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U.S. Code as of:
01/19/04
Section 637. Additional powers
(a) Procurement contracts; subcontracts to disadvantaged small
business concerns; performance bonds; contract negotiations;
definitions; eligibility; determinations; publication;
recruitment; construction subcontracts; annual estimates; Indian
tribes
(1) It shall be the duty of the Administration and it is hereby
empowered, whenever it determines such action is necessary or
appropriate -
(A) to enter into contracts with the United States Government
and any department, agency, or officer thereof having procurement
powers obligating the Administration to furnish articles,
equipment, supplies, services, or materials to the Government or
to perform construction work for the Government. In any case in
which the Administration certifies to any officer of the
Government having procurement powers that the Administration is
competent and responsible to perform any specific Government
procurement contract to be let by any such officer, such officer
shall be authorized in his discretion to let such procurement
contract to the Administration upon such terms and conditions as
may be agreed upon between the Administration and the procurement
officer. Whenever the Administration and such procurement officer
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. Not later than 5 days from the date the
Administration is notified of a procurement officer's adverse
decision, the Administration may notify the contracting officer
of the intent to appeal such adverse decision, and within 15 days
of such date the Administrator shall file a written request for a
reconsideration of the adverse decision with the Secretary of the
department or agency head. For the purposes of this subparagraph,
a procurement officer's adverse decision includes a decision not
to make available for award pursuant to this subsection a
particular procurement requirement or the failure to agree on the
terms and conditions of a contract to be awarded noncompetitively
under the authority of this subsection. Upon receipt of the
notice of intent to appeal, the Secretary of the department or
the agency head shall suspend further action regarding the
procurement until a written decision on the Administrator's
request for reconsideration has been issued by such Secretary or
agency head, unless such officer makes a written determination
that urgent and compelling circumstances which significantly
affect interests of the United States will not permit waiting for
a reconsideration of the adverse decision. If the Administrator's
request for reconsideration is denied, the Secretary of the
department or agency head shall specify the reasons why the
selected firm was determined to be incapable to perform the
procurement requirement, and the findings supporting such
determination, which shall be made a part of the contract file
for the requirement. 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) to arrange for the performance of such procurement
contracts by negotiating or otherwise letting subcontracts to
socially and economically disadvantaged small business concerns
for construction work, services, or the manufacture, supply,
assembly of such articles, equipment, supplies, materials, or
parts thereof, or servicing or processing in connection
therewith, or such management services as may be necessary to
enable the Administration to perform such contracts;
(C) to make an award to a small business concern owned and
controlled by socially and economically disadvantaged individuals
which has completed its period of Program Participation as
prescribed by section 636(j)(15) of this title, if -
(i) the contract will be awarded as a result of an offer
(including price) submitted in response to a published
solicitation relating to a competition conducted pursuant to
subparagraph (D); and
(ii) the prospective contract awardee was a Program
Participant eligible for award of the contract on the date
specified for receipt of offers contained in the contract
solicitation; and
(D)(i) A contract opportunity offered for award pursuant to
this subsection shall be awarded on the basis of competition
restricted to eligible Program Participants if -
(I) there is a reasonable expectation that at least two
eligible Program Participants will submit offers and that award
can be made at a fair market price, and
(II) the anticipated award price of the contract (including
options) will exceed $5,000,000 in the case of a contract
opportunity assigned a standard industrial classification code
for manufacturing and $3,000,000 (including options) in the
case of all other contract opportunities.
(ii) The Associate Administrator for Minority Small Business
and Capital Ownership Development, on a nondelegable basis, is
authorized to approve a request from an agency to award a
contract opportunity under this subsection on the basis of a
competition restricted to eligible Program Participants even if
the anticipated award price is not expected to exceed the dollar
amounts specified in clause (i)(II). Such approvals shall be
granted only on a limited basis.
(2) Notwithstanding subsections (a) and (c) of section 270a of
title 40, no small business concern shall be required to provide
any amount of any bond as a condition of receiving any subcontract
under this subsection if the Administrator determines that such
amount is inappropriate for such concern in performing such
contract: Provided, That the Administrator shall exercise the
authority granted by the paragraph only if -
(A) the Administration takes such measures as it deems
appropriate for the protection of persons furnishing materials
and labor to a small business receiving any benefit pursuant to
this paragraph;
(B) the Administration assists, insofar as practicable, a small
business receiving the benefits of this paragraph to develop,
within a reasonable period of time, such financial and other
capability as may be needed to obtain such bonds as the
Administration may subsequently require for the successful
completion of any program conducted under the authority of this
subsection;
(C) the Administration finds that such small business is unable
to obtain the requisite bond or bonds from a surety and that no
surety is willing to issue bond or bonds subject to the guarantee
provisions of Title IV of the Small Business Investment Act of
1958 [15 U.S.C. 692 et seq.]; and
(D) the small business is determined to be a start-up concern
and such concern has not been participating in any program
conducted under the authority of this subsection for a period
exceeding one year.
The authority to waive bonds provided in this paragraph (2) may not
be exercised after September 30, 1988.
(3)(A) Any Program Participant selected by the Administration to
perform a contract to be let noncompetitively pursuant to this
subsection shall, when practicable, participate in any negotiation
of the terms and conditions of such contract.
(B)(i) For purposes of paragraph (1) a "fair market price" shall
be determined by the agency offering the procurement requirement to
the Administration, in accordance with clauses (ii) and (iii).
(ii) The estimate of a current fair market price for a new
procurement requirement, or a requirement that does not have a
satisfactory procurement history, shall be derived from a price or
cost analysis. Such analysis may take into account prevailing
market conditions, commercial prices for similar products or
services, or data obtained from any other agency. Such analysis
shall consider such cost or pricing data as may be timely submitted
by the Administration.
(iii) The estimate of a current fair market price for a
procurement requirement that has a satisfactory procurement history
shall be based on recent award prices adjusted to insure
comparability. Such adjustments shall take into account differences
in quantities, performance times, plans, specifications,
transportation costs, packaging and packing costs, labor and
materials costs, overhead costs, and any other additional costs
which may be deemed appropriate.
(C) An agency offering a procurement requirement for potential
award pursuant to this subsection shall, upon the request of the
Administration, promptly submit to the Administration a written
statement detailing the method used by the agency to estimate the
current fair market price for such contract, identifying the
information, studies, analyses, and other data used by such agency.
The agency's estimate of the current fair market price (and any
supporting data furnished to the Administration) shall not be
disclosed to any potential offeror (other than the Administration).
(D) A small business concern selected by the Administration to
perform or negotiate a contract to be let pursuant to this
subsection may request the Administration to protest the agency's
estimate of the fair market price for such contract pursuant to
paragraph (1)(A).
(4)(A) For purposes of this section, the term "socially and
economically disadvantaged small business concern" means any small
business concern which meets the requirements of subparagraph (B)
and -
(i) which is at least 51 per centum unconditionally owned by -
(I) one or more socially and economically disadvantaged
individuals,
(II) an economically disadvantaged Indian tribe (or a wholly
owned business entity of such tribe), or
(III) an economically disadvantaged Native Hawaiian
organization, or
(ii) in the case of any publicly owned business, at least 51
per centum of the stock of which is unconditionally owned by -
(I) one or more socially and economically disadvantaged
individuals,
(II) an economically disadvantaged Indian tribe (or a wholly
owned business entity of such tribe), or
(III) an economically disadvantaged Native Hawaiian
organization.
(B) A small business concern meets the requirements of this
subparagraph if the management and daily business operations of
such small business concern are controlled by one or more -
(i) socially and economically disadvantaged individuals
described in subparagraph (A)(i)(I) or subparagraph (A)(ii)(I),
(ii) members of an economically disadvantaged Indian tribe
described in subparagraph (A)(i)(II) or subparagraph (A)(ii)(II),
or
(iii) Native Hawaiian organizations described in subparagraph
(A)(i)(III) or subparagraph (A)(ii)(III).
