118 S4750 IS: Ensuring Efficiency and Fairness in Federal Subcontracting Act of 2024
U.S. Senate
2024-07-23
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II
118th CONGRESS
2d Session
S. 4750
IN THE SENATE OF THE UNITED STATES
July 23, 2024
Mr. Casey introduced the following bill; which was read twice and referred to the Committee on Homeland Security and Governmental Affairs
A BILL
To ensure efficiency and fairness in Federal subcontracting, and for other purposes.
1.

Short title
This Act may be cited as the “Ensuring Efficiency and Fairness in Federal Subcontracting Act of 2024”.
2.

Definitions
In this Act:
(1)

Appropriate congressional committees
The term appropriate congressional committees means—
(A)
the Committee on Homeland Security and Governmental Affairs of the Senate; and
(B)
the Committee on Oversight and Accountability of the House of Representatives.
(2)

Executive agency
The term executive agency has the meaning given the term in section 133 of title 41, United States Code.
3.

Comptroller general report on small business utilization in Federal contracting
Not later than 180 days after the date of the enactment of this Act, the Comptroller General of the United States shall submit to the appropriate congressional committees the results of a study on how small business utilization by prime contractors can be better monitored on the largest and longest Federal contracts, including Indefinite Delivery, Indefinite Quantity (IDIQ) contracts and Government-wide Acquisition Contracts (GWACs), with any further relevant contract types to be determined by the Comptroller General.
4.

Requirement to notify subcontractors of contract status
Not later than 18 months after the date of the enactment of this Act, the Federal Acquisition Regulatory Council shall revise the Federal Acquisition Regulation—
(1)
to require prime contractors on Federal contracts to provide to a subcontractor named in a subcontracting plan of the prime contractor, within 30 days of a request from such subcontractor, notification of the status of the contract, including information such as whether the prime contractor has received any task orders or executed other work under the contract;
(2)
to provide a means by which a subcontractor who has made a request described in paragraph (1) and not received a response within 30 days to report the request and delayed response to the contracting officer;
(3)
to require a contracting officer receiving a notification described in paragraph (2) to document the incident and consider the information in the small business subcontracting factor of the performance assessment for the prime contractor; and
(4)
to require offerors for a task or delivery order on a contract for which a subcontracting plan is required to provide information in the proposal about how the offeror's proposed small business utilization for the task or delivery order aligns with the overall contract’s small business subcontracting plan.
5.

Study on strengthening enforcement provisions designed to protect subcontractors
The Attorney General, in consultation with the Administrator of General Services, the Administrator of the Small Business Administration, and the Administrator for Federal Procurement Policy, shall conduct a study on ways to strengthen enforcement mechanisms for compliance with subcontracting plans in accordance with section 19.705–7 of title 48, Code of Federal Regulations, including exploring the need for an alternative complaint route for subcontractors that have experienced serious issues as a result of the prime contractor or a subcontractor at any tier under the contract failing to make a good faith effort, as outlined in such section and section 125.3 of title 13, Code of Federal Regulations.
6.

Comptroller General study on utilization of Contractor Performance Assessment Reporting System (CPARS) data to assess relationships between prime and subcontractors
(a)

In general
Not later than 180 days after the date of the enactment of this Act, the Comptroller General of the United States shall submit to the appropriate congressional committees the results of a study on how CPARS could be utilized as a means of gauging relationships between prime and subcontractors.
(b)

Elements
The study required under subsection (a) shall focus on the following matters:
(1)
An examination of how adverse experiences of subcontractors are or are not translated into lower CPARS scores.
(2)
An assessment of whether lower CPARS scores impact the ability of prime contractors to secure Federal contracts and options in source selection, including an examination of the weighting of the subcontracting score relative to other components of the CPARS.
(3)
An assessment of whether the timing of scoring within contracts is such that it incentivizes the best possible small business utilization and interaction between prime and subcontractors.
7.

Penalties for failure to meet small business utilization goals
Not later than 18 months after the date of the enactment of this Act, the Federal Acquisition Regulatory Council shall revise the Federal Acquisition Regulation to allow agencies to incorporate into their incentive contracts with prime contractors a condition that—
(1)
if the rate of small business utilization for the contract is less than 50 percent of the utilization level prescribed in the subcontracting plan, the prime contractor shall not be eligible to receive a performance-based incentive fee with respect to the contract; and
(2)
if the rate of small business utilization at any stage of an incentive contract is less than 75 percent of the utilization level prescribed for such stage in the subcontracting plan, the prime contractor may receive a warning letter from the contracting officer for the contract noting the shortfall and potential loss of incentive fees.
8.

Outreach to small business contractors
Not later than 180 days after the date of the enactment of this Act, the Director of the Office of Management and Budget shall issue guidance to the heads of executive agencies on measures they should take to improve small business outreach and improve awareness of subcontracting opportunities, including webinars, online engagements, and other innovative methods of outreach, and hosting at least two general outreach sessions per year for potential small business contractors and one outreach session per year for each of the following groups:
(1)
Small business concerns owned and controlled by veterans and small business concerns owned and controlled by service-disabled veterans (as those terms are defined in section 3(q) of the Small Business Act (15 U.S.C. 632(q))).
(2)
Qualified HUBZone small business concerns (as defined in section 3(p) of such Act (15 U.S.C. 632(p))).
(3)
Socially and economically disadvantaged small business concerns (as defined in section 8(a)(4)(A) of such Act (15 U.S.C. 637(a)(4)(A))).
(4)
Small business concerns owned and controlled by women (as defined in section 3(n) of such Act (15 U.S.C. 632(n))).
9.

Improvements to the electronic subcontracting reporting system
(a)

In general
Not later than one year after the date of the enactment of this Act, the Administrator of General Services shall develop and include as part of the General Services Administration’s strategic information resources management plan required under section 3506(b)(2) of title 44, United States Code, a plan to modernize the Electronic Subcontracting Reporting System (eSRS).
(b)

Elements
The modernization plan required under subsection (a) shall include—
(1)
steps that the General Services Administration intends to make toward updating and modernizing eSRS;
(2)
an assessment of the capacity of the agency to operate and maintain an updated system;
(3)
the estimated cost and sources of funding required to execute this plan; and
(4)
a description of the additional resources and staffing that is necessary to carrying out the plan.
(c)

Submission to Congress
Not later than 30 days after the date on which the General Services Administration’s strategic information resources management plan is updated pursuant to subsection (a), the Administrator of General Services shall submit the plan to modernize eSRS described in such subsection.