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[Congressional Bills 103th Congress]
[From the U.S. Government Publishing Office]
[H.R. 4263 Introduced in House (IH)]

103d CONGRESS
  2d Session
                                H. R. 4263

 To promote the participation of small business enterprises, including 
   minority small businesses, in Federal procurement and Government 
                   contracts, and for other purposes.

_______________________________________________________________________

                    IN THE HOUSE OF REPRESENTATIVES

                             April 20, 1994

 Mr. LaFalce introduced the following bill; which was referred to the 
                      Committee on Small Business

_______________________________________________________________________

                                 A BILL

 
 To promote the participation of small business enterprises, including 
   minority small businesses, in Federal procurement and Government 
                   contracts, and for other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled, That this Act may be 
cited as the ``Small Business and Minority Small Business Procurement 
Opportunities Act of 1994''.

SEC. 2. FUNCTIONS OF SMALL BUSINESS ADMINISTRATION.

    The Small Business Act is amended by adding the following new 
section:
    ``Sec. 29. The Administrator of the Small Business Administration, 
in coordination with other Federal agencies, shall--
            ``(1) develop plans to coordinate and promote the use of 
        the Federal Acquisition Computer Network by small businesses 
        that incorporate outreach efforts by the Administration, agency 
        Offices of Small and Disadvantaged Business Utilization, Small 
        Business Development Centers, and other appropriate 
        organizations; and
            ``(2) inform and provide consistent and comprehensive 
        training on the Network for small businesses.''.

SEC. 3. SMALL BUSINESS RESERVATION.

    Section 15(j) of the Small Business Act (15 U.S.C. 644(j)) is 
amended to read as follows:
    ``(j)(1) Each contract for the procurement of goods and services 
that has an anticipated value not in excess of $100,000 shall be 
reserved exclusively for small business concerns unless the contracting 
officer is unable to obtain offers from two or more small business 
concerns that (A) are competitive with market prices, and (B) are 
competitive with regard to the quality and delivery of the goods or 
services being procured.
    ``(2) In carrying out paragraph (1), a contracting officer shall 
consider any offer that is responsive and that is received in a timely 
manner 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 in excess of $100,000 under the 
authority of--
            ``(A) section 8(a) of this Act;
            ``(B) section 2323 of title 10, United States Code;
            ``(C) section 316 of the Federal Property and 
        Administrative Services Act of 1949; or
            ``(D) section 12 of the Business Opportunity Development 
        Reform Act of 1988 (Public Law 100-656; U.S.C. 644 note).
    ``(4) In the case of contracts referred to in paragraph (1) that 
are entered into with small business concerns, contracting officers 
shall, wherever circumstances permit, provide for the use of fast 
payment terms and the disbursement of payment through electronic fund 
transfer.
    ``(5) A purchase by an executive agency with an anticipated value 
of the micro-purchase threshold or less shall not be subject to the 
small business reserve requirements of paragraph (1) of this 
subsection.''.

SEC. 4. TECHNICAL AND CONFORMING CHANGES.

    (a) Section 3(m) of the Small Business Act (15 U.S.C. 632(m)) is 
amended to read as follows:
    ``(m) For purposes of this Act, the term `simplified acquisition 
threshold' has the meaning given such term in section 4A of the Office 
of Federal Procurement Policy Act (41 U.S.C. 403A) and the term `micro-
purchase threshold' has the meaning given such term in section 4B(e) of 
the Office of Federal Procurement Policy Act (41 U.S.C. 401 et 
seq.).''.
    (b) Section 8(d)(2)(A) of the Small Business Act (15 U.S.C. 
637(d)(2)(A)) is amended by striking out ``does not exceed the small 
purchase threshold'' and inserting in lieu thereof ``is for an amount 
not in excess of the simplified acquisition threshold''.

SEC. 5. CONTRACT GOALS FOR SMALL BUSINESSES OWNED BY ECONOMICALLY AND 
              SOCIALLY DISADVANTAGED INDIVIDUALS AND FOR CERTAIN 
              INSTITUTIONS OF HIGHER EDUCATION.

