I 

112TH CONGRESS 

2D SESSION H. R. 4081 

To amend the Small Business Act to consolidate and revise provisions relating 

to contract bundling, and for other purposes. 

IN THE HOUSE OF REPRESENTATIVES 

FEBRUARY 17, 2012 

Mr. GRAVES of Missouri (for himself and Mr. WEST) introduced the following 

bill; which was referred to the Committee on Small Business 

A BILL 

To amend the Small Business Act to consolidate and revise 

provisions relating to contract bundling, and for other 

purposes. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Contractor Oppor5 tunity Protection Act of 2012’’. 

6 SEC. 2. CONSOLIDATION OF PROVISIONS RELATING TO 

7 CONTRACT BUNDLING. 

8 Section 44 of the Small Business Act (15 U.S.C. 

9 657q) is amended to read as follows: 


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1 ‘‘SEC. 44. CONTRACT BUNDLING. 

2 ‘‘(a) DEFINITIONS.—In this Act: 

3 ‘‘(1) BUNDLED CONTRACT.—The term ‘bundled 

4 contract’— 

5 ‘‘(A) means a contract that is entered into 

6 to meet procurement requirements that are 

7 combined in a bundling of contract require8 ments, without regard to whether a study of the 

9 effects of the solicitation on Federal officers or 

10 employees has been made; and 

11 ‘‘(B) does not include— 

12 ‘‘(i) a contract with an aggregate dol13 lar value below the dollar threshold; or 

14 ‘‘(ii) a single award contract for the 

15 acquisition of a weapons system acquired 

16 through a major defense acquisition. 

17 ‘‘(2) BUNDLING METHODOLOGY.—The term 

18 ‘bundling methodology’ means— 

19 ‘‘(A) a solicitation to obtain offers for a 

20 single contract or a multiple award contract; 

21 ‘‘(B) a solicitation of offers for the 

22 issuance of a task or a delivery order under an 

23 existing single or multiple award contract; or 

24 ‘‘(C) the creation of any new procurement 

25 requirements that permits a combination of 

26 contract requirements, including any combinaVerDate Mar 15 2010 20:33 Feb 18, 2012 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H4081.IH H4081

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1 tion of contract requirements or order require2 ments. 

3 ‘‘(3) BUNDLING OF CONTRACT REQUIRE4 MENTS.—The term ‘bundling of contract require5 ments’, with respect to the contract requirements of 

6 a Federal agency— 

7 ‘‘(A) means the use of any bundling meth8 odology to satisfy 2 or more procurement re9 quirements for new or existing goods or services 

10 provided to or performed for the Federal agen11 cy, including any construction services, that is 

12 likely to be unsuitable for award to a small13 business concern due to— 

14 ‘‘(i) the diversity, size, or specialized 

15 nature of the elements of the performance 

16 specified; 

17 ‘‘(ii) the aggregate dollar value of the 

18 anticipated award; 

19 ‘‘(iii) the geographical dispersion of 

20 the contract performance sites; or 

21 ‘‘(iv) any combination of the factors 

22 described in clauses (i), (ii), and (iii); and 

23 ‘‘(B) does not include the use of a bun24 dling methodology for an anticipated award 


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1 with an aggregate dollar value below the dollar 

2 threshold. 

3 ‘‘(4) CHIEF ACQUISITION OFFICER.—The term 

4 ‘Chief Acquisition Officer’ means the employee of a 

5 Federal agency designated as the Chief Acquisition 

6 Officer for the Federal agency under section 16(a) 

7 of the Office of Federal Procurement Policy Act (41 

8 U.S.C. 1702(a)). 

9 ‘‘(5) CONTRACT.—The term ‘contract’ includes, 

10 for purposes of this section, any task order made 

11 pursuant to an indefinite quantity, indefinite deliv12 ery contract. 

13 ‘‘(6) DOLLAR THRESHOLD.—The term ‘dollar 

14 threshold’ means— 

15 ‘‘(A) in the case of a contract for construc16 tion, $5,000,000; and 

17 ‘‘(B) in any other case, $2,000,000. 

