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The WOSB Integrity Act of 2024

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Congressional materials
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Crpt 118Hrpt383
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Crpt 118Hrpt383

Summary

House of Representatives Report 118–383 of the 118th Congress, submitted February 13, 2024 by Mr. Williams of Texas from the Committee on Small Business, with minority views, to accompany H.R. 7128, the WOSB Integrity Act of 2024. The committee reports the bill favorably without amendment after a January 31, 2024 markup at which no amendments were offered. The report states the bill would require the Small Business Administration to develop procedures to ensure that applicants to the Women Owned Small Business program are small businesses, without requiring a full, formal size determination for each applicant. It cites SBA Office of Inspector General Report Number 22–20 as the basis for the bill. The report closes with changes in existing law to the Small Business Act and minority views signed by Ranking Member Nydia M. Velázquez.

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                                                                                  118TH CONGRESS                                                                                           REPORT
                                                                                                 " HOUSE OF REPRESENTATIVES                                                        !
                                                                                     2d Session                                                                                            118–383




                                                                                                          THE WOSB INTEGRITY ACT OF 2024



                                                                                  FEBRUARY 13, 2024.—Committed to the Committee of the Whole House on the State
                                                                                                     of the Union and ordered to be printed




                                                                                       Mr. WILLIAMS of Texas, from the Committee on Small Business,
                                                                                                         submitted the following


                                                                                                                                  R E P O R T
                                                                                                                                     together with

                                                                                                                               MINORITY VIEWS

                                                                                                                              [To accompany H.R. 7128]

                                                                                    The Committee on Small Business, to whom was referred the bill
                                                                                  (H.R. 7128) to establish requirements relating to size standard
                                                                                  compliance of small business concerns owned and controlled by
                                                                                  women for certain purposes, and for other purposes, having consid-
                                                                                  ered the same, reports favorably thereon without amendment and
                                                                                  recommends that the bill do pass.
                                                                                                                                         CONTENTS
                                                                                                                                                                                                             Page
                                                                                       I. Purpose and Bill Summary ........................................................................                    2
                                                                                      II. Need for Legislation ....................................................................................            2
                                                                                     III. Hearings .......................................................................................................     2
                                                                                     IV. Committee Consideration ...........................................................................                   3
                                                                                      V. Committee Votes .........................................................................................             3
                                                                                     VI. Section-by-Section of H.R. 7128 .................................................................                     6
                                                                                    VII. Congressional Budget Office Cost Estimate .............................................                               6
                                                                                   VIII. New Budget Authority, Entitlement Authority, and Tax Expenditures                                                     6
                                                                                     IX. Oversight Findings & Recommendations ..................................................                               6
                                                                                      X. Performance Goals and Objectives ............................................................                         7
                                                                                     XI. Statement of Duplication of Federal Programs ........................................                                 7
                                                                                    XII. Congressional Earmarks, Limited Tax Benefits, and Limited Tariff
                                                                                            Benefits .....................................................................................................     7
                                                                                   XIII. Federal Mandates Statement .....................................................................                      7
                                                                                    XIV. Federal Advisory Committee Statement ...................................................                              7
                                                                                     XV. Applicability to Legislative Branch ...........................................................                       7




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                                                                                    XVI. Statement of Constitutional Authority ......................................................                          7
                                                                                   XVII. Changes in Existing Law Made by the Bill, as Reported ........................                                        7
                                                                                  XVIII. Minority Views ............................................................................................          41
                                                                                        49–006




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                                                                                                               I. PURPOSE AND BILL SUMMARY
                                                                                     On January 30, 2024, Rep. Maloy, along with Rep. Scholten, in-
                                                                                  troduced H.R. 7128. The purpose of H.R. 7128, the ‘‘WOSB Integ-
                                                                                  rity Act of 2024,’’ is to ensure that the U.S. Small Business Admin-
                                                                                  istration (SBA) develops processes and procedures to ensure that
                                                                                  applicants in the SBA Women Owned Small Business (WOSB) pro-
                                                                                  gram are small businesses.
                                                                                                                 II. NEED FOR LEGISLATION
                                                                                     The SBA Office of Inspector General (OIG) found that the SBA
                                                                                  does not have processes in place to ensure that WOSB applicants
                                                                                  are in fact small businesses. Women small business owners cer-
                                                                                  tified in the WOSB contracting program deserve the peace of mind
                                                                                  that other certified firms are actually small businesses. The SBA
                                                                                  currently allows firms applying for certification to self-certify that
                                                                                  they are a small business. This loophole could lead to fraud, and
                                                                                  negatively impact truly small businesses owned by women entre-
                                                                                  preneurs.
                                                                                     The intent of this bill is to ensure that SBA develops processes
                                                                                  and procedures to consider size as a factor during its WOSB certifi-
                                                                                  cation process. However, the intent is not to require the SBA to
                                                                                  perform a full, formal size determination as a condition to become
                                                                                  certified. Nothing precludes the SBA from referring a potentially
                                                                                  large WOSB applicant for a formal size determination, if it deems
                                                                                  necessary, as it is a current process. The SBA should take every
                                                                                  possible measure to ensure that considering an applicant’s size
                                                                                  does not slow the certification process.
                                                                                     This bill is based on the SBA OIG recommendation that the SBA
                                                                                  develop procedures to verify size. The SBA OIG provided additional
                                                                                  context in Report Number 22–20:
                                                                                     ‘‘Both of the approved third-party certifiers that we reviewed had
                                                                                  documented certification procedures that required the application
                                                                                  reviewers verify that the firm met applicable size standards under
                                                                                  its primary NAICS code. In addition to requiring applicants to sub-
                                                                                  mit business size documentation, program officials should establish
                                                                                  procedures similar to the third-party certifiers, HUBZone, and 8(a)
                                                                                  programs to ensure analysts consistently verify that WOSB appli-
                                                                                  cants are small businesses.’’ 1
                                                                                     ‘‘OIG acknowledges that a size determination is a specific process
                                                                                  and is not recommending SBA perform size determinations for each
                                                                                  applicant. OIG believes program officials can still certify that the
                                                                                  business meets size standards, similar to the procedures used to
                                                                                  certify that 8(a) applicants meet size requirements, to participate
                                                                                  in the program. Without clear regulations and procedures to verify
                                                                                  the applicant’s business size, we believe the program is vulnerable
                                                                                  to abuse.’’ 2
                                                                                                                           III. HEARINGS
                                                                                    In the 118th Congress, the Committee held one hearing exam-
                                                                                  ining the issues covered in H.R. 7128. On May 11, 2023, the Com-




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                                                                                   1 U.S. SMALL BUS. ADMIN. INSPECTOR GEN., 22–20, SBA’S IMPLEMENTATION OF THE WOMEN-
                                                                                  OWNED SMALL BUSINESS CERTIFICATION PROGRAM, 5 (Sep. 29, 2022).
                                                                                   2 Id. at 14.




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                                                                                  mittee held a hearing titled ‘‘Leveling the Playing Field: The State
                                                                                  of Small Business Contracting.’’ Witnesses at this hearing dis-
                                                                                  cussed challenges they face taking advantage of federal contracting
                                                                                  opportunities like the WOSB program. This bill will help ensure
                                                                                  that businesses participating in the WOSB program are actually
                                                                                  small businesses.
                                                                                                               IV. COMMITTEE CONSIDERATION
                                                                                    The Committee on Small Business met in open session, with a
                                                                                  quorum being present, on January 31, 2024, and ordered H.R. 7128
                                                                                  reported to the House of Representatives. During the markup no
                                                                                  amendments were offered.
                                                                                                                     V. COMMITTEE VOTES
                                                                                     Clause 3(b) of rule XIII of the Rules of the House of Representa-
                                                                                  tives requires the Committee to list the recorded votes on the mo-
                                                                                  tion to report legislation and amendments thereto. The Committee
                                                                                  voted to favorably report H.R. 7128 to the House of Representatives
                                                                                  at 12:08 p.m.




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                                                                                                        VI. SECTION-BY-SECTION OF H.R. 7128
                                                                                  Section 1—Short title
                                                                                    This section cites the bill as ‘‘The WOSB Integrity Act of 2024’’.
                                                                                  Section 2—Women owned small business size standard compliance
                                                                                       for restricted competition
                                                                                    This section amends the Small Business Act to ensure that
                                                                                  WOSB firms do not exceed the relevant size standard.
                                                                                    This section also ensures that current WOSB firms are not re-
                                                                                  moved from the program, or lose access to contracts, because the
                                                                                  SBA is delayed in verifying size.
                                                                                    It further clarifies that the bill does not require the SBA to con-
                                                                                  duct a full, formal size determination for each applicant.
                                                                                    Finally, this section includes a technical amendment to an incor-
                                                                                  rect reference in statute, language to ensure that no additional
                                                                                  funds are authorized to be appropriated to carry out the bill, as
                                                                                  well as definitions for Administrator, small business concern, and
                                                                                  small business concern owned and controlled by women.
                                                                                             VII. CONGRESSIONAL BUDGET OFFICE COST ESTIMATE
                                                                                    Pursuant to clause 3(d)(1) of House rule XIII, the Committee
                                                                                  adopts as its own the cost estimate prepared by the Director of the
                                                                                  Congressional Budget Office pursuant to section 402 of the Con-
                                                                                  gressional Budget Act of 1974. The Committee has requested but
                                                                                  not received from the Director of the Congressional Budget Office
                                                                                  a cost estimate for the Committee’s provisions. Once available, the
                                                                                  cost estimate will be published in the Congressional Record.
                                                                                  VIII. NEW BUDGET AUTHORITY, ENTITLEMENT AUTHORITY, AND TAX
                                                                                                        EXPENDITURES
                                                                                     Pursuant to clause 3(c)(2) of rule XIII of the Rules of the House
                                                                                  of Representatives and section 308(a)(I) of the Congressional Budg-
                                                                                  et Act of 1974, the Committee provides the following opinion and
                                                                                  estimate with respect to new budget authority, entitlement author-
                                                                                  ity, and tax expenditures. While the Committee has not received an
                                                                                  estimate of new budget authority contained in the cost estimate
                                                                                  prepared by the Director of the Congressional Budget Office pursu-
                                                                                  ant to Sec. 402 of the Congressional Budget Act of 1974, the Com-
                                                                                  mittee does not believe that there will be any additional costs at-
                                                                                  tributable to this legislation. H.R. 7128 does not direct new spend-
                                                                                  ing, but instead reallocates funding independently authorized and
                                                                                  appropriated.
                                                                                                    IX. OVERSIGHT FINDINGS & RECOMMENDATIONS
                                                                                    In accordance with clause 3(c)(1) of rule XIII and clause 2(b)(1)
                                                                                  of rule X of the Rules of the House of Representatives, the over-
                                                                                  sight findings and recommendations of the Committee on Small
                                                                                  Business with respect to the subject matter contained in the H.R.




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                                                                                  7128 are incorporated into the descriptive portions of this report.




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                                                                                                       X. PERFORMANCE GOALS AND OBJECTIVES
                                                                                    With respect to the requirements of clause 3(c)(1) of rule XIII of
                                                                                  the Rules of the House of Representatives, the performance goals
                                                                                  and objectives of H.R. 7128 do not require additional reporting
                                                                                  metrics. The SBA already provides information related to WOSB
                                                                                  certification, such as the number of firms certified in the WOSB
                                                                                  program.
                                                                                           XI. STATEMENT OF DUPLICATION OF FEDERAL PROGRAMS
                                                                                    Pursuant to clause 3(c)(5) of rule XIII of the Rules of the House
                                                                                  of Representatives, no provision of H.R. 7128 is known to be dupli-
                                                                                  cative of another Federal program, including any program that was
                                                                                  included in a report to Congress pursuant to section 21 of Public
                                                                                  Law 111–139 or the most recent Catalog of Federal Domestic As-
                                                                                  sistance.
                                                                                       XII. CONGRESSIONAL EARMARKS, LIMITED TAX BENEFITS, AND
                                                                                                       LIMITED TARIFF BENEFITS
                                                                                    With respect to clause 9 of rule XXI of the Rules of the House
                                                                                  of Representatives, the Committee finds that the bill does not con-
                                                                                  tain any congressional earmarks, limited tax benefits, or limited
                                                                                  tariff benefits as defined in clause 9(e), 9(f), or 9(g) of rule XXI of
                                                                                  the Rules of the House of Representatives.
                                                                                                          XIII. FEDERAL MANDATES STATEMENT
                                                                                    The Committee adopts as its own the estimate of Federal man-
                                                                                  dates prepared by the Director of the Congressional Budget Office
                                                                                  pursuant to section 423 of the Unfunded Mandates Reform Act.
                                                                                                    XIV. FEDERAL ADVISORY COMMITTEE STATEMENT
                                                                                    No advisory committees within the meaning of section 5(b) of the
                                                                                  Federal Advisory Committee Act were created by this legislation.
                                                                                                      XV. APPLICABILITY TO LEGISLATIVE BRANCH
                                                                                    The Committee finds that the legislation does not relate to the
                                                                                  terms and conditions of employment or access to public services or
                                                                                  accommodations within the meaning of section 102(b)(3) of the Con-
                                                                                  gressional Accountability Act.
                                                                                                XVI. STATEMENT OF CONSTITUTIONAL AUTHORITY
                                                                                    Pursuant to clause 7 of rule XII of the Rules of the House of Rep-
                                                                                  resentatives, the Committee finds that the authority for this legis-
                                                                                  lation in Art. I, § 8, cl. 1 of the Constitution of the United States.
                                                                                   XVII. 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 omit-




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                                                                                  ted is enclosed in black brackets, new matter is printed in italics,
                                                                                  and existing law in which no change is proposed is shown in
                                                                                  roman):




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                                                                                        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 omit-
                                                                                  ted is enclosed in black brackets, new matter is printed in italics,
                                                                                  and existing law in which no change is proposed is shown in
                                                                                  roman):
                                                                                                                 SMALL BUSINESS ACT
                                                                                          *        *        *        *       *         *       *
                                                                                    SEC. 8. (a)(1) It shall be the duty of the Administration and it
                                                                                  is hereby empowered, whenever it determines such action is nec-
                                                                                  essary or appropriate—
                                                                                         (A) to enter into contracts with the United States Govern-
                                                                                      ment and any department, agency, or officer thereof having
                                                                                      procurement powers obligating the Administration to furnish
                                                                                      articles, equipment, supplies, services, or materials to the Gov-
                                                                                      ernment or to perform construction work for the Government.
                                                                                      In any case in which the Administration certifies to any officer
                                                                                      of the Government having procurement powers that the Ad-
                                                                                      ministration is competent and responsible to perform any spe-
                                                                                      cific Government procurement contract to be let by any such
                                                                                      officer, such officer shall be authorized in his discretion to let
                                                                                      such procurement contract to the Administration upon such
                                                                                      terms and conditions as may be agreed upon between the Ad-
                                                                                      ministration and the procurement officer. Whenever the Ad-
                                                                                      ministration and such procurement officer fail to agree, the
                                                                                      matter shall be submitted for determination to the Secretary
                                                                                      or the head of the appropriate department or agency by the
                                                                                      Administrator. Not later than 5 days from the date the Admin-
                                                                                      istration is notified of a procurement officer’s adverse decision,
                                                                                      the Administration may notify the contracting officer of the in-
                                                                                      tent to appeal such adverse decision, and within 15 days of
                                                                                      such date the Administrator shall file a written request for a
                                                                                      reconsideration of the adverse decision with the Secretary of
                                                                                      the department or agency head. For the purposes of this sub-
                                                                                      paragraph, a procurement officer’s adverse decision includes a
                                                                                      decision not to make available for award pursuant to this sub-
                                                                                      section a particular procurement requirement or the failure to
                                                                                      agree on the terms and conditions of a contract to be awarded
                                                                                      noncompetitively under the authority of this subsection. Upon
                                                                                      receipt of the notice of intent to appeal, the Secretary of the
                                                                                      department or the agency head shall suspend further action re-
                                                                                      garding the procurement until a written decision on the Ad-
                                                                                      ministrator’s request for reconsideration has been issued by
                                                                                      such Secretary or agency head, unless such officer makes a
                                                                                      written determination that urgent and compelling cir-
                                                                                      cumstances which significantly affect interests of the United
                                                                                      States will not permit waiting for a reconsideration of the ad-
                                                                                      verse decision. If the Administrator’s request for reconsider-
                                                                                      ation is denied, the Secretary of the department or agency




