An Overview of Small Business Contracting
June 24August 2, 2021 , 2021
Congress has broad authority to impose requirements upon the federal procurement process, that
Congress has broad authority to impose requirements upon the federal procurement process, that
is, the process whereby agencies obtain goods and services from the private sector. One way in is, the process whereby agencies obtain goods and services from the private sector. One way in
Robert Jay Dilger
which Congress has exercised this authority is by adopting measures to promote contracting and
which Congress has exercised this authority is by adopting measures to promote contracting and
Senior Specialist in
Senior Specialist in
subcontracting between “small businesses” and federal agencies.
subcontracting between “small businesses” and federal agencies.
American National
American National
Government Government
These measures, among other things, are designed to ensure that a “fair proportion” of federal
These measures, among other things, are designed to ensure that a “fair proportion” of federal
contract and subcontract dollars is awarded to small businesses; establish government-wide and
contract and subcontract dollars is awarded to small businesses; establish government-wide and
agency-specific goals for the percentage of federal contract and subcontract dollars awarded to agency-specific goals for the percentage of federal contract and subcontract dollars awarded to
small businesses; establish an annual Small Business Goaling Report to measure progress in
small businesses; establish an annual Small Business Goaling Report to measure progress in
meeting these goals; generally require federal agencies, under specified circumstances, to reserve contracts that have an meeting these goals; generally require federal agencies, under specified circumstances, to reserve contracts that have an
anticipated value greater than the micro-purchase threshold (currently $10,000), but not greater than the simplified anticipated value greater than the micro-purchase threshold (currently $10,000), but not greater than the simplified
acquisition threshold (currently $250,000) exclusively for small businesses; authorize federal agencies, under specified acquisition threshold (currently $250,000) exclusively for small businesses; authorize federal agencies, under specified
circumstances, to set aside contracts that have an anticipated value greater than the simplified acquisition threshold circumstances, to set aside contracts that have an anticipated value greater than the simplified acquisition threshold
exclusively for small businesses; authorize federal agencies to make sole-source awards to small businesses when the award exclusively for small businesses; authorize federal agencies to make sole-source awards to small businesses when the award
could not otherwise be made (e.g., only a single source is available, under urgent and compelling circumstances); authorize could not otherwise be made (e.g., only a single source is available, under urgent and compelling circumstances); authorize
federal agencies to set aside contracts for, or grant other contracting preference to, specific types of small businesses (e.g., federal agencies to set aside contracts for, or grant other contracting preference to, specific types of small businesses (e.g.,
8(a) small businesses, HUBZone small businesses, women-owned small businesses (WOSBs), and service-disabled veteran-8(a) small businesses, HUBZone small businesses, women-owned small businesses (WOSBs), and service-disabled veteran-
owned small businesses (SDVOSBs)); and task the Small Business Administration (SBA) and other federal procurement owned small businesses (SDVOSBs)); and task the Small Business Administration (SBA) and other federal procurement
officers with reviewing and restructuring proposed procurements to maximize opportunities for small business participation. officers with reviewing and restructuring proposed procurements to maximize opportunities for small business participation.
Small business contracting programs generally have strong bipartisan support. However,
Small business contracting programs generally have strong bipartisan support. However,
thatth at does not mean that these does not mean that these
programs face no opposition, or that issues have not been raised concerning the impact and operations of specific programs. programs face no opposition, or that issues have not been raised concerning the impact and operations of specific programs.
For example, small business advocates note that implementing regulations in the Federal Acquisition For example, small business advocates note that implementing regulations in the Federal Acquisition
RegulationRegu lation (FAR) (FAR)
narrow the reach (and impact) of some small business contracting preferences by excluding specific types of contracts, such narrow the reach (and impact) of some small business contracting preferences by excluding specific types of contracts, such
as those listed in the Federal Supply Schedules, from FAR requirements pertaining to small business contracting. Advocates as those listed in the Federal Supply Schedules, from FAR requirements pertaining to small business contracting. Advocates
want the federal government to enact policies that reduce or eliminate such exclusions. Critics have questioned some of these want the federal government to enact policies that reduce or eliminate such exclusions. Critics have questioned some of these
programs’ effectiveness, in terms of both promoting small business opportunities to win federal contracts and promoting a programs’ effectiveness, in terms of both promoting small business opportunities to win federal contracts and promoting a
more diversified, robust economy. more diversified, robust economy.
Many observers judge the relative success or failure of federal efforts to enhance small business contracting opportunities by
Many observers judge the relative success or failure of federal efforts to enhance small business contracting opportunities by
whether the federal government and individual federal agencies meet the predetermined procurement goals in the annual whether the federal government and individual federal agencies meet the predetermined procurement goals in the annual
Small Business Goaling Report. In recent years, the federal government has generally succeeded in meeting the governmentSmall Business Goaling Report. In recent years, the federal government has generally succeeded in meeting the government
--
wide goals of awarding 23% of the total value of all small business eligible prime contract awards to small wide goals of awarding 23% of the total value of all small business eligible prime contract awards to small
businessesbusiness es, 5% to , 5% to
small disadvantaged businesses (SDBs), and 3% to SDVOSBs. It has had difficulty meeting the goals of 5% to WOSBs and small disadvantaged businesses (SDBs), and 3% to SDVOSBs. It has had difficulty meeting the goals of 5% to WOSBs and
3% to HUBZone small businesses. 3% to HUBZone small businesses.
The Small Business Goaling Report is the most convenient measure available to compare federal
The Small Business Goaling Report is the most convenient measure available to compare federal
smallsma ll business contracting business contracting
performance over time, but it has limitations. For example, the SBA excludes some contracts from the report in its performance over time, but it has limitations. For example, the SBA excludes some contracts from the report in its
determination of what is “small business eligible” and some federal procurement activities are not included because they are determination of what is “small business eligible” and some federal procurement activities are not included because they are
not recorded in the Federal Procurement Data System—Next Generation. It also does not evaluate the effect these contracts not recorded in the Federal Procurement Data System—Next Generation. It also does not evaluate the effect these contracts
have on small businesses, industry competitiveness, or the overall economy. have on small businesses, industry competitiveness, or the overall economy.
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An Overview of Small Business Contracting
Contents
Introduction ..................................................................................................................................... 1
Basic Contracting Requirements ........ 1 Basic Contracting Requirements............................................................................................. 4
Federal Contractors ................................................................................................................... 4
Federal Agencies ....................................................................................................................... 6
The Pre-Award Process ................................................................................................................... 7
Federal Agency Requirements .................................................................................................. 7
7
The Role of SBA Procurement Center Representatives ............................................................ 9
The Role of the Office of Small Smal and Disadvantaged Business Utilization .... ......................... 10
The Roles of Other Procurement Officers and Offices ............................................................ 11
Set-Asides and Sole-Source Awards .............................................................................................. 13
SBA Contracting Programs ........................................................................................................... 14
Prime Contracting Programs ................................................................................................... 15
8(a) Program ..................................................................................................................... 15
Historically 15 Historical y Underutilized Business Zone Program .......................................................... 17
17
Service-Disabled Veteran-Owned Small Smal Business Program ............................................. 18
Women-Owned Small Smal Business Program ......................................................................... 18
Subcontracting Programs ........................................................................................................ 19
Other Federal Agency Contracting Programs ................................................................................ 20
Department of Transportation and Environmental Protection Agency Disadvantaged
Business Enterprise Programs .............................................................................................. 20
Contracting Preferences for Indian Tribes and Native American-Owned and -
Controlled Businesses .......................................................................................................... 22
Subcontracting Programs for Small Smal Disadvantaged Businesses ............................................. 23
Other Small Smal Business Programs of Interest ................................................................................... 23
The SBA 7(j) Management and Technical Assistance Program .............................................. 23
SBA Surety Bond Guarantee Program .................................................................................... 23
Small 23
Smal Business Mentor-Protégé Programs .............................................................................. 24
Small 24
Smal Business Procurement Goals ............................................................................................... 25
Certificate of Competency Program .............................................................................................. 29
Post-Award Requirements ............................................................................................................. 29
Small 29
Smal Business Subcontracting Plan Reviews ........................................................................ 29 30
Prompt Payments .................................................................................................................... 30
Accelerated Payments ............................................................................................................. 31
Concluding Observations .............................................................................................................. 32
Tables
Table 1. Federal Procurement Goals and Percentage of FY2019FY2020 Federal Contract Dollars
Awarded to Small Smal Businesses, by Type ...................................................................................... 28
28
Contacts
Author Information ........................................................................................................................ 34
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An Overview of Small Business Contracting
Introduction
During World War II and then again after the outbreak of fighting in Korea, Congress found that During World War II and then again after the outbreak of fighting in Korea, Congress found that
the existence of thousands of the existence of thousands of
small smal business concerns was being threatened by war-induced business concerns was being threatened by war-induced
shortages of materials coupled with an inabilityshortages of materials coupled with an inability
to obtain defense contracts or financial to obtain defense contracts or financial
assistance.1 Concerned that many assistance.1 Concerned that many
small smal businesses might fail without government assistance, in businesses might fail without government assistance, in
1953, Congress passed and President Dwight Eisenhower signed into law the 1953, Congress passed and President Dwight Eisenhower signed into law the
Small Smal Business Act Business Act
(P.L. 83-163), which authorized the (P.L. 83-163), which authorized the
Small Smal Business Administration (SBA).2 The act specifies that Business Administration (SBA).2 The act specifies that
it is the declared policy of Congress to promote the interests of it is the declared policy of Congress to promote the interests of
small smal businesses to “preserve free businesses to “preserve free
competitive enterprise.” Congress specified that one of the ways to preserve free competitive competitive enterprise.” Congress specified that one of the ways to preserve free competitive
enterprise was to insure that enterprise was to insure that
small smal businesses received a “fair proportion” of federal contracts and businesses received a “fair proportion” of federal contracts and
subcontracts: subcontracts:
It is the declared policy of the Congress that the Government should aid, counsel, assist,
It is the declared policy of the Congress that the Government should aid, counsel, assist,
andand
protect, insofar as is possible, the interests of small-business concerns in order protect, insofar as is possible, the interests of small-business concerns in order to to
preserve free competitive enterprise, to insure that a fair proportion of the total purchases preserve free competitive enterprise, to insure that a fair proportion of the total purchases
and contracts or subcontracts for property and services for the Government (including but and contracts or subcontracts for property and services for the Government (including but
not limited to contracts or subcontracts for maintenance, repair, and construction) be placed not limited to contracts or subcontracts for maintenance, repair, and construction) be placed
with small-businesswith small-business
enterprises, to insure that a fair proportion of the total sales of Government property be made to such enterprises, and to maintain and strengthen enterprises, to insure that a fair proportion of the total sales of Government property be made to such enterprises, and to maintain and strengthen the the
overall economy of the Nation.3 overall economy of the Nation.3
Congress indicated that its intent in supporting
Congress indicated that its intent in supporting
small smal businesses was not to “favor businesses was not to “favor
small smal business business
at the expense of its larger competitors. Our only purpose in supporting the creation and effective at the expense of its larger competitors. Our only purpose in supporting the creation and effective
operation of the SBAoperation of the SBA
is to equalize the scales when necessary to guarantee the continued vigor of is to equalize the scales when necessary to guarantee the continued vigor of
our competitive free enterprise system.”4 our competitive free enterprise system.”4
More recently, a House committee report indicated that the primary rationale for
More recently, a House committee report indicated that the primary rationale for
small smal business business
contracting programs contracting programs
is the
is the
positive economic benefits they provide, as well as assisting positive economic benefits they provide, as well as assisting small businesses small businesses
overcome the complexities of the system. The economic benefits of these programs can be overcome the complexities of the system. The economic benefits of these programs can be
seenseen
in in two primary areas—market competition andtwo primary areas—market competition and
local economiclocal economic
development.development.
First, First,
[these] programs … are designed to increase and diversify small contractors with the intent [these] programs … are designed to increase and diversify small contractors with the intent
of expanding the federal supplier base. This leads to increased competition, which results of expanding the federal supplier base. This leads to increased competition, which results
in higherin higher
quality, greater product variety, and lower prices. Second, quality, greater product variety, and lower prices. Second, these contracting these contracting
initiativesinitiatives
lower barriers to entry in a wide range of markets for small businesses. This
1 U.S. lower barriers to entry in a wide range of markets for small businesses. This
1 U.S. Congress, Senate Select Committee on Small Business,Congress, Senate Select Committee on Small Business,
Small Business Administration, committee print, 83rd , committee print, 83rd
Cong., 1st sess.,Cong., 1st sess.,
August August 10, 1953 (Washington: GPO, 1953), p. iii. Also, see U.S.10, 1953 (Washington: GPO, 1953), p. iii. Also, see U.S.
Congress, HouseCongress, House
Committee on Committee on
Banking and Currency, Banking and Currency,
SmallSm all Business Act of 1953, report to accompany H.R. 5141, , report to accompany H.R. 5141,
83rd83 rd Cong., 1st sess., May 28, Cong., 1st sess., May 28,
1953, H.Rept. 83-494 (Washington: GPO, 1953). 1953, H.Rept. 83-494 (Washington: GPO, 1953).
2 On July
2 On July
31, 1951, the Small Defense Plants Administration (SDPA) was31, 1951, the Small Defense Plants Administration (SDPA) was
created by an amendment to P.L. 81-774, the created by an amendment to P.L. 81-774, the
Defense Production Act of 1950, and wasDefense Production Act of 1950, and was
given “given “
primary responsibility in the field of channeling defense contracts to primary responsibility in the field of channeling defense contracts to
small producers.” As hostilities with Korea subsided,small producers.” As hostilities with Korea subsided,
so didso did
the perceived need for the SDPA. Congressthe perceived need for the SDPA. Congress
granted the granted the
SmallSmall
Business Business Administration (SBA) similar authority to promote small business contracting with federal agencies, Administration (SBA) similar authority to promote small business contracting with federal agencies,
but with all federal agencies, asbut with all federal agencies, as
opposed to focusing on the Department of Defense. See U.S.opposed to focusing on the Department of Defense. See U.S.
Congress,Congress,
Senate Select Senate Select
Committee on Small Business,Committee on Small Business,
Small Business Administration Sm all Business Adm inistration, committee print, 83rd Cong., 1st sess., August, committee print, 83rd Cong., 1st sess., August
10, 1953 10, 1953
(Washington: GPO, 1953), p. iv. (Washington: GPO, 1953), p. iv.
3 15 U.S.C.
3 15 U.S.C.
§631(a); and P.L. 83-163, the Small Business§631(a); and P.L. 83-163, the Small Business
Act of 1953 (as amended), see https://www.govinfo.gov/app/Act of 1953 (as amended), see https://www.govinfo.gov/app/
details/COMPS-1834. details/COMPS-1834.
4 U.S.
4 U.S.
Congress, Senate Select Committee on Small Business,Congress, Senate Select Committee on Small Business,
Small Business Administration, committee print, 83rd , committee print, 83rd
Cong., 1st sess.,Cong., 1st sess.,
August August 10, 1953 (Washington: GPO, 1953), p. v. 10, 1953 (Washington: GPO, 1953), p. v.
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provides
provides
greater market access for small firms’ goods and services. From an greater market access for small firms’ goods and services. From an economic economic
perspective, such accessperspective, such access
is critical to generating positive macroeconomic benefits, is critical to generating positive macroeconomic benefits,
including higher job creation, wage growth, and greater income distribution.5 including higher job creation, wage growth, and greater income distribution.5
Over the years, Congress has approved legislation to support
Over the years, Congress has approved legislation to support
small smal business in various ways. For business in various ways. For
example, the SBA administers several types of programs to support example, the SBA administers several types of programs to support
small smal businesses, including businesses, including
loan guaranty and venture capital programs to enhance loan guaranty and venture capital programs to enhance
small smal business access to capital; business access to capital;
contracting programs to increase contracting programs to increase
small smal business opportunities in federal contracting; direct loan business opportunities in federal contracting; direct loan
programs for businesses, homeowners, and renters to assist their recovery from natural disasters; programs for businesses, homeowners, and renters to assist their recovery from natural disasters;
and smal and small business management and technical assistance training programs to assist business business management and technical assistance training programs to assist business
formation and expansion. formation and expansion.
In recent years, congressional interest in the SBA’s programs has become
In recent years, congressional interest in the SBA’s programs has become
especiallyespecial y acute given acute given
the Coronavirus Disease 2019 (COVID-19) pandemic’s widespread adverse economic impact on the Coronavirus Disease 2019 (COVID-19) pandemic’s widespread adverse economic impact on
the national economy the national economy
generally and small general y and smal businesses in particular. businesses in particular.
This report describes the various federal programs, requirements, procurement officers, and
This report describes the various federal programs, requirements, procurement officers, and
procurement offices involved in promoting federal contracting and subcontracting with procurement offices involved in promoting federal contracting and subcontracting with
small smal businesses, businesses,
small smal disadvantaged businesses (SDBs), SDBs participating the SBA’s “8(a) disadvantaged businesses (SDBs), SDBs participating the SBA’s “8(a)
Program,” Program,”
Historically Underutilized Historical y Underutilized Business Zone (HUBZone)Business Zone (HUBZone)
small smal businesses, women-businesses, women-
owned owned
small smal businesses (WOSBs), and service-disabled veteran-owned businesses (WOSBs), and service-disabled veteran-owned
small smal businesses businesses
(SDVOSBs). The SBA administers many, but not (SDVOSBs). The SBA administers many, but not
allal , of these programs. , of these programs.
It examines the following federal requirements and authorities in promoting contracting and
It examines the following federal requirements and authorities in promoting contracting and
subcontracting with subcontracting with
small smal businesses: businesses:
1. The requirement that federal agencies
1. The requirement that federal agencies
generally general y reserve contracts that have an reserve contracts that have an
anticipated value greater than the micro-purchase threshold (currently $10,000)
anticipated value greater than the micro-purchase threshold (currently $10,000)
but not greater than the simplified acquisition threshold (currently $250,000) but not greater than the simplified acquisition threshold (currently $250,000)
exclusively for exclusively for
small smal businesses unless the contracting officer is unable to obtain businesses unless the contracting officer is unable to obtain
offers from two or more offers from two or more
small smal businesses that are competitive with market prices businesses that are competitive with market prices
and the quality and delivery of the goods or services being purchased.6 and the quality and delivery of the goods or services being purchased.6
2. The establishment of
2. The establishment of
small smal business procurement goals, both government-wide business procurement goals, both government-wide
and agency specific, to promote the awarding of contracts to
and agency specific, to promote the awarding of contracts to
small smal businesses. businesses.
3. The requirement that federal agencies
3. The requirement that federal agencies
generally general y set aside contracts that have an set aside contracts that have an
anticipated value exceeding the simplified
anticipated value exceeding the simplified
acquisition threshold exclusively for acquisition threshold exclusively for
small smal businesses when there is a reasonable expectation that offers businesses when there is a reasonable expectation that offers
will be wil be
obtained from at least two responsible obtained from at least two responsible
small smal businesses offering the products of businesses offering the products of
different different
small smal businesses (Rule of Two) and the award businesses (Rule of Two) and the award
will wil be made at a fair be made at a fair
market price.7 market price.7
5 U.S. Congress, House
5 U.S. Congress, House Committee on Small Business,Committee on Small Business,
Small Business Contracting Program Improvements Act, report , report
to accompany H.R. 3867, 110th Cong., 1st sess., October 22, 2007, H.Rept. 110-400 (Washington: GPO, 2007), p. 4. to accompany H.R. 3867, 110th Cong., 1st sess., October 22, 2007, H.Rept. 110-400 (Washington: GPO, 2007), p. 4.
6 Federal Acquisition
6 Federal Acquisition
Regulation (FAR) §19.502-2. Regulation (FAR) §19.502-2.
7 “For acquisitions of supplies7 “For acquisitions of supplies
or services that have an anticipated dollar value exceedingor services that have an anticipated dollar value exceeding
the simplified acquisition the simplified acquisition
threshold …threshold …
the contracting officer shall first consider an acquisition for the small businessthe contracting officer shall first consider an acquisition for the small business
socioeconomic contracting socioeconomic contracting
programs (i.e., 8(a), HUBZone, SDVOSB,programs (i.e., 8(a), HUBZone, SDVOSB,
or WOSBor WOSB
programs) before considering a small businessprograms) before considering a small business
set set-aside (see -aside (see
19.502-2(b)). However, if a requirement has been accepted by the Small19.502-2(b)). However, if a requirement has been accepted by the Small
Business Business Administration (SBA) under the 8(a) Administration (SBA) under the 8(a)
Program, it must remain in the 8(a) Program unless the SBAProgram, it must remain in the 8(a) Program unless the SBA
agrees agrees to its release in accordance with 13 C.F.R.to its release in accordance with 13 C.F.R.
parts parts
124, 125, and 126.” FAR §19.203(c). 124, 125, and 126.” FAR §19.203(c).
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4. The authority provided federal agencies to make sole-source awards to
4. The authority provided federal agencies to make sole-source awards to
small smal
businesses when the award could not otherwise be made (e.g., only a single
businesses when the award could not otherwise be made (e.g., only a single
source is available, under urgent and source is available, under urgent and
compellingcompel ing circumstances). circumstances).
5. The authority provided federal agencies to set aside contracts for, or grant other
5. The authority provided federal agencies to set aside contracts for, or grant other
contracting preference to, specific types of
contracting preference to, specific types of
small smal businesses (e.g., 8(a) businesses (e.g., 8(a)
small smal businesses, HUBZone businesses, HUBZone
small smal businesses, WOSBs, and SDVOSBs) and to specific businesses, WOSBs, and SDVOSBs) and to specific
types of businesses types of businesses
generallygeneral y (e.g., the Buy Indian Act). (e.g., the Buy Indian Act).
It discusses the SBA’s oversight and responsibilities concerning the
It discusses the SBA’s oversight and responsibilities concerning the
small smal business goaling business goaling
program, program,
small smal business mentor-protégé programs, the 7(j) management and training program, business mentor-protégé programs, the 7(j) management and training program,
and the surety bond guaranty program. and the surety bond guaranty program.
It also discusses the role of the Office of
It also discusses the role of the Office of
Small Smal and Disadvantaged Business Utilization and Disadvantaged Business Utilization
(OSDBU), located in each federal agency, in promoting contracting with (OSDBU), located in each federal agency, in promoting contracting with
small smal businesses, and businesses, and
examines the role and responsibilities of various federal procurement officers, including examines the role and responsibilities of various federal procurement officers, including
procurement center representatives, commercial market representatives, and business opportunity procurement center representatives, commercial market representatives, and business opportunity
specialists, in promoting specialists, in promoting
small smal business contracting opportunities. business contracting opportunities.
This report concludes with a brief discussion of the strong bipartisan support for
This report concludes with a brief discussion of the strong bipartisan support for
small smal business business
contracting programs. However, that does not mean that these programs face no opposition, or contracting programs. However, that does not mean that these programs face no opposition, or
that issues have not been raised concerning the impact and operations of specific programs. For that issues have not been raised concerning the impact and operations of specific programs. For
example, example,
small smal business advocates note that implementing regulations in the Federal Acquisition business advocates note that implementing regulations in the Federal Acquisition
Regulation (FAR) narrow the reach (and impact) of some Regulation (FAR) narrow the reach (and impact) of some
small smal business contracting preferences business contracting preferences
by excluding specific types of contracts, such as those listed in the Federal Supply Schedules, by excluding specific types of contracts, such as those listed in the Federal Supply Schedules,
from FAR requirements pertaining to from FAR requirements pertaining to
small smal business contracting.8 Advocates want the federal business contracting.8 Advocates want the federal
government to enact policies that reduce or eliminategovernment to enact policies that reduce or eliminate
exclusions that narrow the reach of exclusions that narrow the reach of
small
8 FAR smal 8 FAR §8.405-5 indicates that the small business§8.405-5 indicates that the small business
preference programs are not mandatory in this subpart (blanket preference programs are not mandatory in this subpart (blanket
purchase agreements and Federal Supplypurchase agreements and Federal Supply
Schedules).Schedules).
Federal Federal agencies may, at their discretion, set asideagencies may, at their discretion, set aside
orders under orders under
the Federal Supplythe Federal Supply
Schedules Schedules and blanket purchase agreements for small businesses.and blanket purchase agreements for small businesses.
The
T he Federal Supply Federal Supply
Schedule Schedule program “program “
provides Federal agencies with a simplified process of acquiringprovides Federal agencies with a simplified process of acquiring
commercial commercial
suppliessupplies
and services in varying quantities whileand services in varying quantities while
obtaining volume discounts. Indefiniteobtaining volume discounts. Indefinite
-delivery contracts are awarded -delivery contracts are awarded
usingusing
competitive procedures to firms. competitive procedures to firms.
TheT he firms provide supplies and services at stated prices for given periods of firms provide supplies and services at stated prices for given periods of
time, for delivery within a stated geographic area such astime, for delivery within a stated geographic area such as
the 48 contiguous states, the District of Columbia, Alaska, the 48 contiguous states, the District of Columbia, Alaska,
Hawaii,Hawaii,
and overseas. …Although GSAand overseas. …Although GSA
[General[General
Services Administration] awardsServices Administration] awards
most Federal Supplymost Federal Supply
Schedule Schedule
contracts, it may authorize other agencies to award schedulecontracts, it may authorize other agencies to award schedule
contracts and publish schedules.contracts and publish schedules.
For example, the For example, the
Department of Veterans Affairs awardsDepartment of Veterans Affairs awards
schedule schedule contracts for certain medical and nonperishable subsistencecontracts for certain medical and nonperishable subsistence
items.items.
