I 
112TH CONGRESS 
2D SESSION 
H. R. 4081 
To amend the Small Business Act to consolidate and revise provisions relating 
to contract bundling, and for other purposes. 
IN THE HOUSE OF REPRESENTATIVES 
FEBRUARY 17, 2012 
Mr. GRAVES of Missouri (for himself and Mr. WEST) introduced the following 
bill; which was referred to the Committee on Small Business 
A BILL 
To amend the Small Business Act to consolidate and revise 
provisions relating to contract bundling, and for other 
purposes. 
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled, 
SECTION 1. SHORT TITLE. 
This Act may be cited as the ‘‘Contractor Oppor-
tunity Protection Act of 2012’’. 
SEC. 2. CONSOLIDATION OF PROVISIONS RELATING TO 
CONTRACT BUNDLING. 
Section 44 of the Small Business Act (15 U.S.C. 
657q) is amended to read as follows: 
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‘‘SEC. 44. CONTRACT BUNDLING. 
‘‘(a) DEFINITIONS.—In this Act: 
‘‘(1) BUNDLED CONTRACT.—The term ‘bundled 
contract’— 
‘‘(A) means a contract that is entered into 
to meet procurement requirements that are 
combined in a bundling of contract require-
ments, without regard to whether a study of the 
effects of the solicitation on Federal officers or 
employees has been made; and 
‘‘(B) does not include— 
‘‘(i) a contract with an aggregate dol-
lar value below the dollar threshold; or 
‘‘(ii) a single award contract for the 
acquisition of a weapons system acquired 
through a major defense acquisition. 
‘‘(2) BUNDLING
METHODOLOGY.—The term 
‘bundling methodology’ means— 
‘‘(A) a solicitation to obtain offers for a 
single contract or a multiple award contract; 
‘‘(B) a solicitation of offers for the 
issuance of a task or a delivery order under an 
existing single or multiple award contract; or 
‘‘(C) the creation of any new procurement 
requirements that permits a combination of 
contract requirements, including any combina-
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tion of contract requirements or order require-
ments. 
‘‘(3) 
BUNDLING
OF
CONTRACT
REQUIRE-
MENTS.—The term ‘bundling of contract require-
ments’, with respect to the contract requirements of 
a Federal agency— 
‘‘(A) means the use of any bundling meth-
odology to satisfy 2 or more procurement re-
quirements for new or existing goods or services 
provided to or performed for the Federal agen-
cy, including any construction services, that is 
likely to be unsuitable for award to a small- 
business concern due to— 
‘‘(i) the diversity, size, or specialized 
nature of the elements of the performance 
specified; 
‘‘(ii) the aggregate dollar value of the 
anticipated award; 
‘‘(iii) the geographical dispersion of 
the contract performance sites; or 
‘‘(iv) any combination of the factors 
described in clauses (i), (ii), and (iii); and 
‘‘(B) does not include the use of a bun-
dling methodology for an anticipated award 
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with an aggregate dollar value below the dollar 
threshold. 
‘‘(4) CHIEF ACQUISITION OFFICER.—The term 
‘Chief Acquisition Officer’ means the employee of a 
Federal agency designated as the Chief Acquisition 
Officer for the Federal agency under section 16(a) 
of the Office of Federal Procurement Policy Act (41 
U.S.C. 1702(a)). 
‘‘(5) CONTRACT.—The term ‘contract’ includes, 
for purposes of this section, any task order made 
pursuant to an indefinite quantity, indefinite deliv-
ery contract. 
‘‘(6) DOLLAR THRESHOLD.—The term ‘dollar 
threshold’ means— 
‘‘(A) in the case of a contract for construc-
tion, $5,000,000; and 
‘‘(B) in any other case, $2,000,000. 
‘‘(7) 
MAJOR
DEFENSE
ACQUISITION
PRO-
GRAM.—The term ‘major defense acquisition pro-
gram’ has the meaning given in section 2430(a) of 
title 10, United States Code. 
‘‘(8) PROCUREMENT REQUIREMENT.—The term 
‘procurement requirement’ means a determination 
by an agency that a specified good or service is 
needed to satisfy the mission of the agency. 
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‘‘(9) SENIOR PROCUREMENT EXECUTIVE.—The 
term ‘senior procurement executive’ means an offi-
cial designated under section 16(c) of the Office of 
Federal 
Procurement 
Policy 
Act 
(41 
U.S.C. 
1702(c)) as the senior procurement executive for a 
Federal agency. 
