1994 US Code
Title 15 - COMMERCE AND TRADE
CHAPTER 14A - AID TO SMALL BUSINESS
Sec. 644 - Awards or contracts

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§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, 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, or (4) why construction cannot be procured as separate discrete projects. 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 four-digit standard industrial classification codes contained in the Standard Industrial Classification Manual published 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 ,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), (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 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 20 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 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 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,,1 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 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 socially and economically disadvantaged individuals and participation 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 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. 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 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 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, 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 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 ,500 but not greater than 0,000 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 0,000 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 (Public Law 100–656; 15 U.S.C. 644 note), or section 7102 of the Federal Acquisition Streamlining Act of 1994.

(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) 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,

(6) 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,

(7) 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,

(8) 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

(9) 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 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).

(Pub. L. 85–536, §2[15], July 18, 1958, 72 Stat. 395; Pub. L. 95–89, title V, §502, Aug. 4, 1977, 91 Stat. 562; Pub. L. 95–507, title II, §§221, 232, 233, Oct. 24, 1978, 92 Stat. 1770, 1772; Pub. L. 96–302, title I, §§116, 117, July 2, 1980, 94 Stat. 839; Pub. L. 98–577, title IV, §403(a), Oct. 30, 1984, 98 Stat. 3080; Pub. L. 99–272, title XVIII, §18003(a), Apr. 7, 1986, 100 Stat. 363; Pub. L. 99–500, §101(c) [title X, §§903(d), 921(a), (b)(1), (c)(2)–(e), 922(c)], Oct. 18, 1986, 100 Stat. 1783–82, 1783–132, 1783–147 to 1783–149, 1783–152, and Pub. L. 99–591, §101(c) [title X, §§903(d), 921(a), (b)(1), (c)(2)–(e), 922(c)], Oct. 30, 1986, 100 Stat. 3341–82, 3341–132, 3341–147 to 3341–149, 3341–152; Pub. L. 99–661, div. A, title IX, formerly title IV, §§903(d), 921(a), (b)(1), (c)(2)–(e), 922(c), Nov. 14, 1986, 100 Stat. 3912, 3926–3928, 3932, renumbered title IX, Pub. L. 100–26, §3(5), Apr. 21, 1987, 101 Stat. 273; Pub. L. 100–26, §10(a)(1), (b)(1), Apr. 21, 1987, 101 Stat. 288; Pub. L. 100–180, div. A, title VIII, §809(a)–(c), Dec. 4, 1987, 101 Stat. 1130; Pub. L. 100–496, §12, Oct. 17, 1988, 102 Stat. 2465; Pub. L. 100–590, title I, §§110, 133(a), Nov. 3, 1988, 102 Stat. 2994, 3005; Pub. L. 100–656, title V, §§502, 503, title VI, §§601, 603, Nov. 15, 1988, 102 Stat. 3881, 3887, 3888; Pub. L. 101–37, §§19, 21, June 15, 1989, 103 Stat. 74, 75; Pub. L. 101–510, div. A, title VIII, §806(e)(3), Nov. 5, 1990, 104 Stat. 1593; Pub. L. 101–574, title II, §208, Nov. 15, 1990, 104 Stat. 2820; Pub. L. 102–190, div. A, title VIII, §806(d), Dec. 5, 1991, 105 Stat. 1419; Pub. L. 102–366, title II, §232(b), Sept. 4, 1992, 106 Stat. 1002; Pub. L. 102–484, div. A, title VIII, §801(h)(8), Oct. 23, 1992, 106 Stat. 2446; Pub. L. 102–569, title IX, §911(b), Oct. 29, 1992, 106 Stat. 4486; Pub. L. 103–355, title IV, §4004, title VII, §§7101(a), 7106(a), Oct. 13, 1994, 108 Stat. 3338, 3367, 3374; Pub. L. 103–403, title III, §305, Oct. 22, 1994, 108 Stat. 4189.)

References in Text

Section 7102 of the Federal Acquisition Streamlining Act of 1994, referred to in subsec. (j)(3), is section 7102 of Pub. L. 103–355, which is set out below.

Codification

Pub. L. 99–591 is a corrected version of Pub. L. 99–500.

Prior Provisions

Prior similar provisions were contained in section 214 of act July 30, 1953, ch. 282, title II, 67 Stat. 238, as amended by act Aug. 9, 1955, ch. 628, §9, 69 Stat. 551, which was previously classified to section 643 of this title. The provisions of section 215 of act July 30, 1953, formerly classified to this section, were transferred to section 2[10] of Pub. L. 85–536, and are classified to section 639 of this title. See Codification note set out under section 631 of this title.

Amendments

1994—Subsec. (c)(2)(A). Pub. L. 103–403, §305(1), amended subpar. (A) generally. Prior to amendment, subpar. (A) read as follows: “During each of fiscal years 1989 through 1993, public or private organizations for the handicapped shall be eligible to participate in programs authorized under this section in an aggregate amount for each year as follows: In 1989 not more than ,000,000, in 1990 not more than ,000,000, and in each of 1991, 1992 and 1993 not more than ,000,000.”

Subsec. (c)(7). Pub. L. 103–403, §305(2), added par. (7).

Subsec. (e). Pub. L. 103–355, §7101(a), struck out subsec. (e) which read as follows: “In carrying out small business set-aside programs, departments, agencies, and instrumentalities of the executive branch shall award contracts, and encourage the placement of subcontracts for procurement to the following in the manner and in the order stated:

“(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). Pub. L. 103–355, §7101(a), struck out subsec. (f) which read as follows: “After priority is given to the small business concerns specified in subsection (e) of this section, priority shall also be given to the awarding of contracts and the placement of subcontracts, on the basis of a total set-aside, to concerns which—

“(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). Pub. L. 103–355, §7106(a)(1), substituted “, small business concerns owned and controlled by socially and economically disadvantaged individuals, and small business concerns owned and controlled by women” for “and small business concerns owned and controlled by socially and economically disadvantaged individuals” in first sentence and in sentence beginning with “Notwithstanding the”.

Pub. L. 103–355, §7106(a)(2)(A), inserted after third sentence “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.”