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                                                                                      head shall specify the reasons why the selected firm was deter-
                                                                                      mined to be incapable to perform the procurement require-
                                                                                      ment, and the findings supporting such determination, which




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                                                                                      shall be made a part of the contract file for the requirement.
                                                                                      A contract may not be awarded under this subsection if the
                                                                                      award of the contract would result in a cost to the awarding
                                                                                      agency which exceeds a fair market price;
                                                                                         (B) to arrange for the performance of such procurement con-
                                                                                      tracts by negotiating or otherwise letting subcontracts to so-
                                                                                      cially and economically disadvantaged small business concerns
                                                                                      for construction work, services, or the manufacture, supply, as-
                                                                                      sembly of such articles, equipment, supplies, materials, or
                                                                                      parts thereof, or servicing or processing in connection there-
                                                                                      with, or such management services as may be necessary to en-
                                                                                      able the Administration to perform such contracts;
                                                                                               (C) to make an award to a small business concern owned
                                                                                            and controlled by socially and economically disadvantaged
                                                                                            individuals which has completed its period of Program
                                                                                            Participation as prescribed by section 7(j)(15), if—
                                                                                                     (i) the contract will be awarded as a result of an
                                                                                                  offer (including price) submitted in response to a pub-
                                                                                                  lished solicitation relating to a competition conducted
                                                                                                  pursuant to subparagraph (D); and
                                                                                                     (ii) the prospective contract awardee was a Program
                                                                                                  Participant eligible for award of the contract on the
                                                                                                  date specified for receipt of offers contained in the con-
                                                                                                  tract solicitation; and
                                                                                         (D)(i) A contract opportunity offered for award pursuant to
                                                                                      this subsection shall be awarded on the basis of competition re-
                                                                                      stricted to eligible Program Participants if—
                                                                                               (I) there is a reasonable expectation that at least two eli-
                                                                                            gible Program Participants will submit offers and that
                                                                                            award can be made at a fair market price, and
                                                                                               (II) the anticipated award price of the contract (including
                                                                                            options) will exceed $7,000,000 in the case of a contract op-
                                                                                            portunity assigned a standard industrial classification code
                                                                                            for manufacturing and $3,000,000 (including options) in
                                                                                            the case of all other contract opportunities.
                                                                                         (ii) The Associate Administrator for Minority Small Business
                                                                                      and Capital Ownership Development, on a nondelegable basis,
                                                                                      is authorized to approve a request from an agency to award a
                                                                                      contract opportunity under this subsection on the basis of a
                                                                                      competition restricted to eligible Program Participants even if
                                                                                      the anticipated award price is not expected to exceed the dollar
                                                                                      amounts specified in clause (i)(II). Such approvals shall be
                                                                                      granted only on a limited basis.
                                                                                    (2) Notwithstanding subsections (a) and (c) of the first section of
                                                                                  the Act entitled ‘‘An Act requiring contracts for the construction, al-
                                                                                  teration, and repair of any public building or public work of the
                                                                                  United States to be accompanied by a performance bond protecting
                                                                                  the United States and by additional bond for the protection of per-
                                                                                  sons furnishing material and labor for the construction, alteration,
                                                                                  or repair of said public buildings or public work,’’ approved August
                                                                                  24, 1935 (49 Stat. 793), no small business concern shall be required




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                                                                                  to provide any amount of any bond as a condition or receiving any
                                                                                  subcontract under this subsection if the Administrator determines
                                                                                  that such amount is inappropriate for such concern in performing




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                                                                                  such contract: Provided, That the Administrator shall exercise the
                                                                                  authority granted by the paragraph only if—
                                                                                           (A) the Administration takes such measures as it deems ap-
                                                                                        propriate for the protection of persons furnishing materials and
                                                                                        labor to a small business receiving any benefit pursuant to this
                                                                                        paragraph;
                                                                                           (B) the Administration assists, insofar as practicable, a small
                                                                                        business receiving the benefits of this paragraph to develop,
                                                                                        within a reasonable period of time, such financial and other ca-
                                                                                        pability as may be needed to obtain such bonds as the Admin-
                                                                                        istration may subsequently require for the successful comple-
                                                                                        tion of any program conducted under the authority of this sub-
                                                                                        section;
                                                                                           (C) the Administration finds that such small business is un-
                                                                                        able to obtain the requisite bond or bonds from a surety and
                                                                                        that no surety is willing to issue such bond or bonds subject
                                                                                        to the guarantee provisions of Title IV of the Small Business
                                                                                        Investment Act of 1958; and
                                                                                           (D) that small business is determined to be a start-up con-
                                                                                        cern and such concern has not been participating in any pro-
                                                                                        gram conducted under the authority of this subsection for a pe-
                                                                                        riod exceeding one year.
                                                                                  The authority to waive bonds provided in this paragraph (2) may
                                                                                  not be exercised after September 30, 1988.
                                                                                     (3)(A) Any Program Participant selected by the Administration to
                                                                                  perform a contract to be let noncompetitively pursuant to this sub-
                                                                                  section shall, when practicable, participate in any negotiation of
                                                                                  the terms and conditions of such contract.
                                                                                     (B)(i) For purposes of paragraph (1) a ‘‘fair market price’’ shall
                                                                                  be determined by the agency offering the procurement requirement
                                                                                  to the Administration, in accordance with clauses (ii) and (iii).
                                                                                     (ii) The estimate of a current fair market price for a new procure-
                                                                                  ment requirement, or a requirement that does not have a satisfac-
                                                                                  tory procurement history, shall be derived from a price or cost
                                                                                  analysis. Such analysis may take into account prevailing market
                                                                                  conditions, commercial prices for similar products or services, or
                                                                                  data obtained from any other agency. Such analysis shall consider
                                                                                  such cost or pricing data as may be timely submitted by the Ad-
                                                                                  ministration.
                                                                                     (iii) The estimate of a current fair market price for a procure-
                                                                                  ment requirement that has a satisfactory procurement history shall
                                                                                  be based on recent award prices adjusted to insure comparability.
                                                                                  Such adjustments shall take into account differences in quantities,
                                                                                  performance times, plans, specifications, transportation costs, pack-
                                                                                  aging and packing costs, labor and materials costs, overhead costs,
                                                                                  and any other additional costs which may be deemed appropriate.
                                                                                     (C) An agency offering a procurement requirement for potential
                                                                                  award pursuant to this subsection shall, upon the request of the
                                                                                  Administration, promptly submit to the Administration a written
                                                                                  statement detailing the method used by the agency to estimate the
                                                                                  current fair market price for such contract, identifying the informa-
                                                                                  tion, studies, analyses, and other data used by such agency. The




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                                                                                  agency’s estimate of the current fair market price (and any sup-
                                                                                  porting data furnished to the Administration) shall not be disclosed
                                                                                  to any potential offeror (other than the Administration).




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                                                                                    (D) A small business concern selected by the Administration to
                                                                                  perform or negotiate a contract to be let pursuant to this sub-
                                                                                  section may request the Administration to protest the agency’s esti-
                                                                                  mate of the fair market price for such contract pursuant to para-
                                                                                  graph (1)(A).
                                                                                    (4)(A) For purposes of this section, the term ‘‘socially and eco-
                                                                                  nomically disadvantaged small business concern’’ means any small
                                                                                  business concern which meets the requirements of subparagraph
                                                                                  (B) and—
                                                                                          (i) which is at least 51 per centum unconditionally owned
                                                                                       by—
                                                                                                (I) one or more socially and economically disadvantaged
                                                                                             individuals,
                                                                                                (II) an economically disadvantaged Indian tribe (or a
                                                                                             wholly owned business entity of such tribe), or
                                                                                                (III) an economically disadvantaged Native Hawaiian or-
                                                                                             ganization, or
                                                                                          (ii) in the case of any publicly owned business, at least 51
                                                                                       per centum of the stock of which is unconditionally owned by—
                                                                                                (I) one or more socially and economically disadvantaged
                                                                                             individuals,
                                                                                                (II) an economically disadvantaged Indian tribe (or a
                                                                                             wholly owned business entity of such tribe), or
                                                                                                (III) an economically disadvantaged Native Hawaiian or-
                                                                                             ganization.
                                                                                    (B) A small business concern meets the requirements of this sub-
                                                                                  paragraph if the management and daily business operations of
                                                                                  such small business concern are controlled by one or more—
                                                                                          (i) socially and economically disadvantaged individuals de-
                                                                                       scribed in subparagraph (A)(i)(I) or subparagraph (A)(ii)(I),
                                                                                          (ii) members of an economically disadvantaged Indian tribe
                                                                                       described in subparagraph (A)(i)(II) or subparagraph (A)(ii)(II),
                                                                                       or
                                                                                          (iii) Native Hawaiian organizations described in subpara-
                                                                                       graph (A)(i)(III) or subparagraph (A)(ii)(III).
                                                                                    (C) Each Program Participant shall certify, on an annual basis,
                                                                                  that it meets the requirements of this paragraph regarding owner-
                                                                                  ship and control.
                                                                                    (5) Socially disadvantaged individuals are those who have been
                                                                                  subjected to racial or ethnic prejudice or cultural bias because of
                                                                                  their identity as a member of a group without regard to their indi-
                                                                                  vidual qualities.
                                                                                    (6)(A) Economically disadvantaged individuals are those socially
                                                                                  disadvantaged individuals whose ability to compete in the free en-
                                                                                  terprise system has been impaired due to diminished capital and
                                                                                  credit opportunities as compared to others in the same business
                                                                                  area who are not socially disadvantaged. In determining the degree
                                                                                  of diminished credit and capital opportunities the Administration
                                                                                  shall consider, but not be limited to, the assets and net worth of
                                                                                  such socially disadvantaged individual. In determining the eco-
                                                                                  nomic disadvantage of an Indian tribe, the Administration shall
                                                                                  consider, where available, information such as the following: the




dmwilson on DSKJM0X7X2PROD with REPORT-WS
                                                                                  per capita income of members of the tribe excluding judgment
                                                                                  awards, the percentage of the local Indian population below the
                                                                                  poverty level, and the tribe’s access to capital markets.




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                                                                                     (B) Each Program Participant shall annually submit to the Ad-
                                                                                  ministration—
                                                                                          (i) a personal financial statement for each disadvantaged
                                                                                        owner;
                                                                                          (ii) a record of all payments made by the Program Partici-
                                                                                        pant to each of its disadvantaged owners or to any person or
                                                                                        entity affiliated with such owners; and
                                                                                          (iii) such other information as the Administration may deem
                                                                                        necessary to make the determinations required by this para-
                                                                                        graph.
                                                                                     (C)(i) Whenever, on the basis of information provided by a Pro-
                                                                                  gram Participant pursuant to subparagraph (B) or otherwise, the
                                                                                  Administration has reason to believe that the standards to estab-
                                                                                  lish economic disadvantage pursuant to subparagraph (A) have not
                                                                                  been met, the Administration shall conduct a review to determine
                                                                                  whether such Program Participant and its disadvantaged owners
                                                                                  continue to be impaired in their ability to compete in the free en-
                                                                                  terprise system due to diminished capital and credit opportunities
                                                                                  when compared to other concerns in the same business area, which
                                                                                  are not socially disadvantaged.
                                                                                     (ii) If the Administration determines, pursuant to such review,
                                                                                  that a Program Participant and its disadvantaged owners are no
                                                                                  longer economically disadvantaged for the purpose of receiving as-
                                                                                  sistance under this subsection, the Program Participant shall be
                                                                                  graduated pursuant to section 7(j)(10)(G) subject to the right to a
                                                                                  hearing as provided for under paragraph (9).
                                                                                     (D)(i) Whenever, on the basis of information provided by a Pro-
                                                                                  gram Participant pursuant to subparagraph (B) or otherwise, the
                                                                                  Administration has reason to believe that the amount of funds or
                                                                                  other assets withdrawn from a Program Participant for the per-
                                                                                  sonal benefit of its disadvantaged owners or any person or entity
                                                                                  affiliated with such owners may have been unduly excessive, the
                                                                                  Administration shall conduct a review to determine whether such
                                                                                  withdrawal of funds or other assets was detrimental to the achieve-
                                                                                  ment of the targets, objectives, and goals contained in such Pro-
                                                                                  gram Participant’s business plan.
                                                                                     (ii) If the Administration determines, pursuant to such review,
                                                                                  that funds or other assets have been withdrawn to the detriment
                                                                                  of the Program Participant’s business, the Administration shall—
                                                                                          (I) initiate a proceeding to terminate the Program Partici-
                                                                                        pant pursuant to section 7(j)(10)(F), subject to the right to a
                                                                                        hearing under paragraph (9); or
                                                                                          (II) require an appropriate reinvestment of funds or other as-
                                                                                        sets and such other steps as the Administration may deem nec-
                                                                                        essary to ensure the protection of the concern.
                                                                                     (E) Whenever the Administration computes personal net worth
                                                                                  for any purpose under this paragraph, it shall exclude from such
                                                                                  computation—
                                                                                          (i) the value of investments that disadvantaged owners have
                                                                                        in their concerns, except that such value shall be taken into ac-
                                                                                        count under this paragraph when comparing such concerns to
                                                                                        other concerns in the same business area that are owned by




dmwilson on DSKJM0X7X2PROD with REPORT-WS
                                                                                        other than socially disadvantaged persons;
                                                                                          (ii) the equity that disadvantaged owners have in their pri-
                                                                                        mary personal residences, except that any portion of such eq-




