[House Report 112-722]
[From the U.S. Government Publishing Office]
112th Congress } { Report
HOUSE OF REPRESENTATIVES
2d Session } { 112-722
======================================================================
SMALL BUSINESS OPPORTUNITY ACT OF 2012
_______
December 21, 2012.--Committed to the Committee of the Whole House on
the State of the Union and ordered to be printed
_______
Mr. Graves of Missouri, from the Committee on Small Business, submitted
the following
R E P O R T
[To accompany H.R. 3980]
[Including cost estimate of the Congressional Budget Office]
The Committee on Small Business, to whom was referred the
bill (H.R. 3980) to amend the Small Business Act with respect
to procurement center representatives and acquisition planning,
and for other purposes, having considered the same, report
favorably thereon with an amendment and recommend that the bill
as amended do pass.
CONTENTS
Page
I. Amendment........................................................1
II. Purpose and Bill Summary.........................................4
III. Need for Legislation.............................................5
IV. Hearings.........................................................7
V. Committee Consideration..........................................7
VI. Committee Votes..................................................8
VII. Section-by-Section Analysis of H.R. 3980.........................9
VIII.Unfunded Mandates...............................................14
IX. New Budget Authority, Entitlement Authority, and Tax Expenditure14
X. Oversight Findings..............................................15
XI. Statement of Constitutional Authority...........................15
XII. Federal Advisory Committee Act Statement........................15
XIII.Statement of No Earmarks........................................15
XIV. Performance Goals and Objectives................................15
XV. Changes in Existing Law Made by the Bill, as Reported...........15
I. Amendment
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``Small Business
Opportunity Act of 2012''.
(b) Table of Contents.--
Sec. 1. Short title; table of contents.
TITLE I--PROCUREMENT CENTER REPRESENTATIVES
Sec. 101. Procurement center representatives.
Sec. 102. Small Business Act contracting requirements training.
TITLE II--ACQUISITION PLANNING
Sec. 201. Acquisition planning.
TITLE I--PROCUREMENT CENTER REPRESENTATIVES
SEC. 101. PROCUREMENT CENTER REPRESENTATIVES.
(a) In General.--Section 15(l) of the Small Business Act (15 U.S.C.
644(l)) is amended by striking the subsection enumerator and inserting
the following:
``(l) Procurement Center Representatives.--''.
(b) Assignment and Role.--Paragraph (1) of section 15(l) of such Act
(15 U.S.C. 644(l)) is amended to read as follows:
``(1) Assignment and role.--The Administrator shall assign to
each major procurement center a procurement center
representative with such assistance as may be appropriate.''.
(c) Activities.--Section 15(l)(2) of such Act (15 U.S.C. 644(l)(2))
is amended--
(1) in the matter preceding subparagraph (A) by striking
``(2) In addition to carrying out the responsibilities assigned
by the Administration, a breakout'' and inserting the
following:
``(2) Activities.--A'';
(2) by striking subparagraph (A) and inserting the following:
``(A) attend any provisioning conference or similar
evaluation session during which a determination may be
made with respect to the procurement method to be used
to satisfy a requirement, review any acquisition plan
with respect to a requirement, and make recommendations
regarding procurement method determinations and
acquisition plans;'';
(3) in subparagraph (B)--
(A) by striking ``(B) review, at any time,
restrictions on competition'' and inserting the
following:
``(B) review, at any time, barriers to small business
participation in Federal contracting'';
(B) by striking ``items'' and inserting ``goods and
services''; and
(C) by striking ``limitations'' and inserting
``barriers'';
(4) in subparagraph (C) by striking ``(C) review restrictions
on competition'' and inserting the following:
``(C) review barriers to small business participation
in Federal contracting'';
(5) by striking subparagraph (D) and inserting the following:
``(D) review any bundled or consolidated solicitation
or contract in accordance with this Act;'';
(6) in subparagraph (E) by striking ``(E) have access to''
and inserting the following:
``(E) have access to''; and
(7) by striking subparagraphs (F) and (G) and inserting the
following:
``(F) receive, from personnel responsible for
reviewing unsolicited proposals, copies of unsolicited
proposals from small business concerns and any
information on outcomes relating to such proposals;
``(G) participate in any session or planning process
and review any documents with respect to a decision to
convert an activity performed by a small business
concern to an activity performed by a Federal employee;
``(H) have electronic access to any acquisition plan
developed or in development with respect to a
procurement activity;
``(I) be an advocate for the maximum practicable
utilization of small business concerns in Federal
contracting, including by advocating against the
bundling of contract requirements when not justified;
and
``(J) carry out any other responsibility assigned by
the Administrator.''.
(d) Appeals.--Section 15(l)(3) of such Act (15 U.S.C. 644(l)(3)) is
amended by striking ``(3) A breakout procurement center
representative'' and inserting the following:
``(3) Appeals.--A procurement center representative''.
(e) Notification and Inclusion.--Paragraph (4) of section 15(l) of
such Act (15 U.S.C. 644(l)) is amended to read as follows:
``(4) Notification and inclusion.--A procurement center
representative shall be notified of and included in all
applicable acquisition planning processes.''.
(f) Position Requirements.--Section 15(l)(5) of such Act (15 U.S.C.
644(l)(5)) is amended--
(1) by striking the paragraph enumerator and inserting the
following:
``(5) Position requirements.--'';
(2) by striking subparagraphs (A) and (B) and inserting the
following:
``(A) In general.--A procurement center
representative assigned under this subsection shall--
``(i) be a full-time employee of the
Administration;
``(ii) be fully qualified, technically
trained, and familiar with the goods and
services procured by the major procurement
center to which that representative is
assigned; and
``(iii) have a Level III Federal Acquisition
Certification in Contracting (or any successor
certification) or the equivalent Department of
Defense certification, except that any person
serving in such a position on the date of
enactment of this clause may continue to serve
in that position for a period of 5 years
without the required certification.''; and
(3) in subparagraph (C) by striking ``(C) The Administration
shall establish personnel positions for breakout procurement
representatives and advisers assigned pursuant to'' and
inserting the following:
``(B) Compensation.--The Administrator shall
establish personnel positions for procurement center
representatives assigned under''.