Subsec. (g)(2). Pub. L. 103–355, §7106(a)(2)(B), in first sentence substituted “, by small business concerns owned and controlled by socially and economically disadvantaged individuals, and by small business concerns owned and controlled by women” for “and by small business concerns owned and controlled by socially and economically disadvantaged individuals,”.

Pub. L. 103–355, §7106(a)(1), in second sentence substituted “, small business concerns owned and controlled by socially and economically disadvantaged individuals, and small business concerns owned and controlled by women” for “and small business concerns owned and controlled by socially and economically disadvantaged individuals”.

Pub. L. 103–355, §7106(a)(2)(C), in fourth sentence inserted at end “and participation by small business concerns owned and controlled by women”.

Subsec. (h)(1), (2)(A), (D), (E). Pub. L. 103–355, §7106(a)(1), substituted “, small business concerns owned and controlled by socially and economically disadvantaged individuals, and small business concerns owned and controlled by women” for “and small business concerns owned and controlled by socially and economically disadvantaged individuals”.

Subsec. (h)(2)(F). Pub. L. 103–355, §7106(a)(3), substituted “small business concerns owned and controlled by women” for “women-owned small business enterprises”.

Subsec. (j). Pub. L. 103–355, §4004, amended subsec. (j) generally. Prior to amendment, subsec. (j) read as follows: “Each contract for the procurement of goods and services which has an anticipated value not in excess of the small purchase threshold and which is subject to small purchase procedures 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 in terms of quality and delivery of the goods or services being purchased. In utilizing small purchase procedures, contracting officers shall, wherever circumstances permit, choose a method of payment which minimizes paperwork and facilitates prompt payment to contractors.”

1992—Subsec. (c)(1)(A). Pub. L. 102–569 substituted “From People Who Are Blind or Severely Disabled” for “from the Blind and Other Severely Handicapped”.

Subsec. (c)(2)(B). Pub. L. 102–366, §232(b)(1), which directed the substitution of “Blind-made” for “Blindmade”, could not be executed to text because “Blindmade” did not appear in subpar. (B).

Subsec. (k)(3), (5). Pub. L. 102–366, §232(b)(2), substituted comma for semicolon at end of pars. (3) and (5).

Subsec. (k)(9). Pub. L. 102–484, §801(h)(8)(A), substituted “section 2323 of title 10” for “section 1207 of Public Law 99–661”.

Subsec. (l)(6). Pub. L. 102–366, §232(b)(3), inserted period at end.

Subsec. (m)(1). Pub. L. 102–484, §801(h)(8)(B), substituted “section 2323 of title 10” for “section 1207 of the National Defense Authorization Act for Fiscal Year 1987 (10 U.S.C. 2301 note)”.

Subsec. (m)(2)(B). Pub. L. 102–366, §232(b)(4), substituted “requirements” for “requirement”.

Subsec. (m)(2)(C). Pub. L. 102–484, §801(h)(8)(C), substituted “section 2323 of title 10” for “section 1207 of the National Defense Authorization Act for Fiscal Year 1987 (10 U.S.C. 2301 note)”.

1991—Subsec. (k)(5). Pub. L. 102–190 amended par. (5) generally. Prior to amendment, par. (5) read as follows: “assist small business concerns to obtain payments, late payment interest penalties, or information due to such concerns, in conformity with chapter 39 of title 31;”.

1990—Subsec. (a). Pub. L. 101–574 inserted after second sentence “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, 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, or (4) why construction cannot be procured as separate discrete projects. 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.”

Subsec. (j). Pub. L. 101–510 substituted “not in excess of the small purchase threshold” for “of less than ,000”.

1989—Subsec. (h)(2)(A). Pub. L. 101–37, §19, inserted “individuals” after “economically disadvantaged”.

Subsec. (m)(1)(A). Pub. L. 101–37, §21, substituted “procedures” for “procedure”.

1988—Subsec. (c). Pub. L. 100–590, §133(a), amended subsec. (c) generally, substituting provisions relating to programs for blind and handicapped individuals for provisions relating to eligibility, participating organizations, monitoring and evaluation, and report to Congressional committees.

Subsec. (g). Pub. L. 100–656, §502, added par. (1) and designated existing provisions as par. (2) and former pars. (1) and (2) as subpars. (A) and (B).

Subsec. (h). Pub. L. 100–656, §503, designated existing provisions as par. (1), struck out at end “The Administration shall submit to the Select Committee on Small Business of the Senate and the Committee on Small Business of the House of Representatives information obtained from such reports, together with appropriate comments.”, and added pars. (2) and (3).

Subsec. (k)(3). Pub. L. 100–656, §603(1), amended par. (3) generally. Prior to amendment, par. (3) read as follows: “be responsible only to, and report directly to, the head of such agency or to his deputy, except that in the case of the Department of Defense the Director of the Office of Small and Disadvantaged Business Utilization shall be responsible to, and report directly to, the Under Secretary of Defense for Acquisition,”.

Subsec. (k)(5) to (8). Pub. L. 100–496 added par. (5) and redesignated former pars. (5) to (7) as (6) to (8), respectively.

Subsec. (k)(9). Pub. L. 100–656, §603(2)–(4), added par. (9).

Subsec. (l)(2)(D). Pub. L. 100–590, §110(1), struck out “unrestricted” before “technical data” in two places.

Subsec. (l)(2)(E). Pub. L. 100–590, §110(2), amended subpar. (E) generally. Prior to amendment, subpar. (E) read as follows: “have access to the unclassified procurement records and other data of the procurement center;”.

Subsec. (l)(3). Pub. L. 100–590, §110(3), amended par. (3) generally. Prior to amendment, par. (3) read as follows: “A breakout procurement center representative is authorized to appeal a failure to act favorably on any recommendation made pursuant to paragraph (2). Such appeal shall be in writing, specifically reciting both the circumstances of the appeal and the basis of the recommendation. The appeal shall be decided by a person within the employ of the appropriate activity who is at least one supervisory level above the person who initially failed to act favorably on the recommendation. Such appeal shall be decided within 30 calendar days of its receipt.”

Subsec. (l)(6). Pub. L. 100–590, §110(4), amended par. (6) generally. Prior to amendment, par. (6) read as follows: “For purposes of this subsection, the term ‘major procurement center’ means a procurement center of the Department of Defense that awarded contracts for items other than commercial items totaling at least 0,000,000 in the preceding fiscal year, and such other procurement centers as designated by the Administrator.”