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                                                                                       uity that is attributable to unduly excessive withdrawals from
                                                                                       a Program Participant or a concern applying for program par-
                                                                                       ticipation shall be taken into account.
                                                                                     (7)(A) No small business concern shall be deemed eligible for any
                                                                                  assistance pursuant to this subsection unless the Administration
                                                                                  determines that with contract, financial, technical, and manage-
                                                                                  ment support the small business concern will be able to perform
                                                                                  contracts which may be awarded to such concern under paragraph
                                                                                  (1)(C) and has reasonable prospects for success in competing in the
                                                                                  private sector.
                                                                                     (B) Limitations established by the Administration in its regula-
                                                                                  tions and procedures restricting the award of contracts pursuant to
                                                                                  this subsection to a limited number of standard industrial classi-
                                                                                  fication codes in an approved business plan shall not be applied in
                                                                                  a manner that inhibits the logical business progression by a par-
                                                                                  ticipating small business concern into areas of industrial endeavor
                                                                                  where such concern has the potential for success.
                                                                                     (8) All determinations made pursuant to paragraph (5) with re-
                                                                                  spect to whether a group has been subjected to prejudice or bias
                                                                                  shall be made by the Administrator after consultation with the As-
                                                                                  sociate Administrator for Minority Small Business and Capital
                                                                                  Ownership Development. All other determinations made pursuant
                                                                                  to paragraphs (4), (5), (6), and (7) shall be made by the Associate
                                                                                  Administrator for Minority Small Business and Capital Ownership
                                                                                  Development under the supervision of, and responsible to, the Ad-
                                                                                  ministrator.
                                                                                     (9)(A) Subject to the provisions of subparagraph (E), the Admin-
                                                                                  istration, prior to taking any action described in subparagraph (B),
                                                                                  shall provide the small business concern that is the subject of such
                                                                                  action, an opportunity for a hearing on the record, in accordance
                                                                                  with chapter 5 of title 5, United States Code.
                                                                                     (B) The actions referred to in subparagraph (A) are—
                                                                                          (i) denial of program admission based upon a negative deter-
                                                                                       mination pursuant to paragraph (4), (5), or (6);
                                                                                          (ii) a termination pursuant to section 7(j)(10)(F);
                                                                                          (iii) a graduation pursuant to section 7(j)(10)(G); and
                                                                                          (iv) the denial of a request to issue a waiver pursuant to
                                                                                       paragraph (21)(B).
                                                                                     (C) The Administration’s proposed action, in any proceeding con-
                                                                                  ducted under the authority of this paragraph, shall be sustained
                                                                                  unless it is found to be arbitrary, capricious, or contrary to law.
                                                                                     (D) A decision rendered pursuant to this paragraph shall be the
                                                                                  final decision of the Administration and shall be binding upon the
                                                                                  Administration and those within its employ.
                                                                                     (E) The adjudicator selected to preside over a proceeding con-
                                                                                  ducted under the authority of this paragraph shall decline to accept
                                                                                  jurisdiction over any matter that—
                                                                                          (i) does not, on its face, allege facts that, if proven to be true,
                                                                                       would warrant reversal or modification of the Administration’s
                                                                                       position;
                                                                                          (ii) is untimely filed;
                                                                                          (iii) is not filed in accordance with the rules of procedure




dmwilson on DSKJM0X7X2PROD with REPORT-WS
                                                                                       governing such proceedings; or
                                                                                          (iv) has been decided by or is the subject of an adjudication
                                                                                       before a court of competent jurisdiction over such matters.




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                                                                                     (F) Proceedings conducted pursuant to the authority of this para-
                                                                                  graph shall be completed and a decision rendered, insofar as prac-
                                                                                  ticable, within ninety days after a petition for a hearing is filed
                                                                                  with the adjudicating office.
                                                                                     (10) The Administration shall develop and implement an out-
                                                                                  reach program to inform and recruit small business concerns to
                                                                                  apply for eligibility for assistance under this subsection. Such pro-
                                                                                  gram shall make a sustained and substantial effort to solicit appli-
                                                                                  cations for certification from small business concerns located in
                                                                                  areas of concentrated unemployment or underemployment or with-
                                                                                  in labor surplus areas and within States having relatively few Pro-
                                                                                  gram Participants and from small disadvantaged business concerns
                                                                                  in industry categories that have not substantially participated in
                                                                                  the award of contracts let under the authority of this subsection.
                                                                                     (11) To the maximum extent practicable, construction sub-
                                                                                  contracts awarded by the Administration pursuant to this sub-
                                                                                  section shall be awarded within the county or State where the
                                                                                  work is to be performed.
                                                                                     (12)(A) The Administration shall require each concern eligible to
                                                                                  receive subcontracts pursuant to this subsection to annually pre-
                                                                                  pare and submit to the Administration a capability statement.
                                                                                  Such statement shall briefly describe such concern’s various con-
                                                                                  tract performance capabilities and shall contain the name and tele-
                                                                                  phone number of the Business Opportunity Specialist assigned
                                                                                  such concern. The Administration shall separate such statements
                                                                                  by those primarily dependent upon local contract support and those
                                                                                  primarily requiring a national marketing effort. Statements pri-
                                                                                  marily dependent upon local contract support shall be disseminated
                                                                                  to appropriate buying activities in the marketing area of the con-
                                                                                  cern. The remaining statements shall be disseminated to the Direc-
                                                                                  tors of Small and Disadvantaged Business Utilization for the ap-
                                                                                  propriate agencies who shall further distribute such statements to
                                                                                  buying activities with such agencies that may purchase the types
                                                                                  of items or services described on the capability statements.
                                                                                     (B) Contracting activities receiving capability statements shall,
                                                                                  within 60 days after receipt, contact the relevant Business Oppor-
                                                                                  tunity Specialist to indicate the number, type, and approximate
                                                                                  dollar value of contract opportunities that such activities may be
                                                                                  awarding over the succeeding 12-month period and which may be
                                                                                  appropriate to consider for award to those concerns for which it has
                                                                                  received capability statements.
                                                                                     (C) Each executive agency reporting to the Federal Procurement
                                                                                  Data System contract actions with an aggregate value in excess of
                                                                                  $50,000,000 in fiscal year 1988, or in any succeeding fiscal year,
                                                                                  shall prepare a forecast of expected contract opportunities or class-
                                                                                  es of contract opportunities for the next and succeeding fiscal years
                                                                                  that small business concerns, including those owned and controlled
                                                                                  by socially and economically disadvantaged individuals, are capable
                                                                                  of performing. Such forecast shall be periodically revised during
                                                                                  such year. To the extent such information is available, the agency
                                                                                  forecasts shall specify:
                                                                                          (i) The approximate number of individual contract opportuni-




dmwilson on DSKJM0X7X2PROD with REPORT-WS
                                                                                       ties (and the number of opportunities within a class).
                                                                                          (ii) The approximate dollar value, or range of dollar values,
                                                                                       for each contract opportunity or class of contract opportunities.




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                                                                                          (iii) The anticipated time (by fiscal year quarter) for the
                                                                                       issuance of a procurement request.
                                                                                          (iv) The activity responsible for the award and administra-
                                                                                       tion of the contract.
                                                                                     (D) The head of each executive agency subject to the provisions
                                                                                  of subparagraph (C) shall within 10 days of completion furnish
                                                                                  such forecasts to—
                                                                                          (i) the Director of the Office of Small and Disadvantaged
                                                                                       Business Utilization established pursuant to section 15(k) for
                                                                                       such agency; and
                                                                                          (ii) the Administrator.
                                                                                     (E) The information reported pursuant to subparagraph (D) may
                                                                                  be limited to classes of items and services for which there are sub-
                                                                                  stantial annual purchases.
                                                                                     (F) Such forecasts shall be available to small business concerns.
                                                                                     (13) For purposes of this subsection, the term ‘‘Indian tribe’’
                                                                                  means any Indian tribe, band, nation, or other organized group or
                                                                                  community of Indians, including any Alaska Native village or re-
                                                                                  gional or village corporation (within the meaning of the Alaska Na-
                                                                                  tive Claims Settlement Act) which—
                                                                                          (A) is recognized as eligible for the special programs and
                                                                                       services provided by the United States to Indians because of
                                                                                       their status as Indians, or
                                                                                          (B) is recognized as such by the State in which such tribe,
                                                                                       band, nation, group, or community resides.
                                                                                          (14) LIMITATIONS ON SUBCONTRACTING.—A concern may not
                                                                                       be awarded a contract under this subsection as a small busi-
                                                                                       ness concern unless the concern agrees to satisfy the require-
                                                                                       ments of section 46.
                                                                                     (15) For purposes of this subsection, the term ‘‘Native Hawaiian
                                                                                  Organization’’ means any community service organization serving
                                                                                  Native Hawaiians in the State of Hawaii which—
                                                                                          (A) is a nonprofit corporation that has filed articles of incor-
                                                                                       poration with the director (or the designee thereof) of the Ha-
                                                                                       waii Department of Commerce and Consumer Affairs, or any
                                                                                       successor agency,
                                                                                          (B) is controlled by Native Hawaiians, and
                                                                                          (C) whose business activities will principally benefit such
                                                                                       Native Hawaiians.
                                                                                     (16)(A) The Administration shall award sole source contracts
                                                                                  under this section to any small business concern recommended by
                                                                                  the procuring agency offering the contract opportunity if—
                                                                                          (i) the Program Participant is determined to be a responsible
                                                                                       contractor with respect to performance of such contract oppor-
                                                                                       tunity;
                                                                                          (ii) the award of such contract would be consistent with the
                                                                                       Program Participant’s business plan; and
                                                                                          (iii) the award of the contract would not result in the Pro-
                                                                                       gram Participant exceeding the requirements established by
                                                                                       section 7(j)(10)(I).
                                                                                     (B) To the maximum extent practicable, the Administration shall
                                                                                  promote the equitable geographic distribution of sole source con-




dmwilson on DSKJM0X7X2PROD with REPORT-WS
                                                                                  tracts awarded pursuant to this subsection.
                                                                                     (17)(A) An otherwise responsible business concern that is in com-
                                                                                  pliance with the requirements of subparagraph (B) shall not be de-




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                                                                                                                                  16

                                                                                  nied the opportunity to submit and have considered its offer for
                                                                                  any procurement contract, which contract has as its principal pur-
                                                                                  pose the supply of a product to be let pursuant to this subsection,
                                                                                  subsection (m), section 15(a), section 31, or section 36, solely be-
                                                                                  cause such concern is other than the actual manufacturer or proc-
                                                                                  essor of the product to be supplied under the contract.
                                                                                     (B) To be in compliance with the requirements referred to in sub-
                                                                                  paragraph (A), such a business concern shall—
                                                                                          (i) be primarily engaged in the wholesale or retail trade;
                                                                                          (ii) be a small business concern under the numerical size
                                                                                       standard for the Standard Industrial Classification Code as-
                                                                                       signed to the contract solicitation on which the offer is being
                                                                                       made;
                                                                                          (iii) be a regular dealer, as defined pursuant to section 35(a)
                                                                                       of title 41, United States Code (popularly referred to as the
                                                                                       Walsh-Healey Public Contracts Act), in the product to be of-
                                                                                       fered the Government or be specifically exempted from such
                                                                                       section by section 7(j)(13)(C); and
                                                                                          (iv) represent that it will supply the product of a domestic
                                                                                       small business manufacturer or processor, unless a waiver of
                                                                                       such requirement is granted—
                                                                                                (I) by the Administrator, after reviewing a determination
                                                                                             by the contracting officer that no small business manufac-
                                                                                             turer or processor can reasonably be expected to offer a
                                                                                             product meeting the specifications (including period for
                                                                                             performance) required of an offeror by the solicitation; or
                                                                                                (II) by the Administrator for a product (or class of prod-
                                                                                             ucts), after determining that no small business manufac-
                                                                                             turer or processor is available to participate in the Federal
                                                                                             procurement market.
                                                                                          (C) LIMITATION.—This paragraph shall not apply to a con-
                                                                                       tract that has as its principal purpose the acquisition of serv-
                                                                                       ices or construction.
                                                                                     (18)(A) No person within the employ of the Administration shall,
                                                                                  during the term of such employment and for a period of two years
                                                                                  after such employment has been terminated, engage in any activity
                                                                                  or transaction specified in subparagraph (B) with respect to any
                                                                                  Program Participant during such person’s term of employment, if
                                                                                  such person participated personally (either directly or indirectly) in
                                                                                  decision-making responsibilities relating to such Program Partici-
                                                                                  pant or with respect to the administration of any assistance pro-
                                                                                  vided to Program Participants generally under this subsection, sec-
                                                                                  tion 7(j)(10), or section 7(a)(20).
                                                                                     (B) The activities and transactions prohibited by subparagraph
                                                                                  (A) include—
                                                                                          (i) the buying, selling, or receiving (except by inheritance) of
                                                                                       any legal or beneficial ownership of stock or any other owner-
                                                                                       ship interest or the right to acquire any such interest;
                                                                                          (ii) the entering into or execution of any written or oral
                                                                                       agreement (whether or not legally enforceable) to purchase or
                                                                                       otherwise obtain any right or interest described in clause (i);




dmwilson on DSKJM0X7X2PROD with REPORT-WS
                                                                                       or
                                                                                          (iii) the receipt of any other benefit or right that may be an
                                                                                       incident of ownership.




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                                                                                     (C)(i) The employees designated in clause (ii) shall annually sub-
                                                                                  mit a written certification to the Administration regarding compli-
                                                                                  ance with the requirements of this paragraph.
                                                                                     (ii) The employees referred to in clause (i) are—
                                                                                           (I) regional administrators;
                                                                                           (II) district directors;
                                                                                           (III) the Associate Administrator for Minority Small Busi-
                                                                                        ness and Capital Ownership Development;
                                                                                           (IV) employees whose principal duties relate to the award of
                                                                                        contracts or the provision of other assistance pursuant to this
                                                                                        subsection or section 7(j)(10); and
                                                                                           (V) such other employees as the Administrator may deem ap-
                                                                                        propriate.
                                                                                     (iii) Any present or former employee of the Administration who
                                                                                  violates this paragraph shall be subject to a civil penalty, assessed
                                                                                  by the Attorney General, that shall not exceed 300 per centum of
                                                                                  the maximum amount of gain such employee realized or could have
                                                                                  realized as a result of engaging in those activities and transactions
                                                                                  prescribed by subparagraph (B).
                                                                                     (iv) In addition to any other remedy or sanction provided for
                                                                                  under law or regulation, any person who falsely certifies pursuant
                                                                                  to clause (i) shall be subject to a civil penalty under the Program
                                                                                  Fraud Civil Remedies Act of 1986 (31 U.S.C. 3801–3812).
                                                                                     (19)(A) Any employee of the Administration who has authority to
                                                                                  take, direct others to take, recommend, or approve any action with
                                                                                  respect to any program or activity conducted pursuant to this sub-
                                                                                  section or section 7(j), shall not, with respect to any such action,
                                                                                  exercise or threaten to exercise such authority on the basis of the
                                                                                  political activity or affiliation of any party. Employees of the Ad-
                                                                                  ministration shall expeditiously report to the Inspector General of
                                                                                  the Administration any such action for which such employee’s par-
                                                                                  ticipation has been solicitated or directed.
                                                                                     (B) Any employee who willfully and knowingly violates subpara-
                                                                                  graph (A) shall be subject to disciplinary action, which may consist
                                                                                  of separation from service, reduction in grade, suspension, or rep-
                                                                                  rimand.
                                                                                     (C) Subparagraph (A) shall not apply to any action taken as a
                                                                                  penalty or other enforcement of a violation of any law, rule, or reg-
                                                                                  ulation prohibiting or restricting political activity.
                                                                                     (D) The prohibitions of subparagraph (A), and remedial measures
                                                                                  provided for under subparagraphs (B) and (C) with regard to such
                                                                                  prohibitions, shall be in addition to, and not in lieu of, any other
                                                                                  prohibitions, measures or liabilities that may arise under any other
                                                                                  provision of law.
                                                                                     (20)(A) Small business concerns participating in the Program
                                                                                  under section 7(j)(10) and eligible to receive contracts pursuant to
                                                                                  this section shall semiannually report to their assigned Business
                                                                                  Opportunity Specialist the following:
                                                                                           (i) A listing of any agents, representatives, attorneys, ac-
                                                                                        countants, consultants, and other parties (other than employ-
                                                                                        ees) receiving compensation to assist in obtaining a Federal




dmwilson on DSKJM0X7X2PROD with REPORT-WS
                                                                                        contract for such Program Participant.
                                                                                           (ii) The amount of compensation received by any person list-
                                                                                        ed under clause (i) during the relevant reporting period and a




