§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, §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.
(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 (
(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 2 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) 3 In general
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.
(
References in Text
Section 7102 of the Federal Acquisition Streamlining Act of 1994, referred to in subsec. (j)(3), is section 7102 of
Codification
Prior Provisions
Prior similar provisions were contained in section 214 of act July 30, 1953, ch. 282, title II,
Amendments
2000-Subsec. (a).
Subsec. (p).
1999-Subsec. (g)(1).
Subsec. (g)(2).
Subsec. (h)(1).
Subsec. (h)(2).
Subsec. (h)(2)(A), (D), (E).
1997-Subsec. (a).
Subsec. (e).
Subsec. (g)(1).
Subsec. (g)(2).
Subsec. (h).
Subsec. (k)(5) to (10).
1996-Subsec. (g)(2).
1994-Subsec. (c)(2)(A).
Subsec. (c)(7).
Subsec. (e).
"(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).
"(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).
Subsec. (g)(2).
Subsec. (h)(1), (2)(A), (D), (E).
Subsec. (h)(2)(F).
Subsec. (j).
1992-Subsec. (c)(1)(A).
Subsec. (c)(2)(B).
Subsec. (k)(3), (5).
Subsec. (k)(9).
Subsec. (l)(6).
Subsec. (m)(1).
Subsec. (m)(2)(B).
Subsec. (m)(2)(C).
1991-Subsec. (k)(5).
1990-Subsec. (a).
Subsec. (j).
1989-Subsec. (h)(2)(A).
Subsec. (m)(1)(A).
1988-Subsec. (c).
Subsec. (g).
Subsec. (h).
Subsec. (k)(3).
Subsec. (k)(5) to (8).
Subsec. (k)(9).
Subsec. (l)(2)(D).
Subsec. (l)(2)(E).
Subsec. (l)(3).
Subsec. (l)(6).
Subsec. (l)(7).
Subsec. (m).
1987-Subsec. (a).
Subsec. (g).
Subsec. (o)(1).
Subsec. (o)(1)(A).
Subsec. (o)(3).
Subsec. (p).
"(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).
Subsec. (g).
Subsec. (j).
Subsec. (k)(3).
Subsec. (n).
Subsecs. (o), (p).
1984-Subsecs. (l), (m).
1980-Subsec. (c).
Subsec. (d).
Subsec. (e).
Subsec. (f).
1978-Subsec. (f).
Subsecs. (g) to (k).
Subsec. (l).
1977-
Change of Name
Committee on Small Business of Senate changed to Committee on Small Business and Entrepreneurship of Senate. See Senate Resolution No. 123, One Hundred Seventh Congress, June 29, 2001.
Effective Date of 1997 Amendment
Amendment by
Effective Date of 1996 Amendment
For effective date and applicability of amendment by
Effective Date of 1994 Amendment
For effective date and applicability of amendment by sections 4004 and 7106(a) of
Effective Date of 1989 Amendment
Amendment by
Effective Date of 1988 Amendments
Amendment by sections 502 and 503 of
Amendment by
Effective Date of 1987 Amendments
Section 809(a)(1) of
Section 809(a)(2) of
Amendment by section 10(a)(1), (b)(1) of
Effective Date of 1986 Amendments
Section 18003(b) of
Amendment by section 101(c) [title X, §921(a), (b)(1), (c)(2)–(e)] of
Effective Date of 1980 Amendment
Amendment by
Manufacturing Contracts Through Manufacturing Application and Education Centers
Section 303 of
"(a)
"(b)
"(1) Technology demonstration.
"(2) Technology education.
"(3) Technology application support.
"(4) Technology advancement support.
"(c)
"(d)
"(e)
"(f)
Pilot Program for Very Small Business Concerns
Section 304 of
"(a)
"(b)
"(1)
"(2)
"(3)
"(c)
"(d)
"(e)
"(f)
"(g)
"(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)
"(i)
"(j)
"(1)
"(2)
"(3)
"(4)
"(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
"(a)
"(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)
"(c)
Contracting Program for Certain Small Businesses
Section 7102 of
"(a)
"(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)
"(1)
"(2)
"(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)
[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
"(a)
"(b)
"(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)
"(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)
"(e)
"(f)
Procurement Procedures Under Small Business Competitiveness Demonstration Program Act of 1988
Section 202(h) of
Modifications of Test Plan and Policy Direction Under Small Business Competitiveness Demonstration Program Act of 1988
Section 202(i) of
Contract Bundling Study
Small Business Competitiveness Demonstration Program
"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 [
"(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)
"(b)
"(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)
"(d)
"SEC. 712. ENHANCED SMALL BUSINESS PARTICIPATION GOALS.
"(a)
"(b)
"(1)
"(A) $25,000, or
"(B) such larger dollar amount established pursuant to paragraph (2).
"(2)
"(3)
"(4)
"(c)
"(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)
"(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)
"(b)
"(c)
"(d)
"SEC. 714. REPORTING.
"(a)
"(b)
"(1)
"(2)
"(3)
"(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)
"(5)
"(c)
"(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)
"(b)
"SEC. 716. REPORTS TO CONGRESS.
"(a)
"(b)
"(c)
"SEC. 717. DESIGNATED INDUSTRY GROUPS.
"(a)
"(1) construction (excluding dredging);
"(2) refuse systems and related services;
"(3) architectural and engineering services (including surveying and mapping);
"(4) non-nuclear ship repair; and
"(5) landscaping and pest control services.
"(b)
"(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)
"(d)
"(e)
"(f)
"SEC. 718. DEFINITIONS.
"(a)
"(b)
"(c)
"(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)
"(e)
"part c-alternative program for clothing and textiles
"SEC. 721. ALTERNATIVE PROGRAM FOR CLOTHING AND TEXTILES.
"(a)
"(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)
"(c)
"(d)
"SEC. 722. EXPANDING SMALL BUSINESS PARTICIPATION IN DREDGING.
"(a)
"(b)
"(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)
"(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)
"(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)
"(f)
"(1) The Secretary shall furnish a report to the Committees on Small Business of the Senate and House of Representatives [Committee on Small Business of Senate now Committee on Small Business and Entrepreneurship of Senate], 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
Segmentation of Industry Category of Shipbuilding and Ship Repair
Section 741 of
"(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
Task Force on Purchases From Blind and Severely Handicapped Individuals; Establishment; Meetings; Recommendations
Section 133(c) of
Standards for Measuring Cost Savings From Breakout Procurement Center Representatives
Section 403(b) of
"(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 (
(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.
(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.
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 (
(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 [
(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.
(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.
(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 (
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 [
This memorandum shall be published in the Federal Register.
William J. Clinton.
1 So in original. Probably should be "service-disabled".