H. Rept. 112-732 - 112th Congress (2011-2012)
December 27, 2012, As Reported by the Small Business Committee

Report text available as:

Formatting necessary for an accurate reading of this legislative text may be shown by tags (e.g., <DELETED> or <BOLD>) or may be missing from this TXT display. For complete and accurate display of this text, see the PDF.




House Report 112-732 - WOMEN'S PROCUREMENT PROGRAM IMPROVEMENT ACT OF 2012




[House Report 112-732]
[From the U.S. Government Printing Office]


112th Congress }                                             {   Report
                        HOUSE OF REPRESENTATIVES
 2d Session    }                                             {  112-732

======================================================================



 
          WOMEN'S PROCUREMENT PROGRAM IMPROVEMENT ACT OF 2012

                                _______
                                

 December 27, 2012.--Committed to the Committee of the Whole House on 
            the State of the Union and ordered to be printed

                                _______
                                

     Mr. Graves of Missouri, from the Committee on Small Business, 
                        submitted the following

                              R E P O R T

                        [To accompany H.R. 4203]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Small Business, to whom was referred the 
bill (H.R. 4203) to amend the Small Business Act with respect 
to the procurement program for women-owned small business 
concerns, and for other purposes, having considered the same, 
report favorably thereon without amendment and recommend that 
the bill do pass.

                                CONTENTS

   I. Text of Reported Bill...........................................2
  II. Purpose of the Bill and Summary.................................3
 III. Need for Legislation............................................3
  IV. Hearings........................................................4
   V. Committee Consideration.........................................4
  VI. Committee Votes.................................................4
 VII. Section-by-Section Analysis of H.R. 4203........................4
VIII. Congressional Budget Cost Estimate..............................5
  IX. Unfunded Mandates...............................................6
   X. New Budget Authority, Entitlement Authority, and Tax Expenditure6
  XI. Oversight Findings..............................................6
 XII. Statement of Constitutional Authority...........................6
XIII. Congressional Accountability Act................................6
 XIV. Federal Advisory Committee Statement............................7
  XV. Statement of No Earmarks........................................7
 XVI. Performance Goals and Objectives................................7
XVII. Changes in Existing Law Made by the Bill, as Reported...........7

                        I. Text of Reported Bill

    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 ``Women's Procurement Program 
Improvement Act of 2012''.

SEC. 2. PROCUREMENT PROGRAM FOR WOMEN-OWNED SMALL BUSINESS CONCERNS.

    Section 8(m) of the Small Business Act (15 U.S.C. 637(m)) 
is amended--
          (1) in paragraph (2)--
                  (A) by striking subparagraph (D);
                  (B) by redesignating subparagraph (E) as 
                subparagraph (D) respectively; and
                  (C) by striking subparagraph (F), and 
                inserting the following:
                  ``(E) each of the concerns--
                          ``(i) is certified by a Federal 
                        agency, a State government, or a 
                        national certifying entity approved by 
                        the Administrator, as a small business 
                        concern owned and controlled by women; 
                        or
                          ``(ii) is certified by the 
                        Administrator as a small business 
                        concern owned and controlled by 
                        women.'';
          (2) in paragraph (3), by striking ``subparagraph 
        (2)(A)'' inserting the following: ``paragraph (2)(A) or 
        paragraph (7)(A)'';
          (3) in paragraph (5) by striking ``under paragraph 
        (2)(F)'' each place it appears and inserting ``under 
        paragraph (2)(E)''; and
          (4) by adding at the end the following:
          ``(7) Sole source contracts for economically 
        disadvantaged women-owned small businesses.--In 
        accordance with this section, a contracting officer may 
        award a sole source contract to any small business 
        concern meeting the requirements of section 8(m)(2)(A) 
        of this Act if--
                  ``(A) such concern is determined to be a 
                responsible contract with respect to 
                performance of such contract opportunity and 
                the contracting officer does not have a 
                reasonable expectation that 2 or more 
                businesses meeting the requirements of section 
                8(m)(2)(A) will submit offers;
                  ``(B) the anticipated award price of the 
                contract (including options) will not exceed--
                          ``(i) $6,500,000 in the case of a 
                        contract opportunity assigned a 
                        standard industrial code for 
                        manufacturing; or
                          ``(ii) $4,000,000 in the case of any 
                        other contract opportunity; and
                  ``(C) in the estimation of the contracting 
                officer, the contract award can be made at a 
                fair and reasonable price.
          ``(8) Sole source contracts for women-owned small 
        businesses in substantially underrepresented 
        industries.--In accordance with this section, a 
        contracting officer may award a sole source contract to 
        any small business concerns meeting the requirements of 
        section 8(m)(3) of this Act if--
                  ``(A) such concern is determined to be a 
                responsible contract with respect to 
                performance of such contract opportunity and 
                the contracting officer does not have a 
                reasonable expectation that 2 or more 
                businesses meeting the requirements of section 
                8(m)(3) will submit offers;
                  ``(B) the anticipated award price of the 
                contract (including options) will not exceed--
                          ``(i) $6,500,000 in the case of a 
                        contract opportunity assigned a 
                        standard industrial code for 
                        manufacturing; or
                          ``(ii) $4,000,000 in the case of any 
                        other contract opportunity; and
                  ``(C) in the estimation of the contracting 
                officer, the contract award can be made at a 
                fair and reasonable price.''.

