CONFERENCE REPORT ON S. 272/H.R. 1043

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• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP86B00338R000200240014-1
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 37
• Document Creation Date: December 21, 2016
• Document Release Date: November 20, 2008
• Sequence Number: 14
• Publication Date: July 29, 1983
• Content Type: MEMO

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OFFICE OF LEGISLATIVE LIAISON
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ROUTING AND RECORD SHEET
SUBJECT: (Optional)
Conference Report on S. 272/H.R. 1043
FROM.
EXTENSION
NO.
OGC 83-06411
Assistant General Counsel
DATE
29 July 1983
TO: (Officer designation, room number, and
building)
DATE
OFFICER'S
INITIALS
COMMENTS (Number each comment to show from whom
to whom. Draw a lin* oaoss column after each comment.)
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OGC 83-06411
I OLL #
29 July 1983 83-1739
MEMORANDUM FOR: Director, Office of Legislative Liaison
STAT FROM:
STAT
STAT
SUBJECT:
REFERENCE:
Assistant General Counsel
Conference Report on S. 272/H.R. 1043
Memo from DC/LED/OGC, dated 29 June 1983, same
subject (OGC 83-05454)
Reference memorandum from addressed continuing
Congressional action regarding subject legislation. Paragraph 3
of the memorandum raises an issue of particular concern to the
Agency. The legislation contains language which would provide
that the determination regarding sole source procurements rests
with the head of the procuring activity or his deputy on a
non-delegable basis. On occasion we have asserted that the head
of the procurement activity for this Agency is the Director of
Logistics and not the Director of Central Intelligence. If the
latter is the interpretation of the members of Congress, it
provides an entirely unworkable system to which we should object.
If the former is the intent, it will restrict current practice of
the Agency, which is to delegate this authority to contracting
officers or, at a minimum, division chiefs. It is our position
that we should retain maximum flexibility and attempt to have the
language liberalized or eliminated from the legislation. You may
wish to seek the views of the Procurement Management Staff,
Office of Logistics, on this matter, prior to any response to
Congress.
Attachment:
Referent
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STAT
STAT
STAT
STAT
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MEMORANDUM FOR:
FROM:
SUBJECT:
OGC 83-05454
29 June 1983
Logistics and Procurement Law Division, OGC
Legislation Division, OGC
Conference Report on S. 272/H.R. 1043
1. As per our conversation, attached is a copy of the
"Conference Report on S. 272, Commerce Business Daily," the
conference report on S. 272/H.R. 1043.
2. The most important thing to note is on page H 4433 in
Section 2 of the "Joint Explanatory Statement of the Committee
of Conference." As that Section indicates, the conferees
rejected the Senate approach on the exemption for classified
procurements to the general requirement of notice in the
Commerce Business Daily and instead determined to retain
existing law. As you know, the Agency is well served by
existing law. Hence, this return to existing law is even
better than the language we negotiated with the Senate and thus
is a real gain.
3. You should also note Section 11 of the Statement. As
that Section indicates, the conferees determined to adopt a
prohibition against sole source contracts, notwithstanding any
other provision of law, except those where the head of the
procuring activity or his deputy, on a nondelegable basis,
approves them. Nondelegability was not in either Bill and thus
did not appear to be an issue going into conference. My own
belief, however, is that the conferees included it in deference
to the Senate, given that the Senate retreated on so many other
issues.
4. The Senate passed the Conference Report on
June 27, 1983. House action is expg.mt.mel?J-hin %mak
Legislation Division
Office of General Counsel
Attachment
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June 23, 1983
CONGRESSIONAL RECORD ? HOUSE H 4431
time when our contemporary Explorer
has just left our solar system for
worlds beyond. It is appropriate that
we plan to celebrate the victory of a
man who refused to believe that the
world was flat at a time when the
Challenger shuttle circles our globe far
above the oceans which Columbus
sailed.
The accomplishments of today are
the result of the same courage, the
same creativity and the same convic-
tion exemplified by Christopher Co-
lumbus.
The Quincentennary Jubilee does
not just honor Christopher Columbus'
discovery of America. It embodies our
own respect and reverence for all who
rise to meet the challenges?and so by
doing?discover new worlds.
APPOINTMENT OF CONFEREES
ON H.R. 3135, LEGISLATIVE
BRANCH APPROPRIATIONS,
1984
Mr. OBEY, Mr. Speaker, I ask
unanimous consent to take from the
Speaker's table the bill (H.R. 3135)
making appropriations for the legisla-
tive branch for the fiscal year ending
September 30. 1984, and for other pur-
poses, with Senate amendments there-
to. disagree to the Senate amend-
ments, and agree to the conference
asked by the Senate.
The SPEAKER pro tempOre. Is
there objection to the request of the
gentleman from Wisconsin? The Chair
hears none and, without objection, ap-
points the following conferees: Messrs.
FAZIO, OBEY, MURTHA, TRAXLER, Mrs.
BOGGS, and Messrs. HIGHTOWER, WHIT-
TEN, ;awn of California. CONTE,
MYERS, and PORTER.
There was no objection.
CONFERENCE REPORT ON S. 273,
EXTENSION OF 8(A) PILOT
PROGRAMS
Mr. MITCHELL submitted the fol-
lowing conference report' and state-
ment on the Senate bill (S. 273) to
amend section 8(a)(1) of the Small
Business Act:
CONFIRF.NCE REPORT (H. Reim No. 98-262)
The committee of conference on the disa-
greeing votes of the two Houses on the
amendment of the House to the bill (S. 273)
to amend section 8(aX1) of the Small Buil-
ness Act, having met, after full and free con-
ference, have agreed to recommend and do
recommend to their respective Houses as
follows:
That the Senate recede from its disagree-
ment to the amendment of the House and
agree to the same with an amendment as
follows:
In lieu of the matter proposed to be in-
serted by the House amendment insert the
following:
Sec. 1. (a) Clause (13) of the first sentence
of section 8(a)(1) of the Small Business Act
is amended by striking out ", as shall be des-
ignated by the president within 60 days
after the effective date of this paragraph,"
and inserting in lieu thereof "(other than
the Department of Defense or any compo-
nest thereof) as shall be designated by the
President.": and ?
(b) The designation of an agency pursuant
to the amendment made by subsection (a)
shall be made not later than sixty days after
the date of enactment of this Act.
SEC. 2. The last sentence of section 8(a)(1)
of the Small Business Act is amended to
read as follows: "No contract may be en-
tered into under subparagraph (B) prior to
October I. 1983 nor after September 30,
1985.".
Sic. 3. The last sentence of section 8(a)(2)
Is amended to read as follows: "The authori-
ty to waive bonds provided in this para-
graph (2) may not be exercised prior to Oc-
tober 1, 1983 nor after September 30. 1985.".
Amend the title so as to read: "An Act to
amend section 8(a) of the Small Business
Act.".
And the House agree to the same.
PARR= J. MITCHELL
? NEAL SMITH.
JOSEPH P. ADDASSO.
Ron WIDEN.
DENNIS E. ECEART.
Tom Lumen.
Joszett M. McDikos.
su.vio a CONTE.
WM. BROOMFIELD.
LYLE WILLIAMS.
Managers on the Part of the Mouse.
Low= P. WEICKER, Jr.
RUDY BOSCHWITZ.
LARRY PRESSLER.
SAM NUNN.
CARL Levin.
Managers on the Part of the Senate.
JOINT EXPLANATORY STATEMENT OF THE
COMMITTEE OF CONFERENCE
The managers on the part of the House
and the Senate at the conference on the dis-
agreeing votes of the two Houses on the
amendment of the House to the bill (S. 273)
to amend section 8(0(1) of the Small Busi-
ness Act, submit the following joint state-
ment to the House and the Senate in expla-
nation of the effect of the action agreed
upon by the managers and recommended in
the accompanying conference report:
The House amendment struck all of the
Senate bill after the enacting clause and in-
serted a substitute text.
The Senate recedes from its disagreement
to the amendment of the House with an
amendment which is a substitute for the
Senate bill and the House amendment. The
principle differences among the Senate bill,
the House amendment, and the substitute
agreed to in conference are noted below,
except for clerical corrections, conforming
changes made necessary by agreements
reached by the conferees, and minor draft-
ing and clarifying changes.
I. a la) PROCUREMENT nun.
P.L. 95-507 authorized an 8(a) pilot pro-
gram which expired September 30. 1980.
Under the provisions of the pilot, the Presi-
dent was authorized to select one agency
over whom SBA would be given the authori-
ty to take procurement contracts for inclu-
sion in SBA's 8(a) program for the develop-
ment of minority enterprise. The President
selected the Department of the Army.
The Senate bill would reopen the pilot
program and require the President to select
a new agency, other than the Defense De-
partment or a component thereof, within
sixty days. The pilot program would expire
twenty months after enactment (sixty days
for the President to act plus eighteen
months for the pilot to operate).
The Mouse amendment also would reopen
this pilot program on October 1, 1983 for a
period of two years, but would not restrict
the authority of the President as to the
agency to be selected nor would it require
the selection to be done within any particu-
lar time frame.
The conference substitute reopens this
pilot program on October 1, 1983 and re-
quires the President, within sixty days after
enactment, to select a new agency, other
than the Defense Department or a compo-
nent thereof, to participate in the program.
The pilot is effective through September 30.
1985.
I. SURETY BOND PILOT
P.L. 95-507 also authorized a surety bond
pilot program which expired September 30,
1980. Under this pilot, SBA was autborized
to waive surety bond requirements for 8(a)
contractors which are start-up concerns and
which have not been participating in the
8(a) program for more than one year. It
took SBA more than two years to adopt
final regulations. The Agency never granted
any waivers.
The Senate bill does not reopen this pilot
Program.
The Mouse amendment, effective on Octo-
ber I. 1983. would reopen this pilot program
through September 30, 1985.
The conference substitute also reopens this
pilot program on October 1. 1983 through
September 30, 1985.
The conferees recognize that by its terms
the use of this authority will be limited
under the eligibility requirements. Under
the statute, before any bond requirement is
waived. the Administration must determine,
among other things, that the 8(a) small
business concern is unable to obtain the req-
uisite bond either from a surety company or
by using the Administration's guarantee
program. Furthermore, the Administration
must determine that the contractor has the
ability to perform the contract.
On the other hand, the conferees expect
that the Administration will take the neces-
sary steps to implement this pilot program
and not take any action which would unnec-
essarily limit potential eligible participants
by excluding from entrance into the regular
8(a) program firms which might be eligible
for a bond waiver if admitted to the pro-
gram.
PARREN J. Mizcitzu.,
Nut SMITH,
JOSEPH P. ADDAMS%
Ron WIDEN,
DENNIS E. ECILART,
Tom Luzza,
Joszen M. McDans,
Sam 0. Com.,
WILLIAM S. BROOMFIELD.
LYLE WILLIAM.
Managers on the Part of the House.
Lowzu. P. WEICXXR. Jr,
RUDY BOSCHWITZ.
LARRY PRESSLER,
SAM NUNN.
- CARL Levin,
Managers on the Part of the Senate.
CONFERENCE REPORT ON S. 272,
COMMERCE BUSINESS DAILY
Mr. MITCHELL submitted the fol-
lowing conference report and state-
ment on the Senate bill (S. 272) to im-
prove small business access to Federal
procurement information:
ColirEamcz Rcrowr (IL Barr. No. 98-263)
The committee of conference on the disa-
greeing votes of the two Houses on the
amendment of the House to the bill (& 272)
to improve small business access to Federal
procurement information, having met; after
full and free conference, have agreed to rec-
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CONGRESSIONAL RECORD ? HOUSE
onmend and do recommend to their respec-
tive Houses as follows:
That the Senate recede from its disagree-
ment to the amendment of the House and
agree to the same with an amendment as
follows:
In lieu of the matter proposed to be in-
serted by the House amendment insert the
following:
"(a) Section 8(e) of the Small Business
Act is amended to read as follows:
"(eX1) It shall be the duty of the Secre-
tary of Commerce, and the Secretary is
hereby empowered, to obtain notice of all
proposed competitive and noncompetitive ci-
vilian and defense procurement actions of
$10,000 and above from any Federal depart-
ment, establishment or agency (hereinafter
in this subsection referred to as 'depart-
ment') engaged in procurement of property.
supplies, and services in the United States;
and to publicize such notices in the daily
publication Commerce Business Daily, im-
mediately after the necessity for the pro-
curement is established: Provided, That
nothing in this paragraph shall require pub-
lication of such notices with respect to
those procurements in which it is deter-
mined on a case-by-case basis that (A) the
procurement for security reasons is of a
classified nature; (B) the Federal depart-
ment's need for the property, supplies, or
services is of such unusual and compelling
urgency that the Government would be seri-
ously injured if the time periods provided
for in paragraph 2 were complied with; (C) a
foreign government reimburses the Federal
department for the cost of the procurement
of the property, supplies, or services for
such government and only one source is
available, or the terms of an international
agreement or treaty between the United
States and a foreign government authorize
or require that all such procurement shall
be from sources specified within such inter-
national agreement or treaty; (D) a statute
provides that the procurement be made
through another Federal department or
from a specified source; (E) the procure-
ment is for utility services and only one
source is available; (F) the procurement is
made against an order placed under a re-
quirement or similar contract, including
orders for perishable subsistence supplies;
(0) the procurement results from accept-
ance of a proposal pursuant to the Small
Business Innovation Development Act of
1983 or an unsolicited proposal from an edu-
cational institution that demonstrates a
unique or innovative research concept and
publication of such unsolicited proposal
would improperly disclose the originality of
thought or hmovativeness of the proposed
research; or (H) it is determined in writing
by the head of the Federal department,
with the concurrence of the Administrator,
that advance notice is not appropriate or
reasonable.
"(2) Whenever a Federal department is re-
quired to publish notice of procurement ac-
tions pursuant to paragraph (1) of this sub-
section, such department shall not?
"(A) issue a solicitation until at least fif-
teen days have elapsed from the date of
publication of a proper notice of the action
In the Commerce Bushiess Daily, except if
the solicitation is for procurement of re-
quirements categorized as research or devel-
opment effort, in which case until at least
thirty days have elapsed from the date of
such publication;
"(B) foreclose competition until at least
thirty days have elapsed from either (I) the
date of issuance of the solicitation, or (ii) In
the case of orders under a basic agreement,
basic ordering agreement, or similar ar-
rangement, the date of publication of a
proper notice of intent to place the order; or
"(C) commence negotiations for the award
of a sole source contract until at least thirty
days have elapsed from the date of publica-
tion of a proper notice of intent to contract:
Provided. That nothing in this subpara-
graph shall prohibit an officer or employee
of a Federal department from responding to
a request for information.
"(3) Whenever notice is required by para-
graph (1), such notice shall include?
"(A) a clear description of the property,
supplies, or services to be contracted for,
which description is not unnecessarily re-
strictive of competition;
"(B) the name, address and telephone
number of the officer or employee of the
Federal department who may be contacted
for the purpose of obtaining a copy of
either the solicitation or, if the notice is for
an intent to contract on a sole source basis,
such specification and information as Prac-
ticable regarding the service or performance
to be awarded; and
"(C) solely with respect to notice of intent
to contract on a sole source basis, a state-
ment that interested persons are invited to
identify their interest and capability to re-
spond to such requirement, or to submit
proposals in response to such notice, within
the stated period of time provided under
paragraph (2).
