II 

114TH CONGRESS 

1ST SESSION S. 2138 

To amend the Small Business Act to improve the review and acceptance 

of subcontracting plans, and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

OCTOBER 6, 2015 

Mr. VITTER introduced the following bill; which was read twice and referred 

to the Committee on Small Business and Entrepreneurship 

A BILL 

To amend the Small Business Act to improve the review 

and acceptance of subcontracting plans, 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 Sub5 contracting Transparency Act of 2015’’. 

6 SEC. 2. TRANSPARENCY IN SUBCONTRACTING GOALS. 

7 Section 8(d)(9) of the Small Business Act (15 U.S.C. 

8 637(d)(9)) is amended— 

9 (1) by striking ‘‘(9) The failure’’ and inserting 

10 the following: 


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1 ‘‘(9) MATERIAL BREACH.—The failure’’; 

2 (2) in subparagraph (A), by striking ‘‘sub3 section, or’’ and inserting ‘‘subsection,’’; 

4 (3) in subparagraph (B), by striking ‘‘sub5 contract,’’ and inserting ‘‘subcontract, or’’; and 

6 (4) by inserting after subparagraph (B) the fol7 lowing: 

8 ‘‘(C) assurances provided under paragraph 

9 (6)(E),’’. 

10 SEC. 3. AUTHORITY OF THE ADMINISTRATOR OF THE 

11 SMALL BUSINESS ADMINISTRATION. 

12 Section 8(d)(11) of the Small Business Act (15 

13 U.S.C. 637(d)(11)) is amended— 

14 (1) by striking ‘‘(11) In the case of’’ and insert15 ing the following: 

16 ‘‘(11) AUTHORITY OF ADMINISTRATION.—In 

17 the case of’’; and 

18 (2) in subparagraph (B), by striking ‘‘, which 

19 shall be advisory in nature,’’. 

20 SEC. 4. IMPROVING SUBCONTRACTING PLANS. 

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

22 637(d)) is amended by adding at the end the following: 

23 ‘‘(17) REVIEW AND ACCEPTANCE OF SUBCON24 TRACTING PLANS.— 


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1 ‘‘(A) DEFINITION.—In this paragraph, the 

2 term ‘covered small business concerns’ means— 

3 ‘‘(i) small business concerns; 

4 ‘‘(ii) qualified HUBZone small busi5 ness concerns; 

6 ‘‘(iii) small business concerns owned 

7 and controlled by veterans; 

8 ‘‘(iv) small business concerns owned 

9 and controlled by service-disabled veterans; 

10 ‘‘(v) small business concerns owned 

11 and controlled by socially and economically 

12 disadvantaged individuals, as defined in 

13 paragraph (3)(C); and 

14 ‘‘(vi) small business concerns owned 

15 and controlled by women. 

16 ‘‘(B) DELAYED ACCEPTANCE OF PLAN.— 

17 Except as provided in subparagraph (E), if a 

18 procurement center representative or commer19 cial market representative determines that a 

20 subcontracting plan required under paragraph 

21 (4) or (5) fails to provide the maximum prac22 ticable opportunity for covered small business 

23 concerns to participate in the performance of 

24 the contract to which the plan applies, the repVerDate Sep 11 2014 00:22 Oct 08, 2015 Jkt 059200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S2138.IS S2138

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1 resentative may delay acceptance of the plan in 

2 accordance with subparagraph (C). 

3 ‘‘(C) PROCESS FOR DELAYED ACCEPT4 ANCE.— 

5 ‘‘(i) IN GENERAL.—Except as pro6 vided in clause (ii), a procurement center 

7 representative or commercial market rep8 resentative who makes a determination 

9 under subparagraph (B) with respect to a 

10 subcontracting plan may delay acceptance 

11 of the plan for a 30-day period by pro12 viding written notice of the determination 

13 to head of the procuring activity of the 

14 contracting agency that includes rec15 ommendations for altering the plan to pro16 vide the maximum practicable opportunity 

17 described in that subparagraph. 

18 ‘‘(ii) EXCEPTION.—In the case of the 

19 Department of Defense— 

20 ‘‘(I) a procurement center rep21 resentative or commercial market rep22 resentative who makes a determina23 tion under subparagraph (B) with re24 spect to a subcontracting plan may 

25 delay acceptance of the plan for a 15- 


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1 day period by providing written notice 

2 of the determination to appropriate 

3 personnel of the Department of De4 fense that includes recommendations 

5 for altering the plan to provide the 

6 maximum practicable opportunity de7 scribed in that subparagraph; and 

8 ‘‘(II) the authority of a procure9 ment center representative or com10 mercial market representative to delay 

11 acceptance of a subcontracting plan as 

12 provided in subparagraph (B) does 

13 not include the authority to delay the 

14 award or performance of the contract 

15 concerned. 

16 ‘‘(D) DISAGREEMENTS.—If a procurement 

17 center representative or commercial market rep18 resentative delays the acceptance of a subcon19 tracting plan under subparagraph (C) and does 

20 not reach agreement with the head of the pro21 curing activity of the contracting agency to 

22 alter the plan to provide the maximum prac23 ticable opportunity described in subparagraph 

24 (B) not later than 30 days after the date on 

25 which written notice was provided, the disagreeVerDate Sep 11 2014 00:22 Oct 08, 2015 Jkt 059200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S2138.IS S2138

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1 ment shall be submitted to the head of the con2 tracting agency by the Administrator for a final 

3 determination. 

4 ‘‘(E) EXCEPTION.—A procurement center 

5 representative or commercial market represent6 ative may not delay the acceptance of a subcon7 tracting plan if the head of the contracting 

8 agency certifies that the need of the agency for 

9 the supplies or services is of such an unusual 

10 and compelling urgency that the United States 

11 would be seriously injured unless the agency is 

12 permitted to accept the subcontracting plan.’’. 

13 SEC. 5. GOOD FAITH COMPLIANCE. 

14 Not later than 270 days after the date of enactment 

15 of this Act, the Administrator of the Small Business Ad16 ministration shall issue regulations providing examples of 

17 activities that would be considered a failure to make a 

18 good faith effort to comply with the requirements imposed 

19 on an entity, other than a small business concern, (as de20 fined in section 3 of the Small Business Act (15 U.S.C. 

21 632)), that is awarded a prime contract containing the 

22 clauses required under paragraphs (4) or (5) of section 

23 8(d) of the Small Business Act (15 U.S.C. 637(d)). 

Æ 


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