House Report 112-726 - SMALL BUSINESS PROCUREMENT IMPROVEMENT ACT OF 2012[House Report 112-726]
[From the U.S. Government Printing Office]


112th Congress                                            Rept. 112-726
                        HOUSE OF REPRESENTATIVES
 2d Session                                                      Part 1

======================================================================



 
           SMALL BUSINESS PROCUREMENT IMPROVEMENT ACT OF 2012

                                _______
                                

 December 21, 2012.--Committed to the Committee of the Whole House on 
            the State of the Union and ordered to be printed

                                _______
                                

Mr. Graves of Missouri, from the Committee on Small Business, submitted 
                             the following

                              R E P O R T

                        [To accompany H.R. 4118]

    The Committee on Small Business, to whom was referred the 
bill (H.R. 4118) to amend the Small Business Act to provide for 
increased small business participation in multiple award 
contracts, and for other purposes, having considered the same, 
report favorably thereon without amendment and recommend that 
the bill do pass.

                                CONTENTS

                                                                   Page
   I. Purpose of the Bill and Summary.................................1
  II. Background and the Need for Legislation.........................2
 III. Hearings........................................................4
  IV. Committee Consideration.........................................4
   V. Committee Votes.................................................4
  VI. Section-by-Section Analysis of H.R. 4118........................4
 VII. Unfunded Mandates...............................................5
VIII. New Budget Authority, Entitlement Authority, and Tax Expenditure5
  IX. Oversight Findings..............................................6
   X. Statement of Constitutional Authority...........................6
  XI. Congressional Accountability Act................................6
 XII. Federal Advisory Committee Statement............................6
XIII. Statement of No Earmarks........................................6
 XIV. Performance Goals and Objectives................................6
  XV. Changes in Existing Law Made by the Bill, as Reported...........7

                      I. Purpose and Bill Summary

    The purpose of H.R. 4118, the ``Small Business Procurement 
Improvement Act of 2012,'' is to amend the Small Business Act 
(the Act)\1\ to address a miscellany of important small 
business procurements policy matters. First, the legislation 
seeks to improve participation by small businesses in multiple 
award contracts (MACs) by encouraging outreach and mandating 
that the President establish government-wide goals for small 
business participation in such contracting vehicles. Second, 
the bill raises the small business reserve to $200,000 and 
makes it applicable to MACs. Finally, the legislation expands 
the Federal Acquisition Regulatory (FAR) Council to include the 
Administrator of the Small Business Administration (SBA).
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    \1\Originally, title II of the Act of July 30, 1953, c. 282, 67 
Stat. 232 was designated as the Small Business Act of 1953. A plethora 
of amendments in subsequent Congresses led to a rewrite in 1958. Pub. 
L. No. 85-536, Sec. 1, 72m Stat. 384 (1958). The Act is codified at 15 
U.S.C. Sec. Sec. 631-657q.
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                        II. Need for Legislation

    The Act iterates Congress's belief in the importance of 
small business participation in federal prime contracts and the 
resultant subcontracts. Specifically, the Act directs that:

          To effectuate the purpose of this Act, small-business 
        concerns within the meaning of this Act 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 in the interest of assuring 
        that a fair proportion of the total purchase 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 be made to small-business concerns.\2\
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    \2\Id. at Sec. 644(a).

