[House Hearing, 114 Congress]
[From the U.S. Government Publishing Office]




   CONTRACTING AND THE INDUSTRIAL BASE II: BUNDLING, GOALING AND THE 
                     OFFICE OF HEARINGS AND APPEALS

=======================================================================

          
                               HEARING

                               before the

               SUBCOMMITTEE ON CONTRACTING AND WORKFORCE

                                 OF THE

                      COMMITTEE ON SMALL BUSINESS
                      
                             UNITED STATES
                             
                        HOUSE OF REPRESENTATIVES

                    ONE HUNDRED FOURTEENTH CONGRESS

                             FIRST SESSION

                               __________

                              HEARING HELD
                              
                             MARCH 17, 2015

                               __________

                            [GRAPHIC] [TIFF OMITTED] 
                               

            Small Business Committee Document Number 114-005
            
              Available via the GPO Website: www.fdsys.gov
              
              
                                  ______
  
                     U.S. GOVERNMENT PUBLISHING OFFICE 

93-731 PDF                   WASHINGTON : 2015 
-----------------------------------------------------------------------
  For sale by the Superintendent of Documents, U.S. Government Publishing 
  Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; 
         DC area (202) 512-1800 Fax: (202) 512-2104 Mail: Stop IDCC, 
                          Washington, DC 20402-0001 
                          
              
                   HOUSE COMMITTEE ON SMALL BUSINESS

                      STEVE CHABOT, Ohio, Chairman
                            STEVE KING, Iowa
                      BLAINE LUETKEMEYER, Missouri
                        RICHARD HANNA, New York
                         TIM HUELSKAMP, Kansas
                        TOM RICE, South Carolina
                         CHRIS GIBSON, New York
                          DAVE BRAT, Virginia
             AUMUA AMATA COLEMAN RADEWAGEN, American Samoa
                        STEVE KNIGHT, California
                        CARLOS CURBELO, Florida
                          MIKE BOST, Illinois
                         CRESENT HARDY, Nevada
               NYDIA VELAZQUEZ, New York, Ranking Member
                        YVETTE CLARKE, New York
                          JUDY CHU, California
                        JANICE HAHN, California
                     DONALD PAYNE, JR., New Jersey
                          GRACE MENG, New York
                       BRENDA LAWRENCE, Michigan
                       ALMA ADAMS, North Carolina
                      SETH MOULTON, Massachusetts
                           MARK TAKAI, Hawaii

                   Kevin Fitzpatrick, Staff Director
            Stephen Dennis, Deputy Staff Director for Policy
            Jan Oliver, Deputy Staff Director for Operation
                      Barry Pineles, Chief Counsel
                  Michael Day, Minority Staff Director
                  
                            C O N T E N T S

                           OPENING STATEMENTS

                                                                   Page
Hon. Richard Hanna...............................................     1
Hon. Nydia Velazquez.............................................     2

                               WITNESSES

Mr. Joe Wynn, President, VETS Group, Inc., Washington, DC, 
  testifying on behalf of VET-Force..............................     4
Mr. Robert Burton, Partner, Venable LLP, Washington, DC..........     5
Mr. Alan Chvotkin, Executive Vice President & Counsel, 
  Professional Services Council, Arlington, VA...................     7
Mr. Damien Specht, Partner, Jenner & Block LLP, Washington, DC...     9

                                APPENDIX

Prepared Statements:
    Mr. Joe Wynn, President, VETS Group, Inc., Washington, DC, 
      testifying on behalf of VET-Force..........................    24
    Mr. Robert Burton, Partner, Venable LLP, Washington, DC......    31
    Mr. Alan Chvotkin, Executive Vice President & Counsel, 
      Professional Services Council, Arlington, VA...............    45
    Mr. Damien Specht, Partner, Jenner & Block LLP, Washington, 
      DC.........................................................    52
Questions for the Record:
    None.
Answers for the Record:
    None.
Additional Material for the Record:
    National Office Products Alliance (NOPA).....................    59

 
   CONTRACTING AND THE INDUSTRIAL BASE II: BUNDLING, GOALING AND THE 
                     OFFICE OF HEARINGS AND APPEALS

                              ----------                              


                        TUESDAY, MARCH 17, 2015

                  House of Representatives,
               Committee on Small Business,
         Subcommittee on Contracting and Workforce,
                                                    Washington, DC.
    The Subcommittee met, pursuant to call, at 10:00 a.m., in 
Room 2360, Rayburn House Office Building. Hon. Richard Hanna 
[chairman of the subcommittee] presiding.
    Present: Representatives Hanna, Knight, Curbelo, Hardy, 
Velazquez, Chu, Meng, and Lawrence.
    Chairman HANNA. Good morning, everyone. I call this hearing 
to order. Happy St. Patrick's Day.
    This is our first Subcommittee on Contracting and Workforce 
of the 114th Congress. I am happy to welcome Ranking Member 
Nydia Velazquez. I am sure we are going to do important work 
together in the next couple of years.
    As Chairman Chabot stated in his hearing of February 12, 
2015, having a healthy small business and industrial base means 
that taxpayers benefit from increased competition, innovation, 
and job creation. However, the testimony received by the 
Committee last month indicates that our small business 
technological and industrial base is at risk. With the 
percentage of prime contracting dollars awarded to small 
businesses is increasing, the number of small businesses 
seeking contracts with the Federal Government has fallen by 
over 100,000 since 2012. In the past four years, the number of 
contract actions with small businesses has fallen by 60 
percent, and at the Department of Defense, the number of 
contract actions fell by almost 70 percent. The size and 
average of individual small contract actions increased by 230 
percent during that same period and nearly 290 percent at the 
DoD. The percentage of subcontracted work going to small 
businesses has also fallen by nearly 2.5 percent. All of this 
data indicates that small businesses are at risk; yet the Small 
Business Administration gave the Federal Government--and this 
is a mystery--an A on its latest small business procurement 
scorecard.
    Today, we will examine how the government can be receiving 
a superlative grade when half of the dollar-base goals are not 
met, bundling and consolidation are increasing, small business 
subcontracting is decreasing, and size standards are being 
manipulated.
    Today's witnesses are going to address specific 
recommendations to improve the competitive viability of our 
small business contractors. This is the second of a series of 
hearings we will be having on this topic--we will be back here 
in a couple of days, on Thursday. I expect that as a result of 
the testimony received today, the Subcommittee will actively 
pursue ways to increase opportunities for small businesses to 
compete for contracts.
    I look forward to working with each of you and hearing your 
testimony. I now yield to Ranking Member Velazquez.
    Ms. VELAZQUEZ. Thank you, Mr. Chairman, for holding this 
valuable hearing.
    As this committee seeks ways to foster small business 
growth and expansion, we must always carefully consider what is 
being done to maximize entrepreneurs' participation in the 
federal marketplace. As we all know, when small companies are 
awarded federal contracts, the result is a win-win. Small 
businesses provide quality goods and services at affordable 
prices, meaning a better deal for the government and the 
taxpayer. At the same time, it can mean significant growth 
opportunity for small businesses and even the need to hire new 
employees. With these benefits in mind, Congress, and this 
committee in particular, have long worked to ensure small 
businesses receive their fair share of federal contracts.
    There has been some progress in this regard. In Fiscal Year 
2013, the federal government finally met its statutory goal of 
providing 23 percent of federal contracting dollars to small 
enterprises. For Fiscal Year 2014, it appears as much as 25 
percent of federal contracting dollars may flow to small 
companies.
    While this represents an improvement over previous years 
when these goals were not met, much work remains. For example, 
there continue to be reports of ineligible businesses receiving 
small business contracting dollars. Additionally, the 
scorecards issued by the Small Business Administration have 
been questioned as agencies continue to receive high grades 
despite failing to meet all of their small business goals.
    With budgets, time, and spending reduced due to the ill-
advised policy of sequestration, there are simply fewer 
procurement actions to go around. This means it is more 
important than ever that agencies are doing everything possible 
to ensure legitimate small companies can tap into suitable 
federal business opportunities.
    One longstanding barrier to small business participation in 
the federal marketplace has been the practice of contract 
bundling. When federal agencies group smaller procurement 
actions together, they reduce competition by making projects 
too large for small companies to bid on. Publicly available 
data suggests that for every $100 worth of federal work that is 
bundled, small firms lose $33 in revenue.
    Unfortunately, this practice is widespread. In Fiscal Year 
2013, it was estimated that over $107 billion was awarded 
through consolidated or bundled contracts. That means small 
companies missed out on $35 billion worth of contracting 
opportunity.
    Considering the prevalence of this problem, it is vital we 
ensure the SBA is doing everything possible to prevent 
unnecessary bundling. This raises a number of important 
oversight questions for the committee, including whether the 
SBA has sufficient staff to monitor contracting actions and 
whether the agency is aggressive enough in challenging bundled 
contracts. Given how few contracts have been unbundled, the 
answer to both these questions would appear to be no.
    Today's hearing will also touch on the jurisdiction of the 
SBA's Office of Hearing and Appeals. This office has been 
integral to ensuring only legitimate firms receive small 
business contracts. However, the office, like many other parts 
of the agency, remains understaffed, and it is unclear how this 
will affect their caseload.
    Mr. Chairman, with overall government expenditures 
declining, the pool of contracts for small businesses to bid on 
will only further shrink in coming years. Given this 
phenomenon, it is all the more critical that this committee and 
the SBA work to remove barriers that prevent small firms from 
bidding on federal contracts.
    I look forward to hearing the witnesses' perspectives on 
how we can best accomplish that task. I yield back the balance 
of my time, but first I would like to take a moment to say to 
all of you, thank you for being here.
    Chairman HANNA. Our first witness today is Joe Wynn, the 
president of VETS Group, a nonprofit organization that provides 
entrepreneurial education, federal procurement training, 
employment assistance, and other supportive services primarily 
for veterans, people with disabilities, and people with limited 
means. He is testifying on behalf of the Veterans Entrepreneurs 
Task Force, also known as VET-Force, which is composed of over 
200 organizations and affiliates representing thousands of 
veterans throughout the United States and which monitor the 
impact of legislation on the veterans' procurement programs.
    Sitting next to him is Rob Burton, a partner with Venable, 
LLP. Mr. Burton is a former deputy administrator for federal 
procurement property policy. He has also spent over 20 years as 
senior acquisition attorney with the Department of Defense.
    Our third witness is Alan Chvotkin, executive vice 
president and counsel for the Professional Services Council. 
Mr. Chvotkin previously served as counsel and staff director to 
the Senate Small Business Committee and counsel to the Senate 
Armed Services Committee.
    I yield to Ranking Member Velazquez to introduce our fourth 
witness.
    Ms. VELAZQUEZ. Thank you, Mr. Chairman.
    It is my pleasure to introduce to the committee Mr. Damien 
Specht. He is a partner at Jenner and Block, LLP, here in 
Washington, D.C., where he represents clients in all facets of 
government contracting matters and is the co-chair of the 
firm's Government Contracts Corporate Transactions Group. 
Additionally, he serves as a co-chair of the ABA's Small 
Business and Other Social Economic Programs Committee and has 
been a speaker and an author on numerous small business topics. 
He was also named a Washington, D.C. Super Lawyer Rising Star 
for Government Contracts in 2014. Thank you for being here.
    Chairman HANNA. Mr. Wynn, five minutes. We want to hear 
what you have to say, so we will be lenient, but you know how 
it works, so go ahead. Thank you.