Subsec. (l)(7). Pub. L. 100–590, §110(5), added par. (7).

Subsec. (m). Pub. L. 100–656, §601, amended subsec. (m) generally, substituting provisions related to implementation of section 1207 of Pub. L. 99–661 for former provisions related to labor surplus area procurement and manpower programs.

1987—Subsec. (a). Pub. L. 100–26, §10(a)(1), made technical amendment to directory language of section 921(a)(1) of Pub. L. 99–500, Pub. L. 99–591, and Pub. L. 99–661. See 1986 Amendment note below.

Subsec. (g). Pub. L. 100–180, §809(a)(2), struck out “having a value of ,000 or more” after “procurement contracts of such agency”.

Pub. L. 100–180, §809(a)(1), provided for temporarily inserting “having a value of ,000 or more” after “procurement contracts of such agency”. See Effective Date of 1987 Amendments note below.

Subsec. (o)(1). Pub. L. 100–180, §809(b)(1), substituted “subsection (a)” for “this subsection” in introductory provisions.

Subsec. (o)(1)(A). Pub. L. 100–26, §10(b)(1)(A), substituted “at least 50 percent of the cost of contract performance incurred for personnel shall be expended for employees of the concern” for “the concern will perform at least 50 percent of the cost of the contract with its own employees”.

Subsec. (o)(3). Pub. L. 100–26, §10(b)(1)(B), substituted “requirements of such paragraph” for “requirements of such subparagraph” and inserted at end “The percentage applicable to any such requirement shall be determined in accordance with paragraph (2).”

Subsec. (p). Pub. L. 100–180, §809(c), struck out subsec. (p) which read as follows:

“(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). Pub. L. 99–500 and Pub. L. 99–591, §101(c) [§921(a), (b)], Pub. L. 99–661, §921(a), (b), as amended by Pub. L. 100–26, §10(a)(1), amended subsec. (a) identically, inserting “in each industry category” in cl. (3), and inserting provision identifying an industry category, providing for determination of such category by the Administrator, and permitting segmentation of a market for goods and services under certain circumstances and provision that a contract not be awarded if the award would result in a cost to the awarding agency which exceeds a fair market price.

Subsec. (g). Pub. L. 99–500 and Pub. L. 99–591, §101(c) [§921(d)], Pub. L. 99–661, §921(d), amended subsec. (g) identically, striking out “having values of ,000 or more” after “such agency” and inserting provision requiring the head of each Federal agency to make consistent efforts to annually expand participation by small business concerns from each industry category in procurement contracts of the agency.

Subsec. (j). Pub. L. 99–500 and Pub. L. 99–591, §101(c) [§922(c)], Pub. L. 99–661, §922(c), amended subsec. (j) identically, substituting “,000” for “,000”.

Subsec. (k)(3). Pub. L. 99–500 and Pub. L. 99–591, §101(c) [§903(d)], Pub. L. 99–661, §903(d), which directed identical amendments to par. (3) by inserting “, except that in the case of the Department of Defense the Director of the Office of Small and Disadvantaged Business Utilization shall be responsible to, and report directly to, the Under Secretary of Defense for Acquisition” was executed by inserting that phrase immediately before the comma at the end as the probable intent of Congress.

Subsec. (n). Pub. L. 99–272 added subsec. (n).

Subsecs. (o), (p). Pub. L. 99–500 and Pub. L. 99–591, §101(c) [§921(c)(2), (e)], Pub. L. 99–661, §921(c)(2), (e), amended section identically, adding subsecs. (o) and (p).

1984—Subsecs. (l), (m). Pub. L. 98–577 added subsec. (l) and redesignated former subsec. (l) as (m).

1980—Subsec. (c). Pub. L. 96–302, §116, substituted provisions covering participation of not-for-profit organizations in certain authorized programs during fiscal years 1981, through 1983, the monitoring and evaluation of such participation as causing severe economic injury to for-profit small businesses and transmission of report to congressional committees not later than Jan. 1, 1982, respecting impact of contracts on the for-profit small businesses for provisions respecting eligibility during fiscal year 1978, of public and private organizations and individuals to participate in the award of contracts and requiring transmission of a report by March 1, 1979.

Subsec. (d). Pub. L. 96–302, §117(a), substituted “small business concerns” for “concerns”.

Subsec. (e). Pub. L. 96–302, §117(b), in revising text, struck out from introductory clause reference to labor surplus areas; reenacted par. (1) reversing order of reference to small business concerns and location in labor surplus areas; reenacted par. (2); added par. (3); redesignated former par. (3) as (4); and struck out former par. (4) as to concerns located in labor surplus areas on basis of total set-aside, as covered in par. (1).

Subsec. (f). Pub. L. 96–302, §117(b), substituted provision respecting other priorities in placement of contracts for requirement that subsecs. (d) and (e) of this section cease to be effective subsequent to Sept. 30, 1980, unless renewed prior to such date.

1978—Subsec. (f). Pub. L. 95–507, §232, substituted “September 30, 1980” for “September 30, 1979”.

Subsecs. (g) to (k). Pub. L. 95–507, §221, added subsecs. (g) to (k).

Subsec. (l). Pub. L. 95–507, §233, added subsec. (l).

1977—Pub. L. 95–89 designated existing provisions as subsec. (a) and added subsecs. (b) to (f).

Effective Date of 1994 Amendment

For effective date and applicability of amendment by sections 4004 and 7106(a) of Pub. L. 103–355, see section 10001 of Pub. L. 103–355, set out as a note under section 251 of Title 41, Public Contracts.

Effective Date of 1989 Amendment

Amendment by Pub. L. 101–37 applicable as if included in Pub. L. 100–656, see section 32 of Pub. L. 101–37, set out as a note under section 631 of this title.

Effective Date of 1988 Amendments

Amendment by sections 502 and 503 of Pub. L. 100–656 effective Oct. 1, 1989, and amendment by sections 601 and 603 of Pub. L. 100–656 effective Nov. 15, 1988, see section 803(a)(7), (b)(4)(C), of Pub. L. 100–656, as amended, set out as a note under section 631 of this title.

Amendment by Pub. L. 100–496 applicable to payments under contracts awarded, contracts renewed, and contract options exercised during or after the first fiscal quarter which begins more than 90 days after Oct. 17, 1988, see section 14(a) of Pub. L. 100–496, set out as a note under section 3902 of Title 31, Money and Finance.

