I 

111TH CONGRESS 

2D SESSION H. R. 4496 

To ensure that small businesses have their fair share of Federal procurement 

opportunities, and for other purposes. 

IN THE HOUSE OF REPRESENTATIVES 

JANUARY 21, 2010 

Mr. GRAVES (for himself, Mr. BARTLETT, Mr. LUETKEMEYER, Mr. BUCHANAN, Mr. AKIN, and Mr. SCHOCK) introduced the following bill; which 

was referred to the Committee on Small Business, and in addition to the 

Committees on Oversight and Government Reform and the Judiciary, 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 ensure that small businesses have their fair share of 

Federal procurement opportunities, 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 ‘‘Helping Small Busi5 ness Compete Act of 2010’’. 


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1 TITLE I—SMALL BUSINESS 

2 GOALS 

3 SEC. 101. SMALL BUSINESS GOAL. 

4 Section 15(g)(1) of the Small Business Act (15 

5 U.S.C. 644(g)(1)) is amended by striking ‘‘23 percent’’ 

6 and inserting ‘‘25 percent’’. 

7 SEC. 102. AGENCY GOAL NEGOTIATION. 

8 (a) NEGOTIATION.—Section 15(g)(1) of the Small 

9 Business Act (15 U.S.C. 644(g)(1)) is amended by strik10 ing ‘‘The President shall annually establish Government11 wide goals for procurement contracts’’ and inserting ‘‘The 

12 President shall before the close of each fiscal year estab13 lish new Government-wide procurement goals for the fol14 lowing fiscal year for procurement contracts.’’. 

15 (b) MINIMUM LEVEL.—Section 15(g)(1) of the Small 

16 Business Act (15 U.S.C. 644(g)(1)) is amended by strik17 ing ‘‘Notwithstanding the Government-wide goal, each 

18 agency shall have an annual goal’’ and inserting ‘‘Each 

19 agency shall have an annual goal, not lower than the Gov20 ernment-wide goal,’’. 

21 SEC. 103. PROCEDURES AND METHODS FOR GOAL 

22 ACHIEVEMENT. 

23 (a) GOAL RESPONSIBILITY.—Section 15(g)(2) of the 

24 Small Business Act (15 U.S.C. 644(g)(2)) is amended by 

25 adding the following after the first sentence: ‘‘The goals 


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1 established by the head of each agency shall be appor2 tioned within the agency to a contracting office or offices 

3 (as that term is defined in section 2.101 of title 48, Code 

4 of Federal Regulations on January 1, 2009) that reports 

5 to a career appointee in the Senior Executive Service.’’. 

6 (b) SENIOR EXECUTIVE SERVICE.— 

7 (1) PURPOSES.—Section 3131 of title 5, United 

8 States Code, is amended by adding at the end the 

9 following: 

10 ‘‘(15) ensure that the Government achieves the 

11 small business procurement goals set forth in section 

12 15 of the Small Business Act (15 U.S.C. 644).’’. 

13 (2) TRAINING.—Section 3396(a) of title 5, 

14 United States Code, is amended by adding at the 

15 end the following: ‘‘The training provided to senior 

16 executives shall include federal procurement policy, 

17 including the procurement provisions of the Small 

18 Business Act.’’. 

19 (3) LIMITATION ON SABBATICALS.—Section 

20 3396(c)(2) of title 5, United States Code— 

21 (A) by striking the ‘‘and’’ at the end semi22 colon at the end of subparagraph (B)(iii); 

23 (B) by striking the period at the end of 

24 subparagraph (C), and adding ‘‘; or’’; and 

25 (C) by adding at the end the following: 


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1 ‘‘(D) who oversees a contracting office that 

2 did not meet its small business procurement 

3 goals established annually in accordance with 

4 the procedures of section 15(g)(2) of the Small 

5 Business Act (15 U.S.C. 644(g)(2)).’’. 

6 (4) LIMITATION ON INCENTIVE AWARDS.—An 

7 employee in the Senior Executive Service shall not 

8 be eligible for any incentive award specified in sub9 chapter I, chapter 45 of title 5, United States Code, 

10 if the contracting office which reports to that mem11 ber of the Senior Executive Service fails to meet the 

12 procurement goals established annually in accord13 ance with the procedures of section 15(g)(2) of the 

14 Small Business Act (15 U.S.C. 644(g)(2)). Any 

15 member of the Senior Executive Service, whether ca16 reer or non-career, to whom that member of the 

17 Senior Executive Service reports also shall not be el18 igible for any incentive award specified in subchapter 

19 I, chapter 45 of title 5, United States Code. 

20 SEC. 104. REPORTING REQUIREMENTS. 

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

22 644(h)) is amended by adding the following: 

23 ‘‘(4) By November 1 of each year, the head of 

24 each Federal agency shall submit to Congress a re25 port specifying the percentage of contracts awarded 


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1 by that agency for the immediate preceding fiscal 

2 year that were awarded to small business concerns. 