(g) Major Procurement Center Defined.--Section 15(l)(6) of such Act
(15 U.S.C. 644(l)(6)) is amended--
(1) by striking ``(6) For purposes'' and inserting the
following:
``(6) Major procurement center defined.--For purposes''; and
(2) by striking ``other than commercial items and which has
the potential to incur significant savings as the result of the
placement of a breakout procurement center representative'' and
inserting ``goods or services, including goods or services that
are commercially available''.
(h) Training.--Section 15(l)(7) of such Act (15 U.S.C. 644(l)(7)) is
amended--
(1) by striking the paragraph enumerator and inserting the
following:
``(7) Training.--'';
(2) by striking subparagraph (A) and inserting the following:
``(A) Authorization.--At such times as the
Administrator deems appropriate, a procurement center
representative shall provide training for contracting
officers, other appropriate personnel of the
procurement center to which such representative is
assigned, and small businesses groups seeking to do
business with such procurement center. Such training
shall acquaint the participants with the provisions of
this subsection and shall instruct the participants in
methods designed to further the purposes of this
subsection.
``(B) Limitation.--A procurement center
representative may provide training under subparagraph
(A) only to the extent that the training does not
interfere with the representative carrying out other
activities under this subsection.''; and
(3) in subparagraph (B)--
(A) by striking ``(B) The breakout procurement center
representative'' and inserting the following:
``(8) Annual briefing and report.--A procurement center
representative''; and
(B) by striking ``sixty'' and inserting ``60''.
SEC. 102. SMALL BUSINESS ACT CONTRACTING REQUIREMENTS TRAINING.
(a) Establishment.--Not later than 1 year after the date of enactment
of this Act, the Defense Acquisition University and the Federal
Acquisition Institute shall each provide a course on contracting
requirements under the Small Business Act, including the requirements
for small business concerns owned and controlled by service-disabled
veterans, qualified HUBZone small business concerns, small business
concerns owned and controlled by socially and economically
disadvantaged individuals, and small business concerns owned and
controlled by women.
(b) Course Required.--To have a Federal Acquisition Certification in
Contracting (or any successor certification) or the equivalent
Department of Defense certification an individual shall be required to
complete the course established under subsection (a).
(c) Requirement That Business Opportunity Specialists Be Certified.--
Section 7(j)(10)(D)(i) of the Small Business Act (15 U.S.C.
636(j)(10)(D)(i)) is amended by inserting after ``to assist such
Program Participant.'' the following: ``The Business Opportunity
Specialist shall have a Level I Federal Acquisition Certification in
Contracting (or any successor certification) or the equivalent
Department of Defense certification, except that a Business Opportunity
Specialist serving at the time of the date of enactment of the Small
Business Opportunity Act of 2012 may continue to serve as a Business
Opportunity Specialist for a period of 5 years beginning on that date
of enactment without such a certification.''.
(d) GAO Report.--Not later than 365 days after the date of enactment
of this Act, the Comptroller General of the United States shall conduct
a study and submit a report to the Committee on Small Business of the
House of Representatives and the Committee on Small Business and
Entrepreneurship of the Senate on the relationship between the size and
quality of the acquisition workforce and the Federal government's
ability to maximize the utilization of small businesses in Federal
procurement. The report shall specifcally address the following:
(1) The extent to which training on small business
contracting laws affects a contracting officer's determination
to use one of the contracting authorities provided in the Small
Business Act.
(2) The relationship between a robust Federal acquisition
workforce and small business success in obtaining Federal
contracting opportunities.
(3) The effect on economic growth if small businesses
experienced a significant reduction in small business
procurement activities.
(4) The effect of the anticipated acceleration of retirements
by the acquisition workforce on small business procurement
opportunities.
TITLE II--ACQUISITION PLANNING
SEC. 201. ACQUISITION PLANNING.
Section 15(e)(1) of the Small Business Act (15 U.S.C. 644(e)(1)) is
amended--
(1) by striking ``the various agencies'' and inserting ``a
Federal department or agency''; and
(2) by striking the period and inserting ``and each such
Federal department or agency shall--
``(A) enumerate opportunities for the participation
of small business concerns during all acquisition
planning processes and in all acquisition plans;
``(B) invite the participation of the appropriate
Director of Small and Disadvantaged Business
Utilization in all acquisition planning processes and
provide that Director access to all acquisition plans
in development; and
``(C) invite the participation of the appropriate
procurement center representative in all acquisition
planning processes and provide that representative
access to all acquisition plans in development.''.
II. Purpose and Bill Summary
The purpose of H.R. 3980, the ``Small Business Opportunity
Act of 2012,'' is to amend the Small Business Act (the Act)\1\
to improve the ability of the Small Business Administration's
(SBA's) Procurement Center Representatives (PCRs) to provide
input into the acquisition strategy. The PCRs act as small
business contracting advocates at major federal contracting
activities, so their earlier involvement in the procurement
process should lead to greater contracting opportunities for
small business. The bill also requires improved training on
small business contracting for federal procurement officials.
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\1\Originally, title II of the Act of July 30, 1953, c. 282, 67
Stat. 232, was designated as the Small Business Act of 1953. A plethora
of amendments in subsequent Congresses led to a rewrite in 1958. Pub.
L. No. 85-536, Sec. 1, 72m Stat, 384 (1958). The Act is codified at 15
U.S.C. Sec. Sec. 631-657q.