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                                                                                                                                  18

                                                                                       description of the activities performed in return for such com-
                                                                                       pensation.
                                                                                     (B) The Business Opportunity Specialist shall promptly review
                                                                                  and forward such report to the Associate Administrator for Minor-
                                                                                  ity Small Business and Capital Ownership Development. Any re-
                                                                                  port that raises a suspicion of improper activity shall be reported
                                                                                  immediately to the Inspector General of the Administration.
                                                                                     (C) The failure to submit a report pursuant to the requirements
                                                                                  of this subsection and applicable regulations shall be considered
                                                                                  ‘‘good cause’’ for the initiation of a termination proceeding pursuant
                                                                                  to section 7(j)(10)(F).
                                                                                     (21)(A) Subject to the provisions of subparagraph (B), a contract
                                                                                  (including options) awarded pursuant to this subsection shall be
                                                                                  performed by the concern that initially received such contract. Not-
                                                                                  withstanding the provisions of the preceding sentence, if the owner
                                                                                  or owners upon whom eligibility was based relinquish ownership or
                                                                                  control of such concern, or enter into any agreement to relinquish
                                                                                  such ownership or control, such contract or option shall be termi-
                                                                                  nated for the convenience of the Government, except that no repur-
                                                                                  chase costs or other damages may be assessed against such con-
                                                                                  cerns due solely to the provisions of this subparagraph.
                                                                                     (B) The Administrator may, on a nondelegable basis, waive the
                                                                                  requirements of subparagraph (A) only if one of the following condi-
                                                                                  tions exist:
                                                                                          (i) When it is necessary for the owners of the concern to sur-
                                                                                       render partial control of such concern on a temporary basis in
                                                                                       order to obtain equity financing.
                                                                                          (ii) The head of the contracting agency for which the contract
                                                                                       is being performed certifies that termination of the contract
                                                                                       would severely impair attainment of the agency’s program ob-
                                                                                       jectives or missions;
                                                                                          (iii) Ownership and control of the concern that is performing
                                                                                       the contract will pass to another small business concern that
                                                                                       is a program participant, but only if the acquiring firm would
                                                                                       otherwise be eligible to receive the award directly pursuant to
                                                                                       subsection (a);
                                                                                          (iv) The individuals upon whom eligibility was based are no
                                                                                       longer able to exercise control of the concern due to incapacity
                                                                                       or death; or
                                                                                          (v) When, in order to raise equity capital, it is necessary for
                                                                                       the disadvantaged owners of the concern to relinquish owner-
                                                                                       ship of a majority of the voting stock of such concern, but only
                                                                                       if—
                                                                                                (I) such concern has exited the Capital Ownership Devel-
                                                                                             opment Program;
                                                                                                (II) the disadvantaged owners will maintain ownership
                                                                                             of the largest single outstanding block of voting stock (in-
                                                                                             cluding stock held by affiliated parties); and
                                                                                                (III) the disadvantaged owners will maintain control of
                                                                                             daily business operations.
                                                                                          (C) The Administrator may waive the requirements of sub-
                                                                                       paragraph (A) if—




dmwilson on DSKJM0X7X2PROD with REPORT-WS
                                                                                                (i) in the case of subparagraph (B) (i), (ii) and (iv), he is
                                                                                             requested to do so prior to the actual relinquishment of
                                                                                             ownership or control; and




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                                                                                                                                  19

                                                                                               (ii) in the case of subparagraph (B)(iii), he is requested
                                                                                            to do so as soon as possible after the incapacity or death
                                                                                            occurs.
                                                                                     (D) Concerns performing contracts awarded pursuant to this sub-
                                                                                  section shall be required to notify the Administration immediately
                                                                                  upon entering an agreement (either oral or in writing) to transfer
                                                                                  all or part of its stock or other ownership interest to any other
                                                                                  party.
                                                                                     (E) Notwithstanding any other provision of law, for the purposes
                                                                                  of determining ownership and control of a concern under this sec-
                                                                                  tion, any potential ownership interests held by investment compa-
                                                                                  nies licensed under the Small Business Investment Act of 1958
                                                                                  shall be treated in the same manner as interests held by the indi-
                                                                                  viduals upon whom eligibility is based.
                                                                                     (b) It shall also be the duty of the Administration and it is here-
                                                                                  by empowered, whenever it determines such action is necessary—
                                                                                          (1)(A) to provide—
                                                                                               (i) technical, managerial, and informational aids to small
                                                                                            business concerns—
                                                                                                     (I) by advising and counseling on matters in connec-
                                                                                                  tion with Government procurement and policies, prin-
                                                                                                  ciples, and practices of good management;
                                                                                                     (II) by cooperating and advising with—
                                                                                                           (aa) voluntary business, professional, edu-
                                                                                                        cational, and other nonprofit organizations, asso-
                                                                                                        ciations, and institutions (except that the Admin-
                                                                                                        istration shall take such actions as it determines
                                                                                                        necessary to ensure that such cooperation does not
                                                                                                        constitute or imply an endorsement by the Admin-
                                                                                                        istration of the organization or its products or
                                                                                                        services, and shall ensure that it receives appro-
                                                                                                        priate recognition in all printed materials); and
                                                                                                           (bb) other Federal and State agencies;
                                                                                                     (III) by maintaining a clearinghouse for information
                                                                                                  on managing, financing, and operating small business
                                                                                                  enterprises; and
                                                                                                     (IV) by disseminating such information, including
                                                                                                  through recognition events, and by other activities
                                                                                                  that the Administration determines to be appropriate;
                                                                                                  and
                                                                                               (ii) through cooperation with a profit-making concern
                                                                                            (referred to in this paragraph as a ‘‘cosponsor’’), training,
                                                                                            information, and education to small business concerns, ex-
                                                                                            cept that the Administration shall—
                                                                                                     (I) take such actions as it determines to be appro-
                                                                                                  priate to ensure that—
                                                                                                           (aa) the Administration receives appropriate
                                                                                                        recognition and publicity;
                                                                                                           (bb) the cooperation does not constitute or imply
                                                                                                        an endorsement by the Administration of any
                                                                                                        product or service of the cosponsor;
                                                                                                           (cc) unnecessary promotion of the products or




dmwilson on DSKJM0X7X2PROD with REPORT-WS
                                                                                                        services of the cosponsor is avoided; and
                                                                                                           (dd) utilization of any one cosponsor in a mar-
                                                                                                        keting area is minimized; and




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                                                                                                      (II) develop an agreement, executed on behalf of the
                                                                                                    Administration by an employee of the Administration
                                                                                                    in Washington, the District of Columbia, that pro-
                                                                                                    vides, at a minimum, that—
                                                                                                            (aa) any printed material to announce the co-
                                                                                                         sponsorship or to be distributed at the cospon-
                                                                                                         sored activity, shall be approved in advance by the
                                                                                                         Administration;
                                                                                                            (bb) the terms and conditions of the cooperation
                                                                                                         shall be specified;
                                                                                                            (cc) only minimal charges may be imposed on
                                                                                                         any small business concern to cover the direct
                                                                                                         costs of providing the assistance;
                                                                                                            (dd) the Administration may provide to the co-
                                                                                                         sponsorship mailing labels, but not lists of names
                                                                                                         and addresses of small business concerns compiled
                                                                                                         by the Administration;
                                                                                                            (ee) all printed materials containing the names
                                                                                                         of both the Administration and the cosponsor shall
                                                                                                         include a prominent disclaimer that the coopera-
                                                                                                         tion does not constitute or imply an endorsement
                                                                                                         by the Administration of any product or service of
                                                                                                         the cosponsor; and
                                                                                                            (ff) the Administration shall ensure that it re-
                                                                                                         ceives appropriate recognition in all cosponsorship
                                                                                                         printed materials.
                                                                                           (B) To establish, conduct, and publicize, and to recruit, se-
                                                                                         lect, and train volunteers for (and to enter into contracts,
                                                                                         grants, or cooperative agreements therefor), volunteer pro-
                                                                                         grams, including a Service Corps of Retired Executives
                                                                                         (SCORE) and an Active Corps of Executive (ACE) for the pur-
                                                                                         poses of section 8(b)(1)(A) of this Act. To facilitate the imple-
                                                                                         mentation of such volunteer programs the Administration shall
                                                                                         maintain at its headquarters and pay the salaries, benefits,
                                                                                         and expenses of a volunteer and professional staff to manage
                                                                                         and oversee the program. Any such payments made pursuant
                                                                                         to this subparagraph shall be effective only to such extent or
                                                                                         in such amounts as are provided in advance in appropriation
                                                                                         Acts. Notwithstanding any other provision of law, SCORE may
                                                                                         solicit cash and in-kind contributions from the private sector to
                                                                                         be used to carry out its functions under this Act, and may use
                                                                                         payments made by the Administration pursuant to this sub-
                                                                                         paragraph for such solicitation and the management of the
                                                                                         contributions received.
                                                                                           (C) To allow any individual or group of persons participating
                                                                                         with it in furtherance of the purposes of subparagraphs (A)
                                                                                         and (B) to use the Administration’s office facilities and related
                                                                                         material and services as the Administration deems appro-
                                                                                         priate, including clerical and stenographic service:
                                                                                                 (i) such volunteers, while carrying out activities under
                                                                                              section 8(b)(1) of this Act shall be deemed Federal employ-
                                                                                              ees for the purposes of the Federal tort claims provisions




dmwilson on DSKJM0X7X2PROD with REPORT-WS
                                                                                              in title 28, United States Code; and for the purposes of
                                                                                              subchapter I of chapter 81 of title 5, United States Code
                                                                                              (relative to compensation to Federal employees for work




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                                                                                              injuries) shall be deemed civil employees of the United
                                                                                              States within the meaning of the term ‘‘employee’’ as de-
                                                                                              fined in section 8101 of title 5, United States Code, and
                                                                                              the provisions of that subchapter shall apply except that
                                                                                              in computing compensation benefits for disability or death,
                                                                                              the monthly pay of a volunteer shall be deemed that re-
                                                                                              ceived under the entrance salary for a grade GS–11 em-
                                                                                              ployee:
                                                                                                 (ii) the Administrator is authorized to reimburse such
                                                                                              volunteers for all necessary out-of-pocket expenses incident
                                                                                              to their provision of services under this Act, or in connec-
                                                                                              tion with attendance at meetings sponsored by the Admin-
                                                                                              istration, or for the cost of malpractice insurance, as the
                                                                                              Administrator shall determine, in accordance with regula-
                                                                                              tions which he or she shall prescribe, and, while they are
                                                                                              carrying out such activities away from their homes or reg-
                                                                                              ular places of business, for travel expenses (including per
                                                                                              diem in lieu of subsistence) as authorized by section 5703
                                                                                              of title 5, United States Code, for individuals serving with-
                                                                                              out pay; and
                                                                                                 (iii) such volunteers shall in no way provide services to
                                                                                              a client of such Administration with a delinquent loan out-
                                                                                              standing, except upon a specific request signed by such cli-
                                                                                              ent for assistance in connection with such matter.
                                                                                            (D) Notwithstanding any other provision of law, no payment
                                                                                         for supportive services or reimbursement of out-of-pocket ex-
                                                                                         penses made to persons serving pursuant to section 8(b)(1) of
                                                                                         this Act shall be subject to any tax or charge or be treated as
                                                                                         wages or compensation for the purposes of unemployment, dis-
                                                                                         ability, retirement, public assistance, or similar benefit pay-
                                                                                         ments, or minimum wage laws.
                                                                                            (E) In carrying out its functions under subparagraph (A), to
                                                                                         make grants (including contracts and cooperative agreements)
                                                                                         to any public or private institution of higher education for the
                                                                                         establishment and operation of a small business institute,
                                                                                         which shall be used to provide business counseling and assist-
                                                                                         ance to small business concerns through the activities of stu-
                                                                                         dents enrolled at the institution, which students shall be enti-
                                                                                         tled to receive educational credits for their activities.
                                                                                            (F) Notwithstanding any other provision of law and pursuant
                                                                                         to regulations which the Administrator shall provide, counsel
                                                                                         may be employed and counsel fees, court costs, bail, and other
                                                                                         expenses incidental to the defense of volunteers may be paid
                                                                                         in judicial or Administrative proceedings arising directly out of
                                                                                         the performance of activities pursuant to section 8(b)(1) of this
                                                                                         Act, as amended (15 U.S.C. 637(b)(1)) to which volunteers have
                                                                                         been made parties.
                                                                                            (G) In carrying out its functions under this Act and to carry
                                                                                         out the activities authorized by title IV of the Women’s Busi-
                                                                                         ness Ownership Act of 1988, the Administration is authorized
                                                                                         to accept, in the name of the Administration, and employ or
                                                                                         dispose of in furtherance of the purposes of this Act, any




dmwilson on DSKJM0X7X2PROD with REPORT-WS
                                                                                         money or property, real, personal, or mixed, tangible, or intan-
                                                                                         gible, received by gift, devise, bequest, or otherwise; and, fur-
                                                                                         ther, to accept gratuitous services and facilities.