3 If the percentage is less than the goal established by 

4 the head of the agency pursuant to this section, the 

5 head of the agency shall, in the report, explain why 

6 the agency did not reach the goal and what will be 

7 done to ensure that the goal for the following fiscal 

8 year will be achieved.’’. 

9 TITLE II—CONTRACT BUNDLING 

10 SEC. 201. DEFINITIONS OF BUNDLING OF CONTRACT RE11 QUIREMENTS. 

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

13 632(o)) is amended to read as follows: 

14 ‘‘(o) DEFINITIONS OF BUNDLING OF CONTRACT RE15 QUIREMENTS AND RELATED TERMS.—For purposes of 

16 this Act: 

17 ‘‘(1) BUNDLED CONTRACT.— 

18 ‘‘(A) IN GENERAL.—The term ‘bundled 

19 contract’ means a contract or order that is en20 tered into to meet procurement requirements 

21 that are consolidated in a bundling of contract 

22 requirements, without regard to its designation 

23 by the procuring agency or whether a study of 

24 the effects of the solicitation on civilian or mili25 tary personnel has been made. 


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1 ‘‘(B) EXCEPTIONS.—The term does not in2 clude— 

3 ‘‘(i) a contract or order with an aggre4 gate dollar value below the dollar threshold 

5 specified in paragraph (4); or 

6 ‘‘(ii) a contract or order that is en7 tered into to meet procurement require8 ments, all of which are exempted require9 ments under paragraph (5). 

10 ‘‘(2) BUNDLING OF CONTRACT REQUIRE11 MENTS.— 

12 ‘‘(A) IN GENERAL.—The term ‘bundling of 

13 contract requirements’ means the use of any 

14 bundling methodology to satisfy 2 or more pro15 curement requirements for new or existing 

16 goods or services, including any construction 

17 services, that is likely to be unsuitable for 

18 award to a small business concern due to— 

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

20 nature of the elements of the performance 

21 specified; 

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

23 anticipated award; 

24 ‘‘(iii) the geographical dispersion of 

25 the contract or order performance; or 


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1 ‘‘(iv) any combination of the factors 

2 described in clauses (i), (ii), or (iii). 

3 ‘‘(B) EXCEPTIONS.—The term does not in4 clude— 

5 ‘‘(i) the use of a bundling method6 ology for an anticipated award with an ag7 gregate dollar value below the threshold 

8 specified in paragraph (4); or 

9 ‘‘(ii) the use of a bundling method10 ology to meet procurement requirements, 

11 all of which are exempted under paragraph 

12 (5). 

13 ‘‘(3) BUNDLING METHODOLOGY.—The term 

14 ‘bundling methodology’ means— 

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

16 single contract or order, or a multiple award 

17 contract or order; 

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

19 issuance of a task or a delivery order under an 

20 existing single or multiple award contract or 

21 order; or 

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

23 requirements that permits a consolidation of 

24 contract or order requirements. 


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1 ‘‘(4) DOLLAR THRESHOLD.—The term ‘dollar 

2 threshold’ means— 

3 ‘‘(A) $65,000,000 if solely for construction 

4 services; and 

5 ‘‘(B) $1,500,000 in all other cases. 

6 ‘‘(5) EXEMPTED REQUIREMENTS.—The term 

7 ‘exempted requirement’ means one or more of the 

8 following: 

9 ‘‘(A) A procurement requirement solely for 

10 items that are not commercial items (as the 

11 term ‘commercial item’ is defined in section 

12 4(12) of the Office of Federal Procurement Pol13 icy Act (41 U.S.C. 403(12)) but this subpara14 graph shall not apply to any procurement re15 quirement for a contract for goods or services 

16 provided by a business classified in sector 23 of 

17 the North American Industrial Classification 

18 System. 

19 ‘‘(B) A procurement requirement with re20 spect to which a determination that it is unsuit21 able for award to a small business concern pre22 viously been made by the agency. However, the 

23 Administrator shall have authority to review 

24 and reverse such a determination for purposes 

25 of this paragraph and, if the Administrator 


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1 does reverse that determination, the term ‘ex2 empted requirement’ shall not apply to that 

3 procurement requirement. 

