§ 694–1. Planning design or installation of pollution control facilities

• (a) For purposes of this section, the term—
  • (1) “pollution control facilities” means such property (both real and personal) as the Administration in its discretion determines is likely to help prevent, reduce, abate, or control noise, air or water pollution or contamination by removing, altering, disposing or storing pollutants, contaminants, wastes, or heat, and such property (both real and personal) as the Administration determines will be used for the collection, storage, treatment, utilization, processing, or final disposal of solid or liquid waste.
  • (2) “person” includes corporations, companies, associations, firms, partnerships, societies, joint stock companies, States, territories, and possessions of the United States, or subdivisions of any of the foregoing, and the District of Columbia, as well as individuals.
  • (3) “qualified contract” means a lease, sublease, loan agreement, installment sales contract, or similar instrument, entered into between a small business concern and any person.
• (b) The Administration may, whenever it determines that small business concerns are or are likely to be at an operational or financing disadvantage with other business concerns with respect to the planning, design, or installation of pollution control facilities, or the obtaining of financing therefor (including financing by means of revenue bonds issued by States, political subdivisions thereof, or other public bodies), guarantee the payment of rentals or other amounts due under qualified contracts. Any such guarantee may be made or effected either directly or in cooperation with any qualified surety company or other qualified company through a participation agreement with such company. The foregoing powers shall be subject, however, to the following restrictions and limitations:
  • (1) Notwithstanding any other law, rule, or regulation or fiscal policy to the contrary, the guarantee authorized in the case of pollution control facilities or property shall be issued when such property is acquired by the use of proceeds from industrial revenue bonds which provide the holders interest which is exempt from Federal income tax, and the Administration is expressly prohibited from denying such guarantee due to the property being so acquired.
  • (2) Any such guarantee shall be for the full amount of the payments due under such qualified contract and shall be a full faith and credit obligation of the United States.
  • (3) No guarantee shall be issued by the Administration unless the Administration determines that there exists a reasonable expectation that the small business concern in behalf of which the guarantee is issued will perform the covenants and conditions of the qualified contract.
• (c) The Administration shall fix a uniform annual fee for any guarantee issued under this section which shall be payable at such time and under such conditions as may be prescribed by the Administrator. The fee shall be set at an amount which the Administration deems reasonable and necessary and shall be subject to periodic review in order that the lowest fee that experience under the program shows to be justified will be placed into effect. In no case shall such amount be less than 1 per centum or more than 3½ per centum per annum of the minimum annual guaranteed rental payable under any qualified contract guaranteed under this section. The Administration may also fix such uniform fees for the processing of applications for guarantees under this section as the Administrator determines are reasonable and necessary to pay the administrative expenses that are incurred in connection therewith.
• (d) In connection with the guarantee of rentals under any qualified contract pursuant to authority conferred by this section, the Administrator may require, in order to minimize the financial risk assumed under such guarantee—
  • (1) that the lessee pay an amount, not to exceed one-fourth of the average annual payments for which a guarantee is issued under this section, which shall be held in escrow and shall be available (A) to meet rental charges accruing in any month for which the lessee is in default, or (B) if no default occurs during the term of the qualified contract, for application (with accrued interest) toward final payments of rental charges under the qualified contract;
  • (2) that upon occurrence of a default under the qualified contract, the lessor shall, as a condition precedent to enforcing any claim under the qualified contract guarantee, utilize the entire period, for which there are funds available in escrow for payment of rentals, in reasonable diligent efforts to eliminate or minimize losses, by releasing the property covered by the qualified contract to another qualified lessee, and no claim shall be made or paid under the guarantee until such effort has been made and such escrow funds have been exhausted;
  • (3) that any guarantor of the qualified contract will become a successor of the lessor for the purpose of collecting from a lessee in default rentals which are in arrears and with respect to which the lessor has received payment under a guarantee made pursuant to this section; and
  • (4) such other provisions, not inconsistent with the purposes of this section as the Administrator may in his discretion require.
• (e) Any guarantee issued under this section may be assigned with the permission of the Administration by the person to whom the payments under qualified contracts are due.
• (f) Section 693 of this title shall apply to the administration of this section.

§ 694–2. Revolving fund for qualified contract guarantees; investment of idle funds

There is created within the Treasury a separate fund for guarantees which shall be available to the Administrator without fiscal year limitations as a revolving fund for the purpose of section 694–1 of this title . All amounts received by the Administrator, including any moneys, property, or assets derived by him from his operations in connection with section 694–1 of this title shall be deposited in the fund. All expenses and payments, excluding administrative expenses, pursuant to operations of the Administrator under section 694–1 of this title shall be paid from the fund. Moneys in the fund not needed for the payment of current operating expenses or for the payment of claims arising under this part may be invested in bonds or other obligations of, or bonds or other obligations guaranteed as to principal and interest by, the United States; except that moneys provided as capital for the fund shall not be so invested.

§ 631. Declaration of policy

• (a) The essence of the American economic system of private enterprise is free competition. Only through full and free competition can free markets, free entry into business, and opportunities for the expression and growth of personal initiative and individual judgment be assured. The preservation and expansion of such competition is basic not only to the economic well-being but to the security of this Nation. Such security and well-being cannot be realized unless the actual and potential capacity of small business is encouraged and developed. 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 or subcontracts for property and services for the Government (including but not limited to contracts or subcontracts for maintenance, repair, and construction) 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.
• (b)
  • (1) It is the declared policy of the Congress that the Federal Government, through the Administrator of the Small Business Administration, acting through the Associate Administrator for International Trade, and in cooperation with the Department of Commerce and other relevant State and Federal agencies, should aid and assist small businesses, as defined under this chapter, to increase their ability to compete in international markets by—
    • (A) enhancing their ability to export;
    • (B) facilitating technology transfers;
    • (C) enhancing their ability to compete effectively and efficiently against imports;
    • (D) increasing the access of small businesses to long-term capital for the purchase of new plant and equipment used in the production of goods and services involved in international trade;
    • (E) disseminating information concerning State, Federal, and private programs and initiatives to enhance the ability of small businesses to compete in international markets; and
    • (F) ensuring that the interests of small businesses are adequately represented in bilateral and multilateral trade negotiations.
  • (2) The Congress recognizes that the Department of Commerce is the principal Federal agency for trade development and export promotion and that the Department of Commerce and the Small Business Administration work together to advance joint interests. It is the purpose of this chapter to enhance, not alter, their respective roles.
• (c) It is the declared policy of the Congress that the Government, through the Small Business Administration, should aid and assist small business concerns which are engaged in the production of food and fiber, ranching, and raising of livestock, aquaculture, and all other farming and agricultural related industries; and the financial assistance programs authorized by this chapter are also to be used to assist such concerns.
• (d)
  • (1) The assistance programs authorized by sections 636(i) and 636(j) of this title are to be utilized to assist in the establishment, preservation, and strengthening of small business concerns and improve the managerial skills employed in such enterprises, with special attention to small business concerns (1) located in urban or rural areas with high proportions of unemployed or low-income individuals; or (2) owned by low-income individuals; and to mobilize for these objectives private as well as public managerial skills and resources.
  • (2)
    • (A) With respect to the programs authorized by section 636(j) of this title , the Congress finds—
      • (i) that ownership and control of productive capital is concentrated in the economy of the United States and certain groups, therefore, own and control little productive capital;
      • (ii) that certain groups in the United States own and control little productive capital because they have limited opportunities for small business ownership;
      • (iii) that the broadening of small business ownership among groups that presently own and control little productive capital is essential to provide for the well-being of this Nation by promoting their increased participation in the free enterprise system of the United States;
      • (iv) that such development of business ownership among groups that presently own and control little productive capital will be greatly facilitated through the creation of a small business ownership development program, which shall provide services, including, but not limited to, financial, management, and technical assistance. 1 1 So in original. The period probably should be a semicolon.
      • (v) that the power to let Federal contracts pursuant to section 637(a) of this title can be an effective procurement assistance tool for development of business ownership among groups that own and control little productive capital; and
      • (vi) that the procurement authority under section 637(a) of this title shall be used only as a tool for developing business ownership among groups that own and control little productive capital.
    • (B) It is therefore the purpose of the programs authorized by section 636(j) of this title to—
      • (i) foster business ownership and development by individuals in groups that own and control little productive capital; and
      • (ii) promote the competitive viability of such firms in the marketplace by creating a small business and capital ownership development program to provide such available financial, technical, and management assistance as may be necessary.
• (e) Further, it is the declared policy of the Congress that the Government should aid and assist victims of floods and other catastrophes, and small-business concerns which are displaced as a result of federally aided construction programs.
• (f)
  • (1) with 2 2 So in original. Probably should be capitalized. respect to the Administration’s business development programs the Congress finds—
    • (A) that the opportunity for full participation in our free enterprise system by socially and economically disadvantaged persons is essential if we are to obtain social and economic equality for such persons and improve the functioning of our national economy;
    • (B) that many such persons are socially disadvantaged because of their identification as members of certain groups that have suffered the effects of discriminatory practices or similar invidious circumstances over which they have no control;
    • (C) 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;
    • (D) that it is in the national interest to expeditiously ameliorate the conditions of socially and economically disadvantaged groups;
    • (E) that such conditions can be improved by providing the maximum practicable opportunity for the development of small business concerns owned by members of socially and economically disadvantaged groups;
    • (F) that such development can be materially advanced through the procurement by the United States of articles, equipment, supplies, services, materials, and construction work from such concerns; and
    • (G) that such procurements also benefit the United States by encouraging the expansion of suppliers for such procurements, thereby encouraging competition among such suppliers and promoting economy in such procurements.
  • (2) It is therefore the purpose of section 637(a) of this title to—
    • (A) promote the business development of small business concerns owned and controlled by socially and economically disadvantaged individuals so that such concerns can compete on an equal basis in the American economy;
    • (B) promote the competitive viability of such concerns in the marketplace by providing such available contract, financial, technical, and mangement 3 3 So in original. Probably should be “management”. assistance as may be necessary; and
    • (C) clarify and expand the program for the procurement by the United States of articles, supplies, services, materials, and construction work from small business concerns owned by socially and economically disadvantaged individuals.
• (g) In administering the disaster loan program authorized by section 636 of this title , to the maximum extent possible, the Administration shall provide assistance and counseling to disaster victims in filing applications, providing information relevant to loan processing, and in loan closing and prompt disbursement of loan proceeds and shall give the disaster program a high priority in allocating funds for administrative expenses.
• (h)
  • (1) With respect to the programs and activities authorized by this chapter, the Congress finds that—
    • (A) women owned business has become a major contributor to the American economy by providing goods and services, revenues, and jobs;
    • (B) over the past two decades there have been substantial gains in the social and economic status of women as they have sought economic equality and independence;
    • (C) despite such progress, women, as a group, are subjected to discrimination in entrepreneurial endeavors due to their gender;
    • (D) such discrimination takes many overt and subtle forms adversely impacting the ability to raise or secure capital, to acquire managerial talents, and to capture market opportunities;
    • (E) it is in the national interest to expeditiously remove discriminatory barriers to the creation and development of small business concerns owned and controlled by women;
    • (F) the removal of such barriers is essential to provide a fair opportunity for full participation in the free enterprise system by women and to further increase the economic vitality of the Nation;
    • (G) increased numbers of small business concerns owned and controlled by women will directly benefit the United States Government by expanding the potential number of suppliers of goods and services to the Government; and
    • (H) programs and activities designed to assist small business concerns owned and controlled by women must be implemented in such a way as to remove such discriminatory barriers while not adversely affecting the rights of socially and economically disadvantaged individuals.
  • (2) It is, therefore, the purpose of those programs and activities conducted under the authority of this chapter that assist women entrepreneurs to—
    • (A) vigorously promote the legitimate interests of small business concerns owned and controlled by women;
    • (B) remove, insofar as possible, the discriminatory barriers that are encountered by women in accessing capital and other factors of production; and
    • (C) require that the Government engage in a systematic and sustained effort to identify, define and analyze those discriminatory barriers facing women and that such effort directly involve the participation of women business owners in the public/private sector partnership.
• (i) None of the funds made available pursuant to this chapter may be used to provide any direct benefit or assistance to any individual in the United States if the Administrator or the official to which the funds are made available receives notification that the individual is not lawfully within the United States.
• (j) In complying with the statement of congressional policy expressed in subsection (a), relating to fostering the participation of small business concerns in the contracting opportunities of the Government, each Federal agency, to the maximum extent practicable, shall—
  • (1) comply with congressional intent to foster the participation of small business concerns as prime contractors, subcontractors, and suppliers;
  • (2) structure its contracting requirements to facilitate competition by and among small business concerns, taking all reasonable steps to eliminate obstacles to their participation; and
  • (3) avoid unnecessary and unjustified bundling of contract requirements that precludes small business participation in procurements as prime contractors.