  STATEMENTS OF JOE WYNN, PRESIDENT, VETS GROUP, INC.; ROBERT 
 BURTON, PARTNER, VENABLE, LLP; ALAN CHVOTKIN, EXECUTIVE VICE 
 PRESIDENT AND COUNSEL, PROFESSIONAL SERVICES COUNCIL; DAMIEN 
                SPECHT, PARTNER, JENNER & BLOCK

                     STATEMENT OF JOE WYNN

    Mr. WYNN. Thank you. Good morning, Chairman Hanna, Ranking 
Member Velazquez. On behalf of VET-Force, VVA, and myself as an 
Air Force veteran, I want to thank you for the opportunity to 
appear before you here today.
    Over the years, VET-Force has been voluntarily conducting 
oversight of the legislation regulations policies programs 
intended to improve and increase the contract opportunities for 
veteran-owned businesses. When we come to know what is not 
working, we do not hesitate to bring that to the attention of 
the military departments, federal agencies, or to you, the 
members of Congress. Through VET-Force, we have also come to 
know that the federal small business procurement process is not 
only unkind to businesses owned by veterans, but is negatively 
impacting all small business groups--8(a), HUBZone, women-owned 
as well.
    In my testimony here today, I will highlight the impact of 
federal contract bundling and consolidation through the use of 
federal strategic sourcing initiatives on veteran and other 
small businesses.
    Many small businesses are struggling in the federal 
marketplace. New U.S. trade policies and changes in how 
contracts are competed and awarded have made it more difficult 
for small businesses to compete against and work with large 
prime contractors. In recent years, the government has been 
actively promoting the use of federal strategic sourcing 
initiatives in an effort to consolidate procurements. However, 
to us, the small business owner, federal strategic sourcing 
initiatives is just a more clever way of contracted bundling.
    VET-Force is concerned that by relying so heavily on a few 
large prime contractors, our country makes itself vulnerable to 
a catastrophic interruption in services and a lack of 
competitiveness, innovation, and imagination that small 
businesses provide. All federal agencies are supposed to 
identify if a contract is bundled or consolidated. There is a 
dollar threshold per agency, and certain criteria used to make 
this determination, and achieving reductions in administrative 
or personnel costs alone is not enough.
    In addition, there should be an assessment done to 
determine the impact on small businesses, but who within the 
procurement process actually makes this determination, and once 
determined, what happens? Agencies are required to provide the 
SBA's procurement center representative (PCR) and the agencies' 
own OSDBU with a statement explaining why the procurement has 
to be bundled. If the PCR objects to the agency's rationale, 
the PCR can delay the procurement while SBA and the agency 
negotiate, although the agency will ultimately make the 
decision whether to move forward with the procurement as is or 
change the requirements. This process of checking the 
requirements by the PCR is not only flawed but by the mere fact 
that SBA has decreased the number of PCRs to about 50, it is 
highly unlikely that these few persons will be able to review 
thousands of procurements throughout the entire federal 
government.
    For years, administrations have attempted to streamline its 
policies in an effort to reduce costs and save taxpayer 
dollars. Reducing government employees has been one method that 
has been used a lot. In the 1990s, an estimated 15,000 
government procurement positions were eliminated.
    So where then are we headed with federal strategic sourcing 
initiatives? While the policy may be endorsed and promoted by 
OMB and this and previous administrations, what has been and 
will continue to be the adverse impact on small businesses?
    GSA, for example, has several strategic sourcing vehicles 
that it uses. It awarded in one the janitorial sanitation 
supply vehicle, 18 companies, 15 of which were very small 
businesses. However, these services were previously provided by 
609 companies, 540 of which were small businesses. So that 
means that 525 small businesses will no longer be allowed to 
compete for federal contracts for janitorial services and 
supplies. They have other contracts that work similarly in 
fashion and are displacing many, many small businesses.
    Finally, small business competing for government contracts 
find themselves at a disadvantage in the federal marketplace 
and appear to be losing ground all the time. Large contractors 
have been awarded most of the bundled contracts with little to 
no repercussions for not including small companies in their 
subcontracting plans, and under federal strategic sourcing 
initiatives, yeah, a few small businesses will no doubt grow 
and prosper if they are one of the lucky few selected, but it 
is clear to see just from the math that there is definitely an 
adverse impact to far more small businesses. What about really 
cutting costs and boosting growth among the majority of our 
nation's small business taxpayers and their families and not 
just for a few in this entity called the government. Let us 
secure our industrial base and the future of America.
    This concludes my statement, and I hope that I can answer 
any questions that you may have.
    Chairman HANNA. Thank you, Mr. Wynn.
    Mr. Burton, you may begin.

                   STATEMENT OF ROBERT BURTON

    Mr. BURTON. Chairman Hanna, Ranking Member Velazquez, and 
members of the Subcommittee, I appreciate the opportunity to 
testify today and discuss the growing decline of small business 
participation and federal procurements. Specifically, I would 
like to address the need to strengthen the federal contract 
consolidation and bundling regulations and provide several 
other recommendations for protecting small business interests 
and federal procurements.
    First, let me turn to the consolidation and bundling 
regulations. These regulations were designed to protect small 
businesses, but in practice, agencies have failed to fully 
implement and comply with these important regulations. For 
example, agencies are required to (1) provide a written 
determination that the use of a bundled or consolidated 
contract is justified, (2) report to SBA on the usage of 
bundled contracts, and (3) publicize or post the justifications 
for bundled procurements in a timely fashion.
    Unfortunately, in the wake of a significant increase in 
consolidated and bundled contracts in the U.S. government, 
agencies have routinely failed to follow these basic 
requirements. Moreover, there are currently no regulatory 
requirements to post the written justifications for 
consolidated contracts or report data on consolidated 
contracts. The posting and reporting requirements are limited 
to only bundled contracts.
    Consequently, in my opinion, agencies are inclined to use 
consolidated contracts and are reluctant to ever categorize a 
consolidated procurement as a bundled contract, which is 
defined by the Small Business Act as a type of consolidated 
contract that is likely to be unsuitable for award to a small 
business. Consolidated contracts are generally suitable for 
award to small businesses, but there is little transparency 
into the growing number of these procurements. For example, on 
several occasions, I have submitted a Freedom of Information 
Act request on behalf of small business clients for the written 
justification supporting the use of consolidated contracts, 
only to find that the justifications do not exist. It is 
imperative that agencies comply with the requirement for 
written justifications, and that the justifications be 
publicized and posted on agency websites. Offerors, including 
small businesses, need advance notice of a contract that will 
be bundled or consolidated. This is critical because an offeror 
may only challenge and justify bundling and consolidation at 
the GAO prior to contract award. Therefore, agencies should 
post their justifications for both bundled and consolidated 
contracts concurrent with or prior to the release of the 
solicitations. Simply put, an agency's failure to timely 
publicize the written justifications preclude small businesses 
from challenging consolidated procurements.
    To further strengthen small business participation in 
federal procurements, I recommend that SBA reports more 
thoroughly on the impact bundling and consolidation on the 
small business industrial base by aligning SBA's scorecard 
methodology with the types of goaling provided for in the Small 
Business Act. Thus, instead of just reporting on agency 
procurement dollars going to small businesses, SBA should 
report on agency success in meeting: (1) industrial goals, 
which ensure the participation of small businesses from each 
industry category in agency contracts and subcontracts, and (2) 
utilization goals, which ensure that each type of small 
business, such as a woman-owned or service-disabled veteran-
owned small business has the maximum practical opportunity to 
participate in the performance of agency contracts and 
subcontracts. These two small business goals--the industrial 
and utilization goals--recognize that simply looking at the 
dollars awarded to small businesses does not by itself ensure 
that small businesses are fairly represented in federal 
procurement.
    Turning now to organizational changes that could strengthen 
small business participation, I recommend that Congress 
consider establishing the Small Business Administration Office 
of Hearings and Appeals (OHA) in statute and giving it total 
independence from SBA. Currently, OHA reviews certain SBA 
program decisions, such as 8(a) and size determinations; 
however, if Congress established OHA as a totally independent 
body, it could also give it review authority over SBA's 
establishment and modification of size standards. Such 
authority for OHA would be particularly beneficial for small 
businesses who are currently unable to challenge the size 
standards except by filing a lawsuit in federal court, which is 
extraordinarily expensive and simply an unrealistic option.
    Finally, I recommend that Congress consider adding the 
Small Business Administration to the Federal Acquisition 
Regulatory Council, referred to as the FAR Council. The FAR 
Council has yet to implement several provisions of the Small 
Business Jobs Act of 2010, which are designed to increase small 
business participation. I think the addition of SBA to the FAR 
Council could streamline and expedite the implementation 
process, allow for better coordination between SBA and the 
current agency members of the FAR Council, and perhaps 
facilitate concurrent rulemaking.
    I recall when I chaired the FAR Council, it was extremely 
difficult to coordinate the FAR and SBA rulemaking processes. 
In many cases, the FAR and SBA regulations cover the same 
procurement topics and have government-wide impact. 
Consequently, the need for close coordination and communication 
between the two rule-making bodies is critical, and SBA's 
membership on the FAR Council would certainly facilitate the 
needed communication.
    In summary, it is critical for Congress to strengthen the 
consolidation and bundling regulations and ensure agency 
compliance with these regulations. In addition, Congress can 
expand the role of OHA and develop more meaningful and robust 
small business goals for the federal agencies. These 
legislative actions will undoubtedly protect small business 
interests and the future of the small business industrial base.
    Mr. Chairman, that concludes my statement. I will be 
pleased to answer any questions that you or the members of the 
Subcommittee may have.
    Chairman HANNA. Thank you very much, Mr. Burton.
    Just by way of information, Grace Meng had an amendment to 
the NDAA that passed the House last year that did at least part 
of what you are requesting. It requires agencies to publish 
justification with the solicitation. So those are the kinds of 
things we are talking about going forward with.
    Mr. Chvotkin, you may begin.

                  STATEMENET OF ALAN CHVOTKIN

    Mr. CHVOTKIN. Chairman Hanna, Ms. Velazquez, members of the 
Subcommittee, thank you for the invitation to appear today.
    PSC is a strong supporter of a balanced federal policy on 
small business. In my testimony, I address four important 
issues. First, on strategic sourcing.
    Strategic sourcing is not suitable for all of the 
government's acquisitions. Our association is a strong 
proponent of well-designed strategic sourcing programs, as well 
as establishing and maintaining a strong industrial base, not 
just for small businesses but for businesses of all size. When 
considering the Federal Government's move towards strategic 
sourcing and its interrelationship with small business 
contracting goals, it is clear that there are disconnects 
driven largely by how the Federal Government measures small 
business performance in the federal market, and the desire to 
foster a strong industrial base.
    In 2013, PSA president and CEO Stan Soloway testified 
before this Subcommittee about strategic sourcing and its 
impact on the industrial base. Then, as now, our view of 
strategic sourcing is centered on supporting an environment of 
robust competition, high performance, agility, innovation, and 
balanced opportunities for companies of all sizes. We 
recommended then and again today that the Federal Government 
must better align the number of small business providers and 
the total dollar value expended via small businesses as part of 
its overall strategic sourcing strategy. But it is also clear 
that improved data collection and analysis is necessary to 
improve future decision-making. The data today fails to 
consider whether there is an equitable distribution among small 
businesses and a balanced reliance on small business for 
certain categories of work.
    With respect to the imbalance in goal setting and small 
business attainment, as you well know, the SBA negotiates 
biannually with the federal agencies on their small business 
attainment goals for both prime contract awards from the 
federal agencies and for subcontracting goals to be achieved by 
federal prime contractors.
    While SBA is agnostic on how an agency achieves its goals, 
we have seen how agencies have skewered their performance to 
focus on some of the low-hanging fruit within their business 
opportunities and not looked across their entire enterprise for 
meaningful small business participation. As a result, agencies 
are in effect picking winners and losers in the small business 
market and in the agency's larger industrial-based market 
through the small business goal-attainment decisions.
    Therefore, in the goal-setting process, SBA and the 
agencies must evaluate not only top-line small business goals, 
but also analyze and comment on changes in the agency's 
business base and addressable market. Consideration should be 
given to setting goals for services and commodities to be sure 
that one segment of an agency's market is not drawing a 
disproportionate share of the agency's attainment efforts.
    With respect to data quality, in order to make informed 
decisions about federal small business contracting, better data 
that captures the full participation across the federal 
marketplace is necessary. While federal small business prime 
contracting expenditures in the aggregate are fairly accurate 
to the same level that any other data is accurate in the 
federal marketplace, there is significantly less visibility in 
the small business participation at the subcontracting level. 
PSA strongly believes that without meaningful data that can be 
used to provide an accurate picture of total small business 
participation, government risks making ill-informed small 
business contracting decisions that could place significant 
risk on small business contractors and could damage the larger 
industrial base.
    Finally, it has been a challenge to understand the impact 
of all of the regulatory actions on federal acquisition and on 
small businesses when the private sector is forced to comment 
on rules in piecemeal fashion. These rules and regulatory 
issuances create a challenge for analysis and commentary on the 
impact of any single rule on the overall regulatory scheme and 
how they will affect the market. Notwithstanding congressional 
interest and sometimes direction that implementing rules be 
issued within a reasonable period of time. As Mr. Burton said, 
we are still waiting for some final rules for key provisions of 
the 2010 Small Business Jobs Act, and that is unacceptable.
    We therefore make the following recommendations. First, 
more needs to be done to improve the data reporting to track 
federal prime and subcontract data. This is a significant 
challenge that will require close coordination between industry 
and government.
    Second, in the goal-setting process, SBA and the agencies 
must evaluate not only top-line small business goals but also 
analyze and comment on changes in the agency's business base 
and addressable market. Consideration should be given to 
setting target goals for services and commodities to be sure 
that no one segment of an agency's market is drawing a 
disproportionate share of the agency's attainment.
    Third, agencies must fully implement and then comply with 
both the bundling and the consolidation reporting requirements 
that have been enacted.
    And finally, the viability of conducting past-performance 
assessments of first-year subcontractors should be thoroughly 
explored.
    Thank you again for the invitation. We look forward to 
continuing our longstanding work with this Committee, and I 
would be pleased to answer any questions you may have.
    Chairman HANNA. Thank you.
    Mr. Specht?