18 ‘‘(7) MAJOR DEFENSE ACQUISITION PRO19 GRAM.—The term ‘major defense acquisition pro20 gram’ has the meaning given in section 2430(a) of 

21 title 10, United States Code. 

22 ‘‘(8) PROCUREMENT REQUIREMENT.—The term 

23 ‘procurement requirement’ means a determination 

24 by an agency that a specified good or service is 

25 needed to satisfy the mission of the agency. 


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1 ‘‘(9) SENIOR PROCUREMENT EXECUTIVE.—The 

2 term ‘senior procurement executive’ means an offi3 cial designated under section 16(c) of the Office of 

4 Federal Procurement Policy Act (41 U.S.C. 

5 1702(c)) as the senior procurement executive for a 

6 Federal agency. 

7 ‘‘(b) POLICY.—The head of each Federal agency shall 

8 ensure that the decisions made by the Federal agency re9 garding bundling of contract requirements of the Federal 

10 agency are made with a view to providing small business 

11 concerns with appropriate opportunities to participate as 

12 prime contractors and subcontractors in the procurements 

13 of the Federal agency. 

14 ‘‘(c) CONTRACT BUNDLING.— 

15 ‘‘(1) PROPOSED PROCUREMENTS.—Paragraphs 

16 (2) through (4) shall apply to to a proposed procure17 ment if the proposed procurement— 

18 ‘‘(A) would adversely affect one or more 

19 small business concerns, including the potential 

20 loss of an existing contract; 

21 ‘‘(B) includes, in its statement of work, 

22 goods or services— 

23 ‘‘(i)(I) currently being performed by a 

24 small business; and 


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1 ‘‘(II) if the proposed procurement is 

2 in a quantity or estimated dollar value the 

3 magnitude of which renders small business 

4 prime contract participation unlikely; or 

5 ‘‘(ii)(I) that are of a type that the Ad6 ministrator through market research can 

7 demonstrate that two or more small busi8 nesses are capable of performing; and 

9 ‘‘(II) if the proposed procurement 

10 would be combined with other require11 ments for goods and services; 

12 ‘‘(C) is for construction and— 

13 ‘‘(i) seeks to package or combine dis14 crete construction projects; or 

15 ‘‘(ii) the value of the goods or services 

16 subject to the contract exceeds the dollar 

17 threshold; or 

18 ‘‘(D) is determined by the Administrator 

19 to have a solicitation that involves an unneces20 sary or unjustified bundling of contract require21 ments. 

22 ‘‘(2) RESPONSIBILITY OF THE PROCUREMENT

23 ACTIVITY.—At least 45 days prior to the issuance of 

24 a solicitation, the Procurement Activity shall notify 

25 and provide a copy of the proposed procurement to 


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1 the procurement center representative assigned to 

2 the Procurement Activity. The 45-day notification 

3 process under this paragraph shall occur concur4 rently with other processing steps required prior to 

5 issuance of the solicitation. The notice shall include 

6 a statement setting forth the proposed procurement 

7 strategy required by subsection (e), and explaining— 

8 ‘‘(A) why the proposed acquisition cannot 

9 be divided into reasonably small lots (not less 

10 than economic production runs) to permit offers 

11 on quantities less than the total requirement; 

12 ‘‘(B) if applicable, a list of the incumbent 

13 contractors disaggregated by and including 

14 names, addresses, and whether or not the con15 tractor is a small business concern; 

16 ‘‘(C) a description of the industries that 

17 might be interested in bidding on the contract 

18 requirements; 

19 ‘‘(D) the number of small businesses listed 

20 in the industry categories that could be ex21 cluded from future bidding if the contract is a 

22 bundled contract, including any small business 

23 bidders that had bid on previous procurement 

24 requirements that are included in the bundling 

25 of contract requirements; 


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1 ‘‘(E) why the delivery schedules cannot be 

2 established on a realistic basis that will encour3 age small business participation to the extent 

4 consistent with the actual requirements of the 

5 Government; 

6 ‘‘(F) why the proposed acquisition cannot 

7 be offered so as to make small business partici8 pation likely; 

9 ‘‘(G) why construction cannot be procured 

10 as separate discrete projects; and 

11 ‘‘(H) why the agency has determined that 

12 the bundled contract is necessary and justified. 