” ”
FARFAR
§38.101. §38.101.
A blanket purchase agreement (BPA) is “a simplified method of filling anticipated repetitive needs for supplies or A blanket purchase agreement (BPA) is “a simplified method of filling anticipated repetitive needs for supplies or
services by establishingservices by establishing
“charge accounts” with qualified“charge accounts” with qualified
sources sources of supply. …BPAsof supply. …BPAs
should should be establishedbe established
for usefor use
by by
an organization responsible for providing suppliesan organization responsible for providing supplies
for its own operations or for other offices, installations, projects, or for its own operations or for other offices, installations, projects, or
functions. Suchfunctions. Such
organizations, for example, may be organized supply points, separate independent or detached field organizations, for example, may be organized supply points, separate independent or detached field
parties, or one-person posts or activities. …parties, or one-person posts or activities. …
TheT he use of BPAs does not exempt an agency from the responsibility for use of BPAs does not exempt an agency from the responsibility for
keeping obligations and expenditures within availablekeeping obligations and expenditures within available
funds.” FARfunds.” FAR
§13.303§13.303
-1. -1.
For an argument advocating regulatory changes that might require the mandatory application of set
For an argument advocating regulatory changes that might require the mandatory application of set
-asides to orders in -asides to orders in
the same manner that law and regulation currently require for contracts, see Interagency the same manner that law and regulation currently require for contracts, see Interagency
TaskT ask Force on Federal Force on Federal
Contracting Opportunities for Small Businesses,Contracting Opportunities for Small Businesses,
Report, September 2010, pp. 8-10, at https://www.sba.gov/sites/, September 2010, pp. 8-10, at https://www.sba.gov/sites/
default/files/2018-02/contracting_task_force_report_0.pdf. default/files/2018-02/contracting_task_force_report_0.pdf.
TheT he U.S. Supreme U.S. Supreme
Court ruledCourt ruled
in 2016, in in 2016, in
KingdomwareKingdom ware Technologies, Inc. v. United States, that the Department of , that the Department of
Veterans Affairs (VA)Veterans Affairs (VA)
cannot continue its former practice of making purchases through the Federal Supplycannot continue its former practice of making purchases through the Federal Supply
Schedules Schedules
without first considering whether the contract could be set asidewithout first considering whether the contract could be set aside
for veteran-owned small businessesfor veteran-owned small businesses
(VSOBs)(VSOBs)
due due to to
languagelanguage
in P.L. 109-461, the Veterans Benefits, Health Care, and Information Technology Act of 2006, that required in P.L. 109-461, the Veterans Benefits, Health Care, and Information Technology Act of 2006, that required
VAVA
specifically to promote contract awards to VOSBs.specifically to promote contract awards to VOSBs.
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business contracting preferences. Critics have questioned some of these programs’ effectiveness,
business contracting preferences. Critics have questioned some of these programs’ effectiveness,
in terms of promoting both in terms of promoting both
small smal business opportunities to win federal contracts and a more business opportunities to win federal contracts and a more
diversified, robust economy.9 diversified, robust economy.9
Basic Contracting Requirements
Federal Contractors
With a few exceptions, businesses interested in bidding on a federal contract must obtain a Dun & With a few exceptions, businesses interested in bidding on a federal contract must obtain a Dun &
Bradstreet Data Universal Numbering System (DUNS) number (i.e., a unique nine-digit Bradstreet Data Universal Numbering System (DUNS) number (i.e., a unique nine-digit
identification number) for each of the business’s physical locations, and register with the federal identification number) for each of the business’s physical locations, and register with the federal
government’s System for Award Management (SAM).10 SAM is used by government agencies for government’s System for Award Management (SAM).10 SAM is used by government agencies for
several purposes, including to find contractors.11several purposes, including to find contractors.11
Businesses also must match their products and services to a North American Industry
Businesses also must match their products and services to a North American Industry
Classification System (NAICS) code. Businesses Classification System (NAICS) code. Businesses
generallygeneral y have a primary NAICS code, and may have a primary NAICS code, and may
have multiplehave multiple
NAICS codes if they NAICS codes if they
sell sel multiple products and services.12multiple products and services.12
Businesses that identify themselves as a
Businesses that identify themselves as a
small smal business in SAM must (1) meet the business in SAM must (1) meet the
Small Smal Business Business
Act’s definition of a Act’s definition of a
small smal business and (2) not exceed size standards established, and updated business and (2) not exceed size standards established, and updated
periodically
periodical y, by the SBA.13 , by the SBA.13
The Small The Smal Business Act defines a Business Act defines a
small smal business as one thatbusiness as one that
is organized for profit;
is organized for profit;
has a place of business in the United States; has a place of business in the United States;
operates primarily within the United States or makes a significant contribution to operates primarily within the United States or makes a significant contribution to
the U.S. economy through payment of taxes or use of American products,
the U.S. economy through payment of taxes or use of American products,
materials, or labor; materials, or labor;
is independently owned and operated; and
is independently owned and operated; and
is not dominant in its field on a national basis.14 is not dominant in its field on a national basis.14
9 For example, see Henry Beale9 For example, see Henry Beale
and Nicola Deas, “and Nicola Deas, “
TheT he HUBZone Report,” prepared for the SBA, Office of Advocacy, HUBZone Report,” prepared for the SBA, Office of Advocacy,
May 2008, pp. i, ii, 124-131, at https://www.sba.gov/sites/default/files/rs325tot.pdf; and Clifford A. Grammich, May 2008, pp. i, ii, 124-131, at https://www.sba.gov/sites/default/files/rs325tot.pdf; and Clifford A. Grammich,
ThomasT homas R. Edison Jr., Nancy Young Moore, and Edward R. Edison Jr., Nancy Young Moore, and Edward
G. G. Keating, Keating,
SmallSm all Business and Defense Acquisitions: A
Review of Policies and Current Practices (Santa Monica, CA: RAND, (Santa Monica, CA: RAND,
2011), pp. xii, 15, 16, at https://www.rand.org/2011), pp. xii, 15, 16, at https://www.rand.org/
content/dam/rand/pubs/monographs/2011/RAND_MG443.pdf. content/dam/rand/pubs/monographs/2011/RAND_MG443.pdf.
10 SBA,
10 SBA,
“Federal Contracting Guide:“Federal Contracting Guide:
Basic Basic Requirements,” at https://www.sba.gov/federal-contracting/contracting-Requirements,” at https://www.sba.gov/federal-contracting/contracting-
guide/basic-requirements.guide/basic-requirements.
For additional information and analysis, see CRSFor additional information and analysis, see CRS
Report R44490, Report R44490,
Unique Identification
Codes for Federal Contractors: DUNS NumbersNum bers and CAGE Codes, by, by
L. Elaine Halchin; and CRSL. Elaine Halchin; and CRS
Report RS22536, Report RS22536,
Overview of the Federal ProcurementProcurem ent Process and Resources, by L. Elaine Halchin. , by L. Elaine Halchin.
11 SBA,
11 SBA,
“Register with SAM,”“Register with SAM,”
at https://www.sba.gov/federal-contracting/contracting-guide/basic-at https://www.sba.gov/federal-contracting/contracting-guide/basic-
requirements#section-header-8. requirements#section-header-8.
12 U.S.12 U.S.
Bureau Bureau of the Census,of the Census,
“North American Industry Classification System,” at https://www.census.gov/eos/www/“North American Industry Classification System,” at https://www.census.gov/eos/www/
naics/. naics/.
13 P.L. 111-240, the Small Business
13 P.L. 111-240, the Small Business
Jobs Jobs Act of 2010, requires the SBAAct of 2010, requires the SBA
to conduct a detailedto conduct a detailed
review of not less than review of not less than
one-third of the SBA’sone-third of the SBA’s
industry sizeindustry size
standards every 18 months beginning on the new law’sstandards every 18 months beginning on the new law’s
date of enactment date of enactment
(September 27, 2010) and ensure that each size standard is reviewed(September 27, 2010) and ensure that each size standard is reviewed
at least once every five years. at least once every five years.
14 15 U.S.C.14 15 U.S.C.
§632(a); and 13 C.F.R.§632(a); and 13 C.F.R.
§121.105. Affiliations between businesses, or relationships allowing one party §121.105. Affiliations between businesses, or relationships allowing one party
control or the power of control over another, generally count in size determinations. Businesses can thus becontrol or the power of control over another, generally count in size determinations. Businesses can thus be
determined determined
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The business may be a sole proprietorship, partnership, corporation, or any other legal form.15
The business may be a sole proprietorship, partnership, corporation, or any other legal form.15
The
The
Small Smal Business Act authorizes the SBABusiness Act authorizes the SBA
to establish size standards to ensure that only to establish size standards to ensure that only
small smal businesses are provided SBA assistance. The SBA currently uses two types of size standards to businesses are provided SBA assistance. The SBA currently uses two types of size standards to
determine SBAdetermine SBA
program eligibility:program eligibility:
industry-specific size standards and and
alternative size
standards, for some lending and venture capital investment programs based on the applicant’s , for some lending and venture capital investment programs based on the applicant’s
maximum tangible net worth and average net income after federal taxes.16 The SBA’s industry-maximum tangible net worth and average net income after federal taxes.16 The SBA’s industry-
specific size standards are used to determine eligibilityspecific size standards are used to determine eligibility
for federal for federal
small smal business contracting business contracting
purposes. purposes.
The SBA
The SBA
determines if a business is determines if a business is
small smal by comparing that business’s economic characteristics by comparing that business’s economic characteristics
((
typicallytypical y number of employees or average annual receipts) to size standards listed in the SBA’s number of employees or average annual receipts) to size standards listed in the SBA’s
Table of Table of
Small Smal Business Size Standards. The table has size standards for 1,036 industrial Business Size Standards. The table has size standards for 1,036 industrial
classifications in the North American Industrial Classification System. Businesses that exceed the classifications in the North American Industrial Classification System. Businesses that exceed the
applicable size standard for their primary industry do not meet the requirement of being applicable size standard for their primary industry do not meet the requirement of being
smallsmal . .
The SBA’s size standards are designed to (1) encourage competition within each industry and
The SBA’s size standards are designed to (1) encourage competition within each industry and
(2) ensure that SBA assistance is provided only to firms that are not dominant in their field on a (2) ensure that SBA assistance is provided only to firms that are not dominant in their field on a
national basis. The size standards are derived through an assessment of four economic factors: national basis. The size standards are derived through an assessment of four economic factors:
(1) the average firm size, (2) the average assets size as a proxy of start-up costs and entry barriers, (1) the average firm size, (2) the average assets size as a proxy of start-up costs and entry barriers,
(3) the four-firm concentration ratio (the cumulative share of total industry receipts of that (3) the four-firm concentration ratio (the cumulative share of total industry receipts of that
industry’s four biggest firms) as a measure of industry competition, and (4) the size distribution industry’s four biggest firms) as a measure of industry competition, and (4) the size distribution
of firms.17 The SBA also considers the ability of of firms.17 The SBA also considers the ability of
small smal businesses to compete for federal businesses to compete for federal
contracting opportunities and, when necessary, several secondary factors “as they are relevant to contracting opportunities and, when necessary, several secondary factors “as they are relevant to
the industries and the interests of the industries and the interests of
small smal businesses, including technological change, competition businesses, including technological change, competition
among industries, industry growth trends, and impacts of size standard revisions on among industries, industry growth trends, and impacts of size standard revisions on
small smal
businesses.”18
businesses.”18
to be other than small becauseto be other than small because
of their involvement in joint ventures, subcontracting arrangements, or franchise or of their involvement in joint ventures, subcontracting arrangements, or franchise or
license agreements, among other things, provided that their employment or income, plus those of their affiliate(s), license agreements, among other things, provided that their employment or income, plus those of their affiliate(s),
exceed the pertinent size threshold. See 13 C.F.R.exceed the pertinent size threshold. See 13 C.F.R.
§121.103. §121.103.
15 For additional information and analysis of the SBA’s
15 For additional information and analysis of the SBA’s
size standards, see CRSsize standards, see CRS
Report R40860, Report R40860,
Small Business Size
Standards: A Historical Analysis of ContemporaryContem porary Issues, by Robert Jay Dilger. , by Robert Jay Dilger.
16 The16 T he SBA’s SBA’s
7(a) loan guarantee program allows7(a) loan guarantee program allows
businesses businesses to qualify as smallto qualify as small
if they meet the SBA’sif they meet the SBA’s
size standard size standard
for the industry in which the applicant is primarily engaged,for the industry in which the applicant is primarily engaged,
or a maximum or a m aximum tangible net worth of not more than $15 tangible net worth of not more than $15
million and average after-tax net income after federal taxes (excluding any carrymillion and average after-tax net income after federal taxes (excluding any carry
-over losses) of not more than $5 -over losses) of not more than $5
million for two full fiscalmillion for two full fiscal
years before the date of application. 15 U.S.C. §632(a)(2years before the date of application. 15 U.S.C. §632(a)(2
-3) and 15 U.S.C. §632(a)(5)(B). -3) and 15 U.S.C. §632(a)(5)(B).
BusinessesBusinesses
participating in the SBA’sparticipating in the SBA’s
504/Certified Development Company (504/CDC) loan guaranty program are 504/Certified Development Company (504/CDC) loan guaranty program are
deemeddeemed
small if they did not have a tangible net worth in excess of $15 million and didsmall if they did not have a tangible net worth in excess of $15 million and did
not have an average net income not have an average net income
in excess of $5 million after taxes (excludingin excess of $5 million after taxes (excluding
any carryany carry
-over losses) for the preceding two years before the date of -over losses) for the preceding two years before the date of
application. 15 U.S.C. §632(a)(5)(B). application. 15 U.S.C. §632(a)(5)(B).
The SBA’s Small Business T he SBA’s Small Business Investment Company (SBIC) program allowsInvestment Company (SBIC) program allows
businesses businesses to qualify asto qualify as
small if they meet the small if they meet the
SBA’sSBA’s
size standard for the industry in which the applicant is primarily engaged,size standard for the industry in which the applicant is primarily engaged,
or a maximum tangible net worth of or a maximum tangible net worth of
not more than $19.5 million and average after-tax net income for the preceding two years of not more than $6.5 not more than $19.5 million and average after-tax net income for the preceding two years of not more than $6.5
million. 15 U.S.C.million. 15 U.S.C.
§662(12)(A-B); and SBA,§662(12)(A-B); and SBA,
“Small Business Size “ Small Business Size Standards:Standards:
Inflation Adjustment to Monetary Based Inflation Adjustment to Monetary Based
SizeSize
Standards,”Standards,”
79 79
Federal Register 33647-33669, June 12, 2014. 33647-33669, June 12, 2014.
17 SBA,17 SBA,
Office of Government Contracting and BusinessOffice of Government Contracting and Business
Development, Development,
SBA Size Standards Methodology, April 2019, , April 2019,
pp. 29, 30, at https://www.sba.gov/sites/default/files/2019-04/pp. 29, 30, at https://www.sba.gov/sites/default/files/2019-04/
SBA%20Size%20Standards%20Methodology%20April%SBA%20Size%20Standards%20Methodology%20April%
20112 011%2C%202019.pdf (hereinafter SBA, Office of %2C%202019.pdf (hereinafter SBA, Office of
Government Contracting and BusinessGovernment Contracting and Business
Development, Development,
SBA Size Standards Methodology, April 2019). , April 2019).
18 SBA,18 SBA,
Office of Government Contracting and BusinessOffice of Government Contracting and Business
Development, Development,
SBA Size Standards Methodology, April 2019, , April 2019,
p. 1. Any changes to size standards must follow the rulemaking proceduresp. 1. Any changes to size standards must follow the rulemaking procedures
of the Administrative Procedure Act. A of the Administrative Procedure Act. A
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Historically, the SBA
Historically, the SBA
has used the number of employees to determine if manufacturing and has used the number of employees to determine if manufacturing and
mining companies are mining companies are
small smal (ranging from fewer than 50 employees for some industries to fewer (ranging from fewer than 50 employees for some industries to fewer
than 1,500 employees for others) and average annual receipts for most other industries (ranging than 1,500 employees for others) and average annual receipts for most other industries (ranging
from no more than $1 from no more than $1
million mil ion for some industries to no more than $40 for some industries to no more than $40
millionmil ion for others).19 for others).19
Federal Agencies
To make it easier to determine if an offeror meets the SBA’s definition of a To make it easier to determine if an offeror meets the SBA’s definition of a
small smal business, prior business, prior
to soliciting bids, federal agencies are required to classify a product or service being acquired in to soliciting bids, federal agencies are required to classify a product or service being acquired in
only one (NAICS code) industry, “whose definition best describes the principal nature of the only one (NAICS code) industry, “whose definition best describes the principal nature of the
product or service being acquired even though for other purposes it could be classified in more product or service being acquired even though for other purposes it could be classified in more
than one.”20 When acquiring a product or service that could be classified in two or more than one.”20 When acquiring a product or service that could be classified in two or more
industries with different size standards, contracting officers must “apply the size standard for the industries with different size standards, contracting officers must “apply the size standard for the
industry accounting for the greatest percentage of the contract price.”21 If a solicitation industry accounting for the greatest percentage of the contract price.”21 If a solicitation
callscal s for for
more than one item and more than one item and
allowsal ows offers to be submitted on any or offers to be submitted on any or
all al of the items, “an offeror must of the items, “an offeror must
meet the size standard for each item it offers to furnish.”22 If a solicitation meet the size standard for each item it offers to furnish.”22 If a solicitation
callingcal ing for more than for more than
one item requires offers on one item requires offers on
all al or none of the items, “an offeror may qualify as a or none of the items, “an offeror may qualify as a
small smal business business
by meeting the size standard for the item accounting for the greatest percentage of the total by meeting the size standard for the item accounting for the greatest percentage of the total
contract price.”23 contract price.”23
With several notable exceptions (e.g., HUBZone
With several notable exceptions (e.g., HUBZone
small smal businesses, SBA 8(a) program businesses, SBA 8(a) program
participants, and veteran-owned participants, and veteran-owned
small smal businesses [VOSBs] and SDVOSBs seeking contracts with businesses [VOSBs] and SDVOSBs seeking contracts with
the Department of Veterans Affairs), businesses the Department of Veterans Affairs), businesses
generallygeneral y self-certify their status as self-certify their status as
small smal when when
they register their business in the SAM database. they register their business in the SAM database.
The contracting officer is required to accept an offeror’s representation in a specific bid or
The contracting officer is required to accept an offeror’s representation in a specific bid or
proposal that it is a proposal that it is a
small smal business unless “(1) another offeror or interested party business unless “(1) another offeror or interested party
challengeschal enges the the
concern’s concern’s
small smal business representation or (2) the contracting officer has a reason to question the business representation or (2) the contracting officer has a reason to question the
representation.”24representation.”24
If an offeror’s
If an offeror’s
small smal business status is business status is
challengedchal enged, the contracting officer is , the contracting officer is
generally not allowedgeneral y not al owed to award the contract until the SBA has made a size determination or 15 business days after the to award the contract until the SBA has made a size determination or 15 business days after the
SBA receives the protest, whichever occurs first.25 The SBA’s Office of Government Contracting SBA receives the protest, whichever occurs first.25 The SBA’s Office of Government Contracting
Area Office (Area Office) serving the area in which the headquarters of the offeror is located Area Office (Area Office) serving the area in which the headquarters of the offeror is located
initially initial y reviews the protest.26 The Area Office is required, by regulation, to determine the reviews the protest.26 The Area Office is required, by regulation, to determine the
proposed rule changing a sizeproposed rule changing a size
standard isstandard is
first publishedfirst published
in the in the
Federal Register, allowing, allowing
for publicfor public
comment. It must comment. It must
includeinclude
documentation establishing that a significant problem exists that requires a revision of the size standard, plusdocumentation establishing that a significant problem exists that requires a revision of the size standard, plus
an an
economic analysis of the change. Comments from the public, pluseconomic analysis of the change. Comments from the public, plus
any other new information, are reviewed and any other new information, are reviewed and
evaluated before a final rule is promulgated establishingevaluated before a final rule is promulgated establishing
a newa new
size standard. size standard.
19 SBA,
19 SBA,
Office of Government Contracting and BusinessOffice of Government Contracting and Business
Development, Development,
SBA Size Standards Methodology, April 2019, , April 2019,
p. 28. p. 28.
20 FAR20 FAR
§19.102(c). §19.102(c).
21 FAR21 FAR
§19.102(d). §19.102(d).
22 FAR22 FAR
§19.102(e). §19.102(e).
23 FAR23 FAR
§19.102(e). §19.102(e).
24 FAR24 FAR
§19.301-1(b). §19.301-1(b).
25 25
TheT he contracting officer may award the contract if he or she “ contracting officer may award the contract if he or she “
determines in writing that an award must be made to determines in writing that an award must be made to
protect the public interest.” FAR §19.302(g)(1). protect the public interest.” FAR §19.302(g)(1).
26 FAR26 FAR
§19.302(c)(1). “An offeror, the SBA, or another interested party may protest the small business§19.302(c)(1). “An offeror, the SBA, or another interested party may protest the small business
representation representation
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offeror’s size status within 15 business days after receipt of the protest, or “within any extension
offeror’s size status within 15 business days after receipt of the protest, or “within any extension
of time granted by the contracting officer.”27 If the SBA does not make a determination within the of time granted by the contracting officer.”27 If the SBA does not make a determination within the
required time, the contracting officer “may award the contract after determining in writing that required time, the contracting officer “may award the contract after determining in writing that
there is an immediate need to award the contract and that waiting until SBA makes its there is an immediate need to award the contract and that waiting until SBA makes its
determination determination
will wil be disadvantageous to the government.”28be disadvantageous to the government.”28
An appeal of the Area Office’s decision may be filed with the SBA’s Office of Hearings and
An appeal of the Area Office’s decision may be filed with the SBA’s Office of Hearings and
Appeals (OHA). If the OHAAppeals (OHA). If the OHA
accepts the appeal for consideration and finds the protested concern accepts the appeal for consideration and finds the protested concern
to be ineligibleto be ineligible
for award, the contracting officer must “terminate the contract unless termination for award, the contracting officer must “terminate the contract unless termination
is not in the best interests of the government, in keeping with the circumstances described in the is not in the best interests of the government, in keeping with the circumstances described in the
[aforementioned] written determination. However, the contracting officer [aforementioned] written determination. However, the contracting officer
shall shal not exercise any not exercise any
options or award further task or delivery orders.”29 Furthermore, a concern cannot become options or award further task or delivery orders.”29 Furthermore, a concern cannot become
eligibleeligible
for a specific award after the SBA has determined that it is not a for a specific award after the SBA has determined that it is not a
small smal business, even if business, even if
the concern takes action to meet the definition of a the concern takes action to meet the definition of a
small smal business.30business.30
The SBA or the federal agency may suspend or debar a firm from future government contracts for
The SBA or the federal agency may suspend or debar a firm from future government contracts for
misrepresenting its size status. In addition, individuals that knowingly misrepresent a business’s misrepresenting its size status. In addition, individuals that knowingly misrepresent a business’s
size to secure a federal contract can be subject to civil and criminal penalties.31 size to secure a federal contract can be subject to civil and criminal penalties.31
The Pre-Award Process
Federal Agency Requirements
15 U.S.C. §644(e)(1) states, “To the maximum extent practicable, procurement strategies used by 15 U.S.C. §644(e)(1) states, “To the maximum extent practicable, procurement strategies used by
a Federal department or agency having contracting authority a Federal department or agency having contracting authority
shall shal facilitate the maximum facilitate the maximum
participation of participation of
small smal business concerns as prime contractors, subcontractors, and suppliers.” To business concerns as prime contractors, subcontractors, and suppliers.” To
accomplish this goal, FAR regulations (FAR §19.202-1) require contracting officers, when accomplish this goal, FAR regulations (FAR §19.202-1) require contracting officers, when
applicable, to take the following actions prior to awarding a federal contract: applicable, to take the following actions prior to awarding a federal contract:
of an offeror in a specific offer. However, for competitive 8(a) contracts, the filing of a protest is limited to an offeror,of an offeror in a specific offer. However, for competitive 8(a) contracts, the filing of a protest is limited to an offeror,
the contracting officer, or the SBA.” FARthe contracting officer, or the SBA.” FAR
§19.302(a)(2). “§19.302(a)(2). “
The protest, or confirmation if the protest was initiated The protest, or confirmation if the protest was initiated
orally, shall be in writing and shall contain the basis for the protest with specific, detailed evidence to support the orally, shall be in writing and shall contain the basis for the protest with specific, detailed evidence to support the
allegation that the offeror is not small. allegation that the offeror is not small.
TheT he SBA will SBA will
dismiss dismiss any protest that does not contain specific grounds for the any protest that does not contain specific grounds for the
protestprot est.” FAR §19.302(c)(2). “.” FAR §19.302(c)(2). “
The protest shall include a referral letter written by the contracting officer with The protest shall include a referral letter written by the contracting officer with
information pertaining to the solicitation.” FAR §19.302(c)(3). “information pertaining to the solicitation.” FAR §19.302(c)(3). “
In order to affect a specific solicitation, a protest must In order to affect a specific solicitation, a protest must
be timely.” FAR §19.302(d). “be timely.” FAR §19.302(d). “
To T o be timely, a protest … must be received … be timely, a protest … must be received …
by the close of businessby the close of business
of the fifth of the fifth
businessbusiness
day after bidday after bid
opening (in sealedopening (in sealed
bid bid acquisitions) or receipt of the special notification from the contracting acquisitions) or receipt of the special notification from the contracting
officer that identifies the apparently successful offeror (in negotiated acquisitions).” FARofficer that identifies the apparently successful offeror (in negotiated acquisitions).” FAR
§19.302(d)(1). “§19.302(d)(1). “
…a protest …a protest
filed by the contracting officer or the SBA is generally alwaysfiled by the contracting officer or the SBA is generally always
considered timely whether filed before or after award.” considered timely whether filed before or after award.”