Effective Date of 1987 Amendments

Section 809(a)(1) of Pub. L. 100–180 provided that the amendment made by that section is in effect until Sept. 30, 1988.

Section 809(a)(2) of Pub. L. 100–180, as amended by Pub. L. 100–656, title VII, §731, Nov. 15, 1988, 102 Stat. 3897, provided that the amendment made by that section is effective Oct. 1, 1989.

Amendment by section 10(a)(1), (b)(1) of Pub. L. 100–26 applicable as if included in each instance of the Defense Acquisition Improvement Act (as specified in section 2 of Pub. L. 100–26) [title X of section 101(c) of Pub. L. 99–500 and Pub. L. 99–591, and title IX of div. A of Pub. L. 99–661] when each was enacted [Oct. 18, 1986, Oct. 30, 1986, and Nov. 14, 1986, respectively], see section 12(c) of Pub. L. 100–26, set out as a note under section 632 of this title.

Effective Date of 1986 Amendments

Section 18003(b) of Pub. L. 99–272 provided that: “The amendment made by subsection (a) [amending this section] shall take effect on the ninetieth day after the date of the enactment of this Act [Apr. 7, 1986].

Amendment by section 101(c) [title X, §921(a), (b)(1), (c)(2)–(e)] of Pub. L. 99–500 and Pub. L. 99–591, and section 921(a), (b)(1), (c)(2)–(e) of Pub. L. 99–661 effective Oct. 1, 1987, see section 101(c) of Pub. L. 99–500 and Pub. L. 99–591, and section 921(g) of Pub. L. 99–661, set out as a note under section 632 of this title.

Effective Date of 1980 Amendment

Amendment by Pub. L. 96–302 effective Oct. 1, 1980, see section 507 of Pub. L. 96–302, set out as a note under section 631 of this title.

Manufacturing Contracts Through Manufacturing Application and Education Centers

Section 303 of Pub. L. 103–403 provided that:

“(a) In General.—The Small Business Administration shall promote the award of Federal manufacturing contracts to small business concerns that participate in manufacturing application and education centers by working with the Department of Commerce and other agencies to identify components and subsystems that are both critical and currently foreign-sourced.

“(b) Qualifications.—In order to qualify as a manufacturing application and education center under this section, an entity shall have the capacity to assist small business concerns in a shared-use production environment and to offer the following services:

“(1) Technology demonstration.

“(2) Technology education.

“(3) Technology application support.

“(4) Technology advancement support.

“(c) Inapplicability of Certain Requirements.—The requirements of section 15(o)(1)(B) of the Small Business Act [15 U.S.C. 644(o)(1)(B)] shall not apply with respect to any manufacturing contract carried out by a small business concern in conjunction with a manufacturing application and education center under this section.

“(d) Regulations.—Not later than 180 days after the date of enactment of this Act [Oct. 22, 1994], the Administrator of the Small Business Administration shall promulgate final regulations to carry out this section.

“(e) Termination of Authority.—The authority of the Small Business Administration under this section shall terminate on September 30, 1997.

“(f) Authorization of Appropriations.—There are authorized to be appropriated to the Small Business Administration, such sums as may be necessary to carry out this section.”

Pilot Program for Very Small Business Concerns

Section 304 of Pub. L. 103–403 provided that:

“(a) Establishment.—The Administrator shall establish and carry out a pilot program in accordance with the requirements of this section to provide improved access to Federal contract opportunities for very small business concerns.

“(b) Procurement Contracts.—

“(1) In general.—In carrying out subsection (a), the Administrator shall identify procurement contracts of Federal agencies for award under the program.

“(2) Contract awards.—Under the program established pursuant to this section, the award of a procurement contract of a Federal agency identified by the Administration pursuant to paragraph (1) shall be made by the agency to an eligible program participant selected, and determined to be responsible, by the agency.

“(3) Competition.—All contract opportunities offered for award under the program shall be awarded on the basis of competition among eligible very small business concerns.

“(c) Eligibility.—Only a very small business concern shall be eligible to compete for a contract to be awarded under the program. A contracting officer may rely in good faith on a written certification that a small business concern is a very small business concern.

“(d) Delegation of Authority.—The authority of the Administrator under subsections (b)(1) and (c) shall be delegated to not less than 5 and not more than 10 districts of the Administration to promote the award of contracts that can be performed by very small business concerns.

“(e) Financial Assistance.—In order to assist very small business concerns receiving contract awards under the program, the Administrator shall establish a preauthorization program for such concerns for the purpose of receiving financial assistance under section 7(a) of the Small Business Act [15 U.S.C. 636(a)].

“(f) Attainment of Contract Goals.—All contract awards made under the program shall be counted toward the attainment of the goals specified in section 15(g) of the Small Business Act [15 U.S.C. 644(g)].

“(g) Regulations.—The Administrator shall—

“(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) Report to Congress.—Not later than April 30, 1997, the Administrator shall transmit to the Congress a report on the results of the program, together with such recommendations as the Administrator deems appropriate.

“(i) Program Term.—Implementation of the program shall begin not later than August 30, 1995. The program authorized by this section shall expire on September 30, 1998.

“(j) Definitions.—For purposes of this section, the following definitions shall apply:

“(1) Administration.—The term ‘Administration’ means the Small Business Administration.

“(2) Administrator.—The term ‘Administrator’ means the Administrator of the Small Business Administration.

“(3) Program.—The term ‘program’ means a program established pursuant to subsection (a).

“(4) Very small business concern.—The term ‘very small business concern’ means a small business concern that—

“(A) has not more than 15 employees; and

“(B) has average annual receipts that total not more than ,000,000.”

Expedited Resolution of Contract Administration Matters

Section 2353 of Pub. L. 103–355 provided that:

“(a) Regulations Required.—(1) The Federal Acquisition Regulation shall include provisions that require a contracting officer—

“(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) Rule of Construction.—Nothing in this section shall be considered as creating any rights under the Contract Disputes Act of 1978 (41 U.S.C. 601 et seq.).

“(c) Definition.—In this section, the term ‘small business concern’ means a business concern that meets the requirements of section 3(a) of the Small Business Act (15 U.S.C. 632(a)) and the regulations promulgated pursuant to that section.”