    MACs account for a significant portion of federal contract 
spending, yet their relationship with the Act remains 
ambiguous. For example, the largest of the MACs is the General 
Services Administration's (GSA's) Multiple Award Schedules 
(MAS) Program, which accounts for approximately 10% of all 
federal contract dollars spent each year.\3\ However, the MAS 
program does not reserve all awards under $150,000 for small 
businesses as required by section (j) of the Act.\4\ Likewise, 
traditional contracts over $150,000 should be set aside for 
small business if the contracting officer determines that at 
least two small businesses will make offers, and an award can 
be made at a fair price, and additional set-asides are 
permitted for subcategories of small businesses.\5\ Indeed, 
task orders under the MAS program were held exempt from all set 
asides until the Small Business Jobs Act was enacted in 
2010.\6\ This was based on the interpretation that only 
contracts, not task orders, could be set aside.\7\ With the 
enactment of Section 1331 of the Small Business Jobs Act, 
discretionary set-asides rather than the primary evaluation 
factor process were permitted. Specifically, Section 1331 of 
the law requires regulations that will allow agencies to, at 
their discretion:
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    \3\GSA, For Vendors--Getting on Schedule, available at http://
www.gsa.gov/portal/category/100635 [hereinafter Getting on Schedule].
    \4\15 U.S.C. Sec. 644(i).
    \5\48 C.F.R. Sec. 19.502-2(b). For a detailed explanation of all 
the small business contracting programs, please see the Committee 
memorandum ``Small Business Programs: Misrepresentation and Fraud in 
the Certification Process'' (October 21, 2011).
    \6\Pub. L. No. 111-240, Sec. 1331, 124 Stat. 2536, 2541 (2010).
    \7\The Government Accountability Office (GAO) rejected this 
rationale and recognized the validity of set-asides on MAS Program for 
some time. See, e.g., Delex Sys. Inc., B-400403. 2008 CPD 181. 
However, GSA long argued that such set-asides were not allowed under 
the fair opportunity provisions of the Federal Acquisition Streamlining 
Act, 41 U.S.C. Sec. 4106, and rejected the GAO decisions.
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          (1) set aside part or parts of a multiple award 
        contract for small business concerns, including the 
        subcategories of small business concerns identified [15 
        U.S.C. Sec. 644] (g)(2);
          (2) notwithstanding the fair opportunity requirements 
        under [10 U.S.C. Sec. 2304c(b)], and [41 U.S.C. 
        Sec. 4106], set aside orders placed against multiple 
        award contracts for small business concerns, including 
        the subcategories of small business concerns identified 
        in [15 U.S.C. Sec. 644] (g)(2); and
          (3) reserve 1 or more contract awards for small 
        business concerns under full and open multiple award 
        procurements, including the subcategories of small 
        business concerns identified in [15 U.S.C. Sec. 644] 
        (g)(2).\8\
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    \8\Id.
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    While final rules enacting these changes are still pending, 
the current statutory provisions fail to create the necessary 
opportunities within MACs for small businesses. On the $50 
billion in annual MAS Program sales, any protections afforded 
to small businesses are simply voluntary, so commercial goods 
and services that are suitable for award to small businesses 
are being awarded elsewhere. As the Federal government is not 
currently meeting the small business contracting goals 
established in Section 15(g) of the Act,\9\ additional 
legislation is required.
---------------------------------------------------------------------------
    \9\15 U.S.C. Sec. 644(g).
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    Furthermore, under current law small businesses do not have 
a voice on the Federal Acquisitions Regulatory (FAR) Council, 
whose mission is to ``assist in the direction and coordination 
of Government-wide procurement policy and procurement 
regulatory activities in the Federal Government.''\10\ This 
puts small firms at a distinct disadvantage in government 
contracting, as no one is continuously advocating and 
monitoring the effects changes to the Federal Acquisition 
Regulations will have on small businesses. Given that, this 
legislation places the Small Business Administrator on the FAR 
Council to ensure that small businesses are represented and 
their concerns addressed when proposing or amending regulations 
that affect federal procurement.
---------------------------------------------------------------------------
    \10\41 U.S.C. Sec. 421(a).
---------------------------------------------------------------------------
    Finally, under the Act the current reserve for small 
business contracting is set at $100,000. However, the FAR 
Council under section 807 of the Ronald W. Reagan National 
Defense Authorization Act for Fiscal Year 2005, is required to 
adjusted this threshold for inflation every 5 years. In 2010, 
the small business reserve was adjusted for inflation and 
increased to $150,000.\11\ Despite this, the Government is 
still failing to meet its goal of awarding 23 percent of 
contracts to small firms and small firms are not receiving as 
many contracting opportunities. Therefore, this legislation 
raises the small business reserve to $200,000 in order to 
enhance opportunities for small business concerns to receive 
federal contracts.
---------------------------------------------------------------------------
    \11\Federal Acquisition Regulation; Inflation Adjustment of 
Acquisition--Related Thresholds, Final Rule, 75 Fed. Reg. 53129 (Aug. 
30, 2010) (to be codified at 48 C.F.R. Sec. 19.502-2).
---------------------------------------------------------------------------