§ 631a. Congressional declaration of small business economic policy

• (a) For the purpose of preserving and promoting a competitive free enterprise economic system, Congress hereby declares that it is the continuing policy and responsibility of the Federal Government to use all practical means and to take such actions as are necessary, consistent with its needs and obligations and other essential considerations of national policy, to implement and coordinate all Federal department, agency, and instrumentality policies, programs, and activities in order to: foster the economic interests of small businesses; insure a competitive economic climate conducive to the development, growth and expansion of small businesses; establish incentives to assure that adequate capital and other resources at competitive prices are available to small businesses; reduce the concentration of economic resources and expand competition; and provide an opportunity for entrepreneurship, inventiveness, and the creation and growth of small businesses.
• (b) Congress further declares that the Federal Government is committed to a policy of utilizing all reasonable means, consistent with the overall economic policy goals of the Nation and the preservation of the competitive free enterprise system of the Nation, to establish private sector incentives that will help assure that adequate capital at competitive prices is available to small businesses. To fulfill this policy, departments, agencies, and instrumentalities of the Federal Government shall use all reasonable means to coordinate, create, and sustain policies and programs which promote investment in small businesses, including those investments which expand employment opportunities and which foster the effective and efficient use of human and natural resources in the economy of the Nation.

§ 631b. Reports to Congress; state of small business

• (a) The President shall transmit to the Congress not later than January 20 of each year a Report on Small Business and Competition which shall—
  • (1) examine the current role of small business in the economy on an industry-by-industry basis;
  • (2) present current and historical data on production, employment, investment, population, job creation and retention, annual business failures, annual business startups, and other economic variables for small business in the economy as a whole and for small business in each sector of the economy, with, to the extent practicable, specific statistics divided as to urban, suburban, and rural areas;
  • (3) identify economic trends which will or may affect the small business sector and the state of competition;
  • (4) examine the effects on small business and competition of policies, programs, and activities, including, but not limited to the Internal Revenue Code [ 26 U.S.C. 1 et seq.], the Employee Retirement Income Security Act [ 29 U.S.C. 1001 et seq.], the Securities Act of 1933 [ 15 U.S.C. 77a et seq.], and the Securities Exchange Act of 1934 [ 15 U.S.C. 78a et seq.], and regulations promulgated thereunder; identify problems generated by such policies, programs, and activities; and recommend legislative and administrative solutions to such problems; and
  • (5) recommend a program for carrying out the policy declared in section 631a of this title , together with such recommendations for legislation as he may deem necessary or desirable.
• (b) The President also shall transmit simultaneously as an appendix to such annual report, a report, by agency and department, on the total dollar value of all Federal contracts exceeding $10,000 in amount and the dollar amount (including the subcontracts thereunder in excess of $10,000) awarded to small, minority-owned, female-owned, and veteran-owned businesses.
• (c) The President may transmit from time to time to the Congress reports supplementary to the Report on Small Business and Competition, each of which shall include such supplementary or revised recommendations as he may deem necessary or desirable to achieve the policy declared in section 631a of this title .
• (d) The Report on Small Business and Competition and all supplementary reports transmitted under subsections (b) and (c) of this section shall, when transmitted to Congress, be referred to the Senate Select Committee on Small Business and the Committee on Small Business of the House of Representatives.
• (e) The information and data required to be reported pursuant to subsection (a) shall separately detail those portions of such information and data that are relevant to—
  • (1) small business concerns owned and controlled by socially and economically disadvantaged individuals, by gender, as defined pursuant to section 637(d) of this title ;
  • (2) small business concerns owned and controlled by women; and
  • (3) 2 2 So in original. Two pars. (3) have been enacted. qualified HUBZone small business concern (as defined in section 632(p) 3 3 See References in Text note below. of this title).
  • (3) 2 small business concerns owned and controlled by veterans, as defined in section 632(q) of this title , and small business concerns owned and controlled by service-disabled veterans, as defined in such section 632(q) of this title .

§ 631c. Small Business Manufacturing Task Force

• (a) The Administrator of the Small Business Administration (referred to in this subtitle 1 1 See References in Text note below. as the “Administrator”) shall establish a Small Business Manufacturing Task Force (referred to in this section as the “Task Force”) to address the concerns of small manufacturers.
• (b) The Administrator shall assign a member of the Task Force to serve as chair of the Task Force.
• (c) The Task Force shall—
  • (1) evaluate and identify whether programs and services are sufficient to serve the needs of small manufacturers;
  • (2) actively promote the programs and services of the Small Business Administration that serve small manufacturers; and
  • (3) identify and study the unique conditions facing small manufacturers and develop and propose policy initiatives to support and assist small manufacturers.
• (d)
  • (1) The Task Force shall meet not less than 4 times per year, and more frequently if necessary to perform its duties.
  • (2) A majority of the members of the Task Force shall constitute a quorum to approve recommendations or reports.
• (e)
  • (1) Each member of the Task Force shall serve without compensation in addition to that received for services rendered as an officer or employee of the United States.
  • (2) Any employee of the Small Business Administration may be detailed to the Task Force without reimbursement, and such detail shall be without interruption or loss of civil service status or privilege.
• (f) Not later than 1 year after December 8, 2004 , and annually thereafter, the Task Force shall submit a report containing the findings and recommendations of the task force to—
  • (1) the President;
  • (2) the Committee on Small Business and Entrepreneurship of the Senate; and
  • (3) the Committee on Small Business of the House of Representatives.