Contracting Program for Certain Small Businesses

Section 7102 of Pub. L. 103–355 provided that:

“(a) Procurement Procedures Authorized.—(1) To facilitate the attainment of a goal for the participation of small business concerns owned and controlled by socially and economically disadvantaged individuals that is established for a Federal agency pursuant to section 15(g)(1) of the Small Business Act (15 U.S.C. 644(g)(1)), the head of the agency may enter into contracts using—

“(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) Implementation Through the Federal Acquisition Regulation.—

“(1) In general.—The Federal Acquisition Regulation shall be revised to provide for uniform implementation of the authority provided in subsection (a).

“(2) Matters to be addressed.—The revisions of the Federal Acquisition Regulation made pursuant to paragraph (1) shall include—

“(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) Termination.—This section shall cease to be effective at the end of September 30, 2000.”

Small Business Procurement Advisory Council

Section 7104 of Pub. L. 103–355 provided that:

“(a) Establishment.—There is hereby established an interagency council to be known as the ‘Small Business Procurement Advisory Council’ (hereinafter in this section referred to as the ‘Council’).

“(b) Duties.—The duties of the Council are—

“(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) Membership.—The Council shall be composed of the following members:

“(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) Chairman.—The Council shall be chaired by the Administrator of the Small Business Administration.

“(e) Meetings.—The Council shall meet at the call of the chairman as necessary to consider proposed procurement regulations affecting the small business community.

“(f) Consideration of Council Comments.—The Federal Acquisition Regulatory Council and other appropriate regulatory authorities shall consider comments submitted in a timely manner pursuant to subsection (b)(2).”

Procurement Procedures Under Small Business Competitiveness Demonstration Program Act of 1988

Section 202(h) of Pub. L. 102–366 provided that: “Restricted competitions pursuant to section 713(b) of the Small Business Competitiveness Demonstration Program Act of 1988 [Pub. L. 100–656] (15 U.S.C. 644 note, 102 Stat. 3892) shall not be imposed with respect to the designated industry group of architectural and engineering services if the rate of small business participation exceeds 35 percent, until the improvements to the collection of data regarding prime contract awards (as required by subsection (g) [amending section 717 of Pub. L. 100–656, set out below]) and the system for collecting data regarding other than prime contract awards (as required by subsection (d) [amending section 714 of Pub. L. 100–656, set out below]) have been implemented, as determined by the Administrator for Federal Procurement Policy.”

Modifications of Test Plan and Policy Direction Under Small Business Competitiveness Demonstration Program Act of 1988

Section 202(i) of Pub. L. 102–366 provided that: “The Administrator for Federal Procurement Policy shall issue appropriate modifications to the test plan and policy direction issued pursuant to section 715 of the Small Business Competitiveness Demonstration Program Act of 1988 [Pub. L. 100–656, set out below], to conform to the amendments made by this section and section 201(a) [amending sections 711 to 714, 716, and 717 of Pub. L. 100–656, set out below].”

Contract Bundling Study

Section 321 of Pub. L. 102–366 provided that:

“(a) In General.—The Administrator of the Small Business Administration, acting through the Associate Administrator for Procurement Assistance, shall conduct a study regarding the impact of the practice known as ‘contract bundling’ on the participation of small business concerns in the Federal procurement process.

“(b) Purpose.—In addition to such other matters as the Associate Administrator for Procurement Assistance deems appropriate to assure the conduct of a comprehensive study and the development of practical recommendations, the study required by subsection (a) shall—

“(1) identify the benefits and adverse effects of contract bundling to the procuring agencies;

“(2) identify the benefits and adverse effects of contract bundling on small business concerns;

“(3) examine the adequacy of the policy direction to agency procurement officials regarding the bundling of contract requirements;

“(4) examine the extent to which agencies have been combining their requirements for the procurement of goods and services (including construction) into solicitations requiring an offeror to be able to perform increasingly larger contracts covering multiple and diverse elements of performance;

“(5) consider the appropriateness of the explanatory statements submitted by the procuring agencies pursuant to section 15(a) of the Small Business Act [15 U.S.C. 644(a)] regarding bundling of contract requirements; and

“(6) determine whether procurement center representatives, small business specialists, or other agency procurement officials can, under existing guidance and authority, have the necessary policy direction and effective authority to make an independent assessment regarding a proposed bundling of contract requirements.

“(c) Participation.—

“(1) In general.—In conducting the study described in subsection (b), the Associate Administrator for Procurement Assistance shall provide for participation by representatives of—

“(A) the Office of the Chief Counsel for Advocacy;

“(B) the Office of Federal Procurement Policy; and

“(C) the 10 Federal departments or agencies having the greatest dollar value of procurement awards during fiscal year 1991.

“(2) Additional consultation.—In conducting the study, the Associate Administrator for Procurement Assistance shall consult with representatives of organizations representing small business government contractors and such other public and private entities as may be appropriate.

“(d) Schedule.—Not later than 90 days after the date of enactment of this Act [Sept. 4, 1992], the Associate Administrator for Procurement Assistance shall publish in the Federal Register a plan for the study required by this section. The study shall be completed not later than March 31, 1993.

“(e) Report.—Not later than May 15, 1993, the Administrator of the Small Business Administration shall submit a report to the Committees on Small Business of the Senate and the House of Representatives. The report shall contain the results of the study required by subsection (a), together with recommendations for legislative and regulatory changes to maintain small business participation in the Federal procurement process, as the Administrator deems appropriate.

“(f) Definition.—For purposes of this section, the term ‘contracting bundling’ or ‘bundling of contract requirements’ refers to the practice of consolidating into a single large contract solicitation multiple procurement requirements that were previously solicited and awarded as separate smaller contracts, generally resulting in a contract opportunity unsuitable for award to a small business concern due to the diversity and size of the elements of performance specified and the aggregate dollar value of the anticipated award.”

