Federal Contracting and Subcontracting with Small Businesses: Legislation in the 113^th Congress

See, e.g., Perkins v. Lukens Steel Co., 310 U.S. 113, 127 (1940) ("Like private individuals and businesses, the Government enjoys the unrestricted power to produce its own supplies, to determine those with whom it will deal, and to fix the terms and conditions upon which it will make needed purchases."). However, the U.S. Constitution does impose certain limits upon Congress's power in this regard, most notably by guaranteeing all persons equal protection of the law. U.S. Const. amend. V (guaranteeing due process of law); Bolling v. Sharpe, 347 U.S. 497 (1954) (finding that due process under the Fifth Amendment includes equal protection, or the constitutional assurance that the government will apply the law equally to all people and not improperly prefer one class of people over another). Equal protection issues arise most frequently with contracting preferences based on race or gender. Race and gender are "suspect classifications," which means that the government must demonstrate that any programs that classify individuals on this basis are narrowly tailored to further a compelling government interest, in the case of race-conscious programs, or substantially related to important government objectives, in the case of gender-conscious programs. See, e.g., Adarand Constructors, Inc. v. Peña, 515 U.S. 200 (1995) ("strict scrutiny" applied to program that classified individuals on the basis of race); Craig v. Boren, 429 U.S. 190, 197 (1976) ("intermediate scrutiny" applied to program that classified individuals on the basis of sex).

15 U.S.C. §632(a).

See 15 U.S.C. §631(a) ("It is the declared policy of the Congress that the Government should aid, counsel, assist, and protect, insofar as is possible, the interests of small-business concerns in order to preserve free competitive enterprise, to insure that a fair proportion of the total purchases and contracts for property and services for the Government ... be placed with 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 the overall economy of the Nation.").

See, e.g., 15 U.S.C. §644(g)(2)(B) (requiring agencies, in consultation with the SBA, to set goals for the percentage of federal contract and/or subcontract dollars awarded to small businesses that "realistically reflect" the ability of small businesses to perform such contracts and subcontracts).

See, e.g., 15 U.S.C. §657a (authorizing set-asides and sole-source awards to HUBZone small businesses).

See, e.g., 15 U.S.C. §637(l) (requiring the SBA to appoint Procurement Center Representatives (PCRs) to work with the procuring agencies); 13 C.F.R. §125.2(b)(1)(i) (requiring PCRs to review all acquisitions not set aside for small businesses to determine whether a set-aside is appropriate and to identify alternate strategies to maximize small business participation as contractors or subcontractors, among other things).

For further discussion of these and other changes made by the 111^th and 112^th Congresses, see generally CRS Report R42390, Federal Contracting and Subcontracting with Small Businesses: Issues in the 112th Congress, by [author name scrubbed] and [author name scrubbed].

See, e.g., infra notes 26-29 and accompanying text.

An Act to Amend the Small Business Act and the Small Business Investment Act of 1958, P.L. 95-507, §221, 92 Stat. 1770-1771 (October 24, 1978) (codified at 15 U.S.C. §644(g)(2)). These agency-specific goals must "realistically reflect the potential" of small businesses to perform agency contracts and subcontracts. 15 U.S.C. §644(g)(2)(B). They must also "present ... the maximum practicable opportunity" for small businesses to participate in agency contracts, and the cumulative prime contract goals for all agencies must meet or exceed the annual government-wide goal established by the President. 15 U.S.C. §644(g)(1)(B).

Business Opportunity Development Reform Act (BODRA), P.L. 100-656, §502, 102 Stat. 3881 (November 15, 1988) (codified, as amended, at 15 U.S.C. §644(g)(1)).

Under federal law, some types of small businesses, or their owners, must meet certain socioeconomic criteria (e.g., women-owned, located in a HUBZone). Others need only be small. The contracting preferences for the latter firms are more limited than those for the former. See infra Table 1.

For more on who qualifies as "socially and economically disadvantaged" for purposes of federal procurement law, see CRS Report R40987, "Disadvantaged" Small Businesses: Definitions and Designations for Purposes of Federal and Federally Funded Contracting Programs, by [author name scrubbed].

15 U.S.C. §644(g)(1)(A)(i)-(v).

The SBA historically used its discretion to exclude certain contracts from these calculations, such as contracts performed outside the United States and contracts awarded through the Javits-Wagner-O'Day (JWOD) Program (providing for federal procurement from workshops employing people who are "blind or severely disabled"). See, e.g., Small Business Goaling Report: Fiscal Year 2010, available at https://www.fpds.gov/downloads/top_requests/FPDSNG_SB_Goaling_FY_2010.pdf (listing exclusions); Small Bus. Admin., Office of Inspector General, Small Business Administration's Rationale for Excluding Certain Types of Contracts from the Annual Small Business Procurement Calculations Needs to be Documented, Advisory Memorandum Report No. 12-04, December 6, 2011.

See, e.g., Charles S. Clark, Agencies Report Slight Progress in Meeting Small Business Contracting Goals, Gov't Exec., July 2, 2013, available at http://www.govexec.com/contracting/2013/07/agencies-report-slight-progress-meeting-small-business-contracting-goals/65987/ (noting that the SBA reported "progress" toward meeting the goals in FY2012, but that the goals were not met); Jeff Kinney, SBA Notes Drop in Small Business Contract Awards for FY2011, 98 Fed. Cont. Rep. 27 (July 10, 2012). But see Amrita Jayakumar, For Second Year in a Row, Government Meets Its Goal of Awarding Work to Small Businesses, June 26, 2015, available at https://www.washingtonpost.com/news/on-small-business/wp/2015/06/26/the-federal-government-is-actually-giving-business-to-small-companies-again/ (reporting on performance in FY2014 and FY2015).

Small Business Jobs Act, P.L. 111-240, tit. I, subtitle C, §1333, 124 Stat. 2542 (codified at 15 U.S.C. §644(g)(2)(F)(i)-(ii)).

National Defense Authorization Act for FY2013, P.L. 112-239, §1631(b), 126 Stat. 2070-2073 (January 2, 2013).

Id. at §1631(b), 126 Stat. 2072. Specifically, under P.L. 112-239, the SBA must ensure that agency goals are established in a manner that does not exclude certain categories of contracts based on the type of goods or services acquired; or, in the case of certain contracts subject to competitive procedures, based on whether the contract is subject to the Federal Acquisition Regulation (FAR), or whether funding is made directly available by an appropriation or by reimbursement from another agency or account. The SBA must also ensure that agency subcontracting goals are established on the basis of "realistically achievable improvements" in levels of subcontracting, rather than on the basis of previous years' performance, and that agencies document the basis for any decision to establish a goal that is lower than the government-wide goal for small businesses in that category. Id.

Id. at §1631(b), 126 Stat. 2071 (requiring that agencies separately address prime and subcontract awards for each category of small businesses (e.g., women-owned) in their goals, and make a "consistent effort to annually expand participation" by small businesses in each category).

P.L. 112-239, §1631(b)(2), 126 Stat. 2071 (codified at 15 U.S.C. §644(g)(2)(D)-(F)).

P.L. 112-239, §1632, 126 Stat. 2073-2076.

Id. at §1631(d), 126 Stat. 2072-2073. This assessment must address certain topics, such as the industrial composition of companies receiving federal prime contracts and subcontracts; the industrial composition of domestic small business concerns; barriers to accurately capturing data on small business contracting and subcontracting; and recommendations for improving the quality and availability of data regarding small business contracting. It is separate from, but to be "coordinated with," the assessment of the contracting performance of the Department of Defense required under Section 1613 of P.L. 112-239.

P.L. 112-239, §1633, 126 Stat. 2076.

National Defense Authorization Act for FY2014, P.L. 113-66, §1613, 127 Stat. 948 (December 26, 2013) (codified at 15 U.S.C. §644(h)(1)(D)).

15 U.S.C. §644(h)(1)(A)-(C).

Consolidated Appropriations Act, P.L. 113-76, §318, 128 Stat. 178 (January 17, 2014).

See, e.g., Small Business Admin., Small Business Procurement Scorecards, Department of Energy, 2007, available at http://www.sba.gov/sites/default/files/files/doe_assessment_07.pdf (last accessed: May 12, 2014) (reporting a goal of awarding 4.34% of prime contract dollars to small businesses).

See 15 U.S.C. §644(g)(2)(D).

For further discussion, see generally CRS Report R41230, Legal Protections for Subcontractors on Federal Prime Contracts, by [author name scrubbed].

See 15 U.S.C. §644(g)(1)(B) ("The Small Business Administration and the Administrator for Federal Procurement Policy shall ... insure that the cumulative annual prime contract goals for all agencies meet or exceed the annual Governmentwide prime contract goal established by the President pursuant to this paragraph.").

See, e.g., Minority Small Business Enhancement Act, H.R. 2550, §4(a); Expanding Opportunities for Main Street Act, H.R. 2551, §104(a); Assuring Contracting Equity Act, S. 196, §2(a)(1)-(2); House Rules Committee Amendment No. 56, to H.R. 4435, as passed by the House, House of Representatives Committee on Rules, H.R. 4435, available at http://rules.house.gov/bill/113/hr-4435; House Armed Services Committee, FY15-H.R. 4435 Floor Amendments and Tracker, available at http://armedservices.house.gov/index.cfm?p=fy15-h-r-4435-floor-amendments-and-tracker. See also Greater Opportunities for Small Business Act, H.R. 4093, §2(a) (increasing only the goal for small businesses generally, from 23% to 25%).

See, e.g., Assuring Contracting Equity Act, S. 259, §2(a)(3).