                      II. Purpose and Bill Summary

    The purpose of H.R. 4203, the ``Women's Procurement Program 
Improvement Act of 2012,'' is to amend the Small Business Act 
(the Act)\1\ to make technical changes to the Women-Owned Small 
Business (WOSB) Federal Contract Program enacted by Congress in 
2000. The specific changes relate to the size of contracts that 
can be awarded in the program to maintain consistency with 
similar specialized contracting programs in the Act. 
Additionally, the legislation provides for the use of sole-
source contracts for economically disadvantaged women-owned 
small businesses and those in substantially underrepresented 
industries. Further, the legislation alters how small business 
concerns owned and controlled by women are certified in order 
to be eligible for the WOSB program.
---------------------------------------------------------------------------
    \1\Originally, title II of the Act of July 30, 1953, c. 282, 67 
Stat. 232 was designated as the Small Business Act of 1953. A plethora 
of amendments in subsequent Congresses led to a rewrite in 1958. Pub. 
L. No. 85-536, Sec. 1, 72m Stat. 384 (1958). The Act is codified at 15 
U.S.C. Sec. Sec. 631-657q.
---------------------------------------------------------------------------

                       III. Need For Legislation

    The Act iterates Congress's belief in the importance of 
small business participation in federal prime contracts and the 
resultant subcontracts. Specifically, the Act directs that:

          To effectuate the purpose of this Act, small-business 
        concerns within the meaning of this Act 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 in the interest of assuring 
        that a fair proportion of the total purchase 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 be made to small-business concerns.\2\
---------------------------------------------------------------------------
    \2\Id. at Sec. 644(a).

    To effectuate these objectives, Congress has enacted six 
different contract programs overseen by the Small Business 
Administration's (SBA's) Office of Government Contracting and 
Business Development. The Women-Owned Small Business (WOSB) 
Federal Contract Program, which this legislation makes 
technical corrections to, was created in 2000 under Sec. 811 of 
the Small Business Reauthorization Act of 2000.\3\ At the time 
of enactment, limitations on contract award size were placed at 
$5,000,000 for manufacturing and $3,000,000 for all other 
contracts.
---------------------------------------------------------------------------
    \3\The Small Business Reauthorization Act of 2000, Sec. 811, 
Appendix I to consolidation Appropriations Act, 2001, Publ. L. No. 165-
554, 144 Stat. 2763, 2763A-667, 2763A-708-10. The WOSB Program is 
codified at 15 U.S.C. Sec. 637(m).
---------------------------------------------------------------------------
    Due to challenges in identifying industries through a study 
as required under law, the SBA did not implement the final 
rules on this program until October 2010\4\ and the WOSB 
program was not fully operational until 2011. Prior to 
implementation, SBA received comments indicating that 
limitations on contract award size and the inability to sole-
source awards, were inconsistent with other contracting 
programs administered by the agency and would be problematic to 
achieving the program's objectives.\5\ However, as these 
limitations statutory, the SBA could not alter them. H.R. 4206 
removes the limitations and aligns the WOSB program with other 
SBA contracting programs.
---------------------------------------------------------------------------
    \4\Women-Owned Small Business Federal Contract Program; Final Rule, 
75 Fed. Reg. 194, 62258 (Oct. 7, 2010).
    \5\Id. 
---------------------------------------------------------------------------

