[Congressional Bills 115th Congress]
[From the U.S. Government Publishing Office]
[H.R. 6367 Engrossed in House (EH)]

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115th CONGRESS
  2d Session
                                H. R. 6367

_______________________________________________________________________

                                 AN ACT


 
  To amend the Small Business Act to specify what credit is given for 
certain subcontractors and to provide a dispute process for non-payment 
               to subcontractors, 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 ``Incentivizing Fairness in 
Subcontracting Act''.

SEC. 2. SMALL BUSINESS LOWER-TIER SUBCONTRACTING.

    Section 8(d) of the Small Business Act (15 U.S.C. 637(d)) is 
amended--
            (1) by amending paragraph (16) to read as follows:
            ``(16) Credit for certain small business concern 
        subcontractors.--
                    ``(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 single contract with the Federal 
                        agency, the prime contractor may elect to 
                        receive credit for small business concerns 
                        performing as first tier subcontractors or 
                        subcontractors at any tier pursuant to the 
                        subcontracting plans required under paragraph 
                        (6)(D) in an amount equal to the dollar value 
                        of work 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 count first tier subcontractors that 
                        are small business concerns.
                    ``(B) Collection and review of data on 
                subcontracting plans.--The head of each contracting 
                agency shall ensure that--
                            ``(i) the agency collects and reports data 
                        on the extent to which contractors of the 
                        agency meet the goals and objectives set forth 
                        in subcontracting plans submitted pursuant to 
                        this subsection; and
                            ``(ii) the agency periodically reviews data 
                        collected and reported pursuant to subparagraph 
                        (A) for the purpose of ensuring that such 
                        contractors comply in good faith with the 
                        requirements of this subsection and 
                        subcontracting plans submitted by the 
                        contractors pursuant to this subsection.
                    ``(C) Rule of construction.--Nothing in this 
                paragraph shall permit lower-tier subcontracting 
                goaling requirements of prime contractors that are 
                eligible to receive lower-tier subcontracting credit 
                under this paragraph.''; and
            (2) by adding at the end the following:
            ``(18) Dispute process for non-payment to subcontractors.--
                    ``(A) Notice to agency.--With respect to a contract 
                with a Federal agency, a subcontractor of a prime 
                contractor on such contract may, if the subcontractor 
                has not received payment for work performed within 90 
                days of the completion of such work, notify the Office 
                of Small and Disadvantaged Business Utilization 
                (`OSDBU') of the Federal agency and the prime 
                contractor of such lack of payment, if such notice is 
                provided to the agency within the 15-day period 
                following the end of such 90 days.
                    ``(B) Agency determination.--
                            ``(i) In general.--Upon receipt of a notice 
                        described under subparagraph (A), the OSDBU 
                        shall verify whether such lack of payment has 
                        occurred and determine whether such lack of 
                        payment is due to an undue restriction placed 
                        on the prime contractor by an action of the 
                        Federal agency.
                            ``(ii) Response during determination.--
                        During the period in which the OSDBU is making 
                        the determination under clause (i), the prime 
                        contractor may respond to both the 
                        subcontractor and the OSDBU with relevant 
                        verifying documentation to either prove payment 
                        or allowable status of nonpayment.
                    ``(C) Cure period.--If the OSDBU verifies the lack 
                of payment under subparagraph (B) and determines that 
                such lack of payment is not due to an action of the 
                Federal agency, the OSDBU shall notify the prime 
                contractor and provide the prime contractor with a 15-
                day period in which the prime contractor may make the 
                payment owed to the subcontractor.
                    ``(D) Result of nonpayment.--If, after notifying 
                the prime contractor under subparagraph (C), the OSDBU 
                determines that the prime contractor has not fully paid 
                the amount owed within the 15-day cure period described 
                under subparagraph (C), the OSDBU shall ensure that 
                such failure to pay is reflected in the Contractor 
                Performance Assessment Reporting system.''.

SEC. 3. MAINTENANCE OF RECORDS WITH RESPECT TO CREDIT UNDER A 
              SUBCONTRACTING PLAN.

    Section 8(d)(6) of the Small Business Act (15 U.S.C. 637(d)(6)) is 
amended--
            (1) by redesignating subparagraphs (G) and (H) as 
        subparagraphs (H) and (I), respectively; and
            (2) by inserting after subparagraph (F) the following:
            ``(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)(i);''.

            Passed the House of Representatives September 25, 2018.

            Attest:

                                                                 Clerk.
115th CONGRESS

  2d Session

                               H. R. 6367

_______________________________________________________________________

                                 AN ACT

  To amend the Small Business Act to specify what credit is given for 
certain subcontractors and to provide a dispute process for non-payment 
               to subcontractors, and for other purposes.