"(4) Notwithstanding any other provision
of law, unless the negotiations would be
conducted pursuant to this section or sec-
tion 9 of this Act, a Federal department
may not commence negotiations for the
award of a sole source contract for more
than $1.000,000 in fiscal year 1984, for more
than $500,000 in fiscal year 1985 and for
more than $300,000 in fiscal year 1986 and
each year thereafter unless?
"(A) the head of the procuring activity or
his deputy, on a non-delegable basis, has ap-
proved the authority to enter into such con-
tract, and
"(B) the contracting officer for such sole
source contract has evaluated the responses
to the notice of procurement action re-
quired in subparagraph (3)(C):
Provided, That nothing in this subpara-
graph shall prohibit an officer or employee
of a Federal department from responding to
a request for information.
"(5) In the case of all procurement actions
in excess of $25,000 in which the award of a
contract is likely to result in the award of
subcontracts under such contract, unless
the procurement for security reasons is of a
classified nature, the Federal department
shall promptly furnish for publication by
the Secretary of Commerce a notice an-
nouncing the award in the Commerce Busi-
ness Daily.
"(6) As used in this subsection?
"(A) the term 'sole source contract' means
a contract for the purchase of property,
supplies or services which is entered into or
proposed to be entered into by a Federal de-
partment after soliciting and negotiating
with only one source.
"(B) The term 'unsolicited proposal'
means a proposal that is submitted to a Fed-
eral department on the initiative of the sub-
mitter for the purpose of obtaining a con-
tract with the United States government,
and which is not in response to a formal or
informal request (other than a department-
al request constituting a publicized general
statement of need in areas of science and
technology-based research and development
that are of interests to the department).".
(b)(1) Except as to the amendments made
to section 8(e)(4) of the Small Business Act
as added by section (a) of this Act, the
amendments made by this Act shall apply to
procurement actions initiated ninety days
after the date of enactment of this Act.
June 28, 1983
(2) The amendments made to section
8(eX4) of the Small Business Act as added
by section (a) of this Act shall apply to pro-
curement actions initiated on or after Octo-
ber 1, 1983.
(3) The provisions of this Act shall apply
to the Tennessee Valley Authority only
with respect to procurements to be paid
from appropriated funds.
And the House agree to the same.
PARRZN J. Dazzcan.i.,
NEAL Burnt,
JOSEPH P. ADDABSO,
Ron
DENNIS E. ECKART.
Tom Lunn,
Josere M. McDaes,
&tyro 0. Coirre,
WILLIAM S. BROOMFIELD,
LYLIS WILLIAMS,
Managers on the Part of the House.
Lower.t. P. Witorse, JR..
RUDY BOSCHWITE,
LARRY PRISSLER,
SAM Nose,
CARL Leine.
Managers on the Part of the Senate.
JOINT EXPLANATORY STATEMENT OF Tug
CONIMITITZ or Coxrzezxcs
The managers on the part of the House
and the Senate at the conference on the dis-
agreeing votes of the two Houses on the
amendment of the House to the bill S. 272)
to improve small business access to Federal
procurement information, submit the fol-
lowing joint statement to the House and the
Senate in explanation of the effect of the
action agreed upon by the managers and
recommended in the accompanying confer-
ence report:
The House amendment struck all of the
Senate bill after the enacting clause and in-
serted a substitute text.
The Senate recedes from its disagreement
to the amendment of the House with an
amendment which is a substitute for the
Senate bill and the House amendment. The
principal differences among the Senate bill,
the House amendment, and the substitute
agreed to in conference are noted below,
except for clerical corrections, conforming
changes made necessary by agreements
reached by the conferees, and minor draft-
ing and clarifying changes.
Under section 8(e) of the Small Business
Act. the Secretary of Commerce is directed
to obtain and publish notice of Federal pro-
curements above stated dollar thresholds,
with ten enumerated exemptions. The exist-
ing statute does not, however, provide for
any time intervals between the date of pub-
lication of the notice and the awarding of
the procurement contract Both the Senate
bill and the House amendment prohibit a
Federal department from issuing a solicita-
tion for at least fifteen days after the date
of publication of a notice of the procure-
ment in the Commerce Business Daily and
further prohibit Federal agencies from fore-
closing competition for the procurement for
an additional thirty days after either the is-
suance of the solicitation or in the case of
orders under a basic agreement, basic order-
ing agreement, or similar arrangement, the
date of publication of a notice of intent to
place the order.
The conferees intend that this authority
to publish notices of Federal procurements
should continue to be vested in the Secre-
tary of Commerce, or (II any newly-created
cabinet department that encompasses the
trade functions of the Commerce Depart-
ment. The conferees further expect that
any other effort to transfer this authority
from the department will be undertaken
legislatively.
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98m. JNORESS 1 HOUSE OF REPRESENTATI. 3 1 REPORT
18t Session I No. 98-263
COMMERCE BUSINESS DAILY
JUNE 28, 1983.?Ordered to be printed
Mr. MITCHELL, from the committee of conference,
submitted the following
CONFERENCE REPORT
[To accompany S. 272]
The committee of conference on the disagreeing votes of the two
Houses on the amendment of the House to the bill (S. 272) to im-
prove small business access to Federal procurement information,
having met, after full and free conference, have agreed to recom-
mend and do recommend to their respective Houses as follows:
That the Senate recede from its disagreement to the amendment
of the House and agree to the same with an amendment as follows:
In lieu of the matter proposed to be inserted by the House
amendment insert the following:
"(a) Section 8(e) of the Small Business Act is amended to read as
follows:
"(eX1) It shall be the duty of the Secretary of Commerce, and the
Secretary is hereby empowered, to obtain notice of all proposed
competitive and noncompetitive civilian and defense procurement
actions of $10,000 and above from any Federal department, estab-
lishment or agency (hereinafter in this subsection referred to as
'department') engaged in procurement of property, supplies, and
services in the United States; and to publicize such notices in the
daily publication Commerce Business Daily, immediately after the
necessity for the procurement is established: Provided, That noth-
ing in this paragraph shall require publication of such notices with
respect to those procurements in which it is determined on a case-
by-case basis that (A) the procurement for security reasons is of a
classified nature; (B) the Federal department's need for the proper-
ty, supplies, or services is of such unusual and compelling urgency
that the Government would be seriously injured if the time periods
provided for in paragraph 2 were complied with; (C) a foreign gov-
ernment reimburses the Federal department for the cost of the pro-
curement of the property, supplies, or services for such government
11-0060
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2
and only one source is available, or the terms of an international
agreement or treaty between the United States and a foreign gov-
ernment authorize or require that all such procurement shall be
from sources specified within such international agreement or
treaty; (D) a statute provides that the procurement be made
through another Federal department or from a specified source; (E)
the procurement is for utility services and only one source is avail-
able; (F) the procurement is made against an order placed under a
requirement or similar contract, including orders for perishable
subsistence supplies; (G) the procurement results from acceptance
of a proposal pursuant to the Small Business Innovation Develop-
ment Act of 1982 or an unsolicited proposal from an educational
institution that demonstrates a unique or innovative research con-
cept and publication of such unsolicited proposal would improperly
disclose the originality of thought or innovativeness of the proposed
research; or (H) it is determined in writing by the head of the Fed-
eral department, with the concurrence of the Administrator, that
advance notice is not appropriate or reasonable.
"(2) Whenever a Federal department is required to publish notice
of procurement actions pursuant to paragraph (1) of this subsec-
tion, such department shall not?
"(A) issue a solicitation until at least fifteen days have
elapsed from the date of publication of a proper notice of the
action in the Commerce Business Daily, except if the solicita-
tion is for procurement of requirements categorized as research
or development effort, in which case until at least thirty days
have elapsed from the date of such publication;
"(B) foreclose competition until at least thirty days have
elapsed from either (i) the date of issuance of the solicitation,
or (ii) in the case of orders under a basic agreement, basic or-
dering agreement, or similar arrangement, the date of publica-
tion of a proper notice of intent to place the order; or
"(C) commence negotiations for the award of a sole source
contract until at least thirty days have elapsed from the date
of publication of a proper notice of intent to contract: Provided,
That nothing in this subparagraph shall prohibit an officer or
employee of a Federal department from responding to a re-
quest for information.
"(3) Whenever notice is required by paragraph (1), such notice
shall include?
"(A) a clear description of the property, supplies, or services
to be contracted for, which description is not unnecessarily re-
strictive of competition;
"(B) the name, address and telephone number of the officer
or employee of the Federal department who may be contacted
for the purpose of obtaining a copy of either the solicitation or,
if the notice is for an intent to contract on a sole source basis,
such specification and information as practicable regarding the
service or performance to be awarded; and
"(C) solely with respect to notice of intent to contract on a
sole source basis, a statement that interested persons are invit-
ed to identify their interest and capability to respond to such
requirement, or to submit proposals in response to such notice,
within the stated period of time provided under paragraph (2).
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"(4) Notwithstanding any other provision of law, unless the nego-
tiations would be conducted pursuant to this section or section 9 of
this Act, a Federal department may not commence negotiations for
the award of a sole source contract for more than $1,000,000 in
fiscal year 1984, for more than $500,000 in fiscal year 1985 and for
more than $300,000 in fiscal year 1986 and each year thereafter
unless?
"(A) the head of the procuring activity or his deputy, on a
non-delegable basis, has approved the authority to enter into
such contract, and
"(B) the contracting officer for such sole source contract has
evaluated the responses to the notice of procurement action re-
quired in subparagraph (3XC):
Provided, That nothing in this subparagraph shall prohibit an offi-
cer or employee of a Federal department from responding to a re-
quest for information.
"(5) In the case of all procurement actions in excess of $25,000 in
which the award of a contract is likely to result in the award of
subcontracts under such contract, unless the procurement for secu-
rity reasons is of a classified nature, the Federal department shall
promptly furnish for publication by the Secretary of Commerce a
notice announcing the award in the Commerce Business Daily.
"(6) As used in this subsection?
"(A) the term 'sole source contract' means a contract for the
purchase of property, supplies or services which is entered into
or proposed to be entered into by a Federal department after
soliciting and negotiating with only one source.
"(B) The term 'unsolicited proposal' means a proposal that is
submitted to a Federal department on the initiative of the sub-
mitter for the purpose of obtaining a contract with the United
States government, and which is not in response to a formal or
informal request (other than a departmental request constitut-
ing a publicized general statement of need in areas of science
and technology-based research and development that are of in-
terest to the department).".
(b)(1) Except as to the amendments made to section 8(eX4) of the
Small Business Act as added by section (a) of this Act, the amend-
ments made by this Act shall apply to procurement actions initiat-
ed ninety days after the date of enactment of this Act.
(2) The amendments made to section 8(eX4) of the Small Business
Act as added by section (a) of this Act shall apply to procurement
actions initiated on or after October 1, 1983.
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4
(3) The provisions of this Act shall apply to the Tennessee Valley
Authority only with respect to procurements to be paid from appro-
priated funds.
And the House agree to the same.
PARREN J. MITCHELL,
NEAL SMITH,
JOSEPH P. ADDABBO,
RON WYDEN,
D. E. ECKART,
Tom LUKEN,
JOSEPH M. MCDADE,
SILVIO 0. CONTE,
WM. S. BROOMFIELD,
LYLE WILLIAMS,
Managers on the Part of the House.
LOWELL P. WEICKER, JR.,
RUDY BOSCHWITZ,
LARRY PRESSLER,
SAM NUNN,
CARL LEVIN,
Managers on the Part of the Senate.
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JOINT EXPLANATORY STATEMENT OF THE COMMITTEE OF
CONFERENCE
The managers on the part of the House and the Senate at the
conference on the disagreeing votes of the two Houses on the
amendment of the House to the bill (S. 272) to improve small busi-
ness access to Federal procurement information, submit the follow-
ing joint statement to the House and the Senate in explanation of
the effect of the action agreed upon by the managers and recom-
mended in the accompanying conference report:
The House amendment struck all of the Senate bill after the en-
acting clause and inserted a substitute text.
The Senate recedes from its disagreement to the amendment of
the House with an amendment which is a substitute for the Senate
bill and the House amendment. The principal differences among
the Senate bill, the House amendment, and the substitute agreed
to in conference are noted below, except for clerical corrections,
conforming changes made necessary by agreements reached by the
conferees, and minor drafting and clarifying changes.
Under section 8(e) of the Small Business Act, the Secretary of
Commerce is directed to obtain and publish notice of Federal pro-
curements above stated dollar thresholds, with ten enumerated ex-
emptions. The existing statute does not, however, provide for any
time intervals between the date of publication of the notice and the
awarding of the procurement contract. Both the Senate bill and the
House amendment prohibit a Federal department from issuing a
solicitation for at least fifteen days after the date of publication of
a notice of the procurement in the Commerce Business Daily and
further prohibit Federal agencies from foreclosing competition for
the procurement for an additional thirty days after either the issu-
ance of the solicitation or in the case of orders under a basic agree-
ment, basic ordering agreement, or similar arrangement, the date
of publication of a notice of intent to place the order.
The conferees intend that this authority to publish notices of
Federal procurements should continue to be vested in the Secre-
tary of Commerce, or in any newly-created cabinet department
that encompasses the trade functions of the Commerce Depart-
ment. The conferees further expect that any other effort to trans-
fer this authority from the department will be undertaken legisla-
tively.
1. THRESHOLD AMOUNT
Under existing law the publication provisions apply to defense
contracts of $10,000 and above and civilian contracts of $5,000 and
above.
The Senate bill increases the threshold amount on civilian con-
tracts to $10,000.
(5)
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The House amendment has no similar provision.
The conference substitute increases the threshold amount on civil-
ian contracts to $10,000.
2. EXEMPTION FOR CLASSIFIED REASONS
Under existing law there is an exemption from publication of
procurements which for security reasons are of a classified nature.
The Senate bill re-worded the exemption to apply to procure-
ments whose disclosure to more than one source would compromise
national security.
The House amendment contains no similar provision.
The conference substitute retains the existing law language.
3. EXEMPTION FOR FOREIGN GOVERNMENTS
Under existing law there is an exemption from publication of
procurements in which only foreign sources are to be solicited.
The Senate bill exempts from publication procurements in which
a foreign government is reimbursing the United States for the cost
of the procurement or if the terms of an international agreement
or treaty require that the procurement be from specified sources.
The House amendment contains no comparable provision.
The conference substitute exempts from publication those pro-
curements in which a foreign government is reimbursing the
United States for the cost of the procurement and only one source
is available, or if the terms of an international agreement or treaty
authorize or require that the procurement be from specified
sources.
4. EXEMPTION FOR CONTRACTS WITH OTHER AGENCIES
Under existing law there is an exemption from publication for
those procurements which are made from another government de-
partment or agency, or a mandatory source of supply.
The Senate bill provides an exemption for procurements if a stat-
ute provides that it be made through another Federal department,
establishment, or agency or from a specified source.
The House amendment contains no comparable provision.
The conference substitute exempts from publication those pro-
curements for which a statute provides that they be made through
another Federal department or from a specified source, or if the
procurement results from acceptance of a proposal pursuant to the
Small Business Innovation Development Act of 1982.
5. EXEMPTION FOR UTILITY SERVICES
Under existing law there is an exemption from publication of
procurements which are for utility services and the procuring
agency in accordance with applicable law has predetermined the
utility concern to whom the award will be made.
The Senate bill eliminates this exemption.
The House amendment contains no comparable provision.