                              IV. Hearings

    Since changes made in the bill were of a technical nature, 
no hearings were necessary to address the legislation.

                       V. Committee Consideration

    The Committee on Small Business met in open session, with a 
quorum being present, on March 22, 2012, and ordered H.R. 4203 
reported to the House by a voice vote at 11:06 a.m. During the 
markup, no amendments were offered.

                          VI. Committee Votes

    Clause 3(b) of rule XIII of the Rules of the House of 
Representatives requires the Committee to list the recorded 
votes on the motion to report the legislation and amendments 
thereto. No recorded votes were taken in consideration of H.R. 
4203.

             VII. Section-by-Section Analysis of H.R. 4203


          SECTION-BY-SECTION ANALYSIS OF H.R. 4203 AS AMENDED

Section 1--Short Title

    This section provides that the bill may be cited as the 
``Women's Procurement Program Improvement Act of 2012.''

Section 2--Procurement Program for Women-Owned Small Business Concerns

    This section removes the contract award limitations found 
in the WOSB program. Further, this section requires all 
participants in the WOSB program be certified as a small 
business concern owned and controlled by women by either the 
SBA or entity approved by the Administrator to approve 
certifications.
    Finally, this section provides for sole-source contracts to 
be awarded under the WOSB program based upon certain 
restrictions. Specifically, these may be sole-sourced to either 
economically disadvantaged women-owned small businesses or 
woman-owned small businesses in substantially underrepresented 
industries provided that the contract does not exceed $6.5 
million for manufacturing or $4 million for other contracts, if 
the contracting officer does not have a reasonable expectation 
that two or more businesses will submit offers, and that the 
contract award can be made at a fair and reasonable price.

            VIII. Congressional Budget Office Cost Estimate

                                     U.S. Congress,
                               Congressional Budget Office,
                                      Washington, DC, May 16, 2012.
Hon. Sam Graves,
Chairman, Committee on Small Business,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 4203, the Women's 
Procurement Program Improvement Act of 2012.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Matthew 
Pickford.
            Sincerely,
                                      Douglas W. Elmendorf,
                                                          Director.
    Enclosure.

H.R. 4203--Women's Procurement Program Improvement Act of 2012

    H.R. 4203 would expand the federal contracting 
opportunities for certain small businesses that are owned by 
women. Specifically, the legislation would permit federal 
contracting officers to award sole-source contracts, which are 
awarded in a noncompetitive process, to small businesses that 
are owned by women who are economically disadvantaged or who 
own businesses in certain industries where women are considered 
underrepresented among owners. Under the bill, in order to be 
eligible to provide services to the federal government, women-
owned small businesses would have to be certified of their 
status by the Small Business Administration (SBA).
    Based on information from the SBA and the General Services 
Administration, CBO estimates that implementing H.R. 4203 would 
cost about $5 million per year, assuming appropriation of the 
necessary amounts. That amount includes the estimated costs to 
train contracting officers throughout the federal government 
and for the SBA to administer certifications under the bill. 
The bill could affect direct spending by agencies not funded 
through annual appropriations; therefore, pay-as-you-go 
procedures apply. CBO estimates, however, that any net increase 
in spending by those agencies would not be significant. 
Enacting H.R. 4203 would not affect revenues.
    H.R. 4203 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act and 
would not affect the budgets of state, local, or tribal 
governments.
    The CBO staff contact for this estimate is Matthew 
Pickford. This estimate was approved by Theresa Gullo, Deputy 
Assistant Director for Budget Analysis.

                         IX. Unfunded Mandates

    H.R. 4203 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act, Pub. 
L. No. 104-4, and would impose no costs on state, local or 
tribal governments.