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                                                                                            (2) to make a complete inventory of all productive facilities
                                                                                         of small-business concerns or to arrange for such inventory to
                                                                                         be made by any other governmental agency which has the fa-
                                                                                         cilities. In making any such inventory, the appropriate agen-
                                                                                         cies in the several States may be requested to furnish an in-
                                                                                         ventory of the productive facilities of small-business concerns
                                                                                         in each respective State if such an inventory is available or in
                                                                                         prospect;
                                                                                            (3) to coordinate and to ascertain the means by which the
                                                                                         productive capacity of small-business concerns can be most ef-
                                                                                         fectively utilized;
                                                                                            (4) to consult and cooperative with officers of the Govern-
                                                                                         ment having procurement or property disposal powers, in order
                                                                                         to utilize the potential productive capacity of plants operated
                                                                                         by small-business concerns;
                                                                                            (5) to obtain information as to methods and practices which
                                                                                         Government prime contractors utilize in letting subcontracts
                                                                                         and to take action to encourage the letting of subcontracts by
                                                                                         prime contractors to small-business concerns at prices and on
                                                                                         conditions and terms which are fair and equitable;
                                                                                            (6) to determine within any industry the concerns, firms,
                                                                                         persons, corporations, partnerships, cooperatives, or other busi-
                                                                                         ness enterprises which are to be designated ‘‘small-business
                                                                                         concerns’’ for the purpose of effectuating the provisions of this
                                                                                         Act. To carry out this purpose the Administrator, when re-
                                                                                         quested to do so, shall issue in response to each such request
                                                                                         an appropriate certificate certifying an individual concern as a
                                                                                         ‘‘small-business concern’’ in accordance with the criteria ex-
                                                                                         pressed in this Act. Any such certificate shall be subject to rev-
                                                                                         ocation when the concern covered thereby ceases to be a
                                                                                         ‘‘small-business concern.’’ Offices of the Government having
                                                                                         procurement or lending powers, or engaging in the disposal of
                                                                                         Federal property or allocating materials or supplies, or promul-
                                                                                         gating regulations affecting the distribution of materials or
                                                                                         supplies, shall accept as conclusive the Administration’s deter-
                                                                                         mination as to which enterprises are to be designated ‘‘small-
                                                                                         business concerns’’, as authorized and directed under this para-
                                                                                         graph;
                                                                                            (7)(A) to certify to Government procurement officers, and of-
                                                                                         ficers engaged in the sale and disposal of Federal property,
                                                                                         with respect to all elements of responsibility, including, but not
                                                                                         limited to, capability, competency, capacity, credit, integrity,
                                                                                         perseverance, and tenacity, of any small business concern or
                                                                                         group of such concerns to receive and perform a specific Gov-
                                                                                         ernment contract. A Government procurement officer or an of-
                                                                                         ficer engaged in the sale and disposal of Federal property may
                                                                                         not, for any reason specified in the preceding sentence, pre-
                                                                                         clude any small business concern or group of such concerns
                                                                                         from being awarded such contract without referring the matter
                                                                                         for a final disposition to the Administration.
                                                                                            (B) if a Government procurement officer finds that an other-
                                                                                         wise qualified small business concern may be ineligible due to




dmwilson on DSKJM0X7X2PROD with REPORT-WS
                                                                                         the provisions of section 35(a) of title 41, United States Code
                                                                                         (the Walsh-Healey Public Contracts Act), he shall notify the
                                                                                         Administration in writing of such finding. The Administration




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                                                                                         shall review such finding and shall either dismiss it and certify
                                                                                         the small business concern to be an eligible Government con-
                                                                                         tractor for a specific Government contract or if it concurs in the
                                                                                         finding, forward the matter to the Secretary of Labor for final
                                                                                         disposition, in which case the Administration may certify the
                                                                                         small business concern only if the Secretary of Labor finds the
                                                                                         small business concern not to be in violation.
                                                                                            (C) in any case in which a small business concern or group
                                                                                         of such concerns has been certified by the Administration pur-
                                                                                         suant to (A) or (B) to be a responsible or eligible Government
                                                                                         contractor as to a specific Government contract, the officers of
                                                                                         the Government having procurement or property disposal pow-
                                                                                         ers are directed to accept such certification as conclusive, and
                                                                                         shall let such Government contract to such concern or group of
                                                                                         concerns without requiring it to meet any other requirement of
                                                                                         responsibility or eligibility. Notwithstanding the first sentence
                                                                                         of this subparagraph, the Administration may not establish an
                                                                                         exemption from referral or notification or refuse to accept a re-
                                                                                         ferral or notification from a Government procurement officer
                                                                                         made pursuant to subparagraph (A) or (B) of this paragraph,
                                                                                         but nothing in this paragraph shall require the processing of
                                                                                         an application for certification if the small business concern to
                                                                                         which the referral pertains declines to have the application
                                                                                         processed.
                                                                                            (8) to obtain from any Federal department, establishment, or
                                                                                         agency engaged in procurement or in the financing of procure-
                                                                                         ment or production such reports concerning the letting of con-
                                                                                         tracts and subcontracts and the making of loans to business
                                                                                         concerns as it may deem pertinent in carrying out its functions
                                                                                         under this Act;
                                                                                            (9) to obtain from any Federal department, establishment, or
                                                                                         agency engaged in the disposal of Federal property such re-
                                                                                         ports concerning the solicitation of bids, time of sale, or other-
                                                                                         wise as it may deem pertinent in carrying out its functions
                                                                                         under this Act;
                                                                                            (10) to obtain from suppliers of materials information per-
                                                                                         taining to the method of filling orders and the bases for allo-
                                                                                         cating their supply, whenever it appears that any small busi-
                                                                                         ness is unable to obtain materials from its normal sources;
                                                                                            (11) to make studies and recommendations to the appro-
                                                                                         priate Federal agencies to insure that a fair proportion of the
                                                                                         total purchases and contracts for property and services for the
                                                                                         Government be placed with small-business enterprises, to in-
                                                                                         sure that a fair proportion of Government contacts for research
                                                                                         and development be placed with small-business concerns, to in-
                                                                                         sure that a fair proportion of the total sales of Government
                                                                                         property be made to small-business concerns, and to insure a
                                                                                         fair and equitable share of materials, supplies, and equipment
                                                                                         to small-business concerns;
                                                                                            (12) to consult and cooperate with all Government agencies
                                                                                         for the purpose of insuring that small-business concerns shall
                                                                                         receive fair and reasonable treatment from such agencies;




dmwilson on DSKJM0X7X2PROD with REPORT-WS
                                                                                            (13) to establish such advisory boards and committees as
                                                                                         may be necessary to achieve the purposes of this Act and of the
                                                                                         Small Business Investment Act of 1958; to call meetings of




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                                                                                        such boards and committees from time to time; to pay the
                                                                                        transportation expenses and a per diem allowance in accord-
                                                                                        ance with section 5703 of title 5, United States Code, to the
                                                                                        members of such boards and committees for travel and subsist-
                                                                                        ence expenses incurred at the request of the Administration in
                                                                                        connection with travel to points more than fifty miles distant
                                                                                        from the homes of such members in attending the meetings of
                                                                                        such boards and committees; and to rent temporarily, within
                                                                                        the District of Columbia or elsewhere, such hotel or other ac-
                                                                                        commodations as are needed to facilitate the conduct of such
                                                                                        meetings;
                                                                                           (14) to provide at the earliest practicable time such informa-
                                                                                        tion and assistance as may be appropriate, including informa-
                                                                                        tion concerning eligibility for loans under section 7(b)(3), to
                                                                                        local public agencies (as defined in section 110(h) of the Hous-
                                                                                        ing Act of 1949) and to small-business concerns to be displaced
                                                                                        by federally aided urban renewal projects in order to assist
                                                                                        such small-business concerns in reestablishing their oper-
                                                                                        ations;
                                                                                           (15) to disseminate, without regard to the provisions of sec-
                                                                                        tion 3204 of title 39, United States Code, data and information,
                                                                                        in such form as it shall deem appropriate, to public agencies,
                                                                                        private organizations, and the general public;
                                                                                           (16) to make studies of matters materially affecting the com-
                                                                                        petitive strength of small business, and of the effect on small
                                                                                        business of Federal laws, programs, and regulations, and to
                                                                                        make recommendations to the appropriate Federal agency or
                                                                                        agencies for the adjustment of such programs and regulations
                                                                                        to the needs of small business; and
                                                                                           (17) to make grants to, and enter into contracts and coopera-
                                                                                        tive agreements with, educational institutions, private busi-
                                                                                        nesses, veterans’ nonprofit community-based organizations,
                                                                                        and Federal, State, and local departments and agencies for the
                                                                                        establishment and implementation of outreach programs for
                                                                                        disabled veterans (as defined in section 4211(3) of title 38,
                                                                                        United States Code), veterans, and members of a reserve com-
                                                                                        ponent of the Armed Forces.
                                                                                     (c) [Reserved].
                                                                                     (d)(1) It is the policy of the United States that small business
                                                                                  concerns, small business concerns owned and controlled by vet-
                                                                                  erans, small business concerns owned and controlled by service-dis-
                                                                                  abled veterans, qualified HUBZone small business concerns, small
                                                                                  business concerns owned and controlled by socially and economi-
                                                                                  cally disadvantaged individuals, and small business concerns
                                                                                  owned and controlled by women, shall have the maximum prac-
                                                                                  ticable opportunity to participate in the performance of contracts
                                                                                  let by any Federal agency, including contracts and subcontracts for
                                                                                  subsystems, assemblies, components, and related services for major
                                                                                  systems. It is further the policy of the United States that its prime
                                                                                  contractors establish procedures to ensure the timely payment of
                                                                                  amounts due pursuant to the terms of their subcontracts with
                                                                                  small business concerns, small business concerns owned and con-




dmwilson on DSKJM0X7X2PROD with REPORT-WS
                                                                                  trolled by veterans, small business concerns owned and controlled
                                                                                  by service-disabled veterans, qualified HUBZone small business
                                                                                  concerns, small business concerns owned and controlled by socially




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                                                                                  and economically disadvantaged individuals, and small business
                                                                                  concerns owned and controlled by women.
                                                                                    (2) The clause stated in paragraph (3) shall be included in all
                                                                                  contracts let by any Federal agency except any contract which—
                                                                                         (A) does not exceed the simplified acquisition threshold;
                                                                                         (B) including all subcontracts under such contracts will be
                                                                                      performed entirely outside of any State, territory, or possession
                                                                                      of the United States, the District of Columbia, or the Common-
                                                                                      wealth of Puerto Rico; or
                                                                                         (C) is for services which are personal in nature.
                                                                                    (3) The clause required by paragraph (2) shall be as follows:
                                                                                         (A) It is the policy of the United States that small business
                                                                                      concerns, small business concerns owned and controlled by vet-
                                                                                      erans, small business concerns owned and controlled by serv-
                                                                                      ice-disabled veterans, qualified HUBZone small business con-
                                                                                      cerns, small business concerns owned and controlled by socially
                                                                                      and economically disadvantaged individuals, and small busi-
                                                                                      ness concerns owned and controlled by women shall have the
                                                                                      maximum practicable opportunity to participate in the per-
                                                                                      formance of contracts let by any Federal agency, including con-
                                                                                      tracts and subcontracts for subsystems, assemblies, compo-
                                                                                      nents, and related services for major systems. It is further the
                                                                                      policy of the United States that its prime contractors establish
                                                                                      procedures to ensure the timely payment of amounts due pur-
                                                                                      suant to the terms of their subcontracts with small business
                                                                                      concerns, small business concerns owned and controlled by vet-
                                                                                      erans, small business concerns owned and controlled by serv-
                                                                                      ice-disabled veterans, qualified HUBZone small business con-
                                                                                      cerns, small business concerns owned and controlled by socially
                                                                                      and economically disadvantaged individuals, and small busi-
                                                                                      ness concerns owned and controlled by women.
                                                                                         (B) The contractor hereby agrees to carry out this policy in
                                                                                      the awarding of subcontracts to the fullest extent consistent
                                                                                      with the efficient performance of this contract. The contractor
                                                                                      further agrees to cooperate in any studies or surveys as may
                                                                                      be conducted by the United States Small Business Administra-
                                                                                      tion or the awarding agency of the United States as may be
                                                                                      necessary to determine the extent of the contractor’s compli-
                                                                                      ance with this clause.
                                                                                         (C) As used in this contract, the term ‘‘small business con-
                                                                                      cern’’ shall mean a small business as defined pursuant to sec-
                                                                                      tion 3 of the Small Business Act and relevant regulations pro-
                                                                                      mulgated pursuant thereto. The term ‘‘small business concern
                                                                                      owned and controlled by socially and economically disadvan-
                                                                                      taged individuals’’ shall mean a small business concern—
                                                                                              (i) which is at least 51 per centum owned by one or more
                                                                                           socially and economically disadvantaged individuals; or, in
                                                                                           the case of any publicly owned business, at least 51 per
                                                                                           centum of the stock of which is owned by one or more so-
                                                                                           cially and economically disadvantaged individuals; and
                                                                                              (ii) whose management and daily business operations
                                                                                           are controlled by one or more of such individuals.




dmwilson on DSKJM0X7X2PROD with REPORT-WS
                                                                                      The contractor shall presume that socially and economically
                                                                                      disadvantaged individuals include Black Americans, Hispanic
                                                                                      Americans, Native Americans, Asian Pacific Americans, and




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                                                                                                                                  26

                                                                                       other minorities, or any other individual found to be disadvan-
                                                                                       taged by the Administration pursuant to section 8(a) of the
                                                                                       Small Business Act.
                                                                                         (D) The term ‘‘small business concern owned and controlled
                                                                                       by women’’ shall mean a small business concern—
                                                                                               (i) which is at least 51 per centum owned by one or more
                                                                                            women; or, in the case of any publicly owned business, at
                                                                                            least 51 per centum of the stock of which is owned by one
                                                                                            or more women; and
                                                                                               (ii) whose management and daily business operations
                                                                                            are controlled by one or more women.
                                                                                         (E) The term ‘‘small business concern owned and controlled
                                                                                       by veterans’’ shall mean a small business concern—
                                                                                               (i) which is at least 51 per centum owned by one or more
                                                                                            eligible veterans; or, in the case of any publicly owned
                                                                                            business, at least 51 per centum of the stock of which is
                                                                                            owned by one or more veterans; and
                                                                                               (ii) whose management and daily business operations
                                                                                            are controlled by such veterans. The contractor shall treat
                                                                                            as veterans all individuals who are veterans within the
                                                                                            meaning of the term under section 3(q) of the Small Busi-
                                                                                            ness Act.
                                                                                         (F) Contractors acting in good faith may rely on written rep-
                                                                                       resentations by their subcontractors regarding their status as
                                                                                       either a small business concern, small business concern owned
                                                                                       and controlled by veterans, small business concern owned and
                                                                                       controlled by service-disabled veterans, a small business con-
                                                                                       cern owned and controlled by socially and economically dis-
                                                                                       advantaged individuals, or a small business concern owned and
                                                                                       controlled by women.
                                                                                         (G) In this contract, the term ‘‘qualified HUBZone small
                                                                                       business concern’’ has the meaning given that term in section
                                                                                       31(b).
                                                                                         (H) In this contract, the term ‘‘small business concern owned
                                                                                       and controlled by service-disabled veterans’’ has the meaning
                                                                                       given that term in section 3(q).
                                                                                    (4)(A) Each solicitation of an offer for a contract to be let by a
                                                                                  Federal agency which is to be awarded pursuant to the negotiated
                                                                                  method of procurement and which may exceed $1,000,000, in the
                                                                                  case of a contract for the construction of any public facility, or
                                                                                  $500,000, in the case of all other contracts, shall contain a clause
                                                                                  notifying potential offering companies of the provisions of this sub-
                                                                                  section relating to contracts awarded pursuant to the negotiated
                                                                                  method of procurement.
                                                                                    (B) Before the award of any contract to be let, or any amendment
                                                                                  or modification to any contract let, by any Federal agency which—
                                                                                         (i) is to be awarded, or was let, pursuant to the negotiated
                                                                                       method of procurement,
                                                                                         (ii) is required to include the clause stated in paragraph (3),
                                                                                         (iii) may exceed $1,000,000 in the case of a contract for the
                                                                                       construction of any public facility, or $500,000 in the case of
                                                                                       all other contracts, and




dmwilson on DSKJM0X7X2PROD with REPORT-WS
                                                                                         (iv) which offers subcontracting possibilities,
                                                                                  the apparent successful offeror shall negotiate with the procure-
                                                                                  ment authority a subcontracting plan which incorporates the infor-