13 ‘‘(3) PUBLICATION OF NOTICE STATEMENT.— 

14 Concurrently, the statement required in paragraph 

15 (2) shall be published in the Federal contracting op16 portunities database. 

17 ‘‘(4) RECOMPETITION OF A PREVIOUSLY BUN18 DLED CONTRACT.—If the proposed procurement is a 

19 previously bundled contract that is to be recompeted 

20 as a bundled contract, the Administrator shall deter21 mine, with the assistance of the agency proposing 

22 the procurement— 

23 ‘‘(A) the amount of savings and benefits 

24 (in accordance with subsection (d)) achieved 

25 under the bundling of contract requirements; 


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1 ‘‘(B) whether such savings and benefits 

2 will continue to be realized if the contract re3 mains bundled, and whether such savings and 

4 benefits would be greater if the procurement re5 quirements were divided into separate solicita6 tions suitable for award to small business con7 cerns; 

8 ‘‘(C) the dollar value of subcontracts 

9 awarded to small business concerns under the 

10 bundled contract, disaggregated by North 

11 American Industrial Classification Code; 

12 ‘‘(D) the percentage of subcontract dollars 

13 awarded to small businesses under the bundled 

14 contract, disaggregated by North American In15 dustrial Classification Code; and 

16 ‘‘(E) the dollar amount and percentage of 

17 prime contract dollars awarded to small busi18 nesses in the primary North American Indus19 trial Classification Code for that bundled con20 tract during each of the two fiscal years pre21 ceding the award of the bundled contract and 

22 during each fiscal year of the performance of 

23 the bundled contract. 

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1 panying statement is received, but the Administrator 

2 determines that the proposed procurement is a pro3 posed procurement described in paragraph (1), then 

4 the Administrator shall require that such a state5 ment of work be completed by the Procurement Ac6 tivity and sent to the procurement center representa7 tive and postpone the solicitation process for at least 

8 10 days but not more than 45 days to allow the Ad9 ministrator to review the statement and make rec10 ommendations as described in this section before the 

11 procurement process is continued. 

12 ‘‘(6) RESPONSIBILITY OF THE PROCUREMENT

13 CENTER REPRESENTATIVE.—Within 15 days after 

14 receipt of the proposed procurement and accom15 panying statement, if the procurement center rep16 resentative believes that the procurement as pro17 posed will render small business prime contract par18 ticipation unlikely, the representative shall rec19 ommend to the Procurement Activity alternative pro20 curement methods which would increase small busi21 ness prime contracting opportunities. 

22 ‘‘(7) DISAGREEMENT BETWEEN THE ADMINIS23 TRATION AND THE PROCUREMENT ACTIVITY.— 

24 ‘‘(A) IN GENERAL.—If a small business 

25 concern would be adversely affected, directly or 


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1 indirectly, by the proposed procurement, and 

2 that small business concern or a trade associa3 tion of which that small business concern is a 

4 member so requests, the Administrator may 

5 take action under this paragraph to further the 

6 interests of small businesses. 

7 ‘‘(B) APPEAL TO AGENCY HEAD.—First, 

8 the proposed procurement shall be submitted 

9 for determination to the head of the contracting 

10 agency by the Administrator. 

11 ‘‘(C) FAILURE TO AGREE.—Whenever the 

12 Administrator and the head of the contracting 

13 agency fail to agree— 

14 ‘‘(i) the Administrator, within ten 

15 days after such decision, may file an ap16 peal with the appropriate agency board of 

17 contract appeals; 

18 ‘‘(ii) the board shall provide the Ad19 ministrator and the head of the con20 tracting agency the opportunity to provide 

21 their views on the disputed contract, except 

22 that no oral testimony or oral argument 

23 shall be permitted; and 

24 ‘‘(iii) the board shall render its deci25 sion, which shall be final agency action for 


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1 purposes of chapter 7 of title 5, United 

2 States Code, within 30 days after the ap3 peal has been filed. 

4 ‘‘(D) APPEAL BY AFFECTED SMALL BUSI5 NESS CONCERN TO GAO.—Should the Adminis6 trator choose not to pursue an appeal the ap7 propriate board of contract appeals, a small 

8 business concern that would be adversely af9 fected, directly or indirectly, by the procure10 ment as proposed, or a trade association that 

11 includes such a small business concern as a 

12 member, may bring a protest to the Govern13 ment Accountability Office. If the protest is 

14 brought by a trade association, the trade asso15 ciation shall not be required to identify a spe16 cific member in connection with the protest. 