‘‘(b) POLICY.—The head of each Federal agency shall 
ensure that the decisions made by the Federal agency re-
garding bundling of contract requirements of the Federal 
agency are made with a view to providing small business 
concerns with appropriate opportunities to participate as 
prime contractors and subcontractors in the procurements 
of the Federal agency. 
‘‘(c) CONTRACT BUNDLING.— 
‘‘(1) PROPOSED PROCUREMENTS.—Paragraphs 
(2) through (4) shall apply to to a proposed procure-
ment if the proposed procurement— 
‘‘(A) would adversely affect one or more 
small business concerns, including the potential 
loss of an existing contract; 
‘‘(B) includes, in its statement of work, 
goods or services— 
‘‘(i)(I) currently being performed by a 
small business; and 
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‘‘(II) if the proposed procurement is 
in a quantity or estimated dollar value the 
magnitude of which renders small business 
prime contract participation unlikely; or 
‘‘(ii)(I) that are of a type that the Ad-
ministrator through market research can 
demonstrate that two or more small busi-
nesses are capable of performing; and 
‘‘(II) if the proposed procurement 
would be combined with other require-
ments for goods and services; 
‘‘(C) is for construction and— 
‘‘(i) seeks to package or combine dis-
crete construction projects; or 
‘‘(ii) the value of the goods or services 
subject to the contract exceeds the dollar 
threshold; or 
‘‘(D) is determined by the Administrator 
to have a solicitation that involves an unneces-
sary or unjustified bundling of contract require-
ments. 
‘‘(2) RESPONSIBILITY OF THE PROCUREMENT 
ACTIVITY.—At least 45 days prior to the issuance of 
a solicitation, the Procurement Activity shall notify 
and provide a copy of the proposed procurement to 
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the procurement center representative assigned to 
the Procurement Activity. The 45-day notification 
process under this paragraph shall occur concur-
rently with other processing steps required prior to 
issuance of the solicitation. The notice shall include 
a statement setting forth the proposed procurement 
strategy required by subsection (e), and explaining— 
‘‘(A) why the proposed acquisition cannot 
be divided into reasonably small lots (not less 
than economic production runs) to permit offers 
on quantities less than the total requirement; 
‘‘(B) if applicable, a list of the incumbent 
contractors disaggregated by and including 
names, addresses, and whether or not the con-
tractor is a small business concern; 
‘‘(C) a description of the industries that 
might be interested in bidding on the contract 
requirements; 
‘‘(D) the number of small businesses listed 
in the industry categories that could be ex-
cluded from future bidding if the contract is a 
bundled contract, including any small business 
bidders that had bid on previous procurement 
requirements that are included in the bundling 
of contract requirements; 
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‘‘(E) why the delivery schedules cannot be 
established on a realistic basis that will encour-
age small business participation to the extent 
consistent with the actual requirements of the 
Government; 
‘‘(F) why the proposed acquisition cannot 
be offered so as to make small business partici-
pation likely; 
‘‘(G) why construction cannot be procured 
as separate discrete projects; and 
‘‘(H) why the agency has determined that 
the bundled contract is necessary and justified. 
‘‘(3) PUBLICATION OF NOTICE STATEMENT.— 
Concurrently, the statement required in paragraph 
(2) shall be published in the Federal contracting op-
portunities database. 
‘‘(4) RECOMPETITION OF A PREVIOUSLY BUN-
DLED CONTRACT.—If the proposed procurement is a 
previously bundled contract that is to be recompeted 
as a bundled contract, the Administrator shall deter-
mine, with the assistance of the agency proposing 
the procurement— 
‘‘(A) the amount of savings and benefits 
(in accordance with subsection (d)) achieved 
under the bundling of contract requirements; 
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‘‘(B) whether such savings and benefits 
will continue to be realized if the contract re-
mains bundled, and whether such savings and 
benefits would be greater if the procurement re-
quirements were divided into separate solicita-
tions suitable for award to small business con-
cerns; 
‘‘(C) the dollar value of subcontracts 
awarded to small business concerns under the 
bundled contract, disaggregated by North 
American Industrial Classification Code; 
‘‘(D) the percentage of subcontract dollars 
awarded to small businesses under the bundled 
contract, disaggregated by North American In-
dustrial Classification Code; and 
‘‘(E) the dollar amount and percentage of 
prime contract dollars awarded to small busi-
nesses in the primary North American Indus-
trial Classification Code for that bundled con-
tract during each of the two fiscal years pre-
ceding the award of the bundled contract and 
during each fiscal year of the performance of 
the bundled contract. 