    Section 8(g) of the Small Business Act is amended to read as 
follows:
    ``(g)(1) The President annually shall establish Government-wide 
goals for procurement contracts awarded to small business concerns and 
small business concerns owned and controlled by socially and 
economically disadvantaged individuals. 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.
    ``(2) A goal of 5 percent of the amount described in paragraph (5) 
shall be the objective of an executive agency in each of fiscal years 
1994 through 2000 for the total combined amount obligated for contracts 
and subcontracts entered into with--
            ``(A) small business concerns, including mass media and 
        advertising firms, owned and controlled by socially and 
        economically disadvantaged individuals, the majority of the 
        earnings of which directly accrue to such individuals;
            ``(B) historically Black colleges and universities, 
        including any nonprofit research institution that was an 
        integral part of such a college or university before November 
        14, 1986; and
            ``(C) minority institutions (as defined in section 1046(3) 
        of the Higher Education Act of 1965 (20 U.S.C. 1135d-5(3)), 
        which, for the purposes of this section, shall include 
        Hispanic-serving institutions (as defined in section 316(b)(1) 
        of such Act (20 U.S.C. 1059c(b)(1)).
    ``(3) The head of the agency shall establish a specific goal within 
the overall 5 percent goal for the award of prime contracts and 
subcontracts to historically Black colleges and universities and 
minority institutions in order to increase the participation of such 
colleges and universities in the program provided for by this 
subsection.
    ``(4) The administration, in consultation with the Administrator of 
the Office of Federal Procurement Policy, shall provide procedures or 
guidelines for contracting officers to set goals which executive agency 
prime contractors that are required to submit subcontracting plans 
under subsection (d) in furtherance of the agency's program to meet the 
5 percent goal specified in paragraph (2) should meet in awarding 
subcontracts, including subcontracts to minority-owned media, to 
entities described in that paragraph.
    ``(5) The requirements of paragraphs (2) through (4) for any fiscal 
year apply to the total value of all prime contract awards entered into 
by the executive agency for such fiscal year.
    ``(6) (A) To attain the goal specified in paragraph (2), the head 
of the agency shall provide technical assistance to the entities 
referred to in that subsection and, in the case of historically Black 
colleges and universities and minority institutions, shall also provide 
infrastructure assistance.
    ``(B) Technical assistance provided under this section shall 
include information about the program, advice about the agency's 
procurement procedures, instruction in preparation of proposals, and 
other such assistance as the agency head considers appropriate. If the 
resources of the executive agency are inadequate to provide such 
assistance, the agency head may enter into contracts with minority 
private sector entities with experience and expertise in the design, 
development, and delivery of technical assistance services to eligible 
individuals, business firms and institutions, acquisition agencies, and 
prime contractors. Agency contracts with such entities shall be awarded 
annually, based upon, among other things, the number of minority small 
business concerns, historically Black colleges and universities, and 
minority institutions that each such entity brings into the program.
    ``(C) The agency head shall, to the maximum extent practical, carry 
out programs under this section at colleges, universities, and 
institutions that agree to bear a substantial portion of the cost 
associated with the programs.
    ``(7) To attain the goal of paragraph (2),
            ``(A) The head of the agency shall--
                    ``(i) ensure that substantial progress is made in 
                increasing awards of agency contracts to entities 
                described in paragraph (2);
                    ``(ii) exercise his utmost authority, 
                resourcefulness, and diligence; and
                    ``(iii) actively monitor and assess the progress of 
                prime contractors of the agency in attaining such goal.
            ``(B) In making the assessment under subparagraph (A)(iii), 
        the agency head shall evaluate the extent to which use of the 
        authority provided in paragraphs (C) and (D) and compliance 
        with the requirement in paragraph (E) is effective for 
        facilitating the attainment of the goal.
            ``(C) To the extent practicable and when necessary to 
        facilitate achievement of the 5 percent goal described in 
        paragraph (2), the agency head shall make advance payments 
        under section 305 of title III of the Federal Property and 
        Administrative Services Act of 1949 (41 U.S.C. 251 et seq.) to 
        contractors described in paragraph (2). The Federal Acquisition 
        Regulation shall provide guidance to contracting officers for 
        making advance payments to entities described in subsection 
        (a)(1) under such section.
            ``(D) To the extent practicable and when necessary to 
        facilitate achievement of the 5 percent goal described in 
        paragraph (2), the agency head may enter into contracts using 
        less than full and open competitive procedures (including 
        awards under subsection (a) of this section) and partial set 
        asides for entities described in paragraph (2), but shall pay a 
        price not exceeding fair market cost by more than 10 percent in 
        payment per contract to contractors or subcontractors described 
        in paragraph (2). The agency head shall adjust the percentage 
        specified in the preceding sentence for any industry category 
        if available information clearly indicates that 
        nondisadvantaged small business concerns in such industry 
        category are generally being denied a reasonable opportunity to 
        compete for contracts because of the use of that percentage in 
        the application of this paragraph.
            ``(E) To the extent practicable, the agency head shall 
        maximize the number of minority small business concerns, 
        historically Black colleges and universities, and minority 
        institutions participating in the program.
            ``(F) The administration, in consultation with the 
        Administrator of the Office of Federal Procurement Policy, 
        shall prescribe regulations which provide for the following:
                    ``(i) Procedures or guidance for contracting 
                officers to provide incentives for prime contractors 
                described in paragraph (2) to increase subcontractor 
                awards to entities described in such paragraph.