                             III. Hearings

    The issues raised in H.R. 4118 were examined in multiple 
hearings, including in previous Congresses, held by the 
Committee and Subcommittees. They were most recently addressed 
in the June 7, 2012 hearing entitled, ``Scheduling Success? 
Issues and Opportunities for Small Businesses on the GSA 
Schedules,'' conducted by the Subcommittee on Contracting and 
Workforce.

                      IV. Committee Consideration

    The Committee on Small Business met in open session, with a 
quorum being present, on March 7, 2012, and ordered H.R. 4118 
reported, to the House by a voice vote at 3:47 pm. During the 
markup, no amendments were offered. No recorded votes were 
taken in consideration of H.R. 4118.

                           V. Committee Votes

    Clause 3(b) of rule XIII of the Rules of the House of 
Representatives requires the Committee to list the recorded 
votes on the motion to report the legislation and amendments 
thereto.

              VI. Section-by-Section Analysis of H.R. 4118


          SECTION-BY-SECTION ANALYSIS OF H.R. 4118 AS AMENDED

Section 1--Short title

    This section provides that the bill may be cited as the 
``Small Business Procurement Improvement Act of 2012.''

Section 2--Increasing small business participation in multiple award 
        contracts

    This section amends section 15(r) of the Small Business Act 
to require that federal agencies use small business contracting 
procedures such as the small business reserve and set-aside 
authorities for MACs. Further, this section requires creation 
of an agency outreach program to increase small business 
participation in MACs. The program will be overseen by the 
Administrator acting in consultation with the Administrator, 
Office of Federal Procurement Policy (OFPP) and any agency that 
obtains 5 percent of procurement requirements through MACs.

Section 3--Definitions

    This section amends section 3 of the Small Business Act to 
insert definitions related to MACs. First, it adds each of the 
following to the definition of MAC: (1) the MAS Program; (2) 
multi-agency contracts and task orders awarded to pursuant to 
31 U.S.C. Sec. 1535; and (3) government-wide acquisition 
contracts (GWACs) or task orders on GWACs, with GWAC defined by 
40 U.S.C. Sec. 11302(e).
    Next, it adds two definitions for terms commonly used in 
relationship to MACs. The first is blanket purchase agreements 
(BPAs), which are given the meaning found in 48 C.F.R. 
Sec. Sec. 13.301-1 and 13.301-3. This reference specifics that 
BPAs are charge accounts established with qualified sources of 
supply to simplify filling anticipated repetitive needs for 
supplies or services.
    Finally, the section adds a definition of basic ordering 
agreement (BOA). BOA is given the meaning currently found in 48 
C.F.R. Sec. 16.703. A BOA is a written instrument of 
understanding, negotiated between an agency, contracting 
activity, or contracting office and a contractor, that contains 
(1) terms and clauses applying to future contracts (orders) 
between the parties during its term, (2) description, as 
specific as practicable, of supplies or services to be 
provided, and (3) methods for pricing, issuing, and delivering 
future orders under the basic ordering agreement. BOAs are not 
contracts.

Section 4--Ensuring small business participation in multiple award 
        contracts, multi-agency contracts, and government-wide 
        acquisition contracts

    This section amends section 15(g) of the Small Business Act 
to require that the President annually set government-wide 
goals for the total dollar value of all task orders and 
delivery orders placed against MACs, blanket purchases 
agreements, and basic ordering agreements awarded under each 
contracting program established pursuant to the Small Business 
Act.