FARFAR
§19.302(d)(2). §19.302(d)(2).
27 FAR
27 FAR
§19.302(f)(1). §19.302(f)(1).
28 FAR28 FAR
§19.302(g)(2). §19.302(g)(2).
29 FAR29 FAR
§19.302(h). §19.302(h).
30 FAR30 FAR
§19.301-1(c). §19.301-1(c).
31 13 C.F.R. §121.108; 18 U.S.C.31 13 C.F.R. §121.108; 18 U.S.C.
§287; and 18 U.S.C.§287; and 18 U.S.C.
§1001. For additional information and analysis, see§1001. For additional information and analysis, see
CRS CRS Report Report
R45322, R45322,
Selected Legal Tools for Maintaining GovernmentGovernm ent Contractor Accountability, by David H. Carpenter and , by David H. Carpenter and
Kathleen Ann Ruane. Kathleen Ann Ruane.
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1. “Divide
1. “Divide
proposed acquisitions of supplies and services (except construction) into proposed acquisitions of supplies and services (except construction) into
reasonably
reasonably
small smal lots (not less than economic production runs) to permit offers lots (not less than economic production runs) to permit offers
on quantities less than the total requirement.” on quantities less than the total requirement.”
2. “Plan acquisitions such that, if practicable, more than one
2. “Plan acquisitions such that, if practicable, more than one
small smal business concern business concern
may perform the work, if the work exceeds the amount for which a surety may be
may perform the work, if the work exceeds the amount for which a surety may be
guaranteed by the SBAguaranteed by the SBA
against loss under 15 U.S.C. §694b [against loss under 15 U.S.C. §694b [
generally $6.5 million, or $10 million general y $6.5
mil ion, or $10 mil ion if the contracting officer certifies that the higher amount if the contracting officer certifies that the higher amount
is necessary].” is necessary].”
3. “Ensure that delivery schedules are established on a realistic basis that
3. “Ensure that delivery schedules are established on a realistic basis that
will wil
encourage
encourage
small smal business participation to the extent consistent with the actual business participation to the extent consistent with the actual
requirements of the Government.” requirements of the Government.”
4. “Encourage prime contractors to subcontract with
4. “Encourage prime contractors to subcontract with
small smal business concerns business concerns
[primarily through the agency’s role in negotiating an acceptable
[primarily through the agency’s role in negotiating an acceptable
small smal business business
subcontracting plan with prime contractors on contracts anticipated to exceed subcontracting plan with prime contractors on contracts anticipated to exceed
$700,000 or $1.5 $700,000 or $1.5
millionmil ion for construction contracts].”32 for construction contracts].”32
5. “Provide a copy of the proposed acquisition package to the SBA procurement
5. “Provide a copy of the proposed acquisition package to the SBA procurement
center representative [PCR, duties are described later]” for his or her review,
center representative [PCR, duties are described later]” for his or her review,
comment and recommendation, or, if a PCR is not assigned, to the SBA Area comment and recommendation, or, if a PCR is not assigned, to the SBA Area
Office serving the area in which the procuring activity is located “at least 30 days Office serving the area in which the procuring activity is located “at least 30 days
prior to the issuance of the solicitation if (i) The proposed acquisition is for prior to the issuance of the solicitation if (i) The proposed acquisition is for
supplies or services currently being provided by a supplies or services currently being provided by a
small smal business and the business and the
proposed acquisition is of a quantity or estimated dollar value, the magnitude of proposed acquisition is of a quantity or estimated dollar value, the magnitude of
which makes it unlikely that which makes it unlikely that
small smal businesses can compete for the prime contract; businesses can compete for the prime contract;
(ii
(i ) The proposed acquisition is for construction and seeks to package or ) The proposed acquisition is for construction and seeks to package or
consolidate discrete construction projects and the magnitude of this consolidation consolidate discrete construction projects and the magnitude of this consolidation
makes it unlikely that makes it unlikely that
small smal businesses can compete for the prime contract; or businesses can compete for the prime contract; or
((
iii) i i) The proposed acquisition is for a consolidated or bundled requirement.… The proposed acquisition is for a consolidated or bundled requirement.…
The contracting officer The contracting officer
shall provide all shal provide al information relative to the justification information relative to the justification
for the consolidation or bundling, including the acquisition plan or strategy and if for the consolidation or bundling, including the acquisition plan or strategy and if
the acquisition involves substantial bundling, the information identified in [FAR] the acquisition involves substantial bundling, the information identified in [FAR]
7.107-4.33 The contracting officer 7.107-4.33 The contracting officer
shall shal also provide the same information to the also provide the same information to the
32 Subcontracting plans are not required from small businesses,32 Subcontracting plans are not required from small businesses,
for personal services contracts, for contracts or contract for personal services contracts, for contracts or contract
modifications that will be performed entirely outside of the United States and its outlying areas, or for modifications modifications that will be performed entirely outside of the United States and its outlying areas, or for modifications
that were within the scope of the contract. “[A]ny contractor or subcontractor failing to comply in good faith with the that were within the scope of the contract. “[A]ny contractor or subcontractor failing to comply in good faith with the
requirements of the subcontracting plan is in material breach of its contract.” FAR §19.702(c). In addition, “requirements of the subcontracting plan is in material breach of its contract.” FAR §19.702(c). In addition, “
Any Any
contractor receiving a contract with a value greater than the simplified acquisition threshold must agreecontractor receiving a contract with a value greater than the simplified acquisition threshold must agree
in the contract in the contract
that small business,that small business,
veteran-owned small business,veteran-owned small business,
service-disabledservice-disabled
veteran-owned small business,veteran-owned small business,
HUBZone small HUBZone small
business,business,
small disadvantagedsmall disadvantaged
business,business,
and women-ownedand women-owned
small businesssmall business
concerns willconcerns will
have the maximum have the maximum
practicable opportunity to participate in contract performance consistent with its efficient performance.” FAR §19.702. practicable opportunity to participate in contract performance consistent with its efficient performance.” FAR §19.702.
33 FAR
33 FAR
§7.017-4(2)(b) states “…when the proposed acquisition strategy involves substantial bundling,§7.017-4(2)(b) states “…when the proposed acquisition strategy involves substantial bundling,
the agency shall the agency shall
document in its strategy—(1) document in its strategy—(1)
TheT he specific benefits anticipated to be derived from substantial bundling; specific benefits anticipated to be derived from substantial bundling;
(2) An (2) An
assessment of the specific impediments to participation by small businessassessment of the specific impediments to participation by small business
concerns as contractors that result from concerns as contractors that result from
substantial bundling;substantial bundling;
(3) Actions designed(3) Actions designed
to maximize small businessto maximize small business
participation as contractors, including participation as contractors, including
provisionspr ovisions that encourage small businessthat encourage small business
teaming; (4) Actions designedteaming; (4) Actions designed
to maximize small businessto maximize small business
participation as subcontractors participation as subcontractors
(including(including
suppliers) at any tier under the contract, or order, that may be awardedsuppliers) at any tier under the contract, or order, that may be awarded
to meet the requirements; (5) to meet the requirements; (5)
The determinationT he determinat ion that the anticipated benefits of the proposed bundled that the anticipated benefits of the proposed bundled
contract or order justify its use;contract or order justify its use;
and (6) Alternative and (6) Alternative
strategies that wouldstrategies that would
reduce reduce or minimize the scope of the bundling,or minimize the scope of the bundling,
and the rationale for not choosing those and the rationale for not choosing those
alternatives.” alternatives.”
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agency Office of
agency Office of
Small Smal and Disadvantaged Business Utilizationand Disadvantaged Business Utilization
[duties are [duties are
described later].” described later].”
6. “Provide a statement explaining why the (i) Proposed acquisition cannot be
6. “Provide a statement explaining why the (i) Proposed acquisition cannot be
divided into reasonably
divided into reasonably
small smal lots (not less than economic production runs) to lots (not less than economic production runs) to
permit offers on quantities less than the total requirement; (permit offers on quantities less than the total requirement; (
iii ) Delivery schedules ) Delivery schedules
cannot be established on a realistic basis that cannot be established on a realistic basis that
will encourage small wil encourage smal business business
participation to the extent consistent with the actual requirements of the participation to the extent consistent with the actual requirements of the
government; (government; (
iiii i) Proposed acquisition cannot be structured so as to make it ) Proposed acquisition cannot be structured so as to make it
likelylikely
that that
small smal businesses can compete for the prime contract; (iv) Consolidated businesses can compete for the prime contract; (iv) Consolidated
construction project cannot be acquired as separate discrete projects; or (v) construction project cannot be acquired as separate discrete projects; or (v)
Consolidation or bundling is necessary and justified.” Consolidation or bundling is necessary and justified.”
7. “Process the 30-day notification concurrently with other processing steps
7. “Process the 30-day notification concurrently with other processing steps
required prior to the issuance of the solicitation.”
required prior to the issuance of the solicitation.”
8. “If the contracting officer rejects the SBA procurement center representative’s
8. “If the contracting officer rejects the SBA procurement center representative’s
recommendation … document the basis for the rejection and notify the SBA
recommendation … document the basis for the rejection and notify the SBA
procurement center representative [who (as described later) may appeal the procurement center representative [who (as described later) may appeal the
rejection to the chief of the contracting office and, ultimately, to the agency rejection to the chief of the contracting office and, ultimately, to the agency
head].”34 head].”34
The Role of SBA Procurement Center Representatives
The SBA may assign one or more procurement center representatives (PCRs) to any contracting The SBA may assign one or more procurement center representatives (PCRs) to any contracting
activity or contract administration office to implement the SBA’s policies and programs. The activity or contract administration office to implement the SBA’s policies and programs. The
SBA
SBA currently has 46 PCRs located in the SBA’s six Area Offices.35 PCRs are required to comply currently has 46 PCRs located in the SBA’s six Area Offices.35 PCRs are required to comply
with the contracting agency’s directives governing the conduct of contracting personnel and the with the contracting agency’s directives governing the conduct of contracting personnel and the
release of contract information.36 release of contract information.36
PCR duties include the following:
PCR duties include the following:
Review proposed acquisitions to recommend “the setting aside of selected
Review proposed acquisitions to recommend “the setting aside of selected
acquisitions not
acquisitions not
unilaterally unilateral y set aside by the contracting officer;” new qualified set aside by the contracting officer;” new qualified
small smal business sources; and the feasibility of breaking out components of the business sources; and the feasibility of breaking out components of the
contract for competitive acquisitions.37 contract for competitive acquisitions.37
Review proposed acquisition packages. If the PCR (or, if a PCR is not assigned,
Review proposed acquisition packages. If the PCR (or, if a PCR is not assigned,
the SBA Area Office serving the area in which the procuring activity is located)
the SBA Area Office serving the area in which the procuring activity is located)
“believes that the acquisition, as proposed, makes it unlikely that “believes that the acquisition, as proposed, makes it unlikely that
small smal businesses can compete for the prime contract,” the PCR can recommend any businesses can compete for the prime contract,” the PCR can recommend any
alternate contracting method that he or she “reasonably believes alternate contracting method that he or she “reasonably believes
will wil increase increase
small smal business prime contracting opportunities.” The recommendation must be business prime contracting opportunities.” The recommendation must be
made to the contracting officer within 15 days after the package’s receipt.38 made to the contracting officer within 15 days after the package’s receipt.38
34 FAR
34 FAR §19.202-1. See FAR§19.202-1. See FAR
§19.505 for a description of the appeals process. §19.505 for a description of the appeals process.
35 SBA,35 SBA,
“Procurement Center Representative Directory,” June 24, 2021, at https://www.sba.gov/federal-contracting/“Procurement Center Representative Directory,” June 24, 2021, at https://www.sba.gov/federal-contracting/
counseling-help/procurementcounseling-help/procurement
-center-representative-directory. -center-representative-directory.
ThereT here were two vacancies. were two vacancies.
36 FAR36 FAR
§19.402(a)(1). §19.402(a)(1).
37 FAR37 FAR
§19.402(c)(1). §19.402(c)(1).
38 FAR38 FAR
§19.402(c)(2). §19.402(c)(2).
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Recommend
Recommend
small smal businesses “for inclusion on a list of concerns to be solicited businesses “for inclusion on a list of concerns to be solicited
in a specific acquisition.”39
in a specific acquisition.”39
Appeal to the contracting office’s chief “any contracting officer’s determination
Appeal to the contracting office’s chief “any contracting officer’s determination
not to solicit a concern recommended by the SBA for a particular acquisition,
not to solicit a concern recommended by the SBA for a particular acquisition,
when not doing so results in no when not doing so results in no
small smal business being solicited.” This appeal may business being solicited.” This appeal may
be further appealed to the agency head.40 be further appealed to the agency head.40
Conduct periodic reviews of the agency’s contracting activity, including the
Conduct periodic reviews of the agency’s contracting activity, including the
agency’s assessment of any required
agency’s assessment of any required
small smal business subcontracting plan, “to business subcontracting plan, “to
ascertain whether the agency is complying with the ascertain whether the agency is complying with the
small smal business policies in this business policies in this
regulation.”41 regulation.”41
Sponsor and participate in conferences and training “designed to increase
Sponsor and participate in conferences and training “designed to increase
small smal
business participation in the contracting activities of the office.”42
business participation in the contracting activities of the office.”42
The Role of the Office of Small and Disadvantaged Business
Utilization
Every federal agency (except the SBA) that has procurement powers is required to have an Every federal agency (except the SBA) that has procurement powers is required to have an
OSDBU, whose director, by statute, reports directly to the head of the agency and has supervisory OSDBU, whose director, by statute, reports directly to the head of the agency and has supervisory
authority over agency staff performing certain procurement functions.43 The OSDBU’s primary authority over agency staff performing certain procurement functions.43 The OSDBU’s primary
responsibility is to ensure that responsibility is to ensure that
small smal businesses, SDBs, WOSBs, SDVOSBs, and HUBZone businesses, SDBs, WOSBs, SDVOSBs, and HUBZone
small smal businesses are treated fairly and that they have an opportunity to compete and be selected for a businesses are treated fairly and that they have an opportunity to compete and be selected for a
fair amount of the agency’s contract dollars. Among its statutory responsibilities are the fair amount of the agency’s contract dollars. Among its statutory responsibilities are the
following: following:
“Identify proposed solicitations that involve significant bundling of contract
“Identify proposed solicitations that involve significant bundling of contract
requirements, and work with the agency acquisition officials and the
requirements, and work with the agency acquisition officials and the
Administration to revise the procurement strategies for such proposed Administration to revise the procurement strategies for such proposed
solicitations where appropriate to increase the probability of participation by solicitations where appropriate to increase the probability of participation by
small smal businesses as prime contractors, or to facilitate businesses as prime contractors, or to facilitate
small smal business participation business participation
as subcontractors and suppliers, if a solicitation for a bundled contract is to be as subcontractors and suppliers, if a solicitation for a bundled contract is to be
issued.”44 issued.”44
Assist
Assist
small smal businesses “to obtain payments, required late payment interest businesses “to obtain payments, required late payment interest
penalties, or information regarding payments due to the concern from an
penalties, or information regarding payments due to the concern from an
executive agency or a contractor.”45 executive agency or a contractor.”45
Assign “a
Assign “a
small smal business technical adviser to each office to which the SBA has business technical adviser to each office to which the SBA has
assigned” a PCR. The
assigned” a PCR. The
small smal business technical advisor “business technical advisor “
shall shal be a full-time be a full-time
39 FAR
39 FAR §19.402(c)(3). §19.402(c)(3).
40 FAR40 FAR
§19.402(c)(4). See FAR§19.402(c)(4). See FAR
§19.505 for a description of the appeals process. §19.505 for a description of the appeals process.
41 FAR41 FAR
§19.402(c)(5). §19.402(c)(5).
42 FAR42 FAR
§19.402(c)(6). §19.402(c)(6).
43 For a discussion43 For a discussion
of the extent to which Offices of Smallof the extent to which Offices of Small
and Disadvantagedand Disadvantaged
Business Business Utilization have implemented Utilization have implemented
these statutory requirements, see U.S. Government Accountability Office (GAO), these statutory requirements, see U.S. Government Accountability Office (GAO),
SmallSm all Business Contracting: Actions
Needed to DemonstrateDem onstrate and Better Review ComplianceCom pliance with Select Requirements for SmallRequirem ents for Sm all Business Advocates , GAO-, GAO-
17-675, August 25, 2017, pp. 1-4, at https://www.gao.gov/assets/690/686766.pdf. 17-675, August 25, 2017, pp. 1-4, at https://www.gao.gov/assets/690/686766.pdf.
44 15 U.S.C.
44 15 U.S.C.
§644(k)(5). §644(k)(5).
45 15 U.S.C.45 15 U.S.C.
§644(k)(6). §644(k)(6).
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employee of the procuring activity,
employee of the procuring activity,
well wel qualified, qualified,
technicallytechnical y trained and trained and
familiar with the supplies or services purchased at the activity; and whose familiar with the supplies or services purchased at the activity; and whose
principal duty principal duty
shall shal be to assist” the PCR.46 be to assist” the PCR.46
Provide the agency’s “Chief Acquisition Officer and senior procurement
Provide the agency’s “Chief Acquisition Officer and senior procurement
executive … with advice and comments on acquisition strategies, market
executive … with advice and comments on acquisition strategies, market
research, and justifications [related to limitations on the consolidation of research, and justifications [related to limitations on the consolidation of
contracts as a means to provide contracts as a means to provide
small smal businesses appropriate opportunities to businesses appropriate opportunities to
participate as prime contractors and subcontractors].”47 participate as prime contractors and subcontractors].”47
Provide training to
Provide training to
small smal businesses and contract specialists, provided that the businesses and contract specialists, provided that the
training does not interfere with the director carrying out his or her other
training does not interfere with the director carrying out his or her other
responsibilities.48 responsibilities.48
Ensure that a
Ensure that a
small smal business that notifies the PCR prior to a contract’s award that business that notifies the PCR prior to a contract’s award that
“a solicitation, request for proposal, or request for quotation unduly restricts [its]
“a solicitation, request for proposal, or request for quotation unduly restricts [its]
abilityability
… to compete for the award … is aware of other resources and processes … to compete for the award … is aware of other resources and processes
available
available to address unduly restrictive provisions … even if such resources and to address unduly restrictive provisions … even if such resources and
processes are provided by such agency, the Administration, the Comptroller processes are provided by such agency, the Administration, the Comptroller
General, or a Department of Defense (DOD) procurement technical assistance General, or a Department of Defense (DOD) procurement technical assistance
program [described below].”49program [described below].”49
Review
Review
all al subcontracting plans “to ensure that the plan provides maximum subcontracting plans “to ensure that the plan provides maximum
practicable opportunity for
practicable opportunity for
small smal business concerns to participate in the business concerns to participate in the
performance of the contract to which the plan applies.”50 performance of the contract to which the plan applies.”50
In accordance with P.L. 109-163, the National Defense Authorization Act of 2006, the DOD
In accordance with P.L. 109-163, the National Defense Authorization Act of 2006, the DOD
renamed its OSDBUrenamed its OSDBU
the Office of the Office of
Small Smal Business Programs (OSBP). The act also redesignated Business Programs (OSBP). The act also redesignated
the Army, Navy, and Air Force’s OSDBUs to OSBPs of the Department of the Army, Navy, and the Army, Navy, and Air Force’s OSDBUs to OSBPs of the Department of the Army, Navy, and
Air Force, respectively. Air Force, respectively.
The Roles of Other Procurement Officers and Offices
At the agency level, procurement department heads (sometimes titled At the agency level, procurement department heads (sometimes titled
senior procurement
executive) are responsible for implementing ) are responsible for implementing
small smal business programs at their agencies, including business programs at their agencies, including
achieving program goals. In general, procurement department staff who work on achieving program goals. In general, procurement department staff who work on
small smal business business
issues (often titled issues (often titled
small business specialists) coordinate with OSDBU directors on their ) coordinate with OSDBU directors on their
agencies’ agencies’
small smal business programs.51 business programs.51
Chief acquisition officers provide a focal point for acquisition in agency operations. Their key provide a focal point for acquisition in agency operations. Their key
functions include “monitoring and evaluating agency acquisition activities, increasing the use of functions include “monitoring and evaluating agency acquisition activities, increasing the use of
full and open competition, increasing performance-based contracting, making acquisition full and open competition, increasing performance-based contracting, making acquisition
46 15 U.S.C.
46 15 U.S.C. §644(k)(8). §644(k)(8).
47 15 U.S.C.47 15 U.S.C.
§644(k)(12). §644(k)(12).
48 15 U.S.C.48 15 U.S.C.
§644(k)(13). §644(k)(13).
49 15 U.S.C.49 15 U.S.C.
§644(k)(17). §644(k)(17).
50 15 U.S.C.50 15 U.S.C.
§644(k)(20). §644(k)(20).
51 GAO,51 GAO,
Small Business Contracting: Actions Needed to Demonstrate and Better Review Compliance with Select
Requirements for SmallRequirem ents for Sm all Business Advocates, GAO-17-675, August, GAO-17-675, August
25, 2017, p. 7, at https://www.gao.gov/assets/690/25, 2017, p. 7, at https://www.gao.gov/assets/690/
686766.pdf (hereinafter GAO, 686766.pdf (hereinafter GAO,
SmallSm all Business Contracting: Actions Needed to DemonstrateDem onstrate and Better Review
ComplianceCom pliance with Select Requirements for SmallRequirem ents for Sm all Business Advocates). ).
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decisions, managing agency acquisition policy, acquisition career management, acquisition
decisions, managing agency acquisition policy, acquisition career management, acquisition
resources planning, and conducting acquisition assessments.”52 resources planning, and conducting acquisition assessments.”52
The SBA
The SBA
must assign a must assign a
breakout procurement center representative (breakout PCR) to each (breakout PCR) to each
major procurement center. A major procurement center is, in the opinion of the SBA major procurement center. A major procurement center is, in the opinion of the SBA
Administrator, a procurement center that purchases substantial dollar amounts of other than Administrator, a procurement center that purchases substantial dollar amounts of other than
commercial items, and has the potential to incur significant savings as a result of the placement of commercial items, and has the potential to incur significant savings as a result of the placement of
a breakout PCR.53a breakout PCR.53
The breakout PCR advocates for (1) the appropriate use of full and open competition, and (2) the
The breakout PCR advocates for (1) the appropriate use of full and open competition, and (2) the
breakout of items, “when appropriate and while maintaining the integrity of the system in which breakout of items, “when appropriate and while maintaining the integrity of the system in which
such items are used.”54 The breakout PCR is in addition to the PCR. such items are used.”54 The breakout PCR is in addition to the PCR.
When a breakout PCR is assigned, the SBA
When a breakout PCR is assigned, the SBA
must assign at least two co-located must assign at least two co-located
small smal business business
technical advisors. SBA breakout PCRs and technical advisors must comply with the contracting technical advisors. SBA breakout PCRs and technical advisors must comply with the contracting
agency’s directives governing the conduct of contracting personnel and the release of contract agency’s directives governing the conduct of contracting personnel and the release of contract
information. The SBA must obtain security clearances for its breakout PCRs and technical information. The SBA must obtain security clearances for its breakout PCRs and technical
advisors as required by the contracting agency.55 advisors as required by the contracting agency.55
The SBA has
The SBA has
commercial market representatives who, among other duties, help prime contractors who, among other duties, help prime contractors
find find
small smal businesses that are capable of performing subcontracts; provide counseling on the businesses that are capable of performing subcontracts; provide counseling on the
contractor’s responsibility to maximize subcontracting opportunities for contractor’s responsibility to maximize subcontracting opportunities for
small smal businesses; and businesses; and
conduct periodic reviews of contractors awarded contracts requiring an acceptable subcontracting conduct periodic reviews of contractors awarded contracts requiring an acceptable subcontracting
plan that provides plan that provides
small smal businesses “the maximum practicable opportunity to participate in businesses “the maximum practicable opportunity to participate in
contract performance consistent with its efficient performance” (contract performance consistent with its efficient performance” (
generallygeneral y any solicitation to any solicitation to
perform a contract that is expected to exceed $700,000 ($1.5 perform a contract that is expected to exceed $700,000 ($1.5
millionmil ion for construction) and that for construction) and that
has subcontracting possibilities).56 has subcontracting possibilities).56
The SBA’s 140
The SBA’s 140
business opportunity specialists provide, among other duties, guidance, provide, among other duties, guidance,
counseling, and referrals for assistance with technical, management, financial, or other matters counseling, and referrals for assistance with technical, management, financial, or other matters
intended to improve the competitive viabilityintended to improve the competitive viability
of SBA 8(a) program participants.57 They provide of SBA 8(a) program participants.57 They provide
8(a) program participants comprehensive assessments of the firm’s strengths and weaknesses; 8(a) program participants comprehensive assessments of the firm’s strengths and weaknesses;
monitor and document their compliance with 8(a) program requirements; advise them on monitor and document their compliance with 8(a) program requirements; advise them on
compliance with contracting regulations after the award of a 8(a) program contract or compliance with contracting regulations after the award of a 8(a) program contract or
subcontract; review and monitor their compliance with mentor-protégé agreements; represent the subcontract; review and monitor their compliance with mentor-protégé agreements; represent the
interests of the SBA Administrator and interests of the SBA Administrator and
small smal businesses in the award, modification, and businesses in the award, modification, and
52 GAO,
52 GAO, Small Business Contracting: Actions Needed to Demonstrate and Better Review Compliance with Select
Requirements for SmallSelec t Requirem ents for Sm all Business Advocates, pp. 7-8. , pp. 7-8.