‘‘(5) FAILURE TO PROVIDE NOTICE.—If no no-
tification of the proposed procurement or accom-
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panying statement is received, but the Administrator 
determines that the proposed procurement is a pro-
posed procurement described in paragraph (1), then 
the Administrator shall require that such a state-
ment of work be completed by the Procurement Ac-
tivity and sent to the procurement center representa-
tive and postpone the solicitation process for at least 
10 days but not more than 45 days to allow the Ad-
ministrator to review the statement and make rec-
ommendations as described in this section before the 
procurement process is continued. 
‘‘(6) RESPONSIBILITY OF THE PROCUREMENT 
CENTER REPRESENTATIVE.—Within 15 days after 
receipt of the proposed procurement and accom-
panying statement, if the procurement center rep-
resentative believes that the procurement as pro-
posed will render small business prime contract par-
ticipation unlikely, the representative shall rec-
ommend to the Procurement Activity alternative pro-
curement methods which would increase small busi-
ness prime contracting opportunities. 
‘‘(7) DISAGREEMENT BETWEEN THE ADMINIS-
TRATION AND THE PROCUREMENT ACTIVITY.— 
‘‘(A) IN
GENERAL.—If a small business 
concern would be adversely affected, directly or 
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indirectly, by the proposed procurement, and 
that small business concern or a trade associa-
tion of which that small business concern is a 
member so requests, the Administrator may 
take action under this paragraph to further the 
interests of small businesses. 
‘‘(B) APPEAL
TO
AGENCY
HEAD.—First, 
the proposed procurement shall be submitted 
for determination to the head of the contracting 
agency by the Administrator. 
‘‘(C) FAILURE TO AGREE.—Whenever the 
Administrator and the head of the contracting 
agency fail to agree— 
‘‘(i) the Administrator, within ten 
days after such decision, may file an ap-
peal with the appropriate agency board of 
contract appeals; 
‘‘(ii) the board shall provide the Ad-
ministrator and the head of the con-
tracting agency the opportunity to provide 
their views on the disputed contract, except 
that no oral testimony or oral argument 
shall be permitted; and 
‘‘(iii) the board shall render its deci-
sion, which shall be final agency action for 
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purposes of chapter 7 of title 5, United 
States Code, within 30 days after the ap-
peal has been filed. 
‘‘(D) APPEAL BY AFFECTED SMALL BUSI-
NESS CONCERN TO GAO.—Should the Adminis-
trator choose not to pursue an appeal the ap-
propriate board of contract appeals, a small 
business concern that would be adversely af-
fected, directly or indirectly, by the procure-
ment as proposed, or a trade association that 
includes such a small business concern as a 
member, may bring a protest to the Govern-
ment Accountability Office. If the protest is 
brought by a trade association, the trade asso-
ciation shall not be required to identify a spe-
cific member in connection with the protest. 
‘‘(d) MARKET RESEARCH.— 
‘‘(1) IN GENERAL.—Before proceeding with an 
acquisition strategy that could lead to a contract 
containing bundling of contract requirements, the 
head of an agency shall conduct market research to 
determine whether bundling of the requirements is 
necessary and justified. 
‘‘(2) FACTORS.—For purposes of subsection 
(c)(1), bundling of contract requirements may be de-
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termined as being necessary and justified if, as com-
pared to the benefits that would be derived from 
contracting to meet those requirements if not bun-
dled, the Federal Government would derive from the 
bundling of contract requirements measurably sub-
stantial benefits, including any combination of bene-
fits that, in combination, are measurably substantial. 
‘‘(3) BENEFITS.—For the purposes of bundling 
of contract requirements, benefits described in para-
graph (2) may include the following: 
‘‘(A) Cost savings. 
‘‘(B) Quality improvements. 
‘‘(C) Reduction in acquisition cycle times. 
‘‘(D) Better terms and conditions. 
‘‘(E) Any other benefits. 
‘‘(4) REDUCTION OF COSTS NOT DETERMINA-
TIVE.—For purposes of this subsection: 
‘‘(A) Cost savings shall not include any re-
duction in the use of military interdepartmental 
purchase requests or any similar transfer funds 
among Federal agencies for the use of a con-
tract issued by another Federal agency. 
‘‘(B) The reduction of administrative or 
personnel costs alone shall not be a justification 
for bundling of contract requirements unless 
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the cost savings are expected to be substantial 
in relation to the dollar value of the procure-
ment requirements to be bundled. 
‘‘(5) LIMITATION ON ACQUISITION STRATEGY.— 
The head of a Federal agency may not carry out an 
acquisition strategy that includes a bundling of con-
tract requirements valued in excess of the dollar 
threshold, unless the senior procurement executive 
or, if applicable, Chief Acquisition Officer for the 
Federal agency, before carrying out the acquisition 
strategy certifies to the head of the Federal agency 
that steps will be taken to include small business 
concerns in the acquisition strategy. 