See, e.g., Doing Business with the Government: The Record and Goals for Small, Minority, and Disadvantaged Businesses: Hearing Before the Subcommittee on Economic Development, Public Buildings, and Emergency Management of the Committee on Transportation and Infrastructure, House of Representatives, 110^th Cong., 2d Sess., at 1 (March 6, 2008). The most recently established statutory goal is that for contracting with service-disabled veteran-owned small businesses, which was set in 1999. The goals for contracting with other types of small businesses were established at earlier dates.

See, e.g., For Second Year in a Row, Government Meets Its Goal of Awarding Work to Small Businesses, supra note 15.

For more on the 8(a) Program, see generally CRS Report R40744, The "8(a) Program" for Small Businesses Owned and Controlled by the Socially and Economically Disadvantaged: Legal Requirements and Issues, by [author name scrubbed].

See, e.g., Minority Small Business Enhancement Act, H.R. 2550, §4(b); Expanding Opportunities for Main Street Act, H.R. 2551, §104(b); Assuring Contracting Equity Act, S. 196, §2(b).

See, e.g., Assuring Contracting Equity Act, S. 196, §2(b). All 8(a) participants are small disadvantaged businesses, but not all small disadvantaged businesses are 8(a) participants. See generally CRS Report R40987, "Disadvantaged" Small Businesses: Definitions and Designations for Purposes of Federal and Federally Funded Contracting Programs, by [author name scrubbed].

See, e.g., Small Business Fairness Act, H.R. 2441, §2; & S. 1190, §2 (expressly permitting agencies to count contracts with "teaming arrangement entities" toward their goals if a small disadvantaged business, HUBZone small business, woman-owned small business, or service-disabled veteran-owned small business "performs" the teaming arrangement entity's obligations under the contract); Assuring Contracting Equity Act, S. 196, §3 (requiring that agencies count the value of each prime contract awarded per year, regardless of whether the contract is awarded as the result of unrestricted competition or any SBA determination regarding small businesses' potential to perform). This provision is somewhat modified in the later bill of the same name (i.e., S. 259). See infra note 39.

See, e.g., Minority Small Business Enhancement Act, H.R. 2550, §4(c) (requiring the Government Accountability Office (GAO) to report on "disparities" in the award of contracts to small disadvantaged businesses, small businesses, and other firms); Assuring Contracting Equity Act, S. 259, §3 (requiring the SBA to include in its reports on goaling performance "the total value of all prime contract awards for a fiscal year, including the value of each prime contract awarded for the fiscal year, without regard to whether the prime contract was awarded as the result of unrestricted competition or any determination by the Administrator with respect to the potential for a small business concern to perform the prime contract or a subcontract under the prime contract").

Greater Opportunities for Small Business Act, H.R. 4093, §2(a) (repealing Section 15(g)(3) of the Small Business Act); House Rules Committee Amendment No. 56, to H.R. 4435, as passed by the House, House of Representatives Committee on Rules, H.R. 4435, available at http://rules.house.gov/bill/113/hr-4435; House Armed Services Committee, FY15-H.R. 4435 Floor Amendments and Tracker, available at http://armedservices.house.gov/index.cfm?p=fy15-h-r-4435-floor-amendments-and-tracker.

See P.L. 95-507, §211, 92 Stat. 1767-1770 (codified, as amended, at 15 U.S.C. §637(d)).

15 U.S.C. §637(d)(2)-(3).

15 U.S.C. §637(d)(2)-(3). Subsequently, Section 8(d) was further amended to articulate that it is also the "policy of the United States" that subcontractors be "timely paid" for their work. See 15 U.S.C. §637(d)(3)(A).

15 U.S.C. §637(d)(6)(A)-(H). The regulations implementing Section 8(d) require contractors to agree to some additional terms as part of their subcontracting plans, including the total dollars planned to be subcontracted and the total dollars planned to be subcontracted to small businesses, as well as the principal supplies and services to be subcontracted. See 48 C.F.R. §19.704(a)(2)-(3).

See supra note 15 and accompanying text.

P.L. 111-240, §1322, 124 Stat. 2540-2541 (codified at 15 U.S.C. §637(d)(6)(G)(i)). The SBA regulations implementing P.L. 111-240 have adopted an arguably narrow interpretation of when a prime contractor can be said to have "used" a small business in preparing its bid or proposal. These regulations deem such "use" to have occurred only when: (1) the offeror references the small business as a subcontractor in the bid or proposal, or associated small business subcontracting plan; (2) the offeror has a subcontract or agreement in principle to subcontract with a small business to perform a portion of the specific contract; or (3) the small business drafted a portion of the bid or proposal, or the offeror used the small business's pricing or cost information, or technical expertise, in preparing the bid or proposal, and there is written evidence of an intent or understanding that the small business would be awarded a subcontract for the related work if the offeror is awarded the contract. See Small Bus. Admin., Small Business Subcontracting: Final Rule, 79 Fed. Reg. 42390, 42405 (July 16, 2013) (codified at 13 C.F.R. §125.3(c)(3)(i)-(iii)).

P.L. 111-240, at §1334, 124 Stat. 2542-2543 (codified at 15 U.S.C. §637(d)(12)). P.L. 111-240 also requires contracting officers to consider the "unjustified failure" of a prime contractor to make full or timely payment to a subcontractor when evaluating the contractor's performance. Id. However, Section 8(d) does not expressly require that these payment-related provisions be incorporated into agency contracts, and the regulations implementing Section 8(d) do not appear to require their incorporation. See generally 48 C.F.R. Subpart 19.7.

P.L. 112-239, §1653(a)(2) & (b), 126 Stat. 2081-2083.

Id. at §1653(a)(3), 126 Stat. 2082 (codified at 15 U.S.C. §637(d)(9)) ("The failure of any contractor or subcontractor to comply in good faith with [a required subcontracting plan] ... may be considered in any past performance evaluation of the contractor."). Prior to the enactment of this statutory provision, the Federal Acquisition Regulation (FAR) expressly required agencies to consider prime contractors' performance in subcontracting with small businesses in bundled solicitations that offered "significant" opportunities for subcontracting, and also authorized its consideration in other negotiated procurements. See 48 C.F.R. §15.304(a)-(b) (2010) (requiring the use of evaluation factors that "[r]epresent the key areas of importance and emphasis ... and [s]upport meaningful comparison"); 48 C.F.R. §15.304(c)(3)(ii) (2010). Negotiated procurements are procurements wherein the government selects the vendor(s) based on factors that include, but are not limited to, price. See generally 48 C.F.R. Part 15. For more on bundling, see infra Bundling and Consolidation.

P.L. 112-239, at §1653(a)(5), 126 Stat. 2082 (codified at 15 U.S.C. §637(d)(14)-(15)).

See 15 U.S.C. §637(d)(6)(D) (generally requiring the "flow down" of subcontracting plan requirements to subcontractors at any "tier" (other than small businesses) holding subcontracts valued in excess of $700,000 ($1.5 million for construction contracts)). The term "flow down" is commonly used to describe the practice of requiring contractors, as terms of their contracts, to impose certain terms on their own contractors, as terms of these contractors' contracts. It is important to note, however, that only parties in privity of contract, or having direct contractual relationships with one another, are generally entitled to enforce a contract's terms. See, e.g., Williams v. Fenix & Scisson, 608 F.2d 1205 (9^th Cir. 1979). Subcontractors are often spoken of as belonging to various "tiers," depending upon whether their contracts are with the prime contractor (i.e., first-tier subcontractors), a contractor who has a contract with the prime contractor (i.e., second-tier subcontractors), etc.

P.L. 113-66, at §1614(a)(1), 127 Stat. 948.

Id. at §1614(a)(1), 127 Stat. 948-949. Previously, subcontracting plans had to contain recitations of all records the prime contract would maintain to demonstrate its own compliance with the subcontracting plan, not its subcontractors' compliance.

Id. at §1614(a)(4), 127 Stat. 949 (permitting prime contractors to receive credit for small businesses performing as subcontractors, at any tier, pursuant to subcontracting plans required under Section 8(d), if the subcontracting goals pertain "only to a single contract with [an] executive agency," but not if the goals pertain to a contract with more than one agency, or multiple contracts with one or more agencies). Another bill in the 113^th Congress included similar provisions as to the crediting of subcontracts, but also contained other provisions that were not enacted as part of P.L. 113-66. See generally Make Every Small Business Count Act, H.R. 2232, §3 (requiring the GAO to study the feasibility of using existing systems, such as the eSRS (Electronic Subcontracting Reporting System, http://www.esrs.gov/), to attribute subcontractors to specific contracts in the case of contractors with plans that pertain to multiple contracts or agencies).

See "Agency-Specific Provisions: Other Agency-Specific Provisions."

See, e.g., Greater Opportunities for Small Business Act, H.R. 4093, §2; House Rules Committee Amendment No. 56, to H.R. 4435, as passed by the House, House of Representatives Committee on Rules, H.R. 4435, available at http://rules.house.gov/bill/113/hr-4435; House Armed Services Committee, FY15-H.R. 4435 Floor Amendments and Tracker, available at http://armedservices.house.gov/index.cfm?p=fy15-h-r-4435-floor-amendments-and-tracker.

See Expanding Opportunities for Main Street Act, H.R. 2551, §105. The FAR currently authorizes agencies to provide similar "monetary incentives" to prime contractors whose performance in subcontracting with small disadvantaged businesses exceeds their goals. 48 C.F.R. §19.705-1 ("The contracting officer may encourage the development of increased subcontracting opportunities in negotiated acquisition by providing monetary incentives such as payments based on actual subcontracting achievement or award-fee contracting (see the clause at 52.219-10, Incentive Subcontracting Program, and 19.708(c)).").