53 15 U.S.C.53 15 U.S.C.
§644(l)(6); and FAR§644(l)(6); and FAR
§19.403(a). §19.403(a).
54 FAR54 FAR
§19.403(a). §19.403(a).
55 FAR55 FAR
§19.403(a). §19.403(a).
56 15 U.S.C.56 15 U.S.C.
§633(h)(1). For additional information on subcontracting plan requirements, see FAR§633(h)(1). For additional information on subcontracting plan requirements, see FAR
§19.702(a)(1); and §19.702(a)(1); and
15 U.S.C.15 U.S.C.
§637(d)(3). Also, see§637(d)(3). Also, see
GAO, Im provem entsGAO, Improvements Needed to Help Ensure Reliability of SBA’s PerformancePerform ance Data on
ProcurementProcurem ent Center Representatives, GAO-11-549R, June 15, 2011, pp. 4-7, 30, at https://www.gao.gov/products/, GAO-11-549R, June 15, 2011, pp. 4-7, 30, at https://www.gao.gov/products/
GAO-11-549R. For additional information on CMR dutiesGAO-11-549R. For additional information on CMR duties
and responsibilities see SBA,and responsibilities see SBA,
“ “Subcontracting Assistance Subcontracting Assistance
Program Post Award,” SOP 60 03 7, effective July 17, 2018, at https://www.sba.gov/sites/default/files/2018-07/2018-Program Post Award,” SOP 60 03 7, effective July 17, 2018, at https://www.sba.gov/sites/default/files/2018-07/2018-
07-17%20Final%20Subcontracting%20Program%20SOP_1.pdf07-17%20Final%20Subcontracting%20Program%20SOP_1.pdf
. .
57 U.S.
57 U.S.
Congress, HouseCongress, House
Committee on Small Business,Committee on Small Business,
Subcommittee on Contracting and Infrastructure, Subcommittee on Contracting and Infrastructure,
Oversight of
the SBA’s Women-Owned Small Business Federal Contract Program , hearing, 116th Cong., 1st sess.,, hearing, 116th Cong., 1st sess.,
May 16, 2019, May 16, 2019,
H.Hrg. 116-021 (Washington: GPO, 2019), p. 39. H.Hrg. 116-021 (Washington: GPO, 2019), p. 39.
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administration of 8(a) program contracts and subcontracts; and report fraud or abuse involving
administration of 8(a) program contracts and subcontracts; and report fraud or abuse involving
the 8(a) program.58 the 8(a) program.58
The
The
Small Business Procurement Advisory Council (SBPAC), whose members are composed of (SBPAC), whose members are composed of
the SBA Administrator (or his or her designee), the director of the Minority Business the SBA Administrator (or his or her designee), the director of the Minority Business
Development Agency, and the head of each OSDBU in each federal agency having procurement Development Agency, and the head of each OSDBU in each federal agency having procurement
powers, has the following statutory duties: powers, has the following statutory duties:
1. Develop positions on proposed procurement regulations affecting the
1. Develop positions on proposed procurement regulations affecting the
small smal
business community.
business community.
2. Submit comments reflecting such positions to appropriate regulatory authorities
2. Submit comments reflecting such positions to appropriate regulatory authorities
. .
3. Conduct reviews of each OSDBU to determine the office’s compliance with its
3. Conduct reviews of each OSDBU to determine the office’s compliance with its
statutory requirements.
statutory requirements.
4. Identify best practices for maximizing
4. Identify best practices for maximizing
small smal business utilizationbusiness utilization
in federal in federal
contracting that may be implemented by federal agencies having procurement
contracting that may be implemented by federal agencies having procurement
powers.powers.
5. Submit
5. Submit
annuallyannual y, to the House Committee on , to the House Committee on
Small Smal Business and Senate Business and Senate
Committee on
Committee on
Small Smal Business and Entrepreneurship, a report describing (1) the Business and Entrepreneurship, a report describing (1) the
comments submitted to appropriate regulatory authorities, including any comments submitted to appropriate regulatory authorities, including any
outcomes related to the comments; (2) the results of its review of each OSDBU; outcomes related to the comments; (2) the results of its review of each OSDBU;
and (3) best practices identified for maximizing and (3) best practices identified for maximizing
small smal business contracting.59 business contracting.59
The Defense Logistic Agency’s
The Defense Logistic Agency’s
Procurement Technical Assistance Program (PTAC) helps (PTAC) helps
“businesses pursue and perform under contracts with the Department of Defense, other federal “businesses pursue and perform under contracts with the Department of Defense, other federal
agencies, state and local governments and with government prime contractors. Most of the agencies, state and local governments and with government prime contractors. Most of the
assistance provided by the 97 PTACs and their more than 300 local offices is free.60 PTAC assistance provided by the 97 PTACs and their more than 300 local offices is free.60 PTAC
support to businesses includes registration in systems such as the System for Award Management support to businesses includes registration in systems such as the System for Award Management
(SAM), identification of contract opportunities, and help in understanding requirements and in (SAM), identification of contract opportunities, and help in understanding requirements and in
preparing and submitting bids.”61 preparing and submitting bids.”61
Set-Asides and Sole-Source Awards
The Competition in Contracting Act of 1984 The Competition in Contracting Act of 1984
generallygeneral y requires “full and open competition” for requires “full and open competition” for
government procurement contracts.62 However, various provisions of the government procurement contracts.62 However, various provisions of the
Small Smal Business Act Business Act
authorize or, in some cases, require federal agencies to provide for other than “full and open authorize or, in some cases, require federal agencies to provide for other than “full and open
competition through the use of competitive procedures” when contracting with competition through the use of competitive procedures” when contracting with
small smal businesses. businesses.
For example, as mentioned previously, federal agencies are For example, as mentioned previously, federal agencies are
generally general y required to reserve contracts required to reserve contracts
that have an anticipated value greater than the micro-purchase threshold (currently $10,000), but that have an anticipated value greater than the micro-purchase threshold (currently $10,000), but
58 15 U.S.C.
58 15 U.S.C. §633(g)(1). §633(g)(1).
59 15 U.S.C.59 15 U.S.C.
§644a(b). §644a(b).
60 DOD, Defense Logistics60 DOD, Defense Logistics
Agency, “Procurement Technical Assistance Centers: States and Agency, “Procurement Technical Assistance Centers: States and
TerritoriesT erritories,” at ,” at
https://www.dla.mil/SmallBusiness/https://www.dla.mil/SmallBusiness/
PTAPPT AP/AllLocations/;/AllLocations/;
and SBA,and SBA,
“ “Find Local Assistance: Procurement Find Local Assistance: Procurement
TechnicalT echnical Assistance Centers,” at https://www.sba.gov/local-assistance/find/?type=Assistance Centers,” at https://www.sba.gov/local-assistance/find/?type=
Procurement%20Technical%20Assistance%20Center&Procurement%20Technical%20Assistance%20Center&
pageNumber=2. pageNumber=2.
61 DOD, Defense Logistics
61 DOD, Defense Logistics
Agency, “Procurement Technical Assistance Program,” at Agency, “Procurement Technical Assistance Program,” at
https://www.dla.mil/SmallBusiness/https://www.dla.mil/SmallBusiness/
PTAP/. PT AP/.
62 41 U.S.C.
62 41 U.S.C.
§253(b)(1); 41 U.S.C.§253(b)(1); 41 U.S.C.
§259(b); and, the Deficit Reduction Act of 1984 (§259(b); and, the Deficit Reduction Act of 1984 (
TitleT itle VII, the Competition in VII, the Competition in
Contracting Act). Contracting Act).
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not greater than the simplified acquisition threshold (currently $250,000) exclusively for
not greater than the simplified acquisition threshold (currently $250,000) exclusively for
small smal businesses unless the contracting officer is unable to obtain offers from two or more businesses unless the contracting officer is unable to obtain offers from two or more
small smal
businesses that are competitive with market prices and the quality and delivery of the goods or businesses that are competitive with market prices and the quality and delivery of the goods or
services being purchased.63 services being purchased.63
In addition, federal agencies
In addition, federal agencies
are
are
generallygeneral y required to set aside contracts that have an anticipated value required to set aside contracts that have an anticipated value
exceeding the simplified
exceeding the simplified
acquisition threshold exclusively for acquisition threshold exclusively for
small smal businesses businesses
when there is a reasonable expectation by the contracting officer that offers when there is a reasonable expectation by the contracting officer that offers
will wil be obtained by at least two responsible be obtained by at least two responsible
small smal businesses offering the products of businesses offering the products of
different different
small smal businesses (Rule of Two) and the award businesses (Rule of Two) and the award
will wil be made at a fair be made at a fair
market price;64 market price;64
may similarly set aside contracts exceeding the simplified acquisition threshold
may similarly set aside contracts exceeding the simplified acquisition threshold
for competition reserved for specific types of
for competition reserved for specific types of
small smal businesses (e.g., 8(a) businesses (e.g., 8(a)
small smal businesses, HUBZone businesses, HUBZone
small smal businesses, WOSBs and SDVOSBs);65 businesses, WOSBs and SDVOSBs);65
may enter into negotiations directly with particular types of
may enter into negotiations directly with particular types of
small smal businesses businesses
(e.g., a sole-source award) when the award could not otherwise be made (e.g.,
(e.g., a sole-source award) when the award could not otherwise be made (e.g.,
only a single source is available or under urgent and only a single source is available or under urgent and
compellingcompel ing circumstances);66 and circumstances);66 and
are required to grant HUBZone
are required to grant HUBZone
small smal businesses a price evaluation preference of businesses a price evaluation preference of
not more than 10% in open and unrestricted competitions.67
not more than 10% in open and unrestricted competitions.67
SBA Contracting Programs68
Several SBA programs assist Several SBA programs assist
small smal businesses in obtaining and performing federal contracts and businesses in obtaining and performing federal contracts and
subcontracts. These include various prime contracting programs; subcontracting programs; and subcontracts. These include various prime contracting programs; subcontracting programs; and
other assistance (e.g., contracting technical training assistance and oversight of the federal other assistance (e.g., contracting technical training assistance and oversight of the federal
small smal
business goaling program and the Surety Bond Guarantee program). business goaling program and the Surety Bond Guarantee program).
63 15 U.S.C.
63 15 U.S.C. §644(j)(1). As mentioned previously, certain regulations implementing this provision of the Small §644(j)(1). As mentioned previously, certain regulations implementing this provision of the Small
BusinessBusiness
Act effectively narrows its scope. For example, certain small businessAct effectively narrows its scope. For example, certain small business
contracts awardedcontracts awarded
or performed or performed
overseas are not necessarily requiredoverseas are not necessarily required
to be setto be set
aside aside for small businesses,for small businesses,
and the small businessand the small business
provisions contained in provisions contained in
Part 19 of the FAR generally do not apply to blanket purchase agreements and orders placedPart 19 of the FAR generally do not apply to blanket purchase agreements and orders placed
against Federalagainst Federal
Supply Supply
ScheduleSchedule
contracts. contracts.
64 15 U.S.C.64 15 U.S.C.
§644(a). A set-aside is commonly used to refer to a competition in which only small businesses§644(a). A set-aside is commonly used to refer to a competition in which only small businesses
may may
compete. However, some setcompete. However, some set
-asides-asides
involve small purchasesinvolve small purchases
that may be made by means of simplified acquisition that may be made by means of simplified acquisition
procedures that entail less than “full and open competition,” and by sealedprocedures that entail less than “full and open competition,” and by sealed
bidding bidding or contracting by negotiation that is or contracting by negotiation that is
more commonly associated with setmore commonly associated with set
-asides of larger contracts. -asides of larger contracts.
65 15 U.S.C.
65 15 U.S.C.
§637(a) for 8(a) participants; 15 U.S.C. §657a for HUBZone small businesses;§637(a) for 8(a) participants; 15 U.S.C. §657a for HUBZone small businesses;
15 U.S.C.15 U.S.C.
§637(m) for §637(m) for
WOSBs;WOSBs;
and 15 U.S.C.and 15 U.S.C.
§657f for SDVOSBs. §657f for SDVOSBs.
66 15 U.S.C.66 15 U.S.C.
§637(a) for 8(a) participants; 15 U.S.C. §657a for HUBZone small businesses;§637(a) for 8(a) participants; 15 U.S.C. §657a for HUBZone small businesses;
15 U.S.C.15 U.S.C.
§637(m) for §637(m) for
WOSBs;WOSBs;
and 15 U.S.C.and 15 U.S.C.
§657f for SDVOSBs. §657f for SDVOSBs.
67 15 U.S.C.
67 15 U.S.C.
§657a(b)(3). §657a(b)(3).
68 68
TheseT hese programs apply government programs apply government
-wide but are implemented under the authority of the Small Business-wide but are implemented under the authority of the Small Business
Act, Act,
pursuant to regulations promulgated by the SBApursuant to regulations promulgated by the SBA
that determine, in part, eligibility forthat determine, in part, eligibility for
the programs. the programs.
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Prime Contracting Programs
Several contracting programs Several contracting programs
allow small al ow smal businesses to compete only with similar firms for businesses to compete only with similar firms for
government contracts or receive sole-source awards in circumstances in which such awards could government contracts or receive sole-source awards in circumstances in which such awards could
not be made to other firms. These programs provide not be made to other firms. These programs provide
small smal businesses an opportunity to win businesses an opportunity to win
government contracts without having to compete against larger and more experienced companies. government contracts without having to compete against larger and more experienced companies.
8(a) Program69
The 8(a) Business Development Program (commonly known as the 8(a) Program) provides
The 8(a) Business Development Program (commonly known as the 8(a) Program) provides
business development assistance to businesses owned and controlled by persons who are business development assistance to businesses owned and controlled by persons who are
socially and economicallysocial y
and economical y disadvantaged, have good character, and demonstrate a potential for success.70 disadvantaged, have good character, and demonstrate a potential for success.70
Although the 8(a) Program was
Although the 8(a) Program was
originallyoriginal y established for the benefit of disadvantaged established for the benefit of disadvantaged
individuals, in the 1980s, Congress expanded the program to include individuals, in the 1980s, Congress expanded the program to include
small smal businesses owned by businesses owned by
four disadvantaged groups. four disadvantaged groups.
Small Smal businesses owned by Alaska Native Corporations (ANCs), businesses owned by Alaska Native Corporations (ANCs),
Community Development Corporations (CDCs), Indian tribes, and Native Community Development Corporations (CDCs), Indian tribes, and Native
HawaiianHawai an Organizations (NHOs) are also eligibleOrganizations (NHOs) are also eligible
to participate in the 8(a) Program under somewhat to participate in the 8(a) Program under somewhat
different requirements. different requirements.
For
For
individually owned small individual y owned smal businesses, African Americans, Hispanics, Native Americans businesses, African Americans, Hispanics, Native Americans
(including American Indians, Eskimos, Aleuts, and Native (including American Indians, Eskimos, Aleuts, and Native
HawaiiansHawai ans), Asian-Pacific Americans, ), Asian-Pacific Americans,
and Subcontinent Asian Americans are presumed to be and Subcontinent Asian Americans are presumed to be
socially and economicallysocial y and economical y disadvantaged.71 Other individuals can also qualify as disadvantaged.71 Other individuals can also qualify as
socially and economicallysocial y and economical y disadvantaged disadvantaged
on a case-by-case basis.on a case-by-case basis.
The SBA uses a three-part test for determining economic disadvantage relating to the degree of
The SBA uses a three-part test for determining economic disadvantage relating to the degree of
applicant’s diminished credit and capital opportunities: applicant’s diminished credit and capital opportunities:
1. net worth of less than $750,000 (excluding ownership interest in the applicant’s
1. net worth of less than $750,000 (excluding ownership interest in the applicant’s
business, equity in their primary personal residence, and funds invested in an
business, equity in their primary personal residence, and funds invested in an
official retirement account); official retirement account);
2.
2.
generally general y no more than $350,000 in average adjusted gross income over the no more than $350,000 in average adjusted gross income over the
preceding three years; and
preceding three years; and
69 For additional information and analysis, see CRS69 For additional information and analysis, see CRS
Report R44844, Report R44844,
SBA’s “8(a) Program”: Overview, History, and
Current Issues,,
by Robert Jay Dilger. by Robert Jay Dilger.
70 Section 8(a) of the Small
70 Section 8(a) of the Small
Business Business Act, P.L. 85-536, as amended, can be found at 15 U.S.C.Act, P.L. 85-536, as amended, can be found at 15 U.S.C.
§637(a). Regulations are §637(a). Regulations are
in 13 C.F.R. §124. in 13 C.F.R. §124.
TheT he 8(a) Program takes its name from one of the sections of the Small Business Act that authorizes it. The program is also 8(a) Program takes its name from one of the sections of the Small Business Act that authorizes it. The program is also
governed by Section 7(j) of the act. The Clinton Administration changed the program’s name from the Minority Small governed by Section 7(j) of the act. The Clinton Administration changed the program’s name from the Minority Small
Business and Capital Ownership Development Program to the 8(a) Business Development program in 1988 “to emphasize that Business and Capital Ownership Development Program to the 8(a) Business Development program in 1988 “to emphasize that
individuals need not be members of minority groups and to stress the importance of assisting participating firms in their individuals need not be members of minority groups and to stress the importance of assisting participating firms in their
overall business development.” See SBA, “Small Business Size Regulations: 8(a) Business Development/Small overall business development.” See SBA, “Small Business Size Regulations: 8(a) Business Development/Small
Disadvantaged Business Status Determinations; Rules of Procedure Governing Cases Before the Office of Hearings and Disadvantaged Business Status Determinations; Rules of Procedure Governing Cases Before the Office of Hearings and
Appeals,” 63 Appeals,” 63
Federal Register 35727, June 30, 1998.35727, June 30, 1998.
71 Asian Pacific Americans are those whose country of origin is Burma,71 Asian Pacific Americans are those whose country of origin is Burma,
Thailand T hailand, Malaysia, Indonesia, Singapore, , Malaysia, Indonesia, Singapore,
Brunei, Japan, China (includingBrunei, Japan, China (including
Hong Kong), Hong Kong),
TaiwanT aiwan, Laos, Cambodia,, Laos, Cambodia,
Vietnam, Korea, the Philippines, U.S. Vietnam, Korea, the Philippines, U.S.
Trust TerritoryT rust T erritory of the Pacific Islands (Republic of the Pacific Islands (Republic
of Palau), Republicof Palau), Republic
of the Marshall Islands, Federated States of Micronesia, of the Marshall Islands, Federated States of Micronesia,
Commonwealth of the Northern Mariana Islands, Guam,Commonwealth of the Northern Mariana Islands, Guam,
Samoa, Macao, Fiji, Samoa, Macao, Fiji,
TongaT onga, Kiribati, , Kiribati,
TuvaluT uvalu, or Nauru. , or Nauru.
Subcontinent Asian Americans are those whose country of origin isSubcontinent Asian Americans are those whose country of origin is
India, Pakistan, Bangladesh, SriIndia, Pakistan, Bangladesh, Sri
Lanka, Bhutan, the Lanka, Bhutan, the
MaldivesMaldives
Islands, or Nepal. 13 C.F.R. §124.103(b). Islands, or Nepal. 13 C.F.R. §124.103(b).
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3. no more than $6
3. no more than $6
million mil ion in assets (excluding funds invested in an official in assets (excluding funds invested in an official
retirement account).72
retirement account).72
For group-owned
For group-owned
small smal businesses, by statute, ANCs are deemed to be businesses, by statute, ANCs are deemed to be
economicallyeconomical y disadvantaged, and CDCs are similarly treated as disadvantaged, and CDCs are similarly treated as
economicallyeconomical y disadvantaged. In contrast, Indian disadvantaged. In contrast, Indian
tribes and NHOs must establish economic disadvantage. tribes and NHOs must establish economic disadvantage.
Federal agencies are authorized to award contracts for goods or services, or to perform
Federal agencies are authorized to award contracts for goods or services, or to perform
construction work, to the SBA for subcontracting to 8(a) firms. The SBA is authorized to delegate construction work, to the SBA for subcontracting to 8(a) firms. The SBA is authorized to delegate
the function of executing contracts to the procuring agencies and often does so. Once the SBA has the function of executing contracts to the procuring agencies and often does so. Once the SBA has
accepted a contract for the 8(a) Program, the contract is awarded through either a set-aside or on a accepted a contract for the 8(a) Program, the contract is awarded through either a set-aside or on a
sole-source basis, with the contract amount sole-source basis, with the contract amount
generallygeneral y determining the acquisition method used. determining the acquisition method used.
For For
individually owned small individual y owned smal businesses, when the contract’s anticipated total value, including businesses, when the contract’s anticipated total value, including
any options, is $4.5 any options, is $4.5
million mil ion or less ($7.5 or less ($7.5
million mil ion or less for manufacturing contracts), the contract or less for manufacturing contracts), the contract
is is
normallynormal y awarded without competition (as a sole-source award).73 In contrast, when the awarded without competition (as a sole-source award).73 In contrast, when the
contract’s anticipated value exceeds these thresholds, the contract contract’s anticipated value exceeds these thresholds, the contract
generallygeneral y must be awarded via must be awarded via
a set-aside with competition limited to 8(a) firms so long as there is a reasonable expectation that a set-aside with competition limited to 8(a) firms so long as there is a reasonable expectation that
at least two eligibleat least two eligible
and responsible 8(a) firms and responsible 8(a) firms
will wil submit offers and the award can be made at submit offers and the award can be made at
fair market price.74fair market price.74
Similar to other participants, firms owned by ANCs, CDCs, NHOs, and Indian tribes are eligible
Similar to other participants, firms owned by ANCs, CDCs, NHOs, and Indian tribes are eligible
for 8(a) set-asides and may receive sole-source awards valued at $4.5 for 8(a) set-asides and may receive sole-source awards valued at $4.5
millionmil ion or less ($7.5 or less ($7.5
millionmil ion or less for manufacturing contracts). However, firms owned by ANCs and Indian tribes can also or less for manufacturing contracts). However, firms owned by ANCs and Indian tribes can also
receive sole-source awards in excess of $4.5 receive sole-source awards in excess of $4.5
millionmil ion ($7.5 ($7.5
millionmil ion for manufacturing contracts) for manufacturing contracts)
even when contracting officers reasonably expect that at least two eligible and responsible 8(a) even when contracting officers reasonably expect that at least two eligible and responsible 8(a)
firms firms
will wil submit offers and the award can be made at fair market price.75 NHO-owned firms may submit offers and the award can be made at fair market price.75 NHO-owned firms may
receive sole-source awards from the Department of Defense under the same conditions.76 receive sole-source awards from the Department of Defense under the same conditions.76
The SBA also provides technical assistance and training to 8(a) firms. Firms
The SBA also provides technical assistance and training to 8(a) firms. Firms
generallygeneral y participate participate
in the 8(a) Program for no more than nine years. In an effort to assist in the 8(a) Program for no more than nine years. In an effort to assist
small smal businesses adversely businesses adversely
72 SBA, “Women-Owned Small Business and Economically Disadvantaged Women-Owned Small Business Certification,” 85 72 SBA, “Women-Owned Small Business and Economically Disadvantaged Women-Owned Small Business Certification,” 85
Federal Register 27650-27665, May 11, 2020. 27650-27665, May 11, 2020.
73
73
TheT he Federal Acquisition Regulatory Council has the responsibility of adjusting Federal Acquisition Regulatory Council has the responsibility of adjusting
each acquisitioneach acquisition
-related dollar -related dollar
threshold (includingthreshold (including
those for the 8(a), HUBZone, Service-Disabledthose for the 8(a), HUBZone, Service-Disabled
Veteran-Owned,Veteran-Owned,
and Women-Owned Small and Women-Owned Small
BusinessBusiness
contracting programs), on October 1, of each year that is evenly divisiblecontracting programs), on October 1, of each year that is evenly divisible
by five. by five.
TheT he next adjustment for next adjustment for
inflation will take place on October 1, 2025. See 13 C.F.R. §124.506(a); and 41 U.S.C.inflation will take place on October 1, 2025. See 13 C.F.R. §124.506(a); and 41 U.S.C.
§1980. §1980.
74 15 U.S.C.74 15 U.S.C.
§637(a)(1)(D)(ii); and SBA,§637(a)(1)(D)(ii); and SBA,
“Conforming Statutory Amendments and “Conforming Statutory Amendments and
TechnicalT echnical Corrections to Small Corrections to Small
BusinessBusiness
Government Contracting Regulations,” 83Government Contracting Regulations,” 83
Federal Register 12849, March 26, 2018. 12849, March 26, 2018.
75 P.L. 100-656, §602(a), 102 Stat. 3887-88 (November 15, 1988) (codified at 15 U.S.C.75 P.L. 100-656, §602(a), 102 Stat. 3887-88 (November 15, 1988) (codified at 15 U.S.C.
§637 note); and 48 C.F.R. §637 note); and 48 C.F.R.
§19.805-1(b)(2). §19.805-1(b)(2).