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                                                                                  mation prescribed in paragraph (6). The subcontracting plan shall
                                                                                  be included in and made a material part of the contract.
                                                                                     (C) If, within the time limit prescribed in regulations of the Fed-
                                                                                  eral agency concerned, the apparent successful offeror fails to nego-
                                                                                  tiate the subcontracting plan required by this paragraph, such of-
                                                                                  feror shall become ineligible to be awarded the contract. Prior com-
                                                                                  pliance of the offeror with other such subcontracting plans shall be
                                                                                  considered by the Federal agency in determining the responsibility
                                                                                  of that offeror for the award of the contract.
                                                                                     (D) No contract shall be awarded to any offeror unless the pro-
                                                                                  curement authority determines that the plan to be negotiated by
                                                                                  the offeror pursuant to this paragraph provides the maximum prac-
                                                                                  ticable opportunity for small business concerns, qualified HUBZone
                                                                                  small business concerns, small business concerns owned and con-
                                                                                  trolled by veterans, small business concerns owned and controlled
                                                                                  by service-disabled veterans, 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 the contract.
                                                                                     (E) Notwithstanding any other provisions of law, every Federal
                                                                                  agency, in order to encourage subcontracting opportunities for
                                                                                  small business concerns, small business concerns owned and con-
                                                                                  trolled by veterans, small business concerns owned and controlled
                                                                                  by service-disabled veterans, qualified HUBZone small business
                                                                                  concerns, and small business concerns owned and controlled by the
                                                                                  socially and economically disadvantaged individuals as defined in
                                                                                  paragraph (3) of this subsection and for small business concerns
                                                                                  owned and controlled by women, is hereby authorized to provide
                                                                                  such incentives as such Federal agency may deem appropriate in
                                                                                  order to encourage such subcontracting opportunities as may be
                                                                                  commensurate with the efficient and economical performance of the
                                                                                  contact: Provided, That, this subparagraph shall apply only to con-
                                                                                  tracts let pursuant to the negotiated method of procurement.
                                                                                     (F)(i) Each contract subject to the requirements of this paragraph
                                                                                  or paragraph (5) shall contain a clause for the payment of liq-
                                                                                  uidated damages upon a finding that a prime contractor has failed
                                                                                  to make a good faith effort to comply with the requirements im-
                                                                                  posed on such contractor by this subsection.
                                                                                     (ii) The contractor shall be afforded an opportunity to dem-
                                                                                  onstrate a good faith effort regarding compliance prior to the con-
                                                                                  tracting officer’s final decision regarding the impositon of damages
                                                                                  and the amount thereof. The final decision of a contracting officer
                                                                                  regarding the contractor’s obligation to pay such damages, or the
                                                                                  amounts thereof, shall be subject to the Contract Disputes Act of
                                                                                  1978 (41 U.S.C. 601–613).
                                                                                     (iii) Each agency shall ensure that the goals offered by the appar-
                                                                                  ent successful bidder or offeror are attainable in relation to—
                                                                                           (I) the subcontracting opportunities available to the con-
                                                                                        tractor, commensurate with the efficient and economical per-
                                                                                        formance of the contract;
                                                                                           (II) the pool of eligible subcontractors available to fulfill the




dmwilson on DSKJM0X7X2PROD with REPORT-WS
                                                                                        subcontracting opportunities; and
                                                                                           (III) the actual performance of such contractor in fulfilling
                                                                                        the subcontracting goals specified in prior plans.




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                                                                                         (G) The following factors shall be designated by the Federal
                                                                                      agency as significant factors for purposes of evaluating offers
                                                                                      for a bundled contract where the head of the agency deter-
                                                                                      mines that the contract offers a significant opportunity for sub-
                                                                                      contracting:
                                                                                               (i) A factor that is based on the rate provided under the
                                                                                            subcontracting plan for small business participation in the
                                                                                            performance of the contract.
                                                                                               (ii) For the evaluation of past performance of an offeror,
                                                                                            a factor that is based on the extent to which the offeror at-
                                                                                            tained applicable goals for small business participation in
                                                                                            the performance of contracts.
                                                                                    (5)(A) Each solicitation of a bid for any contract to be let, or any
                                                                                  amendment or modification to any contract let, by any Federal
                                                                                  agency which—
                                                                                         (i) is to be awarded pursuant to the formal advertising meth-
                                                                                      od of procurement,
                                                                                         (ii) is required to contain the clause stated in paragraph (3)
                                                                                      of this subsection,
                                                                                         (iii) may exceed $1,000,000 in the case of a contract for the
                                                                                      construction of any public facility, or $500,000, in the case of
                                                                                      all other contracts, and
                                                                                         (iv) offers subcontracting possibilities,
                                                                                  shall contain a clause requiring any bidder who is selected to be
                                                                                  awarded a contract to submit to the Federal agency concerned a
                                                                                  subcontracting plan which incorporates the information prescribed
                                                                                  in paragraph (6).
                                                                                    (B) If, within the time limit prescribed in regulations of the Fed-
                                                                                  eral agency concerned, the bidder selected to be awarded the con-
                                                                                  tract fails to submit the subcontracting plan required by this para-
                                                                                  graph, such bidder shall become ineligible to be awarded the con-
                                                                                  tract. Prior compliance of the bidder with other such subcon-
                                                                                  tracting plans shall be considered by the Federal agency in deter-
                                                                                  mining the responsibility of such bidder for the award of the con-
                                                                                  tract. The subcontracting plan of the bidder awarded the contract
                                                                                  shall be included in and made a material part of the contract.
                                                                                    (6) Each subcontracting plan required under paragraph (4) or (5)
                                                                                  shall include—
                                                                                         (A) percentage goals for the utilization as subcontractors of
                                                                                      small business concerns, small business concerns owned and
                                                                                      controlled by veterans, small business concerns owned and con-
                                                                                      trolled by service-disabled veterans, qualified HUBZone small
                                                                                      business concerns, small business concerns owned and con-
                                                                                      trolled by socially and economically disadvantaged individuals,
                                                                                      and small business concerns owned and controlled by women;
                                                                                         (B) the name of an individual within the employ of the offer-
                                                                                      or or bidder who will administer the subcontracting program of
                                                                                      the offeror or bidder and a description of the duties of such in-
                                                                                      dividual;
                                                                                         (C) a description of the efforts the offeror or bidder will take
                                                                                      to assure that small business concerns, small business con-
                                                                                      cerns owned and controlled by veterans, small business con-




dmwilson on DSKJM0X7X2PROD with REPORT-WS
                                                                                      cerns owned and controlled by service-disabled veterans, quali-
                                                                                      fied HUBZone small business concerns, small business con-
                                                                                      cerns owned and controlled by socially and economically dis-




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                                                                                                                                  29

                                                                                         advantaged individuals, and small business concerns owned
                                                                                         and controlled by women will have an equitable opportunity to
                                                                                         compete for subcontracts;
                                                                                           (D) assurances that the offeror or bidder will include the
                                                                                         clause required by paragraph (2) of this subsection in all sub-
                                                                                         contracts which offer further subcontracting opportunities, and
                                                                                         that the offeror or bidder will require all subcontractors (except
                                                                                         small business concerns) who receive subcontracts in excess of
                                                                                         $1,000,000 in the case of a contract for the construction of any
                                                                                         public facility, or in excess of $500,000 in the case of all other
                                                                                         contracts, to adopt a plan similar to the plan required under
                                                                                         paragraph (4) or (5), and assurances at a minimum that the of-
                                                                                         feror or bidder, and all subcontractors required to maintain
                                                                                         subcontracting plans pursuant to this paragraph, will—
                                                                                                (i) review and approve subcontracting plans submitted
                                                                                              by their subcontractors;
                                                                                                (ii) monitor subcontractor compliance with their ap-
                                                                                              proved subcontracting plans;
                                                                                                (iii) ensure that subcontracting reports are submitted by
                                                                                              their subcontractors when required;
                                                                                                (iv) acknowledge receipt of their subcontractors’ reports;
                                                                                                (v) compare the performance of their subcontractors to
                                                                                              subcontracting plans and goals; and
                                                                                                (vi) discuss performance with subcontractors when nec-
                                                                                              essary to ensure their subcontractors make a good faith ef-
                                                                                              fort to comply with their subcontracting plans;
                                                                                           (E) assurances that the offeror or bidder will submit such
                                                                                         periodic reports and cooperate in any studies or surveys as
                                                                                         may be required by the Federal agency or the Administration
                                                                                         in order to determine the extent of compliance by the offeror
                                                                                         or bidder with the subcontracting plan;
                                                                                           (F) a recitation of the types of records the successful offeror
                                                                                         or bidder will maintain to demonstrate procedures which have
                                                                                         been adopted to comply with the requirements and goals set
                                                                                         forth in this plan, including the establishment of source lists
                                                                                         of small business concerns, small business concerns owned and
                                                                                         controlled by veterans, small business concerns owned and con-
                                                                                         trolled by service-disabled veterans, qualified HUBZone small
                                                                                         business concerns, small business concerns owned and con-
                                                                                         trolled by socially and economically disadvantaged individuals,
                                                                                         and small business concerns owned and controlled by women;
                                                                                         and efforts to identify and award subcontracts to such small
                                                                                         business concerns;
                                                                                           (G) a recitation of the types of records the successful offeror
                                                                                         or bidder will maintain to demonstrate that procedures have
                                                                                         been adopted to substantiate the credit the successful offeror
                                                                                         or bidder will elect to receive under paragraph (16)(A);
                                                                                           (H) a recitation of the types of records the successful offeror
                                                                                         or bidder will maintain to demonstrate procedures which have
                                                                                         been adopted to ensure subcontractors at all tiers comply with
                                                                                         the requirements and goals set forth in the plan established in
                                                                                         accordance with subparagraph (D) of this paragraph, includ-




dmwilson on DSKJM0X7X2PROD with REPORT-WS
                                                                                         ing—
                                                                                                (i) the establishment of source lists of small business
                                                                                              concerns, small business concerns owned and controlled by




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                                                                                                                                  30

                                                                                              veterans, small business concerns owned and controlled by
                                                                                              service-disabled veterans, qualified HUBZone small busi-
                                                                                              ness concerns, small business concerns owned and con-
                                                                                              trolled by socially and economically disadvantaged individ-
                                                                                              uals, and small business concerns owned and controlled by
                                                                                              women; and
                                                                                                 (ii) efforts to identify and award subcontracts to such
                                                                                              small business concerns; and
                                                                                           (I) a representation that the offeror or bidder will—
                                                                                                 (i) make a good faith effort to acquire articles, equip-
                                                                                              ment, supplies, services, or materials, or obtain the per-
                                                                                              formance of construction work from the small business
                                                                                              concerns used in preparing and submitting to the con-
                                                                                              tracting agency the bid or proposal, in the same amount
                                                                                              and quality used in preparing and submitting the bid or
                                                                                              proposal; and
                                                                                                 (ii) provide to the contracting officer a written expla-
                                                                                              nation if the offeror or bidder fails to acquire articles,
                                                                                              equipment, supplies, services, or materials or obtain the
                                                                                              performance of construction work as described in clause (i).
                                                                                           (7) The head of the contracting agency shall ensure that—
                                                                                                 (A) the agency collects and reports data on the extent to
                                                                                              which contractors of the agency meet the goals and objec-
                                                                                              tives set forth in subcontracting plans submitted pursuant
                                                                                              to this subsection; and
                                                                                                 (B) the agency periodically reviews data collected and re-
                                                                                              ported pursuant to subparagraph (A) for the purpose of en-
                                                                                              suring that such contractors comply in good faith with the
                                                                                              requirements of this subsection and subcontracting plans
                                                                                              submitted by the contractors pursuant to this subsection.
                                                                                    (8) The provisions of paragraphs (4), (5), and (6) shall not apply
                                                                                  to offerors or bidders who are small business concerns.
                                                                                           (9) MATERIAL BREACH.—The failure of any contractor or sub-
                                                                                        contractor to comply in good faith with—
                                                                                                 (A) the clause contained in paragraph (3) of this sub-
                                                                                              section,
                                                                                                 (B) any plan required of such contractor pursuant to the
                                                                                              authority of this subsection to be included in its contract
                                                                                              or subcontract, or
                                                                                                 (C) assurances provided under paragraph (6)(E),
                                                                                        shall be a material breach of such contract or subcontract and
                                                                                        may be considered in any past performance evaluation of the
                                                                                        contractor.
                                                                                    (10) Nothing contained in this subsection shall be construed to
                                                                                  supersede the requirements of Defense Manpower Policy Number
                                                                                  4A (32A CFR Chap. 1) or any successor policy.
                                                                                    (11) In the case of contracts within the provisions of paragraphs
                                                                                  (4), (5), and (6), the Administration is authorized to—
                                                                                           (A) assist Federal agencies and businesses in complying with
                                                                                        their responsibilities under the provisions of this subsection,
                                                                                        including the formulation of subcontracting plans pursuant to
                                                                                        paragraph (4);




dmwilson on DSKJM0X7X2PROD with REPORT-WS
                                                                                           (B) review any solicitation for any contract to be let pursuant
                                                                                        to paragraphs (4) and (5) to determine the maximum prac-
                                                                                        ticable opportunity for small business concerns, small business




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                                                                                                                                  31

                                                                                       concerns owned and controlled by veterans, small business con-
                                                                                       cerns owned and controlled by service-disabled veterans, quali-
                                                                                       fied HUBZone small business concerns, small business con-
                                                                                       cerns owned and controlled by socially and economically dis-
                                                                                       advantaged individuals, and small business concerns owned
                                                                                       and controlled by women to participate as subcontractors in
                                                                                       the performance of any contract resulting from any solicitation,
                                                                                       and to submit its findings, which shall be advisory in nature,
                                                                                       to the appropriate Federal agency; and
                                                                                          (C) evaluate compliance with subcontracting plans as a sup-
                                                                                       plement to evaluations performed by the contracting agency,
                                                                                       either on a contract-by-contract basis or, in the case of contrac-
                                                                                       tors having multiple contracts, on an aggregate basis.
                                                                                    (12) For purposes of determining the attainment of a subcontract
                                                                                  utilization goal under any subcontracting plan entered into with
                                                                                  any executive agency pursuant to this subsection, a mentor firm
                                                                                  providing development assistance to a protege firm under the Men-
                                                                                  tor-Protege Program established under section 4902 of title 10,
                                                                                  United States Code, shall be granted credit for such assistance in
                                                                                  accordance with subsection (f) of such section.
                                                                                    (13) PAYMENT OF SUBCONTRACTORS.—
                                                                                          (A) DEFINITION.—In this paragraph, the term ‘‘covered con-
                                                                                       tract’’ means a contract relating to which a prime contractor is
                                                                                       required to develop a subcontracting plan under paragraph (4)
                                                                                       or (5).
                                                                                          (B) NOTICE.—
                                                                                               (i) IN GENERAL.—A prime contractor for a covered con-
                                                                                            tract shall notify in writing the contracting officer for the
                                                                                            covered contract if the prime contractor pays a reduced
                                                                                            price to a subcontractor for goods and services upon com-
                                                                                            pletion of the responsibilities of the subcontractor or the
                                                                                            payment to a subcontractor is more than 30 days past due
                                                                                            for goods or services provided for the covered contract for
                                                                                            which the Federal agency has paid the prime contractor.
                                                                                               (ii) CONTENTS.—A prime contractor shall include the
                                                                                            reason for the reduction in a payment to or failure to pay
                                                                                            a subcontractor in any notice made under clause (i).
                                                                                          (C) PERFORMANCE.—A contracting officer for a covered con-
                                                                                       tract—
                                                                                               (i) shall consider the unjustified failure by a prime con-
                                                                                            tractor to make a full or timely payment to a subcontractor
                                                                                            in evaluating the performance of the prime contractor; and
                                                                                               (ii) may enter or modify past performance information of
                                                                                            the prime contractor in connection with the unjustified
                                                                                            failure to make a full or timely payment to a subcontractor
                                                                                            subject to this paragraph before or after close-out of the
                                                                                            covered contract.
                                                                                          (D) CONTROL OF FUNDS.—If the contracting officer for a cov-
                                                                                       ered contract determines that a prime contractor has a history
                                                                                       of unjustified, untimely payments to contractors, the con-
                                                                                       tracting officer shall record the identity of the contractor in ac-




dmwilson on DSKJM0X7X2PROD with REPORT-WS
                                                                                       cordance with the regulations promulgated under subpara-
                                                                                       graph (F).
                                                                                          (E) COOPERATION.—