§ 632. Definitions

• (a)
  • (1) For the purposes of this chapter, a small-business concern, including but not limited to enterprises that are engaged in the business of production of food and fiber, ranching and raising of livestock, aquaculture, and all other farming and agricultural related industries, shall be deemed to be one which is independently owned and operated and which is not dominant in its field of operation.
  • (2)
    • (A) In addition to the criteria specified in paragraph (1), the Administrator may specify detailed definitions or standards by which a business concern may be determined to be a small business concern for the purposes of this chapter or any other Act.
    • (B) The standards described in paragraph (1) may utilize number of employees, dollar volume of business, net worth, net income, a combination thereof, or other appropriate factors.
    • (C) Unless specifically authorized by statute, no Federal department or agency may prescribe a size standard for categorizing a business concern as a small business concern, unless such proposed size standard—
      • (i) is proposed after an opportunity for public notice and comment;
      • (ii) provides for determining—
        • (I) the size of a manufacturing concern as measured by the manufacturing concern’s average employment based upon employment during each of the manufacturing concern’s pay periods for the preceding 12 months;
        • (II) the size of a business concern providing services on the basis of the annual average gross receipts of the business concern over a period of not less than 5 years;
        • (III) the size of other business concerns on the basis of data over a period of not less than 3 years; or
        • (IV) other appropriate factors; and
      • (iii) is approved by the Administrator.
  • (3) When establishing or approving any size standard pursuant to paragraph (2), the Administrator shall ensure that the size standard varies from industry to industry to the extent necessary to reflect the differing characteristics of the various industries and consider other factors deemed to be relevant by the Administrator.
  • (4)
    • (A) Not later than 30 days after January 6, 2006 , the Administrator shall review the application of size standards established pursuant to paragraph (2) to small business concerns that are performing contracts in qualified areas and determine whether it would be fair and appropriate to exclude from consideration in the average annual gross receipts of such small business concerns any payments made to such small business concerns by Federal agencies to reimburse such small business concerns for the cost of subcontracts entered for the sole purpose of providing security services in a qualified area.
    • (B) Not later than 60 days after January 6, 2006 , the Administrator shall either—
      • (i) initiate an adjustment to the size standards, as described in subparagraph (A), if the Administrator determines that such an adjustment would be fair and appropriate; or
      • (ii) provide a report to the Committee on Small Business and Entrepreneurship of the Senate and the Committee on Small Business of the House of Representatives explaining in detail the basis for the determination by the Administrator that such an adjustment would not be fair and appropriate.
    • (C) In this paragraph, the term “qualified area” means—
      • (i) Iraq,
      • (ii) Afghanistan, and
      • (iii) any foreign country which included a combat zone, as that term is defined in section 112(c)(2) of title 26 , at the time of performance of the relevant Federal contract or subcontract.
  • (5)
    • (A) The Administrator shall establish an alternative size standard for applicants for business loans under section 636(a) of this title and applicants for development company loans under title V of the Small Business Investment Act of 1958 ( 15 U.S.C. 695 et seq.), that uses maximum tangible net worth and average net income as an alternative to the use of industry standards.
    • (B) Until the date on which the alternative size standard established under subparagraph (A) is in effect, an applicant for a business loan under section 636(a) of this title or an applicant for a development company loan under title V of the Small Business Investment Act of 1958 may be eligible for such a loan if—
      • (i) the maximum tangible net worth of the applicant is not more than $15,000,000; and
      • (ii) the average net income after Federal income taxes (excluding any carry-over losses) of the applicant for the 2 full fiscal years before the date of the application is not more than $5,000,000.
  • (6) In conducting rulemaking to revise, modify or establish size standards pursuant to this section, the Administrator shall consider, and address, and make publicly available as part of the notice of proposed rulemaking and notice of final rule each of the following:
    • (A) a detailed description of the industry for which the new size standard is proposed;
    • (B) an analysis of the competitive environment for that industry;
    • (C) the approach the Administrator used to develop the proposed standard including the source of all data used to develop the proposed rule making; and
    • (D) the anticipated effect of the proposed rulemaking on the industry, including the number of concerns not currently considered small that would be considered small under the proposed rule making and the number of concerns currently considered small that would be deemed other than small under the proposed rulemaking.
  • (7) In carrying out this subsection, the Administrator may establish or approve a single size standard for a grouping of 4-digit North American Industry Classification System codes only if the Administrator makes publicly available, not later than the date on which such size standard is established or approved, a justification demonstrating that such size standard is appropriate for each individual industry classification included in the grouping.
  • (8) The Administrator shall not limit the number of size standards established pursuant to paragraph (2), and shall assign the appropriate size standard to each North American Industry Classification System Code.
  • (9)
    • (A) A person may file a petition for reconsideration with the Office of Hearings and Appeals (as established under section 634(i) of this title ) of a size standard revised, modified, or established by the Administrator pursuant to this subsection.
    • (B) A person filing a petition for reconsideration described in subparagraph (A) shall file such petition not later than 30 days after the publication in the Federal Register of the notice of final rule to revise, modify, or establish size standards described in paragraph (6).
    • (C) The Office of Hearings and Appeals shall use the same process it uses to decide challenges to the size of a small business concern to decide a petition for review pursuant to this paragraph.
    • (D) The publication of a final rule in the Federal Register described in subparagraph (B) shall be considered final agency action for purposes of seeking judicial review. Filing a petition for reconsideration under subparagraph (A) shall not be a condition precedent to judicial review of any such size standard.
    • (E) The Office of Hearings and Appeals shall begin accepting petitions for reconsideration described in subparagraph (A) after the date on which the Administration issues a rule or other guidance implementing this paragraph. Notwithstanding the provisions of subparagraph (B), petitions for reconsideration of size standards revised, modified, or established in a Federal Register final rule published between November 25, 2015 , and the effective date of such rule or other guidance shall be considered timely if filed within 30 days of such effective date.
• (b) For purposes of this chapter, any reference to an agency or department of the United States, and the term “Federal agency”, shall have the meaning given the term “agency” by section 551(1) of title 5 , but does not include the United States Postal Service or the Government Accountability Office.
• (c)
  • (1) For purposes of this chapter, a qualified employee trust shall be eligible for any loan guarantee under section 636(a) of this title with respect to a small business concern on the same basis as if such trust were the same legal entity as such concern.
  • (2) For purposes of this chapter, the term “qualified employee trust” means, with respect to a small business concern, a trust—
    • (A) which forms part of an employee stock ownership plan (as defined in section 4975(e)(7) of title 26 )—
      • (i) which is maintained by such concern, and
      • (ii) which provides that each participant is entitled to direct the plan trustee as to the manner of how to vote the qualified employer securities (as defined in section 4975(e)(8) of title 26 ), which are allocated to the account of such participant with respect to a corporate matter which (by law or charter) must be decided by a vote conducted in accordance with section 409(e) of the title 26; and
    • (B) in the case of any loan guarantee under section 636(a) of this title , the trustee of which enters into an agreement with the Administrator which is binding on the trust and on such small business concern and which provides that—
      • (i) the loan guaranteed under section 636(a) of this title shall be used solely for the purchase of qualifying employer securities of such concern,
      • (ii) all funds acquired by the concern in such purchase shall be used by such concern solely for the purposes for which such loan was guaranteed,
      • (iii) such concern will provide such funds as may be necessary for the timely repayment of such loan, and the property of such concern shall be available as security for repayment of such loan, and
      • (iv) all qualifying employer securities acquired by such trust in such purchase shall be allocated to the accounts of participants in such plan who are entitled to share in such allocation, and each participant has a nonforfeitable right, not later than the date such loan is repaid, to all such qualifying employer securities which are so allocated to the participant’s account.
  • (3) Under regulations which may be prescribed by the Administrator, a trust may be treated as a qualified employee trust with respect to a small business concern if—
    • (A) the trust is maintained by an employee organization which represents at least 51 percent of the employees of such concern, and
    • (B) such concern maintains a plan—
      • (i) which is an employee benefit plan which is designed to invest primarily in qualifying employer securities (as defined in section 4975(e)(8) of title 26 ),
      • (ii) which provides that each participant in the plan is entitled to direct the plan as to the manner in which voting rights under qualifying employer securities which are allocated to the account of such participant are to be exercised with respect to a corporate matter which (by law or charter) must be decided by a majority vote of the outstanding common shares voted,
      • (iii) which provides that each participant who is entitled to distribution from the plan has a right, in the case of qualifying employer securities which are not readily tradeable on an established market, to require that the concern repurchase such securities under a fair valuation formula, and
      • (iv) which meets such other requirements (similar to requirements applicable to employee stock ownership plans as defined in section 4975(e)(7) of title 26 ) as the Administrator may prescribe, and
    • (C) in the case of a loan guarantee under section 636(a) of this title , such organization enters into an agreement with the Administration which is described in paragraph (2)(B).
• (d) For purposes of section 636 of this title , the term “qualified Indian tribe” means an Indian tribe as defined in section 5304(a) 1 1 So in original. Probably should be a reference to subsec. “(e)” of section 5304, which defines Indian tribe. of title 25, which owns and controls 100 per centum of a small business concern.
• (e) For purposes of section 636 of this title , the term “public or private organization for the handicapped” means one—
  • (1) which is organized under the laws of the United States or of any State, operated in the interest of handicapped individuals, the net income of which does not inure in whole or in part to the benefit of any shareholder or other individuals;
  • (2) which complies with any applicable occupational health and safety standard prescribed by the Secretary of Labor; and
  • (3) which, in the production of commodities and in the provision of services during any fiscal year in which it received financial assistance under this subsection, employs handicapped individuals for not less than 75 per centum of the man-hours required for the production or provision of the commodities or services.
• (f) For purposes of section 636 of this title , the term “handicapped individual” means an individual—
  • (1) who has a physical, mental, or emotional impairment, defect, ailment, disease, or disability of a permanent nature which in any way limits the selection of any type of employment for which the person would otherwise be qualified or qualifiable; or
  • (2) who is a service-disabled veteran.
• (g) For purposes of section 636 of this title , the term “energy measures” includes—
  • (1) solar thermal energy equipment which is either of the active type based upon mechanically forced energy transfer or of the passive type based on convective, conductive, or radiant energy transfer or some combination of these types;
  • (2) photovoltaic cells and related equipment;
  • (3) a product or service the primary purpose of which is conservation of energy through devices or techniques which increase the energy efficiency of existing equipment, methods of operation, or systems which use fossil fuels, and which is on the Energy Conservation Measures list of the Secretary of Energy or which the Administrator determines to be consistent with the intent of this subsection;
  • (4) equipment the primary purpose of which is production of energy from wood, biological waste, grain, or other biomass source of energy;
  • (5) equipment the primary purpose of which is industrial cogeneration of energy, district heating, or production of energy from industrial waste;
  • (6) hydroelectric power equipment;
  • (7) wind energy conversion equipment; and
  • (8) engineering, architectural, consulting, or other professional services which are necessary or appropriate to aid citizens in using any of the measures described in paragraph (1) through (7).
• (h) The term “credit elsewhere” means—
  • (1) for the purposes of this chapter (except as used in section 636(b) of this title ), the availability of credit on reasonable terms and conditions to the individual loan applicant from non-Federal, non-State, or non-local government sources, considering factors associated with conventional lending practices, including—
    • (A) the business industry in which the loan applicant operates;
    • (B) whether the loan applicant is an enterprise that has been in operation for a period of not more than 2 years;
    • (C) the adequacy of the collateral available to secure the requested loan;
    • (D) the loan term necessary to reasonably assure the ability of the loan applicant to repay the debt from the actual or projected cash flow of the business; and
    • (E) any other factor relating to the particular credit application, as documented in detail by the lender, that cannot be overcome except through obtaining a Federal loan guarantee under prudent lending standards; and