See Assuring Contracting Equity Act, S. 196, §4; & S. 259, §4.

15 U.S.C. §637(d)(9) ("The failure of any contractor or subcontractor to comply in good faith with [a required subcontracting plan] ... may be considered in any past performance evaluation of the contractor.").

See 48 C.F.R. §15.304(c)(3)(ii). The FAR would also generally authorize the consideration of this information in cases where it is not required. See generally 48 C.F.R. §15.304(a)-(b).

See generally CRS Report R41133, Bundling and Consolidation of Contract Requirements Under the Small Business Act: Legal Overview, by [author name scrubbed].

Small Business Reauthorization Act of 1997, P.L. 105-135, §§411-417, 111 Stat. 2617-2620 (December 2, 1997) (codified, as amended, at 15 U.S.C. §632(o) & 15 U.S.C. §644(e)). Among other things, agencies must engage in market research before carrying out an acquisition strategy that could lead to a bundling of contract requirements to determine whether such bundling or consolidation is "necessary and justified." 15 U.S.C. §644(e)(2)(A). Market research describes the process of "collecting and analyzing information about capabilities within the market to satisfy agency needs." 48 C.F.R. §2.101. Part 10 of the FAR generally addresses the conduct of market research.

National Defense Authorization Act for FY2004, P.L. 108-136, div. A, tit. VIII, §801(a)(1), 117 Stat. 1538 (November 24, 2003) (codified, as amended, at 10 U.S.C. §2382 (2006)). Both the definition of consolidation and that of bundling refer to the grouping of two or more requirements for supplies or services that were previously provided or performed under separate smaller contracts into a solicitation of offers for a single contract. However, the definition of bundling expressly describes the grouped requirements as "unsuitable" for performance by small businesses, while the definition of consolidation does not. See 15 U.S.C. §657q(a)(2) ("[T]he term 'consolidation of contract requirements', with respect to contract requirements of a Federal agency, means a use of a solicitation to obtain offers for a single contract or a multiple award contract (A) to satisfy 2 or more requirements of the Federal agency for goods or services that have been provided to or performed for the Federal agency under 2 or more separate contracts lower in cost than the total cost of the contract for which the offers are solicited; or (B) to satisfy requirements of the Federal agency for construction projects to be performed at 2 or more discrete sites.").

P.L. 111-240, §1313, 124 Stat. 2538-2540 (September 27, 2010). Initially, the $2 million threshold would have applied to defense agencies only until the SBA certified that they were in compliance with the government-wide contracting goals under Section 15(g) of the Small Business Act, after which time the higher threshold under Title 10 would have applied. Id. at §1313(a), 124 Stat. 2539. However, the 112^th Congress deleted these provisions when it repealed the consolidation-related provisions in Title 10. See P.L. 112-239, §1671(c)(2), 126 Stat. 2085.

Id. at §1312, 124 Stat. 2537-2538.

P.L. 112-239, §1671(c)(1), 126 Stat. 2084.

Carl Levin and Howard P. "Buck" McKeon National Defense Authorization Act for Fiscal Year 2015, P.L. 113-291, §822, 128 Stat. 3435-36 (December 19, 2014) (codified at 15 U.S.C. §644(s)).

See, e.g., GSA Federal Procurement Data System-Next Generation (FPDS-NG) Data Element Dictionary, Version 1.4.4, June 28, 2013, at pp. 99-102, available at https://www.fpds.gov/downloads/Version_1.4.4_specs/FPDSNG_DataDictionary_V1.4.4.pdf ; Exec. Office of the Pres., OMB, Improving Federal Procurement Data Quality: Guidance for Annual Verification and Validation, May 31, 2011, at pg. 1, available at http://www.whitehouse.gov/sites/default/files/omb/procurement/memo/improving-data-quality-guidance-for-annual-verification-and-validation-may-2011.pdf.

Some legislation proposed in the 113^th Congress called for this plan to establish "consequences for failure to properly identify contracts as bundled or consolidated." See Contracting Data and Bundling Accountability Act of 2014, H.R. 4094, §2; Howard P. "Buck" McKeon National Defense Authorization Act for Fiscal Year 2015, as passed by the House, H.R. 4435, §813. However, the bundling- and consolidation-related requirements enacted by the 113^th Congress do not include this language.

See, e.g., Minority Small Business Enhancement Act, H.R. 2550, §3; Expanding Opportunities for Main Street Act, H.R. 2551, §103. In the past, at least one agency has asserted that requirements for construction are, per se, new requirements and are not encompassed by the definition of bundling. See Tyler Construction Group v. United States, 83 Fed. Cl. 94, 100-101 (2008). At least one agency has also argued that the addition of any new requirement, which was not previously performed under a separate smaller contract, means that the requirements are not bundled. See Nautical Eng'g, Inc., B-309955 (November 7, 2007) (agency asserting that there was no bundling because of the addition of a new requirement for planning services to the admittedly consolidated requirements pertaining to drydock and dockside maintenance and repair). There appears to be some precedent for the former argument in SBA regulations treating construction requirements as new for purposes of statutory and regulatory provisions that preclude agencies from obtaining supplies or services previously provided through or accepted for the 8(a) Program from non-8(a) firms unless the SBA authorizes them to do so. See 13 C.F.R. §124.504(c)(1)(ii)(B) ("Construction contracts, by their very nature (e.g., the building of a specific structure), are deemed new requirements."). The merits of the latter argument are unclear. The GAO did not address them in Nautical Engineering because it found that any bundling was justified since the government would receive measurably substantial benefits from the bundled solicitation.

See, e.g., Minority Small Business Enhancement Act, H.R. 2550, §3 (authorizing the Administrator of the SBA to delay the solicitation process for up to 10 days, and submit the matter to the OMB, whenever the SBA and the procuring agency disagree as to whether a solicitation is bundled). This time period is shorter than that currently provided for by the FAR. However, the procuring agency, not the SBA, presently determines whether any such delay occurs. See 48 C.F.R. §19.505 (generally providing for the issuance of a solicitation to be delayed for 15 days, so that the SBA may make a written appeal to the secretary or agency head, who has 30 days to respond). The proposed legislation would also have written into statute OMB's role in mediating bundling-related disagreements between the SBA and the procuring agencies, a role that is currently prescribed by Executive Order 13170. See Executive Order 13170, Increasing Opportunities and Access for Disadvantaged Businesses, 65 Fed. Reg. 60827, 60829 (October 12, 2000) (authorizing the SBA or the procuring agency to "seek assistance" from the OMB in cases where there is disagreement as to the existence or extent of bundling).

See Ralph C. Nash, Jr., Steve L. Schooner, Karen R. O'Brien-DeBakey, and Vernon J. Edwards, The Government Contracts Reference Book: A Comprehensive Guide to the Language of Procurement 549-550 (3d ed. 2007).

GSA, Federal Strategic Sourcing Initiative, available at http://www.gsa.gov/portal/content/112561?utm_source=FAS&utm_medium=print-radio&utm_term=fssi&utm_campaign=shortcuts (last accessed: May 13, 2014).

Gov't Accountability Office, Strategic Sourcing: Improved and Expanded Use Could Save Billions in Annual Procurement Costs, GAO-12-919, October 4, 2012 (discussing initiatives at various federal agencies).

See, e.g., Jason Miller, SBA Finds Fault with GSA's Strategic Sourcing Analysis for Office Supplies, Federal News Radio, April 7, 2014, available at http://www.federalnewsradio.com/522/3597975/SBA-finds-fault-with-GSAs-strategic-sourcing-analysis-for-office-supplies.

Buy Smarter and Save Act, H.R. 2694, §3(c)(6); & S. 1304, §3(c)(6).

See DHS Acquisition Accountability and Efficiency Act, H.R. 4228, §104 (tasking the Department of Homeland Security's Chief Acquisition Office with collecting baseline data and establishing performance measures regarding strategic sourcing's effects on small business).

House Rules Committee Amendment No. 250, H.R. 4435, as passed by the House, House of Representatives Committee on Rules, H.R. 4435, available at http://rules.house.gov/bill/113/hr-4435; House Armed Services Committee, FY15-H.R. 4435 Floor Amendments and Tracker, available at http://armedservices.house.gov/index.cfm?p=fy15-h-r-4435-floor-amendments-and-tracker (GAO study).

See generally CRS Report R40516, Competition in Federal Contracting: Legal Overview, by [author name scrubbed].

See generally 10 U.S.C. §2304(a)(1)(A) & 41 U.S.C. §3301(a)(1). There are certain exceptions to these requirements, including when particular circumstances exist that would allow the use of other than competitive procedures (e.g., single source for supplies or services; urgent and compelling circumstances make compliance with the competition requirements contrary to the public interest). See, e.g., 10 U.S.C. §2304(c) & 41 U.S.C. §3304(a).

41 U.S.C. §107. For more information on the "responsibility" requirements applicable to prospective federal contractors, see CRS Report R40633, Responsibility Determinations Under the Federal Acquisition Regulation: Legal Standards and Procedures, by [author name scrubbed].

15 U.S.C. §637(a) (set-asides for small businesses owned and controlled by socially and economically disadvantaged individuals and groups); 15 U.S.C. §637(m) (set-asides for women-owned small businesses); 15 U.S.C. §644(a) (set-asides for small businesses not belonging to any other category); 15 U.S.C. §657a (set-asides for HUBZone small businesses); 15 U.S.C. §657f (set-asides for service-disabled veteran-owned small businesses). Set-asides for small businesses under the authority of Section 15(a) of the Small Business Act and its implementing regulations have been found to be mandatory because the relevant provisions of the act and regulations use the word "shall," and "shall" has been construed to indicate mandatory agency action when used in this context. See, e.g., DNO Inc., B-406256, B-406256.2 (March 22, 2012); Metasoft, LLC, B-402800 (July 23, 2010). However, set-asides for specific types of small businesses under other provisions of the Small Business Act have been viewed as discretionary because the statutory and regulatory provisions authorizing them use the word "may."