‘‘(e) STRATEGY SPECIFICATIONS.—If the head of a 
contracting agency determines that an acquisition plan or 
proposed procurement strategy for a procurement involves 
a bundling of contract requirements, the proposed acquisi-
tion plan or procurement strategy shall— 
‘‘(1) identify specifically the benefits anticipated 
to be derived from the bundling of contract require-
ments; 
‘‘(2) set forth an assessment of the specific im-
pediments to participation by small business con-
cerns as prime contractors that result from the bun-
dling of contract requirements and specify actions 
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designed to maximize small business participation as 
subcontractors (including suppliers) at various tiers 
under the contract or contracts that are awarded to 
meet the requirements; and 
‘‘(3) include a specific determination that the 
anticipated measurable benefits of the proposed bun-
dled contract justify its use. 
‘‘(f) CONTRACT TEAMING.—In the case of a solicita-
tion of offers for a bundled contract that is issued by the 
head of an agency, a small-business concern may submit 
an offer that provides for use of a particular team of sub-
contractors for the performance of the contract. The head 
of the agency shall evaluate the offer in the same manner 
as other offers, with due consideration to the capabilities 
of all of the proposed subcontractors. If a small business 
concern teams under this paragraph, it shall not affect 
its status as a small business concern for any other pur-
pose. 
‘‘(g) DATABASE, ANALYSIS, AND ANNUAL REPORT 
REGARDING CONTRACT BUNDLING.— 
‘‘(1) DATABASE.—Not later than 180 days 
after the date of the enactment of this subsection, 
the Administrator shall develop and shall thereafter 
maintain a database containing data and informa-
tion regarding— 
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‘‘(A) each bundled contract awarded by a 
Federal agency; and 
‘‘(B) each small business concern that has 
been displaced as a prime contractor as a result 
of the award of such a contract. 
‘‘(2) ANALYSIS.—For each bundled contract 
that is to be recompeted as a bundled contract, the 
Administrator shall determine— 
‘‘(A) the amount of savings and benefits 
(in accordance with subsection (d)) achieved 
under the bundling of contract requirements; 
and 
‘‘(B) whether such savings and benefits 
will continue to be realized if the contract re-
mains bundled, and whether such savings and 
benefits would be greater if the procurement re-
quirements were divided into separate solicita-
tions suitable for award to small business con-
cerns. 
‘‘(3) ANNUAL
REPORT
ON
CONTRACT
BUN-
DLING.— 
‘‘(A) IN GENERAL.—Not later than 1 year 
after the date of the enactment of this para-
graph, and annually in March thereafter, the 
Administrator shall transmit a report on con-
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tract bundling to the Committee on Small Busi-
ness of the House of Representatives and the 
Committee on Small Business and Entrepre-
neurship of the Senate. 
‘‘(B) 
CONTENTS.—Each 
report 
trans-
mitted under subparagraph (A) shall include— 
‘‘(i) data on the number, arranged by 
industrial classification, of small business 
concerns displaced as prime contractors as 
a result of the award of bundled contracts 
by Federal agencies; and 
‘‘(ii) a description of the activities 
with respect to previously bundled con-
tracts of each Federal agency during the 
preceding year, including— 
‘‘(I) data on the number and 
total dollar amount of all contract re-
quirements that were bundled; and 
‘‘(II) with respect to each bun-
dled contract, data or information 
on— 
‘‘(aa) the justification for 
the bundling of contract require-
ments; 
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‘‘(bb) the cost savings real-
ized by bundling the contract re-
quirements over the life of the 
contract; 
‘‘(cc) the extent to which 
maintaining the bundled status 
of contract requirements is pro-
jected to result in continued cost 
savings; 
‘‘(dd) the extent to which 
the bundling of contract require-
ments complied with the con-
tracting agency’s small business 
subcontracting 
plan, 
including 
the total dollar value awarded to 
small business concerns as sub-
contractors and the total dollar 
value previously awarded to small 
business concerns as prime con-
tractors; and 
‘‘(ee) the impact of the bun-
dling of contract requirements on 
small business concerns unable to 
compete as prime contractors for 
the 
consolidated 
requirements 
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and on the industries of such 
small business concerns, includ-
ing a description of any changes 
to the proportion of any such in-
dustry that is composed of small 
business concerns. 