17 ‘‘(d) MARKET RESEARCH.— 

18 ‘‘(1) IN GENERAL.—Before proceeding with an 

19 acquisition strategy that could lead to a contract 

20 containing bundling of contract requirements, the 

21 head of an agency shall conduct market research to 

22 determine whether bundling of the requirements is 

23 necessary and justified. 

24 ‘‘(2) FACTORS.—For purposes of subsection 

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1 termined as being necessary and justified if, as com2 pared to the benefits that would be derived from 

3 contracting to meet those requirements if not bun4 dled, the Federal Government would derive from the 

5 bundling of contract requirements measurably sub6 stantial benefits, including any combination of bene7 fits that, in combination, are measurably substantial. 

8 ‘‘(3) BENEFITS.—For the purposes of bundling 

9 of contract requirements, benefits described in para10 graph (2) may include the following: 

11 ‘‘(A) Cost savings. 

12 ‘‘(B) Quality improvements. 

13 ‘‘(C) Reduction in acquisition cycle times. 

14 ‘‘(D) Better terms and conditions. 

15 ‘‘(E) Any other benefits. 

16 ‘‘(4) REDUCTION OF COSTS NOT DETERMINA17 TIVE.—For purposes of this subsection: 

18 ‘‘(A) Cost savings shall not include any re19 duction in the use of military interdepartmental 

20 purchase requests or any similar transfer funds 

21 among Federal agencies for the use of a con22 tract issued by another Federal agency. 

23 ‘‘(B) The reduction of administrative or 

24 personnel costs alone shall not be a justification 

25 for bundling of contract requirements unless 


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1 the cost savings are expected to be substantial 

2 in relation to the dollar value of the procure3 ment requirements to be bundled. 

4 ‘‘(5) LIMITATION ON ACQUISITION STRATEGY.— 

5 The head of a Federal agency may not carry out an 

6 acquisition strategy that includes a bundling of con7 tract requirements valued in excess of the dollar 

8 threshold, unless the senior procurement executive 

9 or, if applicable, Chief Acquisition Officer for the 

10 Federal agency, before carrying out the acquisition 

11 strategy certifies to the head of the Federal agency 

12 that steps will be taken to include small business 

13 concerns in the acquisition strategy. 

14 ‘‘(e) STRATEGY SPECIFICATIONS.—If the head of a 

15 contracting agency determines that an acquisition plan or 

16 proposed procurement strategy for a procurement involves 

17 a bundling of contract requirements, the proposed acquisi18 tion plan or procurement strategy shall— 

19 ‘‘(1) identify specifically the benefits anticipated 

20 to be derived from the bundling of contract require21 ments; 

22 ‘‘(2) set forth an assessment of the specific im23 pediments to participation by small business con24 cerns as prime contractors that result from the bun25 dling of contract requirements and specify actions 


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1 designed to maximize small business participation as 

2 subcontractors (including suppliers) at various tiers 

3 under the contract or contracts that are awarded to 

4 meet the requirements; and 

5 ‘‘(3) include a specific determination that the 

6 anticipated measurable benefits of the proposed bun7 dled contract justify its use. 

8 ‘‘(f) CONTRACT TEAMING.—In the case of a solicita9 tion of offers for a bundled contract that is issued by the 

10 head of an agency, a small-business concern may submit 

11 an offer that provides for use of a particular team of sub12 contractors for the performance of the contract. The head 

13 of the agency shall evaluate the offer in the same manner 

14 as other offers, with due consideration to the capabilities 

15 of all of the proposed subcontractors. If a small business 

16 concern teams under this paragraph, it shall not affect 

17 its status as a small business concern for any other pur18 pose. 