(C) Each Program Participant shall certify, on an annual basis,
that it meets the requirements of this paragraph regarding
ownership and control.
(5) Socially disadvantaged individuals are those who have been
subjected to racial or ethnic prejudice or cultural bias because of
their identity as a member of a group without regard to their
individual qualities.
(6)(A) Economically disadvantaged individuals are those socially
disadvantaged individuals whose ability to compete in the free
enterprise system has been impaired due to diminished capital and
credit opportunities as compared to others in the same business
area who are not socially disadvantaged. In determining the degree
of diminished credit and capital opportunities the Administration
shall consider, but not be limited to, the assets and net worth of
such socially disadvantaged individual. In determining the economic
disadvantage of an Indian tribe, the Administration shall consider,
where available, information such as the following: the per capita
income of members of the tribe excluding judgment awards, the
percentage of the local Indian population below the poverty level,
and the tribe's access to capital markets.
(B) Each Program Participant shall annually submit to the
Administration -
(i) a personal financial statement for each disadvantaged
owner;
(ii) a record of all payments made by the Program Participant
to each of its disadvantaged owners or to any person or entity
affiliated with such owners; and
(iii) such other information as the Administration may deem
necessary to make the determinations required by this paragraph.
(C)(i) Whenever, on the basis of information provided by a
Program Participant pursuant to subparagraph (B) or otherwise, the
Administration has reason to believe that the standards to
establish economic disadvantage pursuant to subparagraph (A) have
not been met, the Administration shall conduct a review to
determine whether such Program Participant and its disadvantaged
owners continue to be impaired in their ability to compete in the
free enterprise system due to diminished capital and credit
opportunities when compared to other concerns in the same business
area, which are not socially disadvantaged.
(ii) If the Administration determines, pursuant to such review,
that a Program Participant and its disadvantaged owners are no
longer economically disadvantaged for the purpose of receiving
assistance under this subsection, the Program Participant shall be
graduated pursuant to section 636(j)(10)(G) of this title subject
to the right to a hearing as provided for under paragraph (9).
(D)(i) Whenever, on the basis of information provided by a
Program Participant pursuant to subparagraph (B) or otherwise, the
Administration has reason to believe that the amount of funds or
other assets withdrawn from a Program Participant for the personal
benefit of its disadvantaged owners or any person or entity
affiliated with such owners may have been unduly excessive, the
Administration shall conduct a review to determine whether such
withdrawal of funds or other assets was detrimental to the
achievement of the targets, objectives, and goals contained in such
Program Participant's business plan.
(ii) If the Administration determines, pursuant to such review,
that funds or other assets have been withdrawn to the detriment of
the Program Participant's business, the Administration shall -
(I) initiate a proceeding to terminate the Program Participant
pursuant to section 636(j)(10)(F) of this title, subject to the
right to a hearing under paragraph (9); or
(II) require an appropriate reinvestment of funds or other
assets and such other steps as the Administration may deem
necessary to ensure the protection of the concern.
(E) Whenever the Administration computes personal net worth for
any purpose under this paragraph, it shall exclude from such
computation -
(i) the value of investments that disadvantaged owners have in
their concerns, except that such value shall be taken into
account under this paragraph when comparing such concerns to
other concerns in the same business area that are owned by other
than socially disadvantaged persons;
(ii) the equity that disadvantaged owners have in their primary
personal residences, except that any portion of such equity that
is attributable to unduly excessive withdrawals from a Program
Participant or a concern applying for program participation shall
be taken into account.
(7)(A) No small business concern shall be deemed eligible for any
assistance pursuant to this subsection unless the Administration
determines that with contract, financial, technical, and management
support the small business concern will be able to perform
contracts which may be awarded to such concern under paragraph
(1)(C) and has reasonable prospects for success in competing in the
private sector.
(B) Limitations established by the Administration in its
regulations and procedures restricting the award of contracts
pursuant to this subsection to a limited number of standard
industrial classification codes in an approved business plan shall
not be applied in a manner that inhibits the logical business
progression by a participating small business concern into areas of
industrial endeavor where such concern has the potential for
success.
(8) All determinations made pursuant to paragraph (5) with
respect to whether a group has been subjected to prejudice or bias
shall be made by the Administrator after consultation with the
Associate Administrator for Minority Small Business and Capital
Ownership Development. All other determinations made pursuant to
paragraphs (4), (5), (6), and (7) shall be made by the Associate
Administrator for Minority Small Business and Capital Ownership
Development under the supervision of, and responsible to, the
Administrator.
(9)(A) Subject to the provisions of subparagraph (E), the
Administration, prior to taking any action described in
subparagraph (B), shall provide the small business concern that is
the subject of such action, an opportunity for a hearing on the
record, in accordance with chapter 5 of title 5.
(B) The actions referred to in subparagraph (A) are -
(i) denial of program admission based upon a negative
determination pursuant to paragraph (4), (5), or (6);
(ii) a termination pursuant to section 636(j)(10)(F) of this
title;
(iii) a graduation pursuant to section 636(j)(10)(G) of this
title; and
(iv) the denial of a request to issue a waiver pursuant to
paragraph (21)(B).
(C) The Administration's proposed action, in any proceeding
conducted under the authority of this paragraph, shall be sustained
unless it is found to be arbitrary, capricious, or contrary to law.
(D) A decision rendered pursuant to this paragraph shall be the
final decision of the Administration and shall be binding upon the
Administration and those within its employ.
(E) The adjudicator selected to preside over a proceeding
conducted under the authority of this paragraph shall decline to
accept jurisdiction over any matter that -
(i) does not, on its face, allege facts that, if proven to be
true, would warrant reversal or modification of the
Administration's position;
(ii) is untimely filed;
(iii) is not filed in accordance with the rules of procedure
governing such proceedings; or
(iv) has been decided by or is the subject of an adjudication
before a court of competent jurisdiction over such matters.
(F) Proceedings conducted pursuant to the authority of this
paragraph shall be completed and a decision rendered, insofar as
practicable, within ninety days after a petition for a hearing is
filed with the adjudicating office.
(10) The Administration shall develop and implement an outreach
program to inform and recruit small business concerns to apply for
eligibility for assistance under this subsection. Such program
shall make a sustained and substantial effort to solicit
applications for certification from small business concerns located
in areas of concentrated unemployment or underemployment or within
labor surplus areas and within States having relatively few Program
Participants and from small disadvantaged business concerns in
industry categories that have not substantially participated in the
award of contracts let under the authority of this subsection.
(11) To the maximum extent practicable, construction subcontracts
awarded by the Administration pursuant to this subsection shall be
awarded within the county or State where the work is to be
performed.
(12)(A) The Administration shall require each concern eligible to
receive subcontracts pursuant to this subsection to annually
prepare and submit to the Administration a capability statement.
Such statement shall briefly describe such concern's various
contract performance capabilities and shall contain the name and
telephone number of the Business Opportunity Specialist assigned
such concern. The Administration shall separate such statements by
those primarily dependent upon local contract support and those
primarily requiring a national marketing effort. Statements
primarily dependent upon local contract support shall be
disseminated to appropriate buying activities in the marketing area
of the concern. The remaining statements shall be disseminated to
the Directors of Small and Disadvantaged Business Utilization for
the appropriate agencies who shall further distribute such
statements to buying activities with such agencies that may
purchase the types of items or services described on the capability
statements.
(B) Contracting activities receiving capability statements shall,
within 60 days after receipt, contact the relevant Business
Opportunity Specialist to indicate the number, type, and
approximate dollar value of contract opportunities that such
activities may be awarding over the succeeding 12-month period and
which may be appropriate to consider for award to those concerns
for which it has received capability statements.