  • (2) for the purposes of section 636(b) of this title , the availability of credit on reasonable terms and conditions from non-Federal sources taking into consideration the prevailing rates and terms in the community in or near where the applicant business concern transacts business, or the applicant homeowner resides, for similar purposes and periods of time.
• (i) For purposes of section 636 of this title , the term “homeowners” includes owners and lessees of residential property and also includes personal property.
• (j) For the purposes of this chapter, the term “small agricultural cooperative” means an association (corporate or otherwise) acting pursuant to the provisions of the Agricultural Marketing Act ( 12 U.S.C. 1141j ), whose size does not exceed the size standard established by the Administration for other similar agricultural small business concerns. In determining such size, the Administration shall regard the association as a business concern and shall not include the income or employees of any member shareholder of such cooperative.
• (k)
  • (1) For the purposes of this chapter, the term “disaster” means a sudden event which causes severe damage including, but not limited to, floods, hurricanes, tornadoes, earthquakes, fires, explosions, volcanoes, windstorms, landslides or mudslides, tidal waves, commercial fishery failures or fishery resource disasters (as determined by the Secretary of Commerce under section 4107(b) of title 16 ), ocean conditions resulting in the closure of customary fishing waters, riots, civil disorders or other catastrophes, except it does not include economic dislocations.
  • (2) For purposes of section 636(b)(2) of this title , the term “disaster” includes—
    • (A) drought;
    • (B) below average water levels in the Great Lakes, or on any body of water in the United States that supports commerce by small business concerns; and
    • (C) ice storms and blizzards.
• (l) For purposes of this chapter—
  • (1) 2 2 So in original. No par. (2) has been enacted. the term “computer crime” means—
    • (A) any crime committed against a small business concern by means of the use of a computer; and
    • (B) any crime involving the illegal use of, or tampering with, a computer owned or utilized by a small business concern.
• (m) In this chapter:
  • (1) The term “prime contract” has the meaning given such term in section 8701(4) of title 41 .
  • (2) The term “prime contractor” has the meaning given such term in section 8701(5) of title 41 .
  • (3) The term “simplified acquisition threshold” has the meaning given such term in section 134 of title 41 .
  • (4) The term “micro-purchase threshold” has the meaning given such term in section 1902 of title 41 .
  • (5) The term “total purchases and contracts for property and services” shall mean total number and total dollar amount of contracts and orders for property and services.
• (n) For the purposes of this chapter, a small business concern is a small business concern owned and controlled by women if—
  • (1) at least 51 percent of small business concern is owned by one or more women or, in the case of any publicly owned business, at least 51 percent of the stock of which is owned by one or more women; and
  • (2) the management and daily business operations of the business are controlled by one or more women.
• (o) In this chapter:
  • (1) The term “bundled contract” means a contract that is entered into to meet requirements that are consolidated in a bundling of contract requirements.
  • (2) The term “bundling of contract requirements” means consolidating 2 or more procurement requirements for goods or services previously provided or performed under separate smaller contracts into a solicitation of offers for a single contract that is likely to be unsuitable for award to a small-business concern due to—
    • (A) the diversity, size, or specialized nature of the elements of the performance specified;
    • (B) the aggregate dollar value of the anticipated award;
    • (C) the geographical dispersion of the contract performance sites; or
    • (D) any combination of the factors described in subparagraphs (A), (B), and (C).
  • (3) The term “separate smaller contract”, with respect to a bundling of contract requirements, means a contract that has been performed by 1 or more small business concerns or was suitable for award to 1 or more small business concerns.
• (p) In this chapter, the term “qualified HUBZone small business concern” has the meaning given such term in section 657a(b) of this title .
• (q) In this chapter, the following definitions apply:
  • (1) The term “service-disabled veteran” means a veteran with a disability that is service-connected (as defined in section 101(16) of title 38 ).
  • (2) The term “small business concern owned and controlled by service-disabled veterans” means any of the following:
    • (A) A small business concern—
      • (i) not less than 51 percent of which is owned by one or more service-disabled veterans or, in the case of any publicly owned business, not less than 51 percent of the stock (not including any stock owned by an ESOP) of which is owned by one or more service-disabled veterans; and
      • (ii) the management and daily business operations of which are controlled by one or more service-disabled veterans or, in the case of a veteran with permanent and severe disability, the spouse or permanent caregiver of such veteran.
    • (B) A small business concern—
      • (i) not less than 51 percent of which is owned by one or more service-disabled veterans with a disability that is rated by the Secretary of Veterans Affairs as a permanent and total disability who are unable to manage the daily business operations of such concern; or
      • (ii) in the case of a publicly owned business, not less than 51 percent of the stock (not including any stock owned by an ESOP) of which is owned by one or more such veterans.
    • (C)
      • (i) During the time period described in clause (ii), a small business concern that was a small business concern described in subparagraph (A) or (B) immediately prior to the death of a service-disabled veteran who was the owner of the concern, the death of whom causes the concern to be less than 51 percent owned by one or more service-disabled veterans, if—
        • (I) the surviving spouse of the deceased veteran acquires such veteran’s ownership interest in such concern;
        • (II) such veteran had a service-connected disability (as defined in section 101(16) of title 38 ); and
        • (III) immediately prior to the death of such veteran, and during the period described in clause (ii), the small business concern is included in the database described in section 8127(f) of title 38 .
      • (ii) The time period described in this clause is the time period beginning on the date of the veteran’s death and ending on the earlier of—
        • (I) the date on which the surviving spouse remarries;
        • (II) the date on which the surviving spouse relinquishes an ownership interest in the small business concern; or
        • (III) the date that—
  • (3) The term “small business concern owned and controlled by veterans” means a small business concern—
    • (A) not less than 51 percent of which is owned by one or more veterans or, in the case of any publicly owned business, not less than 51 percent of the stock of which is owned by one or more veterans; and
    • (B) the management and daily business operations of which are controlled by one or more veterans.
  • (4) The term “veteran” has the meaning given the term in section 101(2) of title 38 .
  • (5)
    • (A) Any time limitation on any qualification, certification, or period of participation imposed under this chapter on any program that is available to small business concerns shall be extended for a small business concern that—
      • (i) is owned and controlled by—
        • (I) a veteran who was called or ordered to active duty under a provision of law specified in section 101(a)(13)(B) of title 10 on or after September 11, 2001 ; or
        • (II) a service-disabled veteran who became such a veteran due to an injury or illness incurred or aggravated in the active military, naval, or air service during a period of active duty pursuant to a call or order to active duty under a provision of law referred to in subclause (I) on or after September 11, 2001 ; and
      • (ii) was subject to the time limitation during such period of active duty.
    • (B) Upon submission of proper documentation to the Administrator, the extension of a time limitation under subparagraph (A) shall be equal to the period of time that such veteran who owned or controlled such a concern was on active duty as described in that subparagraph.
    • (C) The provisions of subparagraphs (A) and (B) shall not apply to any programs subject to the Federal Credit Reform Act of 1990 ( 2 U.S.C. 661 et seq.).
  • (6) The term “ESOP” has the meaning given the term “employee stock ownership plan” in section 4975(e)(7) of title 26 .
  • (7) The term “surviving spouse” has the meaning given such term in section 101(3) of title 38 .
• (r) As used in section 650 of this title :
  • (1) The term “small business lending company” means a business concern that is authorized by the Administrator to make loans pursuant to section 636(a) of this title and whose lending activities are not subject to regulation by any Federal or State regulatory agency.
  • (2) The term “non-Federally regulated lender” means a business concern if—
    • (A) such concern is authorized by the Administrator to make loans under section 636 of this title ;
    • (B) such concern is subject to regulation by a State; and
    • (C) the lending activities of such concern are not regulated by any Federal banking authority.
• (s) In this chapter, the term “major disaster” has the meaning given that term in section 5122 of title 42 .
• (t) In this chapter, the term “small business development center” means a small business development center described in section 648 of this title .
• (u) In this chapter, the term “region of the Administration” means the geographic area served by a regional office of the Administration established under section 633(a) of this title .
• (v) In this chapter, the term “multiple award contract” means—
  • (1) a multiple award task order contract or delivery order contract that is entered into under the authority of sections 4101, 4103, 4105, and 4106 of title 41; and
  • (2) any other indefinite delivery, indefinite quantity contract that is entered into by the head of a Federal agency with 2 or more sources pursuant to the same solicitation.
• (w)
  • (1) In every contract, subcontract, cooperative agreement, cooperative research and development agreement, or grant which is set aside, reserved, or otherwise classified as intended for award to small business concerns, there shall be a presumption of loss to the United States based on the total amount expended on the contract, subcontract, cooperative agreement, cooperative research and development agreement, or grant whenever it is established that a business concern other than a small business concern willfully sought and received the award by misrepresentation.
  • (2) The following actions shall be deemed affirmative, willful, and intentional certifications of small business size and status:
    • (A) Submission of a bid or proposal for a Federal grant, contract, subcontract, cooperative agreement, or cooperative research and development agreement reserved, set aside, or otherwise classified as intended for award to small business concerns.
    • (B) Submission of a bid or proposal for a Federal grant, contract, subcontract, cooperative agreement, or cooperative research and development agreement which in any way encourages a Federal agency to classify the bid or proposal, if awarded, as an award to a small business concern.
    • (C) Registration on any Federal electronic database for the purpose of being considered for award of a Federal grant, contract, subcontract, cooperative agreement, or cooperative research agreement, as a small business concern.
  • (3)
    • (A) Each solicitation, bid, or application for a Federal contract, subcontract, or grant shall contain a certification concerning the small business size and status of a business concern seeking the Federal contract, subcontract, or grant.
    • (B) A certification that a business concern qualifies as a small business concern of the exact size and status claimed by the business concern for purposes of bidding on a Federal contract or subcontract, or applying for a Federal grant, shall contain the signature of an authorized official on the same page on which the certification is contained.
  • (4) The Administrator shall promulgate regulations to provide adequate protections to individuals and business concerns from liability under this subsection in cases of unintentional errors, technical malfunctions, and other similar situations.
• (x)
  • (1) Each business certified as a small business concern under this chapter shall annually certify its small business size and, if appropriate, its small business status, by means of a confirming entry on the Online Representations and Certifications Application database of the Administration, or any successor thereto.
  • (2) Not later than 1 year after September 27, 2010 , the Administrator, in consultation with the Inspector General and the Chief Counsel for Advocacy of the Administration, shall promulgate regulations to ensure that—
    • (A) no business concern continues to be certified as a small business concern on the Online Representations and Certifications Application database of the Administration, or any successor thereto, without fulfilling the requirements for annual certification under this subsection; and
    • (B) the requirements of this subsection are implemented in a manner presenting the least possible regulatory burden on small business concerns.
• (y) Not later than 1 year after September 27, 2010 , the Administrator, in consultation with the Attorney General, shall issue a Government-wide policy on prosecution of small business size and status fraud, which shall direct Federal agencies to appropriately publicize the policy.
• (z) Subject to section 647(a) of this title and notwithstanding section 647(b)(1) of this title , the Administrator may provide disaster assistance under section 636(b)(2) of this title to aquaculture enterprises that are small businesses.
• (aa) In this chapter, the term “venture capital operating company” means an entity described in clause (i), (v), or (vi) of section 121.103(b)(5) of title 13, Code of Federal Regulations (or any successor thereto).
• (bb) In this chapter, the term “hedge fund” has the meaning given that term in section 1851(h)(2) of title 12 .
• (cc) In this chapter, the term “private equity firm” has the meaning given the term “private equity fund” in section 1851(h)(2) of title 12 .
• (dd) In this chapter:
  • (1) The term “subcontract” means a legally binding agreement between a contractor that is already under contract to another party to perform work, and a third party, hereinafter referred to as the subcontractor, for the subcontractor to perform a part, or all, of the work that the contractor has undertaken.
  • (2) The term “first tier subcontractor” means a subcontractor who has a subcontract directly with the prime contractor.
  • (3) The term “at any tier” means any subcontractor other than a subcontractor who is a first tier subcontractor.
• (ee) In this chapter, the term “Puerto Rico business” means a small business concern that has its principal office located in the Commonwealth of Puerto Rico.

