I

106TH CONGRESS

2D SESSION H. R. 4943

To amend the Small Business Act to require that certain acquisitions of

goods and services be from small business concerns and to authorize

certain acquisitions using a governmentwide commercial purchase card,

and for other purposes.

IN THE HOUSE OF REPRESENTATIVES

JULY 25, 2000

Mr. BARTLETT of Maryland introduced the following bill; which was referred

to the Committee on Small business, and in addition to the Committee

on Government Reform, for a period to be subsequently determined by

the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned

A BILL

To amend the Small Business Act to require that certain

acquisitions of goods and services be from small business

concerns and to authorize certain acquisitions using a

governmentwide commercial purchase card, 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 ‘‘Small Business Fed5 eral Acquisition Simplification Act of 2000’’.
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1 SEC. 2. PROCUREMENT USING GOVERNMENTWIDE COM2 MERCIAL PURCHASE CARDS.

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

4 is amended by adding at the end the following new sub5 section:

6 ‘‘(p) PROCUREMENT USING GOVERNMENTWIDE COM7 MERCIAL PURCHASE CARDS.—

8 ‘‘(1) DEFINITIONS.—In this subsection, the fol9 lowing definitions apply:

10 ‘‘(A) AUTHORIZED INDIVIDUAL.—The

11 term ‘authorized individual’ means a person

12 who has been granted authority, in accordance

13 with Federal agency procedures, to acquire

14 goods or services using a governmentwide com15 mercial purchase card.

16 ‘‘(B) GOODS OR SERVICES.—The term

17 ‘goods or services’ means all goods, supplies,

18 and services (including construction services, re19 search and development services, and commer20 cial items) offered for sale or otherwise pro21 vided by a small business concern.

22 ‘‘(C) GOVERNMENTWIDE COMMERCIAL

23 PURCHASE CARD.—The term ‘governmentwide

24 commercial purchase card’ means a purchase

25 card issued to authorized individuals to use to

26 acquire and pay for goods or services.
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1 ‘‘(2) ACQUISITION REQUIREMENT.—Each ac2 quisition of goods or services by an authorized indi3 vidual using a governmentwide commercial purchase

4 card shall be from small business concerns unless no

5 small business concern—

6 ‘‘(A) provides goods or services of the same

7 kind or a comparable nature;

8 ‘‘(B) can provide the goods or services

9 within the required time schedule; or

10 ‘‘(C) can meet the quality standards estab11 lished in writing by the agency for the goods or

12 services to be acquired.

13 ‘‘(3) BLIND OR SEVERELY DISABLED VEN14 DORS.—Nothing in this subsection shall be con15 strued to change or modify any requirement under

16 any provision of the Javits-Wagner-O’Day Act (41

17 U.S.C. 46 et seq.) that goods or services be acquired

18 from people who are blind or who are severely dis19 abled.

20 ‘‘(4) ACQUISITIONS FROM ENTITIES OTHER

21 THAN SMALL BUSINESS CONCERNS.—If, using a gov22 ernmentwide commercial purchase card, an author23 ized individual acquires goods or services that are

24 available from a small business concern from an en-
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1 tity other than a small business concern, the author2 ized individual shall—

3 ‘‘(A) report the acquisition to the person in

4 the authorized individual’s agency who is re5 sponsible for acquisition; and

6 ‘‘(B) document the reasons for not acquir7 ing the goods or services from a small business

8 concern.

9 ‘‘(5) SMALL-VALUE ACQUISITIONS.—Before

10 making any acquisition using a governmentwide

11 commercial purchase card of goods or services hav12 ing an anticipated dollar value of $2,500 or less, an

13 authorized individual shall not be required to obtain

14 individual price information or price quotations for

15 the goods or services, but may consider—

16 ‘‘(A) the nature of the goods or services to

17 be acquired, whether the market for such goods

18 or services is highly competitive, and whether

19 the goods or services are readily available;

20 ‘‘(B) information obtained in making re21 cent acquisitions of the same or similar goods

22 or services;

23 ‘‘(C) the dollar amount of the proposed ac24 quisition; or
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1 ‘‘(D) past experience concerning the prices

2 of specific vendors.

3 ‘‘(6) AUTHORITY FOR MODERATE-VALUE ACQUI4 SITIONS.—

5 ‘‘(A) IN GENERAL.—Subject to paragraph

6 (2), an authorized individual may acquire using

7 a governmentwide commercial purchase card

8 goods or services having an anticipated dollar

9 value of more than $2,500 but not more than

10 $25,000, only if the authorized individual ob11 tains pricing information (that includes the

12 maximum benefit of any discounts) from not

13 less than 2 small business concerns that deal in

14 the type or kind of goods or services sought.