Section 5--Improvements to the small business reserve

    This section amends section 15(j) of the Small Business Act 
by increasing the small business reserve to $200,000. This 
section specifies that the increase to MACs, including those 
issued by the GSA. Further, this section requires the 
Administrator of the SBA to work in consultation with the 
Administrator of the GSA to enact regulations within 120 days 
of this bill's passage to ensure that small businesses have the 
correct size standard applied to each task order, that task 
orders follow the limitation on subcontracting and non-
manufacturing rule, and that GSA's electronic ordering systems 
utilize the correct size information for small businesses 
seeking a set aside of a task order.

Section 6--Small business representation on the Federal Acquisition 
        Regulatory Council

    This section amends 41 U.S.C. 1302(b) by placing the SBA 
Administrator on the FAR Council. Recognizing that with 4 
members, the FAR Council decisions could be deadlocked, section 
6 essentially gives the Administrator of OFPP the deciding vote 
in situations where there is a tie.

                         VII. Unfunded Mandates

    H.R. 4118 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act, Pub. 
L. No. 104-4, and would impose no costs on state, local or 
tribal governments.

 VIII. New Budget Authority, Entitlement Authority and Tax Expenditures

    In compliance with clause 3(c)(2) of rule XIII of the Rules 
of the House, the Committee provides the following opinion and 
estimate with respect to new budget authority, entitlement 
authority and tax expenditures. The Committee has not received 
an estimate of new budget authority prepared by the Director of 
the Congressional Budget Office pursuant to Sec. 402 of the 
Congressional Budget Act of 1974. However, the Committee is of 
the opinion that the bill will have no cost since it only 
requires changes in regulations that can be covered by existing 
salaries and expenses.

                         IX. Oversight Findings

    In accordance with clause (2)(b)(1) of rule X of the Rules 
of the House, the oversight findings and recommendations of the 
Committee on Small Business with respect to the subject matter 
contained in H.R. 4118 are incorporated into the descriptive 
portions of this report.

                X. Statement of Constitutional Authority

    Pursuant to clause 3(d)(1) of rule XIII of the Rules of the 
House of Representatives, the Committee finds that the 
authority for this legislation in Art. I, Sec. 8, cls. 1, 3, 
and 18 and Art. IV, Sec. 3, cl. 2 of the Constitution of the 
United States.

                  XI. Congressional Accountability Act

    H.R. 4118 does not relate to the terms and conditions of 
employment or access to public services or accommodations 
within the meaning of Sec. 102(b)(3) of Pub. L. No. 104-1.

             XII. Federal Advisory Committee Act Statement

    H.R. 4118 does not establish or authorize the establishment 
of any new advisory committees as that term is defined in the 
Federal Advisory Committee Act, 5 U.S.C. App. 2.

                     XIII. Statement of No Earmarks

    Pursuant to clause 9 of rule XXI, H.R. 4121 does not 
contain any congressional earmarks, limited tax benefits or 
limited tariff benefits as defined in subsections (d), (e) or 
(f) of clause 9 of rule XXI of the Rules of the House.

                 XIV. Performance Goals and Objectives

    Pursuant to clause 3(c)(4) of rule XIII of the Rules of the 
House, the Committee establishes the following performance-
related goals and objectives for this legislation:

          H.R. 4118 includes provisions to improve 
        participation by small businesses in Multiple Award 
        Contracts by encouraging outreach and mandating that 
        the President establish government-wide goals for small 
        business participation in such contracting vehicles; 
        raise the small business reserve to $200,000 and make 
        it applicable to multiple award contracts; and expand 
        the Federal Acquisition Regulatory Council to include 
        the Administrator of the Small Business Administration.