Small Business Competitiveness Demonstration Program

Sections 701 to 722 of title VII of Pub. L. 100–656, as amended by Pub. L. 101–37, §§23–29, June 15, 1989, 103 Stat. 75, 76; Pub. L. 101–574, title II, §243, Nov. 15, 1990, 104 Stat. 2827; Pub. L. 102–54, §13(e), June 13, 1991, 105 Stat. 275; Pub. L. 102–366, title II, §§201–202(g), 203, Sept. 4, 1992, 106 Stat. 993–996; Pub. L. 102–484, div. A, title VIII, §801(h)(9), Oct. 23, 1992, 106 Stat. 2446; Pub. L. 102–564, title III, §307(a), Oct. 28, 1992, 106 Stat. 4263; Pub. L. 103–160, div. A, title VIII, §850(2), Nov. 30, 1993, 107 Stat. 1726; Pub. L. 103–446, title XII, §1202(a)(1), Nov. 2, 1994, 108 Stat. 4689, provided that:

“part a—short title and findings “SEC. 701. SHORT TITLE.

“This title [amending section 632 of this title and section 541 of Title 40, Public Buildings, Property, and Works, 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 [Pub. L. 98–369, div. B, title VII, see Tables for classification], the Defense Procurement Reform Act of 1984 [Pub. L. 98–525, title XII, see Tables for classification], and the Small Business and Federal Procurement Competition Enhancement Act of 1984 [Pub. L. 98–577, see Tables for classification], were designed to eliminate obstacles to competition and thereby to broaden small business participation; and

“(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) Establishment.—There is established a Small Business Competitiveness Demonstration Program (hereafter referred to in this title as ‘the Program’) pursuant to section 15 of the Office of Federal Procurement Policy Act (41 U.S.C. 413) to provide for the testing of innovative procurement methods and procedures. The Administrator of Federal Procurement Policy shall designate the Administrator of the Small Business Administration as the executive agent responsible for conducting the test.

“(b) Purposes.—The purposes of the Program are to demonstrate whether—

“(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) Program Term.—The Program shall commence on January 1, 1989, and terminate on September 30, 1996.

“(d) Application.—The Program shall apply to contract solicitations for the procurement of services in industry groups designated in section 717.

“SEC. 712. ENHANCED SMALL BUSINESS PARTICIPATION GOALS.

“(a) Enhanced Goals for Designated Industry Groups.—Each participating agency shall establish an annual small business participation goal that is 40 percent of the dollar value of the contract awards for each of the designated industry groups. In attaining its small business participation goal for contract awards for each of the designated industry groups, each participating agency shall make a good faith effort to assure that emerging small business concerns are awarded not less than 15 percent of the dollar value of the contract awards for each of the designated industry groups.

“(b) Special Assistance for Emerging Small Business Concerns.—

“(1) Small business reserve.—During the term of the Program, all contract opportunities in the industry groups designated in section 717 shall be reserved for exclusive competition among emerging small business concerns in accordance with the competition standard specified in section 15(j) of the Small Business Act (15 U.S.C. 644(j)), if the estimated award value of the contract is equal to or less than the greater of:

“(A) ,000, or

“(B) such larger dollar amount established pursuant to paragraph (2).

“(2) Adjustments to the small business reserve.—If the goal of awarding emerging small business concerns 15 percent of the total dollar value of contracts in a designated industry category is determined not to have been attained, upon the review of award data conducted in accordance with subsection (d)(1) of this section, the Administrator for Federal Procurement Policy, to ensure attainment of such goal, shall prescribe, on a semiannual basis, appropriate adjustments to the dollar threshold for contract opportunities in such designated industry category below which competition shall be conducted exclusively among emerging small business concerns.

“(3) Small business small purchase reserve.—The requirements of this subsection dealing with the reserve amount shall apply notwithstanding the amount specified in section 15(j) of the Small Business Act (15 U.S.C. 644(j)).

“(4) Exclusion of modifications to existing contracts above the small purchase threshold.—Any modification or follow-on award to a contract having an initial award value in excess of ,000 shall not be subject to the limitations on competition required by this subsection.

“(c) Targeting Industry Categories With Limited Small Business Participation.—(1) Concurrent with the term of the Small Business Competitiveness Demonstration Program, the head of each participating agency shall implement a program to expand small business participation in the agency's acquisition of selected products and services in 10 industry categories which have historically demonstrated low rates of small business participation. The products and services to be targeted for the small business participation expansion program and the special goals for such program, shall be developed in conjunction with the Administrator of the Small Business Administration, and shall be subject to the requirements of section 15(g) of the Small Business Act (15 U.S.C. 644(g)).

“(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) Monitoring Agency Performance.—

“(1) Participating agencies shall monitor the attainment of their small business participation goals on a quarterly basis. The initial review by each participating agency shall be completed not later than June 30, 1989, based on the data for the period January 1 through March 31, 1989. Thereafter, each review shall be based on the aggregate of contract award data from the 4 fiscal year quarters preceding the date of the review for which data is available.

“(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) Full and Open Competition.—Except as provided in subsections (b) and (c), each contract opportunity with an anticipated value of more than ,000 for the procurement of services from firms in the designated industry groups (unless set aside pursuant to section 8(a) of the Small Business Act (15 U.S.C. 637(a)) or section 2323 of title 10, United States Code) shall be solicited on an unrestricted basis during the term of the Program, if the participating agency has attained its small business participation goal pursuant to section 712(a). Any regulatory requirements which are inconsistent with this provision shall be waived.

“(b) Restricted Competition.—If a participating agency has failed to attain its small business participation goal under section 712(a), subsequent contracting opportunities, which are in excess of the reserve thresholds specified pursuant to section 712(b) shall be solicited through a competition restricted to eligible small business concerns pursuant to section 15(a) of the Small Business Act (15 U.S.C. 644(a)) only at those buying activities of the participating agency that failed to attain the small business participation goal required by section 712(a). Upon determining that its contract awards to small business concerns again meet the goals required by section 712(a), a participating agency shall promptly resume the use of unrestricted solicitations pursuant to subsection (a). Such modifications in the participating agency's solicitation practices shall be made as soon as practicable, but not later than the beginning of the quarter following completion of the review made pursuant to section 712(d) indicating that changes to solicitation practices are required.

“(c) Relationship With the Competition in Contracting Act of 1984.—Subsections (a) and (b) shall not be construed to supersede the application of the Competition in Contracting Act of 1984 (98 Stat. 1175) [Pub. L. 98–369, div. B, title VII, see Tables for classification].