(C) Each executive agency reporting to the Federal Procurement
Data System contract actions with an aggregate value in excess of
$50,000,000 in fiscal year 1988, or in any succeeding fiscal year,
shall prepare a forecast of expected contract opportunities or
classes of contract opportunities for the next and succeeding
fiscal years that small business concerns, including those owned
and controlled by socially and economically disadvantaged
individuals, are capable of performing. Such forecast shall be
periodically revised during such year. To the extent such
information is available, the agency forecasts shall specify:
(i) The approximate number of individual contract opportunities
(and the number of opportunities within a class).
(ii) The approximate dollar value, or range of dollar values,
for each contract opportunity or class of contract opportunities.
(iii) The anticipated time (by fiscal year quarter) for the
issuance of a procurement request.
(iv) The activity responsible for the award and administration
of the contract.
(D) The head of each executive agency subject to the provisions
of subparagraph (C) shall within 10 days of completion furnish such
forecasts to -
(i) the Director of the Office of Small and Disadvantaged
Business Utilization established pursuant to section 644(k) of
this title for such agency; and
(ii) the Administrator.
(E) The information reported pursuant to subparagraph (D) may be
limited to classes of items and services for which there are
substantial annual purchases.
(F) Such forecasts shall be available to small business concerns.
(13) For purposes of this subsection, the term "Indian tribe"
means any Indian tribe, band, nation, or other organized group or
community of Indians, including any Alaska Native village or
regional or village corporation (within the meaning of the Alaska
Native Claims Settlement Act [43 U.S.C. 1601 et seq.]) which -
(A) is recognized as eligible for the special programs and
services provided by the United States to Indians because of
their status as Indians, or
(B) is recognized as such by the State in which such tribe,
band, nation, group, or community resides.
(14)(A) A concern may not be awarded a contract under this
subsection as a small business concern unless the concern agrees
that -
(i) 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; and
(ii) 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).
(B) The Administrator may change the percentage under clause (i)
or (ii) of subparagraph (A) 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. A percentage established
under the preceding sentence may not differ from a percentage
established under section 644(o) of this title.
(C) The Administration shall establish, through public
rulemaking, requirements similar to those specified in subparagraph
(A) 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 subparagraph. The
percentage applicable to any such requirement shall be determined
in accordance with subparagraph (B), except that such a percentage
may not differ from a percentage established under section 644(o)
of this title for the same industry category.
(15) For purposes of this subsection, the term "Native Hawaiian
Organization" means any community service organization serving
Native Hawaiians in the State of Hawaii which -
(A) is a nonprofit corporation that has filed articles of
incorporation with the director (or the designee thereof) of the
Hawaii Department of Commerce and Consumer Affairs, or any
successor agency,
(B) is controlled by Native Hawaiians, and
(C) whose business activities will principally benefit such
Native Hawaiians.
(16)(A) The Administration shall award sole source contracts
under this section to any small business concern recommended by the
procuring agency offering the contract opportunity if -
(i) the Program Participant is determined to be a responsible
contractor with respect to performance of such contract
opportunity;
(ii) the award of such contract would be consistent with the
Program Participant's business plan; and
(iii) the award of the contract would not result in the Program
Participant exceeding the requirements established by section
636(j)(10)(I) of this title.
(B) To the maximum extent practicable, the Administration shall
promote the equitable geographic distribution of sole source
contracts awarded pursuant to this subsection.
(17)(A) An otherwise responsible business concern that is in
compliance with the requirements of subparagraph (B) shall not be
denied the opportunity to submit and have considered its offer for
any procurement contract for the supply of a product to be let
pursuant to this subsection or subsection (a) of section 644 of
this title solely because such concern is other than the actual
manufacturer or processor of the product to be supplied under the
contract.
(B) To be in compliance with the requirements referred to in
subparagraph (A), such a business concern shall -
(i) be primarily engaged in the wholesale or retail trade;
(ii) be a small business concern under the numerical size
standard for the Standard Industrial Classification Code assigned
to the contract solicitation on which the offer is being made;
(iii) be a regular dealer, as defined pursuant to section 35(a)
(!1) of title 41 (popularly referred to as the Walsh-Healey
Public Contracts Act), in the product to be offered the
Government or be specifically exempted from such section by
section 636(j)(13)(C) of this title; and
(iv) represent that it will supply the product of a domestic
small business manufacturer or processor, unless a waiver of such
requirement is granted -
(I) by the Administrator, after reviewing a determination by
the contracting officer that no small business manufacturer or
processor can reasonably be expected to offer a product meeting
the specifications (including period for performance) required
of an offeror by the solicitation; or
(II) by the Administrator for a product (or class of
products), after determining that no small business
manufacturer or processor is available to participate in the
Federal procurement market.
(18)(A) No person within the employ of the Administration shall,
during the term of such employment and for a period of two years
after such employment has been terminated, engage in any activity
or transaction specified in subparagraph (B) with respect to any
Program Participant during such person's term of employment, if
such person participated personally (either directly or indirectly)
in decision-making responsibilities relating to such Program
Participant or with respect to the administration of any assistance
provided to Program Participants generally under this subsection,
section 636(j)(10) of this title, or section 636(a)(20) of this
title.
(B) The activities and transactions prohibited by subparagraph
(A) include -
(i) the buying, selling, or receiving (except by inheritance)
of any legal or beneficial ownership of stock or any other
ownership interest or the right to acquire any such interest;
(ii) the entering into or execution of any written or oral
agreement (whether or not legally enforceable) to purchase or
otherwise obtain any right or interest described in clause (i);
or
(iii) the receipt of any other benefit or right that may be an
incident of ownership.
(C)(i) The employees designated in clause (ii) shall annually
submit a written certification to the Administration regarding
compliance with the requirements of this paragraph.
(ii) The employees referred to in clause (i) are -
(I) regional administrators;
(II) district directors;
(III) the Associate Administrator for Minority Small Business
and Capital Ownership Development;
(IV) employees whose principal duties relate to the award of
contracts or the provision of other assistance pursuant to this
subsection or section 636(j)(10) of this title; and
(V) such other employees as the Administrator may deem
appropriate.
(iii) Any present or former employee of the Administration who
violates this paragraph shall be subject to a civil penalty,
assessed by the Attorney General, that shall not exceed 300 per
centum of the maximum amount of gain such employee realized or
could have realized as a result of engaging in those activities and
transactions prescribed by subparagraph (B).
(iv) In addition to any other remedy or sanction provided for
under law or regulation, any person who falsely certifies pursuant
to clause (i) shall be subject to a civil penalty under the Program
Fraud Civil Remedies Act of 1986 (31 U.S.C. 3801-3812).
(19)(A) Any employee of the Administration who has authority to
take, direct others to take, recommend, or approve any action with
respect to any program or activity conducted pursuant to this
subsection or section 636(j) of this title, shall not, with respect
to any such action, exercise or threaten to exercise such authority
on the basis of the political activity or affiliation of any party.
Employees of the Administration shall expeditiously report to the
Inspector General of the Administration any such action for which
such employee's participation has been solicitated (!2) or
directed.
(B) Any employee who willfully and knowingly violates
subparagraph (A) shall be subject to disciplinary action which may
consist of separation from service, reduction in grade, suspension,
or reprimand.
(C) Subparagraph (A) shall not apply to any action taken as a
penalty or other enforcement of a violation of any law, rule, or
regulation prohibiting or restricting political activity.
(D) The prohibitions of subparagraph (A), and remedial measures
provided for under subparagraphs (B) and (C) with regard to such
prohibitions, shall be in addition to, and not in lieu of, any
other prohibitions, measures or liabilities that may arise under
any other provision of law.