                    ``(ii) A requirement that contracting officers 
                emphasize the award of contracts to entities described 
                in paragraph (2) in all industry categories, including 
                those categories in which such entities have not 
                traditionally dominated.
                    ``(iii) Guidance to executive agency personnel on 
                the relationship among the following programs:
                            ``(I) The program implementing this 
                        subsection.
                            ``(II) The program established under 
                        subsection (a).
                            ``(III) The small business set-aside 
                        program established under section 15(a) of this 
                        Act (15 U.S.C. 644(a)).
                    ``(iv) With respect to an agency procurement which 
                is reasonably likely to be set aside for entities 
                described in paragraph (2), a requirement that (to the 
                maximum extent practicable) the procurement be 
                designated as such a set-aside before the solicitation 
                for the procurement is issued.
                    ``(v) Policies and procedures which, to the maximum 
                extent practicable, will ensure that current levels in 
                the number or dollar value of contracts awarded under 
                the program established under subsection (a) (15 U.S.C. 
                637(a)) and under the small business set-aside program 
                established under section 15(a) of this Act (15 U.S.C. 
                644(a)) are maintained and that every effort is made to 
                provide new opportunities for contract awards to 
                eligible entities, in order to meet the goal of 
                paragraph (2).
                    ``(vi) Implementation of this section in a manner 
                which will not alter the procurement process under the 
                program established under subsection (a) of this Act 
                (15 U.S.C. 637(a)).
                    ``(vii) A requirement that one factor used in 
                evaluating the performance of a contracting officer be 
                the ability of the officer to increase contract awards 
                to entities described in paragraph (2).
                    ``(viii) Increased technical assistance to entities 
                described in paragraph (2).
    ``(8)(A) Whoever for the purpose of securing a contract or 
subcontract under paragraph (2), misrepresents the status of any 
concern or person as a small business concern owned and controlled by a 
minority (as described in paragraph (2), shall be punished by 
imprisonment for not more than one year or a fine of not less than 
$10,000, or both.
    ``(B) The Federal Acquisition Regulation shall prohibit awarding a 
contract under this section to an entity described in paragraph (2) 
unless the entity agrees to comply with the requirements of section 
15(o)(1) of this Act (15 U.S.C. 644(o)(1)).
    ``(9)(A) To the maximum extent practicable, the head of the agency 
shall--
            ``(i) ensure that no particular industry category bears a 
        disproportionate share of the contracts awarded to attain the 
        goal established by paragraph (2); and
            ``(ii) ensure that contracts awarded to attain the goal 
        established by paragraph (2) are made across the broadest 
        possible range of industry categories.
    ``(B) Under procedures prescribed by the head of the agency and 
approved by the administration, a person may request the agency head to 
determine whether the use of small disadvantaged business set asides by 
a contracting activity of the 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 for the 
purposes of this subsection. Upon making a determination that a 
particular industry category is bearing a disproportionate share, the 
agency head shall take appropriate actions to limit the contracting 
activity's use of set asides in awarding contracts in that particular 
industry category.
    ``(10)(A) The administration shall issue regulations to ensure that 
potential contractors submitting sealed bids or competitive proposals 
to the executive agency for procurement contracts to be awarded under 
the program provided for by this subsection are complying with 
applicable subcontracting plan requirements of subsection (d) of this 
Act (15 U.S.C. 637(d)).
    ``(B) The regulations required by paragraph (A) shall ensure that, 
with respect to a sealed bid or competitive proposal for which the 
bidder or offeror is required to negotiate or submit a subcontracting 
plan under subsection (d) of this Act (15 U.S.C. 637(d)), the 
subcontracting plan shall be a factor in evaluating the bid or 
proposal.
    ``(11)(A) Not later than December 15 of each year, the 
administration shall submit to Congress a report on the progress of 
each executive agency toward attaining the goal of paragraph (2) during 
the preceding fiscal year.
    ``(B) The report required under paragraph (A) shall include a 
description of--
            ``(i) the degree of participation by small businesses owned 
        and controlled by socially and economically disadvantaged 
        individuals in procurements conducted by each executive agency; 
        and
            ``(ii) the extent of compliance by executive agencies with 
        the goals for participation by such businesses required by 
        paragraph (1), relating to Government-wide small business and 
        small disadvantaged business goals for procurement contracts.
    ``(12) This subsection shall not be construed as modifying or 
superseding any other provision of law establishing a goal or 
requirement for an agency to obligate 5 percent or more of the total 
value of all prime contract awards entered into by the agency for a 
fiscal year with any entity described in paragraph (2).
    ``(13) The Coast Guard and the National Aeronautics and Space 
Administration (notwithstanding section 302(a)(1)) of the Federal 
Property and Administrative Services Act of 1949 (41 U.S.C. 251 et 
seq.) shall each be considered to be an executive agency for the 
purposes of this subsection.
    ``(14) This subsection applies to each of fiscal years 1994 through 
2000.''.

SEC. 6. TEST OF INNOVATIVE AND ALTERNATIVE PROCUREMENT PROCEDURES.

    Section 8(g) of the Small Business Act (15 U.S.C. 637(g)) (as 
amended by section 5 of this Act) is further amended by inserting the 
following:
            ``(15) The requirements of subsections (e) and (f) of this 
        section may be waived by the Administrator of the Office of 
        Federal Procurement Policy after consultation with the 
        Administrator of the Small Business Administration in 
        conducting innovative and alternative procurement test programs 
        under section 9001 of the Federal Acquisition Improvement Act 
        of 1994.''.

                                 <all>

HR 4263 IH----2
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