       XV. Changes in Existing Law Made by the Bill, as Reported

  In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (existing law 
proposed to be omitted is enclosed in black brackets, new 
matter is printed in italic, existing law in which no change is 
proposed is shown in roman):

SMALL BUSINESS ACT

           *       *       *       *       *       *       *


  Sec. 3. (a) * * *

           *       *       *       *       *       *       *

  (v) Multiple Award Contract.--In this Act, the term 
``multiple award contract'' means--
          (1) a multiple award task order contract or delivery 
        order contract that is entered into under the authority 
        of sections 303H through 303K of the Federal Property 
        and Administrative Services Act of 1949 (41 U.S.C. 253h 
        through 253k); [and]
          (2) a contract under the Federal Supply Schedule 
        program of the General Services Administration;
          (3) a multi-agency contract which is a contract, or a 
        task order or delivery order awarded pursuant to such a 
        contract, established by one agency for use by 
        Government agencies to obtain supplies, services, or 
        both, in accordance with section 1535 of title 31, 
        United States Code;
          (4) a Government-wide acquisition contract which is a 
        contract, task order contract, or delivery order 
        contract for information technology established by one 
        agency for Government-wide use pursuant to section 
        11302(e) of title 40, United States Code; and
          [(2)] (5) any other indefinite delivery, indefinite 
        quantity contract that is entered into by the head of a 
        Federal agency with 2 or more sources pursuant to the 
        same solicitation.

           *       *       *       *       *       *       *

  (dd) Blanket Purchase Agreement.--In this Act, the term 
``blanket purchase agreement'' has the meaning given such term 
in sections 13.303-01 and 13.303-2 of title 48, Code of Federal 
Regulations (as in effect on October 1, 2011).
  (ee) Basic Ordering Agreement.--In this Act, the term ``basic 
ordering agreement'' has the meaning given such term in section 
16.703 of title 48, Code of Federal Regulations (as in effect 
on October 1, 2011).

           *       *       *       *       *       *       *

  Sec. 15. (a) * * *

           *       *       *       *       *       *       *

  (g)(1)(A) The President shall annually establish Government-
wide goals for procurement contracts awarded to small business 
concerns, small business concerns owned and controlled by 
service disabled veterans, qualified HUBZone small business 
concerns, small business concerns owned and controlled by 
socially and economically disadvantaged individuals, and small 
business concerns owned and controlled by women. The 
Government-wide goal for participation by small business 
concerns shall be established at not less than 23 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 service-disabled 
veterans shall be established at not less than 3 percent of the 
total value of all prime contract and subcontract awards for 
each fiscal year. The Governmentwide goal for participation by 
qualified HUBZone small business concerns shall be established 
at not less than 1 percent of the total value of all prime 
contract awards for fiscal year 1999, not less than 1.5 percent 
of the total value of all prime contract awards for fiscal year 
2000, not less than 2 percent of the total value of all prime 
contract awards for fiscal year 2001, not less than 2.5 percent 
of the total value of all prime contract awards for fiscal year 
2002, and not less than 3 percent of the total value of all 
prime contract and subcontract awards for fiscal year 2003 and 
each fiscal year thereafter. 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 service-disabled 
veterans, qualified HUBZone small business concerns, small 
business concerns owned and controlled by socially and 
economically disadvantaged individuals, and small business 
concerns owned and controlled by women to participate in the 
performance of contracts let by such agency. The Administration 
and the Administrator for 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.
  (B) The President shall annually establish Government-wide 
goals for the total dollar value of all task orders and 
delivery orders placed against multiple award contracts, 
blanket purchase agreements, and basic ordering agreements 
awarded to small business concerns, small business concerns 
owned and controlled by service disabled veterans, qualified 
HUB-Zone small business concerns, small business concerns owned 
and controlled by socially and economically disadvantaged 
individuals, and small business concerns owned and controlled 
by women.

           *       *       *       *       *       *       *

  (j)(1) Each contract for the purchase of goods and services 
that has an anticipated value greater than $2,500 but not 
greater than [$100,000] $200,000 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.