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III. Need for Legislation
The Small Business Act finds that awarding prime contracts
to small businesses serves the nation in three ways. First,
small business contracting is in ``the interest of maintaining
or mobilizing the Nation's full productive capacity.''\2\
Second, small business contracting is ``in the interest of war
or national defense programs.''\3\ Third, it serves ``the
interest of assuring that a fair proportion of the total
purchases and contracts for property and services for the
government in each industry.''\4\
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\2\Small Business Act, Sec. 15(a), 15 U.S.C. Sec. 644(a).
\3\Id.
\4\Id.
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To ensure the best processes and procedures for small
businesses in contracting, the law must continue to evolve as
contracting does in practice. H.R. 3980 addresses several
outdated and outmoded provisions to reflect advances in
procurement policies, essentially bringing these policies into
compliance with current procurement practices as well as
helping to ensure compliance with small business contracting
laws.
For example, paragraph (l) of Section 15(l) of the Act
describes the role of breakout procurement representatives
(BPCRs). BPCRs are SBA employees who are assigned to major
procurement centers to act as advocates for small business
contracting opportunities. Generally, the BPCR is responsible
for breaking out items from large procurements so that the item
may be awarded to a small business.
Over time, the distinction between BCPRs and PCRs has
diminished, since most procurements do not have single items
broken out for individual contracts, but instead are more
integrated. At the same time, contracting opportunities for
small businesses have expanded. As a result, H.R. 3980 helps to
update the Act by removing the distinction between BPCRs and
PCRs, eliminating BPCRs, and revises the job description for
PCRs to reflect today's procurement practices. Because there
are fewer than 60 PCRs to review over half a trillion dollars
in federal contracts, it makes sense to focus on the activities
on which PCRs may produce the best results for small business
contractors. For many years, PCRs have attended provisioning
conferences or guidance meetings to assist them in identifying
opportunities for small businesses. While these conferences may
be helpful, they are no longer essential, as detailed
purchasing procedures are provided by the Federal Acquisition
Regulation (FAR). Therefore, the bill permits PCRs to attend
provisioning conferences, but does not require them to do so.
As the primary federal government advocate for small
business, the Small Business Administration (SBA) should help
to ensure that advocates for small businesses are involved in
the procurement process at critical junctures. According to a
recent report by the SBA Inspector General, agencies are not
always diligent about application of small business contracting
laws.\5\ The report recommended that contracting personnel ``be
adequately trained on small business procurement'' and ensure
that personnel ``are reviewing [the government certification]
database prior to awarding contracts.''\6\
---------------------------------------------------------------------------
\5\Office of Inspector General, SBA, Report on the Most Serious
Management and Performance Challenges Facing the Small Business
Administration in Fiscal Year 2013 1 (2012), available at http://
www.sba.gov/sites/default/files/
FY%202013%20Management%20Challenges%20OIG%20Report%2013-02%20.pdf.
\6\Id.
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Currently, the Offices of Small and Disadvantaged Business
Utilization (OSDBUs) and PCRs, which are advocates for small
business contractors, are not included in the federal
procurement process until just before a Request for Proposal or
Quotation is released--very late in the process. In addition,
federal acquisition plans do not address how small businesses
will be utilized. Therefore, the bill allows PCRs to review and
make recommendations on procurements. Involving OSDBUs and PCRs
in acquisition plans at the beginning of the procurement
process should yield additional contracting opportunities for
small businesses and operating efficiencies should increase.
The legislation also allows PCRs to review barriers to small
business contracting, and updates the law to recognize that
services are as likely to be procured as goods.
Additionally, the provisions relating to technical data in
current law do not reflect the current practice in
procurements. Restrictions on technical data have been
addressed in numerous laws, standardized within agencies, and
should similarly be addressed in the Act. For example, today
PCRs have little or no influence over technical restrictions or
the evaluation of technical proposals, and no ability to
evaluate unsolicited proposals generally or unsolicited
engineering proposals in particular. The Act encourages small
businesses to provide this information to PCRs, which may give
the businesses a misunderstanding of PCRs' role or the
misplaced hope of their influence.
In aiming to focus PCRs where their procurement activities
may have the most impact for small businesses, the legislation
directs PCRs to review acquisition plans at the beginning of--
and throughout--the acquisition process. It also directs PCRs
to make recommendations regarding procurement methods and
acquisition plans and review barriers to small business
contracting. Finally, the PCRs are instructed to review bundled
or consolidated contracts and advocate against bundling where
it is unjustified.
By eliminating BPCRs and aptly defining PCRs, the bill
helps to address concerns of the SBA Inspector General that
agencies are not always diligent about the application of small
business contracting law. Involving PCRs early in the
contracting process may help to avoid agencies misreporting
large company contracts as those performed by small ones.
The Act currently requires BPCRs to be full-time employees
who are familiar with supplies and services purchased by the
major procurement center where they are employed, and some need
to be accredited engineers. The bill drops the engineering
requirement, and requires PCRs to be certified as contract
specialists at the highest level offered by the federal
government. This ensures that PCRs will have the technical
expertise to serve as an advocate for small businesses when
negotiating with an agency's contracting personnel.
Current law defines a major procurement center as one the
Administrator designates as purchasing a substantial dollar
value of other than commercial items. Because commercial item
acquisition offers great opportunities for small business
contracting, the bill allows the Administrator to consider the
purchase of commercially available goods and services when
designating major purchase centers.
BPCRs must currently brief the head of contracting annually
and provide training to contracting personnel on the Act's
requirements. This provision duplicates the training that is
offered by other sources, such as the Defense Acquisition
University (DAU) and the Federal Acquisition Institute (FAI)
and others. The bill retains the briefing requirement but
stipulates that training is permissible so long as it does not
interfere with the primary goal of providing procurement
assistance to small businesses. In addition, the bill requires
that a course on small business contracting be established by
DAU and FAI, which are charged with, and funded to, provide
training for federal contracting personnel. Small business
training is currently available only to senior contracting
personnel. It is junior personnel who may better assist small
firms because these contracting officers are assigned
responsibility for smaller dollar contracts.