(20)(A) Small business concerns participating in the Program
under section 636(j)(10) of this title and eligible to receive
contracts pursuant to this section shall semiannually report to
their assigned Business Opportunity Specialist the following:
(i) A listing of any agents, representatives, attorneys,
accountants, consultants, and other parties (other than
employees) receiving compensation to assist in obtaining a
Federal contract for such Program Participant.
(ii) The amount of compensation received by any person listed
under clause (i) during the relevant reporting period and a
description of the activities performed in return for such
compensation.
(B) The Business Opportunity Specialist shall promptly review and
forward such report to the Associate Administrator for Minority
Small Business and Capital Ownership Development. Any report that
raises a suspicion of improper activity shall be reported
immediately to the Inspector General of the Administration.
(C) The failure to submit a report pursuant to the requirements
of this subsection and applicable regulations shall be considered
"good cause" for the initiation of a termination proceeding
pursuant to section 636(j)(10)(F) of this title.
(21)(A) Subject to the provisions of subparagraph (B), a contract
(including options) awarded pursuant to this subsection shall be
performed by the concern that initially received such contract.
Notwithstanding the provisions of the preceding sentence, if the
owner or owners upon whom eligibility was based relinquish
ownership or control of such concern, or enter into any agreement
to relinquish such ownership or control, such contract or option
shall be terminated for the convenience of the Government, except
that no repurchase costs or other damages may be assessed against
such concerns due solely to the provisions of this subparagraph.
(B) The Administrator may, on a nondelegable basis, waive the
requirements of subparagraph (A) only if one of the following
conditions exist:
(i) When it is necessary for the owners of the concern to
surrender partial control of such concern on a temporary basis in
order to obtain equity financing.
(ii) The head of the contracting agency for which the contract
is being performed certifies that termination of the contract
would severely impair attainment of the agency's program
objectives or missions;
(iii) Ownership and control of the concern that is performing
the contract will pass to another small business concern that is
a program participant, but only if the acquiring firm would
otherwise be eligible to receive the award directly pursuant to
subsection (a) of this section;
(iv) The individuals upon whom eligibility was based are no
longer able to exercise control of the concern due to incapacity
or death; or
(v) When, in order to raise equity capital, it is necessary for
the disadvantaged owners of the concern to relinquish ownership
of a majority of the voting stock of such concern, but only if -
(I) such concern has exited the Capital Ownership Development
Program;
(II) the disadvantaged owners will maintain ownership of the
largest single outstanding block of voting stock (including
stock held by affiliated parties); and
(III) the disadvantaged owners will maintain control of daily
business operations.
(C) The Administrator may waive the requirements of subparagraph
(A) if -
(i) in the case of subparagraph (B) (i), (ii) and (iv), he is
requested to do so prior to the actual relinquishment of
ownership or control; and
(ii) in the case of subparagraph (B)(iii), he is requested to
do so as soon as possible after the incapacity or death occurs.
(D) Concerns performing contracts awarded pursuant to this
subsection shall be required to notify the Administration
immediately upon entering an agreement (either oral or in writing)
to transfer all or part of its stock or other ownership interest to
any other party.
(E) Notwithstanding any other provision of law, for the purposes
of determining ownership and control of a concern under this
section, any potential ownership interests held by investment
companies licensed under the Small Business Investment Act of 1958
[15 U.S.C. 661 et seq.] shall be treated in the same manner as
interests held by the individuals upon whom eligibility is based.
(b) Procurement and property disposal powers; determination of
small-business concerns
It shall also be the duty of the Administration and it is
empowered, whenever it determines such action is necessary -
(1)(A) to provide -
(i) technical, managerial, and informational aids to small
business concerns -
(I) by advising and counseling on matters in connection
with Government procurement and policies, principles, and
practices of good management;
(II) by cooperating and advising with -
(aa) voluntary business, professional, educational, and
other nonprofit organizations, associations, and
institutions (except that the Administration shall take
such actions as it determines necessary to ensure that such
cooperation does not constitute or imply an endorsement by
the Administration of the organization or its products or
services, and shall ensure that it receives appropriate
recognition in all printed materials); and
(bb) other Federal and State agencies;
(III) by maintaining a clearinghouse for information on
managing, financing, and operating small business
enterprises; and
(IV) by disseminating such information, including through
recognition events, and by other activities that the
Administration determines to be appropriate; and
(ii) through cooperation with a profit-making concern
(referred to in this paragraph as a "cosponsor"), training,
information, and education to small business concerns, except
that the Administration shall -
(I) take such actions as it determines to be appropriate to
ensure that -
(aa) the Administration receives appropriate recognition
and publicity;
(bb) the cooperation does not constitute or imply an
endorsement by the Administration of any product or service
of the cosponsor;
(cc) unnecessary promotion of the products or services of
the cosponsor is avoided; and
(dd) utilization of any one cosponsor in a marketing area
is minimized; and
(II) develop an agreement, executed on behalf of the
Administration by an employee of the Administration in
Washington, the District of Columbia, that provides, at a
minimum, that -
(aa) any printed material to announce the cosponsorship
or to be distributed at the cosponsored activity, shall be
approved in advance by the Administration;
(bb) the terms and conditions of the cooperation shall be
specified;
(cc) only minimal charges may be imposed on any small
business concern to cover the direct costs of providing the
assistance;
(dd) the Administration may provide to the cosponsorship
mailing labels, but not lists of names and addresses of
small business concerns compiled by the Administration;
(ee) all printed materials containing the names of both
the Administration and the cosponsor shall include a
prominent disclaimer that the cooperation does not
constitute or imply an endorsement by the Administration of
any product or service of the cosponsor; and
(ff) the Administration shall ensure that it receives
appropriate recognition in all cosponsorship printed
materials.
(B) To establish, conduct, and publicize, and to recruit,
select, and train volunteers for (and to enter into contracts,
grants, or cooperative agreements therefor), volunteer programs,
including a Service Corps of Retired Executives (SCORE) and an
Active Corps of Executive (ACE) for the purposes of subparagraph
(A); and to facilitate the implementation of such volunteer
programs the Administration may maintain at its headquarters and
pay the expenses of a team of volunteers subject to such
conditions and limitations as the Administration deems
appropriate: Provided, That any such payments made pursuant to
this subparagraph shall be effective only to such extent or in
such amounts as are provided in advance in appropriation Acts.
Notwithstanding any other provision of law, SCORE may solicit
cash and in-kind contributions from the private sector to be used
to carry out its functions under this chapter, and may use
payments made by the Administration pursuant to this subparagraph
for such solicitation.
(C) To allow any individual or group of persons participating
with it in furtherance of the purposes of subparagraphs (A) and
(B) to use the Administration's office facilities and related
material and services as the Administration deems appropriate,
including clerical and stenographic services:
(i) such volunteers, while carrying out activities under this
paragraph shall be deemed Federal employees for the purposes of
the Federal tort claims provisions in title 28; and for the
purposes of subchapter I of chapter 81 of title 5 (relative to
compensation to Federal employees for work injuries) shall be
deemed civil employees of the United States within the meaning
of the term "employee" as defined in section 8101 of title 5,
and the provisions of that subchapter shall apply except that
in computing compensation benefits for disability or death, the
monthly pay of a volunteer shall be deemed that received under
the entrance salary for a grade GS-11 employee;
(ii) the Administrator is authorized to reimburse such
volunteers for all necessary out-of-pocket expenses incident to
their provision of services under this chapter, or in
connection with attendance at meetings sponsored by the
Administration, or for the cost of malpractice insurance, as
the Administrator shall determine, in accordance with
regulations which he or she shall prescribe, and, while they
are carrying out such activities away from their homes or
regular places of business, for travel expenses (including per
diem in lieu of subsistence) as authorized by section 5703 of
title 5 for individuals serving without pay; and
(iii) such volunteers shall in no way provide services to a
client of such Administration with a delinquent loan
outstanding, except upon a specific request signed by such
client for assistance in connection with such matter.