The conference substitute exempts from publication those pro-
curements which are for utility services if only one source is avail-
able.
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The conferees recognize that some utility services, such as tele-
phone requirements, can, and should be, competed. However, in
other instances, the conferees recognize that competition is impas-
sible due to a monopoly on utility services in a given area, so that
a requirement to advertise the procurement would be meaningless.
Procurements in this category may include, but are not limited to,
electrical services and water supply.
6. EXEMPTION FOR ORDERS UNDER EXISTING CONTRACTS
Under existing law there is an exemption from publication of
procurements which are made by an order placed under an exist-
ing contract. There is also an exemption for procurements which
involve perishable subsistence supplies.
The Senate bill eliminates both exemptions.
The House amendment contains no comparable provision.
The conference substitute exempts from publication those pro-
curements which are made against an order placed under a re-
quirements or similar contract, including orders for perishable sub-
sistence supplies.
The conferees intend that this exemption be used in cases where
an agency places an order against an existing contract or a require-
ments contract. Unless one of the other exemptions from publica-
tion applies to the initial, underlying contract, the conferees intend
that this original contract only will be synopsized.
The conferees recognize that orders for perishable goods are
often made against existing requirements contracts. Under this
provision, all such orders for perishables would be exempted from
the notice provisions in this law. However, the conferees do intend
that whenever possible, and absent any other statutory exemp-
tions, the contract itself, which is certainly not perishable, shall be
subject to the notice provisions in this Act.
7. EXEMPTION FOR PERSONAL SERVICES
Under existing law there is an exemption from publication of
procurements which are for personal or professional services.
The Senate bill eliminates this exemption.
The House amendment contains no comparable provision.
The conference substitute retains the Senate provision and elimi-
nates the exemption from publication of procurements which are
for personal or professional services.
8. EXEMPTION FOR EDUCATIONAL INSTITUTIONS
Under existing law there is an exemption from publication of
procurements which are for services from educational institutions.
The Senate bill eliminates this exemption.
The House amendment contains no comparable provision.
The conference substitute exempts from publication those pro-
curements which are for services from educational institutions if
they result from an unsolicited proposal from those institutions
that demonstrates a unique or innovative research concept and
publication of such unsolicited proposal would improperly disclose
the originality of thought or innovativeness of the proposed re-
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search. For all such other unsolicited proposals, the conferees
expect that the procuring department will use its utmost discretion
to protect the originality and creativeness of the proposal when the
agency is required to synopsize the procurement in the Commerce
Business Daily.
9. NEGOTIATIONS FOR SOLE SOURCE CONTRACTS
The Senate bill provides that if notice of the procurement action
for a sole source contract must be published, the agency cannot
commence negotiations for the award of such a contract until at
least thirty days have elapsed from the date of publication of
proper notice of intent to contract.
The House amendment contains no comparable provision.
The conference substitute provides that if notice of the procure-
ment action for a sole source contract must be published, the de-
partment cannot commence negotiations for the award of such a
contract until at least thirty days have elapsed from the date of
publication of proper notice of intent to contract, but that the de-
partment specifically is authorized to respond to requests for infor-
mation during the thirty-day time period.
10. CONTENT OF NOTICE
The Senate bill specifies that the notice required to be published
include a description of the subject matter of the contract, the
name and address of the Federal employee who may be contacted
to obtain a copy of the contract solicitation or other information,
and a statement that any person may respond or submit a bid, pro-
posal or quotation.
The House amendment contains no comparable provision.
The conference substitute requires that the notice contain a clear
description of the subject matter of the contract; the name, address
and telephone number of the Federal employee who may be con-
tacted to obtain a copy of the solicitation or additional information,
and, with respect to sole source contrcts, a statement that interest-
ed persons are invited to identify their interest and capability or to
submit timely proposals.
11. SOLE SOURCE CONTRACTS
The Senate bill prohibits a procuring activity from commencing
negotiations for sole source contracts for more than $100,000 unless
the head of the procuring activity has approved the proposal to ne-
gotiate and the procuring activity has considered all responses to
the procurement action, or unless the negotiation is for an 8(a) con-
tract or an award pursuant to the Small Business Innovation De-
velopment Act of 1982.
The House amendment contains no similar provision.
The conference substitute imposes a prohibition against Federal
departments commencing negotiations for sole source contracts
(except under the 8(a) and Small Business Innovation Research pro-
grams) above a threshold amount unless the head of the procuring
activity or his deputy, on a non-delegable basis, has approved the
authority to enter into such contract and the contracting officer
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9
has considered the responses to the notice of procurement action.
Federal departments specifically are authorized, however, to re-
spond to request for information.
The conference report provides for a three-year phase in of the
dollar threshold at which these provisions will apply. Under the
terms of the conference agreement, in fiscal year 1984 the require-
ments will be imposed on procurement actions in excess of $1 mil-
lion; in fiscal year 1985 the level will be reduced to $500,000; and in
fiscal year 1986 and each year thereafter the level will be $300,000.
The conference will carefully monitor all agencies' compliance with
the review of the authority to enter into sole source awards, and
will consider a further reduction in the threshold level to $100,000.
12. NOTICE OF SUBCONTRACTING OPPORTUNITIES
The Senate bill requires that in all procurement actions in excess
of $10,000 in which the award of subcontracts is likely, the Federal
department entering the contract shall submit for publication in
the Commerce Business Daily a notice announcing the award of the
prime contract.
The House amendment contains no comparable provision.
The conference substitute requires that in all procurement ac-
tions in excess of $25,000 in which the award of subcontracts is
likely, the Federal department entering the contract shall submit
for publication in the Commerce Business Daily a notice announc-
ing the award of the prime contract.
13. TVA EXEMPTION
The Senate bill provides that this act shall apply to the Tennes-
see Valley Authority only to the extent it deems practicable, con-
sistent with the purposes and conduct of its programs and the poli-
cies of the Small Business Act.
The House amendment contains no comparable provision.
The conference substitute provides that this Act shall apply to the
TVA only with respect to procurements to be paid from appropri-
ated funds.
While the conference report will apply the provisions of this Act,
as appropriate, to the Tennessee Valley Authority only for those
procurements derived from appropriated funds made available to
TVA, conferees expect TVA to voluntarily comply with the provi-
sions of this Act to the greatest extent possible for procurements to
be paid from power program funds, as well. In a manner consistent
with the policies of the Small Business Act and the TVA's responsi-
bility for the operation of its power programs, the conferees further
expect TVA to continue awarding a substantial portion of its pro-
curement contracts to small business, regardless of the source of
the procurement funds, and to take appropriate additional action,
as necessary, to increase small business awareness of, and partici-
pation in, TVA's total procurement effort.
14. EFFECTIVE DATE
The Senate bill is effective as to procurement actions initiated
forty-five days after the date of enactment.
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The House amendment is effective upon enactment.
The conference substitute makes the Act applicable to procure-
ment actions initiated ninety days after the date of enactment
except as to the restrictions on sole source contracts which are ef-
fective October 1, 1983.
PARREN J. MITCHELL,
NEAL SMITH,
JOSEPH P. ADDABBO,
RON WYDEN,
D. E. ECICART,
Tom LUKEN,
JOSEPH M. MCDADE,
SILVIO 0. CONTE,
WM. S. BROOMFIELD,
LYLE WILLIAMS,
Managers on the Part of the House.
LOWELL P. WEICKER, JR.,
RUDY BOSCHWITZ,
LARRY PRESSLER,
SAM NUNN,
CARL LEVIN,
Managers on the Part of the Senate.
0
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S. Con. Res. 58 Agreed to August 1, 1983
Binetteighth Cowes of the united g4tates- of 3merica
AT THE FIRST SESSION
Begun and held at the City of Washington on Monday, the third day of January,
one thousand nine hundred and eighty-three
concurrent Rupiah:III
Resolved by the Senate (the House of Representatives concurring),
That in the enrollment of the bill (S. 272) to improve small business
access to Federal procurement information, and for other purposes,
the Secretary of the Senate is hereby authorized and directed, in the
enrollment of said bill, to make the following corrections, namely,
strike the matter relating to subparagraph (D) of section 8(eX1) of
the Small Business Act in its entirety and insert in lieu thereof "(D)
the procurement is made from another Government department or
agency, or a mandatory source of supply;"; in the matter relating to
section 8(eX1XG) of such Act strike out "from an educational institu-
tion"; in the matter relating to section 8(eX4) of such Act after the
phrase "or section 9 of this Act" insert "or unless the Federal
department's need for the property, supplies, or services is of such
unusual and compelling urgency that the Government would be
seriously injured if the provisions of this paragraph were complied
with"; in the matter relating to section 8(eX4) of such Act after the
phrase "for the award of a sole source contract" insert "or a
contract that results from an unsolicited proposal"; and in the
matter relating to section 8(eX4)(B) of such Act strike out "sole
source"; and in the matter relating to section 8(eX4) of such Act add
at the end thereof the following: "Annually, each department shall
report to the Congress on each negotiation above the stated amount
if the head of the procuring activity or his deputy did not approve
the authority to enter into such contract.".
Attest:
Attest:
Secretary of the Senate.
Clerk of the House of Representatives.
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.H 6058 CONGRESSIONAL F
and pass the bill (H.R. 3232), to amend
title 28 of the United States Code to
authorize payment of travel and trans-
portation expenses of newly appointed
special agents of the Department of
Justice.
The Clerk read as follows:
H.R. 3232
Be it enacted by the Senate and House of
Representatives of the United States of
America in Congress assembled, That chap-
ter 31 of title 28 of the United States Code
is amended by adding at the end the follow-
ing new section:
1530. Payment of travel and transportation ex-
penses of newly appointed special agents
"The Attorney General or the Attorney
General's designee is authorized to pay the
travel expenses of newly appointed special
agents and the transportation expenses of
their families and household goods and per-
sonal effects from place of residence at time
of selection to the first duty station, to the
extent such payments are authorized by sec-
tion 5723 of title 5 for new appointees who
may receive payments under that section.".
Sze. 2. The table of sections at the begin-
ning of chapter 31 of title 28 of the United
Stated Code is amended by adding at the
end thereof the following new item:
"530. Payment of travel and transportation
expenses of newly appointed
special agents.".
The SPEAKER pro tempore. Pursu-
ant to the rule, a second is not re-
quired on this motion.
The gentleman from California (Mr.
EDWARDS) will be recognized for 20
minutes, and the gentleman from Wis-
consin (Mr. SENSENBRENNER) will be
recognized for 20 minutes.
The Chair recognizes the gentleman
from California (Mr. EDWARDS).
Mr. EDWARDS of California. Mr.
Speaker, I yield myself such time as I
may consume.
(Mr. EDWARDS of California asked
and was given permission to revise and
extend his remarks.)
Mr. EDWARDS of California. Mr.
Speaker, the bill now under considera-
tion, H.R. 3232 is very simple and very
sensible. It would authorize the De-
partment of Justice to pay for the
travel and transportation expenses in-
curred by newly appointed special
agents of that agency to their first
permanent duty station.
The general rule for Federal employ-
ees is that these expenses are not re-
imbursable. However, several excep-
tion previously have been enacted, in-
cluding one for the special agents of
the Fish and Wildlife Service of the
Department of the Interior. Like those
employees, and unlike most other Fed-
eral employees, DEA and FBI special
agents are both recruited nationally
and assigned nationally. For example,
although a prospective special agent
may submit his or her application in
the San Francisco field office, head-
quarters will assign the agent where
the need is, and usually, in an area
other than the area from which he or
she was recruited.
In the past. the FBI has tried to alle-
viate the financial burden on the new
agent by assigning that employee ini-
tially to the area from which he or she
RD ? HOUSE August I, 1988
was recruited, and tli , 8 months
later, reassigning t t ent to a sta-
tion where the n d xisted. That
second move was re rsable.
So long as the number of new agents
remained relatively small, this system
worked fairly well. However, the drug
enforcement initiative now being pur-
sued jointly at DEA and the FBI
means that approximately 300 new
agents will be hired in the next fiscal
year. It no longer makes sense to
assign these agents first to their home
area?they must go directly to the
area where they are needed. There-
fore, the choice for the Department of
Justice was either to continue their
present practice (which will now be
wasteful), burden these new agen
with these expenses, or seek the au
thority which is contained in this bill
The Subcommittee on Civil and Con
stitutional Rights, which I chair, hel
a hearing on this subject on June 1
1983, and was convinced that the fair
and economical thing to do was to
enact this authority. Compared to the
Department's present policy, this au-
thority will permit a savings of over
$459,000 per year. The subcommittee
unanimously reported this bill on
June 29, and we now seek your sup-
port in the House.
Mr. SENSENBRENNER. Mr. Speak-
er, I yield myself such time as I may
consume.
(Mr. SENSENBRENNER. asked and
was given permission to revise and
extend his remarks.)
Mr. SENSENBRENNER. Mr. Speak-
er, H.R. 3232 allows the FBI to reim-
burse special agents for the transfer of
their families and household goods
from Quantico, Va., their training fa-
cility, to their first permanent duty
station, a practice not currently al-
lowed by the Comptroller General of
the United States. The FBI currently
assigns these agents to the office clos-
est to the location of their household
goods and families at the time of ap-
pointment, for a period of 6 months,
in order to establish the permanent
duty station status required by the
Comptroller General. This 6-month
assignment is made without regard to
the needs of the FBI and has proven
to be counterproductive to their mis-
sion. It is agreed that the change
.would be more cost-effective than the
current practice Of the FBI and would
streamline the process of assigning
agents to various field offices based on
the needs of the FBI. In fact, had H.R.
3232 been in place in fiscal year 1982,
almost one-half a million dollars
would have been saved.
The FBI argues that this is a matter
of critical importance in view of the
staffing requirements of the drug task
forces. Experienced FBI agents are
being assigned to those task forces,
and office requirements in other areas
will be satisfied through the assign-
ment of new agents. These assign-
ments would be effectively postponed
for 6 months, during which time they
would be assigned to the office from
which they were appointed.
I urge my colleagues to vote to sus-
pend the rules and pass H.R. 3232.
Mr. Speaker. I have no requests for
time, and I yield back the balance of
my time.
The SPEAKER pro tempore. The
question is on the motion offered by
the gentleman from California (Mr.
EDWARDS) that the House suspend the
and pass the bill, H.R. 3232.
question was taken; and (two-
tllrj voted in favor thereof)
rules were suspended and the bill
passed.
motion to reconsider was laid on
ble.
PROVIDING FOR ADOPTION OF
CONFERENCE REPORT ON S.
272 AND FOR ADOPTION OF
SENATE CONFERENCE RESOLU-
TION 58
Mr. MICHELL. Mr. Speaker, I inove
to suspend the rules and agree to the
resolution (H. Res. 293) providing that
the House shall be considered to have
adopted the conference report on the
bill (S. 272) to improve small business
access to Federal procurement infor-
mation, to have receded from its
amendment to the title of said bill.
and to have adopted the concurrent
resolution (S. Con. Res. 58) correcting
the enrollment of S. 272.
The Clerk read as follows:
H. Ras. 293
Resolved, That upon the adoption of this
resolution the House shall be considered to
have adopted the conference report on the
bill (S. 272) to improve small business access
to Federal procurement information, to
have receded from its amendment to the
title of said bill, and to have adopted the
concurrent resolution (13. Con. Res. 58) cor-
recting the enrollment of S. 272.
The SPEAKER pro tempore. Is a
second demanded?
Mr. PRITCHARD. Mr. Speaker. I
demand a second.