                   STATEMENT OF DAMIEN SPECHT

    Mr. SPECHT. Chairman Hanna, Ranking Member Velazquez, 
members of the Subcommittee, thank you for the invitation to 
appear today. In my testimony, I will address how consolidated 
contracting necessarily limits the number of small businesses 
in the federal marketplace. I will also briefly discuss the 
SBA's rating methodology, and as a litigator who appears before 
the SBA Office of Hearings and Appeals, share some thoughts on 
that forum.
    From tool manufacturers to those working in support of our 
intelligence agencies, I have heard that bundling is a problem. 
However, because we largely rely on self-reporting, the 
government has little reliable data on where bundling is 
occurring and how many small businesses are being hurt by this 
practice. As a result, I join Mr. Burton in encouraging this 
Committee to require agencies to require bundling 
justifications along with solicitations. This will allow small 
businesses to understand the agency's rationale and, if 
necessary, timely protest the bundled requirement.
    I will note, however, that bundling protests are rarely 
successful. In fact, it appears the primary way for an agency 
to lose a bundling protest is to fail to perform any analysis 
at all. As a result, in addition to increasing transparency, 
this Committee should consider raising the bar for justifying 
these decisions, which can currently be based on as little as 5 
percent cost savings.
    In addition to bundling, this Committee should be highly 
skeptical of strategic sourcing initiatives. Strategic sourcing 
proponents have worked to maximize small business 
participation. That effort is commendable, but the problem is 
not one of intent or lack of effort. The problem is that 
strategic sourcing, at least when accomplished through large 
contract vehicles, is necessarily bad for the diversity of 
small contractors in the industrial base.
    This is the case for a few reasons. First, the large number 
of items be provided on each of these contracts makes it 
impossible for many businesses to bid. As demonstrated by the 
FFSI office supplies contract, it is often necessary for 
hundreds of small businesses to team together to fulfill the 
requirements of a single contract.
    A second negative consequence of strategic sourcing is that 
those businesses that do not receive awards will receive other 
contract opportunities disappear. To drive volume discounts, 
purchasing from strategic sourcing vehicles must be highly 
encouraged. That means that sales that would have gone to 
hundreds of small businesses are now focused on a dozen. This 
concentration of awards has a real impact. In fact, one of my 
small business clients recently told me that their sales volume 
has decreased by two-thirds since they were not chosen for a 
strategic sourcing award.
    A third problem with strategic sourcing is that it reduces 
the importance of federal supply schedule contracts. 
Traditionally, GSA's FFS programs provided an access point for 
aspiring contractors. If we choose to shift the government's 
purchases to strategic sourcing contracts and away from the 
remaining FFS holders, this entry point will be less attractive 
and we would lose a significant number of future contractors.
    Ironically, the award of a strategic sourcing contract is 
not always a benefit to the winners. This is the case because 
large awards can set up a hill and valley problem. A small 
business that receives millions in strategic sourcing awards is 
likely to expand its infrastructure to meet those needs. 
However, that firm's dependence on a single contract will 
backfire if it loses the next competition. In the past, this 
concern was mitigated because businesses received more regular, 
but smaller, awards.
    In summary, there is nothing wrong with strategic sourcing; 
however, this Committee needs to look beneath the surface to 
judge whether these actions are consistent with building a 
diverse small business base.
    Despite the impact of bundling and consolidation, the 
Federal Government met its overall small business goals in 
2013, and apparently, 2014. These are not minor achievements. 
This accomplishment is tempered by concerns that large 
contractors are being counted toward small business goals. 
Although this may be the result of honest mistakes, continued 
training of contracting officers and explanation of the 
complicated small business rules to the contracting community 
will be helpful in confirming that the proper numbers are being 
reported.
    Further, this Committee should be concerned that SBA 
assigned an A or A+ rating to 20 agencies when none met all 
their small business goals. One of those agencies, the 
Department of the Treasury, was assigned an A rating, despite a 
small business subcontracting rate of 6.8 percent. As this 
grade inflation demonstrates, this Committee should continue to 
closely examine the basis for SBA's grades to determine where 
agency performance can be improved.
    Shifting to my role as a small business litigator, I would 
like to address some of the issues related to SBA's Office of 
Hearings and Appeals (OHA). Although I do not agree with every 
OHA decision, it has proven to be an efficient alternative to 
federal court. As a result, I support making OHA permanent 
through statute. Any such statute should, of course, recognize 
that small businesses may appeal OHA decisions to federal court 
if they so choose.
    This Committee should also act to eliminate the redundancy 
in the Small Business Act. Specifically, although OHA's 
administrative judges have significant expertise, the Small 
Business Act assigns certain appeals to administrative law 
judges, of which OHA has none. This has led ALJs at other 
agencies to hear small business cases on behalf of OHA. 
Although I have no doubt this arrangement is effective, it 
makes more sense to centralize small business decisions in OHA 
as a statutory entity.
    Thank you for the opportunity to appear today, and I look 
forward to your questions.
    Chairman HANNA. Thank you.
    And I yield to Ranking Member Velazquez for the first 
question.
    Ms. VELAZQUEZ. Thank you, Mr. Chairman.
    Mr. Wynn, despite the numerous safeguards in place, we 
continue to see the bundling and consolidation of contracts. In 
your opinion, what is it going to take to let these agencies 
know that the consolidation or bundling of contracts is not to 
be used to ease administrative burden?
    Mr. WYNN. Thank you for that question.
    As was noted and mentioned in my comments, one of the 
mechanisms that is being used right now through SBA is use of 
the PCR. Over the years, we have previously testified and made 
recommendations as for SBA to increase their budget to be able 
to employ more persons in this position. Yet, over the years, 
the number of people in this position has decreased. So we 
cannot quite understand how in the world they are going to 
possibly police all of these types of transactions and make 
recommendations to stop the procurement before it goes through.
    The other part of that is, as I understand it, once they 
are able to identify a procurement as being bundled and they 
want to question it, that discussion is had with the agency's 
senior official or the acquisition chief of that agency, there 
seems to be still no real power from the PCR to actually stop 
the procurement completely. If the agency negotiates, has a 
discussion and justifies in their view why they feel it should 
go forward, it seems to continue to go forward. I think that, 
you know, more--there needs to be more teeth in the legislation 
to provide SBA more authority to actually stop these types of 
procurements. And also, they have got to increase the number of 
persons or we create some additional, some new position or 
persons to police these actions.
    Ms. VELAZQUEZ. Sure. Well, you know, sequestration and 
budget cuts come to mind. And both of them have consequences.
    I would like to ask the rest of the panel to comment. We 
have seen that enforcement actions are rare, and there is a 
need for defining realistic enforcement triggers. What would 
you recommend to be a sufficient trigger? Any of you.
    Mr. CHVOTKIN. May I ask, enforcement actions regarding 
unbundling and consolidation?
    Ms. VELAZQUEZ. Yes.
    Mr. CHVOTKIN. I will start, Ms. Velazquez.
    I think we start with a clear set of standards, and right 
now agencies have a lot of flexibility in determining--in 
making those determinations. Secondly, transparency will go a 
long way towards accountability. Without the real 
understanding, the marketplace will substantially police the 
federal agencies' behaviors if they know what is going on in 
that marketplace, and today, most companies do not have that 
visibility. And so the competitive marketplace, particularly as 
contract spending is declining, will be a very powerful force. 
That competition drive will be a very powerful force in helping 
to police the agencies.
    Finally, I would suggest that we need a dependable and 
reliable place to challenge those actions, and OHA may very 
well be a good place to do that.
    Ms. VELAZQUEZ. Okay. Thank you.
    Mr. Specht, we have heard from numerous small businesses 
about the problem of contract bundling, and each one of you 
made reference. As a result of that practice, subcontracting 
and teaming has become the best option for small businesses 
that are unable to perform the entirety of these massive 
contracts. Yet, we also heard that this process is fraught with 
additional costs and dangers to all parties involved. I would 
like to ask you, do you believe that this is fair, that small 
businesses should be relegated to dispositions as a result of 
bundling?
    Mr. SPECHT. Thank you for the question.
    No, it is not fair, and it is not ideal for the federal 
marketplace. It is okay for small businesses to start out as 
subcontractors and start getting work that way because they can 
learn from the prime. But at some point, for their growth, it 
is necessary that they have direct customer contact and that 
they be doing work directly with the customer agency so that 
they can expand and learn and grow.
    Ms. VELAZQUEZ. So do you think that there is a fear that 
these contracts will get so large that even the subcontracts 
will be out of reach to small businesses?
    Mr. SPECHT. Absolutely. I think that these contracts get 
large and the items required get so diverse that you may have 
small businesses that are now second or third tier 
subcontractors. And it is just the truth of the matter that the 
further away you are from the federal customer, the less 
accountability there is and the easier it is to squeeze those 
small businesses when you are at a higher tier level.
    Ms. VELAZQUEZ. Thank you.
    Thank you, Mr. Chairman. I will have some other questions 
in the second round. Thank you.
    Chairman HANNA. Mr. Burton, Mr. Specht, there are two 
tracks here that I see both of them mildly conflicting but 
interesting to me in terms of you wanting to keep a viable 
supply chain, and when we want to multiply or add more small 
businesses and do less bundling, and how do you maintain a 
viable supply chain, and things that we regard as necessary, 
say to the national defense, and under these circumstances we 
are eliminating a lot of that. And also, we are not doing what 
we are supposed to be doing, which is promoting small 
businesses, inviting them, helping them grow, helping them 
diversify, and we are allowing bundling to happen which 
probably sends more profit to the prime ultimately, and putting 
them in a position where they get beat up frankly for lack of a 
better term. My question is, how do you maintain a viable 
supply chain without some kind of rules, and what kind of 
danger does that present? If that is a fair question.
    Mr. Burton?
    Mr. BURTON. Well, I think the rules are very important. I 
mean, the government operates on a whole collection of rules. 
And that is why I think Congress has an opportunity here to 
actually improve those rules with respect to consolidated 
contracts in particular. There is no transparency. There is no 
compliance. And until that is seriously taken by the agencies, 
I think that the industrial basis is going to be weakened. As a 
matter of fact, we already see that happening right now with 
respect to janitorial services. Hundreds of companies have 
disappeared off the federal marketplace and more to come. And 
so it is a serious threat, and I am not sure the public fully 
understands how serious this is. And you do not hear much about 
these small businesses that are actually going out of business 
because of the consolidated procurements and strategic 
sourcing, which on its face sounds so good, and yet it is 
clearly putting small businesses----
    Chairman HANNA. It is almost antithetical, is it not?
    Mr. BURTON. Absolutely. Absolutely.
    Chairman HANNA. Mr. Specht?
    Mr. SPECHT. So I agree with those comments. I think one of 
the interesting things about strategic sourcing is that we see 
headlines that, you know, 14 of 15 awardees are small 
businesses, or 86 percent of orders go to small businesses and 
are some of these FFSI strategic sourcing contracts. But what 
we are not focused on is exactly as you said or Mr. Burton 
said, that you are focusing your industrial base on those 14 or 
15 winners. And everybody else gets nothing. And so I think we 
need to understand that strategic sourcing can be part of the 
solution, but we need to have diverse orders through the supply 
schedules or through other ordering means that are smaller 
orders that can go to small businesses, that can maintain these 
businesses, even if they do not get a strategic sourcing award.
    Chairman HANNA. Mr. Wynn?
    Mr. WYNN. Thank you.
    You know, we continue to hear that I guess the rationale 
for strategic sourcing, bundling, is supposed to save the 
government money. Save ultimately us, the taxpayer, money. Make 
our, you know, efficiencies, you know, make the procurement 
process more efficient. But when you have hundreds of small 
businesses who are factored out of the process, who is 
measuring the total loss to those businesses, their families, 
and the community who they, themselves, are the taxpayers. So 
who is it that we are really trying to support here? Is it this 
government entity? Is it this large corporation? Or are we 
really about, you know, the benefit of the people?
    Now, it sounds like, you know, in essence, you know, from 
the outside looking in, the government continues to function. 
The most we are hearing in days now is that, you know, need for 
budget cuts, sequestration, you know, this kind of thing. And 
so some folks probably will feel that if there is a 
consolidation of services, that this is a practical use of the 
government's time and efforts. But I do not, just like the 
gentleman Mr. Specht just said, I do not think we are 
emphasizing and letting the public know how many businesses are 
being negatively impacted by this type of process.
    The other thing, too, is the rules and regulations that 
govern these actions need to be strengthened in such a way that 
there is a stronger mechanism to review this process prior to 
the contract being awarded.
    Chairman HANNA. I take it everyone would agree with that.
    I am going to yield to Grace Meng for questions. Thank you.
    Ms. MENG. Thank you for being with us today. We appreciate 
all your expert insight on these issues important to our small 
businesses.
    Over the last decade, in Queens, New York, nearly 65.6 
percent of the borough's new business growth was from companies 
with less than five employees. In 2013, there were over 32,000 
