[Congressional Bills 109th Congress]
[From the U.S. Government Publishing Office]
[S. 137 Introduced in Senate (IS)]







109th CONGRESS
  1st Session
                                 S. 137

To modify the contract consolidation requirements in the Small Business 
                      Act, and for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                            January 24, 2005

   Mr. Kerry introduced the following bill; which was read twice and 
    referred to the Committee on Small Business and Entrepreneurship

_______________________________________________________________________

                                 A BILL


 
To modify the contract consolidation requirements in the Small Business 
                      Act, and for other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Small Business Federal Contractor 
Safeguard Act of 2005''.

SEC. 2. CONTRACT CONSOLIDATION.

    (a) Definitions.--Section 3(o) of the Small Business Act (15 U.S.C. 
632(o)) is amended to read as follows:
    ``(o) Definitions Relating to Consolidation of Contract 
Requirements.--For purposes of this Act--
            ``(1) the terms `consolidation of contract requirements' 
        and `consolidation', with respect to contract requirements of a 
        military department, Defense Agency, Department of Defense 
        Field Activity, or any other Federal department or agency 
        having contracting authority mean a use of a solicitation to 
        obtain offers for a single contract or a multiple award 
        contract to satisfy 2 or more requirements of that department, 
        agency, or activity for goods or services that--
                    ``(A) have previously been provided to or performed 
                for that department, agency, or activity under 2 or 
                more separate contracts that are smaller in cost than 
                the total cost of the contract for which the offers are 
                solicited; or
                    ``(B) are of a type capable of being provided or 
                performed by a small business concern for that 
                department, agency, or activity under 2 or more 
                separate contracts that are smaller in cost than the 
                total cost of the contract for which the offers are 
                solicited;
            ``(2) the term `multiple award contract' means--
                    ``(A) a contract that is entered into by the 
                Administrator of General Services under the multiple 
                award schedule program referred to in section 
                2302(2)(C) of title 10, United States Code;
                    ``(B) a multiple award task order contract or 
                delivery order contract that is entered into under the 
                authority of sections 2304a through 2304d of title 10, 
                United States Code, or sections 303H through 303K of 
                the Federal Property and Administrative Services Act of 
                1949 (41 U.S.C. 253h through 253k); and
                    ``(C) any other indeterminate delivery, 
                indeterminate quantity contract that is entered into by 
                the head of a Federal agency with 2 or more sources 
                pursuant to the same solicitation; and
            ``(3) the term `senior procurement executive' means--
                    ``(A) with respect to a military department, the 
                official designated under section 16(3) of the Office 
                of Federal Procurement Policy Act (41 U.S.C. 414(3)) as 
                the senior procurement executive for the military 
                department;
                    ``(B) with respect to a Defense Agency or a 
                Department of Defense Field Activity, the official so 
                designated for the Department of Defense; and
                    ``(C) with respect to a Federal department or 
                agency other than those referred to in subparagraphs 
                (A) and (B), the official so designated by that 
                department or agency.''.
    (b) Procurement Strategies.--Section 15(e) of the Small Business 
Act (15 U.S.C. 644(e)) is amended--
            (1) in paragraph (2)--
                    (A) by striking ``.--
                    ``(A) In general ''; and
                    (B) by striking subparagraphs (B) and (C); and
            (2) by amending paragraph (3) to read as follows:
            ``(3) Limitation on use of acquisition strategies involving 
        consolidation.--
                    ``(A) Certain defense contract requirements.--An 
                official of a military department, defense agency, or 
                Department of Defense Field Activity shall not execute 
                an acquisition strategy that includes a consolidation 
                of contract requirements of the military department, 
                agency, or activity with a total value in excess of 
                $5,000,000, unless the senior procurement executive 
                first--
                            ``(i) conducts market research;
                            ``(ii) identifies any alternative 
                        contracting approaches that would involve a 
                        lesser degree of consolidation of contract 
                        requirements; and
                            ``(iii) determines that the consolidation 
                        is necessary and justified.
                    ``(B) Certain civilian agency contract 
                requirements.--The head of a Federal agency not 
                described in subparagraph (A) that has contracting 
                authority shall not execute an acquisition strategy 
                that includes a consolidation of contract requirements 
                of the agency with a total value in excess of 
                $2,000,000, unless the senior procurement executive of 
                the agency first--
                            ``(i) conducts market research;
                            ``(ii) identifies any alternative 
                        contracting approaches that would involve a 
                        lesser degree of consolidation of contract 
                        requirements; and
                            ``(iii) determines that the consolidation 
                        is necessary and justified.
                    ``(C) Additional requirements for higher value 
                consolidated contracts.--In addition to meeting the 