The SPEAKER pro tempore. With-
out objection, a second will be consid-
ered as ordered.
There was no objection.
The SPEAKER pro tempore. The
gentleman from Maryland (Mr.
MITCHELL) will be recognized for 20
minutes, and the gentleman from
Washington (Mr. PRITCHARD) will be
recognized for 20 minutes.
The Chair recognises the gentleman
from Maryland (Mr. iirrostaz.).
t11410
Mr. MITCHELL. Mr. Speaker. I
yield myself such time as I may con-
sume.
Mr. Speaker, I rise in support of the
resolution. Before explaining the sub-
stantive law involved. I want to clarify
for the members the procedure which
Is involved.
The resolution simply does three
things:
First, it provides that upon its adop-
tion. the conference report on a bill to
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August 1, 1983 CG?GRESSIONAL RECORD ? HOUSE
Improve small business access to Fed-
eral procurement information (S. 272)
is approved.
Second, it directs the Secretary of
the Senate when he enrolls this con-
ference report to make several minor
changes.
Third, it agrees to the Senate's title
of the bill.
The reason that this conference
report is being handled on the suspen-
sion calendar is to avoid any possible
point or order for exceeding the scope
of conference. The provision which is
In question is the effective date of the
bill. The original House bill, which
subsequently became a House amend-
ment to the Senate bill, would have
been effective upon enactment. The
Senate bill. S. 272, was a more exten-
sive bill and among other things im-
poses restrictions upon the authority
of ascontracting officer to enter nego-
tiations for a sole source contract. The
Senate bill also changes some of the
provisions regarding publication of
notice of procurement in the Com-
merce Business Daily rather than
simply imposing timely notice require-
ments. Presumably for these reasons
the Senate felt a 45-day lead time was
in order. Although the House confer-
ees agreed with many of the provisions
in the Senate bill, we felt that Federal
departments should receive additional
time to begin their compliance. As a
result, the conferees delayed the effec-
tive date of the bill beyond the date
specified in the Senate bill and thus
may have exceeded the scope of con-
ference. Consideration of the confer-
ence report on the suspension calen-
dar avoids the possible raising of this
technical violation.
In addition, after the conference
report had been filed and after the
Senate had approved the conference
report, we received a letter from the
Department of Defense expressing its
concern over some of the provisions of
the conference report. We had earlier
considered some of the concerns ex-
pressed and addressed those which we
believed had merit. The new letter,
however, raised concerns for the first
time. Although I do not necessarily
agree with the Defense Department's
views or the conclusions as to the
Impact of the conference report, none-
theless I agreed with my ranking mi-
nority member and the principal
Senate conferees that it was advisable
to adopt minor changes so as to pre-
clude the possibility of erroneous in-
terpretations and unintended results.
As my colleagues know, conference re-
ports cannot be amended on the floor
as can a bill. The procedure needed to
accomplish the changes is for the
House and Senate to adopt a resolu-
tion for the Secretary of the Senate to
make the changes. Such a change was
introduced as Senate Concurrent Res-
olution 58 which basically includes the
following:
Reinstatement of an exemption
under existing law from publication of
notice of procurements from another
Government department or a manda-
tory source of supply; establishing an
exemption from such publication re-
quirements of procurements ?for re-
search resulting from unsolicited pro-
posals if publication would disclose
originality of thought; and establish-
ment of an exemption in emergencies
from the requirement that a contract-
ing officer obtain approval from the
head of the procuring activity before
commencing negotiations for large
? sole source contracts.
The Senate agreed to this resolution
last Thursday.
Thus, under the motion I have made
all we are doing, Is agreeing to the con-
ference report with minor changes.
The conference report, as modified
by the Senate resolution. would?do the
following:
First. Federal departments and agen-
cies would be required to public notice'
of upcoming Federal contracts of
$10,000 or more in the Commerce
Business Daily. They would be re-
quired to allow the lapse of at least 15
days between the publication of notice
and the issuance of a contract solicita-
tion-30 days for R&D solicitations?
and then to allow at least an addition-
al 30 days for receipt of bids or propos-
als. There would be exemptions for
those procurements: (1) which for se-
curity reasons are of a classified
nature; (2) which are for goods or serv-
ices for which the Department has an
unusual and compelling urgency; (3) in
which a foreign government is reim-
bursing the United States for the cost
of the procurement and only one
source is available or if the terms of an
international agreement or treaty au-
thorize or require that the procure-
ment be from specified sources; (4)
which are made from another Govern-
ment department or a mandatory
source of supply; (5) which are for
utility services if only one source is
available; (6) which are made against
an order placed under a requirements
contract; (7) which are for research re-
sulting from unsolicited proposals
which are unique if publication would
diaclose originality of thought or Irmo-
vativeness; and (8) for which SBA and
the Department agree that advance
notice is not appropriate or reason-
able.
Second, it would impose a prohibi-
tion against Federal departments com-
mencing negotiations for a sole source
contract (except under the 8(a) and
Small Business Innovation Research
programs and in emergency situations>
above a threshold amount unless the
head of the procuring activity or his
deputy has approved the authority to
enter into such contract and the con-
tracting officer has considered the re-
sponses to the notice of procurement
action. There would be a 3-year phase
in of the dollar threshold amount of
procurement contracts to which these
provisions will apply: $1 million in
fiscal year 1984, $500.000 in fiscal year
1985 and $300,000 in fiscal year 1986
and each year thereafter.
H 6059
Third. it also would require that in
all procurement actions in excess of
625,000 in which the award of subcon-
tracts is likely. the Federal depart-
ment entering the contract must
submit for publication in the Com-
mence Business Daily a notice an-
nouncing ' the award of the prime con-
tract.
Fourth and last, the provisions of
the conference report would be appli-
cable to procurement actions initiated
90 days after the date of enactment
except the restriction on sole source
contracts which would be effective Oc-
tober 1. 1983.
? I believe this is an excellent bill and
will assist small business in Govern-
ment contracts. I also want to compli-
ment all of the members of the com-
mittee who worked and contributed to
the formation of this legislation- I par-
ticularly want to single out for con-
gratulations Mr. Aemusao Mr. McDoon
my ranking minority member, and my
colleague from Nebraska, Mr. DAUB.
Mr. RAY. Mr. Speaker, will the gen-
tleman yield?
Mr. MITCHELL. Mr. Speaker, at
this juncture I yield briefly to my col-
league, the gentleman from Georgia.
(Mr. RAY asked and was given per-
mission to revise and extend his re-
marks.)
Mr. RAY. Mr. Speaker. I rise in sup-
port of the conference report on S. 272
and urge its adoption by the House.
However, I share some of the same
concerns expressed by my colleague
from Nebraska.
Let me commend my colleague and
my chairman. Mr. MITCHELL, for pur-
suing legislation that will mandate a
period of 15 days' notice in Commerce
Business Daily before issuance of a so-
licitation, and 30 days before comple-
tion will be foreclosed. I supported the
House bill, H.R. 1043. because I believe
that small businesses need this ex-
tended period in order to compete ef-
fectively.
However, it recently came to my at-
tention that in conference the exemp-
tion for perishable foods, such as fresh
fruit, vegetables, meat, and seafood,
has been deleted. This exemption is in
present law and is important to pre-
serve the ability of the Department of
Defense as well as other agencies to
buy perishable food in the market-
place. It is extremely difficult to fore-
cast the need for these types of items
45 days in advance. Crop failures are
difficult to predict. The food spoils
rapidly and cannot be stored. The only
way to insure that the best quality
produce is purchased at the best price
Is to buy in the marketplace from
whomever is offering the most favora-
ble quality for the price.
There has been no indication that.
the present method of buying perisha-
ble food has resulted in a lack of com-
petition, or an exclusion of small busi-
nesses. In fact, 97 percent of the De-
partment of Defense purchases of sub-
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116060 ?
CONGRESSIONAL RECORD ? HOUSE August 1, 1983
sistence food are from small business-
es.
Therefore, I hope that the Depart-
ment of Defense as well as other agen-
cies will take advantage of the provi-
Sian in & 272 to go to the SBA for an
exemption when the reasonableness of
current purchasing practices can be
demonstrated.
Mr. Speaker, I urge that the House
adopt the conference report on S. 272.
Mr. MITCHELL Mr. Speaker. I re-
serve the balance of my time.
Mr. PRITCHARD. Mr. Speaker. I
yield my 20 minutes to the gentleman
from Nebraska (Mr. DAUB).
(Mr. DAUB asked and was given per-
mission to revise and extend his re-
marks.) - ?
Mr. DAUB. Mr. Speaker, I thank the
gentleman for yielding.
Mr. Speaker, I am delighted cm
behalf of the minority on the Small
Business Committee to participate in
support for this resolution and for the
conference report.
I believe that this bill will bring
much needed changes to our procure-
ment system.
Recent articles in newspapers
throughout our Nation have illustrat-
ed what happens when there is overre-
liance on a single source of supply.
With this bill, we intend to help
bring an end to abusive overpricing,
such as $435 for a claw hammer. $436
for a sledge hammer. $437 for a 12-
foot measuring tape. $110 for a 4 cent
electronic part, and $44 for a 17-cent
lamp. We cannot and we will not toler-
ate this kind of procurement abuse,
even in a fiscally sound budget period;
but with an almost $200 billion yearly
deficit, and cutbacks in all programs to
reduce Government costs, this waste
of taxpayer funds is outrageous.
Competition is our aim. We want
agencies to know that there are other
sources for the goods and services that
they need, as opposed to single source
contracting. By reducing sole source
contracts, by increasing notice of
prime and subcontracting opportuni-
ties and by ultimately increasing com-
petition; Federal costs will be reduced
and more businesses will have the op-
portunity to do business with the Fed-
eral Government. ?
I urge a vote in favor of this confer-
ence report.
Mr. Speaker, I would like to engage
the chairman of the Small Business
Committee, if I might, in a colloquy.
Mr. MITCHELL. I would be delight-
Mr. DAUB. Will the gentleman from
Maryland. the distinguished chairman
of the committee, respond to some
questions?
Mr. MITCHELL. I would be pleased
to respond to my good friend.
Mr. DAUB. Mr. Speaker, I would like
to engage the distinguished chairman
of this committee in a colloquy con-
cerning perishable commodities. Am I
correct in understanding that under
the conference report, if a department
can demonstrate the reasonableness of
current purchasing practices and that
advance notice is not appropriate or
reasonable, it can receive an exemp-
tion from the advertisement require-
ments of this bill for the procurement
of certain kinds of perishable conunod-
'ties?
Mr. MITCHELL Mr. Speaker, the
gentleman from Nebraska is absolute-
ly correct- The bill has been crafted to
allow a nonlegislative resolution of
special problems that may arise. The
Administrator of the Small Business
Administration and the head of the
Federal Department are empowered to
agree to commodity class exemptions
where appropriate. Certainly, it is not
the intent of this committee to cause a
disruption of established procurement
methods where ample competition and
existing market methods combine to
. create an efficient procurement
system that results in lower costs.
Mr. Speaker, let me add a little hit
more to my colloquy. I would be most
reluctant to preclude our Armed
? Forces from having access to those de-
licious Maryland crabs. That is a per-
ishable commodity and certainly it
would be cruel and almost inhuman to
deny our armed services personnel
access to that delectable morsel from
Maryland.
' Mr. DAUB. Might I say to my distin-
guished chairman and, Indeed, good
friend, that we would not want to
deny the Armed Forces personnel at,
for example. my Aix Force base, the
Strategic Air Command In Omaha
,-
those ? delightful and delectable mor-
sels, a commodity which may he
deemed perishable, that. comes from
the Maryland shore.
I appreciate the gentleman's re-
sponse very much and it is, indeed, a
clear explanation. I think it serves as
useful legislative intent in the record.
Mr. Speaker, let me conclude for my
part, since I do not observe that any
from my side wish any further part of
the time granted to me, that the staff
deserves a great deal of commendation
for the work that they have done: that
we indeed on both sides of the aisle
and the committee have cooperated
with the Department of Defense in at-
tempting to work out any problems. I
think that this close cooperation is no-
table.
I believe that we are together an a
very good piece of legislation that will,
Indeed, be good for the efficiency of
our Government and for the opportu-
nities of "those who on the outside of
our Government institutions can have
some say in efficiency and economy,
which ought to be the hallmark of
anything we do in this Congress.
So I do again urge my colleagues to
support the resolution and the confer-
ence report.
Mr. Speaker, I yield back the bal-
ance of my time.
Mr. MITCHELL. Mr. Soeaker,
have no further requests for time.
I simply urge the immediate approv-
al of the conference report. I know of
no controversy surrounding this con-
ference report.
The SPEAKER pro tempore. The
question -ts on the motion offered by
the gentleman from Maryland (Mr.
MITCHELL) that the House suspend the
rules and agree to the resolution.
House Resolution 293.
The question was taken; and (two-
thirds having voted in favor thereof)
the rules were suspended and the reso-
lution was agreed to.
A motion to reconsider was laid on
the table.
GENERAL LEAVE
Mr. MITCHELL Mr. Speaker, I ask
unanimous consent that all Members
may have 5 legislative days in which to
revise and extend their remarks on the
resolution just agreed to.
The SPEAKER pro tempore. Is
there objection to the request of the
gentleman from Maryland?
There was no objection.
NATIONAL OCEANIC AND AT-
MOSPHERW ADMINISTRATION
OCEAN AND COASTAL PRO-
GRAM AUTHORIZATION ACT
Mr. JONES of North Carolina. Mr.
Speaker. I move to suspend the rules
and pass the Senate bill (S. 1098) to
consolidate and authorize certain
ocean and coastal programs and func-
tions of the National Oceanic and At-
mospheric Administration under the
Department of Commerce.
The Clerk read as follows:
& 1098
Be it enacted by the Senate and Howse of
Ilepresentatioes of the United States of
America in Congress assembled, That this
Act may. be cfted as the -Natidnal Oceanic
and Atmospheric Administration Ocean and
Coastal Program Authorization Act.
-
TITLE I?NONLIVING MARINE
RESOGRCES
AITZWORTZATION
Sw. 101. There are authorized to be ap-
propriated to the Department of Commerce
to enable the National Oceanic and Atmos-
pheric Administration to tarry out its non-
living imisine resewroe duties under law.
$800.000 for fiscal year 1984. Moneys appro-
priated pursuant to this- authorization shall
be used. to fund those duties relating to non-
living marine resources specified by the Act
entitled "An Act to define the functions and
duties of the Conn and Geodetic Survey.
and for other purposes". approved August 8.
1947. as amended -433 It.S.C. Ma/. and SHY
other law involving such duties. Such duties
Include, but are not limited be, polymetallic
sulfide analyses and research.
TITLE U?NATIONAL SEA GRANT _
COLLEGE PROGRAM
SEC. 201. (a) Section 212 of the National
Sea Grant Program Act 433 U.S.C.. 1131) is
amended by inserting immediately after
paragraph (3) the following new paragraph:
"(4) Not to exceed $42,000.000 for fiscal
year 1984 and not to exceed $46,000.000 for
fiscal year 1985.-
.
(b) Section 3(c) of the Bea Grant Program
Improvement Act ' of 1978 433 U.S.C.
