II 109th CONGRESS 2d Session S. 2608 IN THE SENATE OF THE UNITED STATES April 7, 2006 Ms. Snowe (for herself and Mr. Vitter) introduced the following bill; which was read twice and referred to the Committee on Small Business and Entrepreneurship A BILL To ensure full partnership of small contractors in Federal disaster reconstruction efforts.

1.

Short title

This Act may be cited as the Small Business Partners in Reconstruction Act of 2006.

2.

Definitions

In this Act— (1)the terms Administration and Administrator mean the Small Business Administration and the Administrator thereof, respectively; (2)the term small business concern has the same meaning as in section 3 of the Small Business Act (15 U.S.C. 632); and (3)the term small business concern owned and controlled by socially and economically disadvantaged individuals has the same meaning as in section 8 of the Small Business Act (15 U.S.C. 637).

3.

Small business procurement flexibilities; government-wide guidance

Section 5 of the Small Business Act (15 U.S.C. 634) is amended by adding at the end the following: (i)

Small business emergency procurement flexibilities; government-wide guidance

(1)

Definition

In this subsection, the term Guidelines means the guidelines entitled Emergency Procurement Flexibilities (A Framework for Responsive Contracting & Guidelines for Using Simplified Acquisition Procedures) issued by the Office of Federal Procurement Policy of the Office of Management and Budget on May 30, 2003, or any successor thereto. (2)

Office of Federal Procurement Policy

In order to enable the Federal Government to purchase goods and service quickly and efficiently in times of disaster, contingency, or other emergency, while promoting small business concern utilization, the Administrator for Federal Procurement Policy shall— (A)ensure that the Guidelines continue to strongly encourage that the Federal Government utilize the small business procurement flexibilities in this Act; (B)ensure that the Guidelines fully address all available small business procurement flexibilities (including flexibilities authorized for small business concerns owned and controlled by socially and economically disadvantaged individuals under section 8(a), HUBZone small business concerns, and small business concerns owned and controlled by service-disabled veterans); (C)periodically revise, update, or modify the Guidelines; (D)publish the Guidelines, as updated to comply with this paragraph, in the Federal Register; and (E)consult with the Administrator on any changes to the Guidelines. (3)

Administration

The Administrator shall, with regard to the Guidelines— (A)develop and conduct ongoing government-wide training on small business emergency procurement flexibilities (including flexibilities authorized for small business concerns owned and controlled by socially and economically disadvantaged individuals under section 8(a), HUBZone small business concerns, and small business concerns owned and controlled by service-disabled veterans); and (B)designate not fewer than 1 official to provide advice and assistance to the Office of Federal Procurement Policy and other Federal agencies on the use of small business procurement flexibilities in times of disaster, contingency, or other emergency. .

4.

Paperwork reciprocity for small disaster contractors

Not later than 30 days after the date of enactment of this Act, the Administrator shall ensure that all eligible small business concerns receive the full benefit of reciprocity in certifications between Federal and Federally-funded contracting programs for small business concerns owned and controlled by socially and economically disadvantaged individuals.

5.

Hurricane katrina and rita small business contracting data

Not later than 30 days after the date of enactment of this Act, the Administrator for Federal Procurement Policy and the Administrator shall ensure that the Federal Procurement Data System contains comprehensive Government-wide data on small business participation in contracting related to Hurricane Katrina of 2005 or Hurricane Rita of 2005.

6.

Disaster area hubzones

Section 3(p)(1) of the Small Business Act (15 U.S.C. 632(p)(1)) is amended— (1)in subparagraph (D), by striking or; (2)in subparagraph (E), by striking the period and inserting ; or; and (3)by adding at the end the following: (F)any area affected by Hurricane Katrina of 2005 or Hurricane Rita of 2005, for such time or in such geographic area as designated by the Administrator. .

7.

Disaster contracting outreach programs for small businesses

(a)

In general

Not later than 90 days after the date of enactment of this Act, the Administrator shall establish a contracting outreach and technical assistance program for small business concerns that— (1)had a primary place of business, or other significant presence, in the area affected by Hurricane Katrina of 2005 or Hurricane Rita of 2005, as designated by the Administrator under section 7(b)(2) of the Small Business Act, beginning on the date that is 60 days before the date of that designation by the Administrator; or (2)have a primary place of business, or other significant presence, in the area affected by Hurricane Katrina of 2005 or Hurricane Rita of 2005, as designated by the Administrator under section 7(b)(2) of the Small Business Act, during the period beginning on the date of that designation and ending on the date that is 5 years after the date of that designation. (b)

Administrator action

The Administrator may fulfill the requirement of subsection (a) by acting through— (1)the Administration; (2)the Federal agency small business officials designated under section 15(k)(1) of the Small Business Act (15 U.S.C. 644(k)(1)); and (3)any Federal, State, or local government entity, higher education institution, Procurement Technical Assistance Center, or private nonprofit organization that the Administrator determines is proper, upon conclusion of a memorandum of understanding or assistance agreement, as appropriate, with the Administrator.

8.

Small business bonding threshold

(a)

In general

Except as provided in subsection (b), and notwithstanding any other provision of law, for any procurement related to Hurricane Katrina of 2005 or Hurricane Rita of 2005, the Administrator may, upon such terms and conditions as the Administrator may prescribe, guarantee and enter into commitments to guarantee any surety against loss resulting from a breach of the terms of a bid bond, payment bond, performance bond, or bonds ancillary thereto, by a principal on any total work order or contract amount at the time of bond execution that does not exceed $5,000,000. (b)

Increase of amount

Upon request of the head of any Federal agency other than the Administration involved in reconstruction efforts in response to Hurricane Katrina of 2005 or Hurricane Rita of 2005, the Administrator may guarantee and enter into a commitment to guarantee any security against loss under subsection (a) on any total work order or contract amount at the time of bond execution that does not exceed $10,000,000.