  X. New Budget Authority, Entitlement Authority and Tax Expenditures

    In compliance with clause 3(c)(2) of rule XIII of the Rules 
of the House, the Committee provides the following opinion and 
estimate with respect to new budget authority, entitlement 
authority and tax expenditures.
    The Committee does not adopt as its own the estimate of new 
budget authority contained in the cost estimate prepared by the 
Director of the Congressional Budget Office (CBO) pursuant to 
402 of the Congressional Budget Act of 1974. The CBO estimates 
that it will cost the Federal government $5 million annually to 
train contracting officers on the program and to administer the 
certifications. However, training of federal contracting 
officers is funded through the Federal Acquisition Institute 
and Defense Acquisition University, so no additional funding 
will be required. Likewise, the legislation allows SBA to rely 
on third party certifications, so the cost of administering 
certifications should be negligible. Furthermore, the SBA has 
been operating the program for nearly two years under existing 
salary and expenses. The Committee sees no reason why continued 
operation of an extant program will cost the SBA more money 
than it already does.

                         XI. Oversight Findings

    In accordance with clause 2(b)(1) of rule X of the Rules of 
the House, the oversight findings and recommendations of the 
Committee on Small Business with respect to the subject matter 
contained in H.R. 4203 are incorporated into the descriptive 
portions of this report.

               XII. Statement of Constitutional Authority

    Pursuant to clause 3(d)(1) of rule XIII of the Rules of the 
House of Representatives, the Committee finds that the 
authority for this legislation in Art. I, Sec. 8, cls. 1, 3, 
and 18 and Art. IV, Sec. 3, cl. 2 of the Constitution of the 
United States.

                 XIII. Congressional Accountability Act

    H.R. 4203 does not relate to the terms and conditions of 
employment or access to public services or accommodations 
within the meaning of Sec. 102(b)(3) of Pub. L. No. 104-1.

             XIV. Federal Advisory Committee Act Statement

    H.R. 4203 does not establish or authorize the establishment 
of any new advisory committees as that term is defined in the 
Federal Advisory Committee Act, 5 U.S.C. App. 2.

                      XV. Statement of No Earmarks

    Pursuant to clause 9 of rule XXI, H.R. 4203 does not 
contain any congressional earmarks, limited tax benefits or 
limited tariff benefits as defined in subsections (d), (e) or 
(f) of clause 9 of rule XXI of the Rules of the House.

                 XVI. Performance Goals and Objectives

    Pursuant to clause 3(c)(4) of rule XIII of the Rules of the 
House, the Committee establishes the following performance-
related goals and objectives for this legislation:

          H.R. 4203 includes provisions designed to improve the 
        competitive nature of women-owned small businesses by 
        removing current limits on contract awards, and 
        allowing sole source contracts for economically 
        disadvantaged women-owned small businesses and in 
        substantially underrepresented industries.

      XVII. Changes in Existing Law Made by the Bill, as Reported

  In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (existing law 
proposed to be omitted is enclosed in black brackets, new 
matter is printed in italic, existing law in which no change is 
proposed is shown in roman):

                           SMALL BUSINESS ACT




           *       *       *       *       *       *       *
  Sec. 8. (a) * * *

           *       *       *       *       *       *       *

  (m) Procurement Program for Women-owned Small Business 
Concerns.--
          (1) * * *
          (2) Authority to restrict competition.--In accordance 
        with this subsection, a contracting officer may 
        restrict competition for any contract for the 
        procurement of goods or services by the Federal 
        Government to small business concerns owned and 
        controlled by women, if--
                  (A) * * *