1124Mcn is amended by inserting immedi-
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15 ? 636b COMMERCE AND TRADE
? 686b. Disaster Joan interest rates
Any loan made under section 636a of this title and section 4462 of
Title 42 shall not exceed the current cost of repairing or replacing the
disaster injury, loss, or damage in conformity with current codes and
specifications. Any loan made under sections 636a and 636d of this title
and sections 3538 and 4462 of Title 42 shall bear interest at a rate deter-
mined by the Secretary of the Treasury, taking into consideration the
current average market yield on outstanding marketable obligations of
the United States with remaining periods to maturity of ten to twelve
years reduced by not to exceed 2 per centum per annum. In no event
shall any loan made under this section bear interest at a rate in excess
of 6 per centum per annum.
1. Computation by borrower. Afachella v. Cardenas, CA.
In respect to SBA disaster loans, inter- La 1981. 853 F.2d 923, rehearing denied
est is recomputed as of the date the 659 ic.2d 650.
specified statutory forgiveness is received
? 687. Additional powers
Procurement contracts; subcontracts to disadvantaged small business con-
cerns; performance bonds; contract negotiations; definitions; eligibil-
ity; determinations; publication; recruitment; construction subcon-
tracts; annual estimates
(a) (1) It shall be the duty of the Administration and it Is hereby em-
powered, whenever it determines such action is necessary or appropriate?
(A) to enter into contracts with the United States Government and
any department, agency, or officer thereof having procurement powers
obligating the Administration to furnish articles, equipment, supplies,
services, or materials to the Government or to perform construction
work for the Government. In any case in which the Administration
certifies to any officer of the Government having procurement powers
that the Administration is competent and responsible to perform any
specific Government procurement contract to be let by any such offi-
cer, such officer shall be authorized in his discretion to let such pro-
curement contract to the Administration upon such terms and condi-
tions as may be agreed upon between the Administration and the pro-
curement officer. Whenever the Administration and such procure-
ment officer fail to agree, the matter shall be submitted for determi-
nation to the Secretary or the Irad of the appropriate department or
agency by the Administrator;
(B) to enter into contracts with such agency, as shall be desig-
nated by the President within 60 days after the effective date of this
paragraph, to furnish articles, equipment, supplies, services, or ma-
terials, or to perform construction- work for such agency. In any case
In which the Administration certifies to any officer of such agency
having procurement powers that the Administration is competent and
responsible to perform any specific procurement contract to be let by
any such officer, such officer shall let such procurement contract to
the Administration upon such terms and conditions as may be agreed
upon between the Administration and the procurement officer. If the
Administration and such procurement officer fail to agree on such
terms and conditions, either the Administration or such officer shall
promptly notify, in writing, the head of such agency. The head of
such agency shall have five days (exclusive of Saturdays, Sundays,
and legal holidays) to establish the terms and conditions upon which
such procurement contract may be let to the Administration, and
shall communicate in writing to the Administration the terms and
conditions so established. Within five days (exclusive of Saturdays.
Sundays, and legal holidays) after the receipt of such written com-
munication, the Administration shall decide whether to perform such
procurement contract or withdraw its prior certification that the Ad-
ministration is competent and responsible to perform such contract;
and
(C) to arrange for the performance of such procurement contracts
by negotiating or otherwise letting subcontracts to socially and eco-
66
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Ii
No
ber 31
(2)
40, ni
any b
tion i
for su
trator
p:
tf
51
bi
a
111
el
ff
81
tE
1!
at
dt
In
This
(3)
form s
to this
of the
(4)
disadvi
cern?
at
P1
vs
tr
(5)
Jected
tity as
(6)
advent
system
tunitie
and ea
limitet
dividtt
(7)
salaam
that
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3 COMMERCE AND TRADE
leaster loan interest rates
lade under section 636a of this title and section 4452 of
not exceed the current cost of repairing or replacing the
lc loss, or damage in conformity with current codes and
Any loan made under sections 636a and 636d of this title
538 and 4452 of Title 42 shall bear interest at a rate deter-
Secretary of the Treasury, taking into consideration the
market yield on outstanding marketable obligations of
ates with remaining periods to maturity of ten to twelve
by not to exceed 2 per centum per annum. In no event
made under this section bear interest at a rate in excess
n per annum.
by borrower. Machette v. Cardenas, CA.
IBA disaster loans, Inter- La.1981, 853 F.2d 923, rehearing denied
ed as of the date the 659 N.2d 650.
ry forgiveness is received
ditional powers
ontractat subcontracts to disadvantaged small business con-
formative bonds; contract negotiations; definitions; ellgIbli.
minations; publication; recruitment; construction sabres-
'
nal estimates
hall be the duty of the Administration and it is hereby em-
kever it determines such action is necessary or appropriate?
enter into contracts with the United States Government and
tment, agency, or officer thereof having procurement powers
; the Administration to furnish articles, equipment, supplies,
or materials to the Government or to perform construction
the Government. In any case in which the Administration
o any officer of the Government having procurement powers
Administration is competent and responsible to perform any
overnment procurement contract to be let by any such offi-
officer shall be authorized in his discretion to let such pro-
contract to the Administration upon such terms and condi-
clay be agreed upon between the Administration and the pro-
officer. Whenever the Administration and such procure-
cer fail to agree, the matter shall be submitted for determi-
the Secretary or the head of the appropriate department or
the Administrator;
enter into contracts with such agency, as shall be desig-
the President within 60 days after the effective date of this
1, to furnish articles, equipment, supplies, services, or ma-
to perform construction- work for such agency. In any case
the Administration certifies to any officer of such agency
ocurement powers that the Administration is competent and
le to perform any specific procurement contract to be let by
officer, such officer shall let such procurement contract to
nistration upon such terms and conditions as may be agreed
veen the Administration and the procurement officer. If the
ration and such procurement officer fail to agree on such
conditions, either the Administration or such officer shall
notify, in writing, the head of such agency. The head of
ncy shall have five days (exclusive of Saturdays, Sundays,
holidays) to establish the terms and conditions upon which
eurement -contract may be let to the Administration, and
imunicate in writing to the Administration the terms and
3 so established. Within five days (exclusive of Saturdays,
and legal holidays) after the receipt of such written corn-
in, the Administration shall decide whether to perform such
cut contract or withdraw its prior certification that the Ad-
Ion is competent and responsible to perform such contract:
arrange for the performance of such procurement contracts
sting or otherwise letting subcontracts to socially and eco-
66
COMMERCE AND TRADE
nominally disadvantaged small business concerns for construction
work, services, or the manufacture, supply, assembly of such articles,
equipment, supplies, materials, or parts thereof, or servicing or proc-
essing in connection therewith, or such management services as may
be necessary to enable the Administration to perform such contracts.
No contract may be entered into under subparagraph (B) after Septem-
ber 30; 1981.
(2) Notwithstanding subsections (a) and (c) of section 270a of Title
40, no small business concern shall be required to provide any amount of
any bond as a condition of receiving any subcontract under this subsec-
tion if the Administrator determines that such amount is inappropriate
for such concern in performing such contract: Provided, That the Adminis-
trator shall exercise the authority granted by the paragraph only If?
(A) the Administration takes such measures as it deems appro-
priate for the protection of persons furnishing materials and labor
to a small business receiving any benefit pursuant to this para-
graph;
(B) the Administration assists, insofar as practicable, a small
business receiving the benefits of this paragraph to develop, within
a reasonable period of time, such financial and other capability as
may be needed toi obtain such bonds as the Administration may
subsequently require for the successful completion of any program
conducted under the authority of this subsection:
(C) the Administration finds that such small business is unable
to obtain the requisite bond or bonds from a surety and that no
surety Is willing to issue such bond or bonds subject to the guaran-
tee provisions of Title IV of the Small Business Investment Act of
1968; and
(D) the small business is determined to be a start-up concern
and such concern has not been participating in any program con-
ducted under the authority of this subsection for a period exceed-
ing one year.
This paragraph shall not apply after September 30, 1981.
(3) Any small business concern selected by the Administration to per-
form any Federal Government procurement contract to be let pursuant
to this subsection shall, when practicable, participate in any negotiation
of the terms and conditions of such contract.
(4) For purposes of this section, the term "socially and economically
disadvantaged small business concern" means any small business con-
cern-
15 ?637
(A) which is at least 51 per centum owned by one or more socially
and economically disadvantaged individuals; or, in the case- of any
publicly owned business, at least 51 per centum of the stock of
which is owned by one or more socially and economically disad-
vantaged individuals; and
(B) whose management and daily business operations are con-
trolled by one or more of such individuals.
(5) Socially disadvantaged individuals are those who have been sub-
jected to' racial or ethnic prejudice or cultural bias because of their iden-
tity as a member of a group without regard to their individual qualities.
(6) Economically disadvantaged 4ndividuals are those socially dis-
advantaged individuals whose ability to compete in the free enterprise
system has been impaired due to diminished capital and credit oppor-
tunities as compared to others in the same business area who are not
socially disadvantaged. In determining the degree of diminished credit
and capital opportunities the Administration shall consider, but not be
limited to, the assete and net worth of such socially disadvantaged in-
dividual.
(7) .No email business concern shall be deemed eligible for any as-
sistance pursuant, to this subsection unless the Administration determines
that with contract, financial, technical, and management support the
67,
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15 ? 637 COMMERCE AND TRADE
small business concern will be able to perform.. contractswhich may be
awarded to such concern under paragraph (1) (C) and has reasonable
prospects for success in competing in the private sector.
(8) All determinations made pursuant to paragraph (6) with respect
to whether a group has been subjected to prejudice or bias shall be made
by the Administrator after consultation with the Associate Administrator
for Minority Small Business and Capital Ownership Development. All
other determinations made pursuant to paragraphs (4), (6), (6), and (7)
shall be made by the Associate Administrator for Minority Small Business
and Capital Ownership Development under the supervision of, and re-
sponsible to, the Administrator.
(9) Within ninety days after the effective date of this paragraph,
the Administration shall publish in the Federal Register rules setting
forth those conditions or circumstances pursuant to which a firm pre-
viously deemed eligible by the Administration may be denied assistance
under the provisions of this subsection: Provided, That no such firm
shall be denied total participation in any program conducted under the
authority of this subsection without first being afforded a hearing on the
record in accordance with chapter 5 of Title 5.
(10) The Administration shall develop and implement an outreach
program to inform and recruit small business concerns to apply for eligi-
bility for assistance under this subsection.
(11) To the maximum exttent practicable, construction subcontracts
awarded by the Administration pursuant to this subsection shall be award-
ed within the county or State where the work is to be performed.
(12) To the maximum extent practicable the Associate Administra-
tor for Minority Small Business and Capital Ownership Development shall
submit, no less frequently than annually, a yearly estimate of the dollar
amounts and types of contracts required for the efficient use of any pro-
gram conducted under the authority of this subsection, to each agency
which may participate in such program.
Procurement and property di sssss 1 powers; determination
et small-business concerns
(b) It shall also be the duty of the Administration and it is empowered,
whenever it determines such action is necessary?
[See main volume for text of (.1XA)]
(B) To establish, conduct, and publicize, and to recruit, select,
and train volunteers for (and to enter into contracts, grants, or co-
operative agreements therefor), volunteer programs, including a Serv-
ice Corps of Retired Executives (SCORE) and an Active Corps of
Executive (ACE) for the purposes of subparagraph (A); and to fa-
cilitate the implementation of such volunteer programs the Adminis-
tration may maintain at its headquarters and pay the expenses of a
team of volunteers subject to such conditions and limitations as the
Administration deems appropriate: Prorided, That any such pay-
ments made pursuant to this subparagraph shall be effective only to
such extent or in such amounts as are provided in advance in appro-
priation Acts.
(C) To allow, any individual or group of persons participating with
in furtherance of the purposes of subparagraphs (A) and (B) to
use the Administration's office facilities and related material and
services as the Administration deems appropriate, including clerical
and stenographic services:
(I) such volunteers, while carrying out activities under this
paragraph shall be deemed Federal employees for the purposes
of the Federal tort claims provisions in Title 28; and for the pur-
poses of subchapter I of chapter 81 of Title 5 (relative to com-
pensation to Federal employees for work injuries) shall be
deemed civil employees of the United States within the meaning
of the term "employee" as defined in section 8101 of Title 5,
68
and I
comp
mont
the e
(II
mite(
provi
atten
the c
deter
presc
from
pense
by se
and
(Iii
client
trig,
sista]
(DO Nc
supportivc
to person,
tax or chi
poses of
similar b(
(E) Nc
to regulai
be emplo;
Incidental
administr
of activitl
made par
(F) In
ministrat:
Una, and
chapter, ,
or intang
further, t
(7) (A
ficers en
respect t,
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tenacity,
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posal of
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ness eon
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COMMERCE AND TRADE
eern will be able to perform contracts which may be
:oncern under paragraph (1)(C) and has reasonable
s in competing in the private sector.
iations made pursuant to paragraph (6) with respect
has been subjected to prejudice or bias shall be made
or after consultation with the Associate Administrator
Business and Capital Ownership Development. An
is made pursuant to paragraphs (4), (6), (6), and (7)
ie Associate Administrator for Minority Small Business
'ship Development under the supervision of, and re-
ministrator.
ay days after the effective date of this paragraph,
shall publish in the Federal Register rules setting
ons or circumstances pursuant to which a firm pre-
gible by the Administration may be denied assistance
ns of this subsection: Provided, That no such firm
:al participation in any program conducted under the
ibsection without first being afforded a hearing on the
e with chapter 5 of Title 5.
eistration shall develop and implement an outreach
and recruit small business concerns to apply for eligi-
lunder this subsection.
lixiMUM extent practicable, construction subcontracts
ministration pursuant to this subsection shall be award-
ty or State where the work is to be performed.
lximum extent practicable the Associate Administra-
Ian Business and Capital Ownership Development shall
quently than annually, a yearly estimate of the dollar
of contracts required for the efficient use of any pro-
}der the authority of this subsection, to each agency
tie in such program.
at and property disposal powers; determination
of small-busineas concerns
be the duty of the Administration and it is empowered,
Lines such action is necessary?
[See main volume for text of (iyA)]
ablish, conduct, and publicize, and to recruit, select,
inteers for (and to enter into contracts, grants, or CO-
ements therefor), volunteer programs, including a Serv-
Retired Executives (SCORE) and an Active Corps of
;E) for the purposes of subparagraph (A); and to fa-
plementation of such volunteer programs the Adminis-
aintain at its headquarters and pay the expenses of a
teers subject to such conditions and limitations as the
L deems appropriate: Provided, That any such pay-
arsuant to this subparagraph shall be effective only to
in such amounts as are provided in advance in appro-
w any individual or group of persons participating with
Ice of the purposes of subparagraphs (A) and (B) to
nistration's office facilities and related material and
Administration deems appropriate, including clerical
iic services:
volunteers, while carrying out activities under this
shall be deemed Federal employees for the purposes
eral tort claims provisions in Title 28; and for the pur-
ibchapter I of chapter 81 of Title 5 (relative to coin-
to Federal employees for work injuries) shall be
.11 employees of the United States within the meaning
n "employee" as defined in section 8101 of Title 5.
68
COMMERCE AND TRADE 15 ? 637
and the provisions of that subchapter shall apply except that in
computing compensation benefits for disability or death, the
monthly pay of a volunteer shall be deemed that received under
the entrance salary for a grade OS-11 employee;
(ii) the Administrator is authorized to .reimburse such vol-
unteers for all necessary out-of-pocket expenses incident to their
provision of services under this chapter, or in connection with
attendance at meetings sponsored by the Administration, or for
the cost of malpractice insurance, as the Administrator shall ?
determine, in accordance with regulations which he or she shall
prescribe, and, while they are carrying out such activities away
from their homes or regular places of busineu, for travel ex-
penses (including per diem in lieu of subsistence) as authorized
by section 5703 of Title 6 for individuals serving without Pay;
and
OM such volunteers shall in no way provide services to a
client of such Administration with a delinquent loan outstand-
ing, except upon a specific request signed by such client for as-
sistance in connection with such matter.