                requirements under subparagraph (A) or (B), a 
                procurement strategy by a civilian agency that includes 
                a consolidated contract valued at more than $5,000,000, 
                or by a defense agency that includes a consolidated 
                contract valued at more than $7,000,000 shall include--
                            ``(i) an assessment of the specific 
                        impediments to participation by small business 
                        concerns as prime contractors that will result 
                        from the consolidation;
                            ``(ii) the identification of the 
                        alternative strategies that would reduce or 
                        minimize the scope of the consolidation and the 
                        rationale for not choosing those alternatives;
                            ``(iii) actions designed to maximize small 
                        business participation as prime contractors, 
                        including provisions that encourage small 
                        business teaming for the consolidated 
                        requirement; and
                            ``(iv) actions designed to maximize small 
                        business participation as subcontractors 
                        (including suppliers) at any tier under the 
                        contract or contracts that may be awarded to 
                        meet the requirements.
                    ``(D) Necessary and justified.--A senior 
                procurement executive may determine that an acquisition 
                strategy involving a consolidation of contract 
                requirements is necessary and justified for purposes of 
                subparagraph (A), (B), or (C), if the benefits of the 
                acquisition strategy substantially exceed the benefits 
                of each of the possible alternative contracting 
                approaches identified under clause (ii) of any of those 
                subparagraphs, as applicable. Savings in administrative 
                or personnel costs alone shall not constitute, for such 
                purpose, a sufficient justification for a consolidation 
                of contract requirements in a procurement, unless the 
                total amount of the cost savings is expected to be 
                substantial in relation to the total cost of the 
                procurement.
                    ``(E) Benefits.--Benefits considered for purposes 
                of this paragraph may include cost and, regardless of 
                whether quantifiable in dollar amounts--
                            ``(i) quality;
                            ``(ii) acquisition cycle;
                            ``(iii) terms and conditions; and
                            ``(iv) any other benefit directly related 
                        to national security or homeland defense.''.
    (c) Additional to Technical Advisers.--Section 15(k) of the Small 
Business Act (15 U.S.C. 644(k)) is amended--
            (1) in paragraph (5), by striking ``bundled contract'' and 
        inserting ``consolidated contract''; and
            (2) in paragraph (8), by striking ``representative--'' and 
        inserting ``representative at each major procurement center 
        under subsection (l)(1)--''.
    (d) Procurement Center Representatives.--Section 15(l) of the Small 
Business Act (15 U.S.C. 644(l)) is amended--
            (1) by redesignating paragraphs (2) through (7) as 
        paragraphs (3) through (8), respectively;
            (2) by striking ``(l)(1)'' and inserting ``(2)'';
            (3) by inserting before paragraph (2), as redesignated, the 
        following:
    ``(l)(1) The Administration shall assign not fewer than 1 
procurement center representative at each major procurement center, in 
addition to not fewer than 1 for each State.'';
            (4) in paragraph (2), as redesignated, by striking ``to the 
        representative referred to in subsection (k)(6)'' and inserting 
        ``to the traditional procurement center representative and the 
        commercial market representative, with each such position 
        filled by a different individual, and each such representative 
        having separate and distinct duties and responsibilities.''; 
        and
            (5) by striking ``paragraph (2)'' each place that term 
        appears and inserting ``paragraph (3)''.
    (e) Report Requirements.--Section 15(p)(4)(B) of the Small Business 
Act (15 U.S.C. 644(p)(4)(B)) is amended--
            (1) in clause (i), by striking ``and'' at the end;
            (2) in clause (ii), by striking the period at the end and 
        inserting the following: ``; and''; and
            (3) by adding at the end the following:
                            ``(iii) a description of best practices for 
                        maximizing small business prime and 
                        subcontracting opportunities.''.
    (f) Conforming Amendments.--Section 15(p) of the Small Business Act 
(15 U.S.C. 644(p)) is amended--
            (1) in the subsection heading, by striking ``Bundled 
        Contracts'' and inserting ``Consolidated Contracts'';
            (2) in the heading to paragraph (1), by striking ``Bundled 
        contract'' and inserting ``Consolidated contract'';
            (3) in the heading to paragraph (4), by striking ``contract 
        bundling'' and inserting ``contract consolidation'';
            (4) by striking ``bundled contracts'' each place that term 
        appears and inserting ``consolidated contracts'';
            (5) by striking ``bundled contract'' each place that term 
        appears and inserting ``consolidated contract'';
            (6) by striking ``bundling of contract requirements'' each 
        place that term appears and inserting ``consolidation of 
        contract requirements'';
            (7) in paragraph (4)(B)(ii), by striking ``previously 
        bundled'' and inserting ``previously consolidated'';
            (8) in paragraph (4)(B)(ii)(I), by striking ``were 
        bundled'' and inserting ``were consolidated'';
            (9) in paragraph (4)(B)(ii)(II)(bb), by striking ``bundling 
        the contract requirements'' and inserting ``the consolidation 
        of contract requirements''; and
            (10) in paragraph (4)(B)(ii)(II)(cc), by striking ``bundled 
        status'' and inserting ``consolidated status''.