businesses with less than five employees. These small 
businesses, especially the ones recently created, have the 
potential for growth, and I want to ensure that we have 
policies in place to help these businesses that want to grow to 
reach their potential and continue contributing to our 
economies.
    In my district especially, to be blunt, goaling is very 
important. These goals have afforded businesses in my district 
opportunities that they may otherwise have not received. 
Although goals are usually unenforceable targets, do you have 
any insight into how we can hold the SBA and other agencies 
more accountable to their goals?
    Mr. BURTON. I do think that the goals are extraordinarily 
important, and there is too much emphasis on dollars to small 
businesses. This, I think, is a serious problem, and the 
government needs to deemphasize the dollars and start looking 
at the participation rate. You know, the objective of the Small 
Business Act was not just to get dollars to a few small 
businesses; it was to ensure maximum participation of the small 
businesses in the federal procurement system. That is simply in 
jeopardy now because of strategic sourcing and budget cuts and 
a ray of factors. But until the OMB, my former home, until OMB 
really at that level indicates how important it is for SBA and 
the other agencies to really look at more than just dollars, I 
think we are going to be handicapped. And I think that this is 
where Congress can really play a beneficial role in getting 
agencies to focus on different goals besides just dollars. The 
participation rate in my view is key; how many small businesses 
are participating in federal procurement.
    Mr. SPECHT. I would second all of that and add that 
pressure from this Committee is obviously important in focusing 
higher-level folk at the agencies on these small business 
goals. And I also think that the SBA ratings, when an agency 
gets an A and does not hit all of its small business goals, 
that is sending the wrong message. The message here is hit your 
goals, get the A. Do not hit your goals, you do not get the A 
and you are going to get additional pressure. I think that that 
makes a lot of sense.
    Mr. BURTON. Just as a follow-up, I think that is one reason 
probably for the A, is that SBA was so pleased that the 
government as a whole made the 23 percent with respect to the 
dollars going to small businesses and said, ``This is 
fantastic. We are going to give everybody an A across the 
board, even to the folk that are not doing so well.'' So, 
again, that strengthens my point that there is too much 
emphasis on the dollar goal.
    Ms. MENG. And although not the specific topic of this 
hearing, I am also interested in your views on increasing the 
current 20 percent goal at the Export-Import Bank. Do you 
believe that an increase in this goal would help small 
businesses? Also, do you believe including indirect support in 
the 20 percent goal would be detrimental to small businesses 
that are already receiving assistance?
    Mr. CHVOTKIN. I do not have enough experience with the Ex-
Im Bank to have an answer for you, Ms. Meng.
    Mr. WYNN. I do not have a lot of experience on the 
specifics regarding the Export Bank, but increasing the goals, 
whether it is for exports or just the goals in general, we have 
made recommendations previously to increase the small business 
goals beyond the 23 percent level. And also, to emphasize that 
that is a floor. That percentage goal is a floor and not a 
ceiling. A lot of agencies tend to have the view that once we 
hit that 23 percent, we are there. We are great. And again, SBA 
then gives the agency a rating of an A. But perhaps that should 
be a C rating when you hit the 23 percent, and an A would be 50 
percent, you know, where you have really shown and demonstrated 
that you have exceeded the floor of the goal. Thank you.
    Ms. MENG. Thank you. I yield back.
    Chairman HANNA. Mr. Curbelo?
    Mr. CURBELO. Thank you very much, Mr. Chairman. And I thank 
the witnesses for their testimony here today.
    My question has to do with subcontracting. The 36 percent 
goal for subcontracts set in 2009 has continuously failed to be 
met. In fact, over the past several years, it has declined from 
35.4 percent in Fiscal Year 2010 to 34 percent in Fiscal Year 
2013.
    Mr. Chvotkin, I am concerned that the percentage of dollars 
subcontracted to small business has dropped by about 3 percent 
since 2010. I am also concerned that by holding only senior 
executive accountable for prime contracting goals we have sent 
the message that subcontracting perhaps is not all that 
important. What are your thoughts on this issue?
    Mr. CHVOTKIN. Mr. Curbelo, thank you.
    Our view is subcontracting matters, and it is very 
important. It is a good business strategy for small businesses. 
We talked about that today. Along with finding prime 
contracting opportunities. But the data and the collective 
insight into that small business subcontracting is sorely 
lacking as well. That is an area that we have to work on before 
we can--we need to be cautious in looking at root causes and 
then designing solutions.
    You may be aware, the new executive branch subcontract 
reporting system could launch next quarter, and I am hopeful 
that it will be an improvement over the current one; it has to 
be, although more may need to be done there. But while agencies 
often dictate subcontracting percentages to prime contractors, 
the prime contractors' choices of implementation are really 
part of its own technical solution that the agencies evaluate, 
and its business decision-making is outside the purview of 
federal agencies and senior executives. So I am concerned about 
imposing requirements that either cannot be effectively 
influenced, or that if they can be influenced, that influence 
risk politicizing the acquisition process. So I would welcome 
the opportunity to discuss that with you further after this 
hearing. But subcontracts matter, and we have to find a better 
way of identifying the right data across all of the tiers of 
small businesses and making sure that we are capturing that 
data and holding both the agencies, as well as the prime 
contractors accountable.
    Mr. CURBELO. Thank you.
    Mr. Burton, maybe you want to weigh in, too. In 2010, $74 
billion in subcontracted dollars went to small businesses, a 
substantial amount of money. What can we do to make sure that 
our agencies pay attention to this issue?
    Mr. BURTON. Well, I think what you are suggesting is that 
agencies comply with the current rules, and I think that is 
absolutely critical. We are going to see more dollars going 
through subcontracts than previously to small businesses 
because of the nature of things, because of the fact that the 
prime contracting base is going to shrink and more small 
businesses are going to be eager to get subcontracting 
opportunities. The government is encouraging joint ventures, 
teaming. You are going to see more of this. And so therefore, I 
think it is absolutely imperative for agencies--SBA and OMB in 
particular--to start emphasizing compliance with the 
subcontracting goals. Not just meeting the subcontracting goals 
but the subcontracting goals as well. There has been virtually 
no emphasis on meeting subcontracting goals under the theory 
that small businesses would prefer to have prime contracts. But 
the reality is they also like to have subcontracts. And in this 
environment, it is critical for them to get subcontracts.
    I think in short answer to your question, agency senior 
executives have to be held accountable for both achievement of 
prime contracting goals and subcontracting goals. Quite 
frankly, some senior folks in the government do not even know 
that there are subcontracting goals that they have to comply 
with, and so this is very important to have from the top 
leadership down, emphasis on agencies meeting subcontracting 
goals.
    Mr. CURBELO. Thank you.
    I have about a minute left. Does anyone else want to weigh 
in on this issue?
    Mr. WYNN. I would like to make a quick comment. On 
subcontracting, you know, there are some obvious conflicts with 
regard to the process and the evaluation. It looks like, you 
know, even when we talked about the scorecard process, more 
emphasis is placed on the prime contracting than on the 
subcontracting. And what happens to an agency if they do not 
meet their subcontracting goals? We will just not meet them 
again next year, perhaps.
    The other thing, too, though, is that with the more and 
more bundling and consolidation, there are fewer opportunities 
that are going to be had by small businesses to subcontract if 
more and more agencies are encouraged to use these contract 
vehicles. So we would like to see more subcontracting 
businesses. Small businesses want to make money. And it is the 
only way they are going to be able to grow and expand is that 
they get a contract, whether it is a subcontract or a prime. So 
more of that needs to be had, but the rules need to be 
strengthened to give them the opportunity to do so.
    Mr. CURBELO. Thank you. My time has expired.
    Thank you, Mr. Chairman.
    Chairman HANNA. Thank you.
    Ms. Chu?
    Ms. CHU. Yes.
    Mr. Wynn, as I understand, federal agencies are required to 
provide the SBA's statement explaining why contract bundling is 
necessary if it knowingly proposes a bundled acquisition. These 
explanations are reviewed by SBA procurement center 
representatives and can be appealed if the PCR believes that 
bundling is not justified. However, data shows that only 28 
appeals were filed in 2012, and only six resulted in the 
unbundling of contracts.
    Can you explain why these numbers are so low considering 
that there are millions of contracting actions that take place 
in a year and that many of them are bundled?
    Mr. WYNN. Well, I think it is partially due to the fact 
that it is such a few number of persons as I mentioned that are 
responsible or designated to intervene into these particular 
contract actions. Of the ones that I do again, it is my 
understanding that negotiations, discussions take place within 
the agency, and a decision is made on some cases. The contract 
may be pulled back. It may be changed in some way and then 
relet. And so you have fewer people challenging the award later 
on. But again, I just think it needs to be more people. The 
process needs to be strengthened for reviewing these type of 
actions.
    Ms. CHU. Thank you.
    Mr. Burton, you state in your testimony that it is common 
for agencies not to publish timely justifications for why they 
are choosing to consolidate or bundle a contract, and you 
attribute this to the lack of regulations requiring 
justifications to be released on a specific timetable. And you 
said that SBA therefore has no recourse to protest a bundled 
contract after the contract is awarded. How does this lack of 
authority impact the bundling review process?
    Mr. BURTON. Well, you know, terminology here is so very 
important, and we tend to speak in terms of bundled 
procurements. But in fact, most of the procurements that we are 
seeing are consolidated procurements. And the distinction is 
that a bundled procurement, there has to be a determination 
that it is unsuitable for small businesses. Well, quite 
frankly, small businesses can perform almost everything, 
especially in today's world where what the government is 
procuring are primarily services, not big weapon systems. And 
so more than likely, most procurements are suitable for small 
businesses, which means there is not going to be a bundled 
procurement. Which I think goes to your question, why are we 
seeing so few bundled procurements be challenged? Because there 
are not that many bundled procurements. They are consolidated 
procurements, which is simply the combination of contracts, 
which small businesses can compete for. There is no 
transparency. There is no requirement, except for a written 
justification that is stuck in the file somewhere. There is no 
requirement for any posting of justifications for consolidated 
procurements. There is no reporting requirement for 
consolidated procurements.
    So if you are an agency official, you are going to want to 
make sure that we are doing consolidated procurements. I mean, 
it is somewhat of a cynical view, but I think it is true that 
if you decide that it is a bundled procurement, there is more 
regulation and more red tape. And I think quite frankly, most 
procurements are consolidated. I think they are justifiably 
categorized as such. That is why I think it is so important for 
Congress to start having those transparency requirements 
imposed on consolidated contracts. And maybe we should even 
quit using the word ``bundled,'' because there is just not much 
in that category. It is consolidated procurements, and there is 
no transparency or regulatory requirements except for a mere 
written justification, and which I testified that when we have 
submitted FOIA requests to agencies to take a look at those 
written justifications, they are not to be found, and in my 
view, they were never done. And so I think it is absolutely 
critical that Congress, OMB, SBA, start saying it is very 
important that we have transparency and to consolidate the 
procurements.
    Ms. CHU. Such a good point.
    Mr. Specht, the SBA weighs 80 percent of its scorecard 
grade on prime contracting dollars, yet only 10 percent on 
subcontracting achievements. Do you believe the disparity 
between the weight of these two types of contracts should be 
this drastic?
    Mr. SPECHT. Absolutely not. As Mr. Wynn pointed out, small 
businesses want to make money. And it is probably for the best 
that they be prime contractors. It is probably the best 
circumstance for them, but it is not eight times better than 
being a subcontractor. And so, no, I do not think that that 
weighting makes sense. I think that more weight should be 
placed on subcontracting. And in addition, I think this point 
has been made that our transparency into the actual percentages 
that get subcontracted to small businesses is not very good, so 
we should put those two together. More weight in the scorecard 
on small business subcontracting, but also more transparency so 
we know that it is actually getting done.
    Ms. CHU. Thank you. I yield back.
    Chairman HANNA. Ms. Lawrence?
    Ms. LAWRENCE. Thank you, Chair, for holding this hearing.
    In Michigan, the state of Michigan, we are home to over 800 
and 500 small businesses and we employ over 1.7 million. In the 
first quarter of 2014 alone, over 11,000 small new businesses 
were established, and it is my sincere hope that all of them 
stay in business and grow.
    I hear a lot from the panel today about transparency and 
that there is a need for transparency. So I have two questions. 
What are some of the major challenges that these new small 
businesses will face when they compete against the more 
established small businesses with a history of consolidating 
and bundling? And then I want to hear from you as experts, what 
does transparency look like? You use that word as if it defines 
something, and I would just like for you to state what would 
transparency and what would the areas be that would give us the 
transparency that you feel we would need?
    And Mr. Burton, if you could start.
    Mr. BURTON. Well, small businesses do have an opportunity 
to challenge certain actions. They can challenge certain things 
before OHA, for example. They can challenge at the GAO. They do 
have recourse. But they simply have no recourse if there is no 
transparency or view into the government decision-making 
process.
    A perfect example was recently I had a small business 