4 ‘‘(6) PROCUREMENT REQUIREMENT.—The term 

5 ‘procurement requirement’ means a determination 

6 by an agency that a specified good or service is 

7 needed to satisfy the mission of the agency.’’. 

8 SEC. 202. JUSTIFICATION. 

9 (a) STATEMENT OF BUNDLED CONTRACT REQUIRE10 MENTS.—Section 15(a) of the Small Business Act (15 

11 U.S.C. 644(a)) is amended— 

12 (1) by striking ‘‘is in quantity or estimated dol13 lar value the magnitude of which renders small busi14 ness prime contract participation unlikely’’ and in15 serting ‘‘would now be combined with other require16 ments for goods and services’’; 

17 (2) by striking ‘‘(2) why delivery schedules’’ 

18 and inserting ‘‘(2) the names, addresses and size of 

19 the incumbent contract holders, if applicable; (3) a 

20 description of the industries that might be interested 

21 in bidding on the contract requirements; (4) the 

22 number of small businesses listed in the industry 

23 categories that could be excluded from future bid24 ding if the contract is combined or packaged, includ25 ing any small business bidders that had bid on preVerDate Nov 24 2008 21:52 Jan 22, 2010 Jkt 089200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\H4496.IH H4496

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1 vious procurement requirements that are included in 

2 the bundling of contract requirements; (5) why deliv3 ery schedules’’; 

4 (3) by striking ‘‘(3) why the proposed acquisi5 tion’’ and inserting ‘‘(6) why the proposed acquisi6 tion’’; 

7 (4) by striking ‘‘(4) why construction’’ and in8 serting ‘‘(7) why construction’’; 

9 (5) by striking ‘‘(5) why the agency’’ and in10 serting ‘‘(8) why the agency’’; 

11 (6) by striking ‘‘justified’’ and inserting ‘‘justi12 fied. The statement also shall set forth the proposed 

13 procurement strategy required by subsection (e) and, 

14 if applicable, the specifications required by sub15 section (e)(3). Concurrently, the statement shall be 

16 made available to the public, including through dis17 semination in the Federal contracting opportunities 

18 database.’’; and 

19 (7) by inserting after ‘‘prime contracting oppor20 tunities.’’ the following: ‘‘If no notification of the 

21 procurement and accompanying statement is re22 ceived, but the Administrator determines that there 

23 is cause to believe the contract combines require24 ments or a contract (single or multiple award) or 

25 task or delivery order for construction services or inVerDate Nov 24 2008 21:52 Jan 22, 2010 Jkt 089200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\H4496.IH H4496

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1 cludes unjustified bundling, then the Administrator 

2 can demand that such a statement of work goods or 

3 services be completed by the procurement activity 

4 and sent to the Procurement Center Representative 

5 and the solicitation process postponed for at least 10 

6 days but no more than 30 days to allow the Admin7 istrator to review the statement and make rec8 ommendations as described in this section before 

9 procurement is continued.’’. 

10 (b) SUBSTANTIAL MEASURABLE BENEFITS.—Section 

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

12 amended by adding at the end of subparagraph (2)(C), 

13 the following: ‘‘Cost savings shall not include any reduc14 tion in the in the use of military interdepartmental pur15 chase requests or any similar transfer funds among federal 

16 agencies for the use of a contract issued by another federal 

17 agency.’’. 

18 SEC. 203. APPEALS. 

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

20 644(a)) is amended— 

21 (1) by striking ‘‘If a proposed procurement in22 cludes in its statement’’ and inserting ‘‘If a proposed 

23 procurement would adversely affect one or more 

24 small business concerns, including, but not limited 

25 to, the potential loss of an existing contract, or if a 


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1 proposed procurement includes in its statement’’; 

2 and 

3 (2) by inserting before ‘‘Whenever the Adminis4 trator and the contracting procurement agency fail 

5 to agree,’’ the following: ‘‘If a small business con6 cern would be adversely affected, directly or indi7 rectly, by the procurement as proposed, and that 

8 small business concern or a trade association of 

9 which that small business concern is a member so 

10 requests, the Administrator may, take action to fur11 ther the interests of the small business.’’. 