15 ‘‘(B) SOURCE OF PRICING INFORMA16 TION.—The pricing information referred to in

17 subparagraph (A) may be based on any of the

18 following:

19 ‘‘(i) Printed price lists or catalogs.

20 ‘‘(ii) Oral or written price quotations

21 or offers from small business concerns that

22 deal in the type or kind of goods or serv23 ices sought.

24 ‘‘(iii) Prices obtained from electronic

25 media such as the Internet.
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1 ‘‘(C) CONSIDERATIONS.—When making an

2 acquisition under this paragraph, in addition to

3 considerations of price, an authorized individual

4 may consider information such as previous ex5 perience with the vendor of the goods or serv6 ices, customer surveys, or other reasonable

7 bases.

8 ‘‘(7) AUTHORITY FOR LARGE-VALUE ACQUISI9 TIONS.—

10 ‘‘(A) IN GENERAL.—Subject to paragraph

11 (2), an authorized individual may acquire using

12 a governmentwide commercial purchase card

13 goods or services having an anticipated dollar

14 value of more than $25,000, but not more than

15 $100,000, only if the authorized individual—

16 ‘‘(i) advertises the proposed acquisi17 tion by electronic media such as the Inter18 net not fewer than 12 days before the ac19 quisition;

20 ‘‘(ii) considers all price quotations

21 that are received in a timely manner; and

22 ‘‘(iii) solicits price quotations or offers

23 from at least 3 small business concerns

24 that deal in the type or kind of goods or
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1 services sought, including at least 1 of the

2 following:

3 ‘‘(I) A small business concern

4 owned and controlled by socially and

5 economically disadvantaged individ6 uals.

7 ‘‘(II) A small business concern

8 owned and controlled by women.

9 ‘‘(III) A small business concern

10 owned and controlled by veterans.

11 ‘‘(B) CONSIDERATIONS.—When making an

12 acquisition under this paragraph, in addition to

13 considerations of price, an authorized individual

14 shall consider—

15 ‘‘(i) the nature of the goods or serv16 ices to be acquired, whether the market for

17 such goods or services is highly competi18 tive, and whether the goods or services are

19 readily available in several makes or

20 brands;

21 ‘‘(ii) any information regarding the

22 vendor’s past performance with respect to

23 recent acquisitions of the same or similar

24 items; and
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1 ‘‘(iii) the urgency of the proposed ac2 quisition.

3 ‘‘(8) SOURCE LISTS.—

4 ‘‘(A) IN GENERAL.—Each agency shall

5 maintain, or contribute to the maintenance of,

6 a comprehensive source list (in written or elec7 tronic form) of small business concerns that are

8 vendors of goods or services of the kind likely

9 to be acquired by the agency.

10 ‘‘(B) STATUS OF VENDOR.—Each list de11 scribed in subparagraph (A) shall identify

12 whether each vendor on the list is any of the

13 following:

14 ‘‘(i) A small business concerns owned

15 and controlled by socially and economically

16 disadvantaged individuals.

17 ‘‘(ii) A small business concern owned

18 and controlled by women.

19 ‘‘(iii) A small business concern owned

20 and controlled by veterans.

21 ‘‘(9) PUBLICATION AND REPORTING REQUIRE22 MENTS.—

23 ‘‘(A) IN GENERAL.—Not later than 90

24 days after the end of each fiscal year, each Fed25 eral agency shall publish in the Federal Reg-
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1 ister, and transmit to the Office of Advocacy of

2 the Small Business Administration, information

3 regarding acquisitions made under this sub4 section.

5 ‘‘(B) CONTENTS.—The information pub6 lished and reported under subparagraph (A)

7 shall include each of the following:

8 ‘‘(i) The total dollar value of acquisi9 tions under this subsection.

10 ‘‘(ii) The total dollar value of acquisi11 tions from small business concerns.

12 ‘‘(iii) The total dollar value of acquisi13 tions from entities that are not small busi14 ness concerns.

15 ‘‘(iv) The total dollar value of acquisi16 tions from small business concerns owned

17 and controlled by socially and economically

18 disadvantaged individuals.

19 ‘‘(v) The total dollar value of acquisi20 tions from small business concerns owned

21 and controlled by women.

22 ‘‘(vi) The total dollar value of acquisi23 tions from small business concerns owned

24 and controlled by veterans.’’.
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1 SEC. 3. PROCUREMENT AUDIT AND REPORT TO CONGRESS.

