1.
This Act may be cited as the
Small Business Federal Contractor
Safeguard Act of 2005
.
2.
(a)
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)
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)
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 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)
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)
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
.
3.
(a)
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)
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.
4.
Small business participation in prime contracting
(a)
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)
(1)
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)
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.
5.
Small business participation in subcontracting
(a)
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)
.
6.
Evaluating subcontract participation in awarding
contracts
(a)
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)
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)
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)
The results of an evaluation under paragraph (10)(C) shall be
included in a national centralized governmentwide database.
(13)
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.
.
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)
(A)
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)
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.
.