client who felt like they should have won an award, and we had 
a debriefing by the agency and the debriefing said, ``You were 
great. There was no deficiencies. Your price was reasonable, 
realistic.'' And so they thought, ``Well, I guess I should have 
gotten the award.'' So they filed a protest, only to find out 
when we looked behind the curtain and looked at the government 
decision-making process, we find out that that particular 
contractor's price was way high. It was off the charts. Had the 
agency communicated that basic fact that your price was not 
really reasonable or realistic, there would not have been a big 
protest. Small businesses have thirst for information, and that 
is just one example where the agency, for whatever reason, just 
does not want to share that information.
    With respect to the decision-making process on why an 
agency consolidates a procurement, when they consolidate a 
procurement, they are supposed to go through a decision-making 
process. Will this negatively impact small business if I 
consolidate this procurement? In many instances, it will. But 
there is no analysis. Even though it is required, there is no 
analysis, no documentation regarding that. If there is not even 
documentation regarding it, we never get to transparency 
because there is nothing to look at. But transparency into the 
decision-making process, there has to be a document that we can 
take a look at and small businesses can actually challenge. 
That is so critical for the health of the small business 
industrial base.
    Ms. LAWRENCE. Other panelists? Mr. Chvotkin?
    Mr. CHVOTKIN. Thank you, Ms. Lawrence.
    First of all, I say all too often that the only thing worse 
than not having a government contract is having a government 
contract, because the compliance burdens, particularly for 
small businesses, are significant, and very, very different 
than what they experience in the commercial marketplace. And 
for many, it is a real wake-up call and a real business risk 
because the government does look at and challenge the 
compliance capabilities of firms. So even for small businesses, 
even selling commercial items, even on a fixed-price basis, the 
rules that are imposed on prime contractors and often flow down 
to subcontractors can be significant and very atypical for what 
they are used to in the normal marketplace.
    And I think on the question of transparency, what does it 
look like? I think it looks like three things. First of all, 
clear documentation about what an agency's decision-making is. 
Secondly, compliance with the existing rules. Many times we 
find that the agencies are ignoring or skirting those existing 
rules, so as Mr. Burton said, they never get to the 
documentation. And finally, senior level accountability for 
those activities. I think with those three piece parts 
together, there will be lots of attention in the marketplace, 
and the competitive marketplace will help drive compliance 
because the companies themselves or advocates on their behalf 
will be watching how agencies are performing.
    Mr. SPECHT. And I will just add, as someone who represents 
small businesses in your state, that one of the primary 
challenges those businesses face is knowing about these 
opportunities, knowing how to get into the government 
contracting marketplace, and finding contracts of the size that 
they can handle at an early stage so that they can grow and 
they can build up the compliance regime and all the rest.
    Mr. WYNN. And just a quick follow-up on the transparency 
and small businesses succeeding in the federal marketplace, the 
transparency needs to be readily available for those of us out 
here to be able to see it. So whatever the decision-making 
process that they use, if they would make it readily available 
so that we can see it.
    There was an executive order at one time with regard to the 
increased opportunities for service-disabled vets that every 
agency would post on its website what the opportunities were, 
what the plan was to how they were going to increase 
opportunities for this group of businesses. That went well for 
a couple of years and then we ended up into the scorecard thing 
where now it is less transparent. So, thank you.
    Ms. LAWRENCE. Thank you. I yield my time.
    Chairman HANNA. Thank you.
    I am going to open another round of questioning if no one 
minds. I will start myself with some interesting and bad news. 
The SBA gave a buy-out to many of its procurement center 
representatives, which tells us that they are moving away from 
what we want, not towards it; right? The other thing is I think 
all of you are much kinder than you need to be over this. What 
is obvious from listening to you is that what we have here is a 
small war or maybe a large war of attrition that the difficulty 
associated with doing what we want people to do is high. And 
the ease of bundling and consolidation is just that, easy, in 
that it requires a great deal of effort to do what we are 
asking and expecting and have a right to expect some of these 
agencies to do. And they act with impunity. There are no 
consequences. Apparently, the appeal process is all but 
nonexistent. Our ability to monitor and understand is 
obfuscated by the fact that there are no reporting 
requirements, which my friend, Grace Meng, is trying to 
address. So knowing some contracting officers as I do in my 
past life, it does not necessarily have to be insidious, but 
the outcome is the same.
    Do you agree with that? I am making kind of a blanket 
statement about the agencies and the personalities and the 
people that run them, but I welcome you pushing back or just 
your kind of personal opinion. A lot of this boils down to 
personalities and people and the workload they have or do not 
have and their willingness to look at something like this and 
say, ``Oh, this is a bunch of baloney. I am not going to go 
through with it. And by the way, nobody is going to do anything 
to me for doing it.''
    You are shaking your head there, Mr. Chvotkin. Go ahead.
    Mr. CHVOTKIN. Well, I have a couple of comments, Mr. 
Chairman.
    First of all, I think it is important to understand that 
the primary goal for the acquisition professionals at the 
agency is to acquire the goods and services they need to 
fulfill their agency mission. The acquisition system, the 
procurement process is an enabler. It is not an end-state in 
and of itself. So many of these requirements, in fact, inhibit 
from the agency's view, their ability to in a timely manner get 
the goods and services they need. When you couple that with 
little clear regulations and little oversight, it is very easy 
to divert attention from these set of compliance rules and 
focus attention on----
    Chairman HANNA. Yeah, but you have to agree that the loss 
of 100,000 businesses in such a small period of time suggests 
that it is a crisis, not just----
    Mr. CHVOTKIN. Except that the agencies are still, by and 
large, still getting what they need from the marketplace, but 
not from those small businesses. That is why the comment 
earlier from all of us was it is important to focus not just on 
the dollars but on the whole industrial base. The repetitive 
ability of the agencies to get goods and services from a 
diverse capability, rather than just from a limited number that 
are achieving the dollars. Couple that with workforce 
challenges in the federal marketplace, the skills of the 
current acquisition workforce, and the drive towards low price, 
all of these things end up having an impact on who is able to 
be a supplier to the Federal Government and how the government 
approaches that marketplace.
    Chairman HANNA. So you think there is some basic flaw in 
the process that could be dealt with? I mean, what you are 
saying is they are trying to do their job and all these 
requirements, quotas, goals, of the small business SBA are 
actually kind of counterintuitive to them.
    Mr. CHVOTKIN. No, that is not my point. I think these goals 
have a value to the agencies. They draw attention, and there is 
every reason to continue to support a robust small business 
program. Unfortunately, I think as we alluded to in my 
testimony, and maybe I said it more explicitly in my written 
testimony, the focus has been only on dollar achievement, and 
many agencies are using those goals as a way of establishing an 
industrial policy, picking winners and losers in the 
marketplace without regard to long-term impact of the 
industrial base. Reporting will help. Greater visibility into 
the entire supply chain as you suggested will be a help. But we 
just need to remember that the purpose of the acquisition 
system is to acquire those goods and services for the agencies.
    Chairman HANNA. But it is not the only purpose.
    Mr. CHVOTKIN. It is not the only purpose.
    Chairman HANNA. Anyone else?
    Mr. SPECHT. Well, I guess my perspective on it is that, you 
know, we are all talking about the stick, but maybe there is 
some carrot to be had, which is to say that what you could do 
is make sure that small business participation is one of the 
most important factors in a best value tradeoff in procurements 
going forward so that you incentivize large contractors to go 
out and find small businesses and find diverse small businesses 
to meet those needs. And so that is not a perfect solution, but 
it is a way to sort of push them to incentivize them to do 
that.
    I think the other perspective is that I think many in the 
agency see the small business goals as a hassle, as something 
that is extraneous to their day job, which is buying things for 
the Federal Government. And the solution to that is to continue 
to evangelize about how small businesses not only add jobs and 
add value to the country, but also can offer unique needs, can 
offer better customer service, and can be a great asset for a 
buyer.
    Mr. WYNN. I would just add that let us not overlook the 
realities of the everyday working citizen, particularly within 
the federal marketplace, and that is that I want to do not as 
much as I can do, but only what I am required or have to do for 
real. And that means that if we have got fewer and fewer 
procurement officials, contracting officers, and where now the 
workload on me to get the same amount of goods and services 
requirements done for my agency still exists but there are 
fewer people to do them, if there is a way that I can 
consolidate these requirements and do fewer actions, I mean, 
for real. That is what the office is going to do. But, see, 
they are only doing that because they are allowed to do it. It 
is justified under the current state regulations. If the 
regulations, the laws, rules change, then they could not do 
that because they would be in violation.
    So it is incumbent upon you, upon Congress, that we really 
look at ways to change the way that they actually do what they 
do.
    Chairman HANNA. The appeal process that we are talking 
about here today, and transparency that we are talking about, 
and the requirement of explanations in advance in concurrent 
with awards and decisions and procurement, just those two items 
alone would go a long way.
    Mr. WYNN. Would go a long way.
    Mr. BURTON. And Mr. Chairman, I think it is important to 
note that priorities are important. The workforce is 
overburdened. It is shrinking. Forty percent of the federal 
workforce has less than five years experience. There is no 
question that there is huge challenges that may never be 
overcome in that area. But that is even why it is more 
important for Congress and others in leadership positions to 
clarify what is most important. And I do believe with respect 
to the goaling that we have a misplaced emphasis really on the 
dollars going to small business and a greater emphasis should 
be placed on actually how many small businesses are 
participating in the federal procurement process, and how 
strong is our small business industrial base? I think the 
emphasis needs to be more now on participation rate than actual 
dollars.
    And I know when I worked at the Office of Federal 
Procurement Policy, we were very focused on the dollars because 
we thought that was what was important to Congress and to the 
administration. And so consequently, that is the message that 
we sent to the agencies, to focus on the dollars. That message 
can change and the emphasis can change through leadership and 
through rules.
    Chairman HANNA. Sure. But that is so subjective. I mean, 
what supply chain is more important than another supply chain? 
Who makes that decision, and how do you talk about it? And how 
do you protect it and how do you justify spending more when 
maybe you could spend less? Because a dollar is the only thing 
that is truly measurable for most of us.
    Mr. BURTON. Well, and the number of small businesses 
participating. I mean, I think that is measurable as well.
    Chairman HANNA. That would be one thing. Certainly.
    Anyone else? I took a little liberty. I am the last guy 
here.
    Go ahead.
    Mr. SPECHT. Well, I will just second Mr. Burton's point in 
terms of diversity. And I do think that is measurable in terms 
of not only the subcategory goals but the numbers of businesses 
because eventually what is going to happen, if we keep 
consolidating contracts like this, is that only the large 
smalls will survive. They will be acquired by large businesses 
that want access to those contracts, and you are going to see 
an even more steep drop off in the number of small businesses 
participants. And those that you have will be stuck in second, 
third tier subcontract roles, and that is a significant problem 
that I think partially can be addressed by forcing 
justifications to be published, not only for bundling, but I 
think, as Mr. Burton said, for consolidated contracts, because 
consolidated contracts do not require the same justifications, 
and they are just easier. You have one small business that gets 
the work now on a multiple award contract as opposed to the 
dozens that used to have them, and you do not have to publish 
justification. And the publication will allow, to some extent, 
the private bar to step in and try to be private attorneys 
general, right, and try to enforce these things. The downside 
of that is, as I mentioned in my testimony, that those protests 
do not go anywhere. And I think one of the reasons why you see 
so few bundling appeals, even internally, is that the bundling 
standards are not very high. If I can demonstrate a 5 percent 
savings, I can bundle. Well, the Congress needs to decide is 5 
percent the right number? At what cost are industrial based? 
And if the number is 5 percent, that is great. But if it is 
not, we need to increase that. We may need to increase the cost 
of bundling contracts.
    Chairman HANNA. But also the 5 percent has to be justified 
by itself, so that would help. Just having the ability to look 
at that number and question the veracity of it would go a long 
way, which we do not have, as everyone has pointed out.
    I would ask that you watch the work of this Committee over 
the next few weeks, couple of weeks. These are the issues that 
we are dealing with. We have work that we are proposing that we 
would ask, if you can, to take a look at, give us some 
feedback. Some of it has already been written.
    I want to thank you for being here. You have all done a 
great job of explaining your case.
    I ask unanimous consent that members have five legislative 
days to submit their supporting materials for the record. 
Without objection, so ordered.
    This hearing is now adjourned. And again, thank you.
    [Whereupon, at 11:18 a.m., the Subcommittee was adjourned.]
                            A P P E N D I X