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                                                                                                                                  32

                                                                                                 (i) IN GENERAL.—Once a contracting officer determines,
                                                                                              with respect to the past performance of a prime contractor,
                                                                                              that there was an unjustified failure by the prime con-
                                                                                              tractor on a covered contract to make a full or timely pay-
                                                                                              ment to a subcontractor covered by subparagraph (B) or
                                                                                              (C), the prime contractor is required to cooperate with the
                                                                                              contracting officer, who shall consult with the Director of
                                                                                              Small Business Programs or the Director of Small and Dis-
                                                                                              advantaged Business Utilization acting pursuant to section
                                                                                              15(k)(6) and other representatives of the Government, re-
                                                                                              garding correcting and mitigating the unjustified failure to
                                                                                              make a full or timely payment to a subcontractor.
                                                                                                 (ii) DURATION.—The duty of cooperation under this sub-
                                                                                              paragraph for a prime contractor described in clause (i)
                                                                                              continues until the subcontractor is made whole or the de-
                                                                                              termination of the contracting officer determination is no
                                                                                              longer effective, and regardless of performance or close-out
                                                                                              status of the covered contract.
                                                                                           (F) REGULATIONS.—Not later than 1 year after the date of
                                                                                         enactment of this paragraph, the Federal Acquisition Regu-
                                                                                         latory Council established under section 25(a) of the Office of
                                                                                         Federal Procurement Policy Act (41 U.S.C. 421(a)) shall amend
                                                                                         the Federal Acquisition Regulation issued under section 25 of
                                                                                         such Act to—
                                                                                                 (i) describe the circumstances under which a contractor
                                                                                              may be determined to have a history of unjustified, un-
                                                                                              timely payments to subcontractors;
                                                                                                 (ii) establish a process for contracting officers to record
                                                                                              the identity of a contractor described in clause (i); and
                                                                                                 (iii) require the identity of a contractor described in
                                                                                              clause (i) to be incorporated in, and made publicly avail-
                                                                                              able through, the Federal Awardee Performance and Integ-
                                                                                              rity Information System, or any successor thereto.
                                                                                           (14) An offeror for a covered contract that intends to identify
                                                                                         a small business concern as a potential subcontractor in a bid
                                                                                         or proposal for the contract, or in a plan submitted pursuant
                                                                                         to this subsection in connection with the contract, shall notify
                                                                                         the small business concern prior to making such identification.
                                                                                           (15) The Administrator shall establish a reporting mecha-
                                                                                         nism that allows a subcontractor or potential subcontractor to
                                                                                         report fraudulent activity or bad faith by a contractor with re-
                                                                                         spect to a subcontracting plan submitted pursuant to this sub-
                                                                                         section.
                                                                                           (16) CREDIT FOR CERTAIN SMALL BUSINESS CONCERN SUB-
                                                                                         CONTRACTORS.—
                                                                                                 (A) IN GENERAL.—For purposes of determining whether
                                                                                              or not a prime contractor has attained the percentage
                                                                                              goals specified in paragraph (6)—
                                                                                                       (i) if the subcontracting goals pertain only to a sin-
                                                                                                    gle contract with a Federal agency, the prime con-
                                                                                                    tractor may elect to receive credit for small business
                                                                                                    concerns performing as first tier subcontractors or




dmwilson on DSKJM0X7X2PROD with REPORT-WS
                                                                                                    subcontractors at any tier pursuant to the subcon-
                                                                                                    tracting plans required under paragraph (6)(D) in an
                                                                                                    amount equal to the total dollar value of any sub-




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                                                                                                     contracts awarded to such small business concerns;
                                                                                                     and
                                                                                                        (ii) if the subcontracting goals pertain to more than
                                                                                                     one contract with one or more Federal agencies, or to
                                                                                                     one contract with more than one Federal agency, the
                                                                                                     prime contractor may only receive credit for first tier
                                                                                                     subcontractors that are small business concerns.
                                                                                                  (B) COLLECTION AND REVIEW OF DATA ON SUBCON-
                                                                                               TRACTING PLANS.—The head of each contracting agency
                                                                                               shall ensure that the agency—
                                                                                                        (i) collects and reports data on the extent to which
                                                                                                     prime contractors of the agency meet the goals and ob-
                                                                                                     jectives set forth in subcontracting plans submitted
                                                                                                     pursuant to this subsection; and
                                                                                                        (ii) periodically reviews data collected and reported
                                                                                                     pursuant to clause (i) for the purpose of ensuring that
                                                                                                     such contractors comply in good faith with the require-
                                                                                                     ments of this subsection.
                                                                                                  (C) RULE OF CONSTRUCTION.—Nothing in this paragraph
                                                                                               shall be construed to allow a Federal agency to establish
                                                                                               a goal for an number of subcontracts with a subcontractor
                                                                                               at any tier for a prime contractor otherwise eligible to re-
                                                                                               ceive credit under this paragraph.
                                                                                             (17) PAST PERFORMANCE RATINGS FOR CERTAIN SMALL BUSI-
                                                                                          NESS SUBCONTRACTORS.—Upon request by a small business
                                                                                          concern that performed as a first tier subcontractor on a cov-
                                                                                          ered contract (as defined in paragraph (13)(A)), the prime con-
                                                                                          tractor for such covered contract shall submit to such small
                                                                                          business concern a record of past performance for such small
                                                                                          business concern with respect to such covered contract. If a
                                                                                          small business concern elects to use such record of past per-
                                                                                          formance, a contracting officer shall consider such record of
                                                                                          past performance when evaluating an offer for a prime contract
                                                                                          made by such small business concern.
                                                                                       (e)(1) Except as provided in subsection (g)—
                                                                                             (A) an executive agency intending to—
                                                                                                  (i) solicit bids or proposals for a contract for property or
                                                                                               services for a price expected to exceed $25,000; or
                                                                                                  (ii) place an order, expected to exceed $25,000, under a
                                                                                               basic agreement, basis ordering agreement, or similar ar-
                                                                                               rangement,
                                                                                          shall publish a notice described in subsection (f);
                                                                                             (B) an executive agency intending to solicit bids or proposals
                                                                                          for a contract for property or services shall post, for a period
                                                                                          of not less than ten days, in a public place at the contracting
                                                                                          office issuing the solicitation a notice of solicitation described
                                                                                          in subsection (f)—
                                                                                                  (i) in the case of an executive agency other than the De-
                                                                                               partment of Defense, if the contract is for a price expected
                                                                                               to exceed $10,000, but not to exceed $25,000; and
                                                                                                  (ii) in the case of the Department of Defense, if the con-
                                                                                               tract is for a price expected to exceed $5,000, but not to ex-




dmwilson on DSKJM0X7X2PROD with REPORT-WS
                                                                                               ceed $25,000; and
                                                                                             (C) an executive agency awarding a contract for property or
                                                                                          services for a price exceeding $100,000, or placing an order re-




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                                                                                                                                  34

                                                                                        ferred to in clause (A)(ii) exceeding $100,000, shall furnish for
                                                                                        publication by the Secretary of Commerce a notice announcing
                                                                                        the award or order if there is likely to be any subcontract
                                                                                        under such contract or order.
                                                                                     (2)(A) A notice of solicitation required to be published under
                                                                                  paragraph (1) may be published—
                                                                                           (i) by electronic means that meet the accessibility require-
                                                                                        ments under section 18(a)(7) of the Office of Federal Procure-
                                                                                        ment Policy Act (41 U.S.C. 416(a)(7)); or
                                                                                           (ii) by the Secretary of Commerce in the Commerce Business
                                                                                        Daily.
                                                                                     (B) The Secretary of Commerce shall promptly publish in the
                                                                                  Commerce Business Daily each notice or announcement received
                                                                                  under this subsection for publication by that means.
                                                                                     (3) Whenever an executive agency is required by paragraph
                                                                                  (1)(A) to publish a notice of solicitation, such executive agency may
                                                                                  not—
                                                                                           (A) issue the solicitation earlier than 15 days after the date
                                                                                        on which the notice is published; or
                                                                                           (B) in the case of a contract or order estimated to be greater
                                                                                        than the simplified acquisition threshold, establish a deadline
                                                                                        for the submission of all bids or proposals in response to the
                                                                                        notice required by paragraph (1)(A) that—
                                                                                                 (i) in the case of an order under a basic agreement, basic
                                                                                              ordering agreement, or similar arrangement, is earlier
                                                                                              than the date 30 days after the date the notice required
                                                                                              by paragraph (1)(A)(ii) is published;
                                                                                                 (ii) in the case of a solicitation for research and develop-
                                                                                              ment, is earlier than the date 45 days after the date the
                                                                                              notice required by paragraph (1)(A)(i) is published; or
                                                                                                 (iii) in any other case, is earlier than the date 30 days
                                                                                              after the date the solicitation is issued.
                                                                                     (f) Each notice of solicitation required by subparagraph (A) or (B)
                                                                                  of subsection (e)(1) shall include—
                                                                                           (1) an accurate description of the property or services to be
                                                                                        contracted for, which description (A) shall not be unnecessarily
                                                                                        restrictive of competition, and (B) shall include, as appropriate,
                                                                                        the agency nomenclature, National Stock Number or other part
                                                                                        number, and a brief description of the item’s form, fit, or func-
                                                                                        tion, physical dimensions, predominant material of manufac-
                                                                                        ture, or similar information that will assist a prospective con-
                                                                                        tractor to make an informed business judgment as to whether
                                                                                        a copy of the solicitation should be requested;
                                                                                           (2) provisions that—
                                                                                                 (A) state whether the technical data required to respond
                                                                                              to the solicitation will not be furnished as part of such so-
                                                                                              licitation, and identify the source in the Government, if
                                                                                              any, from which the technical data may be obtained; and
                                                                                                 (B) state whether an offeror, its product, or service must
                                                                                              meet a qualification requirement in order to be eligible for
                                                                                              award, and, if so, identify the office from which a qualifica-




dmwilson on DSKJM0X7X2PROD with REPORT-WS
                                                                                              tion requirement may be obtained;
                                                                                           (3) the name, business address, and telephone number of the
                                                                                        contracting officer;




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                                                                                          (4) a statement that all responsible sources may submit a
                                                                                       bid, proposal, or quotation (as appropriate) which shall be con-
                                                                                       sidered by the agency;
                                                                                          (5) in the case of a procurement using procedures other than
                                                                                       competitive procedures, a statement of the reason justifying
                                                                                       the use of such procedures and the identity of the intended
                                                                                       source; and
                                                                                          (6) in the case of a contract in an amount estimated to be
                                                                                       greater than $25,000 but not greater than the simplified acqui-
                                                                                       sition threshold—
                                                                                               (A) a description of the procedures to be used in award-
                                                                                            ing the contract; and
                                                                                               (B) a statement specifying the periods for prospective
                                                                                            offerors and the contracting officer to take the necessary
                                                                                            preaward and award actions.
                                                                                     (g)(1) A notice is not required under subsection (e)(1) if—
                                                                                          (A) the proposed procurement is for an amount not greater
                                                                                       than the simplified acquisition threshold and is to be con-
                                                                                       ducted by—
                                                                                               (i) using widespread electronic public notice of the solici-
                                                                                            tation in a form that allows convenient and universal user
                                                                                            access through a single, Government-wide point of entry;
                                                                                            and
                                                                                               (ii) permitting the public to respond to the solicitation
                                                                                            electronically.
                                                                                          (B) the notice would disclose the executive agency’s needs
                                                                                       and the disclosure of such needs would compromise the na-
                                                                                       tional security;
                                                                                          (C) the proposed procurement would result from acceptance
                                                                                       of—
                                                                                               (i) any unsolicited proposal that demonstrates a unique
                                                                                            and innovative research concept and the publication of any
                                                                                            notice of such unsolicited research proposal would disclose
                                                                                            the originality of thought or innovativeness of the proposal
                                                                                            or would disclose proprietary information associated with
                                                                                            the proposal; or
                                                                                               (ii) a proposal submitted under section 9 of this Act;
                                                                                          (D) the procurement is made against an order placed under
                                                                                       a requirements contract;
                                                                                          (E) the procurement is made for perishable subsistence sup-
                                                                                       plies;
                                                                                          (F) the procurement is for utility services, other than tele-
                                                                                       communication services, and only one source is available; or
                                                                                          (G) the procurement is for the services of an expert for use
                                                                                       in any litigation or dispute (including preparation for any fore-
                                                                                       seeable litigation or dispute) that involves or could involve the
                                                                                       Federal Government in any trial, hearing, or proceeding before
                                                                                       any court, administrative tribunal, or agency, or in any part of
                                                                                       an alternative dispute resolution process, whether or not the
                                                                                       expert is expected to testify.
                                                                                     (2) The requirements of subsection (a)(1)(A) do not apply to any
                                                                                  procurement under conditions described in paragraph (2), (3), (4),




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                                                                                  (5), or (7) of section 303(c) of the Federal Property and Administra-
                                                                                  tive Services Act of 1949 (41 U.S.C. 253(c)) or paragraph (2), (3),
                                                                                  (4), (5), and (7) of section 3204(a) of title 10, United States Code.