“(d) Relationship to Other Applicable Law.—Solicitations for the award of contracts for architectural and engineering services (including surveying and mapping) issued by a Military Department or a Defense agency shall comply with the requirements of subsections (a) and (b) of section 2855 of title 10, United States Code.

“SEC. 714. REPORTING.

“(a) Awards of ,000 or Less.—During the term of the Small Business Competitiveness Demonstration Program, each award of ,000 or less made by a participating agency for the procurement of a service in any of the designated industry categories shall be reported to the Federal Procurement Data Center in the same manner as if the purchase were in excess of ,000.

“(b) Subcontracting Activity.—

“(1) Simplified data collection system.—The Administrator for Federal Procurement Policy shall develop and implement a simplified system to collect data on the participation of small business concerns (including small business concerns owned and controlled by socially and economically disadvantaged individuals) as other than prime contractors.

“(2) Participating industries.—The system established under paragraph (1) shall be used to collect data regarding contracts for architectural and engineering services (including surveying and mapping). The Administrator for Federal Procurement Policy may expand such system to collect data regarding such other designated industry groups as deemed appropriate.

“(3) Participating agencies.—As part of the system established under paragraph (1) data shall be collected from—

“(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) Determining small business participation rates.—The value of other than prime contract awards to small business concerns furnishing architectural and engineering services (including surveying and mapping) or other services in support of such contracts (or other services provided by small business concerns in other designated industry groups as may be designated for participation by the Administrator for Federal Procurement) shall be counted towards determining whether the small business participation goal required by section 712(a) has been attained.

“(5) Duration.—The system described in subsection (a) shall be established not later than October 1, 1992 (or as soon as practicable thereafter on the first day of a subsequent quarter of fiscal year 1993), and shall terminate on September 30, 1996.

“(c) Size and Status of Small Business Concerns.—During the term of the Program, each participating agency shall collect data pertaining to the size of the small business concern and the status of the small business concern (as a small business concern owned and controlled by socially and economically disadvantaged individuals) receiving any award for the procurement of—

“(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) Test Plan.—The Administrator for Federal Procurement Policy may further specify the manner and conduct of the test activities required by this title through a test plan issued pursuant to section 15 of the Office of Federal Procurement Policy Act (41 U.S.C. 413).

“(b) Policy Direction.—The Administrator for Federal Procurement Policy, in cooperation with the Administrator of the Small Business Administration, shall issue a policy directive (which shall be binding on all participating agencies) to ensure consistent Government-wide implementation of this title in the Federal Acquisition Regulation, title 48 of the Code of Federal Regulations, issued pursuant to the Office of Federal Procurement Policy Act [41 U.S.C. 401 et seq.].

“SEC. 716. REPORTS TO CONGRESS.

“(a) In General.—Within 180 days after data for fiscal year 1991 and 1995 are available from the Federal Procurement Data Center, the Administrator for Federal Procurement Policy shall report the results of the Small Business Competitiveness Demonstration Program to the Committees on Small Business of the Senate and House of Representatives, to the Committee on Governmental Affairs of the Senate, and to the Committee on Government Operations [now Committee on Government Reform and Oversight] of the House of Representatives. The views of the Administrator of the Small Business Administration shall be included in the report.

“(b) Analysis of Program.—The report shall include a section prepared by the Administrator of the Small Business Administration specifying the results of the intensive goaling and management program conducted to expand small business participation in agency acquisitions of selected products and services.

“(c) Recommendations.—To the extent the results of the Program demonstrate sufficiently high small business participation based on unrestricted contract competition in the designated industry groups, the report to be submitted during calendar year 1996 shall include recommendations (if appropriate) for changes in legislation or modifications of procurement regulations aimed at increasing reliance on unrestricted competition if high rates of small business participation in the Federal procurement market can be maintained.

“SEC. 717. DESIGNATED INDUSTRY GROUPS.

“(a) In General.—For the purposes of participation in this Program, the designated industry groups are—

“(1) construction (excluding dredging);

“(2) refuse systems and related services;

“(3) architectural and engineering services (including surveying and mapping); and

“(4) non-nuclear ship repair.

“(b) Construction.—Construction shall include contract awards assigned one of the standard industrial classification codes that comprise—

“(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) Refuse.—Refuse systems and related services shall include contract awards assigned to standard industrial classification code 4212 or 4953.

“(d) Architectural and Engineering.—Architectural and engineering services (including surveying and mapping) shall include contract awards assigned to standard industrial classification code 7389 (if identified as pertaining to mapping services), 8711, 8712, or 8713, and such contract was awarded under the qualification-based selection procedures required by title IX of the Federal Property and Administrative Services Act of 1949 (40 U.S.C. 541 et seq.)

“(e) Alternative Data.—In the event that standard industrial classification codes are not assigned to individual contract awards reported to the Federal Procurement Data Center by January 1, 1989, the Program may be conducted on the basis of the product and service codes used to report data pertaining to such contract awards, related to the maximum practicable extent to the standard industrial classification code for the service being provided by the contractor.

“(f) Size Standards.—

“(1) In general.—Any numerical size standard that is assigned to a standard industrial classification code (or a subdivision of such a code) for any of the designated industry groups described in subsections (b), (c), and (d) of this section and that was in effect on September 30, 1988, shall remain in effect for the duration of the Program (as specified in section 711(c)).

“(2) Engineering services other than architectural and engineering services.—The limitation imposed by paragraph (1) does not preclude modification to the numerical size standard assigned to those subdivisions of standard industrial classification code 8711 that are not subject to the Program, including—

“(A) engineering services—military and aerospace equipment and military weapons;

“(B) engineering services—marine engineering and naval architecture; or

“(C) any successor to a subdivision described in subparagraph (A) or (B).

“SEC. 718. DEFINITIONS.

“(a) Designated Industry Groups.—‘Designated industry groups’ means the groups specified in section 717 for participation in the Small Business Competitiveness Demonstration Program.

“(b) Emerging Small Business Concern.—‘Emerging small business concern’ means a small business concern whose size is no greater than 50 percent of the numerical size standard applicable to the standard industrial classification code assigned to a contracting opportunity.