P.L. 111-84, the National Defense Authorization Act for Fiscal Year 2010, required
P.L. 111-84, the National Defense Authorization Act for Fiscal Year 2010, required
federal contracting officers to federal contracting officers to
execute written justifications and obtain approval for sole-source contracts in excess of $20 million awardedexecute written justifications and obtain approval for sole-source contracts in excess of $20 million awarded
under under the the
authority of §8(a) analogous to those required for sole-source contracts awarded underauthority of §8(a) analogous to those required for sole-source contracts awarded under
the general contracting the general contracting
authorities. authorities.
TheT he $20 million threshold was increased $20 million threshold was increased
through a regulatory update to $22 million, effective October 1, through a regulatory update to $22 million, effective October 1,
2015, to account for inflation and to $100 million by P.L. 116-92, the National Defense Authorization Act for Fiscal 2015, to account for inflation and to $100 million by P.L. 116-92, the National Defense Authorization Act for Fiscal
Year 2020.Year 2020.
76 DOD’s authority to make sole-source awards
76 DOD’s authority to make sole-source awards
to NHO-owned firms of contracts exceeding $4.5 million ($7.5 million to NHO-owned firms of contracts exceeding $4.5 million ($7.5 million
for manufacturing contracts) even if contracting officers reasonably expect that offers will be received from at least two for manufacturing contracts) even if contracting officers reasonably expect that offers will be received from at least two
responsible small businessesresponsible small businesses
existed on a temporary basis in 2004existed on a temporary basis in 2004
-2006, and became permanent in 2006. See P.L. 109--2006, and became permanent in 2006. See P.L. 109-
148, Department of Defense, Emergency Supplemental Appropriations to Address Hurricanes in the Gulf148, Department of Defense, Emergency Supplemental Appropriations to Address Hurricanes in the Gulf
of Mexico, of Mexico,
and Pandemic Influenza Act of 2006, §8020, 119 Stat. 2702and Pandemic Influenza Act of 2006, §8020, 119 Stat. 2702
-03 (December 30, 2005); 48 C.F.R. §219.805-03 (December 30, 2005); 48 C.F.R. §219.805
-1(b)(2)(A)--1(b)(2)(A)-
(B). (B).
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affected by the COVID-19 pandemic, P.L. 116-260, the Economic Aid to Hard-Hit
affected by the COVID-19 pandemic, P.L. 116-260, the Economic Aid to Hard-Hit
Small Smal Businesses, Nonprofits, and Venues Act (Division N, Title III of the Consolidated Appropriations Businesses, Nonprofits, and Venues Act (Division N, Title III of the Consolidated Appropriations
Act of 2021), provides businesses participating in the 8(a) program on or before September 9, Act of 2021), provides businesses participating in the 8(a) program on or before September 9,
2020, the option to extend their participation in the program for one year. 2020, the option to extend their participation in the program for one year.
In
In
FY2019FY2020, the federal government awarded $, the federal government awarded $
30.4 billion34.0 bil ion to 8(a) firms: to 8(a) firms:
$18.5 billion
$20.4 bil ion was awarded with an 8(a) preference ($was awarded with an 8(a) preference ($
8.6 billion9.3 bil ion through an 8(a) through an 8(a)
set-aside and $
set-aside and $
9.9 billion 11.1 bil ion through an 8(a) sole-source award); through an 8(a) sole-source award);
$
$
5.4 billion 2.2 bil ion was awarded to an 8(a) firm in open competition with other firms; was awarded to an 8(a) firm in open competition with other firms;
and
and
$
$
6.4 billion 11.4 bil ion was awarded with another was awarded with another
small smal business preference (e.g., set-business preference (e.g., set-
asides
asides and sole-source awards for and sole-source awards for
small businesses generallysmal businesses general y and for HUBZone firms, and for HUBZone firms,
women-owned women-owned
small smal businesses, and service-disabled veteran-owned businesses, and service-disabled veteran-owned
small smal businesses).77 businesses).77
Historically Underutilized Business Zone Program78
This program assists
This program assists
small smal businesses located in businesses located in
HistoricallyHistorical y Underutilized Underutilized
Business Zones Business Zones
(HUBZones) through set-asides, sole-source awards (so long as the award can be made at a fair (HUBZones) through set-asides, sole-source awards (so long as the award can be made at a fair
and reasonable price, and the anticipated total value of the contract, including any options, is $4.5 and reasonable price, and the anticipated total value of the contract, including any options, is $4.5
million mil ion or less, or $7.5 or less, or $7.5
million mil ion or less for manufacturing contracts) and price evaluation or less for manufacturing contracts) and price evaluation
preferences (of up to 10%) in full and open competitions.79 The HUBZone program targets preferences (of up to 10%) in full and open competitions.79 The HUBZone program targets
assistance to assistance to
small smal businesses located in areas with low income, high poverty, or high businesses located in areas with low income, high poverty, or high
unemployment.80 To be certified as a HUBZoneunemployment.80 To be certified as a HUBZone
small smal business, at least 35% of the business, at least 35% of the
small smal
business’s employees must business’s employees must
generallygeneral y reside in a HUBZone. reside in a HUBZone.
In FY2019
In FY2020, the federal government awarded $, the federal government awarded $
11.5 billion13.6 bil ion to HUBZone-certified to HUBZone-certified
small smal
businesses:businesses:
$2.
$2.
0 billion 1 bil ion was awarded with a HUBZone preference ($was awarded with a HUBZone preference ($
1.9 billion2.0 bil ion through a through a
HUBZone
HUBZone
set-aside, $set-aside, $
95.0 million67.5 mil ion through a HUBZone through a HUBZone
sole-source award and sole-source award and
$$
72.5 million 48.5 mil ion through a HUBZonethrough a HUBZone
price-evaluation preference);price-evaluation preference);
$2.8 billion
$4.0 bil ion was awarded to HUBZone-certified was awarded to HUBZone-certified
small smal businesses in open businesses in open
competition with other firms; and
competition with other firms; and
$
$
6.7 billion 7.5 bil ion was awarded with another was awarded with another
small smal business preference (e.g., set-asides business preference (e.g., set-asides
and sole-source awards for
and sole-source awards for
small businesses generallysmal businesses general y and for 8(a), women- and for 8(a), women-
owned, and service-disabled veteran-owned owned, and service-disabled veteran-owned
small smal businesses).81 businesses).81
77 U.S. General Services Administration (GSA), Federal Procurement Data System—Next Generation, August 13, 2020, at https://www.fpds.gov/fpdsng/
77 Data generated using U.S. General Services Administration (GSA), “Sam.Gov data bank,” August 2, 2021, at https://sam.gov/reports/awards/adhoc. .
78 For additional information and analysis, see CRS
78 For additional information and analysis, see CRS
Report R41268, Report R41268,
Small Business Administration HUBZone
Program , by Robert Jay Dilger. , by Robert Jay Dilger.
79 15 U.S.C.79 15 U.S.C.
§657a(b)(2-3); and 41 U.S.C.§657a(b)(2-3); and 41 U.S.C.
§1980. §1980.
80 For specific criteria, see 15 U.S.C.80 For specific criteria, see 15 U.S.C.
§632(p)(4); and 13 C.F.R. §126.103. §632(p)(4); and 13 C.F.R. §126.103.
81 81
GSA, Federal Procurement Data System—Next Generation, August 13, 2020, at https://www.fpds.gov/fpdsng/Data generated using GSA, “Sam.Gov data bank,” July 31, 2021, at https://sam.gov/reports/awards/adhoc. .
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Service-Disabled Veteran-Owned Small Business Program
This program
This program
allowsal ows agencies to set aside contracts for SDVOSBs.82 Also, federal agencies may agencies to set aside contracts for SDVOSBs.82 Also, federal agencies may
award sole-source contracts to SDVOSBs so long as the award can be made at a fair and award sole-source contracts to SDVOSBs so long as the award can be made at a fair and
reasonable price, and the anticipated total value of the contract, including any options, is $4 reasonable price, and the anticipated total value of the contract, including any options, is $4
million mil ion or less ($7 or less ($7
million mil ion or less for manufacturing contracts).83 For purposes of this program, or less for manufacturing contracts).83 For purposes of this program,
veterans and service-related disabilities are defined as they are under the statutes governing veterans and service-related disabilities are defined as they are under the statutes governing
veterans affairs.84 veterans affairs.84
In FY2019In FY2020, the federal government awarded $, the federal government awarded $
23.6 billion26.1 bil ion to SDVOSBs: to SDVOSBs:
$9.
$9.
0 billion 7 bil ion was awarded with a SDVOSB preference ($was awarded with a SDVOSB preference ($
8.8 billion9.4 bil ion through a through a
SDVOSB set-aside and $
SDVOSB set-aside and $
274.8 million281.9 mil ion through a SDVOSB sole-source award); through a SDVOSB sole-source award);
$
$
6.9 billion 8.4 bil ion was awarded to a SDVOSB in open competition with other firms; was awarded to a SDVOSB in open competition with other firms;
and
and
$
$
7.6 billion 8.0 bil ion was awarded with another was awarded with another
small smal business preference (e.g., set-asides business preference (e.g., set-asides
and sole-source awards for
and sole-source awards for
small businesses generallysmal businesses general y and for HUBZone and for HUBZone
firms, firms,
8(a) firms, and WOSBs).85 8(a) firms, and WOSBs).85
Women-Owned Small Business Program86
Under this program, contracts may be set aside for
Under this program, contracts may be set aside for
economicallyeconomical y disadvantaged WOSBs in disadvantaged WOSBs in
industries in which women are underrepresented and industries in which women are underrepresented and
substantiallysubstantial y underrepresented.87 Federal underrepresented.87 Federal
agencies may award sole-source contracts to WOSBs so long as the award can be made at a fair agencies may award sole-source contracts to WOSBs so long as the award can be made at a fair
82 A service-disabled82 A service-disabled
veteran “is a person who served in the active military, naval, or air service, and who was veteran “is a person who served in the active military, naval, or air service, and who was
dischargeddischarged
or released underor released under
conditions other than dishonorable, and whose disabilityconditions other than dishonorable, and whose disability
was was incurred or aggravatedincurred or aggravated
in in
line of duty in the active military, naval, or air service.” line of duty in the active military, naval, or air service.”
ToT o be considered a service-disabled be considered a service-disabled
veteran, “veteran, “
the veteran must the veteran must
have an adjudicationhave an adjudication
letter from the Veterans Administration (VA), a Department of Defense Form 214, Certificate of letter from the Veterans Administration (VA), a Department of Defense Form 214, Certificate of
ReleaseRelease
or Discharge from Active Duty, or a Statement of or Discharge from Active Duty, or a Statement of
ServiceServ ice from the National Archives and Records from the National Archives and Records
Administration, stating that the veteran has a service-connected disability.” Administration, stating that the veteran has a service-connected disability.”
ThereT here is no minimum disability is no minimum disability
rating rating
threshold. Also, the businessthreshold. Also, the business
must be small, as definedmust be small, as defined
in section 3(q) of the Small Businessin section 3(q) of the Small Business
Act Act (15 U.S.C.(15 U.S.C.
§632(q)) §632(q))
and the SBA’sand the SBA’s
implementing regulations (13 C.F.R. §125). Seeimplementing regulations (13 C.F.R. §125). See
Department of Veterans Affairs, Office of Small Department of Veterans Affairs, Office of Small
BusinessBusiness
Programs, “Service-DisabledPrograms, “Service-Disabled
Veteran-Owned SmallVeteran-Owned Small
Business,”Business,”
at https://business.defense.gov/Small-at https://business.defense.gov/Small-
Business/Business/
SDVOSBSDVO SB/. /.
83 15 U.S.C.
83 15 U.S.C.
§657f(a-b); and 41 U.S.C.§657f(a-b); and 41 U.S.C.
§1980. §1980.
84 38 U.S.C.84 38 U.S.C.
§8127(f). Veteran-owned small businesses§8127(f). Veteran-owned small businesses
and service-disabledand service-disabled
veteran-owned small businessesveteran-owned small businesses
are are
eligibleeligible
for separate preferences in procurements conducted by the Department of Veterans Affairs under the authority for separate preferences in procurements conducted by the Department of Veterans Affairs under the authority
of P.L. 109-461, the Veterans Benefits, Health Care, and Information Technology Act of 2006, as amended by P.L. of P.L. 109-461, the Veterans Benefits, Health Care, and Information Technology Act of 2006, as amended by P.L.
110-389, the Veterans’ Benefits Improvements Act of 2008. 110-389, the Veterans’ Benefits Improvements Act of 2008.
85
85
GSA, Federal Procurement Data System—Next Generation, August 13 2020, at https://www.fpds.gov/fpdsng/Data generated using GSA, “Sam.Gov data bank,” July 31, 2021, at https://sam.gov/reports/awards/adhoc. .
86 For further information and analysis of the WOSB86 For further information and analysis of the WOSB
federal contacting program, see CRSfederal contacting program, see CRS
Report R46322, Report R46322,
SBA
Women-Owned SmallWom en-Owned Sm all Business Federal Contracting Program , by Robert Jay Dilger. , by Robert Jay Dilger.
87
87
TheT he SBA SBA
has identified 364 six-digit North American Industry Classification System (NAICS)has identified 364 six-digit North American Industry Classification System (NAICS)
industry codesindustry codes
(out of (out of
1,023) in which federal agencies may set aside1,023) in which federal agencies may set aside
federal contracts exceeding the micro-purchase threshold (currently federal contracts exceeding the micro-purchase threshold (currently
$10,000) exclusively for WOSBs$10,000) exclusively for WOSBs
(including(including
economically disadvantaged WOSBs)economically disadvantaged WOSBs)
because because those industries were those industries were
identified as ones in which WOSBsidentified as ones in which WOSBs
are substantially underrepresented. are substantially underrepresented.
TheT he SBA SBA
has also identified 80 sixhas also identified 80 six
-digit -digit
NAICSNAICS
industry codesindustry codes
(out of 1,023) that may be set aside exclusively for economically disadvantaged(out of 1,023) that may be set aside exclusively for economically disadvantaged
WOSBs WOSBs
becausebecause
those industriesthose industries
were identified as ones in whichwere identified as ones in which
WOSBs WOSBs are underrepresented. Seeare underrepresented. See
SBA,SBA,
“Qualifying NAICS “Qualifying NAICS
for the Women-Owned Smallfor the Women-Owned Small
Business Federal Business Federal Contracting program,” effective October 1, 2017, at Contracting program,” effective October 1, 2017, at
https://www.sba.gov/document/supporthttps://www.sba.gov/document/support
-- —qualifying-naics-women-owned-small-business-federal-contracting-program. qualifying-naics-women-owned-small-business-federal-contracting-program.
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and reasonable price, and the anticipated total value of the contract, including any options, is $4.5
and reasonable price, and the anticipated total value of the contract, including any options, is $4.5
million
mil ion or less ($7 or less ($7
million mil ion or less for manufacturing contracts).88 or less for manufacturing contracts).88
To be eligibleTo be eligible
for the WOSB program, a business must be for the WOSB program, a business must be
smallsmal , as determined by the SBA; , as determined by the SBA;
at least 51% owned and controlled by women who are U.S. citizens; at least 51% owned and controlled by women who are U.S. citizens;
have women manage the day-to-day operations and also make long-term have women manage the day-to-day operations and also make long-term
decisions; and
decisions; and
be certified by a federal agency, a state government, the SBA, or a national
be certified by a federal agency, a state government, the SBA, or a national
certifying entity approved by the SBA.89
certifying entity approved by the SBA.89
To qualify as an
To qualify as an
economicallyeconomical y disadvantaged WOSB, the owner must also demonstrate that her disadvantaged WOSB, the owner must also demonstrate that her
abilityability
to compete in the free enterprise system has been impaired due to diminished capital and to compete in the free enterprise system has been impaired due to diminished capital and
credit opportunities as compared with others in the same or similar line of business. The SBA credit opportunities as compared with others in the same or similar line of business. The SBA
uses the same three-part test used in the 8(a) Program to determine economic disadvantage uses the same three-part test used in the 8(a) Program to determine economic disadvantage
relating to the degree of the applicant’s diminished credit and capital opportunities: relating to the degree of the applicant’s diminished credit and capital opportunities:
1. net worth of less than $750,000 (excluding ownership interest in the applicant’s
1. net worth of less than $750,000 (excluding ownership interest in the applicant’s
business, equity in their primary personal residence, and funds invested in an
business, equity in their primary personal residence, and funds invested in an
official retirement account); official retirement account);
2.
2.
generally general y no more than $350,000 in average adjusted gross income over the no more than $350,000 in average adjusted gross income over the
preceding three years; and
preceding three years; and
3. no more than $6
3. no more than $6
million mil ion in assets (excluding funds invested in an official in assets (excluding funds invested in an official
retirement account).90
retirement account).90
In
In
FY2019FY2020, the federal government awarded $, the federal government awarded $
25.5 billion27.2 bil ion to WOSBs: to WOSBs:
$1.
$1.
1 billion 2 bil ion was awarded with a WOSB preference ($was awarded with a WOSB preference ($
108.6 million1.1 bil ion through a through a
WOSB
WOSB
sole-sourceset-aside award and $ award and $
971.7 million116.1 mil ion through a WOSB through a WOSB
set-asidesole-source award); award);
$9.
$9.
0 billion 3 bil ion was awarded to a WOSB in open competition with other firms; and was awarded to a WOSB in open competition with other firms; and
$ $
15.4 billion 16.6 bil ion was awarded with another was awarded with another
small smal business preference (e.g., set-business preference (e.g., set-
asides and sole-source awards for
asides and sole-source awards for
small businesses generallysmal businesses general y and for HUBZone and for HUBZone
firms, 8(a) firms, and SDVOSBs).91 firms, 8(a) firms, and SDVOSBs).91
Subcontracting Programs
Federal contracting officers are required to provide the SBA’s PCR (or, if a PCR is not assigned, Federal contracting officers are required to provide the SBA’s PCR (or, if a PCR is not assigned,
the SBA Area Office serving the procuring activity area) a “reasonable period of time” to review the SBA Area Office serving the procuring activity area) a “reasonable period of time” to review
any solicitation requiring submission of a any solicitation requiring submission of a
small smal business subcontracting plan and to submit business subcontracting plan and to submit
advisory findings before the solicitation is issued.92 The PCR’s advisory comments regarding the advisory findings before the solicitation is issued.92 The PCR’s advisory comments regarding the
88 15 U.S.C.
88 15 U.S.C. §637(m); and 41 U.S.C.§637(m); and 41 U.S.C.
§1980. §1980.
89 15 U.S.C.89 15 U.S.C.
§632(n); 15 U.S.C.§632(n); 15 U.S.C.
§637(m)(2); and 13 C.F.R. §127.200. §637(m)(2); and 13 C.F.R. §127.200.
90 SBA, “Women-Owned Small Business and Economically Disadvantaged Women-Owned Small Business Certification,” 85 90 SBA, “Women-Owned Small Business and Economically Disadvantaged Women-Owned Small Business Certification,” 85
Federal Register 27650-27665, May 11, 2020. 27650-27665, May 11, 2020.
91
91
GSA, Federal Procurement Data System—Next Generation, August 13, 2020, at https://www.fpds.gov/fpdsng/. 92 FAR Data generated using GSA, “Sam.Gov data bank,” July 31, 2021, at https://sam.gov/reports/awards/adhoc. 92 FAR §19.705-3. §19.705-3.
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small smal business subcontracting plan’s acceptability must be submitted, in writing, to the business subcontracting plan’s acceptability must be submitted, in writing, to the
appropriate contracting officer within five working days after the plan’s receipt.93appropriate contracting officer within five working days after the plan’s receipt.93
As mentioned previously, the SBA’s commercial market representatives help prime contractors
As mentioned previously, the SBA’s commercial market representatives help prime contractors
find find
small smal businesses to perform subcontracts; counsel contractors on their responsibility to businesses to perform subcontracts; counsel contractors on their responsibility to
maximize subcontracting opportunities for maximize subcontracting opportunities for
small smal businesses; and conduct periodic reviews, often businesses; and conduct periodic reviews, often
in concert with a SBA PCR, of contractors awarded contracts that require an acceptable in concert with a SBA PCR, of contractors awarded contracts that require an acceptable
small smal
business subcontracting plan.94 business subcontracting plan.94
Other Federal Agency Contracting Programs
Federal agencies may also set aside contracts or make sole-source awards to Federal agencies may also set aside contracts or make sole-source awards to
small smal businesses not businesses not
participating in any other program under certain conditions. participating in any other program under certain conditions.
Department of Transportation and Environmental Protection
Agency Disadvantaged Business Enterprise Programs
The Department of Transportation (DOT) Disadvantaged Business Enterprise (DBE) Program The Department of Transportation (DOT) Disadvantaged Business Enterprise (DBE) Program
began in 1980 as a minority/women’s business enterprise program “established by regulation began in 1980 as a minority/women’s business enterprise program “established by regulation
under the authority of Title VI of the Civilunder the authority of Title VI of the Civil
Rights Act of 1964 and other nondiscrimination Rights Act of 1964 and other nondiscrimination
statutes that apply to DOT financial assistance programs.”95 Congress has reauthorized the DOT statutes that apply to DOT financial assistance programs.”95 Congress has reauthorized the DOT
DBE program several times since its inception; most recently in P.L. 114-94, the Fixing DBE program several times since its inception; most recently in P.L. 114-94, the Fixing
America’s Surface Transportation Act (FAST-Act). America’s Surface Transportation Act (FAST-Act).
The FAST-Act provides, that, except to the extent the Secretary of Transportation determines
The FAST-Act provides, that, except to the extent the Secretary of Transportation determines
otherwise, not less than 10% of the amounts made available for any program under Titles I otherwise, not less than 10% of the amounts made available for any program under Titles I
(federal-aid highways), II (innovative project finance), III (public transportation) and VI (federal-aid highways), II (innovative project finance), III (public transportation) and VI
(innovation) of the act and 23 U.S.C. §403 (highway safety research and development), (innovation) of the act and 23 U.S.C. §403 (highway safety research and development),
shall be shal be
expended with DBEs. DOT also has a separate DBE program for airport concessions.96 expended with DBEs. DOT also has a separate DBE program for airport concessions.96
A DBE is a for-profit
A DBE is a for-profit
small smal business owned and controlled by business owned and controlled by
socially and economicallysocial y and economical y disadvantaged individuals.97 Eligibilitydisadvantaged individuals.97 Eligibility
for the DBE program differs somewhat from the 8(a) for the DBE program differs somewhat from the 8(a)
93 SBA, 93 SBA, “Prime Contracts Program,” SOP 60 02 8, effective October 27, 2013, p. 15, at https://www.sba.gov/sites/“Prime Contracts Program,” SOP 60 02 8, effective October 27, 2013, p. 15, at https://www.sba.gov/sites/
default/files/sops/Prime_Contracts_SOPdefault/files/sops/Prime_Contracts_SOP
-60-02-8.pdf. -60-02-8.pdf.
94 15 U.S.C.94 15 U.S.C.
§633(h)(1). For additional information on subcontracting plan requirements, see FAR§633(h)(1). For additional information on subcontracting plan requirements, see FAR
§19.702(a)(1); and §19.702(a)(1); and
15 U.S.C.15 U.S.C.
§637(d)(3). §637(d)(3).
95 Department of
95 Department of
Transportation (DOTT ransportation (DOT ), “Disadvantaged Business), “Disadvantaged Business
Enterprise (DBE) Program,” at Enterprise (DBE) Program,” at
https://www.transportation.gov/civil-rights/disadvantaged-business-enterprise. https://www.transportation.gov/civil-rights/disadvantaged-business-enterprise.
96 49 C.F.R. Part 23. “As recipients of DOT
96 49 C.F.R. Part 23. “As recipients of DOT
financial assistance, state and local transportation agencies … certify the financial assistance, state and local transportation agencies … certify the
eligibilityeligibility
of DBE firms to participate in their DOTof DBE firms to participate in their DOT
-assisted contracts; establish narrowly-tailored goals for the -assisted contracts; establish narrowly-tailored goals for the
participation of disadvantaged entrepreneurs; and evaluate their DOTparticipation of disadvantaged entrepreneurs; and evaluate their DOT
-assisted contracts throughout the year and -assisted contracts throughout the year and
establish contractestablish contract
-specific DBE subcontracting goals as necessary to achieve the overall goal of the agency….-specific DBE subcontracting goals as necessary to achieve the overall goal of the agency….
DOT DOT is is
responsible for developing the rules and regulations for the national DBE program; providing guidanceresponsible for developing the rules and regulations for the national DBE program; providing guidance
and conducting and conducting
oversight to make sure that these rules and regulations are followed byoversight to make sure that these rules and regulations are followed by
the recipients of DOTthe recipients of DOT
funds; and considering funds; and considering
appeals from state/local certification decisions.” DOTappeals from state/local certification decisions.” DOT
, “Definition of a Disadvantaged Business, “Definition of a Disadvantaged Business
Enterprise,” at Enterprise,” at
https://www.transportation.gov/civil-rights/disadvantaged-business-enterprise/definition-disadvantaged-business-https://www.transportation.gov/civil-rights/disadvantaged-business-enterprise/definition-disadvantaged-business-
enterprise. enterprise.
97 DOT
97 DOT
, “, “
Definition of a Disadvantaged BusinessDefinition of a Disadvantaged Business
Enterprise,” at https://www.transportation.gov/civil-rights/Enterprise,” at https://www.transportation.gov/civil-rights/
disadvantaged-business-enterprise/definition-disadvantaged-business-enterprisedisadvantaged-business-enterprise/definition-disadvantaged-business-enterprise
(hereinafter DOT(hereinafter DOT
, “, “
Definition of a Definition of a
DisadvantagedDisadvantaged
Business Business Enterprise”). Enterprise”).