Section 15(e)(1) of the Act directs agencies to use
procurement strategies to maximize small business procurement
opportunities. Opportunities that benefit small businesses, the
government and taxpayers are well-planned, budgeted and have
greater lead time. However, in many cases, PCRs are given a
solicitation very late in the acquisition process, making it
difficult to ensure opportunities are available for small
businesses. Therefore, the bill requires agencies to define
these opportunities at each stage of the acquisition process,
to maximize opportunity for small businesses and create a more
efficient and effective procurement.
IV. Hearings
During the 112th Congress, the Subcommittee on Contracting
and Workforce held two hearings related to matters raised in
H.R. 3980. The first hearing was entitled ``Insourcing Gone
Awry: Outsourcing Small Business Jobs'' on June 23, 2011. This
hearing discussed the Executive Branch's use of insourcing and
the effects it has on small firms. The second hearing was
entitled ``Helping Small Businesses Compete: Challenges within
Programs Designed to Assist Small Contractors'' and held on
September 15, 2011. This hearing discussed the challenges
currently facing the SBA's Procurement Center Representatives
(PCR) and examined a recent report by the GAO regarding ways to
improve the program.
V. Committee Consideration
The Committee on Small Business met in open session, with a
quorum being present, on March 7, 2012 and ordered H.R. 3980
reported, as amended, to the House by a voice vote at 3:40 p.m.
During the markup, three amendments were offered. All three
amendments were adopted. Disposition of the amendments is
addressed below and is based on the order amendments were filed
with the Clerk of the Committee and not necessarily in the
order they were considered at the markup.
Amendment Number One filed by Mr. Schilling (R-IL) allows
procurement center representatives who are otherwise qualified
under the Act and serving at the bill's date of enactment to
continue to serve in that position for a period of five years
without the required certification. The amendment was adopted
by voice vote at 3:35 p.m.
Amendment Number Two filed by Ms. Chu (D-CA) clarifies that
a PCR may provide training so long as it does not interfere
with the representative carrying out other activities,
including the requirements for small business concerns owned
and controlled by service-disabled veterans, qualified HUBZone
small business concerns, small business concerns owned and
controlled by economically-disadvantaged individuals, and small
business concerns owned and controlled by women. The amendment
also requires that Business Opportunity Specialists (BOS) at
the SBA have at least a Level I Federal Acquisition
Certification in contracting, or the equivalent Department of
Defense certification, except a BOS serving at the date of
enactment may continue to serve as a Business Opportunity
Specialist for a period of five years without that
certification. The amendment was adopted by voice vote at 3:37
p.m.
Amendment Number Three filed by Mr. Richmond (D-LA)
requires that the Government Accountability Office prepare a
study for the Committee on the relationship between the size
and quality of the acquisition workforce and the federal
government's ability to maximize the utility of small
businesses in federal procurement. The amendment was adopted by
voice vote at 3:39 p.m.
VI. Committee Votes
Clause 3(b) of rule XIII of the House of Representatives
requires the Committee to list the recorded votes on the motion
to report the legislation and amendments thereto. No recorded
votes were taken in the consideration of the bill or
amendments.
Amendment to H.R. 3980
Offered by Mr. Schilling of Illinois
Page 6, line 14, insert after ``certification'' the
following: ``, except that any person serving in such a
position on the date of enactment of this clause may continue
to serve in that position for a period of 5 years without the
required certification''.
----------
Amendment to H.R. 3980
Offered by Ms. Chu of California
Page 8, line 24, insert ``, including the requirements for
small business concerns owned and controlled by service-
disabled veterans, qualified HUBZone small business concerns,
small business concerns owned and controlled by socially and
economically disadvantaged individuals, small business concerns
owned and controlled by women,'' before the period at the end.
Page 9, insert after line 5 the following:
(c) Requirement That Business Opportunity Specialists Be
Certified.--Section 7(j)(10)(D)(i) of the Small Business Act
(15 U.S.C. 636(j)(10)(D)(i)) is amended by inserting after ``to
assist such Program Participant.'' the following: ``The
Business Opportunity Specialist shall have a Level I Federal
Acquisition Certification in Contracting (or any successor
certification) or the equivalent Department of Defense
certification, except that a Business Opportunity Specialist
serving at the time of the date of enactment of the Small
Business Opportunity Act of 2012 may continue to serve as a
Business Opportunity Specialist for a period of 5 years
beginning on that date of enactment without such a
certification.''.
----------
Amendment to H.R. 3980
Offered by Mr. Richmond of Louisiana
Page 9, insert after line 5 the following:
(c) GAO Report.--Not later than 365 days after the date of
enactment of this Act, the Comptroller General of the United
States shall conduct a study and submit a report to the
Committee on Small Business of the House of Representatives and
the Committee on Small Business and Entrepreneurship of the
Senate on the relationship between the size and quality of the
acquisition workforce and the Federal government's ability to
maximize the utilization of small businesses in Federal
procurement. The report shall specifcally address the
following:
(1) The extent to which training on small business
contracting laws affects a contracting officer's
determination to use one of the contracting authorities
provided in the Small Business Act.
(2) The relationship between a robust Federal
acquisition workforce and small business success in
obtaining Federal contracting opportunities.
(3) The effect on economic growth if small
businesses experienced a significant reduction in small
business procurement activities.
(4) The effect of the anticipated acceleration of
retirements by the acquisition workforce on small
business procurement opportunities.
VII. Section-by-Section Analysis of H.R. 3980
SECTION-BY-SECTION ANALYSIS OF H.R. 3980 AS AMENDED
Section 1--Short Title; Table of Contents
This section provides that the bill may be cited as the
``Small Business Opportunity Act of 2012'' and includes a table
of contents for the bill.