(D) Notwithstanding any other provision of law, no payment for
supportive services or reimbursement of out-of-pocket expenses
made to persons serving pursuant to this paragraph shall be
subject to any tax or charge or be treated as wages or
compensation for the purposes of unemployment, disability,
retirement, public assistance, or similar benefit payments, or
minimum wage laws.
(E) In carrying out its functions under subparagraph (A), to
make grants (including contracts and cooperative agreements) to
any public or private institution of higher education for the
establishment and operation of a small business institute, which
shall be used to provide business counseling and assistance to
small business concerns through the activities of students
enrolled at the institution, which students shall be entitled to
receive educational credits for their activities.
(F) Notwithstanding any other provision of law and pursuant to
regulations which the Administrator shall prescribe, counsel may
be employed and counsel fees, court costs, bail, and other
expenses incidental to the defense of volunteers may be paid in
judicial or administrative proceedings arising directly out of
the performance of activities pursuant to this paragraph, to
which volunteers have been made parties.
(G) In carrying out its functions under this chapter and to
carry out the activities authorized by title IV of the Women's
Business Ownership Act of 1988 [15 U.S.C. 7101 et seq.], the
Administration is authorized to accept, in the name of the
Administration, and employ or dispose of in furtherance of the
purposes of this chapter, any money or property, real, personal,
or mixed, tangible, or intangible, received by gift, devise,
bequest, or otherwise; and, further, to accept gratuitous
services and facilities.
(2) to make a complete inventory of all productive facilities
of small-business concerns or to arrange for such inventory to be
made by any other governmental agency which has the facilities.
In making any such inventory, the appropriate agencies in the
several States may be requested to furnish an inventory of the
productive facilities of small-business concerns in each
respective State if such an inventory is available or in
prospect;
(3) to coordinate and to ascertain the means by which the
productive capacity of small-business concerns can be most
effectively utilized;
(4) to consult and cooperate with officers of the Government
having procurement or property disposal powers, in order to
utilize the potential productive capacity of plants operated by
small-business concerns;
(5) to obtain information as to methods and practices which
Government prime contractors utilize in letting subcontracts and
to take action to encourage the letting of subcontracts by prime
contractors to small-business concerns at prices and on
conditions and terms which are fair and equitable;
(6) to determine within any industry the concerns, firms,
persons, corporations, partnerships, cooperatives, or other
business enterprises which are to be designated "small-business
concerns" for the purpose of effectuating the provisions of this
chapter. To carry out this purpose the Administrator, when
requested to do so, shall issue in response to each such request
an appropriate certificate certifying an individual concern as a
"small-business concern" in accordance with the criteria
expressed in this chapter. Any such certificate shall be subject
to revocation when the concern covered thereby ceases to be a
"small-business concern". Offices of the Government having
procurement or lending powers, or engaging in the disposal of
Federal property or allocating materials or supplies, or
promulgating regulations affecting the distribution of materials
or supplies, shall accept as conclusive the Administration's
determination as to which enterprises are to be designated
"small-business concerns", as authorized and directed under this
paragraph;
(7)(A) To certify to Government procurement officers, and
officers engaged in the sale and disposal of Federal property,
with respect to all elements of responsibility, including, but
not limited to, capability, competency, capacity, credit,
integrity, perseverance, and tenacity, of any small business
concern or group of such concerns to receive and perform a
specific Government contract. A Government procurement officer or
an officer engaged in the sale and disposal of Federal property
may not, for any reason specified in the preceding sentence
preclude any small business concern or group of such concerns
from being awarded such contract without referring the matter for
a final disposition to the Administration.
(B) If a Government procurement officer finds that an otherwise
qualified small business concern may be ineligible due to the
provisions of section 35(a) (!3) of title 41, he shall notify the
Administration in writing of such finding. The Administration
shall review such finding and shall either dismiss it and certify
the small business concern to be an eligible Government
contractor for a specific Government contract or if it concurs in
the finding, forward the matter to the Secretary of Labor for
final disposition, in which case the Administration may certify
the small business concern only if the Secretary of Labor finds
the small business concern not to be in violation.
(C) In any case in which a small business concern or group of
such concerns has been certified by the Administration pursuant
to (A) or (B) to be a responsible or eligible Government
contractor as to a specific Government contract, the officers of
the Government having procurement or property disposal powers are
directed to accept such certification as conclusive, and shall
let such Government contract to such concern or group of concerns
without requiring it to meet any other requirement of
responsibility or eligibility. Notwithstanding the first sentence
of this subparagraph, the Administration may not establish an
exemption from referral or notification or refuse to accept a
referral or notification from a Government procurement officer
made pursuant to subparagraph (A) or (B) of this paragraph, but
nothing in this paragraph shall require the processing of an
application for certification if the small business concern to
which the referral pertains declines to have the application
processed.
(8) to obtain from any Federal department, establishment, or
agency engaged in procurement or in the financing of procurement
or production such reports concerning the letting of contracts
and subcontracts and the making of loans to business concerns as
it may deem pertinent in carrying out its functions under this
chapter;
(9) to obtain from any Federal department, establishment, or
agency engaged in the disposal of Federal property such reports
concerning the solicitation of bids, time of sale, or otherwise
as it may deem pertinent in carrying out its functions under this
chapter;
(10) to obtain from suppliers of materials information
pertaining to the method of filling orders and the bases for
allocating their supply, whenever it appears that any small
business is unable to obtain materials from its normal sources;
(11) to make studies and recommendations to the appropriate
Federal agencies to insure that a fair proportion of the total
purchases and contracts for property and services for the
Government be placed with small-business enterprises, to insure
that a fair proportion of Government contracts for research and
development be placed with small-business concerns, to insure
that a fair proportion of the total sales of Government property
be made to small-business concerns, and to insure a fair and
equitable share of materials, supplies, and equipment to
small-business concerns;
(12) to consult and cooperate with all Government agencies for
the purpose of insuring that small-business concerns shall
receive fair and reasonable treatment from such agencies;
(13) to establish such advisory boards and committees as may be
necessary to achieve the purposes of this chapter and of the
Small Business Investment Act of 1958 [15 U.S.C. 661 et seq.]; to
call meetings of such boards and committees from time to time; to
pay the transportation expenses and a per diem allowance in
accordance with section 5703 of title 5 to the members of such
boards and committees for travel and subsistence expenses
incurred at the request of the Administration in connection with
travel to points more than fifty miles distant from the homes of
such members in attending the meeting of such boards and
committees; and to rent temporarily, within the District of
Columbia or elsewhere, such hotel or other accommodations as are
needed to facilitate the conduct of such meetings;
(14) to provide at the earliest practicable time such
information and assistance as may be appropriate, including
information concerning eligibility for loans under section
636(b)(3) of this title, to local public agencies (as defined in
section 110(h) of the Housing Act of 1949 [42 U.S.C. 1460(h)])
and to small-business concerns to be displaced by federally aided
urban renewal projects in order to assist such small-business
concerns in reestablishing their operations;
(15) to disseminate, without regard to the provisions of
section 3204 of title 39 data and information, in such form as it
shall deem appropriate, to public agencies, private
organizations, and the general public;
(16) to make studies of matters materially affecting the
competitive strength of small business, and of the effect on
small business of Federal laws, programs, and regulations, and to
make recommendations to the appropriate Federal agency or
agencies for the adjustment of such programs and regulations to
the needs of small business; and
(17) to make grants to, and enter into contracts and
cooperative agreements with, educational institutions, private
businesses, veterans' nonprofit community-based organizations,
and Federal, State, and local departments and agencies for the
establishment and implementation of outreach programs for
disabled veterans (as defined in section 4211(3) of title 38).