(DO Notwithstanding any other provision of law, no payment for
supportive services or reimbursement of out-of-pocket expenses made
to persons serving pursuant to this paragraph shall be subject to any
tax or charge or be treated as wages or compensation for the pur-
poses of unemployment, disability, retirement, public assistance, or
similar benefit payments, or minimum wage laws.
(E) Notwithstanding any other provision of law and pursuant
to regulations which the Administrator shall prescribe, counsel may
be employed and -counsel fees, court costs, bail, and other expenses
incidental to the defense of volunteers may be paid in judicial or
administrative proceedings arising directly out o.! the performance
of activities pursuant to this paragraph to which volunteers have been
made parties.
(F) In carrying out its functions under this paragraph, the Ad-
ministration is authorized to accept, in the name of the Administra-
tion, and employ or dispose of in furtherance of the purposes of this
chapter, any money or property, real, personal, or mixed, tangible,
or intangible, received by gift, devise, bequest, or otherwise; and,
further, to accept gratuitous services and facilities.
(See ruin volume for text of (2) to (6)]
(7)(A) To certify to Government procurement officers, and of-
ficers engaged in the sale and disposal of Federal property, with
respect to all elements of responsibility, including, but not limited to,
capability, competency, capacity, credit, integrity, perseverance, and
tenacity, of any small business concern or group of such concerns
to receive and perform a specific Government contract. A Govern-
ment procurement officer or an officer engaged in the sale and dis-
posal of Federal property may not, for any reason specified in the
preceding sentence, preclude any small business concern or group
of such concerns from being awarded such contract without referring
the matter for a final disposition to the Administration.
(B) If a Government procurement officer finds that an otherwise
qualified small business concern may be ineligible due to the pro-
visions of section 35(a) of Title 41, he shall notify the Administra-
? tion in writing of such finding. The Administration shall review
such finding and shall either dismiss it and certify the small busi-
ness concern to be an eligible Government contractor for a specific
Government contract or if it concurs in the finding, forward the
matter to the Secretary of Labor for final disposition, In which case
the Administration may certify the small business concern only if
the Secretary of Labor finds the small business concern not to be in
violation.
69
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15 ? 637 COMMERCE AND TRADE
(C) In any case in which a small business concern or group of
such concerns has been certified by the Administration pursuant to
(A) or (B) to be a responsible or eligible Government contractor
as to a specific Government contract, the officers of the Government
having procurement or property disposal powers are directed to as-
cept such certification as conclusive, and shall let such Government
contract to such concern or group of concerns without requiring it
to meet any other requirement of responsibility or eligibility.
Mee mats volume for text of (8) to (15); (0)]
Performance of contracts by small business eo eeeee s; inclusion of required
contract clause; subcontracting plans; contract eligibility; incentives;
breacb of contract; review; report to Congress
(d) (1) It is the policy of the United States that small business con-
cerns, and small business concerns owned and controlled by socially and
economically disadvantaged individuals, shall have the maximum prac-
ticable opportunity to participate in the performance of contracts let by
any Federal agency.
(2) The clause stated in paragraph (3) shall be included in all con-
tracts let by any Federal agency except any contract which?
(A) does not exceed $10,000;
(B) including all subcontracts under such contracts will be per-
formed entirely outside of any State, territory, or possession of the
United States, the District of Columbia, or the Commonwealth of
Puerto Rico; or
(C) is for services which are personal in nature.
(3) The clause .required by paragraph (2) shall be as follows:
"(A) It is the policy of the United States that small business con-
cerns and small business concerns owned and controlled by socially
and economically disadvantaged individuals shall have the maximum
practicable opportunity to participate in the performance of contracts
let by any Federal agency.
"(B) The contractor hereby agrees to carry out this policy in the
awarding of subcontracts to the fullest extent consistent with the
efficient performance of this contract. The contractor further agrees
to cooperate in any studies or surveys as may be conducted by the
United States Small Business Administration or the awarding agency
of the United States as may be necessary to determine the extent
of the contractor's compliance with this clause.
"(C) As used in this contract, the term 'small business concern'
shall mean a small business as defined pursuant to section 3 of the
Small Business Act and relevant regulations promulgated pursuant
thereto. The term 'small business concern owned and controlled
by socially and economically disadvantaged individuals' shall mean
a small business concern?
"(I) which is at least 51 per centum owned by one or more
socially and economically disadvantaged individuals; or, in
the case of any publicly owned business, at least 51 per centum
of the stock of which is owned by one or more socially and eco-
nomically disadvantaged individuals; and
"(ii) whose management and daily business operations are
controlled by one or more of such individuals.
"The contractor shall presume that socially and economically disad-
vantaged individuals include Black Americans, Hispanic Americans,
Native Americans, Asian Pacific Americans, and other minorities, or
any other individual found to be disadvantaged by the Administration
pursuant to section 8(a) of the Small Business Act.
"(D) Contractors acting in good faith may reily on written repre-
sentations by their subcontractors regarding their status as either a
small business concern or a small business concern owned and con-
trolled by socially and economically disadvantaged individuals."
70
(4)(A
Federal
of Procui
for the 4
other co
parries o
pursuant
(B) I
mod Moe
of g
stru
con
the app.
thority
scribed 1
and mad
(C) I
agency (
subcontr
ineligibb
with 0th
agency I
the cont
(D)
ment au
pursuant
ty for s
controlle
ticipate I
(E)
in order
concerns
ly and I
(3) of t
such Fe
subcontr
and ecol
paragrar
method
(5) (11
amendm
which?
of
thb
stri
cos
shall co
a contri
Plan wl
(B)
agency
submit
shall b4
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37 COMMERCE AND TRADE
In any case in which a small business concern or group of
concerns has been certified by the Administration pursuant to
(B) to be a responsible or eligible Government contractor
a specific Government contract, the officers of the Government
g procurement or property disposal powers are directed -to &c-
inch certification as conclusive, and shall let such Government
Let to such concern or group of concerns without requiring it
oet any other requirement of responsibility or eligibility.
[See main volume for text of (8) to (15); OA
nee of contracts by small business concerns; inclusion of required
clause; subcontracting plans; contract eligibility; incentives;
breach of contract; review; report to Congress
It is the policy of the United States that small business con-
small business concerns owned and controlled by socially and
ly disadvantaged individuals, shall have the maximum prac-
>ortunity to participate in the performance of contracts let by
11 agency.
clause stated in paragraph (3) shall be included in all con-
by any Federal agency except any contract which?
does not exceed $10,000;
including all subcontracts under such contracts will be yar-
d entirely outside of any State, territory, or possession of the
States, the District of Columbia, or the Commonwealth of
Rico; or
is for services which are personal in nature.
clause required by paragraph (2) shall be as follows:
1.) It is the policy of the United States that small-business con-
and small business concerns owned and controlled by socially
conomically disadvantaged individuals shall have the maximum
cable opportunity to participate in the performance of contracts
any Federal agency.
I) The contractor hereby agrees to carry out this policy in the
tog of subcontracts to .the fullest extent consistent with the
,nt performance of this contract. The contractor further agrees
PDerate in any studies or surveys as may be conducted by the
1 States Smelt Business Administration or the awarding agency
United States as may be necessary to determine the extent
contractor's compliance with this clause.
!) As used in this contract, the term 'small business concern'
mean a small business as defined pursuant to section 3 of the
Business Act and relevant regulations promulgated pursuant
0. The term 'small business concern owned and controlled
:tally and economically disadvantaged individuals' shall mean
11 business concern?
"(1) which is at least 51 per centum owned by one or more
)daily and economically disadvantaged individuals; or, in
Th case of any publicly owned business, at least 51 per centum
r the stock of which is owned by one or more socially and eco-
Dmically disadvantaged individuals; and
"(11) whose management and daily business operations are
mtrolled by one or more of such individuals.
.lontractor shall presume that socially and economically disad-
ed individuals include Black Americans, Hispanic Americans,
Americans, Asian Pacific Americans, and other minorities, or
her individual found to be disadvantaged by the Administration
.nt to section 8(a) of the Small Business Act.
) Contractors acting in good faith may rely on written repre-
ons by their subcontractors, regarding their status as either a
business concern or a small business concern owned and con-
by socially and economically disadvantaged individuals."
70
COMMERCE AND TRADE 15 ? 637
(4) (A) Each solicitation of an offer for a contract to be let by a
Federal agency which is to be awarded pursuant to the negotiated method
of Procurirment and which may exceed $1,000.000, in the case of a contract
for the construction of any public facility, or $500,000, in the case of all
other contracts, shall contain a clause notifying potential offering com-
panies of the provisions of this subsection relating to contracts awarded
pursuant to the negotiated method of procurement.
(B) Before the award of any contract to be let, or any amendment or
modification to any contract let, by any Federal agency which?
(1) is to be awarded, or was let, pursuant to the negotiated method
of procurement.
(11) is required to include the clause stated in paragraph (3).
(11i) may exceed $1,000,000 In the case of a contract for the con-
struction of any public facility, or $500,000 in the case of all other
contracts, and
(iv) which offers subcontracting possibilities,
the apparent successful offeror shall negotiate with the procurement au-
thority a subcontracting plan which incorporates the information pre-
scribed in paragraph (6). The subcontracting plan shall be included in
and made a material part of the contract.
(C) If, within the time limit prescribed in regulations of the Federal
agency concerned, the apparent successful offeror fails to negotiate the
subcontracting plan required by this paragraph, such offeror shall become
Ineligible to be awarded the contract. Prior compliance of the offeror
with other such subcontracting plans shall be considered by the Federal
agency in determining the responsibility of that offeror for the award of
the contract.
(D) No contract shall be awarded to any offeror unless the procure-
ment authoiity determines that the plan to be negotiated by the offeror
pursuant to this paragraph provides the maximum practicable opportuni-
ty for small business concerns and small business concerns owned and
controlled by socially and economically disadvantaged individuals to par-
ticipate in the performance of the contract.
(E) Notwithstanding any other provision of law, every Federal agency.
in order to encourage subcontracting opportunities for small business
concerns and small business concerns owned and controlled by the social-
ly and economically disadvantaged individuals as defined in paragraph
(3) of this subsection, is hereby authorized to provide such incentives as
such Federal agency may deem appropriate in order to encourage such
subcontracting opportunities as may be commensurate with the efficient
and economical performance of the contract: Provided, That, this sub-
paragraph shall apply only to contracts let pursuant to the negotiated
method of procurement.
(5) (A) Each solicitation of a bid for any contract to be let, or any
amendment or modification to any contract let, by any Federal agency
which?
(1) is to be awarded pursuant to the formal advertising method
of procurement.
(11) is required to contain the clause stated in paragraph (3) of
this subsection,
(iii) may exceed $1.000,000 in the case of a contract for the con-
struction of any public facility, or $500,000, in the case of all other
contracts, and
(iv) offers subcontracting possibilities,
shall contain a clause requiring any bidder.who is selected to be awarded
a contract to submit to the Federal agency concerned a subcontracting
plan which incorporates the information prescribed in paragraph (6).
(B) If, within the time limit prescribed in regulations of the Federal
agency concerned, the bidder selected to be awarded the contract fails to
submit the subcontracting plan required by this paragraph, such bidder
shall become ineligible to be awarded the contract. Prior compliance of
71
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15 ? 637 COMMERCE AND TRADE
the bidder with other such subcontracting plans shall be considered by
the Federal agency in determining the responsibility of such bidder for
the award of the contract. The subcontracting plan of the bidder awarded
the contract shall be included in and made a material part of the contract
(6) Each subcontracting plan required under paragraph (4) or (6)
shall include?
(A) percentage goals for the utilization as subcontractors of small
business concerns and small business concerns owned and controlled
by socially and economically disadvantaged individuals;
. (B) the name of an individual within the employ of the offeror
or bidder who will administer the subcontracting program of the
offeror or bidder and a description of the duties of such individual;
(C) a description of the efforts the offeror or bidder will take to
assure that small business concerns and small business concerns
owned and controlled by the socially and economically disadvantaged
Individuals will have an equitable opportunity to compete for sub-
contracts;
(D) assurances that the offeror .or bidder will include the clause
required by paragraph (2) of this subsection in all subcontracts
which offer further subcontracting opportunities, and that the offeror
or bidder will require all subcontractors (except small business con-
cerns) who receive subcontracts in excess of $1,000,000 in the case
of a contract for the construction of any public facility, or in excess
of 2500,000 in the case of all other contracts, to adopt a plan similar
to the plan required under paragraph (4) or (5);
(E) assurances that the offeror or bidder will submit such peri-
odic reports and cooperate in any studies or surveys as may be re-
quired by the Federal agency or the Administration in order to de-
termine the extent of compliance by the offeror or bidder with the
subcontracting plan; and
(F) a recitation of the types of records the successful offeror
or bidder will maintain to demonstrate procedures which have been
adopted to comply with the requirements and goals set forth in this
plan, including the establishment of source lists of small business
? concerns and small business concerns owned and controlled by so-
cially and economically disadvantaged individuals; and efforts to
Identify and award subcontracts to such small business concerns.
(7) The provisions of paragraphs (4), (5), and (6) shall not apply
to offerors or bidders who are small business concerns.
(8) The failure of any contractor or subcontractor to comply in good
faith with?
(A) the clause contained in paragraph (3) of this subsection,
or
(E) any plan required of such contractor pursuant to the authori-
ty of this subsection to be included in its contract or subcontract,
shall be a material breach of such contract or subcontract.
(9) Nothing contained in this subsection shall be construed to super-
sede the requirements of Defense Manpower Policy Number 4A (22A
CFR Chap. 1) or any successor policy.
(10) In the case-of contracts within the provisions of paragraphs (4).
(5). and (6). the Administration is authorized to?
(A) assist Federal agencies and businesses in complying with
their responsibilities under the provisions of this subsection, includ-
ing the formulation of subcontracting plans pursuant to paragraph
(4);
(B) review any solicitation for any contract to be let pursuant to
paragraphs (4) and (5) to determine the maximum practicable op-
portunity for small business concerns and small business concerns
owned and controlled by socially and economically disadvantaged In-
dividuals to participate as subcontractors in the performance of any
contract resulting from any solicitation, and to submit its findings,
72
which
and
(C)
contra(
contrai
(11) At
submit to I
mittee on 13
contracting
min istratioi
for small t
trolled by
pate in the
As amende
Pub.L. 95-
1767; Put
302, Title 1
gi 101, 101
Reference.
of this parai
(a)(1)(11). (9
tire date of
fective Oct. 2
Title IV a
ment Act of
(a)(2)(C), is
seg. of this I
The Feder
Title 28,
(b)(1)(C)(1),
1346(b) and
dory and Ju(
IMO Amen(
L. 95-481.1
that no coat
der subpar.
provimions ti
be entered ;
Subaec. (a
substituted I
shall not a;
provisions ti
apply after I
Subset. (a
subetituted
tionm made
with respect
subjected to
made by nu
tatting with
for Minority
Ownership I
er determing
sees. (a)(4);
made by Um
Minority
Ownership I
vision of. an
trator, for
tions made
(5). (6) an
Associate
Small Susi(
Developmen1
Subset. (I
eluded in ti
advantaged
Americans.