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program. For example, under the DBE program, women are presumed to be
program. For example, under the DBE program, women are presumed to be
socially and economicallysocial y and economical y disadvantaged individuals. Also, to be regarded as disadvantaged individuals. Also, to be regarded as
economicallyeconomical y disadvantaged, an disadvantaged, an
individual
individual must have a personal net worth (excluding ownership interest in the firm and equity in must have a personal net worth (excluding ownership interest in the firm and equity in
his or her primary personal residence) that does not exceed $1.32 his or her primary personal residence) that does not exceed $1.32
millionmil ion. The DBE. The DBE
must also must also
meet SBAmeet SBA
size criteria and cannot have average annual gross receipts over the preceding three size criteria and cannot have average annual gross receipts over the preceding three
fiscal years that exceed $26.29 fiscal years that exceed $26.29
millionmil ion for participation in Federal Highway Administration and for participation in Federal Highway Administration and
Federal Transit Administration-assisted work. P.L. 115-254, the FAA Reauthorization Act of Federal Transit Administration-assisted work. P.L. 115-254, the FAA Reauthorization Act of
2018, removed the gross receipts cap for Federal Aviation Administration-assisted work. 98 Size 2018, removed the gross receipts cap for Federal Aviation Administration-assisted work. 98 Size
limits for the airport concessions DBE program are higher.99 limits for the airport concessions DBE program are higher.99
The DOT DBE program’s eight objectives are to
The DOT DBE program’s eight objectives are to
1. ensure nondiscrimination in the award and administration of DOT-assisted
1. ensure nondiscrimination in the award and administration of DOT-assisted
contracts in the department’s highway, transit, and airport financial assistance
contracts in the department’s highway, transit, and airport financial assistance
programs; programs;
2. create a level
2. create a level
playing playing field on which DBEs can compete fairly for DOT-assisted field on which DBEs can compete fairly for DOT-assisted
contracts;
contracts;
3. ensure that the department’s DBE program is narrowly tailored in accordance
3. ensure that the department’s DBE program is narrowly tailored in accordance
with applicable law;
with applicable law;
4. ensure that only firms that fully meet the program’s eligibility
4. ensure that only firms that fully meet the program’s eligibility
standards are standards are
permitted to participate as DBEs;
permitted to participate as DBEs;
5. help remove DBE-participation
5. help remove DBE-participation
barriers in DOT-assisted contracts; barriers in DOT-assisted contracts;
6. promote the use of DBEs in
6. promote the use of DBEs in
all al types of types of
federallyfederal y assisted contracts and assisted contracts and
procurement activities conducted by recipients;
procurement activities conducted by recipients;
7. assist the development of firms that can compete successfully in the marketplace
7. assist the development of firms that can compete successfully in the marketplace
outside the DBE program; and
outside the DBE program; and
8. provide appropriate flexibility
8. provide appropriate flexibility
to recipients of federal financial assistance in to recipients of federal financial assistance in
establishing and providing opportunities for DBEs.100
establishing and providing opportunities for DBEs.100
The Environmental Protection Agency (EPA) DBE program was authorized by P.L. 101-549, the
The Environmental Protection Agency (EPA) DBE program was authorized by P.L. 101-549, the
Clean Air Act Amendments of 1990. The act requires the EPA Administrator to award, to the Clean Air Act Amendments of 1990. The act requires the EPA Administrator to award, to the
extent practicable, not less than 10% of the act’s research funding to DBEs. Eligibilityextent practicable, not less than 10% of the act’s research funding to DBEs. Eligibility
for the for the
EPA’s 10% set-aside differs somewhat from the 8(a) program. For example, the act presumes that EPA’s 10% set-aside differs somewhat from the 8(a) program. For example, the act presumes that
Black Americans, Hispanic Americans, Native Americans, Asian Americans, women, and Black Americans, Hispanic Americans, Native Americans, Asian Americans, women, and
disabled Americans are disabled Americans are
sociallysocial y disadvantaged. Also eligible disadvantaged. Also eligible
are historically are historical y black colleges and black colleges and
universities, colleges and universities with at least a 40% Hispanic student body, minority universities, colleges and universities with at least a 40% Hispanic student body, minority
institutions as defined pursuant to the General Education Provision Act, and private and voluntary institutions as defined pursuant to the General Education Provision Act, and private and voluntary
organizations controlled by social and organizations controlled by social and
economicallyeconomical y disadvantaged individuals. disadvantaged individuals.
P.L. 102-389, the Departments of Veterans Affairs and Housing and Urban Development, and
P.L. 102-389, the Departments of Veterans Affairs and Housing and Urban Development, and
Independent Agencies Appropriations Act, 1993, requires the EPA Administrator to award, to the Independent Agencies Appropriations Act, 1993, requires the EPA Administrator to award, to the
98 DOT, “
98 DOT , “ Definition of a Disadvantaged BusinessDefinition of a Disadvantaged Business
Enterprise;” and Department of Enterprise;” and Department of
TransportationT ransportation, “Disadvantaged , “Disadvantaged
BusinessBusiness
Enterprise Program; Inflationary Adjustment,” 85Enterprise Program; Inflationary Adjustment,” 85
Federal Register 80646-80648, December 14, 2020. 80646-80648, December 14, 2020.
99 With a few99 With a few
noted exceptions, businesses participating in the airports concessions DBE program cannot have average noted exceptions, businesses participating in the airports concessions DBE program cannot have average
annual gross receipts over the preceding three fiscal years that exceed $56.42 million. Banks and financial institutions annual gross receipts over the preceding three fiscal years that exceed $56.42 million. Banks and financial institutions
must have no more than $1 billion in assets, car rental companies can have no more than $75.23 million in average must have no more than $1 billion in assets, car rental companies can have no more than $75.23 million in average
annual gross receipts over the preceding three fiscal years, automobile dealersannual gross receipts over the preceding three fiscal years, automobile dealers
may have no more than 350 employees, may have no more than 350 employees,
and pay telephone companies can have no more than 1,500 employees. See 49 C.F.R.and pay telephone companies can have no more than 1,500 employees. See 49 C.F.R.
§23.33. §23.33.
100 49 C.F.R. §26.1. 100 49 C.F.R. §26.1.
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fullest extent possible, at least 8% of federal funding awarded in support of EPA authorized
fullest extent possible, at least 8% of federal funding awarded in support of EPA authorized
programs, including grants, loans, and contracts for wastewater treatment and leaking programs, including grants, loans, and contracts for wastewater treatment and leaking
underground storage tanks, to businesses or other organizations owned or controlled by underground storage tanks, to businesses or other organizations owned or controlled by
socially and economicallysocial y and economical y disadvantaged individuals, including disadvantaged individuals, including
historically historical y black colleges and universities black colleges and universities
and women.and women.
Individuals claiming economic disadvantage status must have an initial and continued personal
Individuals claiming economic disadvantage status must have an initial and continued personal
net worth of less than $750,000. To be certified by the EPA as a DBE, applicants must first net worth of less than $750,000. To be certified by the EPA as a DBE, applicants must first
attempt to be certified by the SBA, DOT, or a tribal, state, or local government, or by an attempt to be certified by the SBA, DOT, or a tribal, state, or local government, or by an
independent private organization. EPA independent private organization. EPA
will wil consider applications for DBE certification only from consider applications for DBE certification only from
firms or organizations that have been denied certification from these aforementioned entities.firms or organizations that have been denied certification from these aforementioned entities.
The EPA DBE program’s four objectives are to The EPA DBE program’s four objectives are to
1. ensure nondiscrimination in the award of contracts under EPA financial
1. ensure nondiscrimination in the award of contracts under EPA financial
assistance agreements;
assistance agreements;
2. operate harmoniously with the U.S. Supreme Court’s decision in
2. operate harmoniously with the U.S. Supreme Court’s decision in
Adarand
Constructors, Inc. v. Pena, 515 U.S. 200 (1995); , 515 U.S. 200 (1995);
3. help remove barriers to the participation of DBEs
3. help remove barriers to the participation of DBEs
in the award of contracts under in the award of contracts under
EPA financial assistance agreements; and
EPA financial assistance agreements; and
4. provide appropriate flexibility
4. provide appropriate flexibility
to recipients of EPA financialto recipients of EPA financial
assistance in assistance in
establishing and providing contracting opportunities for DBEs.101
establishing and providing contracting opportunities for DBEs.101
Contracting Preferences for Indian Tribes and Native American-
Owned and -Controlled Businesses
Several federal programs provide contracting preferences for qualified Indian tribes and Native Several federal programs provide contracting preferences for qualified Indian tribes and Native
American-owned and -controlled businesses. Although these programs are not necessarily American-owned and -controlled businesses. Although these programs are not necessarily
targeted at targeted at
small smal businesses, many Native American-owned and -controlled businesses, many Native American-owned and -controlled
small smal businesses businesses
participate in them. For example, under authority provided by the Buy Indian Act of 1910 (as participate in them. For example, under authority provided by the Buy Indian Act of 1910 (as
amended, 25 U.S.C. §47), the Department of the Interior’s Bureau of Indian Affairs, Bureau of amended, 25 U.S.C. §47), the Department of the Interior’s Bureau of Indian Affairs, Bureau of
Indian Education, and the offices of the Assistant Secretary-Indian Affairs and the Department of Indian Education, and the offices of the Assistant Secretary-Indian Affairs and the Department of
Health and Human Services’ Indian Health Service provide contracting preferences to qualified Health and Human Services’ Indian Health Service provide contracting preferences to qualified
Indian tribes and Native American-owned and -controlled businesses.102 In addition, the Indian tribes and Native American-owned and -controlled businesses.102 In addition, the
Department of Defense’s Indian Incentive Program encourages prime contractors with a Department of Defense’s Indian Incentive Program encourages prime contractors with a
subcontract worth at least $500,000 to subcontract with qualified Indian tribes, Native American-subcontract worth at least $500,000 to subcontract with qualified Indian tribes, Native American-
owned and -controlled businesses, and Native owned and -controlled businesses, and Native
Hawaiian small Hawai an smal businesses by providing a 5% businesses by providing a 5%
rebate on the amount subcontracted to these businesses.103 rebate on the amount subcontracted to these businesses.103
101 Environmental Protection Agency, “101 Environmental Protection Agency, “
Disadvantaged BusinessDisadvantaged Business
Enterprise Program Under EPA Assistance Enterprise Program Under EPA Assistance
Agreements (DBE Program),” at https://www.epa.gov/grants/disadvantaged-business-enterprise-program-under-epa-Agreements (DBE Program),” at https://www.epa.gov/grants/disadvantaged-business-enterprise-program-under-epa-
assistance-agreements-dbe-program. assistance-agreements-dbe-program.
102 GAO,
102 GAO,
Buy Indian Act: Bureau of Indian Affairs and Indian Health Service Need Greater Insight into
ImplementationIm plem entation at Regional Offices, GAO-15-588, July 9, 2015, at https://www.gao.gov/products/GAO-15-588; and , GAO-15-588, July 9, 2015, at https://www.gao.gov/products/GAO-15-588; and
U.S.U.S.
Department of the Interior, Office of Indian Energy and Economic Development, “Department of the Interior, Office of Indian Energy and Economic Development, “
The Buy Indian Opportunity,” The Buy Indian Opportunity,”
at https://www.bia.gov/as-ia/ieed/online-primers-economic-developmentat https://www.bia.gov/as-ia/ieed/online-primers-economic-development
-glance. -glance.
103 U.S.103 U.S.
Department of Defense, Office of Small BusinessDepartment of Defense, Office of Small Business
Programs, “Indian Incentive Program (IIP),” at Programs, “Indian Incentive Program (IIP),” at
https://business.defense.gov/Programs/Indian-Incentive-Program/. https://business.defense.gov/Programs/Indian-Incentive-Program/.
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Subcontracting Programs for Small Disadvantaged Businesses
Other federal programs promote subcontracting with Other federal programs promote subcontracting with
small smal disadvantaged businesses (SDBs). disadvantaged businesses (SDBs).
SDBs include 8(a) participants and other SDBs include 8(a) participants and other
small smal businesses that are at least 51% businesses that are at least 51%
unconditionallyunconditional y owned and controlled by owned and controlled by
socially or economicallysocial y or economical y disadvantaged individuals disadvantaged individuals
or groups. or groups.
Individuals owning and controlling non-8(a) SDBs must Individuals owning and controlling non-8(a) SDBs must
generallygeneral y satisfy the same eligibility satisfy the same eligibility
requirements as 8(a) firms, although they do not apply to the SBA to be designated SDBs in the requirements as 8(a) firms, although they do not apply to the SBA to be designated SDBs in the
same way that 8(a) firms do. same way that 8(a) firms do.
Federal agencies must negotiate “subcontracting plans” with the apparently successful bidder or
Federal agencies must negotiate “subcontracting plans” with the apparently successful bidder or
offeror on eligible prime contracts prior to awarding the contract. Subcontracting plans set goals offeror on eligible prime contracts prior to awarding the contract. Subcontracting plans set goals
for the percentage of subcontract dollars to be awarded to SDBs, among others, and describe for the percentage of subcontract dollars to be awarded to SDBs, among others, and describe
efforts that efforts that
will wil be made to ensure that SDBs “have an equitable opportunity to compete for be made to ensure that SDBs “have an equitable opportunity to compete for
subcontracts.”104 Federal agencies may also consider the extent of subcontracting with SDBs in subcontracts.”104 Federal agencies may also consider the extent of subcontracting with SDBs in
determining to whom to award a contract or give contractors “monetary incentives” to determining to whom to award a contract or give contractors “monetary incentives” to
subcontract with SDBs. subcontract with SDBs.
As of
As of
June 24August 2, 2021, the SBA’s Dynamic , 2021, the SBA’s Dynamic
Small Smal Business Search database included 6,Business Search database included 6,
832818 SBA- SBA-
certified 8(a) firms and certified 8(a) firms and
162,490158,475 self-certified SDBs.105 self-certified SDBs.105
Other Small Business Programs of Interest
The SBA 7(j) Management and Technical Assistance Program
The SBA’s 7(j) Management and Technical Assistance program “provides training to The SBA’s 7(j) Management and Technical Assistance program “provides training to
small smal
businesses that are owned and controlled by businesses that are owned and controlled by
economically and sociallyeconomical y and social y disadvantaged individuals disadvantaged individuals
and and
small smal business located in areas of high unemployment or low income, certified 8(a) and business located in areas of high unemployment or low income, certified 8(a) and
HUBZoneHUBZone
firms, and firms, and
economicallyeconomical y disadvantaged women-owned disadvantaged women-owned
small smal businesses.”106 Training businesses.”106 Training
includes “consulting in a wide range of business activities, including marketing, accounting, includes “consulting in a wide range of business activities, including marketing, accounting,
opportunity development and capture, contract management, compliance, and financial opportunity development and capture, contract management, compliance, and financial
analysis.”107 Eligibleanalysis.”107 Eligible
firms work directly with their respective SBA district office to enroll in the firms work directly with their respective SBA district office to enroll in the
program. program.
In FY2020, the 7(j) Management and Technical Assistance program assisted 9,941
In FY2020, the 7(j) Management and Technical Assistance program assisted 9,941
small smal
businesses.108 businesses.108
SBA Surety Bond Guarantee Program109
The SBA’s Surety Bond Guarantee program aims to increase The SBA’s Surety Bond Guarantee program aims to increase
small smal businesses’ access to federal, businesses’ access to federal,
state, and local government contracting, as state, and local government contracting, as
well wel as private-sector contracts, by guaranteeing bid, as private-sector contracts, by guaranteeing bid,
104 15 U.S.C.
104 15 U.S.C. §637(d)(6)(c). §637(d)(6)(c).
105 SBA,105 SBA,
“Dynamic Small Business“Dynamic Small Business
Search,” at http://dsbs.sba.gov/dsbs/search/dsp_dsbs.cfm.Search,” at http://dsbs.sba.gov/dsbs/search/dsp_dsbs.cfm.
106 SBA,106 SBA,
FY2022 Congressional Justification and FY2020 Annual Performance Report, p. 72, at , p. 72, at
https://www.sba.gov/document/reporthttps://www.sba.gov/document/report
-congressional-budget-justification-annual-performance-report (hereinafter SBA, -congressional-budget-justification-annual-performance-report (hereinafter SBA,
FY2022 Congressional Justification and FY2020 Annual PerformancePerform ance Report). ).
107 SBA,
107 SBA,
FY2022 Congressional Justification and FY2020 Annual Performance Report, p. 72. , p. 72.
108 SBA,108 SBA,
FY2022 Congressional Justification and FY2020 Annual Performance Report, p. 73. , p. 73.
109 For additional information and analysis, see CRS109 For additional information and analysis, see CRS
Report R42037, Report R42037,
SBA Surety Bond Guarantee Program , by Robert , by Robert
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An Overview of Small Business Contracting
performance, and payment bonds for
performance, and payment bonds for
small smal businesses that cannot obtain surety bonds through businesses that cannot obtain surety bonds through
regular commercial channels.110 The program guarantees individual contracts of up to $6.5 regular commercial channels.110 The program guarantees individual contracts of up to $6.5
million
mil ion and up to $10 and up to $10
million mil ion if a federal contracting officer certifies that such a guarantee is if a federal contracting officer certifies that such a guarantee is
necessary. The SBA’s guarantee ranges from not to exceed 80% to not to exceed 90% of the necessary. The SBA’s guarantee ranges from not to exceed 80% to not to exceed 90% of the
surety’s loss if a default occurs.111 In FY2020, the SBA guaranteed 10,577 bid and final surety surety’s loss if a default occurs.111 In FY2020, the SBA guaranteed 10,577 bid and final surety
bonds with a total contract value of nearly $7.2 bonds with a total contract value of nearly $7.2
billionbil ion.112 .112
A surety bond is a three-party instrument between a surety (someone who agrees to be
A surety bond is a three-party instrument between a surety (someone who agrees to be
responsible for the debt or obligation of another), a contractor, and a project owner. The responsible for the debt or obligation of another), a contractor, and a project owner. The
agreement binds the contractor to comply with the terms and conditions of a contract. If the agreement binds the contractor to comply with the terms and conditions of a contract. If the
contractor is unable to successfully perform the contract, the surety assumes the contractor’s contractor is unable to successfully perform the contract, the surety assumes the contractor’s
responsibilities and ensures that the project is completed. The surety bond reduces the risk responsibilities and ensures that the project is completed. The surety bond reduces the risk
associated with contracting.113 associated with contracting.113
Surety bonds are meant to encourage project owners to contract with
Surety bonds are meant to encourage project owners to contract with
small smal businesses that may businesses that may
not have the credit history or prior experience of larger businesses and may be at greater risk of not have the credit history or prior experience of larger businesses and may be at greater risk of
failing to comply with the contract’s terms and conditions.114 failing to comply with the contract’s terms and conditions.114
Surety bonds are important to
Surety bonds are important to
small smal businesses interested in competing for federal contracts businesses interested in competing for federal contracts
because the federal government requires prime contractors—prior to the award of a federal because the federal government requires prime contractors—prior to the award of a federal
contract exceeding $150,000 for the construction, alteration, or repair of any building or public contract exceeding $150,000 for the construction, alteration, or repair of any building or public
work of the United States—to furnish a performance bond issued by a surety satisfactory to the work of the United States—to furnish a performance bond issued by a surety satisfactory to the
contracting officer in an amount that the officer considers adequate to protect the government.115 contracting officer in an amount that the officer considers adequate to protect the government.115
Small Business Mentor-Protégé Programs116
Small Smal business mentor-protégé programs business mentor-protégé programs
typicallytypical y seek to pair new businesses with more seek to pair new businesses with more
experienced businesses in experienced businesses in
mutuallymutual y beneficial relationships. Protégés may receive financial, beneficial relationships. Protégés may receive financial,
technical, or management assistance from mentors in obtaining and performing federal contracts technical, or management assistance from mentors in obtaining and performing federal contracts
Jay Dilger.
Jay Dilger. 110 Ancillary bonds110 Ancillary bonds
are also eligibleare also eligible
if they are incidental and essential to a contract for which the SBAif they are incidental and essential to a contract for which the SBA
has guaranteed has guaranteed
a final bond. A reclamation bond is eligiblea final bond. A reclamation bond is eligible
if it is issuedif it is issued
to reclaim an abandoned mine site and for a project to reclaim an abandoned mine site and for a project
undertaken for a specific period of time. undertaken for a specific period of time.
111 P.L. 114-92, the National Defense Authorization Act for Fiscal Year 2016, includes
111 P.L. 114-92, the National Defense Authorization Act for Fiscal Year 2016, includes
a provision that increased the a provision that increased the
Preferred Surety Bond Guarantee Program’s guarantee rate from not to exceed 70% to not to exceed 90% of losses Preferred Surety Bond Guarantee Program’s guarantee rate from not to exceed 70% to not to exceed 90% of losses
starting one year from enactment (effective November 25, 2016). For additional information and analysis, see CRS starting one year from enactment (effective November 25, 2016). For additional information and analysis, see CRS
Report R42037, Report R42037,
SBA Surety Bond Guarantee Program , by Robert Jay Dilger. , by Robert Jay Dilger.
112 SBA,112 SBA,
FY2020 Program Performance: SBA Surety Bond Guarantee Program, at , at
https://content.govdelivery.com/accounts/USSBA/bulletins/2a5a0e6. https://content.govdelivery.com/accounts/USSBA/bulletins/2a5a0e6.
113 SBA,
113 SBA,
“Surety Bonds,” at https://www.sba.gov/funding-programs/surety-bonds. “Surety Bonds,” at https://www.sba.gov/funding-programs/surety-bonds.
114 SBA,114 SBA,
“Surety Bonds.” “Surety Bonds.”
115 115
TheT he threshold amount was originally set at $2,000 in 1935 under P.L. 74 threshold amount was originally set at $2,000 in 1935 under P.L. 74
-321, An Act Requiring Contracts for the -321, An Act Requiring Contracts for the
Construction, Alteration, and Repair of Any PublicConstruction, Alteration, and Repair of Any Public
Building Building or Publicor Public
Work of the United States to be Accompanied Work of the United States to be Accompanied
by a Performance Bond Protecting the United States and an Additional Bondby a Performance Bond Protecting the United States and an Additional Bond
for the Protection of Persons Furnishing for the Protection of Persons Furnishing
Material or Labor for the Construction, Alteration, or Repair of SaidMaterial or Labor for the Construction, Alteration, or Repair of Said
Public Buildings Public Buildings or Publicor Public
Work [the Miller Act Work [the Miller Act
of 1935], 49 Stat. 793 (August 24, 1935) (codified at 40 U.S.C.of 1935], 49 Stat. 793 (August 24, 1935) (codified at 40 U.S.C.
§3131(a)(b)). Also, see§3131(a)(b)). Also, see
Department of Defense, Department of Defense,
General ServicesGeneral Services
Administration, and National Aeronautics and SpaceAdministration, and National Aeronautics and Space
Administration, “Federal Acquisition Administration, “Federal Acquisition
Regulation; Regulation;
InflationInflat ion Adjustment of Acquisition-Related Adjustment of Acquisition-Related
ThresholdsT hresholds,” 75,” 75
Federal Register 53130, August 30, 2010. 53130, August 30, 2010.
116 For additional information and analysis of federal small business
116 For additional information and analysis of federal small business
mentor-protégé programs, see CRSmentor-protégé programs, see CRS
Report Report
R41722, R41722,
SmallSm all Business Mentor-Protégé ProgramsProgram s, by Robert Jay Dilger. , by Robert Jay Dilger.
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or subcontracts, or serving as suppliers under such contracts or subcontracts. Mentors may
or subcontracts, or serving as suppliers under such contracts or subcontracts. Mentors may
receive credit toward subcontracting goals, reimbursement of certain expenses, or other receive credit toward subcontracting goals, reimbursement of certain expenses, or other
incentives.incentives.
The federal government currently has several mentor-protégé programs to assist
The federal government currently has several mentor-protégé programs to assist
small smal businesses businesses
in various ways. in various ways.
The SBA’s
The SBA’s
All Small Mentor-Protégé Program is a government-wide program is a government-wide program
designed to assist
designed to assist
small smal businesses in obtaining and performing federal contracts. businesses in obtaining and performing federal contracts.
Mentors may (1) form joint ventures with protégés that are eligible to perform Mentors may (1) form joint ventures with protégés that are eligible to perform
federal contracts set aside for federal contracts set aside for
small smal businesses; (2) make certain equity businesses; (2) make certain equity
investments in protégé firms; (3) lend or subcontract to protégé firms; and (4) investments in protégé firms; (3) lend or subcontract to protégé firms; and (4)
provide technical or management assistance to their protégés.117 provide technical or management assistance to their protégés.117
The
The
Department of Defense (DOD) Mentor-Protégé Program, in contrast, is , in contrast, is
agency-specific. It assists various types of
agency-specific. It assists various types of
small smal businesses and other entities in businesses and other entities in
obtaining and performing DOD subcontracts and serving as suppliers on DOD obtaining and performing DOD subcontracts and serving as suppliers on DOD
contracts. Mentors may (1) make advance or progress payments to their protégés contracts. Mentors may (1) make advance or progress payments to their protégés
that DOD reimburses; (2) award subcontracts to their protégés on a that DOD reimburses; (2) award subcontracts to their protégés on a
noncompetitive basis when they would not otherwise be able to do so; (3) lend noncompetitive basis when they would not otherwise be able to do so; (3) lend
money to or make investments in protégé firms; and (4) provide or arrange for money to or make investments in protégé firms; and (4) provide or arrange for
other assistance.118other assistance.118
Other agencies also have agency-specific mentor-protégé programs to assist various types of
Other agencies also have agency-specific mentor-protégé programs to assist various types of
small smal businesses or other entities in obtaining and performing subcontracts under agency prime businesses or other entities in obtaining and performing subcontracts under agency prime
contracts. The Department of Homeland Security (DHS), for example, has a mentor-protégé contracts. The Department of Homeland Security (DHS), for example, has a mentor-protégé
program wherein mentors may provide protégés with rent-free use of facilities or equipment, program wherein mentors may provide protégés with rent-free use of facilities or equipment,
temporary personnel for training, property, loans, or other assistance. Because these programs are temporary personnel for training, property, loans, or other assistance. Because these programs are
not based in statute, unlike the SBA and DOD programs, they not based in statute, unlike the SBA and DOD programs, they
generallygeneral y rely upon preexisting rely upon preexisting
authorities (e.g., authorizing use of evaluation factors) or publicity to incentivize mentor authorities (e.g., authorizing use of evaluation factors) or publicity to incentivize mentor
participation. participation.