(c) [Reserved]
(d) Performance of contracts by small business concerns; inclusion
of required contract clause; subcontracting plans; contract
eligibility; incentives; breach of contract; review; report to
Congress
(1) It is the policy of the United States that small business
concerns, small business concerns owned and controlled by veterans,
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, shall have the maximum practicable opportunity
to participate in the performance of contracts let by any Federal
agency, including contracts and subcontracts for subsystems,
assemblies, components, and related services for major systems. It
is further the policy of the United States that its prime
contractors establish procedures to ensure the timely payment of
amounts due pursuant to the terms of their subcontracts with small
business concerns, small business concerns owned and controlled by
veterans, 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.
(2) The clause stated in paragraph (3) shall be included in all
contracts let by any Federal agency except any contract which -
(A) does not exceed the simplified acquisition threshold;
(B) including all subcontracts under such contracts will be
performed entirely outside of any State, territory, or possession
of the United States, the District of Columbia, or the
Commonwealth of Puerto Rico; or
(C) is for services which are personal in nature.
(3) The clause required by paragraph (2) shall be as follows:
"(A) It is the policy of the United States that small business
concerns, small business concerns owned and controlled by
veterans, 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 shall have the
maximum practicable opportunity to participate in the performance
of contracts let by any Federal agency, including contracts and
subcontracts for subsystems, assemblies, components, and related
services for major systems. It is further the policy of the
United States that its prime contractors establish procedures to
ensure the timely payment of amounts due pursuant to the terms of
their subcontracts with small business concerns, small business
concerns owned and controlled by veterans, 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.
"(B) The contractor hereby agrees to carry out this policy in
the awarding of subcontracts to the fullest extent consistent
with the efficient performance of this contract. The contractor
further agrees to cooperate in any studies or surveys as may be
conducted by the United States Small Business Administration or
the awarding agency of the United States as may be necessary to
determine the extent of the contractor's compliance with this
clause.
"(C) As used in this contract, the term 'small business
concern' shall mean a small business as defined pursuant to
section 3 of the Small Business Act and relevant regulations
promulgated pursuant thereto. The term 'small business concern
owned and controlled by socially and economically disadvantaged
individuals' shall mean a small business concern -
"(i) which is at least 51 per centum owned by one or more
socially and economically disadvantaged individuals; or, in the
case of any publicly owned business, at least 51 per centum of
the stock of which is owned by one or more socially and
economically disadvantaged individuals; and
"(ii) whose management and daily business operations are
controlled by one or more of such individuals.
"The contractor shall presume that socially and economically
disadvantaged individuals include Black Americans, Hispanic
Americans, Native Americans, Asian Pacific Americans, and other
minorities, or any other individual found to be disadvantaged by
the Administration pursuant to section 8(a) of the Small Business
Act.
"(D) The term 'small business concern owned and controlled by
women' shall mean a small business concern -
"(i) which is at least 51 per centum owned by one or more
women; or, in the case of any publicly owned business, at least
51 per centum of the stock of which is owned by one or more
women; and
"(ii) whose management and daily business operations are
controlled by one or more women.
"(E) The term 'small business concern owned and controlled by
veterans' shall mean a small business concern -
"(i) which is at least 51 per centum owned by one or more
eligible veterans; or, in the case of any publicly owned
business, at least 51 per centum of the stock of which is owned
by one or more veterans; and
"(ii) whose management and daily business operations are
controlled by such veterans. The contractor shall treat as
veterans all individuals who are veterans within the meaning of
the term under section 3(q) of the Small Business Act.
"(F) Contractors acting in good faith may rely on written
representations by their subcontractors regarding their status as
either a small business concern, small business concern owned and
controlled by veterans, small business concern owned and
controlled by service-disabled veterans, a small business concern
owned and controlled by socially and economically disadvantaged
individuals, or a small business concern owned and controlled by
women.
"(G) In this contract, the term 'qualified HUBZone small
business concern' has the meaning given that term in section 3(p)
of the Small Business Act."
(4)(A) Each solicitation of an offer for a contract to be let by
a Federal agency which is to be awarded pursuant to the negotiated
method of procurement and which may exceed $1,000,000, in the case
of a contract for the construction of any public facility, or
$500,000, in the case of all other contracts, shall contain a
clause notifying potential offering companies of the provisions of
this subsection relating to contracts awarded pursuant to the
negotiated method of procurement.
(B) Before the award of any contract to be let, or any amendment
or modification to any contract let, by any Federal agency which -
(i) is to be awarded, or was let, pursuant to the negotiated
method of procurement,
(ii) is required to include the clause stated in paragraph (3),
(iii) may exceed $1,000,000 in the case of a contract for the
construction of any public facility, or $500,000 in the case of
all other contracts, and
(iv) which offers subcontracting possibilities,
the apparent successful offeror shall negotiate with the
procurement authority a subcontracting plan which incorporates the
information prescribed in paragraph (6). The subcontracting plan
shall be included in and made a material part of the contract.
(C) If, within the time limit prescribed in regulations of the
Federal agency concerned, the apparent successful offeror fails to
negotiate the subcontracting plan required by this paragraph, such
offeror shall become ineligible to be awarded the contract. Prior
compliance of the offeror with other such subcontracting plans
shall be considered by the Federal agency in determining the
responsibility of that offeror for the award of the contract.
(D) No contract shall be awarded to any offeror unless the
procurement authority determines that the plan to be negotiated by
the offeror pursuant to this paragraph provides the maximum
practicable opportunity for small business concerns, qualified
HUBZone small business concerns, small business concerns owned and
controlled by veterans, small business concerns owned and
controlled by service-disabled veterans, 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 the contract.
(E) Notwithstanding any other provision of law, every Federal
agency, in order to encourage subcontracting opportunities for
small business concerns, small business concerns owned and
controlled by veterans, small business concerns owned and
controlled by service-disabled veterans, qualified HUBZone small
business concerns, and small business concerns owned and controlled
by the socially and economically disadvantaged individuals as
defined in paragraph (3) of this subsection and for small business
concerns owned and controlled by women, is hereby authorized to
provide such incentives as such Federal agency may deem appropriate
in order to encourage such subcontracting opportunities as may be
commensurate with the efficient and economical performance of the
contract: Provided, That, this subparagraph shall apply only to
contracts let pursuant to the negotiated method of procurement.
(F)(i) Each contract subject to the requirements of this
paragraph or paragraph (5) shall contain a clause for the payment
of liquidated damages upon a finding that a prime contractor has
failed to make a good faith effort to comply with the requirements
imposed on such contractor by this subsection.
(ii) The contractor shall be afforded an opportunity to
demonstrate a good faith effort regarding compliance prior to the
contracting officer's final decision regarding the imposition of
damages and the amount thereof. The final decision of a contracting
officer regarding the contractor's obligation to pay such damages,
or the amounts thereof, shall be subject to the Contract Disputes
Act of 1978 (41 U.S.C. 601-613).
(iii) Each agency shall ensure that the goals offered by the
apparent successful bidder or offeror are attainable in relation to
-
(I) the subcontracting opportunities available to the
contractor, commensurate with the efficient and economical
performance of the contract;
(II) the pool of eligible subcontractors available to fulfill
the subcontracting opportunities; and
(III) the actual performance of such contractor in fulfilling
the subcontracting goals specified in prior plans.
(G) The following factors shall be designated by the Federal
agency as significant factors for purposes of evaluating offers for
a bundled contract where the head of the agency determines that the
contract offers a significant opportunity for subcontracting:
(i) A factor that is based on the rate provided under the
subcontracting plan for small business participation in the
performance of the contract.
(ii) For the evaluation of past performance of an offeror, a
factor that is based on the extent to which the offeror attained
applicable goals for small business participation in the
performance of contracts.