§ 633. Small Business Administration

• (a) In order to carry out the policies of this chapter there is created an agency under the name “Small Business Administration” (herein referred to as the Administration), which Administration shall be under the general direction and supervision of the President and shall not be affiliated with or be within any other agency or department of the Federal Government. The principal office of the Administration shall be located in the District of Columbia. The Administration may establish such branch and regional offices in other places in the United States as may be determined by the Administrator of the Administration. As used in this chapter, the term “United States” includes the several States, the Territories and possessions of the United States, the Commonwealth of Puerto Rico, the Trust Territory of the Pacific Islands, and the District of Columbia.
• (b)
  • (1) The management of the Administration shall be vested in an Administrator who shall be appointed from civilian life by the President, by and with the advice and consent of the Senate, and who shall be a person of outstanding qualifications known to be familiar and sympathetic with small-business needs and problems. The Administrator shall not engage in any other business, vocation, or employment than that of serving as Administrator. In carrying out the programs administered by the Small Business Administration including its lending and guaranteeing functions, the Administrator shall not discriminate on the basis of sex or marital status against any person or small business concern applying for or receiving assistance from the Small Business Administration, and the Small Business Administration shall give special consideration to veterans of the Armed Forces of the United States and their survivors or dependents. The President also may appoint a Deputy Administrator, by and with the advice and consent of the Senate. The Administrator is authorized to appoint Associate Administrators (including the Associate Administrator specified in section 671 of this title ) to assist in the execution of the functions vested in the Administration. One such Associate Administrator shall be the Associate Administrator for Veterans Business Development, who shall administer the Office of Veterans Business Development established under section 657b of this title . One of the Associate Administrators shall be designated at the time of his appointment as the Associate Administrator for Minority Small Business and Capital Ownership Development who shall be an employee in the competitive service or in the Senior Executive Service and a career appointee and shall be responsible to the Administrator for the formulation and execution of the policies and programs under sections 636(j) and 637(a) of this title which provide assistance to minority small business concerns. The Deputy Administrator shall be Acting Administrator of the Administration during the absence or disability of the Administrator or in the event of a vacancy in the office of the Administrator. One such Associate Administrator shall be the Associate Administrator for International Trade, who shall be the head of the Office of International Trade established under section 649 of this title . One such Associate Administrator shall be the Chief Hearing Officer, who shall administer the Office of Hearings and Appeals established under section 634(i) of this title .
  • (2) The Administrator also shall be responsible for—
    • (A) establishing and maintaining an external small business economic data base for the purpose of providing the Congress and the Administration information on the economic condition and the expansion or contraction of the small business sector. To that end, the Administrator shall publish on a regular basis national small business economic indices and, to the extent feasible, regional small business economic indices, which shall include, but need not be limited to, data on—
      • (i) employment, layoffs, and new hires;
      • (ii) number of business establishments and the types of such establishments such as sole proprietorships, corporations, and partnerships;
      • (iii) number of business formations and failures;
      • (iv) sales and new orders;
      • (v) back orders;
      • (vi) investment in plant and equipment;
      • (vii) changes in inventory and rate of inventory turnover;
      • (viii) sources and amounts of capital investment, including debt, equity, and internally generated funds;
      • (ix) debt to equity ratios;
      • (x) exports;
      • (xi) number and dollar amount of mergers and acquisitions by size of acquiring and acquired firm; and
      • (xii) concentration ratios; and
    • (B) publishing annually a report giving a comparative analysis and interpretation of the historical trends of the small business sector as reflected by the data acquired pursuant to subparagraph (A) of this subsection.
  • (3)
    • (A) The Administration shall establish, within the management system for the loan programs authorized by subsections (a) and (b) of section 636 of this title and title V of the Small Business Investment Act of 1958 [ 15 U.S.C. 695 et seq.], a management information system that will generate a database capable of providing timely and accurate information in order to identify loan underwriting, collections, recovery, and liquidation problems.
    • (B) In addition to such other information as the Administration considers appropriate, the database established under subparagraph (A) shall, with respect to each loan program described in subparagraph (A), include information relating to—
      • (i) the identity of the institution making the guaranteed loan or issuing the debenture;
      • (ii) the identity of the borrower;
      • (iii) the total dollar amount of the loan or debenture;
      • (iv) the total dollar amount of government exposure in each loan;
      • (v) the district of the Administration in which the borrower has its principal office;
      • (vi) the principal line of business of the borrower, as identified by Standard Industrial Classification Code (or any successor to that system);
      • (vii) the delinquency rate for each program (including number of instances and days overdue);
      • (viii) the number and amount of repurchases, losses, and recoveries in each program;
      • (ix) the number of deferrals or forbearances in each program (including days and number of instances);
      • (x) comparisons on the basis of loan program, lender, district and region of the Administration, for all the data elements maintained; and
      • (xi) underwriting characteristics of each loan that has entered into default, including term, amount and type of collateral, loan-to-value and other actual and projected ratios, line of business, credit history, and type of loan.
    • (C) The database established under subparagraph (A) shall—
      • (i) be operational not later than June 30, 1997 ; and
      • (ii) capture data beginning on the first day of the second quarter of fiscal year 1997 beginning after such date and thereafter.
  • (4)
    • (A) The Administrator shall establish a small business computer security and education program to—
      • (i) provide small business concerns information regarding—
        • (I) utilization and management of computer technology;
        • (II) computer crimes committed against small business concerns; and
        • (III) security for computers owned or utilized by small business concerns;
      • (ii) provide for periodic forums for small business concerns to improve their knowledge of the matters described in clause (i); and
      • (iii) provide training opportunities to educate small business users on computer security techniques.
    • (B) The Administrator, after consultation with the Director of the Institute of Computer Sciences and Technology within the Department of Commerce, shall develop information and materials to carry out the activities described in subparagraph (A) of this paragraph.
• (c)
  • (1) There are established in the Treasury the following revolving funds: (A) a disaster loan fund which shall be available for financing functions performed under sections 634(e), 636(b)(1), 636(b)(2), 636(b)(3), 636(b)(4), 636(d)(2), and 636(m) of this title; and (B) a business loan and investment fund which shall be available for financing functions performed under sections 634(g), 636(a) and 637(a) of this title, and titles III, IV and V of the Small Business Investment Act of 1958 [ 15 U.S.C. 681 et seq., 692 et seq., 695 et seq.].
  • (2) All repayments of loans and debentures, payments of interest and other receipts arising out of transactions heretofore or hereafter entered into by the Administration (A) pursuant to sections 634(e), 636(b)(1), 636(b)(2), 636(b)(3), 636(b)(4), 636(b)(5), 636(b)(6), 636(b)(7), 636(b)(8), 636(d)(2), and 636(g) of this title, shall be paid into a disaster loan fund; and (B) pursuant to sections 634(g), 636(a), 636(h), 636(i), 636( l ), 1 1 See References in Text note below. 636(m), and 637(a) of this title, and titles III, IV and V of the Small Business Investment Act of 1958 [ 15 U.S.C. 681 et seq., 692 et seq., 695 et seq.], shall be paid into the business loan and investment fund.
  • (3) Unexpended balances of appropriations made to the fund pursuant to this subsection, as in effect immediately prior to the effective date of this paragraph, shall be allocated, together with related assets and liabilities, to the funds established by paragraph (1) in such amounts as the Administrator shall determine.
  • (4) The Administration shall submit to the Committees on Appropriations, Senate Select Committee on Small Business, and the Committee on Small Business of the House of Representatives, as soon as possible after the beginning of each calendar quarter, a full and complete report on the status of each of the funds established by paragraph (1). Business-type budgets for each of the funds established by paragraph (1) shall be prepared, transmitted to the Committees on Appropriations, the Senate Select Committee on Small Business, and the Committee on Small Business of the House of Representatives, and considered, and enacted in the manner prescribed by law (sections 9103 and 9104 of title 31) for wholly owned Government corporations.
  • (5)
    • (A) The Administration is authorized to make and issue notes to the Secretary of the Treasury for the purpose of obtaining funds necessary for discharging obligations under the revolving funds created by paragraph (1) and for authorized expenditures out of the funds. Such notes shall be in such form and denominations and have such maturities and be subject to such terms and conditions as may be prescribed by the Administration with the approval of the Secretary of the Treasury. Such notes shall bear interest at a rate fixed by the Secretary of the Treasury, taking into consideration the current average market yield of outstanding marketable obligations of the United States having maturities comparable to the notes issued by the Administration under this paragraph. The Secretary of the Treasury is authorized and directed to purchase any notes of the Administration issued hereunder, and, for that purpose, the Secretary of the Treasury is authorized to use as a public debt transaction the proceeds from the sale of any securities issued under chapter 31 of title 31, and the purposes for which such securities may be issued under such chapter are extended to include the purchase of notes issued by the Administration. All redemptions, purchases, and sales by the Secretary of the Treasury of such notes shall be treated as public debt transactions of the United States. All borrowing authority contained herein shall be effective only to such extent or in such amounts as are provided in advance in appropriation Acts.
    • (B)
      • (i) Moneys in the funds established in paragraph (1) not needed for current operations may be paid into miscellaneous receipts of the Treasury.
      • (ii) Following the close of each fiscal year, the Administration shall pay into the miscellaneous receipts of the United States Treasury the actual interest that the Administration collects during that fiscal year on all financings made under this chapter.
    • (C) Except on those loan disbursements on which interest is paid under paragraph (5)(B)(ii), the Administration shall pay into miscellaneous receipts of the Treasury, following the close of each fiscal year, interest received by the Administration on financing functions performed under this chapter and titles III and V of the Small Business Investment Act of 1958 [ 15 U.S.C. 681 et seq., 695 et seq.] providing the capital used to perform such functions originated from appropriated funds. Such payments shall be treated by the Department of the Treasury as interest income, not as retirement of indebtedness.
    • (D) There are authorized to be appropriated, in any fiscal year, such sums as may be necessary for losses and interest subsidies incurred by the funds established by paragraph (1), but not previously reimbursed.
• (d) There is created the Loan Policy Board of the Small Business Administration, which shall consist of the following members, all ex officio: The Administrator, as Chairman, the Secretary of the Treasury, and the Secretary of Commerce. Either of the said Secretaries may designate an officer of his Department, who has been appointed by the President by and with the advice and consent of the Senate, to act in his stead as a member of the Loan Policy Board with respect to any matter or matters. The Loan Policy Board shall establish general policies (particularly with reference to the public interest involved in the granting and denial of applications for financial assistance by the Administration and with reference to the coordination of the functions of the Administration with other activities and policies of the Government), which shall govern the granting and denial of applications for financial assistance by the Administration.
• (e) Notwithstanding any other provision of law, the Administration is prohibited from providing any financial or other assistance to any business concern or other person engaged in the production or distribution of any product or service that has been determined to be obscene by a court of competent jurisdiction.
• (f)
  • (1) For financial assistance approved after the promulgation of final regulations to implement this section, each recipient of financial assistance under this chapter, including a recipient of a direct loan or a loan guarantee, shall certify that the recipient is not more than 60 days delinquent under the terms of any—
    • (A) administrative order;
    • (B) court order; or
    • (C) repayment agreement entered into between the recipient and the custodial parent or State agency providing child support enforcement services,
  • (2) Not later than 6 months after October 22, 1994 , the Administration shall promulgate such regulations as may be necessary to enforce compliance with the requirements of this subsection.
• (g)
  • (1) The exclusive duties of a Business Opportunity Specialist employed by the Administrator and reporting to the senior official appointed by the Administrator with responsibilities under sections 637, 644, 657a, and 657f of this title (or the designee of such official) shall be to implement sections 636, 637, and 657r of this title and to complete other duties related to contracting programs under this chapter. Such duties shall include—
    • (A) with respect to small business concerns eligible to receive contracts and subcontracts pursuant to section 637(a) of this title —
      • (i) providing guidance, counseling, and referrals for assistance with technical, management, financial, or other matters that will improve the competitive viability of such concerns;
      • (ii) identifying causes of success or failure of such concerns;
      • (iii) providing comprehensive assessments of such concerns, including identifying the strengths and weaknesses of such concerns;
      • (iv) monitoring and documenting compliance with the requirements of sections 636 and 637 of this title and any regulations implementing those sections;
      • (v) explaining the requirements of sections 636, 637, 644, 657a, 657f, and 657r of this title; and
      • (vi) advising on compliance with contracting regulations (including the Federal Acquisition Regulation) after award of such a contract or subcontract;
    • (B) reviewing and monitoring compliance with mentor-protege agreements under section 657r of this title ;
    • (C) representing the interests of the Administrator and small business concerns in the award, modification, and administration of contracts and subcontracts awarded pursuant to section 637(a) of this title ; and
    • (D) reporting fraud or abuse under section 636, 637, 644, 657a, 657f, or 657r of this title or any regulations implementing such sections.
  • (2)
    • (A) Consistent with the requirements of subparagraph (B), a Business Opportunity Specialist described under section 636(j)(10)(D) of this title shall have a Level I Federal Acquisition Certification in Contracting (or any successor certification) or the equivalent Department of Defense certification.
    • (B) The certification described in subparagraph (A) is not required—
      • (i) for any person serving as a Business Opportunity Specialist on December 12, 2017 , until the date that is one calendar year after the date such person was appointed as a Business Opportunity Specialist; or
      • (ii) for any person serving as a Business Opportunity Specialist on or before January 3, 2013 , until January 3, 2020 .
  • (3) The duties and certification requirements described in this subsection shall be included in any initial job posting for the position of a Business Opportunity Specialist.
• (h)
  • (1) The principal duties of a commercial market representative employed by the Administrator and reporting to the senior official appointed by the Administrator with responsibilities under sections 637, 644, 657a, and 657f of this title (or the designee of the official) shall be to advance the policies established in section 637(d)(1) of this title relating to subcontracting, including—
    • (A) helping prime contractors to find small business concerns that are capable of performing subcontracts;
    • (B) for contractors awarded contracts containing the clause described in section 637(d)(3) of this title , providing—
      • (i) counseling on the responsibility of the contractor to maximize subcontracting opportunities for small business concerns;
      • (ii) instruction on methods and tools to identify potential subcontractors that are small business concerns; and
      • (iii) assistance to increase awards to subcontractors that are small business concerns through visits, training, and reviews of past performance;
    • (C) providing counseling on how a small business concern may promote the capacity of the small business concern to contractors awarded contracts containing the clause described in section 637(d)(3) of this title ; and
    • (D) conducting periodic reviews of contractors awarded contracts containing the clause described in section 637(d)(3) of this title to assess compliance with subcontracting plans required under section 637(d)(6) of this title .
  • (2)
    • (A) Consistent with the requirements of subparagraph (B), a commercial market representative referred to in section 644(q)(3) of this title shall have a Level I Federal Acquisition Certification in Contracting (or any successor certification) or the equivalent Department of Defense certification.
    • (B) The certification described in subparagraph (A) is not required—
      • (i) for any person serving as a commercial market representative on December 12, 2017 , until the date that is one calendar year after the date on which the person was appointed as a commercial market representative; or
      • (ii) for any person serving as a commercial market representative on or before November 25, 2015 , until November 25, 2020 .
  • (3) The duties and certification requirements described in this subsection shall be included in any initial job posting for the position of a commercial market representative.

