[Congressional Bills 111th Congress]
[From the U.S. Government Publishing Office]
[H.R. 4496 Introduced in House (IH)]

111th CONGRESS
  2d Session
                                H. R. 4496

   To ensure that small businesses have their fair share of Federal 
           procurement opportunities, and for other purposes.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                            January 21, 2010

 Mr. Graves (for himself, Mr. Bartlett, Mr. Luetkemeyer, Mr. Buchanan, 
  Mr. Akin, and Mr. Schock) introduced the following bill; which was 
  referred to the Committee on Small Business, and in addition to the 
Committees on Oversight and Government Reform and the Judiciary, for a 
 period to be subsequently determined by the Speaker, in each case for 
consideration of such provisions as fall within the jurisdiction of the 
                          committee concerned

_______________________________________________________________________

                                 A BILL


 
   To ensure that small businesses have their fair share of Federal 
           procurement opportunities, 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 ``Helping Small Business Compete Act 
of 2010''.

                     TITLE I--SMALL BUSINESS GOALS

SEC. 101. SMALL BUSINESS GOAL.

    Section 15(g)(1) of the Small Business Act (15 U.S.C. 644(g)(1)) is 
amended by striking ``23 percent'' and inserting ``25 percent''.

SEC. 102. AGENCY GOAL NEGOTIATION.

    (a) Negotiation.--Section 15(g)(1) of the Small Business Act (15 
U.S.C. 644(g)(1)) is amended by striking ``The President shall annually 
establish Government-wide goals for procurement contracts'' and 
inserting ``The President shall before the close of each fiscal year 
establish new Government-wide procurement goals for the following 
fiscal year for procurement contracts.''.
    (b) Minimum Level.--Section 15(g)(1) of the Small Business Act (15 
U.S.C. 644(g)(1)) is amended by striking ``Notwithstanding the 
Government-wide goal, each agency shall have an annual goal'' and 
inserting ``Each agency shall have an annual goal, not lower than the 
Government-wide goal,''.

SEC. 103. PROCEDURES AND METHODS FOR GOAL ACHIEVEMENT.

    (a) Goal Responsibility.--Section 15(g)(2) of the Small Business 
Act (15 U.S.C. 644(g)(2)) is amended by adding the following after the 
first sentence: ``The goals established by the head of each agency 
shall be apportioned within the agency to a contracting office or 
offices (as that term is defined in section 2.101 of title 48, Code of 
Federal Regulations on January 1, 2009) that reports to a career 
appointee in the Senior Executive Service.''.
    (b) Senior Executive Service.--
            (1) Purposes.--Section 3131 of title 5, United States Code, 
        is amended by adding at the end the following:
            ``(15) ensure that the Government achieves the small 
        business procurement goals set forth in section 15 of the Small 
        Business Act (15 U.S.C. 644).''.
            (2) Training.--Section 3396(a) of title 5, United States 
        Code, is amended by adding at the end the following: ``The 
        training provided to senior executives shall include federal 
        procurement policy, including the procurement provisions of the 
        Small Business Act.''.
            (3) Limitation on sabbaticals.--Section 3396(c)(2) of title 
        5, United States Code--
                    (A) by striking the ``and'' at the end semi-colon 
                at the end of subparagraph (B)(iii);
                    (B) by striking the period at the end of 
                subparagraph (C), and adding ``; or''; and
                    (C) by adding at the end the following:
                    ``(D) who oversees a contracting office that did 
                not meet its small business procurement goals 
                established annually in accordance with the procedures 
                of section 15(g)(2) of the Small Business Act (15 
                U.S.C. 644(g)(2)).''.
            (4) Limitation on incentive awards.--An employee in the 
        Senior Executive Service shall not be eligible for any 
        incentive award specified in subchapter I, chapter 45 of title 
        5, United States Code, if the contracting office which reports 
        to that member of the Senior Executive Service fails to meet 
        the procurement goals established annually in accordance with 
        the procedures of section 15(g)(2) of the Small Business Act 
        (15 U.S.C. 644(g)(2)). Any member of the Senior Executive 
        Service, whether career or non-career, to whom that member of 
        the Senior Executive Service reports also shall not be eligible 
        for any incentive award specified in subchapter I, chapter 45 
        of title 5, United States Code.

SEC. 104. REPORTING REQUIREMENTS.

    Section 15(h) of the Small Business Act (15 U.S.C. 644(h)) is 
amended by adding the following:
            ``(4) By November 1 of each year, the head of each Federal 
        agency shall submit to Congress a report specifying the 
        percentage of contracts awarded by that agency for the 
        immediate preceding fiscal year that were awarded to small 
        business concerns. If the percentage is less than the goal 
        established by the head of the agency pursuant to this section, 
        the head of the agency shall, in the report, explain why the 
        agency did not reach the goal and what will be done to ensure 
        that the goal for the following fiscal year will be 
        achieved.''.

                      TITLE II--CONTRACT BUNDLING

SEC. 201. DEFINITIONS OF BUNDLING OF CONTRACT REQUIREMENTS.

