vance payments to entities described in subsection
(a)(1) of this section under section 305 of the Federal
Property and Administrative Services Act of 1949.
‘‘(D) To the extent practicable and when nec-
essary to facilitate achievement of the goal described
in paragraph (2), the agency head may enter into
contracts using less than full and open competitive
procedures (including awards under section 8(a)) and
partial set asides for entities described in paragraph
(2), but shall, except when using competition open
only to small businesses, 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 in-
dicates that nondisadvantaged small business con-
cerns in such industry category are generally being
denied a reasonable opportunity to compete for con-
tracts because of the use of that percentage in the ap-
plication of this paragraph.
‘‘(E) To the extent practicable, the agency head
shall maximize the number of socially disadvantaged
small business concerns participating in the program.
‘‘(F) The Administrator for Federal Procurement
Policy, in consultation with the Administration, shall
prescribe regulations which provide for the following:
‘‘(i) Procedures or guidance for contracting
officers to provide incentives for prime contrac-
tors described in paragraph (2) to increase sub-
contractor awards to entities described in such
paragraph.
‘‘(ii) A requirement that contracting officers
emphasize the award of contracts to entities de-
scribed in paragraph (2) in all industry cat-
egories, including those categories in which such
entities have not traditionally dominated.
‘‘(iii) Guidance to executive agency person-
nel on the relationship among the following pro-
grams:
‘‘(I) The program implementing this
subsection.
‘‘(II) The program established under
section 8(a).
‘‘(III) The small business set-aside pro-
gram established under subsection (a).
‘‘(iv) With respect to an agency procure-
ment which is reasonably likely to be set aside
for entities described in paragraph (2), a re-
quirement that, to the maximum extent prac-
ticable, the procurement be designated as such a
set-aside before the solicitation for the procure-
ment is issued.
‘‘(v) Policies and procedures that, to the
maximum extent practicable, will ensure that
current levels in the number or dollar value of
contracts awarded under the program established
under section 8(a) and under the small business
set-aside program established under subsection
(a) of this section 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) of this subsection.
‘‘(vi) Implementation of this section in a
manner which will not alter the procurement
process under the program established under sec-
tion 8(a).
‘‘(vii) A requirement that one factor used in
evaluating the performance of a contracting offi-
cer will be the ability of the officer to increase
contract awards to entities described in para-
graph (2).
‘‘(viii) Increased technical assistance to en-
tities described in paragraph (2).
‘‘(7)(A) Whoever for the purpose of securing a contract
or subcontract under paragraph (2), misrepresents the sta-
tus of any concern or person as a small business concern
owned and controlled by socially disadvantaged individuals
(as described in paragraph (2)) shall be punished by im-
prisonment for not more than 1 year or a fine of not less
than $10,000, or both.
‘‘(B) The Federal Acquisition Regulation shall pro-
hibit awarding a contract under this section to an entity
described in paragraph (2) unless the entity agrees to com-
ply with the requirements of subsection (o)(1).
‘‘(8)(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 award-
ed 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 in consultation with the Administration, a person
may request the agency head to determine whether the use
of small disadvantaged business set-asides by a contract ac-
tivity of the agency has caused a particular industry cat-
egory 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 in-
dustry category and to increase the contracting activity’s
use of set-asides in awarding contracts in other industry
categories.
‘‘(9)(A) The Administrator for Federal Procurement
Policy, in consultation with 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 applica-
ble subcontracting plan requirements of section 8(d).
‘‘(B) The regulations required by subparagraph (A)
shall ensure that, with respect to a sealed bid or competitive
proposal for which the bidder or offeror is required to nego-
tiate or submit a subcontracting plan under section 8(d),
the contracting plan shall be a factor in evaluating the bid
or proposal.
‘‘(10)(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 subparagraph (A)
shall include a description of—
‘‘(i) the degree of participation by small business
concerns owned and controlled by socially disadvan-
taged individuals in procurements conducted by each
executive agency, including information concerning
the race and gender of such individuals; and
‘‘(ii) the extent of compliance by executive agen-
cies with the goals for participation by such business
concerns required by paragraph (1), relating to Gov-
ernment-wide small business, small disadvantaged
business, and women-owned small business goals for
procurement contracts.
‘‘(11) This subsection shall not be construed as modify-
ing or superseding any other provision of law establishing
the program under section 2323 of title 10, United States
Code, or a goal or requirement for an agency to obligate
5 percent, or more than 5 percent, of the total value of all
prime contract awards entered into by the agency for a fis-
cal year with any entity described in paragraph (2).
‘‘(12) For the purposes of this subsection, an individ-
ual shall be considered to be socially disadvantaged if the
individual has a physical or mental impairment that—
‘‘(A) substantially limits one or more of the
major life activities of the individual; and
‘‘(B) has been found by the Administration to re-
sult in a socially disadvantaged status for the class
of individuals having such impairment.
‘‘(13)(A) Not later than 1 year after the date of the
enactment of this paragraph, the Administration shall issue
regulations to make uniform the procedure by which a small
business concern may qualify as a small business concern
owned and controlled by socially disadvantaged individuals
for the purposes of this subsection.
‘‘(B) Regulations to be issued pursuant to subpara-
graph (A) shall provide, at a minimum, for the following:
‘‘(i) Specification of the requirements for quali-
fying as a small business concern owned and con-
trolled by socially disadvantaged individuals for the
purposes of this subsection.
‘‘(ii) Establishment of a uniform procedure to be
applied by each executive agency in the certification
of small business concerns meeting the requirements
specified pursuant to clause (i).
‘‘(C) For the purposes of this subsection, an executive
agency may not require a small business concern for which
a certification issued by another executive agency pursuant
to subparagraph (B)(ii) is in effect to make any additional