SEC. 3. AGENCY ACCOUNTABILITY.

    (a) In General.--Each procurement employee--
            (1) shall communicate to their subordinates the importance 
        of achieving small business goals; and
            (2) shall have as an annual performance evaluation factor, 
        if appropriate, the success of that procurement employee in 
        small business utilization, in accordance with the goals 
        established under this section.
    (b) Definition.--As used in this section, the term ``procurement 
employee'' means a senior procurement executive, senior program 
manager, or small and disadvantaged business utilization manager of a 
Federal agency having contracting authority.

SEC. 4. SMALL BUSINESS PARTICIPATION IN PRIME CONTRACTING.

    (a) Reserved Contracts.--Section 15(j) of the Small Business Act 
(15 U.S.C. 644(j)) is amended by adding at the end the following:
    ``(4) Any adjustment to the simplified acquisition threshold (as 
defined in section 4(11) of the Office of Federal Procurement Policy 
Act (41 U.S.C. 403(11))), shall be immediately matched by an identical 
adjustment to the small business reserve for purposes of this 
subsection.''.
    (b) Participation in Multiple Award Contracts.--Section 15(j) of 
the Small Business Act (15 U.S.C. 644(j)) is amended--
            (1) in paragraph (2), by striking ``(2) In carrying out 
        paragraph (1)'' and inserting ``(3) In carrying out paragraphs 
        (1) and (2)'';
            (2) in paragraph (3), by striking ``(3) Nothing in 
        paragraph (1)'' and inserting ``(4) Nothing in this 
        subsection''; and
            (3) by inserting after paragraph (1) the following:
    ``(2)(A) In the case of orders under multiple award contracts, 
including Federal Supply Schedule contracts and multi-agency contracts, 
that are subject to the small business reserve, contracting officers 
shall consider not fewer than 2 small business concerns if such small 
business concerns can offer the items sought by the contracting officer 
on competitive terms, with respect to price, quality, and delivery 
schedule, with the goods or services available in the market.
    ``(B) If only 1 small business concern can satisfy the requirement, 
the contracting officer shall include such small business concern in 
their evaluation.''.
    (c) Report Requirement.--
            (1) In general.--Not less than once every 180 days, the 
        Comptroller General of the United States shall submit a report 
        on the level of participation in multiple award contracts, 
        including the Federal Supply Schedule to--
                    (A) the Small Business Administration;
                    (B) the Committee on Small Business and 
                Entrepreneurship of the Senate; and
                    (C) the Committee on Small Business of the House of 
                Representatives.
            (2) Contents.--Each report submitted under paragraph (1) 
        shall contain, for the 6-month reporting period--
                    (A) the total number of multiple award contracts;
                    (B) the total number of small business concerns 
                that received multiple award contracts;
                    (C) the total number of orders;
                    (D) the total value of orders;
                    (E) the number of orders received by small business 
                concerns;
                    (F) the value of orders received by small business 
                concerns;
                    (G) the number of small business concerns that 
                received orders; and
                    (H) such other information that the Comptroller 
                General considers relevant.

SEC. 5. SMALL BUSINESS PARTICIPATION IN SUBCONTRACTING.