Title I--Procurement Center Representatives
Section 101. Procurement Center Representatives
Subsection (a)--In General
Section 15(1) of the Small Business Act (the Act), 15
U.S.C. Sec. 644(1), is titled ``Procurement Center
Representatives.''
Subsection (b)--Assignment and Role
Paragraph (1) of Section 15(l) currently addresses the role
of BPCRs. BPCRs are employees of the SBA who are assigned to
major procurement centers in order to advocate for small
business contracting opportunities. Currently, Paragraph (1)
requires the Administrator to assign a BPCR to each major
procurement center, and to provide the BPCR with any required
assistance. The BPCR is responsible for the activities
delineated later, but has a primary responsibility of being the
advocate for breaking out items from larger procurements so
that the item could be awarded to a small business. The BPCR is
distinct from the PCR referenced in Section 15(k) of the Act,
although they have similar goals regarding small business
contracting.
Under current law, BPCRs are required to be engineers. SBA
only has one PCR who is an engineer, meaning that only one BPCR
is fulfilling the requirement currently in the Act. However,
much of this is due to the fact that the job has evolved over
time, and the distinction between PCR and BPCR is no longer
necessary. Procurements are no longer run so that one widget
can be broken out of a major weapon system--instead, weapons
systems are procured using system integrators. The
opportunities for small businesses have also evolved, and
expanded. Consequently, the bill inserts a new Paragraph (1)
that removes the distinction between BPCRs and PCRs.
Subsection (c)--Activities
Paragraph (2) of Section 15(l) currently requires the BPCR
to attend provisioning conferences, review acquisition method
coding, review restrictions on competition arising out of
restrictions on the rights of the United States in technical
data, make technical data available to agency personnel and to
offerors, access procurement records and data commensurate with
their security clearance, and receive and conduct cost and
technical analyses of unsoliticed proposals.
Given that there are fewer than 60 PCRs responsible for
reviewing over half a trillion dollars in federal contracts, it
is important to focus the PCRs on areas where they can deliver
the greatest return for small businesses. To provide this
focus, this subsection updates the job description for the PCRs
to reflect current procurement practices. While attending
provisioning conferences may assist PCRs as they seek
opportunities for small businesses, the majority of purchases
made by the federal government are no longer commodities but
instead commercial items, goods and services. Contracting
decisions no longer stem from the conferences, but from a
detailed and regulated method of acquisition planning governed
by the FAR. Thus, the bill in new Section 15(l)(2)(A) allows
PCRs to attend provisioning conferences, but also provides that
they can review and make recommendations regarding acquisition
plans and procurement methods. If a procurement is structured
with small business participation in mind from the initial
requirement, this should create new opportunities for small
businesses and increase operating efficiencies in the federal
agencies. Likewise, rather than reviewing coding methods, the
bill modifies subparagraph (B) to permit the review of barriers
to the small business participation in federal contracting, and
recognizes that services are as likely to be procured as items.
Similarly, the provisions in current law relating to
technical data do not reflect current practice. Restrictions on
technical data have now been addressed through numerous
statutory reforms and are standardized within agencies. The
PCRs have little opportunity to influence these restrictions.
Technical data packages are now routinely provided to offerors
through a government-wide portal, www.fbo.gov. PCRs also lack
the ability to evaluate unsolicited proposals or unsolicited
engineering proposals. Therefore, encouraging small businesses
to provide these documents to PCRs gives the small firm false
hope and the PCR's work is unlikely to yield results for small
businesses. Instead, small businesses should be encouraged to
submit unsolicited proposals following the process in the FAR.
Therefore, the legislation directs the PCRs to focus their
efforts on creating the maximum practicable opportunity for
small business utilization. As delineated in the new
subparagraphs (C) through (I), this includes reviewing
acquisition plans at the forefront and throughout the planning
process; making recommendations regarding procurement method
determinations and acquisition plans; reviewing barriers to
small business concerns participating in federal contracting;
reviewing any bundled or consolidated solicitation or contract;
and being an advocate against the bundling of contract
requirements when not justified. It directs them to work with
agencies on pursuing unsolicited proposals they received from
small business concerns; participating in any planning session
or process; and reviewing any documents with respect to a
decision to bring an activity in-house to be performed by
federal employees that is currently being performed by a small
business concern. It provides PCRs with access to any
acquisition plan developed or in development, and allows them
to take on other responsibilities as assigned to promote the
maximum practicable utilization of small businesses.
Subsection (d)--Appeals
Under current law, BPCRs have the ability to appeal the
decision to not set aside a requirement for small businesses.
The bill preserves the authority for appeals, but assigns it to
PCRs since there will no longer be BPCRs.
Subsection (e)--Notification and Inclusion
Section 15(l)(4) currently requires that the Administrator
assign and collocate at least two small business technical
advisors with the BPCR in order to assist the BPCR. The
Committee is unaware of any such individuals ever existing, and
given the fiscal realities it is unlikely that these employees
will ever appear. Therefore, paragraph (4) is replaced with a
requirement that the PCR be notified of and included in all
applicable acquisition planning processes. This early
involvement will help to reduce the need for the PCRs to
exercise their appeal authority.
Subsection (f)--Position Requirements
The Act currently requires that BPCRs be full time
employees familiar with the supplies and services purchased by
the major procurement center where they work, and that some
BPCRs be accredited engineers. While the bill retains the first
requirement, it replaces the engineering requirement with a
requirement that the PCR be certified at the highest level of
certification for contract specialists offered by the
government. This will ensure that the PCR has the technical
contracting expertise to negotiate with agency contracting
personnel on behalf of small businesses. If SBA's PCRs do not
currently meet this requirement, the Committee expects that SBA
would avail itself of the free training available through the
FAI and DAU to bring those PCRs into compliance. Maintaining
this certification also will require SBA to ensure the PCRs
receive ongoing continuing education. Again, the Committee
expects that SBA would use the free resources currently
available to meet these requirements. The compensation
requirements in subparagraph (C) are retained, but amended to
replace BPCR with PCR. Additionally, this subsection allows
PCRs who are otherwise qualified under the Act and serving at
the bill's date of enactment to continue to serve in that
position for a period of five years without the required
certification.