(5)(A) Each solicitation of a bid for any contract to be let, or
any amendment or modification to any contract let, by any Federal
agency which -
(i) is to be awarded pursuant to the formal advertising method
of procurement,
(ii) is required to contain the clause stated in paragraph (3)
of this subsection,
(iii) may exceed $1,000,000 in the case of a contract for the
construction of any public facility, or $500,000, in the case of
all other contracts, and
(iv) offers subcontracting possibilities,
shall contain a clause requiring any bidder who is selected to be
awarded a contract to submit to the Federal agency concerned a
subcontracting plan which incorporates the information prescribed
in paragraph (6).
(B) If, within the time limit prescribed in regulations of the
Federal agency concerned, the bidder selected to be awarded the
contract fails to submit the subcontracting plan required by this
paragraph, such bidder shall become ineligible to be awarded the
contract. Prior compliance of the bidder with other such
subcontracting plans shall be considered by the Federal agency in
determining the responsibility of such bidder for the award of the
contract. The subcontracting plan of the bidder awarded the
contract shall be included in and made a material part of the
contract.
(6) Each subcontracting plan required under paragraph (4) or (5)
shall include -
(A) percentage goals for the utilization as subcontractors of
small business concerns, small business concerns owned and
controlled by veterans, 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;
(B) the name of an individual within the employ of the offeror
or bidder who will administer the subcontracting program of the
offeror or bidder and a description of the duties of such
individual;
(C) a description of the efforts the offeror or bidder will
take to assure that small business concerns, small business
concerns owned and controlled by veterans, 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 will have an equitable opportunity to compete
for subcontracts;
(D) assurances that the offeror or bidder will include the
clause required by paragraph (2) of this subsection in all
subcontracts which offer further subcontracting opportunities,
and that the offeror or bidder will require all subcontractors
(except small business concerns) who receive subcontracts in
excess of $1,000,000 in the case of a contract for the
construction of any public facility, or in excess of $500,000 in
the case of all other contracts, to adopt a plan similar to the
plan required under paragraph (4) or (5);
(E) assurances that the offeror or bidder will submit such
periodic reports and cooperate in any studies or surveys as may
be required by the Federal agency or the Administration in order
to determine the extent of compliance by the offeror or bidder
with the subcontracting plan; and
(F) a recitation of the types of records the successful offeror
or bidder will maintain to demonstrate procedures which have been
adopted to comply with the requirements and goals set forth in
this plan, including the establishment of source lists of small
business concerns, small business concerns owned and controlled
by veterans, 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 efforts to
identify and award subcontracts to such small business concerns.
(7) The provisions of paragraphs (4), (5), and (6) shall not
apply to offerors or bidders who are small business concerns.
(8) The failure of any contractor or subcontractor to comply in
good faith with -
(A) the clause contained in paragraph (3) of this subsection,
or
(B) any plan required of such contractor pursuant to the
authority of this subsection to be included in its contract or
subcontract,
shall be a material breach of such contract or subcontract.
(9) Nothing contained in this subsection shall be construed to
supersede the requirements of Defense Manpower Policy Number 4A
(32A CFR Chap. 1) or any successor policy.
(10) In the case of contracts within the provisions of paragraphs
(4), (5), and (6), the Administration is authorized to -
(A) assist Federal agencies and businesses in complying with
their responsibilities under the provisions of this subsection,
including the formulation of subcontracting plans pursuant to
paragraph (4);
(B) review any solicitation for any contract to be let pursuant
to paragraphs (4) and (5) to determine the maximum practicable
opportunity for small business concerns, small business concerns
owned and controlled by veterans, 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 as subcontractors in the performance of any
contract resulting from any solicitation, and to submit its
findings, which shall be advisory in nature, to the appropriate
Federal agency; and
(C) evaluate compliance with subcontracting plans, either on a
contract-by-contract basis, or in the case contractors having
multiple contracts, on an aggregate basis.
(11) For purposes of determining the attainment of a subcontract
utilization goal under any subcontracting plan entered into with
any executive agency pursuant to this subsection, a mentor firm
providing development assistance to a protege firm under the pilot
Mentor-Protege Program established pursuant to section 831 of the
National Defense Authorization Act for Fiscal Year 1991 (Public Law
101-510; 10 U.S.C. 2301 note [2302 note]) shall be granted credit
for such assistance in accordance with subsection (g) of such
section.
(e) Covered executive agency activities; procurement notice;
publication; time limitations
(1) Except as provided in subsection (g) of this section -
(A) an executive agency intending to -
(i) solicit bids or proposals for a contract for property or
services for a price expected to exceed $25,000; or
(ii) place an order, expected to exceed $25,000, under a
basic agreement, basic ordering agreement, or similar
arrangement,
shall publish a notice described in subsection (f) of this
section;
(B) an executive agency intending to solicit bids or proposals
for a contract for property or services shall post, for a period
of not less than ten days, in a public place at the contracting
office issuing the solicitation a notice of solicitation
described in subsection (f) of this section -
(i) in the case of an executive agency other than the
Department of Defense, if the contract is for a price expected
to exceed $10,000, but not to exceed $25,000; and
(ii) in the case of the Department of Defense, if the
contract is for a price expected to exceed $5,000, but not to
exceed $25,000;
(C) an executive agency awarding a contract for property or
services for a price exceeding $100,000, or placing an order
referred to in clause (A)(ii) exceeding $100,000, shall furnish
for publication by the Secretary of Commerce a notice announcing
the award or order if there is likely to be any subcontract under
such contract or order.
(2)(A) A notice of solicitation required to be published under
paragraph (1) may be published -
(i) by electronic means that meet the accessibility
requirements under section 416(a)(7) of title 41; or
(ii) by the Secretary of Commerce in the Commerce Business
Daily.
(B) The Secretary of Commerce shall promptly publish in the
Commerce Business Daily each notice or announcement received under
this subsection for publication by that means.
(3) Whenever an executive agency is required by paragraph (1)(A)
to publish a notice of solicitation, such executive agency may not
-
(A) issue the solicitation earlier than 15 days after the date
on which the notice is published; or
(B) in the case of a contract or order estimated to be greater
than the simplified acquisition threshold, establish a deadline
for the submission of all bids or proposals in response to the
notice required by paragraph (1)(A) that -
(i) in the case of an order under a basic agreement, basic
ordering agreement, or similar arrangement, is earlier than the
date 30 days after the date the notice required by paragraph
(1)(A)(ii) is published;
(ii) in the case of a solicitation for research and
development, is earlier than the date 45 days after the date
the notice required by paragraph (1)(A)(i) is published; or
(iii) in any other case, is earlier than the date 30 days
after the date the solicitation is issued.
(f) Contents of notice
Each notice of solicitation required by subparagraph (A) or (B)
of subsection (e)(1) of this section shall include -
(1) an accurate description of the property or services to be
contracted for, which description (A) shall not be unnecessarily
restrictive of competition, and (B) shall include, as
appropriate, the agency nomenclature, National Stock Number or
other part number, and a brief description of the item's form,
fit, or function, physical dimensions, predominant material of
manufacture, or similar information that will assist a
prospective contractor to make an informed business judgment as
to whether a copy of the solicitation should be requested;
(2) provisions that -
(A) state whether the technical data required to respond to
the solicitation will not be furnished as part of such
solicitation, and identify the source in the Government, if
any, from which the technical data may be obtained; and
(B) state whether an offeror, its product, or service must
meet a qualification requirement in order to be eligible for
award, and, if so, identify the office from which a
qualification requirement may be obtained;
(3) the name, business address, and telephone number of the
contracting officer;
(4) a statement that all responsible sources may submit a bid,
proposal, or quotation (as appropriate) which shall be considered
by the agency;
(5) in the case of a procurement using procedures other than
competitive procedures, a statement of the reason justifying the
use of such procedures and the identity of the intended source;
and
(6) in the case of a contract in an amount estimated to be
greater than $25,000 but not greater than the simplified
acquisition threshold -
(A) a description of the procedures to be used in awarding
the contract; and
(B) a statement specifying the periods for prospective
offerors and the contracting officer to take the necessary
preaward and award actions.