19 ‘‘(g) DATABASE, ANALYSIS, AND ANNUAL REPORT

20 REGARDING CONTRACT BUNDLING.— 

21 ‘‘(1) DATABASE.—Not later than 180 days 

22 after the date of the enactment of this subsection, 

23 the Administrator shall develop and shall thereafter 

24 maintain a database containing data and informa25 tion regarding— 


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1 ‘‘(A) each bundled contract awarded by a 

2 Federal agency; and 

3 ‘‘(B) each small business concern that has 

4 been displaced as a prime contractor as a result 

5 of the award of such a contract. 

6 ‘‘(2) ANALYSIS.—For each bundled contract 

7 that is to be recompeted as a bundled contract, the 

8 Administrator shall determine— 

9 ‘‘(A) the amount of savings and benefits 

10 (in accordance with subsection (d)) achieved 

11 under the bundling of contract requirements; 

12 and 

13 ‘‘(B) whether such savings and benefits 

14 will continue to be realized if the contract re15 mains bundled, and whether such savings and 

16 benefits would be greater if the procurement re17 quirements were divided into separate solicita18 tions suitable for award to small business con19 cerns. 

20 ‘‘(3) ANNUAL REPORT ON CONTRACT BUN21 DLING.— 

22 ‘‘(A) IN GENERAL.—Not later than 1 year 

23 after the date of the enactment of this para24 graph, and annually in March thereafter, the 

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1 tract bundling to the Committee on Small Busi2 ness of the House of Representatives and the 

3 Committee on Small Business and Entrepre4 neurship of the Senate. 

5 ‘‘(B) CONTENTS.—Each report trans6 mitted under subparagraph (A) shall include— 

7 ‘‘(i) data on the number, arranged by 

8 industrial classification, of small business 

9 concerns displaced as prime contractors as 

10 a result of the award of bundled contracts 

11 by Federal agencies; and 

12 ‘‘(ii) a description of the activities 

13 with respect to previously bundled con14 tracts of each Federal agency during the 

15 preceding year, including— 

16 ‘‘(I) data on the number and 

17 total dollar amount of all contract re18 quirements that were bundled; and 

19 ‘‘(II) with respect to each bun20 dled contract, data or information 

21 on— 

22 ‘‘(aa) the justification for 

23 the bundling of contract require24 ments; 


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1 ‘‘(bb) the cost savings real2 ized by bundling the contract re3 quirements over the life of the 

4 contract; 

5 ‘‘(cc) the extent to which 

6 maintaining the bundled status 

7 of contract requirements is pro8 jected to result in continued cost 

9 savings; 

10 ‘‘(dd) the extent to which 

11 the bundling of contract require12 ments complied with the con13 tracting agency’s small business 

14 subcontracting plan, including 

15 the total dollar value awarded to 

16 small business concerns as sub17 contractors and the total dollar 

18 value previously awarded to small 

19 business concerns as prime con20 tractors; and 

21 ‘‘(ee) the impact of the bun22 dling of contract requirements on 

23 small business concerns unable to 

24 compete as prime contractors for 

25 the consolidated requirements 


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1 and on the industries of such 

2 small business concerns, includ3 ing a description of any changes 

4 to the proportion of any such in5 dustry that is composed of small 

6 business concerns. 

7 ‘‘(h) BUNDLING ACCOUNTABILITY MEASURES.— 

8 ‘‘(1) TEAMING REQUIREMENTS.—Each Federal 

9 agency shall include in each solicitation for any mul10 tiple award contract above the dollar threshold a 

11 provision soliciting bids from any responsible source, 

12 including responsible small business concerns and 

13 teams or joint ventures of small business concerns. 

14 ‘‘(2) POLICIES ON REDUCTION OF CONTRACT

15 BUNDLING.— 

16 ‘‘(A) IN GENERAL.—Not later than 270 

17 days after the date of enactment of this sub18 paragraph, the Federal Acquisition Regulatory 

19 Council, established under section 25(a) of the 

20 Office of Federal Procurement Policy Act (41 

21 U.S.C. 1302(a)), shall amend the Federal Ac22 quisition Regulation issued under section 25 of 

23 such Act to— 

24 ‘‘(i) establish a Government-wide pol25 icy regarding contract bundling, including 


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1 regarding the solicitation of teaming and 

2 joint ventures; and 

3 ‘‘(ii) require that the policy estab4 lished under clause (i) be published on the 

5 website of each Federal agency. 