1?711 Am
Pub.L. 95-6
[Vine% trip..
from agene!
the program
conditions I
to be negot
the submIss
resolution.
Subsec.
202(1), antt
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COMMERCE AND TRADE
Ither such subcontracting plans shall be considered by
ar in determining the responsibility of such bidder for
ontract The subcontracting plan of the bidder awarded
be included in and made a material part of the contract
)ntracting plan required under paragraph 44) or (5)
itage goals for the utilization as subcontractors of small
erns and small business concerns owned and controlled
ad economically disadvantaged individuals;
ime of an individual within the employ of the offeror
lo will administer the subcontracting program of the
lder and a description of the duties of such individual;
ription of the efforts the offeror or bidder will take to
small business concerns and small business concerns
,ntrolled by the socially and economically disadvantaged
ill have an equitable opportunity to compete for sub-
nces that the offeror.or bidder will include the clause
paragraph (2) of this subsection in all subcontracts
irther subcontracting opportunities, and that the offeror
require all subcontractors (except small business eon-
eeeive subcontracts In excess of $1,000,000 in the ease
for the construction of any public facility, or in excess
n the case of all other contracts, to adopt a plan similar
quired under paragraph (4) or (5);
.nees that the offeror or bidder will submit such peri-
and cooperate in any studies or surveys as may be re.
Federal agency or the Administration in order to de-
mtent of compliance by the offeror or bidder with the
g plan; and
tation of the types of records the successful offeror
I maintain to demonstrate procedures which have been
Imply with the requirements and goals set forth in this
ig the establishment of source lists of small business
small business concerns owned and controlled by so-
onomically disadvantaged individuals; and efforts to
Lward subcontracts to such small business concerns.
tons of paragraphs (4), (5), and (6) shall not apply
ere who are small business concerns.
of any contractor or subcontractor to comply in good
ause contained in paragraph (3) of this subsection,
an required of such contractor pursuant to the authori-
Ssection to be included in its contract or subcontract,
terial breach of such contract or subcontract.
Itained in this subsection shall be construed to super-
tents of Defense Manpower Policy Number 4A (82A
ny successor policy.
s-of contracts within the provisions of paragraphs 44),
Ldministration is authorized to-
Federal agencies and businesses in complying with
nlities under the provisions of this subsection, includ-
lation of subcontracting plans pursuant to paragrapb.
any solicitation for any contract to be let pursuant to
) and (5) to determine the maximum practicable op-
small business concerns and small business concerns
trolled by socially and economically disadvantaged 1n-
uticipate as subcontractors in the performance of any
ing from any solicitation, and to submit its findings,
72
COMMERCE AND TRADE 15 ? 637
which shall be advisory in nature, to the appropriate Federal agency;
and
(C) evaluate compliance with subcontracting plans, either on a
contract-by-contract basis, or in the case contractors having multiple
contracts, on an aggregate basis.
(11) At the conclusion of each fiscal year, the Administration shall
submit to the Senate Select Committee on Small Business and the Com-
mittee on Small Business of the House of Representatives a report on sub-
contracting plans found acceptable by any Federal agency which the Ad-
ministration determines do not contain maximum practicable opportunities
for small business concerns and small business concerns owned and con-
trolled by socially and economically disadvantaged individuals to partici-
pate In the performance of contracts described in this subsection.
[See main volume for text of (e)]
As amended Pub.L. 96-89, Title V, I 501, Aug. 4, 1977, 91 Stat. 561;
Pub.L. 95-507, Title II, II 202(a), 211, Oct. 24, 1978, 92 Stat. 1761,
1767; Pub.L. 95-510, 101, Oct. 24, 1978, 92 Stat. 1780; Pub.L. 96-
302, Title I, ? 118(b), July 2, 1980, 94 Stat. 840; Pub.L. 96-481, Title I.
fi 101, 105, Oct. 21,1980. 94 Stat. 2321, 2322.
References in Text. The effective date waive part or all of any bonding require.
of this paragraph, referred to in subsec.. meats for small business concerns as con-
ditions for receiving any subcontract un-
der this section and prescribed conditions
for such waiver by the Administration.
Subsecs. (a)(3) to (12). Pub.L. 95-507,
202(s), added pars. (3) to (12).
Subsec. (b)(1). Pub.L. 95-510 substi-
tuted in subpar. (B) provisions relating
to the establishment and implementation
of volunteer programs for provisions re-
lating to the use of office facilities etc.,
and the payment of transportation ex-
penses and per diem allowance, and add-
ed subpars. (C) to (F).
FInbeee. (di. Pub.L. 95-507, 1 211, sub-
stituted provisions relating to the per-
formance of contracts by small business
concerns, requiring, among other things,
the inclusion of ? specific contract clause
in most Federal prime contracts, requir-
_ Dig as A condition of the solicitation of
any offer of a Federal contract in excess
of $500,000. the submission of a summary
contract plan, and relating to incentives
for small business subcontracting, con-
tract eligibility, breach of contract or
subcontract, administrative review of con-
tract solicitation and subcontract plan-
ning, and relating to submission to con-
gressional committees of a report on sub-
contracting plans for provisions relating
generally to the small business subcon-
tract program and regulations issued
thereunder.
1917 Amendment. Subsec. (b)(7).
Pub.L. 95-81), in revising par. (7), incor-
porated existing introductory text in pro-
visions designated subpar. (A) and sub-
stituted therein "with respect to all ele-
ments of responsibility, including, but
not limited to, capability, competency, ca-
pacity, credit, integrity, perseverance, and
tenacity, of any small business concern
or group of such concerns to receive And
perform a specific Government contract"
for "with respect to the competency, as
to capacity and credit, of any small-busi-
ness concern or group of such concerns
(9)(1)(B). (9), probably means the effec-
tive date of Pub.L. M-507, which was ef-
fective Oct. 24, 1978.
Title IV of the Small Business Invest-
ment Act of 1958, referred to in subsec.
(a)(2)(C), is classified to section ON et
seq. of this title.
The Federal tort claims provisions in
Title 28, referred to in subsec.
(b)(1)(C)(i) are classified to sections
1346(b) and 2671 et seq. of Title 23, Judi-
ciary and Judicial Procedure.
1990 Amendments. Subset!. (a)(1). Pub.
L. 96-481, 101, substituted provisions
that no contract may be entered into un-
der subpar. (b) after Sept. 30, 1981, for
provisions that such contracts may not
be entered into after Sept. 30, 1980.
Subsec. (a)(2). Pub.L. 96-481, 101,
substituted provisions that the paragraph
shall not apply after Sept. 30, 1981, for
provisions that the paragraph shall not
apply after Sept. 30, 1980.
SubRee. (a)(8). Pub.L. 95-481, 105,
substituted previsions that all determina-
tions made pursuant to subsec. (a)(5)
with respect to whether a group has been
subjected to prejudice or bias shall be
made by the Administrator after consul-
tation with the Associate Administrator
for Minority Small Business and Capital
Ownership Development and that all oth-
er determinations made pursuant to sub-
secs. (a)(4), (5). (6). and (7) shall be
made by the Associate Administrator for
Minority Small Business and Capital
Ownership Development under the super-
vision of, and responsible to the Adminis-
trator, for provision that all determina-
tions made pursuant to subsecs. (a)(4),
(5). 0) and (7). Isbell be made by the
Associate Administrator for Minority
Small Business and Capital Ownership
Development.
Subsec. (d)(3)(C). Pub.L. 96-302 in-
cluded in the presumption of being dis-
advantaged individuals Asian Pacific
Americans.
1971) Amendments. [Jubilee. (a)(1). to perform a specific Government con-
Pub.L. 05-507, 202(a), added rovision 'tract"; added subpar. 4B)* and inco -
giving the Adm nistration sole discretion rated existing end text In provisions m-
in choosing procurement requirements ignated subpar. (C). substituting therein
from agencies or departments for use in "certified by the Administration pursuant
the program, provided that the terms and to (A) or (B) to be a responsible or ell-
conditions of the proposed contract are gible Government contractor as to 142:c-i
to be negotiated and made provision for cific Government contract" for "certified
the submission of stalemated matters for by or under the authority of the Admin-
resolution. istration to be a competent Government
202(a), authorised the Administration to credit as to a c Government con-
[Whose. (a)(2). Pub.L. 95-507, 1 contractor with res to capacity and
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15 ? 636d AID TO SMALL BUSINESS Ch. 14A
be made without regard to limitations on the size of loans which rimy
otherwise be imposed by any other provision of law or regulations pro.
mulgated pursuant thereto.
(b) Assistance under this section shall be in addition to any other
Federal disaster assistance, except that such other assistance may be
adjusted or modified to the extent deemed appropriate by the Director
under the authority of section 4418 of Title 42. Any loan made under
this section shall be subject to the interest requirements of section
636b of this title, but the President, if he deems it necessary, may de-
fer payments of principal and interest for a period not to exceed three
years after the date of the loan. Any such deferred payments shall
bear interest at the rate determined under section 636b of this title.
Pub.L. 91-606, Title II, ? 237, Dec. 31, 1970, 84 Stat. 1754.
Historical Note
References In Text. Section 4418 of Ti-
tle 42, referred to in subsec. (b), was re-
pealed by Pub.L. 93-288, Title VI, i 603,
May =, 1974, 88 Stat. 164. Provisions
similar to former section 4418 of Title 42
are now contained in section 5155 of Title
42.
Codification. Section was enacted as
part of the Disaster Relief Act of 3970
and not as part of the Small Business
Act, which comprises this chapter. Sec-
tion was formerly classified to section
? 637. Additional powers
4456 of Title 42, The Public Health and
Welfare.
Effective Date. Section effective Aug.
1. 1969, see, section 304 of Pub.L. 91-666,
set out as a note under former section
4401 of Title 42, The Public Health and
Welfare.
Legislative History. For legislative
history and purpose of Pub.L. 91-e0e. see
1970 U.S.Code Cong. and Adm.News, p.
5486.
Procurement contracts; subcontract. to small-business concerns
(a) It shall be the duty of the Administration and it is empowered,
whenever it determines such action is necessary?
(1) to enter into contracts with the United States Government
and any department, agency, or officer thereof having procure-
ment powers obligating the Administration to furnish articles,
equipment, supplies, or materials to the Government. In any case
in which the Administration certifies to any officer of the Gov-
ernment having procurement powers that the Administration is
competent to perform any specific Government procurement con-
tract to be let by any such officer, such officer shall be authorized
in his discretion to let such procurement contract to the Adminis-
tration upon such terms and conditions as may be agreed upon be-
tween the Administration and the procurement officer; and
(2) to arrange for the performance of such contracts by nego-
tiating or otherwise letting subcontracts to small-business con-
cerns or others for the manufacture, supply, or assembly of such
articles, equipment, supplies, or materials, or parts thereof, or
servicing or processing in connection therewith, or such manage-
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Ch. 14A
ment
to pe
(b) It
ered, whe
(1?
ness
tion
polic;
but r
insur
neeri
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ciatic
cies,
the r
prise,
tiviti.
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(2',
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In m
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(3:
ducti
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havir
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Ch. 144
vhicb may
ttion e or,.
any other
:e May be
! Director
add unclip,
sectio
may de-
ted three
ents 111.0
this title
Health as4
wtive a?g
L. Ill MIR
ter ii.,-,1:?=4;
lealth ?a4
legl.151$w
91 OK
rn. NVW? p
mwered.
?rnment
proc u re-
articles.
Lfl C3-'e
he Gol-
ition 14
nt con-
horized
dmini$-
ponbe-
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ss Con-
of such
of. or
anaire?
14A
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AID TO SMALL BUSINESS 15 ? 637
tont services as may be necessary to enable the Administration
to perform such contracts.
Procurement and property disposal powers; determination
of small-business concerns
) It shall also be the duty of the Administration and it is empow-
whenever it determines such action is necessary?
(1)(A) to provide technical and managerial aids to small-busi-
ness concerns, by advising and counseling on matters in connec-
tion with Government procurement and property disposal and on
policies, principles, and practices of good management, including
but not limited to cost accounting, methods of financing, business
insurance, accident control, wage incentives, and methods engi-
neering, by cooperating and advising with voluntary business,
professional, educational, and other nonprofit organizations, asso-
ciations, and institutions and with other Federal and State agen-
cies, by maintaining a clearinghouse for information concerning
the managing, financing, and operation of small-business enter-
prises, by disseminating such information, and by such other ac-
tivities as are deemed appropriate by the Administration;
(B) in the case of any individual or group of persons cooperat-
ing with it in furtherance of the purposes of subparagraph (A),
(i) to allow such an individual or group such use of the Adminis-
tration's office facilities and related materials and services as the
Administration deems appropriate; and (ii) to pay the transpor-
tation expenses and a per diem allowance in accordance with sec-
tion 5703 of Title 5 to any such individual for travel and subsis-
tence expenses incurred at the request of the Administration in
connection with travel to a point more than fifty miles distant
from the home of that individual in providing gratuitous services
to small businessmen in furtherance of the purposes of subpara-
graph (A) or in connection with attendance at meetings spon-
sored by the Administration;
(2) to make a complete inventory of all productive facilities of
small-business concerns or to arrange for such inventory to be
made by any other governmental agency which has the facilities.
In making any such inventory, the appropriate agencies in the
several States may be requested to furnish an inventory of the
Productive facilities of small-business concerns in each respective
State if such an inventory is available or in prospect;
(3) to coordinate and to ascertain the means by which the pro-
ductive capacity of small-business concerns can be most effective-
ly utilized;
(4) to consult and cooperate with officers of the Government
.having procurement or property disposal powers, in order to uti-
lize the potential productive capacity of plants operated by small-
business concerns;
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15 ? 637 AID TO SMALL BUSINESS Ch. 14A
(5) to obtain information as to methods and practices which
Government prime contractors utilize in letting subcontracts and
to take action to encourage the letting of subcontracts by prime
contractors to small-business concerns at prices and on conditions
and terms which are fair and equitable;
(6) to determine within any industry the concerns, firms, per.
sons, corporations, partnerships, cooperatives, or other business
enterprises which are to be designated "small-business concerns"
for the purpose of effectuating the provisions of this chapter. To
carry out this purpose the Administrator, when requested to do
so, shall issue in response to each such request an appropriate cer-
tificate certifying an individual concern as a "small-business con.
cern" in accordance with the criteria expressed in this chapter.
Any such certificate shall be subject to revocation when the con-
cern covered thereby ceases to be a "small-business concern". Of-
fices of the Government having procurement or lending powers,
or engaging in the disposal of Federal property or allocating ma-
terials or supplies, or promulgating regulations affecting the dis-
tribution of materials or supplies, shall accept as conclusive the
Administration's determination as to which enterprises are to be
designated "small-business concerns", as authorized and directed
under this paragraph; .