12 SEC. 204. THIRD-PARTY REVIEW. 

13 Section 8(d) of the Contract Disputes Act of 1978 

14 (41 U.S.C. 607(d)) is amended— 

15 (1) by striking ‘‘(d) The Armed Services 

16 Board’’ and inserting ‘‘(d)(1) The Armed Services 

17 Board’’; and 

18 (2) by inserting at the end the following: 

19 ‘‘(2) CONTRACT BUNDLING.— 

20 ‘‘(A) IN GENERAL.—Whenever the head of a 

21 contracting agency makes a decision in accordance 

22 with section 15(a) of the Small Business Act con23 cerning the Administrator of the Small Business Ad24 ministration’s challenge to a bundling of contract re25 quirements, the Administrator, within ten days after 


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1 such decision may file a challenge with the appro2 priate agency board of contract appeals. 

3 ‘‘(B) PROCEDURE.—The board shall provide 

4 the Administrator and the head of the contracting 

5 agency the opportunity to provide their views on the 

6 disputed contract. No oral testimony or oral argu7 ment shall be permitted. The board shall render its 

8 decision within thirty days after the appeal has been 

9 filed. The decision of the board shall be final.’’. 

10 TITLE III— SMALL BUSINESS 

11 SUBCONTRACTING 

12 SEC. 301. GOOD FAITH COMPLIANCE WITH SUBCON13 TRACTING PLANS. 

14 Section 8(d)(10) of the Small Business Act (15 

15 U.S.C. 637(d)(10)) is amended by— 

16 (1) by striking ‘‘and’’ at the end of subpara17 graph (B); 

18 (2) by striking the period at the end of sub19 paragraph (C), and inserting ‘‘; and’’; and 

20 (3) by adding at the end the following: 

21 ‘‘(D) Not later than 180 days after enact22 ment of this Act, the Administrator shall, after 

23 the opportunity for notice and comment, pro24 mulgate regulations governing the Administra25 tor’s review of subcontracting plans including 


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1 the standards for determining good faith com2 pliance with the subcontracting plans.’’. 

3 SEC. 302. LIMITATIONS ON SUBCONTRACTING. 

4 (a) REGULATIONS FOR CONTRACT ADMINISTRA5 TION.—Section 15(o) of the Small Business Act (15 

6 U.S.C. 644(o)) is amended by adding at the end the fol7 lowing: 

8 ‘‘(4) Not later than 180 days after enactment 

9 of this Act, the Administrator shall, after the oppor10 tunity for notice and comment, promulgate regula11 tions that specify the responsibilities that each agen12 cy and the Administration personnel will have in en13 forcing the restrictions set forth in paragraph (1). 

14 Such regulations also shall specify reporting and rec15 ordkeeping requirements for contracts covered by 

16 paragraph (1).’’. 

17 (b) CONTRACTOR PENALTIES.—Section 16 of the 

18 Small Business Act (15 U.S.C. 645) is amended by adding 

19 at the end the following: 

20 ‘‘(g) A small business that violates the requirements 

21 of section 15(o)(1) of the Small Business Act shall be sub22 ject to the penalties set forth in subsection (d).’’. 

23 SEC. 303. CRIMINAL VIOLATIONS. 

24 Section 1001(a) of title 18, United States Code, is 

25 amended— 


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1 (1) in paragraph (2) by striking the ‘‘or’’ at the 

2 end; 

3 (2) in paragraph (3) by adding ‘‘or’’ at the end; 

4 (3) inserting after paragraph (3) the following: 

5 ‘‘(4) makes in writing or electronically a false 

6 statement concerning status as a small business con7 cern or compliance with the requirements of the 

8 Small Business Act in an effort to obtain, retain, or 

9 complete a federal government contract;’’; and 

10 (4) by adding at the end the following: ‘‘For 

11 violation of paragraph (4) of this subsection, not12 withstanding section 3571(e), the fine under this 

13 title shall be the total value of the contract or 

14 $1,000,000 whichever is greater.’’. 

Æ 


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