9.

Fair small business participation

In order to facilitate the maximum practicable participation of small business concerns in activities related to relief and recovery from Hurricane Katrina of 2005 and Hurricane Rita of 2005, the Administrator and the head of any Federal agency making procurements related to the aftermath of Hurricane Katrina of 2005 or Hurricane Rita of 2005, shall set a goal of awarding to small business concerns not less than 30 percent of amounts expended for prime contracts and not less than 40 percent of amounts expended for subcontracts on procurements by such agency related to the aftermath of Hurricane Katrina of 2005 or Hurricane Rita of 2005, respectively.

10.

Protection of small business reservation

Section 15(j) of the Small Business Act (15 U.S.C. 644(j)) is amended by adding at the end the following: (4)For any contracts involving the use of the special emergency procurement authority under section 32A(c) of the Office of Federal Procurement Policy Act (41 U.S.C. 428a(c)), the dollar ceiling of the small business reservation established in paragraph (1) shall be adjusted to match the applicable amount of the simplified acquisition threshold. .

11.

Small business multiple-award disaster contracts

(a)

In general

The Administrator and the Administrator for Federal Procurement Policy shall ensure that the Federal Government establishes and maintains multiple-award contracts with small business concerns of all categories on a nationwide and regional basis for the purpose of conducting or supporting Federal disaster recovery efforts. (b)

Report

At the end of each fiscal year, the Administrator and the Administrator for Federal Procurement Policy shall submit to Committee on Small Business and Entrepreneurship of the Senate and the Committee on Small Business of the House of Representatives a report describing the terms, conditions, and status of the contracts described in subsection (a) awarded during the preceding fiscal year.

12.

Transparency in disaster subcontracting

The Administrator and the head of each executive agency awarding recovery and reconstruction contracts related to Hurricane Katrina of 2005 or Hurricane Rita of 2005 shall ensure that each such contract for which a small business subcontracting plan is required by law or contract terms contains a clause requiring the posting of subcontracting opportunities on the SUB-Net database established by the Administration under section 8(e) of the Small Business Act (15 U.S.C. 637(e)), or any successor thereto.

13.

Protection of small business subcontracting

Section 8(d)(4)(D) of the Small Business Act (15 U.S.C. 637(d)(4)(D)) is amended— (1)by striking (D) No contract and inserting the following: (D)

Small business participation

(i)

In general

No contract ; and (2)by adding at the end the following: (ii)

Emergency procurements

(I)

In general

For any contract which otherwise meets the requirements of this subsection, and which involves the use of special emergency procurement authority under section 32A(c) of the Office of Federal Procurement Policy Act (41 U.S.C. 428a(c)), the subcontracting plan required under this subsection shall be negotiated as soon as is practicable, but not later than 30 days after the date on which the contract is awarded. (II)

Payment

Not greater than 50 percent of the amounts due under any contract described in subclause (I) may be paid, unless a subcontracting plan compliant with this subsection is negotiated by the contractor. .

14.

Contracting priority for local small businesses

Section 15(d) of the Small Business Act (15 U.S.C. 644(d)) is amended— (1)by striking (d) For purposes and inserting the following: (d)

Contracting priorities

(1)

In general

For purposes ; and (2)by adding at the end the following: (2)

Disaster contracting priority in general

The Administrator shall designate any disaster area as an area of concentrated unemployment or underemployment, or a labor surplus area for purposes of paragraph (1). (3)

Local small businesses

(A)

In general

The Administrator shall give priority in the awarding of contracts and the placement of subcontracts for disaster relief to local small business concerns. (B)

Other agencies

The head of each executive agency shall give priority in the awarding of contracts and the placement of subcontracts for disaster relief to local small business concerns, by using, as appropriate— (i)preferential factors in evaluations of contract bids and proposals; (ii)competitions restricted to local small business concerns, where there is a reasonable expectation of receiving competitive, reasonably priced bids or proposals from not fewer than 2 local small business concerns; (iii)requirements of preference for local small business concerns in subcontracting plans; and (iv)assessments of liquidated damages and other contractual penalties, including contract termination. (C)

Other disaster assistance

Priority shall be given to local small business concerns in the awarding of contracts and the placement of subcontracts for disaster relief in any Federal procurement and any procurement by a State or local government made with Federal disaster assistance funds. (4)

Definitions

In this subsection— (A)the term declared disaster means Hurricane Katrina of 2005, Hurricane Rita of 2005, or any other disaster, as designated by the Administrator; (B)the term disaster area means any State or area affected by a declared disaster, as determined by the Administrator; (C)the term executive agency has the same meaning as in section 105 of title 5, United States Code; and (D)the term local small business concern means a small business concern that— (i)on the date immediately preceding the date on which a declared disaster occurred— (I)had a principal office in the disaster area for such declared disaster; and (II)employed a majority of the workforce of such small business concern in the disaster area for such declared disaster; and (ii)is capable of performing a substantial proportion of any contract or subcontract for disaster relief within the disaster area for such declared disaster, as determined by the Administrator. .

15.

Relief from test program

Section 711(d) of the Small Business Competitive Demonstration Program Act of 1988 (15 U.S.C. 644 note) is amended— (1)by striking The Program and inserting the following: (1)

In general

Except as provided in paragraph (2), the Program ; and (2)by adding at the end the following: (2)

Exception

The Program shall not apply to any contract related to relief or reconstruction from Hurricane Katrina of 2005 or Hurricane Rita of 2005. .