§ 633a. Detailed justification for proposed changes in budget requests

Beginning in fiscal year 2013 and each fiscal year thereafter, the budget request for the Small Business Administration shall provide a detailed justification of any proposed changes from the enacted level by individual appropriation. The detailed justification shall include at a minimum a description of each credit and non-credit program including amount of funding and costs by appropriation account and fiscal year. For activities funded in multiple appropriations, the budget justification shall specify the amount included in each enacted appropriation, the amount proposed in the budget year and a justification for any proposed changes.

§ 634. General powers

• (a) The Administration shall have power to adopt, alter, and use a seal, which shall be judicially noticed. The Administrator is authorized, subject to the civil service and classification laws, to select, employ, appoint, and fix the compensation of such officers, employees, attorneys, and agents as shall be necessary to carry out the provisions of this chapter; to define their authority and duties; and to pay the costs of qualification of certain of them as notaries public. The Administration, with the consent of any board, commission, independent establishment, or executive department of the Government, may avail itself on a reimbursable or nonreimbursable basis of the use of information, services, facilities (including any field service thereof), officers, and employees thereof, in carrying out the provisions of this chapter.
• (b) In the performance of, and with respect to, the functions, powers, and duties vested in him by this chapter the Administrator may—
  • (1) sue and be sued in any court of record of a State having general jurisdiction, or in any United States district court, and jurisdiction is conferred upon such district court to determine such controversies without regard to the amount in controversy; but no attachment, injunction, garnishment, or other similar process, mesne or final, shall be issued against the Administrator or his property;
  • (2) under regulations prescribed by him, assign or sell at public or private sale, or otherwise dispose of for cash or credit, in his discretion and upon such terms and conditions and for such consideration as the Administrator shall determine to be reasonable, any evidence of debt, contract, claim, personal property, or security assigned to or held by him in connection with the payment of loans granted under this chapter, and to collect or compromise all obligations assigned to or held by him and all legal or equitable rights accruing to him in connection with the payment of such loans until such time as such obligations may be referred to the Attorney General for suit or collection;
  • (3) deal with, complete, renovate, improve, modernize, insure, or rent, or sell for cash or credit upon such terms and conditions and for such consideration as the Administrator shall determine to be reasonable, any real property conveyed to or otherwise acquired by him in connection with the payment of loans granted under this chapter;
  • (4) pursue to final collection, by way of compromise or otherwise, all claims against third parties assigned to the Administrator in connection with loans made by him. This shall include authority to obtain deficiency judgments or otherwise in the case of mortgages assigned to the Administrator. Section 6101 of title 41 shall not be construed to apply to any contract of hazard insurance or to any purchase or contract for services or supplies on account of property obtained by the Administrator as a result of loans made under this chapter if the premium therefor or the amount thereof does not exceed $1,000. The power to convey and to execute in the name of the Administrator deeds of conveyance, deeds of release, assignments and satisfactions of mortgages, and any other written instrument relating to real property or any interest therein acquired by the Administrator pursuant to the provisions of this chapter may be exercised by the Administrator or by any officer or agent appointed by him without the execution of any express delegation of power or power of attorney. Nothing in this section shall be construed to prevent the Administrator from delegating such power by order or by power of attorney, in his discretion, to any officer or agent he may appoint;
  • (5) acquire, in any lawful manner, any property (real, personal, or mixed, tangible or intangible), whenever deemed necessary or appropriate to the conduct of the activities authorized in sections 636(a) and 636(b) of this title;
  • (6) make such rules and regulations as he deems necessary to carry out the authority vested in him by or pursuant to this chapter;
  • (7) in addition to any powers, functions, privileges and immunities otherwise vested in him, take any and all actions (including the procurement of the services of attorneys by contract in any office where an attorney or attorneys are not or cannot be economically employed full time to render such services) when he determines such actions are necessary or desirable in making, servicing, compromising, modifying, liquidating, or otherwise dealing with or realizing on loans made under the provisions of this chapter: Provided , That with respect to deferred participation loans, including loans guaranteed under paragraph (15) or (35) of section 636(a) of this title , the Administrator may, in the discretion of and pursuant to regulations promulgated by the Administrator, authorize participating lending institutions to take actions relating to loan servicing on behalf of the Administrator, including determining eligibility and creditworthiness and loan monitoring, collection, and liquidation;
  • (8) pay the transportation expenses and per diem in lieu of subsistence expenses, in accordance with subchapter I of chapter 57 of title 5, for travel of any person employed by the Administration to render temporary services not in excess of six months in connection with any disaster referred to in section 636(b) of this title from place of appointment to, and while at, the disaster area and any other temporary posts of duty and return upon completion of the assignment: Provided , That the Administrator may extend the six-month limitation for an additional six months if the Administrator determines the extension is necessary to continue efficient disaster loan making activities;
  • (9) accept the services and facilities of Federal, State, and local agencies and groups, both public and private, and utilize such gratuitous services and facilities as may, from time to time, be necessary, to further the objectives of section 636(b) of this title ;
  • (10) upon purchase by the Administration of any deferred participation entered into under section 636 of this title , continue to charge a rate of interest not to exceed that initially charged by the participating institution on the amount so purchased for the remaining term of the indebtedness;
  • (11) make such investigations as he deems necessary to determine whether a recipient of or participant in any assistance under this chapter or any other person has engaged or is about to engage in any acts or practices which constitute or will constitute a violation of any provision of this chapter, or of any rule or regulation under this chapter, or of any order issued under this chapter. The Administration shall permit any person to file with it a statement in writing, under oath or otherwise as the Administration shall determine, as to all the facts and circumstances concerning the matter to be investigated. For the purpose of any investigation, the Administration is empowered to administer oaths and affirmations, subpena witnesses, compel their attendance, take evidence, and require the production of any books, papers, and documents which are relevant to the inquiry. Such attendance of witnesses and the production of any such records may be required from any place in the United States. In case of contumacy by, or refusal to obey a subpena issued to, any person, including a recipient or participant, the Administration may invoke the aid of any court of the United States within the jurisdiction of which such investigation or proceeding is carried on, or where such person resides or carries on business, in requiring the attendance and testimony of witnesses and the production of books, papers, and documents; and such court may issue an order requiring such person to appear before the Administration, there to produce records, if so ordered, or to give testimony touching the matter under investigation. Any failure to obey such order of the court may be punished by such court as a contempt thereof. All process in any such case may be served in the judicial district whereof such person is an inhabitant or wherever he may be found;
  • (12) impose, retain, and use only those fees which are specifically authorized by law or which are in effect on September 30, 1994 , and in the amounts and at the rates in effect on such date, except that the Administrator may, subject to approval in appropriations Acts, impose, retain, and utilize, additional fees—
    • (A) not to exceed $100 for each loan servicing action (other than a loan assumption) requested after disbursement of the loan, including any substitution of collateral, release or substitution of a guarantor, reamortization, or similar action;
    • (B) not to exceed $300 for loan assumptions;
    • (C) not to exceed 1 percent of the amount of requested financings under title III of the Small Business Investment Act of 1958 [ 15 U.S.C. 681 et seq.] for which the applicant requests a commitment from the Administration for funding during the following year; and
    • (D) to recover the direct, incremental cost involved in the production and dissemination of compilations of information produced by the Administration under the authority of this chapter and the Small Business Investment Act of 1958 [ 15 U.S.C. 661 et seq.];
  • (13) collect, retain and utilize, subject to approval in appropriations Acts, any amounts collected by fiscal transfer agents and not used by such agent as payment of the cost of loan pooling or debenture servicing operations, except that amounts collected under this paragraph and paragraph (12) shall be utilized solely to facilitate the administration of the program that generated the excess amounts; and
  • (14) require any lender authorized to make loans under section 636 of this title to pay examination and review fees, which shall be deposited in the account for salaries and expenses of the Administration, and shall be available for the costs of examinations, reviews, and other lender oversight activities.
• (c) To such extent as he finds necessary to carry out the provisions of this chapter, the Administrator is authorized to procure the temporary (not in excess of one year) or intermittent services of experts or consultants or organizations thereof, including stenographic reporting services, by contract or appointment, and in such cases such services shall be without regard to the civil-service and classification laws and, except in the case of stenographic reporting services by organizations, without regard to section 6101 of title 41 . Any individual so employed may be compensated at a rate not in excess of the daily equivalent of the highest rate payable under section 5332 of title 5 , including travel time, and, while such individual is away from his or her home or regular place of business, he or she may be allowed travel expenses (including per diem in lieu of subsistence) as authorized by section 5703 of title 5 .
• (d) Section 3324(a) and (b) of title 31 shall not apply to prepayments of rentals made by the Administration on safety deposit boxes used by the Administration for the safeguarding of instruments held as security for loans or for the safeguarding of other documents.
• (e)
  • (1) Subject to the requirements and conditions contained in this subsection, upon application by a small business concern which is the recipient of a loan made under this chapter, the Administration may undertake the small business concern’s obligation to make the required payments under such loan or may suspend such obligation if the loan was a direct loan made by the Administration. While such payments are being made by the Administration pursuant to the undertaking of such obligation or while such obligation is suspended, no such payment with respect to the loan may be required from the small business concern.
  • (2) The Administration may undertake or suspend for a period of not to exceed 5 years any small business concern’s obligation under this subsection only if—
    • (A) without such undertaking or suspension of the obligation, the small business concern would, in the sole discretion of the Administration, become insolvent or remain insolvent;
    • (B) with the undertaking or suspension of the obligation, the small business concern would, in the sole discretion of the Administration, become or remain a viable small business entity; and
    • (C) the small business concern executes an agreement in writing satisfactory to the Administration as provided by paragraph (4).
  • (3) Notwithstanding the provisions of sections 636(a)(4)(C) and 636(i)(1) of this title, the Administration may extend the maturity of any loan on which the Administration undertakes or suspends the obligation pursuant to this subsection for a corresponding period of time.
  • (4)
    • (A) Prior to the undertaking or suspension by the Administration of any small business concern’s obligation under this subsection, the Administration, consistent with the purposes sought to be achieved herein, shall require the small business concern to agree in writing to repay to it the aggregate amount of the payments which were required under the loan during the period for which such obligation was undertaken or suspended, either—
      • (i) by periodic payments not less in amount or less frequently falling due than those which were due under the loan during such period, or
      • (ii) pursuant to a repayment schedule agreed upon by the Administration and the small business concern, or
      • (iii) by a combination of the payments described in clause (i) and clause (ii).
    • (B) In addition to requiring the small business concern to execute the agreement described in subparagraph (A), the Administration shall, prior to the undertaking or suspension of the obligation, take such action, and require the small business concern to take such action as the Administration deems appropriate in the circumstances, including the provision of such security as the Administration deems necessary or appropriate to insure that the rights and interests of the lender (Small Business Administration or participant) will be safeguarded adequately during and after the period in which such obligation is so undertaken or suspended.
  • (5) The term “required payments” with respect to any loan means payments of principal and interest under the loan.
• (f)
  • (1) The guaranteed portion of any loan made pursuant to this chapter may be sold by the lender, and by any subsequent holder, consistent with regulations on such sales as the Administration shall establish, subject to the following limitations:
    • (A) prior to the Administration’s approval of the sale, or upon any subsequent resale, of any loan guaranteed by the Administration, if the lender certifies that such loan has been properly closed and that the lender has substantially complied with the provisions of the guarantee agreement and the regulations of the Administration, the Administration shall review and approve only materials not previously approved;
    • (B) all fees due the Administration on a guaranteed loan shall have been paid in full prior to any sale; and
    • (C) each loan, except each loan made under section 636(a)(14) of this title , shall have been fully disbursed to the borrower prior to any sale.
  • (2) After a loan is sold in the secondary market, the lender shall remain obligated under its guarantee agreement with the Administration, and shall continue to service the loan in a manner consistent with the terms and conditions of such agreement.
  • (3) The Administration shall develop such procedures as are necessary for the facilitation, administration, and promotion of secondary market operations, and for assessing the increase of small business access to capital at reasonable rates and terms as a result of secondary market operations. Beginning on March 31, 1997 , the sale of the unguaranteed portion of any loan made under section 636(a) of this title shall not be permitted until a final regulation that applies uniformly to both depository institutions and other lenders is promulgated by the Administration setting forth the terms and conditions under which such sales can be permitted, including maintenance of appropriate reserve requirements and other safeguards to protect the safety and soundness of the program.
  • (4) Nothing in this subsection or subsection (g) of this section shall be interpreted to impede or extinguish the right of the borrower or the successor in interest to such borrower to prepay (in whole or in part) any loan made pursuant to section 636(a) of this title , the guaranteed portion of which may be included in such trust or pool, or to impede or extinguish the rights of any party pursuant to section 636(a)(6)(C) of this title or subsection (e) of this section.
• (g)
  • (1) The Administration is authorized to issue trust certificates representing ownership of all or a fractional part of the guaranteed portion of one or more loans which have been guaranteed by the Administration under this chapter, or under section 696 of this title : Provided , That such trust certificates shall be based on and backed by a trust or pool approved by the Administration and composed solely of the entire guaranteed portion of such loans.
  • (2) The Administration is authorized, upon such terms and conditions as are deemed appropriate, to guarantee the timely payment of the principal of and interest on trust certificates issued by the Administration or its agent for purposes of this subsection. Such guarantee shall be limited to the extent of principal and interest on the guaranteed portions of loans which compose the trust or pool. In the event that a loan in such trust or pool is prepaid, either voluntarily or in the event of default, the guarantee of timely payment of principal and interest on the trust certificates shall be reduced in proportion to the amount of principal and interest such prepaid loan represents in the trust or pool. Interest on prepaid or defaulted loans shall accrue and be guaranteed by the Administration only through the date of payment on the guarantee. During the term of the trust certificate, it may be called for redemption due to prepayment or default of all loans constituting the pool.
  • (3) The full faith and credit of the United States is pledged to the payment of all amounts which may be required to be paid under any guarantee of such trust certificates issued by the Administration or its agent pursuant to this subsection.
  • (4)
    • (A) The Administration may collect a fee for any loan guarantee sold into the secondary market under subsection (f) in an amount equal to not more than 50 percent of the portion of the sale price that exceeds 110 percent of the outstanding principal amount of the portion of the loan guaranteed by the Administration. Any such fee imposed by the Administration shall be collected by the Administration or by the agent which carries out on behalf of the Administration the central registration functions required by subsection (h) of this section and shall be paid to the Administration and used solely to reduce the subsidy on loans guaranteed under section 636(a) of this title : Provided , That such fee shall not be charged to the borrower whose loan is guaranteed: and, Provided further , That nothing herein shall preclude any agent of the Administration from collecting a fee approved by the Administration for the functions described in subsection (h)(2). 1 1 See References in Text note below.
    • (B) The Administration is authorized to impose and collect, either directly or through a fiscal and transfer agent, a reasonable penalty on late payments of the fee authorized under subparagraph (A) in an amount not to exceed 5 percent of such fee per month plus interest.
    • (C) The Administration may contract with an agent to carry out, on behalf of the Administration, the assessment and collection of the annual fee established under section 636(a)(23) of this title . The agent may receive, as compensation for services, any interest earned on the fee while in the control of the agent before the time at which the agent is contractually required to remit the fee to the Administration.
  • (5)
    • (A) In the event the Administration pays a claim under a guarantee issued under this subsection, it shall be subrogated fully to the rights satisfied by such payment.
    • (B) No State or local law, and no Federal law, shall preclude or limit the exercise by the Administration of its ownership rights in the portions of loans constituting the trust or pool against which the trust certificates are issued.
  • (6) If the amount of the guaranteed portion of any loan under section 636(a) of this title is more than $500,000, the Administrator shall, upon request of a pool assembler, divide the loan guarantee into increments of $500,000 and 1 increment of any remaining amount less than $500,000, in order to permit the maximum amount of any loan in a pool to be not more than $500,000. Only 1 increment of any loan guarantee divided under this paragraph may be included in the same pool. Increments of loan guarantees to different borrowers that are divided under this paragraph may be included in the same pool.
• (h)
  • (1) Upon the adoption of final rules and regulations, the Administration shall—
    • (A) provide for a central registration of all loans and trust certificates sold pursuant to subsections (f) and (g) of this section;
    • (B) contract with an agent to carry out on behalf of the Administration the central registration functions of this section and the issuance of trust certificates to facilitate pooling. Such agent shall provide a fidelity bond or insurance in such amounts as the Administration determines to be necessary to fully protect the interest of the Government;
    • (C) prior to any sale, require the seller to disclose to a purchaser of the guaranteed portion of a loan guaranteed under this chapter and to the purchaser of a trust certificate issued pursuant to subsection (g), information on the terms, conditions, and yield of such instrument. As used in this paragraph, if the instrument being sold is a loan, the term “seller” does not include (A) an entity which made the loan or (B) any individual or entity which sells three or fewer guaranteed loans per year; and
    • (D) have the authority to regulate brokers and dealers in guaranteed loans and trust certificates sold pursuant to subsections (f) and (g) of this section.
  • (2) The agent described in paragraph (1)(B) may be compensated through any of the fees assessed under this section and any interest earned on any funds collected by the agent while such funds are in the control of the agent and before the time at which the agent is contractually required to transfer such funds to the Administration or to the holders of the trust certificates, as appropriate.
  • (3) Nothing in this subsection shall prohibit the utilization of a book-entry or other electronic form of registration for trust certificates. The Administration may, with the consent of the Secretary of the Treasury, use the book-entry system of the Federal Reserve System.
• (i)
  • (1)
    • (A) There is established in the Administration an Office of Hearings and Appeals—
      • (i) to impartially decide matters relating to program decisions of the Administrator—
        • (I) for which Congress requires a hearing on the record; or
        • (II) that the Administrator designates for hearing by regulation; and
      • (ii) which shall contain the office of the Administration that handles requests submitted pursuant to sections 552 of title 5 (commonly referred to as the “Freedom of Information Act”) and maintains records pursuant to section 552a of title 5 (commonly referred to as the “Privacy Act of 1974”).
    • (B)
      • (i) Except as provided in clause (ii), the Office of Hearings and Appeals shall hear appeals of agency actions under or pursuant to this chapter, the Small Business Investment Act of 1958 ( 15 U.S.C. 661 et seq.), and title 13 of the Code of Federal Regulations, and shall hear such other matters as the Administrator may determine appropriate.
      • (ii) The Office of Hearings and Appeals shall not adjudicate disputes that require a hearing on the record, except disputes pertaining to the small business programs described in this chapter.
    • (C) The head of the Office of Hearings and Appeals shall be the Chief Hearing Officer appointed under section 633(b)(1) of this title , who shall be responsible to the Administrator.
  • (2)
    • (A) The Chief Hearing Officer shall—
      • (i) be a career appointee in the Senior Executive Service and an attorney licensed by a State, commonwealth, territory or possession of the United States, or the District of Columbia; and
      • (ii) be responsible for the operation and management of the Office of Hearings and Appeals.
    • (B) The Chief Hearing Officer may assign a matter for mediation or other means of alternative dispute resolution.
  • (3)
    • (A) The Office of Hearings and Appeals shall appoint Hearing Officers to carry out the duties described in paragraph (1)(A)(i).
    • (B) A Hearing Officer appointed under this paragraph—
      • (i) shall serve in the excepted service as an employee of the Administration under section 2103 of title 5 and under the supervision of the Chief Hearing Officer;
      • (ii) shall be classified at a position to which section 5376 of title 5 applies; and
      • (iii) shall be compensated at a rate not exceeding the maximum rate payable under such section.
    • (C) Notwithstanding section 556(b) of title 5 —
      • (i) a Hearing Officer may hear cases arising under section 554 of such title;
      • (ii) a Hearing Officer shall have the powers described in section 556(c) of such title; and
      • (iii) the relevant provisions of subchapter II of chapter 5 of such title (except for section 556(b) of such title) shall apply to such Hearing Officer.
    • (D) An individual serving as a Judge in the Office of Hearings and Appeals (as that position and office are designated in section 134.101 of title 13, Code of Federal Regulations) on the effective date of this subsection shall be considered as qualified to be, and redesignated as, a Hearing Officer.
  • (4) In this subsection, the term “Hearing Officer” means an individual appointed or redesignated under this subsection who is an attorney licensed by a State, commonwealth, territory or possession of the United States, or the District of Columbia.

§ 634a. Office of Advocacy within Small Business Administration; Chief Counsel for Advocacy

There is established within the Small Business Administration an Office of Advocacy. The management of the Office shall be vested in a Chief Counsel for Advocacy who shall be appointed from civilian life by the President, by and with the advice and consent of the Senate.

§ 634b. Primary functions of Office of Advocacy

The primary functions of the Office of Advocacy shall be to—

• (1) examine the role of small business in the American economy and the contribution which small business can make in improving competition, encouraging economic and social mobility for all citizens, restraining inflation, spurring production, expanding employment opportunities, increasing productivity, promoting exports, stimulating innovation and entrepreneurship, and providing an avenue through which new and untested products and services can be brought to the marketplace;
• (2) assess the effectiveness of existing Federal subsidy and assistance programs for small business and the desirability of reducing the emphasis on such existing programs and increasing the emphasis on general assistance programs designed to benefit all small businesses;
• (3) measure the direct costs and other effects of government regulation on small businesses; and make legislative and nonlegislative proposals for eliminating excessive or unnecessary regulations of small businesses;
• (4) determine the impact of the tax structure on small businesses and make legislative and other proposals for altering the tax structure to enable all small businesses to realize their potential for contributing to the improvement of the Nation’s economic well-being;
• (5) study the ability of financial markets and institutions to meet small business credit needs and determine the impact of government demands for credit on small businesses;
• (6) determine financial resource availability and to recommend methods for delivery of financial assistance to minority enterprises, including methods for securing equity capital, for generating markets for goods and services, for providing effective business education, more effective management and technical assistance, and training, and for assistance in complying with Federal, State, and local law;
• (7) evaluate the efforts of Federal agencies, business and industry to assist minority enterprises;
• (8) make such other recommendations as may be appropriate to assist the development and strengthening of minority and other small business enterprises;
• (9) recommend specific measures for creating an environment in which all businesses will have the opportunity to complete 1 1 So in original. Probably should be “compete”. effectively and expand to their full potential, and to ascertain the common reasons, if any, for small business successes and failures;
• (10) determine the desirability of developing a set of rational, objective criteria to be used to define small business, and to develop such criteria, if appropriate;
• (11) advise, cooperate with, and consult with, the Chairman of the Administrative Conference of the United States with respect to section 504(e) of title 5 ; and
• (12) evaluate the efforts of each department and agency of the United States, and of private industry, to assist small business concerns owned and controlled by veterans, as defined in section 632(q) of this title , and small business concerns owned and controlled by serviced-disabled 2 2 So in original. veterans, as defined in such section 632(q) of this title , and to provide statistical information on the utilization of such programs by such small business concerns, and to make appropriate recommendations to the Administrator of the Small Business Administration and to the Congress in order to promote the establishment and growth of those small business concerns.