Subsection (g)--Major Procurement Center Defined
Paragraph (6) of section 15(l) currently defines a major
procurement center as one the Administrator deems purchases a
substantial dollar value of other than commercial items.
However, commercial item acquisitions offer great opportunities
for small business participation, especially since many
services are considered commercial items. Hence, something like
computer programming could be deemed a commercial item.
Therefore, the bill changes the definition to allow the
Administrator to consider purchases of commercially available
goods and services when defining major procurement centers.
Subsection (h)--Training
Paragraph (7) of Section 15(l) currently directs the BPCRs
to annually brief the head of contracting activity, and to
provide training to these contracting personnel on the
requirements of the Act. While such training is laudable, it is
duplicative of the education provided by FAI and DAU--training
contracting personnel can access for free. Likewise, the
training conducted by the PCRs for small business groups
duplicates of the training currently provided by the
Procurement Technical Assistance Centers, Offices of Small and
Disadvantaged Business Utilization, and Small Business
Development Centers--all of which are available at no cost to
the small businesses.
This legislation retains the briefing requirement but
modifies the training authorization. Since only PCRs have the
ability to protest a procurement and the number of PCRs is
limited, the legislation wishes to prioritize providing
procurement assistance to small businesses over functions that
other entities are funded and authorized to provide. Thus, the
bill clarifies that training only should occur to the extent
that it does not interfere with the PCRs carrying out their
other statutory responsibilities.
Finally, subsection (h) makes a number of technical
corrections. They are: inserting a title of ``Training'' for
the Paragraph (7) enumerator; replacing the term BPCR with PCR;
and making additional technical corrections.
Section 102. Small Business Act Contracting Requirements Training
Subsection (a)--Establishment
Subsection (a) adds the requirement that DAU and FAI, each
of which is funded to provide training for federal contracting
personnel, develop a course on the contracting requirements of
the Act.
Subsection (b)--Course Required
Subsection (b) requires that the course established in the
prior subsection become a prerequisite to certification as a
contracting officer. Currently, the small business training is
an elective available to only the most senior contracting
personnel. Given that more junior personnel have limited
authorities that cap the size of the contracts they can award,
they are most often in a position to create opportunities for
small businesses. Making this course mandatory should relieve
the burden on PCRs, allowing them to focus on procurement
assistance, and educate contracting officers on how to ensure
small businesses can compete.
Subsection (c)--Requirement that Business Opportunity
Specialists Be Certified
BOSs are employees of the SBA who assist small businesses
participating in the certain government contracting programs
established in the Act. Given this, it makes abundant sense
that Subsection (c) requires that Business Opportunity
Specialists have at least a Level I Federal Acquisition
Certification in contracting, or the equivalent Department of
Defense certification. A BOS serving at the date of enactment
may continue to serve as a Business Opportunity Specialist for
a period of five years without that certification.
Subsection (d)--GAO Report
Subsection (d) requires that the Comptroller General
prepare a study for the Committee on the relationship between
the size and quality of the acquisition workforce and the
federal government's ability to maximize the utility of small
businesses in federal procurement. As the acquisition workforce
is responsible for implementing the contracting programs of the
Act, the Committee has a strong interest in the health of the
acquisition workforce and is concerned with reports that the
Executive Branch is not prepared to adapt to members of this
corps retiring in the next five years.
Title II--Acquisition Planning
Section 201. Acquisition Planning
Section 15(e)(1) of the Act addresses procurement
strategies. It directs agencies to use procurement strategies
that facilitate the maximum practicable utilization of small
business concerns as prime and subcontractors. Successful
procurements that protect the taxpayer's interests have long
lead times and require the development of comprehensive
acquisition plans\7\ that address issues such as the statement
of need and background, potential sources, competition plan,
budgeting, timeline, and source selection plan.\8\ All of these
have a direct bearing on a small business's opportunity to
compete--for example, the manner in which the requirement is
defined has a significant bearing on whether it is too large
for a small business to compete. Agencies that successfully
meet and exceed their small business goals incorporate small
business considerations into this process.
---------------------------------------------------------------------------
\7\See, e.g., GAO, Acquisition Planning: Opportunities to Build
Strong Foundations for Better Services Contracts (2011) (GAO-11-672).
\8\48 CFR pt. 7 (2012).
---------------------------------------------------------------------------
Unfortunately, not all agencies operate in this manner. In
these cases, the PCR does not see the solicitation until it is
ready to be released, and is presented with a work product that
may have taken months or years to produce. The PCR must then
unwind the process to try to insert opportunities for small
business. This leads to a confrontational approach to small
business contracting, and adds time to the already lengthy
procurement process.
Therefore, the bill amends Section 15(e)(1) to add
requirements that each agency enumerate opportunities for small
business concerns at each stage of the acquisition planning
process, include the PCR and the Office of Small and
Disadvantaged Business Utilization in the acquisition planning
process, and provide these small business advocates with access
to the relevant documents. These changes should lead to a more
collaborative approach to small business contracting rather
than a confrontational approach, produce better acquisition
plans, save agency time and taxpayer money, and create
additional opportunities for small businesses.
VIII. Unfunded Mandates
H.R. 3980 contains no intergovernmental of private-sector
mandates as defined in the Unfunded Mandates Reform Act, Pub.
L. No. 104-1, and would impose no costs on state, local or
tribal governments.
IX. New Budget Authority, Entitlement Authority and Tax Expenditures
The Committee does not provide an opinion or estimate with
respect to new budget authority, entitlement authority and tax
expenditures, as required by clause 3(c)(2) of rule XIII of the
House, as the Director of the Congressional Budget Office has
not provided a cost estimate pursuant to Sec. 402 of the
Congressional Budget Act of 1974.