(g) Exempted, etc., activities of executive agency
(1) A notice is not required under subsection (e)(1) of this
section if -
(A) the proposed procurement is for an amount not greater than
the simplified acquisition threshold and is to be conducted by -
(i) using widespread electronic public notice of the
solicitation in a form that allows convenient and universal
user access through a single, Government-wide point of entry;
and
(ii) permitting the public to respond to the solicitation
electronically.
(B) the notice would disclose the executive agency's needs and
the disclosure of such needs would compromise the national
security;
(C) the proposed procurement would result from acceptance of -
(i) any unsolicited proposal that demonstrates a unique and
innovative research concept and the publication of any notice
of such unsolicited research proposal would disclose the
originality of thought or innovativeness of the proposal or
would disclose proprietary information associated with the
proposal; or
(ii) a proposal submitted under section 638 of this title;
(D) the procurement is made against an order placed under a
requirements contract;
(E) the procurement is made for perishable subsistence
supplies;
(F) the procurement is for utility services, other than
telecommunication services, and only one source is available; or
(G) the procurement is for the services of an expert for use in
any litigation or dispute (including preparation for any
foreseeable litigation or dispute) that involves or could involve
the Federal Government in any trial, hearing, or proceeding
before any court, administrative tribunal, or agency, or in any
part of an alternative dispute resolution process, whether or not
the expert is expected to testify.
(2) The requirements of subsection (a)(1)(A) of this section do
not apply to any procurement under conditions described in
paragraph (2), (3), (4), (5), or (7) of section 303(c) of the
Federal Property and Administrative Services Act of 1949 (41 U.S.C.
253(c)) or paragraph (2), (3), (4), (5), or (7) of section 2304(c)
of title 10.
(3) The requirements of subsection (a)(1)(A) of this section
shall not apply in the case of any procurement for which the head
of the executive agency makes a determination in writing, after
consultation with the Administrator for Federal Procurement Policy
and the Administrator of the Small Business Administration, that it
is not appropriate or reasonable to publish a notice before issuing
a solicitation.
(h) Award of contracts; procedures other than competitive ones;
exceptions
(1) An executive agency may not award a contract using procedures
other than competitive procedures unless -
(A) except as provided in paragraph (2), a written
justification for the use of such procedures has been approved -
(i) in the case of a contract for an amount exceeding
$100,000 (but equal to or less than $1,000,000), by the
advocate for competition for the procuring activity (without
further delegation);
(ii) in the case of a contract for an amount exceeding
$1,000,000 (but equal to or less than $10,000,000), by the head
of the procuring activity or a delegate who, if a member of the
Armed Forces, is a general or flag officer, or, if a civilian,
is serving in a position in grade GS-16 or above under the
General Schedule (or in a comparable or higher position under
another schedule); or
(iii) in the case of a contract for an amount exceeding
$10,000,000, by the senior procurement executive of the agency
designated pursuant to section 414(3) of title 41 (without
further delegation); and
(B) all other requirements applicable to the use of such
procedures under title III of the Federal Property and
Administrative Services Act of 1949 (41 U.S.C. 251 et seq.) or
chapter 137 of title 10, as appropriate, have been satisfied.
(2) The same exceptions as are provided in section 303(f)(2) of
the Federal Property and Administrative Services Act of 1949 (41
U.S.C. 253(f)(2)) or section 2304(f)(2) of title 10 shall apply
with respect to the requirements of paragraph (1)(A) of this
subsection in the same manner as such exceptions apply to the
requirements of section 303(f)(1) of such Act or section 2304(f)(1)
of such title, as appropriate.
(i) Availability; complete solicitation package; fees
An executive agency shall make available to any business concern,
or the authorized representative of such concern, the complete
solicitation package for any on-going procurement announced
pursuant to a notice under subsection (e) of this section. An
executive agency may require the payment of a fee, not exceeding
the actual cost of duplication, for a copy of such package.
(j) "Executive agency" defined
For purposes of this section, the term "executive agency" has the
meaning provided such term in section 403(1) of title 41.
(k) Notices of subcontracting opportunities
(1) In general
Notices of subcontracting opportunities may be submitted for
publication in the Commerce Business Daily by -
(A) a business concern awarded a contract by an executive
agency subject to subsection (e)(1)(C) of this section; and
(B) a business concern that is a subcontractor or supplier
(at any tier) to such contractor having a subcontracting
opportunity in excess of $10,000.
(2) Content of notice
The notice of a subcontracting opportunity shall include -
(A) a description of the business opportunity that is
comparable to the description specified in paragraphs (1), (2),
(3), and (4) of subsection (f) of this section; and
(B) the due date for receipt of offers.
(l) Management assistance for small businesses affected by military
operations
The Administration shall utilize, as appropriate, its
entrepreneurial development and management assistance programs,
including programs involving State or private sector partners, to
provide business counseling and training to any small business
concern adversely affected by the deployment of units of the Armed
Forces of the United States in support of a period of military
conflict (as defined in section 636(n)(1) of this title).
(m) Procurement program for women-owned small business concerns
(1) Definitions
In this subsection, the following definitions apply:
(A) Contracting officer
The term "contracting officer" has the meaning given such
term in section 423(f)(5) of title 41.
(B) Small business concern owned and controlled by women
The term "small business concern owned and controlled by
women" has the meaning given such term in section 632(n) of
this title, except that ownership shall be determined without
regard to any community property law.
(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) each of the concerns is not less than 51 percent owned by
one or more women who are economically disadvantaged (and such
ownership is determined without regard to any community
property law);
(B) the contracting officer has a reasonable expectation that
two or more small business concerns owned and controlled by
women will submit offers for the contract;
(C) the contract is for the procurement of goods or services
with respect to an industry identified by the Administrator
pursuant to paragraph (3);
(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) 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.
(3) Waiver
With respect to a small business concern owned and controlled
by women, the Administrator may waive subparagraph (2)(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.
(4) Identification of industries
The Administrator shall conduct a study to identify industries
in which small business concerns owned and controlled by women
are underrepresented with respect to Federal procurement
contracting.
(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)); 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).
(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).
(C) Penalties
In addition to the penalties described in section 645(d) of
this title, any small business concern that is determined by
the Administrator to have misrepresented the status of that
concern as a small business concern owned and controlled by
women for purposes of this subsection, shall be subject to -
(i) section 1001 of title 18; and
(ii) sections 3729 through 3733 of title 31.
(6) Provision of data
Upon the request of the Administrator, the head of any Federal
department or agency shall promptly provide to the Administrator
such information as the Administrator determines to be necessary
to carry out this subsection.
(n) Business grants and cooperative agreements
(1) In general
In accordance with this subsection, the Administrator may make
grants to and enter into cooperative agreements with any
coalition of private entities, public entities, or any
combination of private and public entities -
(A) to expand business-to-business relationships between
large and small businesses; and
(B) to provide businesses, directly or indirectly, with
online information and a database of companies that are
interested in mentor-protege programs or community-based,
statewide, or local business development programs.
(2) Matching requirement
Subject to subparagraph (B), the Administrator may make a grant
to a coalition under paragraph (1) only if the coalition provides
for activities described in paragraph (1)(A) or (1)(B) an amount,
either in kind or in cash, equal to the grant amount.
(3) Authorization of appropriations
There is authorized to be appropriated to carry out this
subsection $6,600,000, to remain available until expended, for
each of fiscal years 2001 through 2006.
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