For more on the Rule of Two, see generally CRS Report R42981, Set-Asides for Small Businesses: Legal Requirements and Issues, by [author name scrubbed] and [author name scrubbed].

See infra VA's "Veterans First" Contracting Program. It is important to note that the Small Business Act does not authorize set-asides or sole-source awards for firms owned by veterans who are not service-disabled, unlike the Veterans Benefits Act.

P.L. 111-240, §1331, 124 Stat. 2541 (codified at 15 U.S.C. §644(r)) (requiring the promulgation of regulations authorizing agencies to (1) "set aside part or parts of a multiple award contract" for small businesses; (2) place orders against multiple-award contracts without giving all contractors a fair opportunity to be considered for such awards; and (3) "reserve 1 or more contract awards for small business concerns under full and open multiple award procurements").

10 U.S.C. §2304c(b) (procurements of defense agencies); 41 U.S.C. §4106(c) (procurements of civilian agencies). The Federal Acquisition Streamlining Act (FASA) of 1994 established a "preference" for multiple-award contracts by requiring agencies to use them, as opposed to single-award contracts, "to the maximum extent practicable." See P.L. 103–355, tit. I, §1004(a)(1), 108 Stat. 3249 (October 13, 1994) (codified, as amended, at 10 U.S.C. §2304a(d)(3)) & id. at tit. I, §1054(a), 108 Stat. 3261 (codified, as amended, at 41 U.S.C. §4103(d)(4)(A)).

See, e.g., Steven W. Feldman & Raymond Fioravanti, Contract Dispute or Bid Protest? The Delex Systems Dilemma, 39 Pub. Cont. L.J. 483 (2010) (discussing a 2008 bid protest decision issued by the Government Accountability Office (GAO), Delex Systems, Inc., B-400403 (October 8, 2008), which had found that task and delivery orders issued under multiple-award ID/IQ contracts are generally subject to set-asides for small businesses).

P.L. 111-240, §1331, 124 Stat. 2541 (codified at 15 U.S.C. §644(r)).

Id. at §1311, 124 Stat. 2537.

In particular, the Delex decision, previously noted, did not specifically address the Federal Supply Schedules, and the General Services Administration (GSA) reportedly responded to the decision by asserting that Schedules contracts are not subject to set-asides for small businesses because they are governed by a different section of the FAR than other multiple-award contracts. See GSA Memorandum from David A. Drabkin, Senior Procurement Executive, to All GSA Contracting Activities, October 28, 2008, quoted in Arnold & Porter LLP, GAO's Delex Decision and GSA's Response: The Clash of Titans, available at http://www.arnoldporter.com/resources/documents/CA_GAOsDelexDecision&GSAsResponse_012609.pdf (copy on file with the author). The GAO's logic in Delex appears to have been largely adopted by the Court of Federal claims in a later decision, although the Armed Service Board of Contract Appeals has rejected the view that orders necessarily constitute acquisitions. See Global Computer Enters. v. United States, 88 Fed. Cl. 350, 499-50 n.121 (2009); Appeal of MCC Constr. Co., A.S.B.C.A. No. 57400, 2012-2 B.C.A. ¶ 35,106 (2012).

Federal Prison Industries Competition in Contracting Act, H.R. 2098, §2. This legislation would have also required that the proportion of the federal market for specific products or services furnished by small businesses during the previous three fiscal years be considered in any proposed expansion of FPI. Id. FPI historically enjoyed certain preferences in federal procurement, particularly as to supplies. See 18 U.S.C. §4124(a) ("The several Federal departments and agencies and all other Government institutions of the United States shall purchase at not to exceed current market prices, such products of the industries authorized by this chapter as meet their requirements and may be available."). However, several measures enacted since 2001 have sought to limit the degree to which FPI is seen, by some, as "competing" with private-sector firms for the government's business. See National Defense Authorization Act for FY2002, P.L. 107-107, §811, 115 Stat. 1180-1181 (December 28, 2001); Bob Stump National Defense Authorization Act for FY2003, P.L. 107-314, §819, 116 Stat. 2612-2613 (December 2, 2002); Intelligence Authorization Act for FY2004, P.L. 108-177, §404, 117 Stat. 2632 (December 13, 2003); Consolidated Appropriations Act, 2004, P.L. 108-199, §637, 118 Stat. 358 (January 23, 2004); Consolidated Appropriations Act, 2005, P.L. 108-447, §637, 118 Stat. 3281 (December 8, 2004); National Defense Authorization Act for FY2008, P.L. 110-181, §827, 122 Stat. 228-229 (January 28, 2008).

10 U.S.C. §2410n(b)(1) (requirements as to the procurements of defense agencies); P.L. 108-447, §637, 118 Stat. 3281 (imposing similar requirements on the procurements of civilian agencies). The requirements as to civilian agencies are reflected in FAR Subpart 8.6, but are not codified in the United States Code.

Tennier Indus., Inc., B-403946.2 (June 29, 2012). For further discussion of this decision, see CRS Legal Sidebar WSLG177, Federal Prison Industries and Small Businesses: Competing for Federal Procurement Dollars?, by [author name scrubbed].

The proposed legislation would apparently not have barred offers from FPI from being considered for contracts set-aside for various types of small businesses under other provisions of the Small Business Act (i.e., Sections 8(a), 8(m), 31 or 36).

See Natural Disaster Fairness in Contracting Act, S. 99, §4(c)(2) (exempting contracts awarded to small businesses from certain restrictions that would be imposed upon the use of noncompetitive awards "in connection with natural disaster reconstruction efforts").

P.L. 85-536, §8(a)(1)-(2), 72 Stat. 384 (codified, as amended, at 15 U.S.C. §637(a)).

See 15 U.S.C. §637(a)(5) ("Socially disadvantaged individuals are those who have been subjected to racial or ethnic prejudice or cultural bias because of their identity as a member of a group without regard to their individual qualities."); 15 U.S.C. §631(f)(1)(B)-(C) ("[W]ith respect to the Administration's business development programs the Congress finds that many ... persons are socially disadvantaged because of their identification as members of certain groups that have suffered the effects of discriminatory practices ...; [and] that such groups include, but are not limited to, Black Americans, Hispanic Americans, Native Americans, Indian tribes, Asian Pacific Americans, Native Hawaiian Organizations, and other minorities."); 13 C.F.R. §124.103(d)(4) (procedures for petitioning for recognition as a socially disadvantaged group). Individuals who are not members of groups presumed to be disadvantaged for purposes of the 8(a) Program can seek recognition of "individual social disadvantage." See 13 C.F.R. §124.103(c).

See 15 U.S.C. §637(a)(5) ("Economically disadvantaged individuals are those socially disadvantaged individuals whose ability to compete in the free enterprise system has been impaired due to diminished capital and credit opportunities as compared to others in the same business area who are not socially disadvantaged.").

See Small Bus. Admin., Minority Small Business and Capital Ownership Development Program: Final Rule, 54 Fed. Reg. 34692 (August 21, 1989) (codified, as amended, at 13 C.F.R. §124.104(c)). Individuals' ownership interests in the small business and equity in their primary personal residence are excluded when determining net worth. The SBA's net worth standards are not acquisition-related thresholds subject to periodic adjustment for inflation under Section 807 of the Ronald W. Reagan National Defense Authorization Act for FY2005. See, e.g., Dep't of Defense, Gen. Servs. Admin., & Nat'l Aeronautics & Space Admin., Inflation Adjustment of Acquisition-Related Thresholds, 75 Fed. Reg. 5716, 5717 (February 4, 2010). However, the Department of Transportation adjusted the net worth standards for its Disadvantaged Business Enterprise (DBE) program—which had previously corresponded to SBA's standards—by regulation in 2011, without an express statutory requirement or authorization to do so. Dep't of Transportation, Disadvantaged Business Enterprise Program: Program Improvements, 76 Fed. Reg. 5083, 5085-5086 (January 28, 2011) (codified at 49 C.F.R. §26.27(a)(2)(i)) (increasing the net worth threshold from $750,000 to $1.32 million).

15 U.S.C. §636(j)(10)(C)(i) (nine-year term); 15 U.S.C. §637(a)(9) (termination and early graduation); 13 C.F.R. §124.301 (exiting the program); 13 C.F.R. §124.302 (early graduation); 13 C.F.R. §124.303 (termination).

For further discussion, see CRS Report R40744, The "8(a) Program" for Small Businesses Owned and Controlled by the Socially and Economically Disadvantaged: Legal Requirements and Issues, by [author name scrubbed].

See generally CRS Report R42390, Federal Contracting and Subcontracting with Small Businesses: Issues in the 112th Congress, by [author name scrubbed] and [author name scrubbed].

See, e.g., Minority Small Business Enhancement Act, H.R. 2550, §2; Expanding Opportunities for Main Street Act, H.R. 2551, §102.

Id.

See, e.g., Not Too Small to Succeed in Business Act, H.R. 3754, 112^th Cong., §2 (finding that the 8(a) Program does not adequately prepare firms for graduation, in part, because of the "reliance of the [SBA] on outdated measures of … net worth in determining whether a company participating in the program [is] economically disadvantaged").

See, e.g., Mark Rockwell, Some Small Firms Doubt Efficacy of SBA Assistance, Fed. Computer Week, February 3, 2014, available at http://fcw.com/articles/2014/02/03/small-biz-contracting-assistance.aspx.

