[Congressional Bills 111th Congress]
[From the U.S. Government Publishing Office]
[H.R. 4496 Introduced in House (IH)]
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 I--SMALL 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 II--CONTRACT 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.''.
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