[GRAPHIC] [TIFF OMITTED] T3731.001

    Good morning, Chairman Hanna, Ranking member and other 
members of this subcommittee. On behalf of VET-Force, VVA 
National President John Rowan and all of our officers and 
members we thank you for the opportunity for Vietnam Veterans 
of America (VVA) to appear before you today to share our views 
on the ``Contracting & Industrial Base II: Bundling, Goaling, 
and the Office of Hearings and Appeals.'' I ask that you enter 
our full statement in the record, and I will briefly summarize 
the most important points of our statement.

    Though my time of service was many years ago, as a veteran 
of the US Air Force with the 66th Strategic Missile Squadron, I 
still have very vivid memories of my military experience. I've 
served on the Executive Committee of the Veterans 
Entrepreneurship Task Force (VET-Force) since the passage of PL 
106-50, the Veterans Entrepreneurship & Small Business 
Development Act of 1999. And having served as an Advisor to the 
Vietnam Veterans of America and Legislative Liaison for the 
National Association for Black Veterans also during that time, 
I am well aware of the challenges faced by many Veterans and 
especially Veteran Business Owners trying to do business in the 
federal marketplace.

    VET-Force members are of military service from all across 
the United States. They own businesses in every industrial 
sector. The members reflect the ethnic diversity of the country 
itself. The members are concerned for our free market system 
and believe that there hasn't been a more important time to 
stand up for it and all it represents. We want the American 
military to successfully complete the missions that the 
Congress may ask of them and to make sure the American men and 
women in the service of our country are well trained and 
equipped and are able to come home safe when the mission is 
finished.

    Over the years, our organization, VET-Force, has been 
voluntarily conducting oversight of the legislation, 
regulations, policies, and programs intended to improve and 
increase the contracting opportunities for veteran and service 
disabled veteran owned businesses. When we come to know what's 
not working, we do not hesitate to bring that to the attention 
of the Military Departments, Federal Agencies, or to you, the 
members of Congress. Just last year, I testified before this 
Committee about the VA's overly burdensome verification process 
by the Center for Veterans Enterprise of veteran business 
owners who are seeking to participate in the VA's Veterans 
First Contracting Program. For that issue, we supported the 
recommendation to move that process to the SBA, who we know is 
more uniquely qualified for such tasks.

    Through VET-Force, we've also come to know that the Federal 
small business procurement process is not only unkind to 
businesses owned by veterans but is negatively impacting all 
small business groups--8a, Hubzone, Women owned, as well. A few 
years ago, we conducted research and prepared a report 
entitled: `Breakdown! National Security Crisis in a Small 
Business World' which basically showed that the Federal small 
business procurement process is in a state of breakdown and 
collapse, in conflict with U.S. law and policy.

    In my testimony here today, I will draw from that report 
and evidence of federal policies and practices being used 
today, to highlight the impact of federal contract bundling and 
consolidation through the use of Federal Strategic Sourcing 
Initiatives on veteran and other small businesses.

    Many Small Businesses are struggling in the federal 
marketplace. New U.S. trade policies and changes in how 
contracts are competed and awarded have made it much more 
difficult for small businesses to compete against and work with 
large prime contractors. For example, many government 
requirements that could be set aside for small businesses are 
bundled together with other contract requirements and awarded 
to large companies. Only large companies can hope to win these 
contracts as the prime contractor due to the increased amount 
and varied scope of the work. As a result, small companies must 
work within the contract environment almost entirely at the 
discretion and advantage of the large corporation.

    In recent years, the government has been actively promoting 
the use of Federal Strategic Sourcing Initiatives (FSSI) among 
federal agencies in an effort to consolidate procurements in 
such a manner that reduces the costs of goods and services. 
However, to us, the small business owner, FSSI is just a more 
clever way of contract bundling.

    Under the Small Business Act, contract bundling is defined 
as consolidating 2 or more procurement requirements for goods 
or services previously provided or performed under separate 
smaller contracts into one large contract. This often results 
in the contract not being eligible for any one small business 
due to the size, scope and specialized requirements of the 
contract. While consolidation is defined a little differently, 
it still amounts to 2 or more contracts being combined into one 
new contract which may or may not be suitable for a small 
business.

    We know that the House Small Business Committee has heard 
the issue of contract bundling from small business owners 
before. And many legislators have agreed that there have been 
many instances wherein these policies and practices have 
limited the opportunities for many small businesses. But things 
aren't getting any better, many small businesses find they are 
shut out of the contract process and eventually stop wasting 
time and money in the Department of Defense (DOD) procurement 
market and the country is the weaker for it. In a world crying 
out for a new diplomatic formula, Small Businesses are once 
again being left out. Real security begins in the grassroots 
with the kind of economic and political sanctuary provided by 
small business development.

    VET-Force is concerned that by relying so heavily on a few 
large prime contractors, our country makes itself vulnerable to 
a catastrophic interruption in services and a lack of 
competitiveness, innovation and imagination for our military 
that small businesses provide. New technologies combined with 
new trade laws create new supply chains and new models of 
efficiency to meet customer expectations for quality and `on 
time' deliveries. Innovative ideas to produce cost efficiencies 
in government can conflict with valid economic and national 
security policies. Sometimes these efficiencies, as in bundled 
contracts, work better on paper than in actual practice.

    All federal agencies are supposed to identify if a contract 
is bundled or consolidated. There is a dollar threshold per 
agency and certain criteria used to make this determination; 
and achieving reductions in administrative or personnel costs 
alone is not enough. Measurable cost savings; quality 
improvements; reduction in acquisition cycle times; better 
terms and conditions; and other benefits must evident to 
justify the need to bundle or consolidate a procurement. In 
addition, there should be an assessment done to determine the 
impact on small businesses. But who within the procurement 
process actually makes this determination. And once determined, 
then what happens.

    As agencies continue to increase the use of these 
practices, it becomes more challenging to get an outside 
objective analysis of these types of procurements in a timely 
manner. Agencies are required to provide the SBA's Procurement 
Center Representative (PCR) and the agency's own Office of 
Small and Disadvantaged Business Utilization (OSDBU) with a 
statement explaining why the procurement has to be bundled. If 
the PCR objects to the agency's rationale, the PCR can delay 
the procurement while SBA and the agency negotiate, although 
the agency will ultimately make the decision whether to move 
forward with the procurement as is or change the requirements.

    This process of checking the requirements by the PCR is not 
only flawed, but by the mere fact that SBA has decreased the 
number of PCRs to about 50, its highly unlikely that these few 
persons will be able to review 1000s of procurements throughout 
the entire federal government. In recent years, SBA has 
reported that they will collect more data on the number of 
contracts bundled and measure the impact on small businesses. 
However, without be directed by a specific legal requirement, 
their efforts to do so have been less than adequate. VET-Force 
has previously recommended that SBA increase its budget to 
include the hiring of more persons to serve as PCRs. We ask now 
that Congress approve legislation to ensure that SBA carries 
out these vital functions.

    The enduring policy of the United States has been to 
support the small business sector of the American economy for 
important economic and national security reasons. The 
Congressional goal is to ensure a high quality, competitive, 
innovative, efficient and diversified sources of goods and 
services in the marketplace, public and private. The Congress 
also has an interest in a geographically diverse marketplace, 
one that doesn't concentrate economic and political power in 
any one region of the United States.

    For years Administrations have attempted to streamline its 
policies in an effort to reduce costs and save the tax payer 
dollars. Reducing government employees as been one method that 
has been used a lot. In the 1990's, an estimated 15,000 
government procurement positions were eliminated over a decade. 
One of the negative results has been contract bundling. 
Bundling many small contracts into one contract vehicle may 
have been designed as well-meaning way to make government 
contracting more efficient and cost effective. Instead, 
contract bundling has proven to be inefficient and in direct 
conflict with U.S. policy for small business and national 
security.

    So where then are we headed with Federal Strategic Sourcing 
Initiatives? While the policy may be endorsed and promoted by 
OMB in this and previous Administrations, what has been and 
will continue to be the adverse impact on small businesses. The 
government claims that there is a definite improvement in 
procurement efficiencies and cost savings by using strategic 
sourcing procurement vehicles. However, it appears that the 
more these types of procurement vehicles are used, the larger 
the number of small businesses that are not used.

    GSA uses a number of strategic sourcing vehicles. Under the 
Janitorial-Sanitation Supply contract vehicle (JanSan), GSA 
awarded blanket purchase agreements (BPAs) to 18 companies, 15 
of which were small businesses. However, these services were 
previously being provided by 609 companies, 540 of which were 
small businesses. So that means that 525 small businesses will 
no longer be allowed to compete for federal contracts for 
janitorial services and supplies. Under GSA's Maintenance, 
Repair and Operations (MRO) contract vehicle, 418 small 
businesses and 39 service disabled veteran owned small 
businesses were displaced. And yes 10 of the 11 BPAs awarded 
were to small businesses. And while GSA projects that there 
will be a 12% savings by using this method of contracting, 
there are no projections on the percentage loss by the 418 
small businesses that were displaced.

    GSA has other contract vehicles of these types that are 
having the same consequences on hundreds of small businesses--
Oasis and Oasis SB, intended to provide integrated, 
multidisciplinary professional services and ancillary services; 
and MOBIS, Mission Oriented Business Integrated Services. In 
2014, under this contract vehicle, 1270 small businesses were 
not allowed to compete on various task orders.

    And there is another issue. If a company is awarded a GSA 
contract while that company is a small business, and that 
company subsequently becomes a large business, that company may 
still compete (via their GSA contract) as a small business for 
the remaining life of their GSA contract. VET-Force learned of 
a recent contract where, a New England business, lost to a 
large business on a small business set aside contract 
solicitation under these exact circumstances.

    Finally, small businesses competing for government 
contracts find themselves at a disadvantage in the federal 
marketplace and appear to be losing ground all the time. The 
large Prime contractors have been awarded most of the bundled 
contracts with little to no repercussions for not including 
small companies in their subcontracting plans. However, under 
FSSI that use consolidation strategies, a few small businesses 
will no doubt grow and prosper if they are one of the lucky few 
selected, but it's clear to see just from the math that there 
is definitely an adverse impact to far more small businesses.
                      VIETMAN VETERANS OF AMERICA


                           Funding Statement


                             March 16, 2015


    The national organization Vietnam Veterans of America (VVA) 
is a non-profit veterans' membership organization registered as 
a 501(c)(19) with the Internal Revenue Service. VVA is also 
appropriately registered with the Secretary of the Senate and 
the Clerk of the House of Representatives in compliance with 
the Lobbying Disclosure Act of 1995.

    VVA is not currently in receipt of any federal grant or 
contract, other than the routine allocation of office space and 
associated resources in VA Regional Offices for outreach and 
direct services through its Veterans Benefits Program (Service 
Representatives). This is also true of the previous two fiscal 
years.

    For Further Information Contact:

          Executive Director for Policy and Government Affairs
          (301) 585-4000 extension 127
          
        [GRAPHIC] [TIFF OMITTED] 
        
                              Testimony of


                             Damien Specht


                                Partner


                          Jenner & Block, LLP


  Co-Chair, Government Contracts Corporate Transactions Practice Group


           BEFORE THE UNITED STATES HOUSE OF REPRESENTATIVES


                      COMMITTEE ON SMALL BUSINESS


               SUBCOMMITTEE ON CONTRACTING AND WORKFORCE


Regarding ``Contracting and Industrial Base II: Bundling, Goaling, and 
                  the Office of Hearings and Appeals''


                             March 17, 2015

    Chairman Hanna, Ranking Member Velazquez and Members of the 
Subcommittee, thank you for the invitation to appear today. It 
is a privilege to share my views on the ways we can maintain a 
strong industrial base of small business government 
contractors. My name is Damien Specht, and I am a government 
contracts partner with the law firm of Jenner & Block here in 
Washington, D.C. Before I begin, let me state that my comments 
are my own, and I am not speaking on behalf of my law firm or 
any specific client.