6 ‘‘(B) RATIONALE FOR CONTRACT BUN7 DLING.—Not later than 30 days after the date 

8 on which the head of a Federal agency submits 

9 the report required under section 15(h), the 

10 head of the Federal agency shall publish on the 

11 website of the Federal agency a list and ration12 ale for any bundled contract for which the Fed13 eral agency solicited bids or that was awarded 

14 by the Federal agency.’’. 

15 SEC. 3. REPEAL OF REDUNDANT PROVISIONS. 

16 (a) CERTAIN PROVISIONS REGARDING CONTRACT

17 BUNDLING REPEALED.—Section 15(a) of the Small Busi18 ness Act (15 U.S.C. 644(a)), is amended by striking ‘‘If 

19 a proposed procurement includes’’ and all that follows 

20 through ‘‘the matter shall be submitted for determination 

21 to the Secretary or the head of the appropriate depart22 ment or agency by the Administrator.’’. All references in 

23 law to such sentences as they were in effect on the date 

24 that is 1 day prior to the effective date of this Act shall 


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1 be deemed to be references to section 44(d), as added by 

2 this Act. 

3 (b) CERTAIN PROVISIONS REGARDING MARKET RE4 SEARCH REPEALED.—Paragraphs (2) through (4) of sec5 tion 15(e) of the Small Business Act (15 U.S.C. 644(e)) 

6 are repealed. All references in law to such paragraphs, as 

7 in effect on the date that is one day prior to the effective 

8 date of this Act, shall be deemed to be references to sub9 sections (d) through (f), respectively, of section 44 of the 

10 Small Business Act, as added by this section. 

11 (c) CERTAIN PROVISIONS REGARDING CONTRACT

12 BUNDLING DATABASE REPEALED.— 

13 (1) Paragraph (1) of section 15(p) of the Small 

14 Business Act (15 U.S.C. 644(p)) is repealed. 

15 (2) Paragraphs (2) through (4) of section 15(p) 

16 of the Small Business Act (15 U.S.C 644(p)) are re17 pealed. All references in law to such paragraphs, as 

18 in effect on the date that is one day prior to the ef19 fective date of this Act, shall be deemed to be ref20 erences to paragraphs (1) through (3), respectively, 

21 of section 44(h) of the Small Business Act, as added 

22 by this Act. 

23 (d) CERTAIN PROVISIONS REGARDING BUNDLING

24 ACCOUNTABILITY MEASURES REPEALED.—Paragraphs 

25 (1) and (2) of section 15(q) of the Small Business Act 


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1 (15 U.S.C 644(q)) are repealed. All references in law to 

2 such paragraphs, as in effect on the date that is one day 

3 prior to the effective date of this Act, shall be deemed to 

4 be references to paragraphs (1) and (2), respectively, of 

5 section 44(i) of the Small Business Act, as added by this 

6 Act. 

7 (e) CERTAIN PROVISIONS REGARDING.—Subsection 

8 (o) of section 3 of the Small Business Act (15 U.S.C.) 

9 is repealed. 

10 SEC. 4. TECHNICAL AMENDMENTS. 

11 Section 15 of the Small Business Act (15 U.S.C. 644) 

12 is amended— 

13 (1) in the subsection heading of subsection (p), 

14 to read as follows: ‘‘ACCESS TO DATA.’’; and 

15 (2) in the subsection heading of subsection (p), 

16 to read as follows: ‘‘REPORTS RELATED TO PRO17 CUREMENT CENTER REPRESENTATIVES.’’. 

18 SEC. 5. EXPANSION OF AGENCY’S RESPONSIBILITY. 

19 Section 44(b) of the Small Business Act (15 U.S.C. 

20 657q(b)) is amended by striking ‘‘appropriate’’ and insert21 ing ‘‘the maximum practicable’’. 

Æ 


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