(7) to certify to Government procurement officers, and officers
engaged in the sale and disposal of Federal property, with respect
to the competency, as to capacity and credit, of any small-business
concern or group of such concerns to perform a specific Govern-
ment contract. In any case in which a small-business concern or
group of such concerns has been certified by or under the author-
ity of the Administration to be a competent Government contrac-
tor with respect to capacity and credit as to a specific Govern-
ment contract, the officers of the Government having procure-
ment or property disposal powers are directed to accept such cer-
tification as conclusive, and are authorized to let such Govern-
ment contract to such concern or group of concerns without re-
quiring it to meet any other requirement with respect to capacity
and credit;
(8) to obtain from any Federal department, establishment, or
agency engaged in procurement or in the financing of procure-
ment or production such reports concerning the letting of con-
tracts and subcontracts and the making of loans to business con-
cerns as it may deem pertinent in carrying out its functions un-
der this chapter;
(9) to obtain from any Federal department, establishment, or
agency engaged in the disposal of Federal property, such reports
concerning the solicitation of bids, time of sale, or otherwise as it
may deem pertinent in carrying out its functions under this chap-
ter;
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Ch.
14A
(10)
ing to
their
able to
(11;
Feder;
chases
ment '
fair p
opmen
fair p
to sm
share
cerns;
(12
the pu
fair a;
(13
be ne(
Small
board:
tion e
5703
travel
minis.
miles
meeti:
ly, wi
other
such
(14
and a
cerni;
to loc
and t
urbar
cerns
(le.
3204
deem
the g
(c) Thi
matters r
ness, and
and regul
Approved For Release 2008/11/20: CIA-RDP86B00338R000200240014-1
BUSINESS Ch, 14.4
) methods and practices which
lize in letting subcontracts gni
tting of subcontracts by Prime
ms at prices and on conditions
able;
lustry the concerns, firms, per.
.00peratives, or other business
iated "small-business concerns.,
provisions of this chapter. To
istrator, when requested to do
Lich request an appropriate cer.
nem as a "small-business con-
Tia expressed in this chapter.
ct to revocation when the con.
"small-business concern". of.
-ocurement or lending powers,
!rid property or allocating ma.
regulations affecting the dis-
shall accept as conclusive the
Lo which enterprises are to be
as authorized and directed
:urement officers, and officers
Federal property, with respect
d credit, of any small-business
Lo perform a specific Govern-
:h a small-business concern or
tified by or under the author-
Impetent Government contrac-
edit as to a specific Govern-
Government having procure-
e directed to accept such cer-
thorized to let such Govern-
roup of concerns without re-
ment with respect to capacity
epartment, establishment, or
in the financing of procure-
ncerning the letting of con-
ing of loans to business con-
.rrying out its functions un-
?partment, establishment, or
deral property, such reports
;le of sale, or otherwise as it
.s functions under this chap-
AID TO SMALL BUSINESS 15 ? 637
14A
(1()) to obtain from suppliers of materials information pertain-
ing to
the method of filling orders and the bases for allocating
their PlY
whenever it appears that any small business is un-
able
to materials from its normal sources;
(11) to make studies and recommendations to the appropriate
Federal agencies to insure that a fair proportion of the total pur-
chases and contracts for property and services for the Govern-
ment be placed with small-business enterprises, to insure that a
fair proportion of Government contracts for research and devel-
opment be placed with small-business concerns, to insure that a
fair proportion of the total sales of Government property be made
to small-business concerns, and to insure a fair and equitable
share of materials, supplies, and equipment to small-business con-
cerns;
(12) to consult and cooperate with all Government agencies for
the purpose of insuring that small-business concerns shall receive
fair and reasonable treatment from such agencies;
(13) to establish such advisory boards and committees as may
be necessary to achieve the purposes of this chapter and of the
Small Business Investment Act of 1958; to call meetings of such
boards and committees from time to time; to pay the transporta-
tion expenses and a per diem allowance in accordance with section
5703 of Title 5 to the members of such boards and committees for
travel and subsistence expenses incurred at the request of the Ad-
ministration in connection with travel to points more than fifty
miles distant from the homes of such members in attending the
meetings of such boards and committees; and to rent temporari-
ly, within the District of Columbia or elsewhere, such hotel or
other accommodations as are needed to facilitate the conduct of
such meetings;
(14) to provide at the earliest practicable time such information
and assistance as may be appropriate, including information con-
cerning eligibility for loans under section 636(b) (3) of this title
to local public agencies (as defined in section 1460 of Title 42)
and to small-business concerns to be displaced by federally aided
urban renewal projects in order to assist such small-business con-
cerns in reestablishing their operations; and
(15) to disseminate, without regard to the provisions of section
3204 of Title 39 data and information, in such form as it shall
deem appropriate, to public agencies, private organizations, and
the general public.
Studies and recommendation.
(c) The Administration shall from time to time make studies of
matters materially affecting the competitive strength of small busi-
ness, and of the effect on small business of Federal laws, programs,
and regulations, and shall make recommendations to the appropriate
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15 ?637
AID TO SMALL BUSINESS Ch, 14A
I
Federal agency or agencies for the adjustment of such programs and Ch.
regulations to the needs of small business. ing t
subcc
Small business subcontracting programs regulations (3)
(d)(1) Within ninety days after September 26, 1961, the Adminio. tion I
trator, the Secretary of Defense, and the Administrator of General may 4
Services shall cooperatively develop a small business subcontractint busiD
program which shall contain such provisions as may be appropriate to (4)
(A) enable small business concerns to be considered fairly as subcon. Adrni
tractors and suppliers to contractors performing work or rendering eral
services
-
services as prime contractors or subcontractors under Government pro. velopc
curement contracts, (B) insure that such prime contractors and sub.
contractors will consult through the appropriate procuring agency
with the Administration when requested by the Administration, and ( e)
(C) enable the Administration to obtain from any Government pro. erapoN
curement agency such available or reasonably obtainable information tions
and records concerning subcontracting by its prime contractors and $5,000
their subcontractors as the Administration may deem necessary: pm agenc
vided, That such program shall not authorize the Administration to States
(1) prescribe the extent to which any contractor or subcontractor shall states
subcontract, (ii) specify the business concerns to which subcontracts
,(r1 ernme
shall be granted, or (iii) vest in the Administration authority respect. diately
ing the administration of individual prime contracts or subcontracts: that n
Provided further, That such program shall provide that in evaluating spect
bids or selecting contractors for negotiated contracts, the extensive classif
use of subcontractors by a proposed contractor shall be considered A or (3)
favorable factor. The Secretary of Defense and the Administrator of cordon
General Services each shall promulgate regulations implementing the whom
program as developed: Provided, That prior to the promulgation of compel
such regulations, or any changes therein, the concurrence of the Ad-I I if bids
ministration shall be obtained, and if such concurrence cannot be ob- the iss
tamed the matter in disagreement shall be submitted to the President 1 (5)
who shall make the final determination. In addition, the Administra- (6) wli
tor of General Services and the Secretary of Defense may issue sudt Or a UV
other regulations concerning subcontracting not inconsistent with the fession
small business subcontracting program as they each deem necessary ar stitutic
appropriate to effectuate their functions and responsibilities. (10) f(
with ti
(2) Every contract for property or services (including but not lint- not apr
ited to contracts for research and development, maintenance, repair,
and construction, but excluding contracts to be performed entirely out-
Pub.L.
side of the United States or its territories) in excess of $1,000,000 7. 8, S
made by a Government department or agency, which in the opinion 305(c),
Nov. 3,
the procuring agency offers substantial subcontracting possibili
11, 196
shall require the contractor to conform to the small business su Stat. 71
tracting program promulgated under this subsection, and to insert
all subcontracts and purchase orders in excess of $500,000 which of
substantial possibilities for further subcontracting a provision req lictersa
nem lave
ti;
232
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BUSINESS Ch. 14A
iljustment of such progranas and
ness.
ig program; regulations
;eptember 26, 1961, the Adminis.
Id the Administrator of General
a small business subcontracting
visions as may be appropriate to
a be considered fairly as subcon.
4 performing work or rendering
.ntractors under Government pro.
such prime contractors and sub-
e appropriate procuring agency
sted by the Administration, alai
'lain from any Government pro.
nisonably obtainable information
lg by its prime contractors and
lition may deem necessary: Pro,
authorize the Administration to
contractor or subcontractor shall
concerns to which subcontracts
(Inainistration authority respect.
prime contracts or subcontracts:
shall provide that in evaluating
t.otiated contracts, the extensive
contractor shall be considered a
efense and the Administrator of
Iv regulations implementing the
at prior to the promulgation of
rein, the concurrence of the Ad-
' such concurrence cannot be oh-
all be submitted to the President
)n. In addition, the Administra-
,tary of Defense may issue such
?acting not inconsistent with the
n as they each deem necessary or
Is and responsibilities.
services (including but not lim-
evelopment, maintenance, repair
cts to be performed entirely out-
itories) in excess of $1,000,000
agency, which in the opinion of
tial subcontracting possibilities,
m to the small business subcon-
this subsection, and to insert in
n excess of $500,000 which offer
bcontracting a provision requir-
ch. 14A
AID TO SMALL BUSINESS 15 ? 637
ing the subcontractor or supplier to conform to such small business
cubcontracting program.
(3) The Administration shall include in any report filed under sec-
tion 639(b) of this title information, and such recommendations as it
may deem appropriate, with respect to the administration of the small
business subcontracting program established under this subsection.
(4) Nothing in this subsection shall be construed to authorize the
Administrator, the Secretary of Defense, or the Administrator of Gen-
era] services to secure and disseminate technical data or processes de-
veloped by any business concern at its own expense.
Notice and publication of procurement actions; exceptions
(e) It shall be the duty of the Secretary of Commerce, and he is
empowered, to obtain notice of all proposed defense procurement ac-
tions of $10,000 and above, and all civilian procurement actions of
$5,000 and above, from any Federal department, establishment, or
agency engaged in procurement of supplies and services in the United
States; and to publicize such notices in the daily publication "United
States Department of Commerce Synopsis of the United States Gov-
ernment Proposed Procurements, Sales, and Contract Awards", imme-
diately after the necessity for the procurement is established; except
that nothing herein shall require publication of such notices with re-
spect to those procurements (1) which for security reasons are of a
classified nature, or (2) which involve perishable subsistence supplies,
or (3) which are for utility services and the procuring agency in ac-
cordance with applicable law has predetermined the utility concern to
whom the award will be made, or (4) which are of such unusual and
compelling emergency that the Government would be seriously injured
if bids or offers were permitted to be made more than 15 days after
the issuance-of the invitation for bids or solicitation for proposals, or
(5) which are made by an order placed under an existing contract, or
(6) which are made from another Government department or agency,
or a mandatory source of supply, or (7) which are for personal or pro-
fessional services, or (8) which are for services from educational in-
stitutions, or (9) in which only foreign sources are to be solicited, or
(10) for which it is determined in writing by the procuring agency,
with the concurrence of the Administrator, that advance publicity is
not appropriate or reasonable.
Pub.L. 85-536, ? 2[8], July 18, 1958, 72 Stat. 389; Pub.L. 87-305, ??
7, 8, Sept. 26, 1961, 75 Stat. 667, 668; Pub.L. 88-560, Title III, ?
305(c), Sept. 2, 1964, 78 Stat. 786; Pub.L. 89-754, Title X, ? 1017,
Nov. 3, 1966, 80 Stat. 1295; Pub.L. 90-104, Title I, ?? 105-107, Oct.
11, 1967, 81 Stat. 268, 269; Pub.L. 91-375, ? 6(g), Aug. 12, 1970, 84
Stat. 776.
Historical Note
References in Text. The Small Busi- in subsec. (b)(13), 111 classified principal-
seas Investment Act of 1958, referred to ly to chapter 14B [section 661 et seq.] of
1.15 U.S.C.A. IS 141-720-17
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15 ? 637 AID TO SMALL BUSINESS
Note I
this title. For complete classification, see
Short Title note under section 661 of this
title.
Codification. Prior similar provisions
were contained in sections 207(b)(2),
(b)(3), (b)(4), 208, 210, 212 and 216 of Act
July 30, 1953, c. 282, Title II, 67 Stat.
235-239, as amended by Acts Aug. 9, 1955,
e. 628, 2, 5, 7, 69 Stat. 547, 530; Feb. 2,
1956, c. 29. H 2, 3, 70 Stat. 10, which were
previously classified to this section and
sections 636. 639, 641 and 645 of this title.
See Codification note under section 631 of
this title.
1970 Amendment. Subsec. (b) (15).
Pub.L. 91-375 substituted "section 3204 of
Title 39" for "section 4154 of Title 39".
1967 Amendment. Subsec. (b) (1) (B).
Pub.L. 90-104, 105, designated existing
provisions as Cl. (i) and added el. (i1).
Subsec. (b) (13). Pub.L. 90-104, 106,
substituted "advisory boards and commit-
tees" for "small business advisory boards
and committees truly representative of
small business", Included achievement of
purposes of the Small Business Invest-
ment Act of 1958, and required the Ad-
ministrator to call board and committee
meetings, pay transportation expenses and
per diem allowances, and rent temporarily
necessary accommodations to facilitate
conduct of meetings.
Subsec. (b) (15). Pub.L. 90-104, 107,
added par. (15).
1966 Amendment. Subsec. (b) (1). Pub.
L. 89-754 designated existing provisions
as subpar. (A) and added subpar. (B).
United States C=43(8).
Ch. I4A
1964 Amendment. Subsec. (b). Pub.L.
88-560 added par. (14).
1961 Amendment. Subseca. (d) and (e),
Pub.L. 87-305 added subsecs. (d) and (e).
Effective Date of 1970 Amendment.
Amendment by Pub.L. 91-375 effective
within 1 year after Aug. 12, 1970, on date
established therefor by the Board of Gov-
ernors of the United States Postal Service
and published by it in the Federal Regis.
ter, see section 15(a) of Pub.L. 91-375, set
out as a note preceding section 101 of Ti-
tle 39, Postal Service.
Transfer of Functions. Transfer to
Director of Action of functions of Small
Business Administration under subsec,
(b) of this section insofar as they relate
to individuals or groups of persons coop.
erating with it in the furtherance of the
purposes of this section, such individuals
or groups of persons, in providing tech-
nical and managerial aids to small con-
cerns, remaining subject to direction of
Small Business Administration, see sec-
tion 2(a) (3) of 1971 Reorg.Plan No. 1,
eff. July 1, 1971, 36 F.R. 11181, 85 Stat.
819, set out in Appendix to Title 5, Gov.
ernment Organization and Employees.
Legislative History. For legislative
history and purpose of Pub.L. 85-536 see
1958 U.S.Code Cong. and Adm.News, p.
3071. See, also, Pub.L. 87-305, 1961 U.S.
Code Cong. and Adm.News, p. 2993; Pub.
L. 88-560, 1901 U.S.Code Cong. and Adm.
News, p. 3416; Pub.L. 89-754, 1966 U.S.
Code Cong. and Adm.News, p. 3999; Pub.
L. 90-104, 1967 U.S.Code Cong. and Adm.
News, p. 1701; Pub.L. 91-375, 1970 U.S.
Code Cong. and Adm.News, p. 3649.
Library References
C.J.S. United States 70.
Code of Federal Regulations
Procurement, technical and management programs,
Notes of
Award of contract 9
Capacity 7
Certification 8
Change in status 11
Civil remedies 15
Constitutionality 1
Contracts 10
Determination of Administrator 5
Discretion of Administrator 4
Due process 13
Evidence 18
Hearing 12
Injunction 17
Decisions
see 13 CFR 124.8-1
Justiciable controversy
Power of Administrator 3
Purpose 2
Regulations, force and effect 4
Review 19
Standing to maintain action 14
16
et seq.
1. Constitutionality
Where eligibility standard for program
under this section under which the Small
Business Administration was authorised
234
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