Native Small Business Conformity Act, S. 1607, §2(b). This amendment would have been effective upon its enactment, and would have applied to determinations of economic disadvantage made before, on, or after its enactment. The proposed legislation would have also amended Section 3(p) of the Small Business Act to include NHO-owned firms within the act's definition of HUBZone small business concern. Id. See infra note 133 and accompanying text.

Compare 15 U.S.C. §637(a)(6)(A) (tribally owned firms) with 15 U.S.C. §637(a)(6)(B) (other firms).

See 15 U.S.C. §637(a)(6)(A)-(B); 13 C.F.R. §124.109(b) ("Once an Indian Tribe establishes that it is economically disadvantaged in connection with the application for one Tribally-owned firm, it need not reestablish such status in order to have other businesses that it owns certified for 8(a) ... program participation, unless specifically requested to do so by [SBA officials].").

13 C.F.R. §124.110(c)(1).

Open Government Technology Work to More Businesses Act, H.R. 5154, §2 (calling for SBA and GSA to jointly promulgate regulations that would "streamline and simplify the registration system used by small business concerns to be considered for an award of any Federal contract" and "establish procedures by which a small business concern may self-certify its eligibility for a Federal contract under section 8 of the Small Business Act").

See, e.g., 48 C.F.R. §19.802 ("Selecting concerns for the 8(a) Program is the responsibility of the SBA and is based on the criteria established in 13 CFR 124.101-112.").

Small Business Reauthorization Act of 2000, P.L. 106-554, tit. VIII, §811, 114 Stat. 2763A-708 (December 21, 2000) (codified, as amended, at 15 U.S.C. §637(m)).

15 U.S.C. §637(a)(6)(A). Women are generally considered to be economically disadvantaged if their personal net worth is less than $750,000 (excluding their ownership interest in the business and equity interest in their primary personal residence). 13 C.F.R. §127.203(b)(1).

Implementation was initially delayed by the requirement that set-asides be limited to industries in which women are underrepresented or substantially underrepresented. The SBA's first proposed rule regarding eligible industries identified only four (i.e., intelligence; engraving and metalworking; furniture and kitchen cabinet manufacturing; and motor vehicle dealerships). U.S. Small Bus. Admin., Proposed Rule: Women-Owned Small Business Federal Contract Assistance Procedures, 72 Fed. Reg. 73285 (December 27, 2007). This proposed rule was widely criticized, including by some Members of Congress, and the SBA revised it to include an additional 27 industries. See, e.g., Sens. Snowe, Dole Offer Bill to Overhaul Rule on Women-Owned Small Business Set Asides, 89 Fed. Cont. Rep. 180 (February 19, 2008); Robert Brodsky, SBA Issues New Proposal on Small Business Program, But Same Questions Remain, Gov't Exec., September 30, 2008, available at http://www.govexec.com/dailyfed/0908/093008rb1.htm. However, before the revised rule could be finalized, the U.S. Court of Appeals for the Federal Circuit issued its decision in Rothe Development Corporation v. Department of Defense, striking down a race-conscious contracting program on the grounds that there was insufficient evidence of discrimination in the defense industry before Congress when it created the program. 545 F.3d 1023 (Fed. Cir. 2008). Although gender-conscious programs are subject to "intermediate scrutiny," not "strict scrutiny" like the race-conscious program at issue in Rothe, the SBA extended the comment period on the proposed rule in order to "review[]" how its determinations regarding the industries in which women are underrepresented might fare under Rothe's standard for a "strong basis in evidence." U.S. Small Bus. Admin., The Women-Owned Small Business Federal Contracting Assistance Procedures: Eligible Industries, 74 Fed. Reg. 1153 (January 12, 2009). Then, in March 2009, Congress enacted the Omnibus Appropriations Act, 2009, which temporarily prohibited implementation of the proposed rule. P.L. 111-8, Administrative Provisions—Small Business Administration, §522, 123 Stat. 673 (March 11, 2009). Subsequently, however, the Obama Administration finalized regulations identifying 83 industries in which women are underrepresented or substantially underrepresented, and these regulations took effect on February 4, 2011. U.S. Small Bus. Admin., Women-Owned Small Business Federal Contract Program: Final Rule, 75 Fed. Reg. 62258 (October 7, 2010).

P.L. 112-239, at §1697, 126 Stat. 2091.

See 15 U.S.C. §637(m)(2)(D) (2010).

Carl Levin and Howard P. "Buck" McKeon National Defense Authorization Act for Fiscal Year 2015, P.L. 113-291, §825, 128 Stat. 3437-38 (December 19, 2014) (codified at 15 U.S.C. §637(m)). The FAR has not yet been updated to address sole-source awards for women-owned small businesses, and no provisions appear to have been made for the inflation adjustment of the statutory monetary thresholds for sole-source awards for women-owned small businesses when the FAR was updated in October 2015. See Dep't of Defense, Gen. Servs. Admin. & Nat'l Aeronautics & Space Admin., Federal Acquisition Regulation; Inflation Adjustment of Acquisition-Related Thresholds, 80 Fed. Reg. 38293 (July 2, 2015).

P.L. 113-291, at §825(c), 128 Stat. 3438 (requiring the report be completed within three years, rather than five years, as was initially required).

See supra note 115.

See Women's Procurement Program Equalization Act, H.R. 2452, §2.

See 13 C.F.R. Part 127, Subpart C. SBA approves certain certifying entities, but does not itself certify women-owned small businesses.

See 13 C.F.R. §127.301(a) ("A contracting officer may accept a concern's self-certification in [the System for Award Management] (or any successor system) as accurate for a specific procurement reserved for award under this Part if the apparent successful offeror ... provided the required documents, which are set forth in §127.300(d), and there has been no protest or other credible information that calls into question the concern's eligibility ....").

Small Business Reauthorization Act of 1997, P.L. 105-135, tit. VI, §602(b)(1)(B), 111 Stat. 2629 (December 2, 1997) (codified, as amended, at 15 U.S.C. §657a). For purposes of Section 31, a price evaluation adjustment entails adding up to 10% to the price of all offers except (1) offers from HUBZone small businesses that have not waived the evaluation preference and (2) otherwise successful offers from small businesses, when determining which offer has the lowest price or represents the "best value" for the government. See 48 C.F.R. §52.219-4(b)(i)-(ii).

15 U.S.C. §632(p)(5)(A)(I)(aa).

Id.

See generally 15 U.S.C. §632(p)(4).

15 U.S.C. §632(p)(4)(C)(i)-(ii).

See generally CRS Report R41268, Small Business Administration HUBZone Program, by [author name scrubbed].

P.L. 112-239, §1698, 126 Stat. 2091-2092.

See Consolidated Appropriations Act, 2005, P.L. 108-447, §152, 118 Stat. 3456-3457 (December 8, 2004).

HUBZone Expansion Act, H.R. 489, §2; & S. 206, 2. Legislation to this effect was subsequently enacted in the 114^th Congress. See National Defense Authorization Act for FY2016, P.L. 114-92, §866,—Stat.—(November 25, 2015).

See Native Small Business Conformity Act, S. 1607, §2(a)(1).

See generally CRS Report R40744, The "8(a) Program" for Small Businesses Owned and Controlled by the Socially and Economically Disadvantaged: Legal Requirements and Issues, by [author name scrubbed].

Veterans Benefits Act of 2003, P.L. 108-183, tit. III, §308, 117 Stat. 2662 (December 16, 2003) (codified, as amended, in 15 U.S.C. §657f).

Veterans Benefits, Health Care, and Information Technology Act of 2006, P.L. 109-461, 120 Stat. 3431 (December 22, 2006) (codified, as amended, in part, at 38 U.S.C. §§8127-8128).

See VA's "Veterans First" Contracting Program, below.

See 15 U.S.C. §632(q)(1) & (4).

Compare 38 U.S.C. §8127(e) ("A small business concern may be awarded a contract under this section only if the small business concern and the veteran owner of the small business concern are listed in the database of veteran-owned businesses maintained by the Secretary.") with 13 C.F.R. §125.15(a) (permitting firms to "represent" that they are service-disabled veteran-owned small businesses as part of their bid or offer).

Compare 38 U.S.C. §8127(h) with 13 C.F.R. Part 125, Subparts A-E.

See, e.g., Nichole A. Best, Safeguarding Opportunities for America's Wounded Warriors: A Proposed Solution to Subcontracting Abuse in the Service-Disabled Veteran-Owned Small Business Program and the Veterans First Contracting Program, 42 Pub. Cont. L.J. 347 (2013).

See, e.g., Improving Opportunities for Service-Disabled Veteran-Owned Small Businesses Act, H.R. 2882 & S. 2334; National Defense Authorization Act for FY2015, H.R. 4435, as reported in the House, §812(a).

Compare H.R. 2882, §2; S. 2334, §2; and H.R. 4435, as reported in the House, §812(a) with 38 U.S.C. §8127(l)(2). The proposed legislation would also have deleted the text defining small business concern owned and controlled by veterans from the Veterans Benefits Act, and instead incorporated by reference the Small Business Act's definition of this term.

H.R. 2882, at §2; S. 2334, §2; H.R. 4435, as reported in the House, §812(a). As is currently the case under the Veterans Benefits Act, the proposed provisions of the Small Business Act would have applied only to the surviving spouses of veterans with service-connected disabilities rated as 100% disabling, or who die as a result of the service-connected disability. Compare 38 U.S.C. §8127(h) with H.R. 2882, at §2; S. 2334, §2; and H.R. 4435, as reported in the House, §812(a).

