), or (iii).

“(B) EXCEPTIONS.—The term does not include—

“(i) the use of a bundling methodology for an anticipated award with an aggregate dollar value below the threshold specified in paragraph (4); or

“(ii) the use of a bundling methodology to meet procurement requirements, all of which are exempted under paragraph (5).

“(3) BUNDLING METHODOLOGY.—The term ‘bundling methodology’ means—

“(A) a solicitation to obtain offers for a single contract or order, or a multiple award contract or order;

“(B) a solicitation of offers for the issuance of a task or a delivery order under an existing single or multiple award contract or order; or

“(C) the creation of any new procurement requirements that permits a consolidation of contract or order requirements.

“(4) DOLLAR THRESHOLD.—The term ‘dollar threshold’ means—

“(A) $65,000,000 if solely for construction services; and

“(B) $1,500,000 in all other cases.

“(5) EXEMPTED REQUIREMENTS.—The term ‘exempted requirement’ means one or more of the following:

“(A) A procurement requirement solely for items that are not commercial items (as the term ‘commercial item’ is defined in section 4(12) of the Office of Federal Procurement Policy Act (41 U.S.C. 403(12)) but this subparagraph shall not apply to any procurement requirement for a contract for goods or services provided by a business classified in sector 23 of the North American Industrial Classification System.

“(B) A procurement requirement with respect to which a determination that it is unsuitable for award to a small business concern previously been made by the agency. However, the Administrator shall have authority to review and reverse such a determination for purposes of this paragraph and, if the Administrator does reverse that determination, the term ‘exempted requirement’ shall not apply to that procurement requirement.

“(6) PROCUREMENT REQUIREMENT.—The term ‘procurement requirement’ means a determination by an agency that a specified good or service is needed to satisfy the mission of the agency.”.

SEC. 202. Justification.

(a) Statement of bundled contract requirements.—Section 15(a) of the Small Business Act (15 U.S.C. 644(a)) is amended—

(1) by striking “is in quantity or estimated dollar value the magnitude of which renders small business prime contract participation unlikely” and inserting “would now be combined with other requirements for goods and services”;

(2) by striking “(2) why delivery schedules” and inserting “(2) the names, addresses and size of the incumbent contract holders, if applicable; (3) a description of the industries that might be interested in bidding on the contract requirements; (4) the number of small businesses listed in the industry categories that could be excluded from future bidding if the contract is combined or packaged, including any small business bidders that had bid on previous procurement requirements that are included in the bundling of contract requirements; (5) why delivery schedules”;

(3) by striking “(3) why the proposed acquisition” and inserting “(6) why the proposed acquisition”;

(4) by striking “(4) why construction” and inserting “(7) why construction”;

(5) by striking “(5) why the agency” and inserting “(8) why the agency”;

(6) by striking “justified” and inserting “justified. The statement also shall set forth the proposed procurement strategy required by subsection (e) and, if applicable, the specifications required by subsection (e)(3). Concurrently, the statement shall be made available to the public, including through dissemination in the Federal contracting opportunities database.”; and

(7) by inserting after “prime contracting opportunities.” the following: “If no notification of the procurement and accompanying statement is received, but the Administrator determines that there is cause to believe the contract combines requirements or a contract (single or multiple award) or task or delivery order for construction services or includes unjustified bundling, then the Administrator can demand that such a statement of work goods or services be completed by the procurement activity and sent to the Procurement Center Representative and the solicitation process postponed for at least 10 days but no more than 30 days to allow the Administrator to review the statement and make recommendations as described in this section before procurement is continued.”.

(b) Substantial measurable benefits.—Section 15(e) of the Small Business Act (15 U.S.C. 644(e)) is amended by adding at the end of subparagraph (2)(C), the following: “Cost savings shall not include any reduction in the in the use of military interdepartmental purchase requests or any similar transfer funds among federal agencies for the use of a contract issued by another federal agency.”.

SEC. 203. Appeals.

Section 15(a) of the Small Business Act (15 U.S.C. 644(a)) is amended—

(1) by striking “If a proposed procurement includes in its statement” and inserting “If a proposed procurement would adversely affect one or more small business concerns, including, but not limited to, the potential loss of an existing contract, or if a proposed procurement includes in its statement”; and

(2) by inserting before “Whenever the Administrator and the contracting procurement agency fail to agree,” the following: “If a small business concern would be adversely affected, directly or indirectly, by the procurement as proposed, and that small business concern or a trade association of which that small business concern is a member so requests, the Administrator may, take action to further the interests of the small business.”.

SEC. 204. Third-party review.

Section 8(d) of the Contract Disputes Act of 1978 (41 U.S.C. 607(d)) is amended—

(1) by striking “(d) The Armed Services Board” and inserting “(d)(1) The Armed Services Board”; and

(2) by inserting at the end the following:

“(2) Contract Bundling.—

“(A) IN GENERAL.—Whenever the head of a contracting agency makes a decision in accordance with section 15(a) of the Small Business Act concerning the Administrator of the Small Business Administration’s challenge to a bundling of contract requirements, the Administrator, within ten days after such decision may file a challenge with the appropriate agency board of contract appeals.

“(B) PROCEDURE.—The board shall provide the Administrator and the head of the contracting agency the opportunity to provide their views on the disputed contract. No oral testimony or oral argument shall be permitted. The board shall render its decision within thirty days after the appeal has been filed. The decision of the board shall be final.”.

TITLE III Small Business Subcontracting

SEC. 301. Good faith compliance with subcontracting plans.

Section 8(d)(10) of the Small Business Act (15 U.S.C. 637(d)(10)) is amended by—

(1) by striking “and” at the end of subparagraph (B);

(2) by striking the period at the end of subparagraph (C), and inserting “; and”; and

(3) by adding at the end the following:

“(D) Not later than 180 days after enactment of this Act, the Administrator shall, after the opportunity for notice and comment, promulgate regulations governing the Administrator’s review of subcontracting plans including the standards for determining good faith compliance with the subcontracting plans.”.

SEC. 302. Limitations on Subcontracting.

(a) Regulations for contract administration.—Section 15(o) of the Small Business Act (15 U.S.C. 644(o)) is amended by adding at the end the following:

“(4) Not later than 180 days after enactment of this Act, the Administrator shall, after the opportunity for notice and comment, promulgate regulations that specify the responsibilities that each agency and the Administration personnel will have in enforcing the restrictions set forth in paragraph (1). Such regulations also shall specify reporting and recordkeeping requirements for contracts covered by paragraph (1).”.

(b) Contractor penalties.—Section 16 of the Small Business Act (15 U.S.C. 645) is amended by adding at the end the following:

“(g) A small business that violates the requirements of section 15(o)(1) of the Small Business Act shall be subject to the penalties set forth in subsection (d).”.

SEC. 303. Criminal violations.

Section 1001(a) of title 18, United States Code, is amended—

(1) in paragraph (2) by striking the “or” at the end;

(2) in paragraph (3) by adding “or” at the end;

(3) inserting after paragraph (3) the following:

“(4) makes in writing or electronically a false statement concerning status as a small business concern or compliance with the requirements of the Small Business Act in an effort to obtain, retain, or complete a federal government contract;”; and

(4) by adding at the end the following: “For violation of paragraph (4) of this subsection, notwithstanding section 3571(e), the fine under this title shall be the total value of the contract or $1,000,000 whichever is greater.”.