2 (a) IN GENERAL.—The Comptroller General of the

3 United States shall conduct an audit of the books and ac4 counts of the 10 largest Federal agencies (as measured

5 by the total dollar amount of acquisitions) acquiring goods

6 or services using governmentwide commercial purchase

7 cards.

8 (b) REPORT.—

9 (1) IN GENERAL.—Not later January 1, 2002,

10 the Comptroller General of the United States shall

11 transmit to the Committees on Small Business of

12 the House of Representatives and the Senate a re13 port containing the results of the audit conducted

14 under subsection (a) and information regarding com15 pliance with the requirements of this Act

16 (2) CONTENTS.—The report described in para17 graph (1) shall specifically address the each of the

18 following with respect to each Federal agency:

19 (A) The total dollar amount of goods or

20 services acquired in acquisitions of $100,000 or

21 less that were acquired from small business

22 concerns, and the total dollar amount of such

23 acquisitions that were acquired from entities

24 other than small business concerns.

25 (B) The total dollar amount of goods or

26 services acquired in acquisitions of $2,500 or
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1 less that were acquired using a governmentwide

2 commercial purchase card from small business

3 concerns, and the total dollar amount of such

4 acquisitions from entities other than small busi5 ness concerns.

6 (C) The total dollar amount of goods or

7 services acquired in acquisitions of $100,000 or

8 less from each of the following:

9 (i) Small business concerns owned and

10 controlled by socially and economically dis11 advantaged individuals.

12 (ii) Small business concerns owned

13 and controlled by women.

14 (iii) Small business concerns owned

15 and controlled by veterans.

16 (D) The total dollar amount of goods or

17 services acquired in acquisitions of $100,000 or

18 less using a governmentwide commercial pur19 chase card from each of the types of small busi20 ness concerns listed in clauses (i) through (iii)

21 of subparagraph (C).

22 (E) Information regarding the source lists

23 maintained pursuant to section 15(p)(8) of the

24 Small Business Act, as added by section 2 of

25 this Act, and information evaluating how com-
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1 prehensive such lists are and how accurate such

2 lists are in identifying whether a source is a

3 small business concern, a small business con4 cern owned and controlled by socially and eco5 nomically disadvantaged individuals, small busi6 ness concern owned and controlled by women,

7 small business concern owned and controlled by

8 veterans.

9 (F) Information regarding each rule, regu10 lation, directive and policy statement that was

11 issued to implement this Act.

12 (G) Any recommendations to the agency

13 for improving compliance with the requirements

14 of this Act and any recommendations for legis15 lative changes to minimize noncompliance and

16 to increase Federal acquisition from small busi17 ness concerns.

18 (c) DEFINITIONS.—In this section, the following defi19 nitions apply:—

20 (1) GOODS OR SERVICES.—The term ‘‘goods or

21 services’’ has the meaning given such term in section

22 15(p)(1)(B) of the Small Business Act (as added by

23 section 2 of this Act).

24 (2) GOVERNMENTWIDE COMMERCIAL PURCHASE

25 CARD.—The term ‘‘governmentwide commercial pur-
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1 chase card’’ has the meaning given such term in sec2 tion 15(p)(1)(C) of the Small Business Act (as

3 added by section 2 of this Act).

4 SEC. 4. DIRECT PAYMENT TO SUBCONTRACTORS.

5 (a) IN GENERAL.—Section 8(d) of the Small Busi6 ness Act (15 U.S.C. 637(d)) is amended by—

7 (1) redesignating paragraphs (8), (9), (10), and

8 (11) as (9), (10), (11), and (12), respectively; and

9 (2) by inserting after paragraph (7) the fol10 lowing new paragraph:

11 ‘‘(8) TIMELY PAYMENT TO SMALL BUSINESS

12 SUBCONTRACTORS.—

13 ‘‘(A) IN GENERAL.—Subject to subpara14 graph (B), the failure of a prime contractor to

15 make timely payment to a subcontractor that is

16 a small business concern shall be a material

17 breach of the contract with the Federal agency.

18 ‘‘(B) CONSIDERATION OF PERFORM19 ANCE.—Prior to making any determination of

20 failure for the purposes of subparagraph (A),

21 the contracting officer shall consider all reason22 able issues regarding the performance, or lack

23 of performance, of the subcontractor.

24 ‘‘(C) WITHHOLDING OF PAYMENTS.—At

25 any time before the date that is 30 days after
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1 the date of a breach described in subparagraph

2 (A), the Federal agency may withhold any

3 amounts due and owing the subcontractor from

4 payments due to the prime contractor and make

5 direct payment of such amounts to the subcon6 tractor.’’.