           *       *       *       *       *       *       *

  (3) Nothing in paragraph (1) shall be construed as precluding 
an award of a contract with a value not greater than [$100,000] 
$200,000 under the authority of subsection (a) of section 8 of 
this Act, section 2323 of title 10, United States Code, 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.
          (4) Multiple award contract applicability.--
                  (A) This subsection applies to all task or 
                delivery orders placed against multiple award 
                contracts, including any contract under the 
                Federal Supply Schedule program of the General 
                Services Administration.
                  (B) The Administrator, in consultation with 
                the Administrator of General Services 
                Administration, shall within 120 days of the 
                date of enactment of this Act, issue 
                regulations regarding--
                          (i) how the Administrator of the 
                        General Services Administration will 
                        ensure that the correct size standard 
                        is applied to each task order;
                          (ii) how the Administrator of the 
                        General Services Administration will 
                        ensure that the non-manufacturer rule 
                        and limitation on subcontracting 
                        provisions are implemented at the task 
                        order level; and
                          (iii) how the Administrator of the 
                        General Services Administration will 
                        ensure that its electronic ordering 
                        systems display the correct size 
                        information for small business concerns 
                        seeking the set aside of a task order.

           *       *       *       *       *       *       *

  (r) Multiple Award Contracts.--Not later than 1 year after 
the date of enactment of this subsection, the Administrator for 
Federal Procurement Policy and the Administrator, in 
consultation with the Administrator of General Services, shall, 
by regulation, establish guidance under which Federal agencies 
[may, at their discretion] shall, to the maximum extent 
practicable, include small business concerns in multiple award 
contracts, as defined in section 3(v) of this Act, including--
          (1) [set] setting aside part or parts of a multiple 
        award contract for small business concerns, including 
        the subcategories of small business concerns identified 
        in subsection (g)(2);
          (2) notwithstanding the fair opportunity requirements 
        under section 2304c(b) of title 10, United States Code, 
        and section 303J(b) of the Federal Property and 
        Administrative Services Act of 1949 (41 U.S.C. 
        253j(b)), [set] setting aside orders placed against 
        multiple award contracts for small business concerns, 
        including the subcategories of small business concerns 
        identified in subsection (g)(2); [and]
          (3) [reserve] reserving 1 or more contract awards for 
        small business concerns under full and open multiple 
        award procurements, including the subcategories of 
        small business concerns identified in subsection 
        (g)(2)[.]; and
          (4) making full use of the set-aside programs 
        established in sections 8(a), 8(m), 31, and 36 of this 
        Act and any other program under this Act that provides 
        for set-asides of contracts for small businesses.
  (s) Agency Outreach Program.--The Administrator, in 
consultation with the Administrator of the Office of Federal 
Procurement Policy and any agency that obtains 5 percent of 
procurement requirements through a multiple award contract, 
shall carry out a program to increase the participation of 
small business concerns in multiple award contracts, as defined 
in section 3(v) of this Act. Such program shall--
          (1) increase awareness among small business concerns 
        regarding multiple award contracts;
          (2) provide small business concerns with education 
        and training on Federal agency procedures for the bid 
        and award of multiple award contracting procedures;
          (3) assist small business concerns with becoming 
        listed on multiple award contracts, including the 
        Federal Supply Schedules of the General Services 
        Administration; and
          (4) develop measures to track small business 
        participation in multiple award contracts, including 
        awards pursuant to those contracts.

           *       *       *       *       *       *       *

                              ----------                              


              SECTION 1302 OF TITLE 41, UNITED STATES CODE

Sec. 1302. Establishment and membership

  (a) * * *
  (b) Membership.--
          (1) Makeup of council.--The Council consists of--
                  (A) the Administrator;

           *       *       *       *       *       *       *

                  (C) the Administrator of National Aeronautics 
                and Space; [and]
                  (D) the Administrator of General Services[.]; 
                and
                  (E) the Administrator of the Small Business 
                Administration.

           *       *       *       *       *       *       *

  (c) Deciding Vote.--In the case of an equal vote among 
council membership, the Administrator of the Office of Federal 
Procurement Policy will have the deciding vote.

           *       *       *       *       *       *       *


                                  