    I serve as Co-Chair of the firm's Government Contracts 
Corporate Transactions Practice Group and as a Co-Chair of the 
American Bar Association's Section of Public Contract Law Small 
Business & Other Socioeconomic Programs committee. In each of 
these roles, I work with small government contractors and 
entrepreneurs as they enter the federal market, navigate size 
protests, and, through hard work, develop thriving mid-size 
businesses. I also assist small businesses in corporate 
transactions with large contractors and investors.

    In my testimony, I will address how consolidated 
contracting, whether through bundling or strategic sourcing, 
reduces competition and necessarily limits the number of small 
businesses in the federal marketplace. I would also like to 
briefly discuss the Small Business Administration's scorecard 
rating methodology and, as a litigator who regular appears 
before the Small Business Administration Office of Hearings and 
Appeals, share some thoughts on that forum.

                            Bundling Reform


    Anecdotally, I have heard from many of my small business 
clients that bundling is a problem. For example, facilities 
operation contractors have complained that general maintenance 
services have been bundled with logistics and food services and 
hardware contractors have been excluded from competitions when 
a series of additional items were added to the contract 
requirements. However, because we largely rely on self-
reporting, the government has little reliable data on where 
bundling is occurring, how many contractors are being affected 
by bundling, and the impact that bundling and consolidation are 
having on the small business community.

    As a result, I support the efforts of this subcommittee to 
increase transparency and reporting of data related to 
bundling. In particular, I support the idea that agencies 
should be required to publish bundling justification along with 
issued solicitations. In other circumstances where agencies 
limit competition, such as sole-source awards, we require 
publication of a justification; bundled requirements, which can 
eliminate small business opportunities, should be no different. 
This added transparency will allow small businesses to 
understand the agency's rationale and, if necessary, to protest 
the consolidated requirement.

    I will note, however, that bundling protests are rarely 
successful. I have reviewed dozens of protest decisions by the 
Government Accountability Office that include bundling 
allegations and could only find a small handful that were 
sustained on that basis. This is the case because the GAO gives 
agencies significant deference and only requires ``a reasonable 
basis for its contentions that bundling is necessary.'' \1\ 
This is not a high bar and, as result, it appears that the 
primary way for an agency to lose a bundling protest is to fail 
to perform the statutorily required bundling analysis at 
all.\2\ As a result, in addition to increasing transparency 
surrounding bundling, this committee should consider raising 
the bar for justifying these decisions, which can currently be 
based on as little as a five percent cost savings.\3\
---------------------------------------------------------------------------
    \1\ B.H. Aircraft Company, Inc., B-295399.2, July 25, 2005, 2005 
CPD para. 138.
    \2\ Sigmatech, Inc., B-296401 Aug. 10, 2005, 2005 CPD para. 156 
(sustaining a protest ``where agency failed to perform bundling 
analysis'').
    \3\ Currently, FAR 7.107 provides that bundling may be permissible 
if it results in ``cost savings or price reduction, quality 
improvements that will save time or improve or enhance performance or 
efficiency, reduction in acquisition cycle times, better terms and 
conditions, and any other benefits.'' Cost savings must be 
substantially equivalent to ``(1) Ten percent of the estimated contract 
or order value (including options) if the value is $94 million or less; 
or (2) Five percent of the estimated contract or order value (including 
options) or $9.4 million, whichever is greater, if the value exceeds 
$94 million.'' Id.

---------------------------------------------------------------------------
                   The Downside of Strategic Sourcing


    Although strategic sourcing is technically consolidation 
and not bundling, it can have the same effect of weakening the 
small business government contracting base.

    Strategic sourcing means many things to many people, but 
the basic process includes identifying needs across government 
agencies and consolidating purchases through industry or item-
focused contract vehicles to achieve cost savings. The public 
record is clear that proponents of strategic sourcing have 
worked with small business stakeholders to maximize small 
business participation on these contracts. In fact, most of the 
awardees under the GSA's Federal Strategic Sourcing Initiative 
(FSSI) program are small businesses. That effort is 
commendable, but the problem with strategic sourcing is not one 
of intent or lack of effort to include the small business 
industrial base. The problem is that strategic sourcing, at 
least when accomplished through large contract vehicles, is 
necessarily bad for enhancing the diversity of small government 
contractors in the industrial base. This is the case for a few 
reasons:

    First, the number of offerors that can compete for 
strategic sourcing contracts is limited. As a result, it is not 
at all clear that the Government is getting the best pricing on 
each item or that it is honoring its commitment to full and 
open competition. When the government's solicitation requires 
offerors to provide hundreds of different items in significant 
bulk, as it must to gain the benefits of a strategic sourcing 
contract, that contract structure all but eliminates offerors 
who provide some of the required items but cannot deliver in 
the tremendous quantities required for a government-wide 
purchasing vehicle. As demonstrated by the FSSI Office Supplies 
contract, it is often necessary for hundreds of small 
businesses to team together to fulfill the requirements of 
these large contracts. As you might imagine, these broad 
coalitions among competitors are rare and result in significant 
administrative challenges. This is a real barrier to entry for 
small businesses that could provide some, but not all, items or 
lack the immediate infrastructure to deliver hundreds of 
thousands of items. These same small businesses could fulfill 
the government's needs if smaller, more focused contracts were 
opened for competition among the full breadth of the small 
business base.

    Second, those businesses that do not receive strategically 
sourced awards may find other contract opportunities disappear. 
To drive real volume discounts, purchasing from strategic 
sourcing vehicles, like the FSSI contracts, must be mandatory 
or, at least, highly encouraged. That means that there are a 
small number of significant winners and a far larger number of 
losers.

    For example, in June 2010, GSA awarded the previous 
generation of its FSSI Office Supply blanket purchase agreement 
to 15 companies. Although there were 15 awardees, most of which 
were small businesses, those awardees must be balanced against 
the thousands of possible firms that could have met the 
Government's needs had these requirements been solicitated in 
less volume. This number includes 569 holders of GSA Schedule 
for Office Solutions that could have met the Government's needs 
through a simple Federal Supply Schedule order. All of those 
other businesses, large and small, became holders of an 
essentially useless supply schedule contract.

    As this example demonstrates, small bushiness participation 
percentages reported as part of strategic sourcing do not 
report the whole story. For example, GSA has reported that 
small business participation on its office supply contracts 
increased from 67 percent to 76 percent of spending in fiscal 
year 2014. If the goal of small business programs were simply 
to achieve certain metrics, these numbers would show clear and 
convincing progress. However, I believe that the purpose of 
small business programs is to create a vibrant and diverse base 
of small businesses that can offer innovation and creativity to 
the federal marketplace while creating jobs in communities 
across the country. Judged by that standard, a higher 
percentage of spending that is isolated within a smaller number 
of firms is not a step in the right direction.

    Third, because strategic sourcing contracts are likely to 
reduce the number of sales available to Federal Supply Schedule 
holders, these large contracts may also dissuade small business 
from becoming federal contractors. Traditionally, GSA's Federal 
Supply Schedule program has provided a low barrier to entry 
access point for aspiring government contractors. In fact, the 
overwhelming majority of my small business clients hold at 
least one Federal Supply Schedule contract. The appeal of these 
contracts is obvious: Instead of putting together RFP responses 
for specific procurements and expending significant bid and 
proposal costs, a small contractor looking to enter the federal 
space can put together a single schedule proposal and place its 
entire catalog online. If this low-cost entry is successful, 
the firm can then expand its offerings and compete for other 
federal contracts. If we choose to shift the Government's 
purchases to strategic sourcing contracts and away from the 
rest of Federal Supply Schedule holders, as appears to be the 
case, this small business entry point will be less attractive, 
and we will lose a significant number of possible federal 
contractors.

    Fourth, the award of a strategic sourcing contract is not 
always a benefit to the winners. This is the case because large 
awards can set up a ``hill and valley'' problem for small 
contractors. A small business that receives millions in 
strategic sourcing awards over the contract term is likely to 
expand its infrastructure and employee base to meet those 
needs. However, a firm that remains dependent on a single 
contract for a large portion of its revenue may be unable to 
maintain that infrastructure if it is unable to win the next 
iteration of that contract. As a result, there is the real risk 
that today's winners will face significant difficulties in a 
few years when these large awards have expired, while a 
business that receives regular, but smaller, awards under a 
traditional contracting model will not face the same 
challenges.

    In summary, there is nothing inherently wrong with 
strategic sourcing or purchasing in bulk through large 
multiple-award contracts. However, this committee needs to look 
beneath the surface of overall small business participation 
numbers and judge whether these actions are consistent with 
stated small business policy goals, such as building a diverse 
small business base.

                           Agency Scorecards


    Despite the impact of bundling and consolidation, the 
Federal Government met its overall small business goals (and 
many subcategory goals) in fiscal year 2013. It appears that 
feat was repeated in 2014. These are not minor achievements. 
For years, many of us in the private bar assumed that the 
failure to meet small business goals was going to be the status 
quo. Now, we are hopefully at the beginning of a new normal 
where these goals are achieved on a regular basis.

    This accomplishment is tempered by persistent concerns that 
large contractors are receiving set-aside awards and being 
counted toward small business goals. In my time working in this 
area, I have seen instances where public records indicated a 
set-aside award to a contractor that may not have been a small 
business during the relevant period. Although these may have 
been honest mistakes or data entry errors, continued training 
of contracting officers and explanation of the complicated 
small business rules to the contracting community will be 
helpful in confirming that the proper numbers are being 
reported.

    Further, although achievement of the overall small business 
goal is unquestionably good news, there is still room for 
improvement on an agency by agency basis. As a result, it is 
somewhat misleading for SBA to assign an ``A'' or ``A+'' rating 
to 20 of the 24 agencies reviewed. This is particularly 
troubling when no agency hit all of its goals. For example, 
eight agencies received an overall ``A'' grade while failing to 
meet their overall small business subcontracting goal.\4\ One 
of those agencies, the Department of the Treasury, was assigned 
an ``A'' rating despite subcontracting to small business at 
only a 6.8% rate. The SBA's underweighting of small business 
subcontracting goals is not a mistake. SBA's stated grading 
formula weights prime contract goals achievement as eight times 
more important than subcontracting goals. Although I agree that 
prime contract opportunities may be more beneficial to small 
businesses, it is not clear why the weighting disparity should 
be this significant.
---------------------------------------------------------------------------
    \4\ Each of the Department of Veterans Affairs, State Department, 
Department of Treasury, Small Business Administration, Department of 
Homeland Security, Agency for International Development, Department of 
Education and Department of Health and Human Services received an 
overall ``A'' grade while missing their overall small business 
subcontracting goal.

    Despite the details of SBA's weighting formula, agencies 
should be congratulated for their efforts in meeting the 
government's overall small business goal. However, this 
committee should continue to closely examine the basis for 
those grades to determine where this performance can be 
---------------------------------------------------------------------------
improved.

                     Office of Hearings and Appeals


    Shifting to my role as a small business litigator, I would 
like to address a couple of issues related to SBA's Office of 
Hearings and Appeals (OHA) that are important to small 
contractors.

    Although I certainly do not agree with every decision 
issued by OHA, there is no doubt that it has proven to be an 
efficient alternative to full-scale litigation in federal 
court. As a result, I support making OHA permanent through 
statute. Any such statute should, of course, recognize that 
small businesses may appeal OHA decisions to federal court if 
they so choose.

    Action to formalize the existence of OHA should also 
eliminate an unnecessary redundancy in the Small Business Act. 
Specifically, although OHA's administrative judges have 
developed significant small business expertise, the Small 
Business Act assigns certain appeals, including those related 
to 8(a) program admission and termination, to Administrative 
Law Judges (ALJs), of which OHA currently has none.\5\ This has 
led to a peculiar arrangement where, pursuant to tan 
Interagency Agreement in effect beginning October 1, 2012, ALJs 
at the U.S. Department of Housing and Urban Development hear 
these cases on behalf of SBA. Although I have no doubt that 
this arrangement is effective, it makes more sense to 
centralize small business decisions in OHA as a free-standing 
statutory entity.
---------------------------------------------------------------------------
    \5\ See 15 U.S.C. Sec. 637(a)(9)(A).