Currently, more than 1,600 mentor-protégé agreements are in place, even though there are issues
Currently, more than 1,600 mentor-protégé agreements are in place, even though there are issues
with the accuracy and thoroughness of some federal agency records.119 with the accuracy and thoroughness of some federal agency records.119
Small Business Procurement Goals
Since 1978, federal agency heads have been required to establish federal procurement goals, in Since 1978, federal agency heads have been required to establish federal procurement goals, in
consultation with the SBA, “that consultation with the SBA, “that
realisticallyrealistical y reflect the potential of reflect the potential of
small smal business concerns and business concerns and
117 SBA, “SBA
117 SBA, “SBA Mentor-Protégé Program,” at https://www.sba.gov/federal-contracting/contracting-assistance-Mentor-Protégé Program,” at https://www.sba.gov/federal-contracting/contracting-assistance-
programs/sba-mentor-protege-program; SBA, “programs/sba-mentor-protege-program; SBA, “
Small BusinessSmall Business
Mentor Protégé Programs,” 81Mentor Protégé Programs,” 81
Federal Register 48558- 48558-
48595, 48595,
July July 25, 2016; and SBA,25, 2016; and SBA,
“Consolidation of Mentor-Protégé Programs and Other Government Contracting “Consolidation of Mentor-Protégé Programs and Other Government Contracting
Amendments,” 85Amendments,” 85
Federal Register 66146-66199, October 16, 2020. 66146-66199, October 16, 2020.
118 10 U.S.C.118 10 U.S.C.
§2302note: Mentor-Protégé Pilot Program. §2302note: Mentor-Protégé Pilot Program.
119 As of 119 As of
June July 1, 2021, the SBA’s1, 2021, the SBA’s
All SmallAll Small
Mentor-Protégé program had 1,Mentor-Protégé program had 1,
185237 active mentor-protégé agreements. See active mentor-protégé agreements. See
SBA,SBA,
“Active mentor-protégé agreements,” at https://www.sba.gov/document/support-active-mentor-protege-“Active mentor-protégé agreements,” at https://www.sba.gov/document/support-active-mentor-protege-
agreements. agreements.
As of January 1, 2018, there were 63 active
As of January 1, 2018, there were 63 active
DepartmentDepartmen t of Defense (DOD) mentor-protégé agreements. See DOD, of Defense (DOD) mentor-protégé agreements. See DOD,
Office of SmallOffice of Small
Business Business Programs, “Active MPP [Mentor-Protégé Program] Agreements,” at Programs, “Active MPP [Mentor-Protégé Program] Agreements,” at
https://business.defense.gov/Programs/Mentor-Protege-Program/Protege-Eligibility-Requirements/. https://business.defense.gov/Programs/Mentor-Protege-Program/Protege-Eligibility-Requirements/.
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small smal business concerns owned and controlled by business concerns owned and controlled by
socially and economicallysocial y and economical y disadvantaged disadvantaged
individuals”individuals”
to participate in federal procurement. Each agency is required, at the conclusion of to participate in federal procurement. Each agency is required, at the conclusion of
each fiscal year, to report its progress in meeting the goals to the SBA.120 each fiscal year, to report its progress in meeting the goals to the SBA.120
In 1988, Congress authorized the President
In 1988, Congress authorized the President
annuallyannual y to establish government-wide minimum to establish government-wide minimum
participation goals for procurement contracts awarded to participation goals for procurement contracts awarded to
small smal businesses and businesses and
small smal businesses businesses
owned and controlled by owned and controlled by
socially and economicallysocial y and economical y disadvantaged individuals. Congress required disadvantaged individuals. Congress required
the government-wide minimum participation goal for the government-wide minimum participation goal for
small smal businesses to be “not less than 20% businesses to be “not less than 20%
of the total value of of the total value of
all al prime contract awards for each fiscal year” and “not less than 5% of the prime contract awards for each fiscal year” and “not less than 5% of the
total value of total value of
all al prime contract and subcontract awards for each fiscal year” for prime contract and subcontract awards for each fiscal year” for
small smal businesses businesses
owned and controlled by owned and controlled by
socially and economicallysocial y and economical y disadvantaged individuals.121 disadvantaged individuals.121
Each federal agency was also directed to “have an annual goal that presents, for that agency, the
Each federal agency was also directed to “have an annual goal that presents, for that agency, the
maximum practicable opportunity for maximum practicable opportunity for
small smal business concerns and business concerns and
small smal business concerns business concerns
owned and controlled by owned and controlled by
socially and economicallysocial y and economical y disadvantaged individuals to participate in the disadvantaged individuals to participate in the
performance of contracts let by such agency.”122 The SBA was also required to report to the performance of contracts let by such agency.”122 The SBA was also required to report to the
President President
annuallyannual y on the attainment of the goals and to include the information in an annual on the attainment of the goals and to include the information in an annual
report to Congress.123 The SBA negotiates the goals with each federal agency and establishes a report to Congress.123 The SBA negotiates the goals with each federal agency and establishes a
small business eligible baseline for evaluating the agency’s performance.124 The agency head is baseline for evaluating the agency’s performance.124 The agency head is
required to “make consistent efforts to required to “make consistent efforts to
annuallyannual y expand participation by expand participation by
small smal business concerns business concerns
from each industry category.”125 If the SBA and the agency cannot agree on the goals, the agency from each industry category.”125 If the SBA and the agency cannot agree on the goals, the agency
may submit the case to the Office of Management and Budget (OMB) Office of Federal may submit the case to the Office of Management and Budget (OMB) Office of Federal
Procurement Policy (OFPP) for resolution.126 Procurement Policy (OFPP) for resolution.126
The
The
small smal business eligiblebusiness eligible
baseline excludes certain contracts that the SBA has determined do baseline excludes certain contracts that the SBA has determined do
not not
realistically realistical y reflect the potential for reflect the potential for
small smal business participation in federal procurement (such business participation in federal procurement (such
as those awarded to mandatory and directed sources), contracts funded predominately from as those awarded to mandatory and directed sources), contracts funded predominately from
agency-generated sources (i.e., nonappropriated funds), contracts not covered by the FAR, agency-generated sources (i.e., nonappropriated funds), contracts not covered by the FAR,
acquisitions on behalf of foreign governments, and contracts not reported in the General Services acquisitions on behalf of foreign governments, and contracts not reported in the General Services
Administration’s (GSA’s) Federal Procurement Data System—Next Generation, or FPDS-NG Administration’s (GSA’s) Federal Procurement Data System—Next Generation, or FPDS-NG
120 15 U.S.C.
120 15 U.S.C. §644(g)(2); and P.L. 95-507, a bill to amend the Small Business§644(g)(2); and P.L. 95-507, a bill to amend the Small Business
Act and the SmallAct and the Small
Business Business Investment Investment
Act of 1958. Act of 1958.
121 15 U.S.C.
121 15 U.S.C.
§644(g)(1); and P.L. 100-656, the Business Opportunity Development Reform Act of 1988. The §644(g)(1); and P.L. 100-656, the Business Opportunity Development Reform Act of 1988. The
governmentgovernment
-wide minimum participation goal for small businesses-wide minimum participation goal for small businesses
was increased was increased from 20% to 23% byfrom 20% to 23% by
P.L. 105-135, P.L. 105-135,
the Smallthe Small
Business Business Reauthorization Act of 1997Reauthorization Act of 1997
. .
122 15 U.S.C.
122 15 U.S.C.
§644(g)(1); and P.L. 100-656, the Business Opportunity Development Reform Act of 1988§644(g)(1); and P.L. 100-656, the Business Opportunity Development Reform Act of 1988
. .
123 15 U.S.C.123 15 U.S.C.
§644(g)(1); and P.L. 100-656, the Business Opportunity Development Reform Act of 1988§644(g)(1); and P.L. 100-656, the Business Opportunity Development Reform Act of 1988
. .
124 According to a 2001 GAO124 According to a 2001 GAO
report, the SBA began to specify what types of contracts the Federal Procurement Data report, the SBA began to specify what types of contracts the Federal Procurement Data
System wouldSystem would
exclude exclude when determining agency compliance with federal contracting goals in FY1998. Prior to when determining agency compliance with federal contracting goals in FY1998. Prior to
FY1998, “FY1998, “
agencies reported their small businessagencies reported their small business
achievements directlyachievements directly
to SBA and excludedto SBA and excluded
from their calculations from their calculations
certain types of contracts, such as those for which small businessescertain types of contracts, such as those for which small businesses
had a limited or no chance to compete. SBA then had a limited or no chance to compete. SBA then
publishedpublished
an annual report summarizing each agency’s achievements. SBAan annual report summarizing each agency’s achievements. SBA
officials saidofficials said
that in some casesthat in some cases
they were they were
not aware of all exclusions the agencies madenot aware of all exclusions the agencies made
when reporting their numbers.” GAO,when reporting their numbers.” GAO,
Small Sm all Business: More
Transparency Needed in PrimePrim e Contract Goal Program , GAO-01-551, August 1, 2001, pp. 9-10, at , GAO-01-551, August 1, 2001, pp. 9-10, at
http://www.gao.gov/assets/240/231854.pdf. http://www.gao.gov/assets/240/231854.pdf.
125 15 U.S.C.
125 15 U.S.C.
§644(g)(2). §644(g)(2).
126 SBA,126 SBA,
Office of Policy, Planning & Liaison, Office of Government Contracting & BusinessOffice of Policy, Planning & Liaison, Office of Government Contracting & Business
Development, “FY 2018 Development, “FY 2018
GoalingGoaling
Guidelines,”Guidelines,”
August August 30, 2017, p. 4, at https://www.sba.gov/sites/default/files/2018-06/30, 2017, p. 4, at https://www.sba.gov/sites/default/files/2018-06/
FY18_Small_Business_Goaling_Guidelines.pdfFY18_Small_Business_Goaling_Guidelines.pdf
(hereinafter SBA, Office of Policy, Planning & Liaison, Office of (hereinafter SBA, Office of Policy, Planning & Liaison, Office of
Government Contracting & Business Development, “FY 2018 Goaling Guidelines”). Government Contracting & Business Development, “FY 2018 Goaling Guidelines”).
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(such as government procurement card purchases and contracts valued less than $10,000).127
(such as government procurement card purchases and contracts valued less than $10,000).127
These exclusions These exclusions
typicallytypical y account for 18% to 20% of account for 18% to 20% of
all al federal prime contracts each year. federal prime contracts each year.
The SBA then evaluates the agencies’ performance against their negotiated goals and presents the
The SBA then evaluates the agencies’ performance against their negotiated goals and presents the
results in the SBA’s annual results in the SBA’s annual
Small Smal Business Procurement Scorecards. The SBA uses FPDS-NG Business Procurement Scorecards. The SBA uses FPDS-NG
data, which are published in GSA’s annual data, which are published in GSA’s annual
Small Smal Business Goaling Report. Each agency that Business Goaling Report. Each agency that
fails to achieve any proposed prime or subcontract goal is required to submit a justification to the fails to achieve any proposed prime or subcontract goal is required to submit a justification to the
SBA on why it failed to achieve a proposed or negotiated goal with a proposed plan of corrective SBA on why it failed to achieve a proposed or negotiated goal with a proposed plan of corrective
action.128 action.128
Agencies can take credit in every category that is applicable to the recipient of the contract. For
Agencies can take credit in every category that is applicable to the recipient of the contract. For
example, “when counting goaling achievements, a contract awarded to a Service-Disabled example, “when counting goaling achievements, a contract awarded to a Service-Disabled
Veteran-Owned Woman-Owned Veteran-Owned Woman-Owned
Small Smal Business would be counted toward the Business would be counted toward the
Small Smal Business Business
(SB) goal, the Service-Disabled Veteran-Owned (SB) goal, the Service-Disabled Veteran-Owned
Small Smal Business (SDVOSB) goal and the Women-Business (SDVOSB) goal and the Women-
Owned Owned
Small Smal Business (WOSB) goal. However, these category counts are not summed to triple Business (WOSB) goal. However, these category counts are not summed to triple
the total count. the total count.
The Sum of Parts Does Not Equal the Whole (italics in original).”129 (italics in original).”129
Over the years, federal government-wide procurement goals have been established for
Over the years, federal government-wide procurement goals have been established for
small businesses generallysmal
businesses general y (P.L. 100-656, the Business Opportunity Development Reform Act of 1988, (P.L. 100-656, the Business Opportunity Development Reform Act of 1988,
and P.L. 105-135, the HUBZone Act of 1997—Title VI of the and P.L. 105-135, the HUBZone Act of 1997—Title VI of the
Small Smal Business Reauthorization Business Reauthorization
Act of 1997); Act of 1997);
small smal businesses owned and controlled by businesses owned and controlled by
socially and economicallysocial y and economical y disadvantaged disadvantaged
individualsindividuals
(P.L. 100-656); women (P.L. 103-355, the Federal Acquisition Streamlining Act of (P.L. 100-656); women (P.L. 103-355, the Federal Acquisition Streamlining Act of
1994); 1994);
small smal businesses located within a HUBZonebusinesses located within a HUBZone
(P.L. 105-135); and (P.L. 105-135); and
small smal businesses owned businesses owned
and controlled by a service-disabled veteran (P.L. 106-50, the Veterans Entrepreneurship and and controlled by a service-disabled veteran (P.L. 106-50, the Veterans Entrepreneurship and
Small
Smal Business Development Act of 1999). Business Development Act of 1999).
The current federal The current federal
small smal business procurement goals are business procurement goals are
at least 23.0% of the total value of
at least 23.0% of the total value of
all small al smal business eligiblebusiness eligible
prime contract prime contract
awards to
awards to
small smal businesses for each fiscal year; businesses for each fiscal year;
5.0% of the total value of
5.0% of the total value of
all small al smal business eligible prime contract awards and business eligible prime contract awards and
subcontract awards to
subcontract awards to
small smal disadvantaged businesses (including participants in disadvantaged businesses (including participants in
the SBA’s 8(a) Program) for each fiscal year;130 the SBA’s 8(a) Program) for each fiscal year;130
5.0% of the total value of
5.0% of the total value of
all small al smal business eligible prime contract awards and business eligible prime contract awards and
subcontract awards to women-owned
subcontract awards to women-owned
small smal businesses; businesses;
3.0% of the total value of
3.0% of the total value of
all small al smal business eligible prime contract awards and business eligible prime contract awards and
subcontract awards to HUBZone
subcontract awards to HUBZone
small smal businesses;131 and businesses;131 and
127 SBA,
127 SBA, Office of Policy, Planning & Liaison, Office of Government Contracting & BusinessOffice of Policy, Planning & Liaison, Office of Government Contracting & Business
Development, “FY 2018 Development, “FY 2018
GoalingGoaling
Guidelines,”Guidelines,”
p. 3; and GSA,p. 3; and GSA,
Federal Federal Procurement Data System—Next Generation, “What’s In FPDS-NG,” at Procurement Data System—Next Generation, “What’s In FPDS-NG,” at
https://www.fpds.gov/wiki/index.php/FPDS-NG_FAQ.https://www.fpds.gov/wiki/index.php/FPDS-NG_FAQ.
128 SBA,
128 SBA,
Office of Policy, Planning & Liaison, Office of Government Contracting & BusinessOffice of Policy, Planning & Liaison, Office of Government Contracting & Business
Development, “FY 2018 Development, “FY 2018
GoalingGoaling
Guidelines,”Guidelines,”
p. 6. p. 6.
129 SBA,129 SBA,
Office of Policy, Planning & Liaison, Office of Government Contracting & BusinessOffice of Policy, Planning & Liaison, Office of Government Contracting & Business
Development, “FY 2018 Development, “FY 2018
GoalingGoaling
Guidelines,”Guidelines,”
p. 5. “p. 5. “
TheT he exception to this non-additive rule is for total Small Disadvantaged exception to this non-additive rule is for total Small Disadvantaged
Business Business (SDB) (SDB)
which iswhich is
the sum of 8(a) and non-8(a) SDBs. Each special type of small businessthe sum of 8(a) and non-8(a) SDBs. Each special type of small business
is first of all a smallis first of all a small
business.business.
That T hat also means Federalalso means Federal
procurements awardedprocurements awarded
to SDVOSBto SDVOSB
will will also have been awardedalso have been awarded
to Veteranto Veteran
-Owned Small-Owned Small
Business Business
(VOSB).” (VOSB).”
130 For additional information and analysis of the SBA’s
130 For additional information and analysis of the SBA’s
8(a) Program, see CRS8(a) Program, see CRS
Report R44844, Report R44844,
SBA’s “8(a)
Program”: Overview, History, and Current Issues, by Robert Jay Dilger. , by Robert Jay Dilger.
131 For additional information and analysis of the HUBZone program, see CRS131 For additional information and analysis of the HUBZone program, see CRS
Report R41268, Report R41268,
Small Business
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An Overview of Small Business Contracting
3.0% of the total value of
3.0% of the total value of
all small al smal business eligible prime contract awards and business eligible prime contract awards and
subcontract awards to service-disabled veteran-owned
subcontract awards to service-disabled veteran-owned
small smal businesses.132 businesses.132
There are no punitive consequences for not meeting these goals. However, the SBA’s
There are no punitive consequences for not meeting these goals. However, the SBA’s
Small Smal Business Procurement Scorecards and GSA’s Business Procurement Scorecards and GSA’s
Small Smal Business Goaling Report are distributed Business Goaling Report are distributed
widely, receive media attention, and heighten public awareness of the issue of widely, receive media attention, and heighten public awareness of the issue of
small smal business business
contracting. For example, agency performance as reported in the SBA’s contracting. For example, agency performance as reported in the SBA’s
Small Smal Business Business
Procurement Scorecards is often cited by Members during their questioning of federal agency Procurement Scorecards is often cited by Members during their questioning of federal agency
witnesses during congressional hearings.witnesses during congressional hearings.
As shown
As shown
inin Table 1, the FY2019the FY2020 Small Business Goaling ReportProcurement Scorecard indicates that federal agencies indicates that federal agencies
met the federal procurement goal for met the federal procurement goal for
small businesses generally, small disadvantaged businesses, women-owned small smal businesses general y, smal disadvantaged businesses, and service-disabled veteran-owned businesses, and service-disabled veteran-owned
small smal businesses in FY2020 (see the second and
third columns).
For comparative purposes, Table 1 provides the percentage of smal business eligible contracts awarded to smal businesses in FY2020 without the required double counting of awards in a disaster area and to Puerto Rico and other covered territories (see the fourth column), as wel as
the percentage of al businesses in FY2019.
Table 1 also provides, for comparative purposes, the percentage of total reported federal contracts federal contracts
(without exclusions(without exclusions
) awarded to those small businesses in FY2019 and without double counting) awarded
to smal businesses (see the fifth column). .
Table 1. Federal Procurement Goals and Percentage of FY2019FY2020 Federal Contract
Dollars Awarded to Small Businesses, by Type
Percentage of Federal of
Percentage of
Percentage of
Federal
Federal
Federal
Contracts (all
Contracts (small
Contracts (small
reported
business eligible,
business eligible,
contracts,
including double
excluding double
excluding double
Percentage of Federal
Contracts (small
Contracts (all
Business Type
Federal Goal
business eligible)
reported contracts)
Small counting)
counting)
counting)
Smal Businesses Businesses
23.0%
23.0%
26.02%
25.42%
21.89%
Smal 25.82%
22.21%
Small Disadvantaged Disadvantaged
5.0%
5.0%
10.
10.
13%
8.6954%
10.39%
9.08% %
Businesses
Businesses
Women-Owned
Women-Owned
Small Smal
5.0%
5.0%
5.04%
4.324.85%
4.71%
4.10% %
Businesses
Businesses
HUBZone
HUBZone
Small BusinessesSmal
3.0%
3.0%
2.
2.
23%
1.95% 44%
2.39%
2.04%
Businesses
Service-Disabled
Service-Disabled
Veteran-
3.0%
3.0%
4.
4.
3428%
4.23%
3.92%
Veteran-Owned Smal %
4.00%
Owned Small Businesses Businesses
Sources: U.S. U.S.
Small Smal Business AdministrationBusiness Administration
(SBA), “Statutory Guidelines,”, “Statutory Guidelines,”
at https://www.sba.gov/content/statutory-at https://www.sba.gov/content/statutory-
guidelines-0 (federal goals); guidelines-0 (federal goals);
U.S. General Services Administration, Federal Procurement Data System—Next Generation, “Small Business Goaling Report: Fiscal Year 2019,” at https://www.fpds.gov/downloads/top_requests/FPDSNG_SB_Goaling_FY_2019.pdf; and U.S. General Services Administration, Federal Procurement Data System—Next Generation, at https://www.fpds.gov/fpdsng/ (contract dollars). Notes: The Small Business Goaling Report for FY2019 was made available on-line on August 12, 2020. The report does not indicate when the data were generated. The report indicates that small business eligible contracts totaled $501.58 billion and that $129.5 billion was awarded to small businesses, $50.8 billion to small
disadvantaged businesses, $25.3 billion to women-owned small businesses, $11.2 billion to SBA-certified HUBZone small businesses, and $21.8 billion to service-disabled veteran-owned small businesses. The percentages provided in the column for all reported contracts in FY2019 were calculated using FPDS-NG data as reported on August 12, 2020: $589.5 billion in total contracts; $131.0 billion to small businesses, $51.3 billion to small disadvantaged businesses, $25.5 billion to women-owned small businesses, $11.5 billion to SBA-certified HUBZone small businesses, and $23.6 billion to service-disabled veteran-owned small businesses.
Administration HUBZone Program, by Robert Jay Dilger.
132 15 U.S.C. §644(g)(1)-(2).
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SBA, “Government-Wide Performance, FY2020 Smal Business Procurement Scorecard,” at https://www.sba.gov/document/support-smal -business-procurement-scorecard-overview; and data generated using General Service Administration, “Sam.Gov data bank,” July 31, 2021, at https://sam.gov/reports/awards/adhoc (al reported contract dol ars). Notes: In accordance with federal law, the SBA provided double credit, for scorecard purposes only, for prime contracts awarded in disaster areas that are awarded as a local set aside and a smal business or other socioeconomic set aside when the vendor state is the same as the place of performance (see 15 U.S.C. §644(f))
Adm inistration HUBZone Program , by Robert Jay Dilger. 132 15 U.S.C. §644(g)(1)-(2).
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and for prime contracts awarded to businesses in Puerto Rico and covered territories (see 15 U.S.C. §644(x)(1)). The SBA also included Department of Energy first-tier subcontract awards as required by P.L. 113-76, the Consolidated Appropriations Act, 2014 (§318). The FY2020 Smal Business Procurement Scorecard was made available on July 30, 2021, and reflects contracting data as of February 22, 2021. Smal business eligible contracts totaled $559.981 bil ion in FY2020, and $145.8 bil ion was awarded to smal businesses ($142.4 without double counting), $59.0 bil ion to smal disadvantaged businesses ($58.2 bil ion without double counting), $27.1 bil ion to women-owned smal businesses ($26.4 bil ion without double counting), $13.6 bil ion to SBA-certified HUBZone smal businesses ($13.4 bil ion without double counting), and $23.9 bil ion to service-disabled veteran-owned smal businesses ($23.7 bil ion without double counting). The Department of Energy first-tier subcontract awards in FY2020 were as fol ows: $3.36 bil ion to smal businesses, $0.81 bil ion to smal disadvantaged businesses, $0.76 bil ion to smal women-owned businesses, $0.24 bil ion to SBA-certified HUBZone smal businesses, and $0.23 bil ion to service-disabled veteran-owned smal businesses. The percentages provided in the column for al reported contracts in FY2020 were calculated using contracting data as reported on July 31, 2021 (without double counting): $665.7 bil ion in total contracts, and $145.8 bil ion was awarded to smal businesses; $60.5 bil ion to smal disadvantaged businesses; $27.3 bil ion to women-owned smal businesses; $13.6 bil ion to SBA-certified HUBZone smal businesses; and $26.1 bil ion to service-disabled veteran-owned smal businesses.