‘‘(h) BUNDLING ACCOUNTABILITY MEASURES.— 
‘‘(1) TEAMING REQUIREMENTS.—Each Federal 
agency shall include in each solicitation for any mul-
tiple award contract above the dollar threshold a 
provision soliciting bids from any responsible source, 
including responsible small business concerns and 
teams or joint ventures of small business concerns. 
‘‘(2) POLICIES ON REDUCTION OF CONTRACT 
BUNDLING.— 
‘‘(A) IN
GENERAL.—Not later than 270 
days after the date of enactment of this sub-
paragraph, the Federal Acquisition Regulatory 
Council, established under section 25(a) of the 
Office of Federal Procurement Policy Act (41 
U.S.C. 1302(a)), shall amend the Federal Ac-
quisition Regulation issued under section 25 of 
such Act to— 
‘‘(i) establish a Government-wide pol-
icy regarding contract bundling, including 
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regarding the solicitation of teaming and 
joint ventures; and 
‘‘(ii) require that the policy estab-
lished under clause (i) be published on the 
website of each Federal agency. 
‘‘(B) RATIONALE
FOR
CONTRACT
BUN-
DLING.—Not later than 30 days after the date 
on which the head of a Federal agency submits 
the report required under section 15(h), the 
head of the Federal agency shall publish on the 
website of the Federal agency a list and ration-
ale for any bundled contract for which the Fed-
eral agency solicited bids or that was awarded 
by the Federal agency.’’. 
SEC. 3. REPEAL OF REDUNDANT PROVISIONS. 
(a) CERTAIN PROVISIONS REGARDING CONTRACT 
BUNDLING REPEALED.—Section 15(a) of the Small Busi-
ness Act (15 U.S.C. 644(a)), is amended by striking ‘‘If 
a proposed procurement includes’’ and all that follows 
through ‘‘the matter shall be submitted for determination 
to the Secretary or the head of the appropriate depart-
ment or agency by the Administrator.’’. All references in 
law to such sentences as they were in effect on the date 
that is 1 day prior to the effective date of this Act shall 
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be deemed to be references to section 44(d), as added by 
this Act. 
(b) CERTAIN PROVISIONS REGARDING MARKET RE-
SEARCH REPEALED.—Paragraphs (2) through (4) of sec-
tion 15(e) of the Small Business Act (15 U.S.C. 644(e)) 
are repealed. All references in law to such paragraphs, as 
in effect on the date that is one day prior to the effective 
date of this Act, shall be deemed to be references to sub-
sections (d) through (f), respectively, of section 44 of the 
Small Business Act, as added by this section. 
(c) CERTAIN PROVISIONS REGARDING CONTRACT 
BUNDLING DATABASE REPEALED.— 
(1) Paragraph (1) of section 15(p) of the Small 
Business Act (15 U.S.C. 644(p)) is repealed. 
(2) Paragraphs (2) through (4) of section 15(p) 
of the Small Business Act (15 U.S.C 644(p)) are re-
pealed. All references in law to such paragraphs, as 
in effect on the date that is one day prior to the ef-
fective date of this Act, shall be deemed to be ref-
erences to paragraphs (1) through (3), respectively, 
of section 44(h) of the Small Business Act, as added 
by this Act. 
(d) CERTAIN PROVISIONS REGARDING BUNDLING 
ACCOUNTABILITY
MEASURES
REPEALED.—Paragraphs 
(1) and (2) of section 15(q) of the Small Business Act 
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(15 U.S.C 644(q)) are repealed. All references in law to 
such paragraphs, as in effect on the date that is one day 
prior to the effective date of this Act, shall be deemed to 
be references to paragraphs (1) and (2), respectively, of 
section 44(i) of the Small Business Act, as added by this 
Act. 
(e) CERTAIN PROVISIONS REGARDING.—Subsection 
(o) of section 3 of the Small Business Act (15 U.S.C.) 
is repealed. 
SEC. 4. TECHNICAL AMENDMENTS. 
Section 15 of the Small Business Act (15 U.S.C. 644) 
is amended— 
(1) in the subsection heading of subsection (p), 
to read as follows: ‘‘ACCESS TO DATA.’’; and 
(2) in the subsection heading of subsection (p), 
to read as follows: ‘‘REPORTS RELATED TO PRO-
CUREMENT CENTER REPRESENTATIVES.’’. 
SEC. 5. EXPANSION OF AGENCY’S RESPONSIBILITY. 
Section 44(b) of the Small Business Act (15 U.S.C. 
657q(b)) is amended by striking ‘‘appropriate’’ and insert-
ing ‘‘the maximum practicable’’. 
Æ 
VerDate Mar 15 2010 
22:54 Feb 21, 2012
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srobinson on DSK4SPTVN1PROD with BILLS