    I also understand that the committee is considering 
expanding OHA's jurisdiction to include pre-solicitation 
requests from the contracting officer that OHA assign an 
appropriate NAICS code. This would be a significant change from 
OHA's current rule, which allows NAICS code appeals only after 
a solicitation has been issued. An expansion of OHA's 
jurisdiction in this manner raises a number of concerns that 
---------------------------------------------------------------------------
should be addressed.

    It is my belief that the contracting officer is in the best 
position to understand the nature of a given procurement beyond 
the text of the solicitation. As a result, the contracting 
officer should be charged with assigning the correct NAICS code 
to a solicitation in the first instance and should not be 
allowed to delegate that decision to OHA.

    Further, allowing such a delegation could create a scenario 
where contracting officers may seek to ``protest-proof'' each 
solicitation by running it through OHA. This would, of course, 
overwhelm OHA with unnecessary cases.

    Finally, I believe that the NAICS code appeal process 
benefits from the input of small business contractors. This 
process could be undercut by a pre-solicitation process 
initiated by the contracting officer. Whether they are 
protestors or intervenors, small businesses must be allowed to 
review the text of a final solicitation to raise different 
perspectives and applicable NAICS codes to OHA. In fact, it may 
be beneficial to expand the filing deadline for NAICS appeals, 
which currently stands at 10 days after issuance of a 
solicitation, to allow small businesses to become aware of and 
review the extensive solicitations that support modern 
procurements.

                               Conclusion

    In conclusion, I would like to commend this committee for 
going beyond small business metrics to focus on the diversity 
of a healthy small business subcontracting base. I look forward 
to your questions.
[GRAPHIC] [TIFF OMITTED] T3731.024

    Chairman Hanna, Ranking Member Velazquez, and members of 
the Subcommittee, I am Rod Manson, President of the National 
Office Products Alliance (NOPA), and owner of Office Advantage, 
a small office supply company located in Poway, California.

    The National Office Products Alliance (NOPA) is a not-for-
profit trade association established in 1904 that represents 
and serves more than 1,000 small independent commercial dealers 
throughout the United States, along with their key suppliers.

    I appreciate the opportunity to offer this statement for 
the record today about the need to ensure that small businesses 
in our industry have fair, ongoing access to opportunities in 
the federal market. There have been a number of developments 
since 2010 with respect to management of the GSA Schedule 75 
program in general, and implementation of the ``third-
generation'' Federal Strategic Sourcing Initiative (FSSI) for 
office supplies in particular that have broadly impacted our 
members and what we consider to be the new contract bundling. I 
will highlight these developments in my statement today.

    First and foremost, NOPA is greatly concerned about the 
abrupt and widespread impact on small businesses in our 
industry due to the General Services Administration's (GSA) 
implementation of the current FSSI program for office supplies. 
We acknowledge that the FSSI program has generated new 
opportunities for some small businesses in our industry, 
including some of our very capable members. At the same time, 
there are many other members who have invested with government 
encouragement in obtaining their own Schedule 75 contracts, 
only to see their current opportunities eliminated as a result 
of the near-mandatory, government-wide implementation of FSSI 
(or contract bundling 2.0).

    Given the government-wide scope of this FSSI and the large 
number of small businesses that were participating in this 
market in FY2010, NOPA was surprised that GSA did not undertake 
a small business impact study before launching its second and 
third generation FSSI's for office supplies. It then went a 
step further and--without any such study as required under the 
Regulatory Flexibility Act--published a proposed rule in June 
2011 that called for creation of a special preference for 
federal strategic sourcing initiatives within the FAR.

    As an association, we have worked to find the ``middle 
ground'' within our membership on this issue. We do not wish to 
impair the new opportunities of members who competed for and 
were awarded FSSI blanket purchase agreements (BPAs). At the 
same time, we would be remiss if we did not highlight our 
concerns about how FSSI has been implemented.

    After monitoring FSSI implementation of OS2 and seeing its 
far-ranging impacts, we agreed within the NOPA Board to urge 
GSA and the Administration as a whole to issue a Statement of 
Administration Policy (SAP) to clarify to federal agencies what 
our industry has been told by GSA and the Administration just 
prior to the bid process: that FSSI would be implemented on a 
non-mandatory basis, allowing non-awarded GSA Schedule 75 
holders to continue to compete for federal business.

    Since that time, it has become clear that FSSI volume and 
its share of total federal spending on office supplies would 
continue to grow as more and more major agencies issued 
guidance to buyers that FSSI use was mandatory except in 
unusual situations.

    NOPA has maintained a dialogue with GSA and the Office of 
Federal Procurement Policy (OFPP) on FSSI implementation since 
2010 and I am here today to urge this Committee, the full 
Congress and the Administration to acknowledge and address the 
impact of strategic sourcing (or contract bundling 2.0) has had 
on our industry in a forthright way. The solution is simple and 
relies on allowing more competition and flexibility in 
purchasing as ways to achieve FSSI's goals and reduce job loss 
pressures in our industry.

    First, the Administration needs to issue a very clear 
Statement of Administration Policy (SAP) that restores full 
competition within the federal market for our industry's 
products. This approach, if communicated and implemented 
broadly, will help ensure genuine ongoing choice of procurement 
vehicles for agencies and will help the Administration achieve 
the overall budgetary savings it hopes to achieve through the 
FSSI program.

    Mandatory implementation of FSSI on a government-wide basis 
represents a massive form of ``contract bundling'' which has 
and will continue to reduce the opportunities and the ultimate 
level of small business participation and healthy, long-term 
competition in federal markets.

    Second, there needs to be more flexibility to allow 
individual dealers with their own GSA Schedules to participate 
in FSSI as ``Consortia''. Consortia should be subject to 
reasonable ground rules, but this should not mean they must 
give up their rights to compete for non-FSSI federal business 
opportunities using their regular GSA schedule contracts. This 
is essential, since Consortia will need to bear significant 
administrative fees from GSA and their chosen FSSI BPA holder 
partners, as well as normal costs associated with properly 
servicing federal accounts.

    NOPA had numerous meetings and conversations with GSA 
regarding the Consortia model and we ask this Committee to 
strongly encourage them to work toward an expeditious and 
balanced conclusion.

    We hope that this Committee will reflect on the history of 
FSSI implementation in our industry and consider how the small 
business impacts can be mitigated in the future. At the end of 
FY 2010, there were 550, most small, companies and a few 
dealer-based organizations competing for federal business with 
one or more departments and agencies under the regular GSA 
Schedule 75 contract program and/or using individual agency 
blanket purchase agreements (BPAs). Today those numbers have 
and continue to shrink at an alarming rate.

    However, with the rapid, GSA/OFPP-orchestrated push for use 
of FSSI on a government-wide basis using just 1 large (and I 
must point out that with the recent merger of Office Depot and 
Staples there will be only 1 large corporate company in this 
industry thus meaning they will almost automatically be given 
an FSSI award in the future if the past OS solutions are any 
indicators), 22 small vendors, and 1 Consortia, the economic 
fallout has been swift and dramatic for most of the remaining 
Schedule 75 contract holders.

    With more competition, GSA and all Federal agencies can 
enjoy better pricing and faster, more customized service in 
local areas throughout the country where they operate. If 
additional qualified dealer consortia with experienced vendor 
members are able to participate in the next FSSI program, our 
industry will be able to provide more reasons for agencies to 
utilize the FSSI program on a broader scale, as well as 
improvements in overall program efficiencies. In short, there 
will be more qualified small businesses with a vested interest 
in the FSSI program's long-term success.

    In today's budget-constrained and fast-paced environment, 
GSA and other federal agencies seek to minimize the number of 
separate prime contractors with which they work, while 
maximizing the quality and local responsiveness of delivery and 
other services received. NOPA believes that dealer consortia--
consisting of small business dealers, many who meet defined 
socio-economic criteria--offer an ideal solution for many 
federal agencies, particularly those with facilities and 
employees operating in different parts of the country.

    The industry needs a clear and concise statement from GSA 
that they do not plan to cancel or eliminate Schedule 75 as 
indicated by GSA to industry officials. In fact, GSA needs to 
reopen Schedule 75 so new small businesses can have access to 
the government market.

    Early GSA communication and guidance to GSA Schedule 75 
contractors and others in the industry with respect to the 
FSSI-OS3 bid process and required technical qualifications is 
an essential part of expanding qualified small business 
competition in the next-generation acquisition. GSA has 
maintained a moratorium on acceptance of new Schedule 75 offers 
since October 2010 and there are at least a few individual 
dealers and at least one major dealer consortia that NOPA 
believes are likely to apply for a Schedule 75 contract if the 
opportunity is provided.

    Based on our industry's experience, the Schedule 75 
application process has required several months to complete. 
For this reason, NOPA suggested to GSA that they provide 
advance notice as soon as possible of the expected timing and 
requirements of any planned lifting of the moratorium on 
acceptance of Schedule 75 applications. Advance notice of GSA's 
plans will allow non-schedule holders (whether individual 
companies or dealer consortia) to determine whether they are 
qualified to become Schedule 75 contractors and, if so, to 
begin the process of preparing and filing Schedule 75 contract 
applications.

    To continue to grow the FSSI program's cost savings and 
federal agency participation, NOPA believes the most qualified 
small business participants should be in a position to bid. To 
ensure GSA and federal agencies have access to the most 
qualified, competitive and committed small businesses--many of 
which are now members of three established dealer consortia in 
the office products industry--it is appropriate to maintain a 
high standard of technical and performance requirements that 
broadly meet federal government agencies' needs. Those outlined 
for the FSSI-OS3 bid process offer a logical starting point, 
but we anticipate that GSA and OFPP also will review more 
recent experiences agencies have had during the first three 
years of the FSSI-OS3 BPA program and incorporate new ideas 
into the requirements.

    To make this type of solution widely available and as 
competitive as possible, NOPA encourages GSA and OFPP to 
consider establishment of a separate ``bid pool'' in which 
qualified dealer consortia could compete for multiple BPA 
awards in the FSSI acquisition process.

    By NOPA's definition, a qualified ``dealer consortia'' has 
the following characteristics:

           The consortia is self-formed among small 
        business members for the explicit purpose of providing 
        national account services effectively to large and 
        geographically dispersed customers, whether 
        governmental, institutional and/or commercial;

           Provides a strong administrative and 
        technical infrastructure, including a centralized, 
        integrated customer-facing website and a comprehensive 
        ordering, fulfillment, billing and customer service 
        interface with national/regional customers; and

           Has a systematic training and compliance 
        program in place to ensure its small business members 
        consistently understand and meet all customer technical 
        and service performance requirements.

    This three-part profile and strong infrastructure 
distinguish a qualified ``dealer consortia'' from other small 
dealer groups that may not have all of those elements fully in 
place, and/or which may have been formed to pursue a single 
federal or other bidding opportunity. While such dealer groups 
may be competitive, they may lack the performance discipline 
and administrative/technical infrastructure of dealer consortia 
whose national account purpose is more broadly developed and/or 
whose members have long-standing relationships that foster 
positive operating synergies benefitting their customers.

    Ironically, this situation is occurring in a commodity area 
where small businesses owned and operated by women, minorities, 
service-disabled veterans and second- and third-generations of 
entrepreneurial families have been well represented and highly 
successful against much larger national competitors.

    GSA Should Not be in the Business of Dictating Price

    As vendors we are asked by the government to provide them 
with our best prices. During the bid process we do just that. 
When deciding on awards we assume GSA looks at those vendors 
who are prepared to offer the government the best price. Once 
binds are awarded and contracts signed, GSA should be required 
to live up to the terms of those contracts. Under the current 
practice, GSA has been going back to vendors and requiring them 
to lower their price. Shouldn't GSA be asking that during the 
selection process and not after they award and sign contracts 
with vendors? We are concerned that GSA in a sense is fixing 
prices and not allowing for competition to dictate prices. GSA 
should not be in the business of using a generic formula to 
decide what is the average price of a product. That is what the 
market is for. If GSA doesn't like a vendors pricing it should 
not have selected that vendor and signed a contract with them. 
We are asked to give the government the best prices we offer 
our top commercial clients. When we do that and GSA signs a 
contract to buy items at those prices they should not after the 
fact be able to pressure or threaten to take our contracts away 
if we do not lower our prices to a threshold they deem 
reasonable.

    We do not believe that this result--a net economic loss for 
small business--is what Congress or the Administration intended 
or is what our Nation needs as our economy is showing uneven 
signs of recovery. More competition--not less--is the solution 
and can be readily restored in the federal market for office 
products by making the FSSI program truly one option, rather 
than a mandatory or quasi-mandatory option, among those that 
have been in place and working effectively for some time.

    Thank you again for allowing me to submit this statement 
for the record on behalf of NOPA and our industry.

                           [all]