           *       *       *       *       *       *       *

                  [(D) the anticipated award price of the 
                contract (including options) does not exceed--
                          [(i) $5,000,000, in the case of a 
                        contract assigned an industrial 
                        classification code for manufacturing; 
                        or
                          [(ii) $3,000,000, in the case of all 
                        other contracts;]
                  [(E)] (D) in the estimation of the 
                contracting officer, the contract award can be 
                made at a fair and reasonable price; and
                  [(F) each of the concerns--
                          [(i) is certified by a Federal 
                        agency, a State government, or a 
                        national certifying entity approved by 
                        the Administrator, as a small business 
                        concern owned and controlled by women; 
                        or
                          [(ii) certifies to the contracting 
                        officer that it is a small business 
                        concern owned and controlled by women 
                        and provides adequate documentation, in 
                        accordance with standards established 
                        by the Administration, to support such 
                        certification.]
                  (E) each of the concerns--
                          (i) is certified by a Federal agency, 
                        a State government, or a national 
                        certifying entity approved by the 
                        Administrator, as a small business 
                        concern owned and controlled by women; 
                        or
                          (ii) is certified by the 
                        Administrator as a small business 
                        concern owned and controlled by women.
          (3) Waiver.--With respect to a small business concern 
        owned and controlled by women, the Administrator may 
        waive [subparagraph (2)(A)] paragraph (2)(A) or 
        paragraph (7)(A) if the Administrator determines that 
        the concern is in an industry in which small business 
        concerns owned and controlled by women are 
        substantially underrepresented.

           *       *       *       *       *       *       *

          (5) Enforcement; penalties.--
                  (A) Verification of eligibility.--In carrying 
                out this subsection, the Administrator shall 
                establish procedures relating to--
                          (i) the filing, investigation, and 
                        disposition by the Administration of 
                        any challenge to the eligibility of a 
                        small business concern to receive 
                        assistance under this subsection 
                        (including a challenge, filed by an 
                        interested party, relating to the 
                        veracity of a certification made or 
                        information provided to the 
                        Administration by a small business 
                        concern [under paragraph (2)(F)] under 
                        paragraph (2)(E)); and
                          (ii) verification by the 
                        Administrator of the accuracy of any 
                        certification made or information 
                        provided to the Administration by a 
                        small business concern [under paragraph 
                        (2)(F)] under paragraph (2)(E).
                  (B) Examinations.--The procedures established 
                under subparagraph (A) may provide for program 
                examinations (including random program 
                examinations) by the Administrator of any small 
                business concern making a certification or 
                providing information to the Administrator 
                [under paragraph (2)(F)] under paragraph 
                (2)(E).

           *       *       *       *       *       *       *

          (7) Sole source contracts for economically 
        disadvantaged women-owned small businesses.--In 
        accordance with this section, a contracting officer may 
        award a sole source contract to any small business 
        concern meeting the requirements of section 8(m)(2)(A) 
        of this Act if--
                  (A) such concern is determined to be a 
                responsible contract with respect to 
                performance of such contract opportunity and 
                the contracting officer does not have a 
                reasonable expectation that 2 or more 
                businesses meeting the requirements of section 
                8(m)(2)(A) will submit offers;
                  (B) the anticipated award price of the 
                contract (including options) will not exceed--
                          (i) $6,500,000 in the case of a 
                        contract opportunity assigned a 
                        standard industrial code for 
                        manufacturing; or
                          (ii) $4,000,000 in the case of any 
                        other contract opportunity; and
                  (C) in the estimation of the contracting 
                officer, the contract award can be made at a 
                fair and reasonable price.
          (8) Sole source contracts for women-owned small 
        businesses in substantially underrepresented 
        industries.--In accordance with this section, a 
        contracting officer may award a sole source contract to 
        any small business concerns meeting the requirements of 
        section 8(m)(3) of this Act if--
                  (A) such concern is determined to be a 
                responsible contract with respect to 
                performance of such contract opportunity and 
                the contracting officer does not have a 
                reasonable expectation that 2 or more 
                businesses meeting the requirements of section 
                8(m)(3) will submit offers;
                  (B) the anticipated award price of the 
                contract (including options) will not exceed--
                          (i) $6,500,000 in the case of a 
                        contract opportunity assigned a 
                        standard industrial code for 
                        manufacturing; or
                          (ii) $4,000,000 in the case of any 
                        other contract opportunity; and
                  (C) in the estimation of the contracting 
                officer, the contract award can be made at a 
                fair and reasonable price.

           *       *       *       *       *       *       *