Certificate of Competency Program
Before awarding a federal contract, the contracting officer must affirmatively determine that the Before awarding a federal contract, the contracting officer must affirmatively determine that the
business is responsible to perform the contract. If the contracting officer determines that an business is responsible to perform the contract. If the contracting officer determines that an
apparent successful apparent successful
small smal business offeror lacks certain elements of responsibility (e.g., is unable business offeror lacks certain elements of responsibility (e.g., is unable
to fulfil to fulfill the requirements of a specific government procurement because it lacks capability, the requirements of a specific government procurement because it lacks capability,
competency, capacity, credit, integrity, perseverance, tenacity, or limitations on subcontracting), competency, capacity, credit, integrity, perseverance, tenacity, or limitations on subcontracting),
the officer is required to refer the matter in writing to the SBA for review and a possible the officer is required to refer the matter in writing to the SBA for review and a possible
Certificate of Competency (COC), even if the next acceptable offer is also from a Certificate of Competency (COC), even if the next acceptable offer is also from a
small smal business.133 The COC certifies in writing that the business.133 The COC certifies in writing that the
small smal business meets business meets
all al required elements of required elements of
responsibility for the purpose of receiving and performing a specific government contract. The responsibility for the purpose of receiving and performing a specific government contract. The
“COC program empowers the SBA to certify to contracting officers as to “COC program empowers the SBA to certify to contracting officers as to
all al elements of elements of
responsibility of any responsibility of any
small smal business concern to receive and perform a specific government business concern to receive and perform a specific government
contract. The COC program does not extend to questions concerning regulatory requirements contract. The COC program does not extend to questions concerning regulatory requirements
imposed and enforced by other federal agencies.”134 imposed and enforced by other federal agencies.”134
Post-Award Requirements
As mentioned previously, the SBA’s commercial market representatives conduct periodic As mentioned previously, the SBA’s commercial market representatives conduct periodic
compliance reviews of contractors awarded contracts that require an acceptable compliance reviews of contractors awarded contracts that require an acceptable
small smal business business
subcontracting plan.135 In addition, once the contract is completed, federal agencies are required subcontracting plan.135 In addition, once the contract is completed, federal agencies are required
to pay the contractor on a timely basis and pay interest penalties for late payments. Under to pay the contractor on a timely basis and pay interest penalties for late payments. Under
specified circumstances, federal agencies may also pay contractors before the contract’s specified circumstances, federal agencies may also pay contractors before the contract’s
payment’s due date.
133 15 U.S.C. §637(b)(7); and FAR §19.601(a-e). 134 FAR §19.601(b). 135 15 U.S.C. §633(h).
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payment’s due date.
Small Business Subcontracting Plan Reviews
The periodic compliance review can take place on-site, at the contracting agency, or virtual.136 The periodic compliance review can take place on-site, at the contracting agency, or virtual.136
Materials that may be reviewed include the contractor’s contract files, correspondence that is Materials that may be reviewed include the contractor’s contract files, correspondence that is
directly or indirectly related to the contract, IT systems, subcontracting methods, and directly or indirectly related to the contract, IT systems, subcontracting methods, and
procedures.137 Contractors are selected randomly for audit.138 The SBA may enter into agreements procedures.137 Contractors are selected randomly for audit.138 The SBA may enter into agreements
with other federal agencies to conduct these assessments.139 with other federal agencies to conduct these assessments.139
The compliance report includes compliant and noncompliant items found during the assessment
The compliance report includes compliant and noncompliant items found during the assessment
of the contractor’s subcontracting activities and a rating indicating the contractor’s level of of the contractor’s subcontracting activities and a rating indicating the contractor’s level of
compliance or noncompliance, ranging from unsatisfactory to outstanding.140 If any deficiencies compliance or noncompliance, ranging from unsatisfactory to outstanding.140 If any deficiencies
are found, the contractor is required to submit, within 30 days of the compliance review rating are found, the contractor is required to submit, within 30 days of the compliance review rating
133 15 U.S.C. §637(b)(7); and FAR §19.601(a-e). 134 FAR §19.601(b). 135 15 U.S.C. §633(h). 136 SBA, “Subcontracting Assistance Program Post Award,” SOP 60 03 7, effective July 17, 2018, p. 11, at
https://www.sba.gov/sites/default/files/2018-07/2018-07-17%20Final%20Subcontracting%20Program%20SOP_1.pdf. 137 SBA, “Subcontracting Assistance Program Post Award,” SOP 60 03 7, p. 11. 138 SBA, “Subcontracting Assistance Program Post Award,” SOP 60 03 7, p. 12. 139 SBA, “Subcontracting Assistance Program Post Award,” SOP 60 03 7, p. 14. 140 13 C.F.R. §125.3(e)(3).
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letter date, a corrective action plan (CAP).141 The CAP is submitted to the SBA letter date, a corrective action plan (CAP).141 The CAP is submitted to the SBA Area Office via Area Office via
email, or any method designated by the SBA. The commercial market representative conducts a email, or any method designated by the SBA. The commercial market representative conducts a
follow-up compliance report within six months to a year of the date the SBAfollow-up compliance report within six months to a year of the date the SBA
acknowledges acknowledges
receipt of the contractor’s CAP to ensure that corrective actions have been taken to eliminate the receipt of the contractor’s CAP to ensure that corrective actions have been taken to eliminate the
deficiencies. The SBA keeps the federal agency that awarded the contract informed of the deficiencies. The SBA keeps the federal agency that awarded the contract informed of the
contractor’s adherence to correcting the deficiencies.142 contractor’s adherence to correcting the deficiencies.142
If the contractor refuses to provide or address
If the contractor refuses to provide or address
all al deficiencies in the CAP, a delinquent CAP letter deficiencies in the CAP, a delinquent CAP letter
is sent advising the contractor that it has 15 days from the letter’s date to comply with federal is sent advising the contractor that it has 15 days from the letter’s date to comply with federal
regulations. If an acceptable CAP is not received in the regulations. If an acceptable CAP is not received in the
allottedal otted time frame the case is escalated to time frame the case is escalated to
the SBA’s subcontracting program manager who informs the SBA’s Office of Government the SBA’s subcontracting program manager who informs the SBA’s Office of Government
Contracting director and works with the SBA’s Office of General Counsel and the federal agency Contracting director and works with the SBA’s Office of General Counsel and the federal agency
that awarded the contract for resolution or to begin accessing liquidated damages.143 that awarded the contract for resolution or to begin accessing liquidated damages.143
Prompt Payments
Once a contract is awarded, federal agencies are Once a contract is awarded, federal agencies are
generallygeneral y required to pay interest to prime required to pay interest to prime
contractors on any invoice payments the agency fails to make by the date(s) specified in the contractors on any invoice payments the agency fails to make by the date(s) specified in the
contract, or within 30 days of receipt of a contract, or within 30 days of receipt of a
proper invoice for the amount due if no date is specified for the amount due if no date is specified
in the contract.144
136 SBA, “Subcontracting Assistance Program Post Award,” SOP 60 03 7, effective July 17, 2018, p. 11, at
https://www.sba.gov/sites/default/files/2018-07/2018-07-17%20Final%20Subcontracting%20Program%20SOP_1.pdf. 137 SBA, “Subcontracting Assistance Program Post Award,” SOP 60 03 7, p. 1 1. 138 SBA, “Subcontracting Assistance Program Post Award,” SOP 60 03 7, p. 1 2. 139 SBA, “Subcontracting Assistance Program Post Award,” SOP 60 03 7, p. 14. 140 13 C.F.R. §125.3(e)(3).
141 SBA, “Subcontracting Assistance Program Post Award,” SOP 60 03 7, p. 12 . 142 SBA, “Subcontracting Assistance Program Post Award,” SOP 60 03 7, p. 1 3. 143 SBA, “Subcontracting Assistance Program Post Award,” SOP 60 03 7, p. 1 3. Liquidated damages are predetermined sums in the contract.144
Similar requirements exist for prime contractors in paying subcontractors on construction contracts. These requirements are especially important for small businesses in the construction industry. Specifically, every construction contract awarded by a federal agency must contain clauses obligating the prime contractor to (1) pay the subcontractor for “satisfactory performance” under the subcontract within seven days of receiving payment from the agency and (2) pay interest on any amounts that are not paid within the proper time frame.145 The contract must also obligate the prime contractor to include similar payment and interest penalty terms in its subcontracts, as well as require its subcontractors to impose these terms on their
subcontractors. This latter provision ensures that the payment and interest penalty requirements flow down to all tiers of construction subcontractors.
In addition, required subcontracting plans must incorporate terms obligating the prime contractor to notify the agency awarding the contract in writing if a subcontractor is paid a reduced price for goods supplied or services completed under the contract, or if payment is made to the subcontractor more than 90 days past due. The prime contractor must include the reason for the
141 SBA, “Subcontracting Assistance Program Post Award,” SOP 60 03 7, p. 12. 142 SBA, “Subcontracting Assistance Program Post Award,” SOP 60 03 7, p. 13. 143 SBA, “Subcontracting Assistance Program Post Award,” SOP 60 03 7, p. 13. Liquidated damages are predetermined sums a contractor must pay the procuring agency for specified contract breaches or performance failures. For additional a contractor must pay the procuring agency for specified contract breaches or performance failures. For additional
information and analysis, see CRSinformation and analysis, see CRS
Report R45322, Report R45322,
Selected Legal Tools for Maintaining GovernmentGovernm ent Contractor
Accountability, by David, by David
H. Carpenter and Kathleen Ann Ruane. H. Carpenter and Kathleen Ann Ruane.
144 31 U.S.C.
144 31 U.S.C.
§3903(a); and P.L. 97-177, the Prompt Payment Act. Among other things, a proper invoice contains (1) §3903(a); and P.L. 97-177, the Prompt Payment Act. Among other things, a proper invoice contains (1)
the name of the contractor, the invoice date, and the contract number; (2) a description ofthe name of the contractor, the invoice date, and the contract number; (2) a description of
the goods renderedthe goods rendered
and the and the
shipping and payment terms; (3) other substantiating documentation or shipping and payment terms; (3) other substantiating documentation or
informationinfo rmation required under required under
the contract; and (4) the contract; and (4)
the name, title, telephone number, and complete mailing addressthe name, title, telephone number, and complete mailing address
of the person to whomof the person to whom
payment should bepayment should be
sent. 31 U.S.C. §3901(a); and 48 C.F.R. §32.905(b)(1)(i)-(x). The interest rate to be used is that determined by the Secretary of the Treasury twice a year under the Contract Disputes Act. 31 U.S.C. §3902(a).
145 31 U.S.C. §3905(b); and P.L. 100-496, the Prompt Payment Act Amendments of 1988.
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reduction in payment or failure to pay a subcontractor within 90 days.146 If the contracting officer sent. 31
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Similar requirements exist for prime contractors in paying subcontractors on construction contracts. These requirements are especial y important for smal businesses in the construction
industry. Specifical y, every construction contract awarded by a federal agency must contain clauses obligating the prime contractor to (1) pay the subcontractor for “satisfactory performance” under the subcontract within seven days of receiving payment from the agency and (2) pay interest on any amounts that are not paid within the proper time frame.145 The contract must also obligate the prime contractor to include similar payment and interest penalty terms in
its subcontracts, as wel as require its subcontractors to impose these terms on their subcontractors. This latter provision ensures that the payment and interest penalty requirements
flow down to al tiers of construction subcontractors.
In addition, required subcontracting plans must incorporate terms obligating the prime contractor to notify the agency awarding the contract in writing if a subcontractor is paid a reduced price for goods supplied or services completed under the contract, or if payment is made to the subcontractor more than 90 days past due. The prime contractor must include the reason for the reduction in payment or failure to pay a subcontractor within 90 days.146 If the contracting officer
for a for a
covered contract (a contract that requires an acceptable subcontracting plan) determines that (a contract that requires an acceptable subcontracting plan) determines that
a prime contractor has a history of unjustified, untimely payments to contractors, the contracting a prime contractor has a history of unjustified, untimely payments to contractors, the contracting
officer officer
shall shal record the contractor’s identity, describe the circumstances under which the record the contractor’s identity, describe the circumstances under which the
contractor may be determined to have a history of unjustified, untimely payments to contractor may be determined to have a history of unjustified, untimely payments to
subcontractors, and include the contractor’s identity in, and make publicly availablesubcontractors, and include the contractor’s identity in, and make publicly available
through, the through, the
Federal Awardee Performance and Integrity Information System, or any successor.147 This Federal Awardee Performance and Integrity Information System, or any successor.147 This
information is used by federal agencies to “evaluate the business ethics and quality of prospective information is used by federal agencies to “evaluate the business ethics and quality of prospective
contractors competing for Federal contracts and to protect taxpayers from doing business with contractors competing for Federal contracts and to protect taxpayers from doing business with
contractors that are not responsible sources.”148contractors that are not responsible sources.”148
Accelerated Payments
Federal agencies are permitted to make an accelerated payment up to seven days before the Federal agencies are permitted to make an accelerated payment up to seven days before the
required payment date in a federal contract, or earlier if the agency deems it necessary on a case-required payment date in a federal contract, or earlier if the agency deems it necessary on a case-
by-case basis if, after receiving a proper invoice, it is in the best interest of the government, and by-case basis if, after receiving a proper invoice, it is in the best interest of the government, and
any of the following is true: any of the following is true:
the invoice in under $2,500;
the invoice in under $2,500;
the payment is to a the payment is to a
small smal business; or the payment is related to an emergency, disaster, or military deployment.149
U.S.C. §3901(a); and 48 C.F.R. §32.905(b)(1)(i)-(x). T he interest rate to be used is that determined by the Secretary of the T reasury twice a year under the Contract Disputes Act. 31 U.S.C. §3902(a).
145 31 U.S.C. §3905(b); and P.L. 100-496, the Prompt Payment Act Amendments of 1988. 146 15 U.S.C. §637(d)(13)(A-B); and U.S. Department of the T reasurybusiness; or the payment is related to an emergency, disaster, or military deployment.149
In addition, the Secretary of Defense is required, to the fullest extent permitted by law, to establish an accelerated payment date for its small business prime contractors, with a goal of 15 days after receipt of a proper invoice for the amount due if a specific payment date is not established by contract.150
The Secretary of Defense is also required to establish, to the fullest extent permitted by law, an accelerated payment date for its prime contractors that subcontract with small businesses, with a goal of 15 days after receipt of a proper invoice for the amount due if a specific payment date is not established by contract and the prime contractor agrees to make payments to the subcontractor “in accordance with the accelerated payment date, to the maximum extent practicable, without any further consideration from or fees charged to the subcontractor.”151
146 15 U.S.C. §637(d)(13)(A-B); and U.S. Department of the Treasury, Bureau of the Fiscal Service, “Prompt , Bureau of the Fiscal Service, “Prompt
Payment,” at https://www.fiscal.treasury.gov/fsservices/gov/pmt/promptPayment/promptPayment_home.htm. Under a Payment,” at https://www.fiscal.treasury.gov/fsservices/gov/pmt/promptPayment/promptPayment_home.htm. Under a
construction contract, an agency may withhold payment to a prime vendor if it learns that the prime vendor has failed construction contract, an agency may withhold payment to a prime vendor if it learns that the prime vendor has failed
to pay subcontractors in accordance with the terms of the contract. to pay subcontractors in accordance with the terms of the contract.
147 15 U.S.C.
147 15 U.S.C.
§637(d)(13)(C-E). §637(d)(13)(C-E).
148 Department of Defense, General Services148 Department of Defense, General Services
Administration, and National Aeronautics and SpaceAdministration, and National Aeronautics and Space
Administration, Administration,
“Federal Acquisition Regulation; FAR“Federal Acquisition Regulation; FAR
Case Case 2008-027, Federal Awardee2008-027, Federal Awardee
Performance and Integrity Information Performance and Integrity Information
System,” 75System,” 75
Federal Register 14059, March 23, 2010. 14059, March 23, 2010.
149 31 U.S.C.149 31 U.S.C.
§3903(a)(8); Office of Management and Budget,§3903(a)(8); Office of Management and Budget,
“Prompt Payment,” 64“Prompt Payment,” 64
Federal Register 52582-52583,
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In addition, the Secretary of Defense is required, to the fullest extent permitted by law, to establish an accelerated payment date for its smal business prime contractors, with a goal of 15
days after receipt of a proper invoice for the amount due if a specific payment date is not
established by contract.150
The Secretary of Defense is also required to establish, to the fullest extent permitted by law, an
accelerated payment date for its prime contractors that subcontract with smal businesses, with a goal of 15 days after receipt of a proper invoice for the amount due if a specific payment date is not established by contract and the prime contractor agrees to make payments to the subcontractor “in accordance with the accelerated payment date, to the maximum extent practicable, without
any further consideration from or fees charged to the subcontractor.”151
Concluding Observations The smal business contracting programs described in this report general y Federal Register 52582-52583, September 29, 1999; and 5 C.F.R. §1315.5.
150 10 U.S.C. §2307(2)(A); and P.L. 115-232, the John S. McCain National Defense Authorization Act for Fiscal Year 2019.
151 10 U.S.C. §2307(2)(B); and P.L. 115-232, the John S. McCain National Defense Authorization Act for Fiscal Year 2019.
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Concluding Observations
The small business contracting programs described in this report generally have strong bipartisan have strong bipartisan
support. However, that does not mean that these programs face no opposition or that issues have support. However, that does not mean that these programs face no opposition or that issues have
not been raised concerning the impact or operations of specific programs. For example, not been raised concerning the impact or operations of specific programs. For example,
small smal business advocates have sought policies that reduce or eliminate exclusions that narrow the reach business advocates have sought policies that reduce or eliminate exclusions that narrow the reach
of of
small smal business contracting preferences and want the SBA to use the total value of business contracting preferences and want the SBA to use the total value of
all al prime prime
contract awards in the contract awards in the
Small Smal Business Goaling Report.152 Also, critics have questioned some of Business Goaling Report.152 Also, critics have questioned some of
these programs’ effectiveness, in terms of both promoting these programs’ effectiveness, in terms of both promoting
small smal business opportunities to win business opportunities to win
federal contracts and a more diversified, robust economy.153 federal contracts and a more diversified, robust economy.153
Many observers judge the relative success or failure of federal efforts to enhance
Many observers judge the relative success or failure of federal efforts to enhance
small smal business business
contracting opportunities by whether the federal government and individual federal agencies meet contracting opportunities by whether the federal government and individual federal agencies meet
the procurement goals in the annual the procurement goals in the annual
Small Smal Business Goaling Report. In recent years, the federal Business Goaling Report. In recent years, the federal
government has government has
generallygeneral y met the government-wide goals of awarding 23% of the total value of met the government-wide goals of awarding 23% of the total value of
all small al smal business eligiblebusiness eligible
prime contract awards to prime contract awards to
small businesses generallysmal businesses general y, 5% to SDBs, and , 5% to SDBs, and
3% to SDVOSBs. However, it has had difficulty meeting the goals of 5% to WOSBs and 3% to
HUBZone smal businesses.154
September 29, 1999; and 5 C.F.R. §1315.5.
150 10 U.S.C. §2307(2)(A); and P.L. 115-232, the John S. McCain National Defense Authorization Act for Fiscal Year 2019. 151 10 U.S.C. §2307(2)(B); and P.L. 115-232, the John S. McCain National Defense Authorization Act for Fiscal Year 2019.
152 See 3% to SDVOSBs. However, it has had difficulty meeting the goals of 5% to WOSBs and 3% to HUBZone small businesses.154
The Small Business Goaling Report is the most convenient measure available to compare federal small business contracting performance over time, but it has limitations. For example, the report does not include all federal contracts, because some are not deemed to be small business eligible and others are not recorded in the FPDS-NG. In addition, the report does not evaluate the effect these contracts have on small businesses, industry competitiveness, or the overall economy. As one group of researchers has argued,
the entire goal-setting process … is geared to measuring the dollars and contracts awarded to small business, and pays little attention to the effect that access to government contracts has on small business starts, growth, and wealth generation. Results of the program are also hard to isolate, difficult to measure, and generally not judged against the next best or other alternative policies [emphasis in original].155
152 See American Small Business League v. Maria Contreras-Sweet in her capacity as Administrator of the United
States Small Business AdministrationSm all Business Adm inistration, May 3, 2016, at http://www.asbl.com/documents/, May 3, 2016, at http://www.asbl.com/documents/
Filed_Complaint_For_Injunctive_Relief.pdf. Filed_Complaint_For_Injunctive_Relief.pdf.
TheT he federal government awarded federal government awarded
more than $more than $
50850 8.8 billion in federal contracts in FY2017. About $442.5 billion of that .8 billion in federal contracts in FY2017. About $442.5 billion of that
amount wasamount was
deemed deemed small businesssmall business
eligible.eligible.
GSA, Federal GSA, Federal Procurement Data SystemProcurement Data System
—Next Generation, at —Next Generation, at
https://www.fpds.gov/fpdsng/https://www.fpds.gov/fpdsng/
(contract dollar amount); and GSA,(contract dollar amount); and GSA,
Federal Procurement Data System—Next Federal Procurement Data System—Next
Generation, “Small BusinessGeneration, “Small Business
Goaling Goaling Report: Fiscal Year 2017,” at https://www.fpds.gov/downloads/top_requests/Report: Fiscal Year 2017,” at https://www.fpds.gov/downloads/top_requests/
FPDSNG_SB_Goaling_FY_2017.pdf. FPDSNG_SB_Goaling_FY_2017.pdf.
153 For example, see Henry Beale
153 For example, see Henry Beale
and Nicola Deas, “and Nicola Deas, “
TheT he HUBZone Report,” prepared for the SBA, Office of HUBZone Report,” prepared for the SBA, Office of
Advocacy, May 2008, pp. i, ii, 124-131, at https://www.sba.gov/sites/default/files/rs325tot.pdf; and Clifford A. Advocacy, May 2008, pp. i, ii, 124-131, at https://www.sba.gov/sites/default/files/rs325tot.pdf; and Clifford A.
Grammich, Grammich,
ThomasT homas R. Edison Jr., Nancy Young Moore, and Edward R. Edison Jr., Nancy Young Moore, and Edward
G. Keating, G. Keating,
SmallSm all Business and Defense
Acquisitions: A Review of Policies and Current Practices (Santa Monica, CA: RAND, (Santa Monica, CA: RAND,
2011), pp. xii, 15, 16, at 2011), pp. xii, 15, 16, at
https://www.rand.org/content/dam/rand/pubs/monographs/2011/RAND_MG443.pdf. https://www.rand.org/content/dam/rand/pubs/monographs/2011/RAND_MG443.pdf.
154 SBA,154 SBA,
“The “ T he Federal Government Achieves Small Federal Government Achieves Small
Business Business Contracting Goal for the Sixth Consecutive Year with
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The Smal Business Goaling Report is the most convenient measure available to compare federal smal business contracting performance over time, but it has limitations. For example, the report
does not include al federal contracts, because some are not deemed to be smal business eligible and others are not recorded in the FPDS-NG. In addition, the report does not evaluate the effect these contracts have on smal businesses, industry competitiveness, or the overal economy. As
one group of researchers has argued,
the entire goal-setting process … is geared to measuring the dollars and contracts awarded to small business, and pays little attention to the effect that access to government contracts has on small business starts, growth, and wealth generation. Results of the program are also hard to isolate, difficult to measure, and generally not judged against the next best or other alternative policies [emphasis in original].155
Comprehensive studies examining the effect of smal business contracting preferences on smal
Contracting Goal for the Sixth Consecutive Year with Record-Breaking $120 Billion to Small Businesses,” at https://www.sba.gov/about-sba/sba-newsroom/press-releases-media-advisories/federal-government-achieves-small-business-contracting-goal-sixth-consecutive-year-record-breaking.
155 Clifford A. Grammich, Thomas R. Edison Jr., Nancy Young Moore, and Edward G. Keating, Small Business and
Defense Acquisitions: A Review of Policies and Current Practices (Santa Monica, CA: RAND, 2011), p. 15, at
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Comprehensive studies examining the effect of small business contracting preferences on small business startups, growth, wealth generation, and industry competitiveness may prove useful for business startups, growth, wealth generation, and industry competitiveness may prove useful for
congressional oversight. In the meantime, although the congressional oversight. In the meantime, although the
Small Smal Business Goaling Report has its Business Goaling Report has its
limitations, it can help policymakers identify programs most in need of examination. For limitations, it can help policymakers identify programs most in need of examination. For
example, the SBA has announced that it is focusing additional efforts on promoting the HUBZone example, the SBA has announced that it is focusing additional efforts on promoting the HUBZone
program to federal contracting officials, primarily due to the continuing difficulties federal program to federal contracting officials, primarily due to the continuing difficulties federal
agencies have had in meeting the 3% goal for HUBZoneagencies have had in meeting the 3% goal for HUBZone
small smal businesses.156 businesses.156
Record-Breaking $120 Billion to Small Businesses,” at https://www.sba.gov/about-sba/sba-newsroom/press-releases-media-advisories/federal-government -achieves-small-business-contracting-goal-sixth-consecutive-year-record-breaking.
155 Clifford A. Grammich, T homas R. Edison Jr., Nancy Young Moore, and Edward G. Keating, Small Business and Defense Acquisitions: A Review of Policies and Current Practices (Santa Monica, CA: RAND, 2011), p. 15, at https://www.rand.org/content/dam/rand/pubs/monographs/2011/RAND_MG443.pdf. https://www.rand.org/content/dam/rand/pubs/monographs/2011/RAND_MG443.pdf.
156 SBA,156 SBA,
FY2019 Congressional Budget Justification and FY2017 Annual Performance Report, pp. 75-77, at , pp. 75-77, at
https://www.sba.gov/sites/default/files/aboutsbaarticle/SBA_FY_19_508-Final-FINAL.PDF.https://www.sba.gov/sites/default/files/aboutsbaarticle/SBA_FY_19_508-Final-FINAL.PDF.
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Author Information
Robert Jay Dilger Robert Jay Dilger
Senior Specialist in American National Government
Senior Specialist in American National Government
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