    Section 3(o) of the Small Business Act (15 U.S.C. 632(o)) is 
amended to read as follows:
    ``(o) Definitions of Bundling of Contract Requirements and Related 
Terms.--For purposes of this Act:
            ``(1) Bundled contract.--
                    ``(A) In general.--The term `bundled contract' 
                means a contract or order that is entered into to meet 
                procurement requirements that are consolidated in a 
                bundling of contract requirements, without regard to 
                its designation by the procuring agency or whether a 
                study of the effects of the solicitation on civilian or 
                military personnel has been made.
                    ``(B) Exceptions.--The term does not include--
                            ``(i) a contract or order with an aggregate 
                        dollar value below the dollar threshold 
                        specified in paragraph (4); or
                            ``(ii) a contract or order that is entered 
                        into to meet procurement requirements, all of 
                        which are exempted requirements under paragraph 
                        (5).
            ``(2) Bundling of contract requirements.--
                    ``(A) In general.--The term `bundling of contract 
                requirements' means the use of any bundling methodology 
                to satisfy 2 or more procurement requirements for new 
                or existing goods or services, including any 
                construction services, that is likely to be unsuitable 
                for award to a small business concern due to--
                            ``(i) the diversity, size or specialized 
                        nature of the elements of the performance 
                        specified;
                            ``(ii) the aggregate dollar value of the 
                        anticipated award;
                            ``(iii) the geographical dispersion of the 
                        contract or order performance; or
                            ``(iv) any combination of the factors 
                        described in clauses (i), (ii), or (iii).
                    ``(B) Exceptions.--The term does not include--
                            ``(i) the use of a bundling methodology for 
                        an anticipated award with an aggregate dollar 
                        value below the threshold specified in 
                        paragraph (4); or
                            ``(ii) the use of a bundling methodology to 
                        meet procurement requirements, all of which are 
                        exempted under paragraph (5).
            ``(3) Bundling methodology.--The term `bundling 
        methodology' means--
                    ``(A) a solicitation to obtain offers for a single 
                contract or order, or a multiple award contract or 
                order;
                    ``(B) a solicitation of offers for the issuance of 
                a task or a delivery order under an existing single or 
                multiple award contract or order; or
                    ``(C) the creation of any new procurement 
                requirements that permits a consolidation of contract 
                or order requirements.
            ``(4) Dollar threshold.--The term `dollar threshold' 
        means--
                    ``(A) $65,000,000 if solely for construction 
                services; and
                    ``(B) $1,500,000 in all other cases.
            ``(5) Exempted requirements.--The term `exempted 
        requirement' means one or more of the following:
                    ``(A) A procurement requirement solely for items 
                that are not commercial items (as the term `commercial 
                item' is defined in section 4(12) of the Office of 
                Federal Procurement Policy Act (41 U.S.C. 403(12)) but 
                this subparagraph shall not apply to any procurement 
                requirement for a contract for goods or services 
                provided by a business classified in sector 23 of the 
                North American Industrial Classification System.
                    ``(B) A procurement requirement with respect to 
                which a determination that it is unsuitable for award 
                to a small business concern previously been made by the 
                agency. However, the Administrator shall have authority 
                to review and reverse such a determination for purposes 
                of this paragraph and, if the Administrator does 
                reverse that determination, the term `exempted 
                requirement' shall not apply to that procurement 
                requirement.
            ``(6) Procurement requirement.--The term `procurement 
        requirement' means a determination by an agency that a 
        specified good or service is needed to satisfy the mission of 
        the agency.''.

SEC. 202. JUSTIFICATION.

    (a) Statement of Bundled Contract Requirements.--Section 15(a) of 
the Small Business Act (15 U.S.C. 644(a)) is amended--
            (1) by striking ``is in quantity or estimated dollar value 
        the magnitude of which renders small business prime contract 
        participation unlikely'' and inserting ``would now be combined 
        with other requirements for goods and services'';
            (2) by striking ``(2) why delivery schedules'' and 
        inserting ``(2) the names, addresses and size of the incumbent 
        contract holders, if applicable; (3) a description of the 
        industries that might be interested in bidding on the contract 
        requirements; (4) the number of small businesses listed in the 
        industry categories that could be excluded from future bidding 
        if the contract is combined or packaged, including any small 
        business bidders that had bid on previous procurement 
        requirements that are included in the bundling of contract 
        requirements; (5) why delivery schedules'';
            (3) by striking ``(3) why the proposed acquisition'' and 
        inserting ``(6) why the proposed acquisition'';
            (4) by striking ``(4) why construction'' and inserting 
        ``(7) why construction'';
            (5) by striking ``(5) why the agency'' and inserting ``(8) 
        why the agency'';
            (6) by striking ``justified'' and inserting ``justified. 
        The statement also shall set forth the proposed procurement 
        strategy required by subsection (e) and, if applicable, the 
        specifications required by subsection (e)(3). Concurrently, the 
        statement shall be made available to the public, including 
        through dissemination in the Federal contracting opportunities 
        database.''; and
            (7) by inserting after ``prime contracting opportunities.'' 
        the following: ``If no notification of the procurement and 
        accompanying statement is received, but the Administrator 
        determines that there is cause to believe the contract combines 
        requirements or a contract (single or multiple award) or task 
        or delivery order for construction services or includes 
        unjustified bundling, then the Administrator can demand that 
        such a statement of work goods or services be completed by the 
        procurement activity and sent to the Procurement Center 
        Representative and the solicitation process postponed for at 
        least 10 days but no more than 30 days to allow the 
        Administrator to review the statement and make recommendations 
        as described in this section before procurement is 
        continued.''.
    (b) Substantial Measurable Benefits.--Section 15(e) of the Small 
Business Act (15 U.S.C. 644(e)) is amended by adding at the end of 
subparagraph (2)(C), the following: ``Cost savings shall not include 
any reduction in the in the use of military interdepartmental purchase 
requests or any similar transfer funds among federal agencies for the 
use of a contract issued by another federal agency.''.