7 (b) REGULATIONS.—Not later than 180 days after

8 the date of enactment of this Act, the Federal Acquisition

9 Regulation and the Defense Acquisition Regulation shall

10 be amended to implement the amendment made by sub11 section (a).

12 SEC. 5. SUBCONTRACTING CERTIFICATION.

13 Section 8(d)(6) of the Small Business Act (15 U.S.C.

14 637(d)(6)) is amended by—

15 (1) in subparagraph (H) (as redesignated by

16 section 6), by striking ‘‘and’’ at the end;

17 (2) in subparagraph (I) (as redesignated by sec18 tion 6), by striking the period at the end and insert19 ing ‘‘; and’’; and

20 (3) by inserting at the end the following new

21 subparagraph:

22 ‘‘(J) certification that the offeror or bidder

23 will acquire articles, equipment, supplies, serv24 ices, or materials or obtain the performance of

25 construction work from subcontractors named
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1 in the bid or proposal and in the amount and

2 quality used in preparing the bid or proposal

3 unless the subcontractor is no longer in busi4 ness or can no longer meet the quality, quan5 tity, or delivery date.’’.

6 SEC. 6. INTERNET ANNOUNCEMENTS OF CERTAIN SUBCON7 TRACTING OPPORTUNITIES.

8 Section 8(d)(6) of the Small Business Act (15 U.S.C.

9 637(d)(6)) is amended by—

10 (1) redesignating subparagraphs (D), (E), and

11 (F) as (G), (H), and (I), respectively; and

12 (2) by inserting after subparagraph (C) the fol13 lowing:

14 ‘‘(D) assurances that the offeror or bidder

15 will provide information concerning subcon16 tracting opportunities on an appropriate Inter17 net site accessible to small business concerns

18 (including small business concerns owned and

19 controlled by socially and economically dis20 advantaged individuals, small business concerns

21 owned and controlled by women, and small

22 business concerns owned and controlled by vet23 erans);

24 ‘‘(E) not later than 10 days after the

25 award of a contract for which a subcontracting
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1 plan is required under paragraph (4) or (5), the

2 offeror or bidder shall provide on the Internet—

3 ‘‘(i) the name and address of the of4 feror or bidder;

5 ‘‘(ii) the name, title, telephone, and

6 facsimile transmission number, and elec7 tronic mail and postal address of the indi8 vidual within the employ of the offeror or

9 bidder who is responsible for administering

10 the subcontracting program; and

11 ‘‘(iii) a list of anticipated subcon12 tracting opportunities including a descrip13 tion of the quality, quantity, and antici14 pated acquisition and delivery dates of the

15 goods or services, the provision or perform16 ance of which is to be subcontracted;

17 ‘‘(F) in order to ensure that small business

18 concerns have an equitable opportunity to com19 pete for subcontracts, not less than 30 days be20 fore the award of a contract with respect to

21 each subcontracting opportunity, each bidder or

22 offeror required to submit a subcontracting

23 plan shall provide on the Internet—

24 ‘‘(i) the name and address of offeror

25 or bidder;
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1 ‘‘(ii) the name, title, telephone and

2 facsimile transmission number, and elec3 tronic mail and postal address of the indi4 vidual within the employ of the offeror or

5 bidder who is the buyer for the particular

6 acquisition;

7 ‘‘(iii) a description of the quality,

8 quantity, and anticipated acquisition and

9 delivery date of the goods or services to be

10 acquired, and, if applicable, the any no11 menclature, any National Stock Number or

12 other part number, and a brief description

13 of the form, fit, or function, physical di14 mensions, predominant material or manu15 facture, of the goods or services, or similar

16 information that will assist a prospective

17 subcontractor bid on the subcontracting

18 opportunity;

19 ‘‘(iv) the procurement procedures to

20 be followed in awarding the subcontract;

21 and

22 ‘‘(v) a statement that all responsible

23 sources that are small business concerns

24 may submit a bid, proposal, or quotation,

25 as appropriate.’’.
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1 SEC. 7. DEFINITION OF INTERNET.

2 Section 3 of the Small Business Act (15 U.S.C. 632)

3 is amended by adding at the end the following new sub4 section:

5 ‘‘(r) DEFINITION OF INTERNET.—In this Act,

6 the term ‘Internet’ has the meaning given such term

7 in section 230(f)(1) of the Communications Act of

8 1934.’’.

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