§ 634c. Additional duties of Office of Advocacy

• (a) The Office of Advocacy shall also perform the following duties on a continuing basis:
  • (1) serve as a focal point for the receipt of complaints, criticisms, and suggestions concerning the policies and activities of the Administration and any other Federal agency which affects small businesses;
  • (2) counsel small businesses on how to resolve questions and problems concerning the relationship of the small business to the Federal Government;
  • (3) develop proposals for changes in the policies and activities of any agency of the Federal Government which will better fulfill the purposes of the Small Business Act and communicate such proposals to the appropriate Federal agencies;
  • (4) represent the views and interests of small businesses before other Federal agencies whose policies and activities may affect small business;
  • (5) enlist the cooperation and assistance of public and private agencies, businesses, and other organizations in disseminating information about the programs and services provided by the Federal Government which are of benefit to small businesses, and information on how small businesses can participate in or make use of such programs and services; and
  • (6) carry out the responsibilities of the Office of Advocacy under chapter 6 of title 5.
• (b)
  • (1) In this subsection—
    • (A) the term “agency” has the meaning given the term in section 551 of title 5 ;
    • (B) the term “Chief Counsel for Advocacy” means the Chief Counsel for Advocacy of the Small Business Administration;
    • (C) the term “covered trade agreement” means a trade agreement being negotiated pursuant to section 4202(b) of title 19 ; and
    • (D) the term “Working Group” means the Interagency Working Group convened under paragraph (2)(A).
  • (2)
    • (A) Not later than 30 days after the date on which the President submits the notification required under section 4204(a) of title 19 , the Chief Counsel for Advocacy shall convene an Interagency Working Group, which shall consist of an employee from each of the following agencies, as selected by the head of the agency or an official delegated by the head of the agency:
      • (i) The Office of the United States Trade Representative.
      • (ii) The Department of Commerce.
      • (iii) The Department of Agriculture.
      • (iv) Any other agency that the Chief Counsel for Advocacy, in consultation with the United States Trade Representative, determines to be relevant with respect to the subject of the covered trade agreement.
    • (B) Not later than 30 days after the date on which the Chief Counsel for Advocacy convenes the Working Group under subparagraph (A), the Chief Counsel for Advocacy shall identify a diverse group of small businesses, representatives of small businesses, or a combination thereof, to provide to the Working Group the views of small businesses in the manufacturing, services, and agriculture industries on the potential economic effects of the covered trade agreement.
  • (3)
    • (A) Not later than 180 days after the date on which the Chief Counsel for Advocacy convenes the Working Group under paragraph (2)(A), the Chief Counsel for Advocacy shall submit to the Committee on Small Business and Entrepreneurship and the Committee on Finance of the Senate and the Committee on Small Business and the Committee on Ways and Means of the House of Representatives a report on the economic impacts of the covered trade agreement on small businesses, which shall—
      • (i) identify the most important priorities, opportunities, and challenges to various industries from the covered trade agreement;
      • (ii) assess the impact for new small businesses to start exporting, or increase their exports, to markets in countries that are parties to the covered trade agreement;
      • (iii) analyze the competitive position of industries likely to be significantly affected by the covered trade agreement;
      • (iv) identify—
        • (I) any State-owned enterprises in each country participating in negotiations for the covered trade agreement that could pose a threat to small businesses; and
        • (II) any steps to take to create a level playing field for those small businesses;
      • (v) identify any rule of an agency that should be modified to become compliant with the covered trade agreement; and
      • (vi) include an overview of the methodology used to develop the report, including the number of small business participants by industry, how those small businesses were selected, and any other factors that the Chief Counsel for Advocacy may determine appropriate.
    • (B) To ensure that negotiations for the covered trade agreement are not disrupted, the President may require that the Chief Counsel for Advocacy delay submission of the report under subparagraph (A) until after the negotiations for the covered trade agreement are concluded, provided that the delay allows the Chief Counsel for Advocacy to submit the report to Congress not later than 45 days before the Senate or the House of Representatives acts to approve or disapprove the covered trade agreement.
    • (C) The Chief Counsel for Advocacy shall, to the extent practicable, coordinate the submission of the report under this paragraph with the United States International Trade Commission, the United States Trade Representative, other agencies, and trade advisory committees to avoid unnecessary duplication of reporting requirements.

§ 634d. Staff and powers of Office of Advocacy

In carrying out the provisions of sections 634a to 634g of this title, the Chief Counsel for Advocacy may—

• (1) employ and fix the compensation of such additional staff personnel as is deemed necessary, without regard to the provisions of title 5, governing appointments in the competitive service, and without regard to chapter 51, and subchapter III of chapter 53 of such title relating to classification and General Schedule pay rates but at rates not in excess of the lowest rate for GS–15 of the General Schedule: Provided, however , That not more than 14 staff personnel at any one time may be employed and compensated at a rate not in excess of GS–15, step 10, of the General Schedule;
• (2) procure temporary and intermittent services to the same extent as is authorized by section 3109 of title 5 ;
• (3) consult with experts and authorities in the fields of small business investment, venture capital, investment and commercial banking and other comparable financial institutions involved in the financing of business, and with individuals with regulatory, legal, economic, or financial expertise, including members of the academic community, and individuals who generally represent the public interest;
• (4) utilize the services of the National Advisory Council established pursuant to the provisions of section 637(b)(13) of this title and in accordance with the provisions of such statute, also appoint such other advisory boards or committees as is reasonably appropriate and necessary to carry out the provisions of sections 634a to 634g of this title; and
• (5) hold hearings and sit and act at such times and places as he may deem advisable.

§ 634e. Assistance of Government agencies

Each department, agency, and instrumentality of the Federal Government is authorized and directed to furnish to the Chief Counsel for Advocacy such reports and other information as he deems necessary to carry out his functions under sections 634a to 634g of this title.

§ 634f. Reports

The Chief Counsel may from time to time prepare and publish such reports as he deems appropriate. Not later than one year after June 4, 1976 , he shall transmit to the Congress, the President and the Administration, a full report containing his findings and specific recommendations with respect to each of the functions referred to in section 634b of this title , including specific legislative proposals and recommendations for administration or other action. Not later than 6 months after June 4, 1976 , he shall prepare and transmit a preliminary report on his activities. The reports shall not be submitted to the Office of Management and Budget or to any other Federal agency or executive department for any purpose prior to transmittal to the Congress and the President.

§ 634g. Budgetary line item and authorization of appropriations

• (a) Each budget of the United States Government submitted by the President under section 1105 of title 31 shall include a separate statement of the amount of appropriations requested for the Office of Advocacy of the Small Business Administration, which shall be designated in a separate account in the General Fund of the Treasury.
• (b) The Administrator of the Small Business Administration shall provide the Office of Advocacy with appropriate and adequate office space at central and field office locations, together with such equipment, operating budget, and communications facilities and services as may be necessary, and shall provide necessary maintenance services for such offices and the equipment and facilities located in such offices.
• (c) There are authorized to be appropriated such sums as are necessary to carry out sections 634a to 634g of this title. Any amount appropriated under this subsection shall remain available, without fiscal year limitation, until expended.

§ 635. Deposit of moneys; depositaries, custodians, and fiscal agents; contributions to employees’ compensation funds

• (a) All moneys of the Administration not otherwise employed may be deposited with the Treasury of the United States subject to check by authority of the Administration. The Federal Reserve banks are authorized and directed to act as depositaries, custodians, and fiscal agents for the Administration in the general performance of its powers conferred by this chapter. Any banks insured by the Federal Deposit Insurance Corporation, when designated by the Secretary of the Treasury, shall act as custodians and financial agents for the Administration. Each Federal Reserve bank, when designated by the Administrator as fiscal agent for the Administration, shall be entitled to be reimbursed for all expenses incurred as such fiscal agent.
• (b) The Administrator shall contribute to the employees’ compensation fund, on the basis of annual billings as determined by the Secretary of Labor, for the benefit payments made from such fund on account of employees engaged in carrying out functions financed by the revolving fund established by section 633(c) of this title . The annual billings shall also include a statement of the fair portion of the cost of the administration of such fund, which shall be paid by the Administrator into the Treasury as miscellaneous receipts.