    (a) Certifications Required.--Section 8(d)(6) of the Small Business 
Act (15 U.S.C. 637(d)(6)) is amended--
            (1) in subparagraph (E), by striking ``and'' at the end;
            (2) in subparagraph (F), by striking the period at the end 
        and inserting ``; and''; and
            (3) by adding at the end the following:
            ``(G) certification that the offeror or bidder will acquire 
        articles, equipment, supplies, services, or materials, or 
        obtain the performance of construction work from small business 
        concerns in the amount and quality used in preparing the bid or 
        proposal, unless such small business concerns are no longer in 
        business or can no longer meet the quality, quantity, or 
        delivery date.''.
    (b) Penalties for False Certifications.--Section 16(f) of the Small 
Business Act (15 U.S.C. 645(f)) is amended by striking ``of this Act'' 
and inserting ``or the reporting requirements of section 8(d)(11)''.

SEC. 6. EVALUATING SUBCONTRACT PARTICIPATION IN AWARDING CONTRACTS.

    (a) Significant Factors.--Section 8(d)(4)(G) of the Small Business 
Act (15 U.S.C. 637(d)(4)(G)) is amended by striking ``a bundled'' and 
inserting ``any''.
    (b) Evaluation Reports.--Section 8(d)(10) of the Small Business Act 
(15 U.S.C. 637(d)(10)) is amended--
            (1) by striking ``is authorized to'' and inserting 
        ``shall'';
            (2) in subparagraph (B), by striking ``and'' at the end;
            (3) in subparagraph (C), by striking the period at the end 
        and inserting ``; and''; and
            (4) by adding at the end the following:
            ``(D) report the results of each evaluation under 
        subparagraph (C) to the appropriate contracting officers.''.
    (c) Centralized Database; Payments Pending Reports.--Section 8(d) 
of the Small Business Act (15 U.S.C. 637(d)) is amended--
            (1) by redesignating paragraph (11) as paragraph (14); and
            (2) by inserting after paragraph (10) the following:
    ``(11) Certification.--A report submitted by the prime contractor 
pursuant to paragraph (6)(E) to determine the attainment of a 
subcontract utilization goal under any subcontracting plan entered into 
with a Federal agency under this subsection shall contain the name and 
signature of the president or chief executive officer of the 
contractor, certifying that the subcontracting data provided in the 
report are accurate and complete.
    ``(12) Centralized database.--The results of an evaluation under 
paragraph (10)(C) shall be included in a national centralized 
governmentwide database.
    ``(13) Payments pending reports.--Each Federal agency having 
contracting authority shall ensure that the terms of each contract for 
goods and services includes a provision allowing the contracting 
officer of an agency to withhold an appropriate amount of payment with 
respect to a contract (depending on the size of the contract) until the 
date of receipt of complete, accurate, and timely subcontracting 
reports in accordance with paragraph (11).''.
    (d) Referral of Material Breach to Inspectors General.--Section 
8(d)(8) of the Small Business Act (15 U.S.C. 637(d)(8)) is amended by 
adding at the end the following: ``A material breach described in this 
paragraph shall be referred for investigation to the Inspector General 
(or the equivalent) of the affected agency.''.

SEC. 7. BUSINESSLINC REPORT TO CONGRESS.

    Section 8(n) of the Small Business Act (15 U.S.C. 637(n)) is 
amended--
            (1) by redesignating paragraph (3) as paragraph (4); and
            (2) by adding after paragraph (2) the following:
            ``(3) Annual report.--
                    ``(A) In general.--The Associate Administrator of 
                Business Development of the Administration shall 
                collect data on the BusinessLINC program and submit an 
                annual report by April 30 of each year on the 
                effectiveness of the program to the Committee on Small 
                Business and Entrepreneurship of the Senate and the 
                Committee on Small Business of the House of 
                Representatives.
                    ``(B) Contents.--The report submitted under 
                subparagraph (A) shall include--
                            ``(i) the number of programs administered 
                        in each State;
                            ``(ii) the corresponding grant awards and 
                        the date of each award;
                            ``(iii) the dollar amount of the contracts 
                        in effect in each State as a result of the 
                        BusinessLINC program; and
                            ``(iv) the number of teaming arrangements 
                        or partnerships created as a result of the 
                        BusinessLINC program.''.
                                 <all>