X. Oversight Findings
In accordance with clause 2(b)(1) of rule X of the House,
the oversight findings and recommendations of the Committee on
Small Business with respect to the subject matter contained in
H.R. 3980 are incorporated into the descriptive portions of
this report.
XI. Statement of Constitutional Authority
Pursuant to clause 3(d)(1) of rule XIII of the Rules of the
House of Representatives, the Committee finds that authority
for this legislation in Art. I, Sec. 8, cls. 1, 3, and 18, and
Art. IV, Sec. 3, cl. 2 of the Constitution of the United
States.
XII. Federal Advisory Committee Act Statement
H.R. 3980 does not establish or authorize the establishment
of any new advisory committees as that term is defined in the
Federal Advisory Committee Act, 5 U.S.C. App. 2.
XIII. Statement of No Earmarks
Pursuant to cl. 9 of rule XXI of the House, H.R. 3980 does
not contain any congressional earmarks, limited tax benefits or
limited tariff benefits as defined in subsections (d), (e) or
(f) of cl. 9 of rule XXI of the Rules of the House.
XIV. Performance Goals and Objectives
Pursuant to cl. 3(c)(4) of rule XIII of the Rules of the
House, the Committee establishes the following performance-
related goals and objectives for this legislation:
H.R. 3980 includes a number of provisions designed to
improve the competitive viability of small businesses as
federal and prime contractors by allowing input from
Procurement Center Representatives at the beginning of
acquisition, improve the efficiency and effectiveness of the
federal contracting process, and agency compliance with the
Small Business Act through enhancement training on small
business contracting.
XVI. Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italic, existing law in which no change is
proposed is shown in roman):
SMALL BUSINESS ACT
* * * * * * *
Sec. 7. (a) * * *
* * * * * * *
(j)(1) * * *
* * * * * * *
(10) There is established with the Administration a small
business and capital ownership development program (hereinafter
referred to as the ``Program'') which shall provide assistance
exclusively for small business concerns eligible to receive
contracts pursuant to section 8(a) of this Act. The program,
and all other services and activities authorized under section
7(j) and 8(a) of this Act, shall be managed by the Associate
Administrator for Minority Small Business and Capital Ownership
Development under the supervision of, and responsible to, the
Administrator.
(A) * * *
* * * * * * *
(D)(i) Promptly after certification under paragraph
(11) a Program Participant shall submit a business plan
(hereinafter referred to as the plan'') as described in
clause (ii) of this subparagraph for review by the
Business Opportunity Specialist assigned to assist such
Program Participant. The Business Opportunity
Specialist shall have a Level I Federal Acquisition
Certification in Contracting (or any successor
certification) or the equivalent Department of Defense
certification, except that a Business Opportunity
Specialist serving at the time of the date of enactment
of the Small Business Opportunity Act of 2012 may
continue to serve as a Business Opportunity Specialist
for a period of 5 years beginning on that date of
enactment without such a certification. The plan may be
a revision of a preliminary business plan submitted by
the Program Participant or required by the
Administration as a part of the application for
certification under this section and shall be designed
to result in the Program Participant eliminating the
conditions or circumstances upon which the
Administration determined eligibility pursuant to
section 8(a)(6). Such plan, and subsequent
modifications submitted under clause (iii) of this
subparagraph, shall be approved by the business
opportunity specialist prior to the Program Participant
being eligible for award of a contract pursuant to
section 8(a).
* * * * * * *
Sec. 15. (a) * * *
* * * * * * *
(e) Procurement Strategies; Contract Bundling.--
(1) In general.--To the maximum extent practicable,
procurement strategies used by [the various agencies] a
Federal department or agency having contracting
authority shall facilitate the maximum participation of
small business concerns as prime contractors,
subcontractors, and suppliers[.] and each such Federal
department or agency shall--
(A) enumerate opportunities for the
participation of small business concerns during
all acquisition planning processes and in all
acquisition plans;
(B) invite the participation of the
appropriate Director of Small and Disadvantaged
Business Utilization in all acquisition
planning processes and provide that Director
access to all acquisition plans in development;
and
(C) invite the participation of the
appropriate procurement center representative
in all acquisition planning processes and
provide that representative access to all
acquisition plans in development.
* * * * * * *
[(l)(1) The Administration shall assign to each major
procurement center a breakout procurement center representative
with such assistance as may be appropriate. The breakout
procurement center representative shall carry out the
activities described in paragraph (2), and shall be an advocate
for the breakout of items for procurement through full and open
competition, whenever appropriate, while maintaining the
integrity of the system in which such items are used, and an
advocate for the use of full and open competition, whenever
appropriate, for the procurement of supplies and services by
such center. Any breakout procurement center representative
assigned under this subsection shall be in addition to the
representative referred to in subsection (k)(6).]
(l) Procurement Center Representatives.--
(1) Assignment and role.--The Administrator shall
assign to each major procurement center a procurement
center representative with such assistance as may be
appropriate.