H.R. 4435, as reported in the House, §812(a) (including, in the amended definition of small business concern owned and controlled by service-disabled veterans within the Small Business Act, the requirement that the business be listed in the "database described in section 8127(f) of title 38, United States Code").

H.R. 2882, at §2 (including no requirement for inclusion in the VA's database); S. 2334, §2 (same).

H.R. 2882, at §4; H.R. 4435, as reported in the House, §812(b). S. 2334 did not include this requirement. It would, however, have required a GAO study of whether it is practicable for either the SBA or the VA to have "[g]overnment-wide responsibility" for verifying the status of veteran-owned small businesses.

See infra note 205 and accompanying text.

Compare 48 C.F.R. §19.1406(a)(1) ("A contracting officer shall consider a contract award to a [service-disabled veteran-owned] concern on a sole source basis ... provided ... [t]he anticipated award price of the contract, including options, will not exceed (i) $6.5 million for a requirement within the NAICS codes for manufacturing; or (ii) $4 million for a requirement within any other NAICS code....") with 48 C.F.R. §819.7007(a)(1) ("A contracting officer may award contracts to [service-disabled veteran-owned concerns on a sole source basis provided ... [t]he anticipated award price of the contract (including options) will not exceed $5 million," among other things); 48 C.F.R. §819.7008(a)(1) (similar, as to other veteran-owned small businesses).

Small disadvantaged businesses and individual owners may only participate in the 8(a) Program one time, for a maximum of nine years. See 15 U.S.C. §636(j)(10)(C)(i) (nine-year term); 15 U.S.C. §637(a)(9) (termination and early graduation); 13 C.F.R. §124.301 (exiting the 8(a) Program); 13 C.F.R. §124.302 (early graduation); 13 C.F.R. §124.303 (termination from the Program). This limitation would appear to be one reason that some Members of Congress have supported the creation of additional set-aside programs that could benefit small disadvantaged businesses and owners who have completed their 8(a) Program term.

Expanding Opportunities for Main Street Act, H.R. 2551, §205. Because the MBDA's definition includes "Hasidic Jews," basing eligibility for set-aside contracts on the MBDA's definition could potentially raise First Amendment issues insofar as "Hasidic Jews" is viewed as a religious classification, rather than a cultural one. Cf. Bd. of Ed. of Kiryas Joel Village School Dist. v. Grumet, 512 U.S. 687, 741 (1994) (Scalia, J., dissenting) (suggesting that the New York law in question, which resulted in a village that was a religious enclave being carved out as a separate school district, could be seen as reflecting cultural, rather than religious, groupings).

See, e.g., Early Stage Small Business Contracting Act of 2012, 112^th Cong., H.R. 4121 (requiring agencies to award contracts whose value is between $3,000 and "less than half the upper threshold of Section 15(j)(1) of the Small Business Act" to early stage small business concerns, or firms with fewer than 15 employees that have average annual receipts of not more than $1 million (unless the concern is in an industry with an average annual revenue standard of less than $1 million)); National Defense Authorization Act for FY2013, H.R. 4310, as passed by the House, at §1693a, 112^th Cong. (same).

Emerging Business Encouragement Act of 2014, H.R. 4876, §2(b). The meaning of the term "preference" was not defined for purposes of the proposed legislation, which would likely have meant that the procuring agencies would have been seen to have "broad discretion" to determine what was meant by this term. See, e.g., HAP Constr., Inc., B-280044.2 (September 21, 1998) ("Where a statute requires that a preference be given to a class of potential contractors, but does not specify a particular evaluation formula, agency acquisition officials have broad discretion in selecting evaluation factors that should apply to an acquisition to effectuate the statutory mandate ....").

Military Construction and Veterans Affairs, and Related Agencies Appropriations Act, 2014, H.R. 2216, as reported in the Senate, at §229. Awards to service-disabled veteran-owned small businesses would have been exempt from this requirement.

See 40 U.S.C. §3131(b)(1)-(2) (generally requiring the posting of performance and payment bonds on contracts of more than $150,000 for the construction, alteration, or repair of a "public building or public work of the Federal government"). Agencies may also require bid bonds in certain circumstances. See 48 C.F.R. §28.101-1. Performance bonds assure the government that the work under the contract will be completed. Payment bonds ensure subcontractors and materialmen under the contract that they will be able to obtain payment. Bid bonds ensure that the contractor will enter into a contract based on the terms of its bid or offer. A bond is a promise by a surety, or third party, to pay any debts of the contractor or make good any default by or failure of the contractor to satisfy a contractual obligation. See Taylor Constr. Inc. v. ABT Serv. Corp., Inc., 163 F.3d 1119 (9^th Cir. 1998).

See generally CRS Report R42037, SBA Surety Bond Guarantee Program, by [author name scrubbed].

Housing and Urban Development Act of 1970, P.L. 91-609, tit. IX, §911(a)(4), 84 Stat. 1813-1814 (December 31, 1970).

Consolidated Appropriations Act, 2001, P.L. 106-554, tit. VIII, §805(a), 114 Stat. 2763A–705 (December 21, 2000) (codified, as amended, at 15 U.S.C. §694b(a)(1)(A)).

See, e.g., 155 Cong. Rec. S1486 (daily ed., February 4, 2009) (statement by Sen. Snowe) (temporarily increasing the bond limit is necessary to "ensure that small businesses are able to secure the surety bonds they need to compete for contracts, grow, and hire more employees," and "in our current economic recession, small businesses are finding it even more difficult to secure the credit lines necessary to get bonds in the private sector"); 155 Cong. Rec. S2283 (daily ed., February 13, 2009) (statement by Sen. Cardin) (similar).

American Recovery and Reinvestment Act, P.L. 111-5, §508, 123 Stat. 158-159 (February 17, 2009). ARRA also temporarily modified the size standards for the SBA's surety bond guarantee program so that businesses were eligible for the program if they (and their affiliates) did not exceed the size standard for the primary industry in which the business was engaged. Id. This change allowed more businesses to qualify for the program, and the SBA subsequently adopted regulations that extended this change to post-ARRA guarantees. See Small Bus. Admin., Surety Bond Guarantee Program; Size Standards: Direct Final Rule, 76 Fed. Reg. 48549, 48550 (August 11, 2010) (codified at 13 C.F.R. §121.301(d)(2)). The 112^th Congress later enacted legislation that essentially codified this SBA regulation. See P.L. 112-239, §1695(c), 126 Stat. 2090.

P.L. 112-239, §1695(a), 126 Stat. 2089-2090.

15 U.S.C. §694b(c)(1)-(2).

See Security in Bonding Act, H.R. 776, §3; National Defense Authorization Act for FY2015, H.R. 4435, as reported in the House, §818. A similar provision was included in an amendment (Amendment 2, as numbered by the House Rules Committee) to the House-passed National Defense Authorization Act for FY2015. However, this amendment also addresses pledges of assets by sureties and requires GAO to study agency practices as to surety bonds). See House of Representatives Committee on Rules, H.R. 4435, available at http://rules.house.gov/bill/113/hr-4435; House Armed Services Committee, FY15-H.R. 4435 Floor Amendments and Tracker, available at http://armedservices.house.gov/index.cfm?p=fy15-h-r-4435-floor-amendments-and-tracker.

See National Defense Authorization Act for FY2016, P.L. 114-92, §874(b),—Stat.—(November 25, 2015).

See MTB Group, Inc., B-295463 (February 23, 2005) (quoting 48 C.F.R. §1.102(d)).

Gov't Accountability Office, Reverse Auctions: Guidance Is Needed to Maximize Competition and Achieve Cost Savings, GAO-14-200T, December 11, 2013 (reporting that the use of reverse auctions by the four agencies sampled—the Departments of the Army, Homeland Security, the Interior, and Veterans Affairs—increased by almost 175% between FY2008 and FY2012).

See, e.g., Mark Rockwell, Experts Debate the Value of Reverse Auctions, Fed. Computer Week, December 11, 2013, available at http://fcw.com/articles/2013/12/11/experts-debate-value-of-reverse-auctions.aspx.

Uniquely among federal agencies, DOD has regulations and related guidance which address competitive solicitations that result in a single bid or offer. See, e.g., 48 C.F.R. §215.371-2(a) ("If only one offer is received when competitive procedures were used and the solicitation allowed fewer than 30 days for receipt of proposals, the contracting officer shall (1) [c]onsult with the requiring activity as to whether the requirements document should be revised in order to promote more competition; and (2) [r]esolicit, allowing an additional period of at least 30 days for receipt of proposals."). The legislation enacted by the 113^th Congress references these regulations and guidance..

An "inherently governmental function" is a function "so intimately related to the public interest as to require performance" by federal government employees. For more on inherently governmental functions, see generally CRS Report R42325, Definitions of "Inherently Governmental Function" in Federal Procurement Law and Guidance, by [author name scrubbed].

Separate and apart from these statutory requirements, recent GAO decisions have imposed similar constraints upon agencies' conduct of reverse auctions. See generally CRS Legal Sidebar WSLG1249, GAO Decisions Would Impose Further Restrictions on Agencies' Use of Reverse Auctions, by [author name scrubbed].

Carl Levin and Howard P. "Buck" McKeon National Defense Authorization Act for Fiscal Year 2015, P.L. 113-291, §824, 128 Stat. 3436-37 (December 19, 2014) (codified at 10 U.S.C. §2304 note) ("Not later than 180 days after the date of the enactment of this Act [December 19, 2014], the Secretary of Defense shall clarify regulations on reverse auctions, as necessary, to ensure that ... reverse auctions resulting in design-build military construction contracts specifically authorized in law are prohibited.").