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                                                                                     (3) The requirements of subsection (a)(1)(A) shall not apply in the
                                                                                  case of any procurement for which the head of the executive agency
                                                                                  makes a determination in writing, after consultation with the Ad-
                                                                                  ministrator for Federal Procurement Policy and the Administrator
                                                                                  of the Small Business Administration, that it is not appropriate or
                                                                                  reasonable to publish a notice before issuing a solicitation.
                                                                                     (h)(1) An executive agency may not award a contract using proce-
                                                                                  dures other than competitive procedures unless—
                                                                                           (A) except as provided in paragraph (2), a written justifica-
                                                                                        tion for the use of such procedures has been approved—
                                                                                                (i) in the case of a contract for an amount exceeding
                                                                                             $100,000 (but equal to or less than $1,000,000), by the ad-
                                                                                             vocate for competition for the procuring activity (without
                                                                                             further delegation);
                                                                                                (ii) in the case of a contract for an amount exceeding
                                                                                             $1,000,000 (but equal to or less than $10,000,000), by the
                                                                                             head of the procuring activity or a delegate who, if a mem-
                                                                                             ber of the Armed Forces, is a general or flag officer, or, if
                                                                                             a civilian, is serving in a position in grade GS–16 or above
                                                                                             under the General Schedule (or in a comparable or higher
                                                                                             position under another schedule); or
                                                                                                (iii) in the case of a contract for an amount exceeding
                                                                                             $10,000,000, by the senior procurement executive of the
                                                                                             agency designated pursuant to section 16(3) of the Office
                                                                                             of Federal Procurement Policy Act (41 U.S.C. 414(3)) (with-
                                                                                             out further delegation); and
                                                                                           (B) all other requirements applicable to the use of such pro-
                                                                                        cedures under title III of the Federal Property and Administra-
                                                                                        tive Services Act of 1949 (41 U.S.C. 251 et sq.) or sections 3201
                                                                                        through 3205 of title 10, United States Code, as appropriate,
                                                                                        have been satisfied.
                                                                                     (2) The same exceptions as are provided in section 303(f)(2) of the
                                                                                  Federal Property and Administrative Services Act of 1949 (41
                                                                                  U.S.C. 253(f)(2)) or paragraphs (3) and (4) of section 3204(e) of title
                                                                                  10, United States Code, shall apply with respect to the require-
                                                                                  ments of paragraph (1)(A) of this subsection in the same manner
                                                                                  as such exceptions apply to the requirements of section 303(f)(1) of
                                                                                  such Act or paragraphs (3) and (4) of section 3204(e) of such title,
                                                                                  as appropriate.
                                                                                     (i) An executive agency shall make available to any business con-
                                                                                  cern, or the authorized representative of such concern, the complete
                                                                                  solicitation package for any on-going procurement announced pur-
                                                                                  suant to a notice under subsection (e). An executive agency may re-
                                                                                  quire the payment of a fee, not exceeding the actual cost of duplica-
                                                                                  tion, for a copy of such package.
                                                                                     (j) For purposes of this section, the term ‘‘executive agency’’ has
                                                                                  the meaning provided such term in section 4(1) of the Office of Fed-
                                                                                  eral Procurement Policy Act (41 U.S.C. 403(1)).
                                                                                     (k) NOTICES OF SUBCONTRACTING OPPORTUNITIES.—
                                                                                           (1) IN GENERAL.—Notices of subcontracting opportunities
                                                                                        may be submitted for publication on the appropriate Federal




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                                                                                        Web site (as determined by the Administrator) by—
                                                                                                (A) a business concern awarded a contract by an execu-
                                                                                             tive agency subject to subsection (e)(1)(C); and




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                                                                                               (B) a business concern that is a subcontractor or sup-
                                                                                            plier (at any tier) to such contractor having a subcon-
                                                                                            tracting opportunity in excess of $10,000.
                                                                                          (2) CONTENT OF NOTICE.—The notice of a subcontracting op-
                                                                                       portunity shall include—
                                                                                               (A) a description of the business opportunity that is com-
                                                                                            parable to the description specified in paragraphs (1), (2),
                                                                                            (3), and (4) of subsection (f); and
                                                                                               (B) the due date for receipt of offers.
                                                                                    (l) MANAGEMENT ASSISTANCE FOR SMALL BUSINESSES AFFECTED
                                                                                  BY MILITARY OPERATIONS.—
                                                                                          (1) IN GENERAL.—The Administration shall utilize, as appro-
                                                                                       priate, its entrepreneurial development and management as-
                                                                                       sistance programs, including programs involving State or pri-
                                                                                       vate sector partners, to provide business counseling and train-
                                                                                       ing to any small business concern adversely affected by the de-
                                                                                       ployment of units of the Armed Forces of the United States in
                                                                                       support of a period of military conflict.
                                                                                          (2) DEFINITION OF PERIOD OF MILITARY CONFLICT.—In this
                                                                                       subsection, the term ‘‘period of military conflict’’ means—
                                                                                               (A) a period of war declared by the Congress;
                                                                                               (B) a period of national emergency declared by the Con-
                                                                                            gress or by the President; or
                                                                                               (C) a period of a contingency operation, as defined in sec-
                                                                                            tion 101(a) of title 10, United States Code.
                                                                                    (m) PROCUREMENT PROGRAM FOR WOMEN-OWNED SMALL BUSI-
                                                                                  NESS CONCERNS.—
                                                                                          (1) DEFINITIONS.—In this subsection, the following defini-
                                                                                       tions apply:
                                                                                               (A) CONTRACTING OFFICER.—The term ‘‘contracting offi-
                                                                                            cer’’ has the meaning given such term in section 27(f)(5) of
                                                                                            the Office of Federal Procurement Policy Act (41 U.S.C.
                                                                                            423(f)(5)).
                                                                                               (B) SMALL BUSINESS CONCERN OWNED AND CONTROLLED
                                                                                            BY WOMEN.—The term ‘‘small business concern owned and
                                                                                            controlled by women’’ has the meaning given such term in
                                                                                            section 3(n), except that ownership shall be determined
                                                                                            without regard to any community property law.
                                                                                          (2) AUTHORITY TO RESTRICT COMPETITION.—In accordance
                                                                                       with this subsection, a contracting officer may restrict competi-
                                                                                       tion for any contract for the procurement of goods or services
                                                                                       by the Federal Government to small business concerns owned
                                                                                       and controlled by women, if—
                                                                                               (A) each of the concerns is not less than 51 percent
                                                                                            owned by one or more women who are economically dis-
                                                                                            advantaged (and such ownership is determined without re-
                                                                                            gard to any community property law);
                                                                                               (B) the contracting officer has a reasonable expectation
                                                                                            that two or more small business concerns owned and con-
                                                                                            trolled by women will submit offers for the contract;




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                                                                                               (C) the contract is for the procurement of goods or serv-
                                                                                            ices with respect to an industry identified by the Adminis-
                                                                                            trator pursuant to øparagraph (3)¿ paragraph (4);




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                                                                                                                                  38

                                                                                                 (D) in the estimation of the contracting officer, the con-
                                                                                              tract award can be made at a fair and reasonable price;
                                                                                              and
                                                                                                 (E) each of the concerns is certified by a Federal agency,
                                                                                              a State government, the Administrator, or a national certi-
                                                                                              fying entity approved by the Administrator as a small
                                                                                              business concern owned and controlled by women, includ-
                                                                                              ing that each such concern does not exceed the applicable
                                                                                              size standard established under section 3(a).
                                                                                           (3) WAIVER.—With respect to a small business concern
                                                                                         owned and controlled by women, the Administrator may waive
                                                                                         subparagraph (2)(A) if the Administrator determines that the
                                                                                         concern is in an industry in which small business concerns
                                                                                         owned and controlled by women are substantially underrep-
                                                                                         resented.
                                                                                           (4) IDENTIFICATION OF INDUSTRIES.—The Administrator shall
                                                                                         conduct a study to identify industries in which small business
                                                                                         concerns owned and controlled by women are underrepresented
                                                                                         with respect to Federal procurement contracting.
                                                                                           (5) ENFORCEMENT; PENALTIES.—
                                                                                                 (A) VERIFICATION OF ELIGIBILITY.—In carrying out this
                                                                                              subsection, the Administrator shall establish procedures
                                                                                              relating to—
                                                                                                     (i) the filing, investigation, and disposition by the
                                                                                                   Administration of any challenge to the eligibility of a
                                                                                                   small business concern to receive assistance under this
                                                                                                   subsection (including a challenge, filed by an inter-
                                                                                                   ested party, relating to the veracity of a certification
                                                                                                   made or information provided to the Administration
                                                                                                   by a small business concern under paragraph (2)(E));
                                                                                                   and
                                                                                                     (ii) verification by the Administrator of the accuracy
                                                                                                   of any certification made or information provided to
                                                                                                   the Administration by a small business concern under
                                                                                                   paragraph (2)(E).
                                                                                                 (B) EXAMINATIONS.—The procedures established under
                                                                                              subparagraph (A) may provide for program examinations
                                                                                              (including random program examinations) by the Adminis-
                                                                                              trator of any small business concern making a certification
                                                                                              or providing information to the Administrator under para-
                                                                                              graph (2)(E).
                                                                                                 (C) PENALTIES.—In addition to the penalties described in
                                                                                              section 16(d), any small business concern that is deter-
                                                                                              mined by the Administrator to have misrepresented the
                                                                                              status of that concern as a small business concern owned
                                                                                              and controlled by women for purposes of this subsection,
                                                                                              shall be subject to—
                                                                                                     (i) section 1001 of title 18, United States Code; and
                                                                                                     (ii) sections 3729 through 3733 of title 31, United
                                                                                                   States Code.
                                                                                           (6) PROVISION OF DATA.—Upon the request of the Adminis-
                                                                                         trator, the head of any Federal department or agency shall




dmwilson on DSKJM0X7X2PROD with REPORT-WS
                                                                                         promptly provide to the Administrator such information as the
                                                                                         Administrator determines to be necessary to carry out this sub-
                                                                                         section.




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                                                                                                                                  39

                                                                                           (7) AUTHORITY FOR SOLE SOURCE CONTRACTS FOR ECONOMI-
                                                                                         CALLY DISADVANTAGED SMALL BUSINESS CONCERNS OWNED AND
                                                                                         CONTROLLED BY WOMEN.—A contracting officer may award a
                                                                                         sole source contract under this subsection to any small busi-
                                                                                         ness concern owned and controlled by women described in
                                                                                         paragraph (2)(A) and certified under paragraph (2)(E) if—
                                                                                                 (A) such concern is determined to be a responsible con-
                                                                                              tractor with respect to performance of the contract oppor-
                                                                                              tunity and the contracting officer does not have a reason-
                                                                                              able expectation that 2 or more businesses described in
                                                                                              paragraph (2)(A) will submit offers;
                                                                                                 (B) the anticipated award price of the contract (including
                                                                                              options) will not exceed—
                                                                                                      (i) $7,000,000, in the case of a contract opportunity
                                                                                                   assigned a standard industrial classification code for
                                                                                                   manufacturing; or
                                                                                                      (ii) $4,000,000, in the case of any other contract op-
                                                                                                   portunity; and
                                                                                                 (C) in the estimation of the contracting officer, the con-
                                                                                              tract award can be made at a fair and reasonable price.
                                                                                            (8) AUTHORITY FOR SOLE SOURCE CONTRACTS FOR SMALL BUSI-
                                                                                         NESS CONCERNS OWNED AND CONTROLLED BY WOMEN IN SUB-
                                                                                         STANTIALLY UNDERREPRESENTED INDUSTRIES.—A contracting of-
                                                                                         ficer may award a sole source contract under this subsection
                                                                                         to any small business concern owned and controlled by women
                                                                                         certified under paragraph (2)(E) that is in an industry in which
                                                                                         small business concerns owned and controlled by women are
                                                                                         substantially underrepresented (as determined by the Adminis-
                                                                                         trator under paragraph (3)) if—
                                                                                                 (A) such concern is determined to be a responsible con-
                                                                                              tractor with respect to performance of the contract oppor-
                                                                                              tunity and the contracting officer does not have a reason-
                                                                                              able expectation that 2 or more businesses in an industry
                                                                                              that has received a waiver under paragraph (3) will sub-
                                                                                              mit offers;
                                                                                                 (B) the anticipated award price of the contract (including
                                                                                              options) will not exceed—
                                                                                                      (i) $7,000,000, in the case of a contract opportunity
                                                                                                   assigned a standard industrial classification code for
                                                                                                   manufacturing; or
                                                                                                      (ii) $4,000,000, in the case of any other contract op-
                                                                                                   portunity; and
                                                                                                 (C) in the estimation of the contracting officer, the con-
                                                                                              tract award can be made at a fair and reasonable price.
                                                                                       (n) BUSINESS GRANTS AND COOPERATIVE AGREEMENTS.—
                                                                                            (1) IN GENERAL.—In accordance with this subsection, the Ad-
                                                                                         ministrator may make grants to and enter into cooperative
                                                                                         agreements with any coalition of private entities, public enti-
                                                                                         ties, or any combination of private and public entities—
                                                                                                 (A) to expand business-to-business relationships between
                                                                                              large and small businesses; and
                                                                                                 (B) to provide businesses, directly or indirectly, with on-




dmwilson on DSKJM0X7X2PROD with REPORT-WS
                                                                                              line information and a database of companies that are in-
                                                                                              terested in mentor-protege programs or community-based,
                                                                                              statewide, or local business development programs.




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                                                                                                                                  40

                                                                                           (2) MATCHING REQUIREMENT.—Subject to subparagraph (B),
                                                                                         the Administrator may make a grant to a coalition under para-
                                                                                         graph (1) only if the coalition provides for activities described
                                                                                         in paragraph (1)(A) or (1)(B) an amount, either in kind or in
                                                                                         cash, equal to the grant amount.
                                                                                           (3) AUTHORIZATION OF APPROPRIATIONS.—There is authorized
                                                                                         to be appropriated to carry out this subsection $6,600,000, to
                                                                                         remain available until expended, for each of fiscal years 2001
                                                                                         through 2006.
                                                                                              *           *            *              *           *          *          *




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                                                                                                                 XVIII. MINORITY VIEWS
                                                                                    SBA’s Women-Owned Small Business (WOSB) Program is de-
                                                                                  signed to help level the playing field for women-owned small busi-
                                                                                  nesses and economically disadvantaged women-owned small busi-
                                                                                  nesses (EDWOSBs) in the federal marketplace. The federal govern-
                                                                                  ment attempts to expand contracting opportunities for WOSBs in
                                                                                  two main ways: (a) setting an overall goal of sending 5% of federal
                                                                                  contracting dollars to women-owned firms and (b) using certain au-
                                                                                  thorities to make it easier to contract with women-owned firms.
                                                                                  These authorities allow contracting officers to set-aside a contract
                                                                                  exclusively for WOSBs competition and allow contracting officers to
                                                                                  sole source contracts to a WOSB firm, when certain conditions are
                                                                                  met.
                                                                                    The federal government topline goal of 5% of federal spending for
                                                                                  WOSBs has only been met twice and federal agencies routinely
                                                                                  miss their individual WOSB goals.
                                                                                    To participate in the WOSB program, the firm must be: (a) a
                                                                                  small business; (b) owned and controlled by one or more women
                                                                                  who are U.S. citizens; (c) have women manage day-to-day oper-
                                                                                  ations and make long-term decisions; and (d) be certified by the
                                                                                  SBA, or a national certifying entity approved by the SBA.
                                                                                    The IG has stated that SBA is required to verify that WOSB pro-
                                                                                  gram applicants meet the program criteria, including that the firm
                                                                                  meets the small business size requirements. The Inspector General
                                                                                  further believes that SBA’s implementation ‘‘is inconsistent with
                                                                                  the statutory requirement for SBA to certify the business meets
                                                                                  program requirements.’’ 1
                                                                                    The language and the intent of this legislation are to align the
                                                                                  SBA’s implementation of the WOSB program with the IG’s rec-
                                                                                  ommendation that ‘‘program officials should establish procedures
                                                                                  similar to the third-party certifiers, HUBZone, and 8(a) programs
                                                                                  to ensure analysts consistently verify that WOSB applicants are
                                                                                  small businesses.’’
                                                                                    The authors of this legislation deliberately and specifically in-
                                                                                  cluded the rule of construction in subsection (c) to ensure that im-
                                                                                  plementation is aligned with the IG’s comments: ‘‘OIG acknowl-
                                                                                  edges that a size determination is a specific process and is not rec-
                                                                                  ommending SBA perform size determinations for each applicant.’’




                                                                                   1 ‘‘SBA Inspector General Audit Report: SBA’S Implementation of the Women-owned Small




dmwilson on DSKJM0X7X2PROD with REPORT-WS
                                                                                  Business Certification Program.’’ Report Number 22–20, September 29, 2022: https://
                                                                                  www.sba.gov/sites/sbagov/files/2022-09/SBA%20OIG%20Report%2022-20.pdf.
                                                                                                                                  (41)




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                                                                                                                                  42

                                                                                  The committee does not intend for SBA to conduct a size deter-
                                                                                  mination for WOSB program applicants.
                                                                                        Sincerely,
                                                                                                                      NYDIA M. VELÁZQUEZ,
                                                                                                                             Ranking Member.

                                                                                                                                      Æ




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