[(2) In addition to carrying out the responsibilities
assigned by the Administration, a breakout]
(2) Activities.--A procurement center representative
is authorized to--
[(A) attend any provisioning conference or similar
evaluation session during which determinations are made
as to whether requirements are to be procured through
other than full and open competition and make
recommendations with respect to such requirements to
the members of such conference or session;]
(A) attend any provisioning conference or
similar evaluation session during which a
determination may be made with respect to the
procurement method to be used to satisfy a
requirement, review any acquisition plan with
respect to a requirement, and make
recommendations regarding procurement method
determinations and acquisition plans;
[(B) review, at any time, restrictions on
competition]
(B) review, at any time, barriers to small
business participation in Federal contracting
previously imposed on [items] goods and
services through acquisition method coding or
similar procedures, and recommend to personnel
of the appropriate activity the prompt
reevaluation of such [limitations] barriers;
[(C) review restrictions on competition]
(C) review barriers to small business
participation in Federal contracting arising
out of restrictions on the rights of the United
States in technical data, and, when
appropriate, recommend that personnel of the
appropriate activity initiate a review of the
validity of such an asserted restriction;
[(D) obtain from any governmental source, and make
available to personnel of the appropriate activity,
technical data necessary for the preparation of a
competitive solicitation package for any item of supply
or service previously procured noncompetitively due to
the unavailability of such technical data;]
(D) review any bundled or consolidated
solicitation or contract in accordance with
this Act;
[(E) have access to]
(E) have access to procurement records and
other data of the procurement center
commensurate with the level of such
representative's approved security clearance
classification;
[(F) receive unsolicited engineering proposals and,
when appropriate (i) conduct a value analysis of such
proposal to determine whether such proposal, if
adopted, will result in lower costs to the United
States without substantially impeding legitimate
acquisition objectives and forward to personnel of the
appropriate activity recommendations with respect to
such proposal, or (ii) forward such proposals without
analysis to personnel of the activity responsible for
reviewing such proposals and who shall furnish the
breakout procurement center representative with
information regarding the disposition of any such
proposal; and
[(G) review the systems that account for the
acquisition and management of technical data within the
procurement center to assure that such systems provide
the maximum availability and access to data needed for
the preparation of offers to sell to the United States
those supplies to which such data pertain which
potential offerors are entitled to receive.]
(F) receive, from personnel responsible for
reviewing unsolicited proposals, copies of
unsolicited proposals from small business
concerns and any information on outcomes
relating to such proposals;
(G) participate in any session or planning
process and review any documents with respect
to a decision to convert an activity performed
by a small business concern to an activity
performed by a Federal employee;
(H) have electronic access to any acquisition
plan developed or in development with respect
to a procurement activity;
(I) be an advocate for the maximum
practicable utilization of small business
concerns in Federal contracting, including by
advocating against the bundling of contract
requirements when not justified; and
(J) carry out any other responsibility
assigned by the Administrator.
[(3) A breakout procurement center representative]
(3) Appeals.--A procurement center representative is
authorized to appeal the failure to act favorably on
any recommendation made pursuant to paragraph (2). Such
appeal shall be filed and processed in the same manner
and subject to the same conditions and limitations as
an appeal filed by the Administrator pursuant to
subsection (a).
[(4) The Administration shall assign and co-locate at least
two small business technical advisers to each major procurement
center in addition to such other advisers as may be authorized
from time to time. The sole duties of such advisers shall be to
assist the breakout procurement center representative for the
center to which such advisers are assigned in carrying out the
functions described in paragraph (2) and the representatives
referred to in subsection (k)(6).]
(4) Notification and inclusion.--A procurement center
representative shall be notified of and included in all
applicable acquisition planning processes.
[(5)(A) The breakout procurement center representatives and
technical advisers assigned pursuant to this subsection shall
be--
[(i) full-time employees of the Administration; and
[(ii) fully qualified, technically trained, and
familiar with the supplies and services procured by the
major procurement center to which they are assigned.
[(B) In addition to the requirements of subparagraph (A),
each breakout procurement center representative, and at least
one technical adviser assigned to such representative, shall be
an accredited engineer.]
(5) Position requirements.--
(A) In general.--A procurement center
representative assigned under this subsection
shall--
(i) be a full-time employee of the
Administration;
(ii) be fully qualified, technically
trained, and familiar with the goods
and services procured by the major
procurement center to which that
representative is assigned; and
(iii) have a Level III Federal
Acquisition Certification in
Contracting (or any successor
certification) or the equivalent
Department of Defense certification,
except that any person serving in such
a position on the date of enactment of
this clause may continue to serve in
that position for a period of 5 years
without the required certification.
[(C) The Administration shall establish personnel positions
for breakout procurement representatives and advisers assigned
pursuant to]
(B) Compensation.--The Administrator shall
establish personnel positions for procurement
center representatives assigned under this
subsection, which are classified at a grade
level of the General Schedule sufficient to
attract and retain highly qualified personnel.
[(6) For purposes]
(6) Major procurement center defined.--For purposes
of this subsection, the term ``major procurement
center'' means a procurement center that, in the
opinion of the Administrator, purchases substantial
dollar amounts of [other than commercial items and
which has the potential to incur significant savings as
the result of the placement of a breakout procurement
center representative] goods or services, including
goods or services that are commercially available.
[(7)(A) At such times as the Administrator deems appropriate.
the breakout procurement center representative shall conduct
familiarization sessions for contracting officers and other
appropriate personnel of the procurement center to which such
representative is assigned. Such sessions shall acquaint the
participants with the provisions of this subsection and shall
instruct them in methods designed to further the purposes of
such subsection.]
(7) Training.--
(A) Authorization.--At such times as the
Administrator deems appropriate, a procurement
center representative shall provide training
for contracting officers, other appropriate
personnel of the procurement center to which
such representative is assigned, and small
businesses groups seeking to do business with
such procurement center. Such training shall
acquaint the participants with the provisions
of this subsection and shall instruct the
participants in methods designed to further the
purposes of this subsection.
(B) Limitation.--A procurement center
representative may provide training under
subparagraph (A) only to the extent that the
training does not interfere with the
representative carrying out other activities
under this subsection.
[(B) The breakout procurement center representative]
(8) Annual briefing and report.--A procurement center
representative shall prepare and personally deliver an
annual briefing and report to the head of the
procurement center to which such representative is
assigned. Such briefing and report shall detail the
past and planned activities of the representative and
shall contain such recommendations for improvement in
the operation of the center as may be appropriate. The
head of such center shall personally receive such
briefing and report and shall, within [sixty] 60
calendar days after receipt, respond, in writing, to
each recommendation made by such representative.
* * * * * * *