See, e.g., Fiscal Responsibility Using Government Accountability Laws Act of 2014, H.R. 5652, §3 (generally seeking to promote the use of reverse auctions in federal procurement, but requiring that the FAR be amended to include guidelines for ensuring that "small businesses can participate in the procurement process" when reverse auctions are used).

See, e.g., Jill R. Aitoro, Contractors: Reverse Auctions Favor Low Cost Over Best Value, Wash. Bus. J., January 28, 2011, available at http://www.bizjournals.com/washington/print-edition/2011/01/28/contractors-reverse-auctions-favor.html?page=all.

See Commonsense Construction Contracting Act, H.R. 2751, §2; National Defense Authorization Act for FY2015, as reported in the House, H.R. 4435, §815.

The proposed legislation's definition of reverse auction would have encompassed "real-time auction[s] on the Internet between a group of offerors who compete ... by submitting bids for a contract or task order with the ability to submit revised bids throughout the course of the auction, and the award being made to the offeror who submits the lowest bid." H.R. 2751, §2.

H.R. 4435, §815. This measure's definition of reverse auction is broader than that in H.R. 2751. It would have included any "real-time auction conducted through an electronic medium between a group of offerors who compete against each other by submitting offers for a contract or task order with the ability to submit revised offers throughout the course of the auction."

Compare H.R. 2751, §2 with 4435, §815.

P.L. 104–106, div. D, tit. XLI, §4105(b)(1), 110 Stat. 647 (February 10, 1996) (codified, as amended, at 41 U.S.C. §3309). These conditions include, but are not limited to, the following: (1) three or more offers are anticipated; (2) the design work must be performed before the offeror can develop a cost or price proposal; and (3) the offeror will incur substantial expenses in preparing the offer. See 41 U.S.C. §3309(b)(1)-(4).

41 U.S.C. §3309(c)(1)-(3).

41 U.S.C. §3309(c)(4).

41 U.S.C. §3309(d).

See, e.g., Joseph C. Kovars, Turning a Battleship: Design-Build on Federal Construction Projects, Winter 2011, available at http://www.ober.com/publications/1172-turning-battleship-design-build-federal-construction-projects. (noting concerns about the design-build selection process, including concerns specific to small businesses).

See Design-Build Efficiency and Jobs Act, H.R. 2750, §2.

Id. Currently, Section 4105 permits the use of "the traditional acquisition approach of design-bid-build established under sections 1101 to 1104 of title 40 or another acquisition procedure authorized by law," as well as the two-phase selection procedure it prescribes. 41 U.S.C. §3309(a).

See Design-Build Efficiency and Jobs Act, H.R. 2750, §2. In addition, GAO would have been required to assess agency compliance with these requirements. Id.

The legislation is titled a bill "[t]o amend title 41, United States Code, to require the use of two-phase selection procedures when design-build contracts are suitable for award to small business concerns, and for other purposes."

The micropurchase threshold can be lower or higher than $3,500, depending upon the supplies or services acquired and the circumstances of the acquisition. Micropurchases involving construction services subject to the Davis-Bacon Act, or other services subject to the Service Contract Act, have lower limits: $2,000 and $2,500, respectively. Those for goods or services that the agency head determines will be used to support contingency operations or facilitate defense against or recovery from nuclear, biological, chemical, or radiological attacks have higher limits: $20,000 in the case of contracts to be awarded or performed inside the United States, and $30,000 in the case of those outside the United States. 48 C.F.R. §2.101.

In the case of supplies or services to be used in support of contingency operations or to facilitate defense against or recovery from nuclear, biological, chemical, or radiological attacks, the simplified acquisition threshold is $300,000 for contracts awarded and performed inside the United States, and $1 million for contracts awarded and performed outside the United States. 48 C.F.R. §2.101.

15 U.S.C. §644(j)(1). The regulations implementing Section 15(j) do, however, place certain limitations on the circumstances in which "small purchases" must be exclusively reserved for small businesses. See 48 C.F.R. §19.000(b) (excluding contracts awarded and/or performed overseas); 48 C.F.R. §8.404(a) (excluding purchases through the Federal Supply Schedules); 48 C.F.R. §19.502-2(a) (authorizing agencies to solicit small purchases on an unrestricted basis if they receive "no acceptable offers from responsible small businesses").

See, e.g., Danielle Ivory, Big Firms Edge Out Small for Billions in Awards, Bloomberg Gov't, November 13, 2011 (reporting that "about $4.74 billion, or 45 percent, of more than $10.6 billion targeted for small businesses under government acquisition rules were won by bigger competitors in the year that ended Sept. 30, 2011").

P.L. 111-240, §1332, 124 Stat. 2541.

Exec. Office of the President, Office of Mgmt. & Budget, Increasing Opportunities for Small Businesses in Purchase Card Micro-Purchases, December 19, 2011, available at http://www.whitehouse.gov/sites/default/files/omb/procurement/memo/increasing-opportunities-for-small-businesses-in-purchase-card-micro-purchases.pdf. For more on government-wide commercial purchase cards, see generally CRS Report RL34602, Misuse of Government Purchase Cards, by [author name scrubbed]. Other simplified acquisition procedures include purchase orders, blanket purchase agreements, imprest funds, third-party drafts, and certain standard forms. See 48 C.F.R. Subpart 13.3.

See Expanding Opportunities for Main Street Act, H.R. 2551, §101.

Id. This legislation would also have given the SBA additional control over procuring agencies by requiring agencies to notify the SBA of any determinations by such agencies that award of a contract to a small business is not practicable. The legislation would have authorized the SBA to open the solicitation for the submission of additional offers, if it determines that doing so is appropriate.

Id.

15 U.S.C. §632(a)(1)-(2).

See P.L. 85-536, §2, 72 Stat. 384. The Small Business Act of 1953, which established the SBA as a temporary agency, included similar provisions. See P.L. 83-163, §203, 67 Stat. 233 (July 30, 1953).

P.L. 112-239, §1661, 126 Stat. 2083-2084. This legislation also prohibits the SBA from limiting the number of size standards, and from establishing or approving a single size standard for a grouping of 4-digit North American Industry Classification System (NAICS) codes unless the SBA justifies that such a standard is appropriate for each industry classification included within the grouping. Id. The limitations on SBA's authority to establish single size standards for multiple NAICS codes, in particular, are intended to address issues such as those raised by the SBA's recently proposed grouping of architect and engineer services. Applying the same standards to architect and engineering firms would reportedly have resulted in 97.8% of all architecture firms qualifying as small under the SBA's proposed size standard. See, e.g., Committee Members Introduce Additional Legislation to Reform Small Business Contracting, February 8, 2012, available at http://smallbusiness.house.gov/News/DocumentSingle.aspx?DocumentID=278695; Objections to Proposed Size Standard Change Raised at House Small Business Hearing, 95 Fed. Cont. Rep. 484 (May 10, 2011).

Fairness and Transparency in Contracting Act, H.R. 1622, §3 (establishing a new definition of independently owned and operated that excludes these types of firms).

Currently, the regulations implementing the Small Business Act provide that the SBA generally "counts the receipts, employees, or other measure of size of the concern whose size is at issue and all of its domestic and foreign affiliates, regardless of whether the affiliates are organized for profit." 13 C.F.R. §121.103(a)(6). See also 13 C.F.R. §121.103(a)(1) ("Concerns and entities are affiliates of each other when one controls or has the power to control the other, or a third party or parties controls or has the power to control both. It does not matter whether control is exercised, so long as the power to control exists."). Many, although not all, of the set-aside programs similarly limit eligibility to U.S. citizen owners. See, e.g., 13 C.F.R. §124.101 (8(a) Program); 13 C.F.R. §126.200(a) (HUBZone program); 13 C.F.R. §127.200(a)-(b) (women-owned small business program). The Office of Legal Counsel at the Department of Justice has opined that the SBA regulations limiting eligibility for the 8(a) Program to citizens do not deprive resident aliens of due process in violation of the Fifth Amendment to the U.S. Constitution. See U.S. Dep't of Justice, Office of Legal Counsel, Constitutionality of 13 C.F.R. §124.103 Establishing Citizenship Requirement for Participation in 8(a) Program, March 4, 1996, available at http://www.justice.gov/olc/sba8.htm.

Fairness and Transparency in Contracting Act, H.R. 1622, §§4 & 7.

Id. at §8.

Id. at §9. Currently, regulations establish procedures whereby questions about certain firms' size or status may be brought to the SBA. See, e.g., 13 C.F.R. §124.112(c) ("Upon receipt of specific and credible information alleging that a Participant no longer meets the eligibility requirements for continued program eligibility, SBA will review the concern's eligibility for continued participation in the program."). However, such provisions generally do not require the SBA to investigate in a "timely manner," and similar provisions are not made for all set-aside programs. For more on debarment, see generally CRS Report RL34753, Procurement Debarment and Suspension of Government Contractors: Legal Overview, by [author name scrubbed].

See, e.g., 42 U.S.C. §4370d (requiring the Environmental Protection Agency to ensure that at least 8% of federal funding for prime contracts and subcontracts awarded "in support of authorized programs, including grants, loans, and contracts for wastewater treatment and leaking underground storage tanks grants" be made available to small businesses owned and controlled by socially and economically disadvantaged individuals or Historically Black Colleges and Universities); 51 U.S.C. §30304 (requiring the National Aeronautics and Space Administration to establish as a goal that at least 8% of the total value of prime contracts and subcontracts awarded annually in support of certain programs be made to small businesses or other organizations owned or controlled by socially and economically disadvantaged individuals). As discussed previously, the government-wide goal for the percentage of prime contract and subcontract dollars awarded to small disadvantaged businesses is generally 5%, and agency goals have historically paralleled the government-wide goals. See supra Government-Wide and Agency-Specific Goals.