“(c) Participating Agency.—‘Participating agency’ shall have the same meaning as the term ‘executive agency’ in section (4)(1) [4(1)] of the Office of Federal Procurement Policy Act (41 U.S.C. 403(1)). The Administrator for Federal Procurement Policy is authorized to specify as part of the Program test plan the list of executive agencies designated to participate in the Program, which shall include:

“(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) Small Business Participation.—‘Small business participation’ shall include the aggregate dollar value of every procurement contract award made to a small business concern, without regard to whether such award was based on restricted or unrestricted competition, or was made on a sole source basis.

“(e) Standard Industrial Classification Code.—‘Standard industrial classification code’ means a four digit code assigned to an industry category in the Standard Industrial Classification Manual published by the Office of Management and Budget in effect on the date of enactment of this Act [Nov. 15, 1988].

“part c—alternative program for clothing and textiles “SEC. 721. ALTERNATIVE PROGRAM FOR CLOTHING AND TEXTILES.

“(a) Establishment.—Subject to the requirements of subsection (b), of the total dollar amount of contracts for each standard industrial classification code for clothing and textiles awarded by the Defense Logistics Agency for each of the fiscal years 1989, 1990, and 1991:

“(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) Computation.—In order to calculate the percent limitation established pursuant to subsection (a), the Department may establish, after consultation with the Small Business Administration, major groupings of standard industrial classification codes that are closely related and apply such limitations to such groupings.

“(c) Program Term.—The Program shall commence on January 1, 1989, and terminate on September 30, 1996.

“(d) Report.—The Secretary of Defense shall issue reports to the Congress on the operations of the program established pursuant to this section. Such reports shall detail the effects of the program on the mobilization base and on small business concerns and small business concerns owned and controlled by socially and economically disadvantaged individuals. Interim reports shall be submitted every 6 months during the term of the program to the Committees on Armed Services and Small Business of the House of Representatives and the Senate [Committee on Armed Services of the House of Representatives now Committee on National Security].

“SEC. 722. EXPANDING SMALL BUSINESS PARTICIPATION IN DREDGING.

“(a) Establishment.—The Secretary of the Army (hereafter in this section referred to as the ‘Secretary’) shall conduct a program to expand the participation of small business concerns and emerging small business concerns in contracting opportunities for dredging solicited on or after January 1, 1989, commencing on October 1, 1989 and terminating on September 30, 1996.

“(b) Enhanced Goals.—Of the aggregate value of all suitable contracts for dredging, the Department of the Army (hereafter in this section referred to as the ‘Department’) shall make every reasonable effort to award to small business concerns:

“(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) Contract Award Procedures.—(1) Except as provided in paragraphs (3) and (4), the Department shall solicit and award contracts for dredging through full and open competition in conformity with section 2304 of title 10, United States Code, section 15 of the Small Business Act (15 U.S.C. 644), and the implementing procurement regulations promulgated in conformity with section 6 of the Office of Federal Procurement Policy Act (41 U.S.C. 405). Nothing herein shall impair the award of contracts pursuant to section 8(a) of the Small Business Act (15 U.S.C. 637(a)) or section 2323 of title 10, United States Code.

“(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) Acquisition Strategies To Foster Small Business Participation.—(1) In attaining the goals for participation by small business concerns and emerging small business concerns, the Secretary is encouraged to:

“(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) Size Standard.—For the purposes of the program established by subsection (a), the size standard pertaining to standard industrial classification code 1629 (Dredging and Surface Cleanup Activities) in effect on October 1, 1988 shall remain in effect until September 30, 1990.

“(f) Reports.—

“(1) The Secretary shall furnish a report to the Committees on Small Business of the Senate and House of Representatives, 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 Pub. L. 103–446 provided that the amendment made by that section to section 13(e) of Pub. L. 102–54 [amending section 718 of Pub. L. 100–656, set out above] is effective as of June 13, 1991, and as if included in the enactment of Pub. L. 102–54.]

Segmentation of Industry Category of Shipbuilding and Ship Repair

Section 741 of Pub. L. 100–656 provided that: “The Small Business Administration, pursuant to the authority of section 15(a) of the Small Business Act (15 U.S.C. 644(a)), shall segment the industry category of shipbuilding and ship repair, as follows:

“(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

Section 133(b) of Pub. L. 100–590 provided that: “Not later than September 30, 1992, the General Accounting Office shall prepare a report describing the impact that contracts awarded under section 15(c) of the Small Business Act [15 U.S.C. 644(c)] have had on for-profit small business concerns for fiscal years 1989 through 1991. The report shall be transmitted to the Committees on Small Business of the Senate and the House of Representatives.”

Task Force on Purchases From Blind and Severely Handicapped Individuals; Establishment; Meetings; Recommendations

Section 133(c) of Pub. L. 100–590 provided that: “There is established within the Small Business Administration a task force on purchases from the blind and severely handicapped which shall consist of one representative of the small business community appointed by the Administrator of the Small Business Administration and one individual knowledgeable in the affiars [sic] of or experienced in the work of sheltered workshops appointed by the Executive Director of the Committee for Purchase from the Blind and Other Severely Handicapped established under the first section of the Act entitled ‘An Act to create a Committee on Purchases of Blind-made Products, and for other purposes’, approved June 25, 1938 (41 U.S.C. 46). The task force shall meet at least once every six months for the purpose of reviewing the award of contracts under section 15(c) of the Small Business Act [15 U.S.C. 644(c)] and recommending to the Small Business Administration such administrative or statutory changes as it deems appropriate.”

Standards for Measuring Cost Savings From Breakout Procurement Center Representatives

Section 403(b) of Pub. L. 98–577 provided that:

“(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.”

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 (P.L. 100–656) [amending this section].

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 [Pub. L. 103–355, see Short title of 1994 Amendment note set out under section 251 of Title 41, Public Contracts] authorizes civilian agencies to utilize set-aside procurements for small disadvantaged businesses. The Act also, for the first time, establishes goals for contracting with small women-owned businesses. These provisions, along with others in the Act, will provide greater access to Federal Government business opportunities for small, small disadvantaged, and small women-owned businesses. Department and agency heads should ensure that efforts to streamline acquisition procedures encourage the participation of these businesses in Federal procurements.

This memorandum shall be published in the Federal Register.

William J. Clinton.

Section Referred to in Other Sections

This section is referred to in sections 637, 645, 648 of this title; title 10 sections 2302, 2304, 2304a, 2323; title 41 sections 253, 259.

1 So in original.