SEC. 203. APPEALS.

    Section 15(a) of the Small Business Act (15 U.S.C. 644(a)) is 
amended--
            (1) by striking ``If a proposed procurement includes in its 
        statement'' and inserting ``If a proposed procurement would 
        adversely affect one or more small business concerns, 
        including, but not limited to, the potential loss of an 
        existing contract, or if a proposed procurement includes in its 
        statement''; and
            (2) by inserting before ``Whenever the Administrator and 
        the contracting procurement agency fail to agree,'' the 
        following: ``If a small business concern would be adversely 
        affected, directly or indirectly, by the procurement as 
        proposed, and that small business concern or a trade 
        association of which that small business concern is a member so 
        requests, the Administrator may, take action to further the 
        interests of the small business.''.

SEC. 204. THIRD-PARTY REVIEW.

    Section 8(d) of the Contract Disputes Act of 1978 (41 U.S.C. 
607(d)) is amended--
            (1) by striking ``(d) The Armed Services Board'' and 
        inserting ``(d)(1) The Armed Services Board''; and
            (2) by inserting at the end the following:
    ``(2) Contract Bundling.--
            ``(A) In general.--Whenever the head of a contracting 
        agency makes a decision in accordance with section 15(a) of the 
        Small Business Act concerning the Administrator of the Small 
        Business Administration's challenge to a bundling of contract 
        requirements, the Administrator, within ten days after such 
        decision may file a challenge with the appropriate agency board 
        of contract appeals.
            ``(B) Procedure.--The board shall provide the Administrator 
        and the head of the contracting agency the opportunity to 
        provide their views on the disputed contract. No oral testimony 
        or oral argument shall be permitted. The board shall render its 
        decision within thirty days after the appeal has been filed. 
        The decision of the board shall be final.''.

               TITLE III-- SMALL BUSINESS SUBCONTRACTING

SEC. 301. GOOD FAITH COMPLIANCE WITH SUBCONTRACTING PLANS.

    Section 8(d)(10) of the Small Business Act (15 U.S.C. 637(d)(10)) 
is amended by--
            (1) by striking ``and'' at the end of subparagraph (B);
            (2) by striking the period at the end of subparagraph (C), 
        and inserting ``; and''; and
            (3) by adding at the end the following:
                    ``(D) Not later than 180 days after enactment of 
                this Act, the Administrator shall, after the 
                opportunity for notice and comment, promulgate 
                regulations governing the Administrator's review of 
                subcontracting plans including the standards for 
                determining good faith compliance with the 
                subcontracting plans.''.

SEC. 302. LIMITATIONS ON SUBCONTRACTING.

    (a) Regulations for Contract Administration.--Section 15(o) of the 
Small Business Act (15 U.S.C. 644(o)) is amended by adding at the end 
the following:
            ``(4) Not later than 180 days after enactment of this Act, 
        the Administrator shall, after the opportunity for notice and 
        comment, promulgate regulations that specify the 
        responsibilities that each agency and the Administration 
        personnel will have in enforcing the restrictions set forth in 
        paragraph (1). Such regulations also shall specify reporting 
        and recordkeeping requirements for contracts covered by 
        paragraph (1).''.
    (b) Contractor Penalties.--Section 16 of the Small Business Act (15 
U.S.C. 645) is amended by adding at the end the following:
    ``(g) A small business that violates the requirements of section 
15(o)(1) of the Small Business Act shall be subject to the penalties 
set forth in subsection (d).''.

SEC. 303. CRIMINAL VIOLATIONS.

    Section 1001(a) of title 18, United States Code, is amended--
            (1) in paragraph (2) by striking the ``or'' at the end;
            (2) in paragraph (3) by adding ``or'' at the end;
            (3) inserting after paragraph (3) the following:
            ``(4) makes in writing or electronically a false statement 
        concerning status as a small business concern or compliance 
        with the requirements of the Small Business Act in an effort to 
        obtain, retain, or complete a federal government contract;''; 
        and
            (4) by adding at the end the following: ``For violation of 
        paragraph (4) of this subsection, notwithstanding section 
        3571(e), the fine under this title shall be the total value of 
        the contract or $1,000,000 whichever is greater.''.
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