P.L. 109-461, 120 Stat. 3431 (December 22, 2006) (codified, in part, at 38 U.S.C. §§8127-8128). Section 502's provisions as to set-asides, in particular, use the word "shall," which has generally been construed to mean that the VA is required to set aside contracts for service-disabled veteran-owned small businesses and other veteran-owned small businesses under Section 502 whenever the Rule of Two is satisfied. But see Kingdomware Techs., Inc. v. United States, 754 F.3d 923 (Fed. Cir. 2014), aff'g, on other grounds, 107 Fed. Cl. 226 (2012) (finding that VA is not required to procure the supplies in question through a set-aside for veteran-owned small businesses, instead of through the Federal Supply Schedules); Alternative Contracting Enterprises, LLC; Pierce First Med., B-406265, B-406266, B-406291, B-406291.2, B-406318.1, B-406318.2, B-406343, B-406356, B-406357, B-406369, B-406371, B-406374, B-406400, B-406404, B-406428 (March 26, 2012) (upholding the VA's determination to procure certain items through the AbilityOne Program, rather than through a set-aside for veteran-owned small businesses). By comparison, the Small Business Act authorizes—but does not require—all executive branch agencies to set aside contracts for service-disabled veteran-owned small businesses when the "Rule of Two" is satisfied. Similarly, the Small Business Act does not authorize set-asides for small businesses owned by veterans who are not service-disabled. See supra Table 1. The Supreme Court is currently reviewing the Kingdomware decision. See CRS Legal Sidebar WSLG1177, Federal District Court Bars Implementation of the Obama Administration's Latest Deferred Action Initiatives (Part 2): Reviewability and Rulemaking under the APA, by [author name scrubbed].

38 U.S.C. §8127(a). Section 502 further requires the VA to establish a "review mechanism" to ensure that subcontracts counted toward the VA's goals are "actually awarded" to a qualifying business. Id.

38 U.S.C. §8127(b)-(d). Under these provisions, the VA is generally required to set aside contracts whose value exceeds the simplified acquisition threshold (generally $150,000) for veteran-owned small businesses if the Rule of Two is satisfied. However, the VA also has discretion to make sole-source awards of contracts (1) whose value is below the simplified acquisition threshold, or (2) whose value exceeds the simplified acquisition threshold, but is below $5 million, provided that the Rule of Two is not satisfied.

38 U.S.C. §8127(i)(1)-(4). For further discussion of priority, see infra note 220 and accompanying text.

38 U.S.C. §8127(e), (f), & (h). For further discussion, see infra note 216.

38 U.S.C. §8127(g). Among other things, these provisions establish a mandatory statutory debarment for persons who "willfully and intentionally misrepresent their status." See infra note 212 and accompanying text.

Veterans' Benefits Act of 2010, P.L. 111-275, tit. I, §104(b)(1)-(2), 124 Stat. 2867-68 (October 13, 2010).

Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, P.L. 112-154, tit. VII, §706, 126 Stat. 1206 (August 6, 2012).

Id.

H.R. 2882, at §3; H.R. 4435, as reported in the House, §812(c).

H.R. 2882, at §§3-4.

38 U.S.C. §8127(h) (generally permitting the surviving spouses of veterans who had service-connected disabilities rated 100% disabling, or who died as a result of service-connected disabilities, to participate in the Veterans First program until the earliest of the following: (1) the date on which the surviving spouse remarries; (2) the date on which the surviving spouse relinquishes an ownership interest in the small business; or (3) the date that is 10 years after the date of the veteran's death).

See, e.g., Service-Disabled Veteran Owned Small Business Relief Act, H.R. 3098, §2; Veterans Small Business Opportunity and Protection Act of 2013, S. 430, §2. The term of participation for surviving spouses of veterans who have service-connected disabilities rated at less than 100% and do not die from a service-connected disability would generally have been 3 years, not 10 years.

See Veterans Small Business Opportunity and Protection Act of 2013, S. 430, §3.

See Preference for Local Veteran Contractors Act, H.R. 2358, §2.

38 U.S.C. §8127(i)(1)-(4).

See Preference for Local Veteran Contractors Act, H.R. 2358, §2.

See Protecting Business Opportunities for Veterans Act, H.R. 4281, §2; A Bill to Amend Title 38, United States Code, to Authorize the Secretary of Veterans Affairs to Recoup Certain Bonuses or Awards Paid to Employees of the Department of Veterans Affairs, H.R. 5095, §2.

See 15 U.S.C. §657s(a) (generally requiring that small businesses awarded contracts under the authority of the Small Business Act perform work representing at least 50% of the amounts paid to them under the under the contract themselves or subcontract the work to a "similarly situated entity" (i.e., another small business).

See 15 U.S.C. §657s(d)(1) ("With respect to a category of contracts to which a requirement under subsection (a) does not apply, the Administrator is authorized to establish, by rule (after providing notice and an opportunity for public comment), a requirement that a covered small business concern may not expend on subcontractors more than a specified percentage of the amount paid to the concern under a contract in that category.").

See supra note 26 and accompanying text.

Carl Levin and Howard P. "Buck" McKeon National Defense Authorization Act for Fiscal Year 2015, P.L. 113-291, §821, 128 Stat. 3433-35 (December 19, 2014) (codified at 15 U.S.C. §637 note). Initially established in 1989, this program authorizes the negotiation, administration, and reporting of subcontracting plans on a plant, division, or company-wide basis (rather than on the basis of individual contracts) as a way of assessing whether such "comprehensive" plans may increase subcontracting opportunities for small businesses and reduce administrative burdens on prime contractors. National Defense Authorization Act for FY1990 and 1991, P.L. 101-189, §834, 103 Stat. 1509-1510 (November 29, 1989) (codified, as amended, at 15 U.S.C. §637 note).

Workforce Innovation and Opportunity Act, P.L. 113-128, §147(b)(1), 128 Stat. 1544 (July 22, 2014) (providing that "[i]f an entity meets [certain requirements related to performance] as applied to a particular Job Corps center, such entity shall be allowed to compete in any competitive selection process carried out for an award to operate such center"). Set-asides for small businesses had been recognized as competitive procedures in prior litigation involving contracts for Job Corps center operators. See, e.g., Res-Care, Inc. v. United States, 107 Fed. Cl. 136 (2012); Mgmt. & Training Corp. v. United States, No. 12-561C, 2012 U.S. Claims LEXIS 1580 (November 29, 2012).

National Defense Authorization Act for FY2014, P.L. 113-66, §1611, 127 Stat. 946 (December 26, 2013) (codified at 10 U.S.C. §2419(a)(2)(A)). The contract terms must also encourage the contractor to "develop capabilities and characteristics typically desired in contractors that are competitive as an other-than-small business in that industry." Id.

P.L. 113-66, §1615, 127 Stat. 950 (exempting contracts that are subject to limitations on subcontracting pursuant to the Small Business Act from certain requirements as to the review and justification of "pass-through" contracts under Section 802 of the National Defense Authorization Act for Fiscal Year 2013); P.L. 113-76, §7057(h),128 Stat. 550 (permitting the U.S. Agency for International Development (USAID) to provide an exception to the fair opportunity process for placing task orders under such contracts when the order is placed with any category of small or small disadvantaged business ); Consolidated and Further Continuing Appropriations Act, 2015, P.L. 113-235, §7057(h), 128 Stat. 2665-66 (December 16, 2014) (same). A pass-through contract is one where a contractor adds "no, or negligible, value" to the work performed, instead arranging for it to be subcontracted. See generally 10 U.S.C. §2324 note (requiring the promulgation of regulations to address "excessive pass-through charges"). USAID has been granted such authority for a number of years. However, such authority may have less significance since the enactment of P.L. 111-240 which generally permits agencies to set aside orders under multiple-award contracts notwithstanding the "fair opportunity" requirements. See supra note 87-89.

See, e.g., Transportation Security Acquisition Reform Act, H.R. 2719, §3; & S. 1893, §3 (requiring the Transportation Security Administration to submit to specified congressional committees a report restating the Administration's published goals for contracting with small businesses; its performance record with respect to these goals during the prior fiscal year; an itemized list of challenges in meeting the goals; and an action plan for addressing these challenges); Federal Law Enforcement Training Centers Reform and Improvement Act, H.R. 3842, §2 (tasking the Director of the Federal Law Enforcement Training Center with responsibility for, among other things, ensuring that a "fair proportion" of federal contract dollars are awarded to small businesses).

See DHS Acquisition Accountability and Efficiency Act, H.R. 4228, §104 (tasking the Department of Homeland Security Chief Acquisition Officer with responsibility for (1) collecting baseline data and establishing performance measures as to the impact of strategic sourcing on small businesses and (2) ensuring that a "fair proportion" of contract and subcontract dollars is awarded to small businesses, opportunities for small business participation are "maximized," and small businesses that achieve qualified vendor status for security-related technologies are given the opportunity to compete).

See Greater Opportunities for Small Business Act, H.R. 4093, §2(a) (repealing Section 15(g)(3) of the Small Business Act, which permits the DOE to count first-tier subcontracts awarded by its management and operating contractors toward the DOE and government-wide prime contracting goals); House Rules Committee Amendment No. 56, to H.R. 4435, as passed by the House, House of Representatives Committee on Rules, H.R. 4435, available at http://rules.house.gov/bill/113/hr-4435; House Armed Services Committee, FY15-H.R. 4435 Floor Amendments and Tracker, available at http://armedservices.house.gov/index.cfm?p=fy15-h-r-4435-floor-amendments-and-tracker (same).