§ 636. Additional powers

• (a) The Administration is empowered to the extent and in such amounts as provided in advance in appropriation Acts to make loans for plant acquisition, construction, conversion, or expansion, including the acquisition of land, material, supplies, equipment, and working capital, and to make loans to any qualified small business concern, including those owned by qualified Indian tribes, for purposes of this chapter. Such financings may be made either directly or in cooperation with banks or other financial institutions through agreements to participate on an immediate or deferred (guaranteed) basis. These powers shall be subject, however, to the following restrictions, limitations, and provisions:
  • (1)
    • (A)
      • (i) The Administrator has the authority to direct, and conduct oversight for, the methods by which lenders determine whether a borrower is able to obtain credit elsewhere. No financial assistance shall be extended pursuant to this subsection if the applicant can obtain credit elsewhere. No immediate participation may be purchased unless it is shown that a deferred participation is not available; and no direct financing may be made unless it is shown that a participation is not available.
      • (ii) On and after October 1, 2015 , the Administrator may not guarantee a loan under this subsection if the lender determines that the borrower is unable to obtain credit elsewhere solely because the liquidity of the lender depends upon the guaranteed portion of the loan being sold on the secondary market.
    • (B) Prior to the approval of any loan made pursuant to this subsection, or section 503 of the Small Business Investment Act of 1958 [ 15 U.S.C. 697 ], the Administrator may verify the applicant’s criminal background, or lack thereof, through the best available means, including, if possible, use of the National Crime Information Center computer system at the Federal Bureau of Investigation.
    • (C) On and after October 1, 2015 , the Administrator may not guarantee a loan under this subsection if the sole purpose for requesting the guarantee is to allow the lender to exceed the legal lending limit of the lender.
  • (2)
    • (A) Except as provided in subparagraphs (B), (D), (E), and (F), in an agreement to participate in a loan on a deferred basis under this subsection (including a loan made under the Preferred Lenders Program), such participation by the Administration shall be equal to—
      • (i) 75 percent of the balance of the financing outstanding at the time of disbursement of the loan, if such balance exceeds $150,000; or
      • (ii) 85 percent of the balance of the financing outstanding at the time of disbursement of the loan, if such balance is less than or equal to $150,000.
    • (B)
      • (i) The guarantee percentage specified by subparagraph (A) for any loan under this subsection may be reduced upon the request of the participating lender.
      • (ii) The Administration shall not use the guarantee percentage requested by a participating lender under clause (i) as a criterion for establishing priorities in approving loan guarantee requests under this subsection.
    • (C)
      • (i) The maximum interest rate for a loan guaranteed under the Preferred Lenders Program shall not exceed the maximum interest rate, as determined by the Administration, applicable to other loans guaranteed under this subsection.
      • (ii) Any lender that is participating in the Delegated Authority Lender Program of the Export-Import Bank of the United States (or any successor to the Program) shall be eligible to participate in the Preferred Lenders Program.
      • (iii) For purposes of this subparagraph, the term “Preferred Lenders Program” means any program established by the Administrator, as authorized under the proviso in section 634(b)(7) of this title , under which a written agreement between the lender and the Administration delegates to the lender—
        • (I) complete authority to make and close loans with a guarantee from the Administration without obtaining the prior specific approval of the Administration; and
        • (II) complete authority to service and liquidate such loans without obtaining the prior specific approval of the Administration for routine servicing and liquidation activities, but shall not take any actions creating an actual or apparent conflict of interest.
    • (D) In an agreement to participate in a loan on a deferred basis under the Export Working Capital Program established pursuant to paragraph (14)(A), such participation by the Administration shall be 90 percent.
    • (E) In an agreement to participate in a loan on a deferred basis under paragraph (16), the participation by the Administration may not exceed 90 percent.
    • (F) In an agreement to participate in a loan on a deferred basis under paragraph (36), the participation by the Administration shall be 100 percent.
  • (3) No loan shall be made under this subsection—
    • (A) if the total amount outstanding and committed (by participation or otherwise) to the borrower from the business loan and investment fund established by this chapter would exceed $3,750,000 (or if the gross loan amount would exceed $5,000,000), except as provided in subparagraph (B);
    • (B) if the total amount outstanding and committed (on a deferred basis) solely for the purposes provided in paragraph (16) to the borrower from the business loan and investment fund established by this chapter would exceed $4,500,000 (or if the gross loan amount would exceed $5,000,000), of which not more than $4,000,000 may be used for working capital, supplies, or financings under paragraph (14) for export purposes; and
    • (C) if effected either directly or in cooperation with banks or other lending institutions through agreements to participate on an immediate basis if the amount would exceed $350,000.
  • (4)
    • (A) Notwithstanding the provisions of the constitution of any State or the laws of any State limiting the rate or amount of interest which may be charged, taken, received, or reserved, the maximum legal rate of interest on any financing made on a deferred basis pursuant to this subsection shall not exceed a rate prescribed by the Administration, and the rate of interest for the Administration’s share of any direct or immediate participation loan shall not exceed the current average market yield on outstanding marketable obligations of the United States with remaining periods to maturity comparable to the average maturities of such loans and adjusted to the nearest one-eighth of 1 per centum, and an additional amount as determined by the Administration, but not to exceed 1 per centum per annum: Provided , That for those loans to assist any public or private organization for the handicapped or to assist any handicapped individual as provided in paragraph (10) of this subsection, the interest rate shall be 3 per centum per annum.
    • (B)
      • (i) Any bank or other lending institution making a claim for payment on the guaranteed portion of a loan made under this subsection shall be paid the accrued interest due on the loan from the earliest date of default to the date of payment of the claim at a rate not to exceed the rate of interest on the loan on the date of default, minus one percent.
      • (ii) If a loan described in clause (i) is sold on the secondary market, the amount of interest paid to a bank or other lending institution described in that clause from the earliest date of default to the date of payment of the claim shall be no more than the agreed upon rate, minus one percent.
      • (iii) Clauses (i) and (ii) shall not apply to loans made on or after October 1, 2000 .
    • (C)
      • (i) A borrower who prepays any loan guaranteed under this subsection shall remit to the Administration a subsidy recoupment fee calculated in accordance with clause (ii) if—
        • (I) the loan is for a term of not less than 15 years;
        • (II) the prepayment is voluntary;
        • (III) the amount of prepayment in any calendar year is more than 25 percent of the outstanding balance of the loan; and
        • (IV) the prepayment is made within the first 3 years after disbursement of the loan proceeds.
      • (ii) The subsidy recoupment fee charged under clause (i) shall be—
        • (I) 5 percent of the amount of prepayment, if the borrower prepays during the first year after disbursement;
        • (II) 3 percent of the amount of prepayment, if the borrower prepays during the second year after disbursement; and
        • (III) 1 percent of the amount of prepayment, if the borrower prepays during the third year after disbursement.
  • (5) No such loans including renewals and extensions thereof may be made for a period or periods exceeding twenty-five years, except that such portion of a loan made for the purpose of acquiring real property or constructing, converting, or expanding facilities may have a maturity of twenty-five years plus such additional period as is estimated may be required to complete such construction, conversion, or expansion.
  • (6) All loans made under this subsection shall be of such sound value or so secured as reasonably to assure repayment: Provided, however , That—
    • (A) for loans to assist any public or private organization or to assist any handicapped individual as provided in paragraph (10) of this subsection any reasonable doubt shall be resolved in favor of the applicant;
    • (B) recognizing that greater risk may be associated with loans for energy measures as provided in paragraph (12) of this subsection, factors in determining “sound value” shall include, but not be limited to, quality of the product or service; technical qualifications of the applicant or his employees; sales projections; and the financial status of the business concern: Provided further , That such status need not be as sound as that required for general loans under this subsection; and 1 1 So in original. The “; and” probably should be a period.
    • (C) Repealed. Pub. L. 97–35, title XIX, § 1910 , Aug. 13, 1981 , 95 Stat. 778 .
  • (7) The Administration may defer payments on the principal of such loans for a grace period and use such other methods as it deems necessary and appropriate to assure the successful establishment and operation of such concern.
  • (8) The Administration may make loans under this subsection to small business concerns owned and controlled by disabled veterans (as defined in section 4211(3) of title 38 ).
  • (9) The Administration may provide loans under this subsection to finance residential or commercial construction or rehabilitation for sale: Provided, however , That such loans shall not be used primarily for the acquisition of land.
  • (10) The Administration may provide guaranteed loans under this subsection to assist any public or private organization for the handicapped or to assist any handicapped individual, including service-disabled veterans, in establishing, acquiring, or operating a small business concern.
  • (11) The Administration may provide loans under this subsection to any small business concern, or to any qualified person seeking to establish such a concern when it determines that such loan will further the policies established in section 631(c) 2 2 See References in Text note below. of this title, with particular emphasis on the preservation or establishment of small business concerns located in urban or rural areas with high proportions of unemployed or low-income individuals or owned by low-income individuals.
  • (12)
    • (A) The Administration may provide loans under this subsection to assist any small business concern, including start up, to enable such concern to design architecturally or engineer, manufacture, distribute, market, install, or service energy measures: Provided, however , That such loan proceeds shall not be used primarily for research and development.
    • (b) 3 3 So in original. Probably should be “(B)”. The Administration may provide deferred participation loans under this subsection to finance the planning, design, or installation of pollution control facilities for the purposes set forth in section 404 of the Small Business Investment Act of 1958 [ 15 U.S.C. 694–1 ]. Notwithstanding the limitation expressed in paragraph (3) of this subsection, a loan made under this paragraph may not result in a total amount outstanding and committed to a borrower from the business loan and investment fund of more than $1,000,000.
  • (13) The Administration may provide fi­nancings under this subsection to State and local development companies for the purposes of, and subject to the restrictions in, title V of the Small Business Investment Act of 1958 [ 15 U.S.C. 695 et seq.].
  • (14)
    • (A) The Administrator may provide extensions of credit, standby letters of credit, revolving lines of credit for export purposes, and other financing to enable small business concerns, including small business export trading companies and small business export management companies, to develop foreign markets. A bank or participating lending institution may establish the rate of interest on such financings as may be legal and reasonable.
    • (B)
      • (i) The Administrator may not guarantee a loan under this paragraph of more than $5,000,000.
      • (ii)
        • (I) For a loan under this paragraph, the Administrator shall collect the fee assessed under paragraph (23) not more frequently than once each year.
        • (II) The Administrator may not assess a fee on capital that is not accessed by the small business concern.
    • (C) When considering loan or guarantee applications, the Administration shall give weight to export-related benefits, including opening new markets for United States goods and services abroad and encouraging the involvement of small businesses, including agricultural concerns, in the export market.
    • (D) The Administrator shall aggressively market its export financing program to small businesses.
  • (15)
    • (A) The Administration may guarantee loans under this subsection—
      • (i) to qualified employee trusts with respect to a small business concern for the purpose of purchasing, and for any transaction costs associated with purchasing, stock of the concern under a plan approved by the Administrator which, when carried out, results in the qualified employee trust owning at least 51 per centum of the stock of the concern; and
      • (ii) to a small business concern under a plan approved by the Administrator, if the proceeds from the loan are only used to make a loan to a qualified employee trust, and for any transaction costs associated with making that loan, that results in the qualified employee trust owning at least 51 percent of the small business concern.
    • (B) The plan requiring the Administrator’s approval under subparagraph (A) shall be submitted to the Administration by the trustee of such trust or by the small business concern with its application for the guarantee. Such plan shall include an agreement with the Administrator which is binding on such trust and on the small business concern and which provides that—
      • (i) not later than the date the loan guaranteed under subparagraph (A) is repaid (or as soon thereafter as is consistent with the requirements of section 401(a) of title 26 ), at least 51 per centum of the total stock of such concern shall be allocated to the accounts of at least 51 per centum of the employees of such concern who are entitled to share in such allocation,
      • (ii) there will be periodic reviews of the role in the management of such concern of employees to whose accounts stock is allocated,
      • (iii) there will be adequate management to assure management expertise and continuity, and
      • (iv) with respect to a loan made to a trust, or to a cooperative in accordance with paragraph (35)—
        • (I) a seller of the small business concern may remain involved as an officer, director, or key employee of the small business concern when a qualified employee trust or cooperative has acquired 100 percent of ownership of the small business concern; and
        • (II) any seller of the small business concern who remains as an owner of the small business concern, regardless of the percentage of ownership interest, shall be required to provide a personal guarantee by the Administration.
    • (C) In determining whether to guarantee any loan under this paragraph, the individual business experience or personal assets of employee-owners shall not be used as criteria, except inasmuch as certain employee-owners may assume managerial responsibilities, in which case business experience may be considered.
    • (D) For purposes of this paragraph, a corporation which is controlled by any other person shall be treated as a small business concern if such corporation would, after the plan described in subparagraph (B) is carried out, be treated as a small business concern.
    • (E) The Administration shall compile a separate list of applications for assistance under this paragraph, indicating which applications were accepted and which were denied, and shall report periodically to the Congress on the status of employee-owned firms assisted by the Administration, which shall include—
      • (i) the total number of loans made to employee-owned business concerns that were guaranteed by the Administrator under this subsection or section 502 of the Small Business Investment Act of 1958 ( 15 U.S.C. 696 ), including the number of loans made—
        • (I) to small business concerns owned and controlled by socially and economically disadvantaged individuals; and
        • (II) to cooperatives;
      • (ii) the total number of financings made to employee-owned business concerns by companies licensed under section 301(c) of the Small Business Investment Act of 1958 ( 15 U.S.C. 696(c) ) [ 15 U.S.C. 681(c) ], including the number of financings made—
        • (I) to small business concerns owned and controlled by socially and economically disadvantaged individuals; and
        • (II) to cooperatives; and
      • (iii) any outreach and educational activities conducted by the Administration with respect to employee-owned business concerns.
    • (F) A small business concern that makes a loan to a qualified employee trust under subparagraph (A)(ii) is not required to contain the same terms and conditions as the loan made to the small business concern that is guaranteed by the Administration under such subparagraph.
    • (G) With respect to a loan made to a qualified employee trust under this paragraph, or to a cooperative in accordance with paragraph (35), the Administrator may, as deemed appropriate, elect to not require any mandatory equity to be provided by the qualified employee trust or cooperative to make the loan.
  • (16)
    • (A) If the Administrator determines that a loan guaranteed under this subsection will allow an eligible small business concern that is engaged in or adversely affected by international trade to improve its competitive position, the Administrator may make such loan to assist such concern—
      • (i) in the financing of the acquisition, construction, renovation, modernization, improvement, or expansion of productive facilities or equipment to be used in the United States in the production of goods and services involved in international trade;
      • (ii) in the refinancing of existing indebtedness that is not structured with reasonable terms and conditions, including any debt that qualifies for refinancing under any other provision of this subsection; or
      • (iii) by providing working capital.
    • (B)
      • (i) Except as provided in clause (ii), each loan made under this paragraph shall be secured by a first lien position or first mortgage on the property or equipment financed by the loan or on other assets of the small business concern.
      • (ii) A loan under this paragraph may be secured by a second lien position on the property or equipment financed by the loan or on other assets of the small business concern, if the Administrator determines the lien provides adequate assurance of the payment of the loan.
    • (C) For purposes of this paragraph, a small business concern is engaged in international trade if, as determined by the Administrator, the small business concern is in a position to expand existing export markets or develop new export markets.
    • (D) For purposes of this paragraph, a small business concern is adversely affected by international trade if, as determined by the Administrator, the small business concern—
      • (i) is confronting increased competition with foreign firms in the relevant market; and
      • (ii) is injured by such competition.
    • (E) For purposes of subparagraph (D)(ii) the Administrator shall accept any finding of injury by the International Trade Commission or any finding of injury by the Secretary of Commerce pursuant to chapter 3 of title II of the Trade Act of 1974 [ 19 U.S.C. 2341 et seq.].
    • (F)
      • (i) The Administrator shall publish an annual list of the banks and participating lending institutions that, during the 1-year period ending on the date of publication of the list, have made loans guaranteed by the Administration under—
        • (I) this paragraph;
        • (II) paragraph (14); or
        • (III) paragraph (34).
      • (ii) The Administrator shall—
        • (I) post the list published under clause (i) on the website of the Administration; and
        • (II) make the list published under clause (i) available, upon request, at each district office of the Administration.
  • (17) The Administration shall authorize lending institutions and other entities in addition to banks to make loans authorized under this subsection.
  • (18)
    • (A) With respect to each loan guaranteed under this subsection (other than a loan that is repayable in 1 year or less), the Administration shall collect a guarantee fee, which shall be payable by the participating lender, and may be charged to the borrower, as follows:
      • (i) A guarantee fee not to exceed 2 percent of the deferred participation share of a total loan amount that is not more than $150,000.
      • (ii) A guarantee fee not to exceed 3 percent of the deferred participation share of a total loan amount that is more than $150,000, but not more than $700,000.
      • (iii) A guarantee fee not to exceed 3.5 percent of the deferred participation share of a total loan amount that is more than $700,000.
      • (iv) In addition to the fee under clause (iii), a guarantee fee equal to 0.25 percent of any portion of the deferred participation share that is more than $1,000,000.
    • (B) Lenders participating in the programs established under this subsection may retain not more than 25 percent of a fee collected under subparagraph (A)(i).
  • (19)
    • (A) In addition to the Preferred Lenders Program authorized by the proviso in section 634(b)(7) of this title , the Administration is authorized to establish a Certified Lenders Program for lenders who establish their knowledge of Administration laws and regulations concerning the guaranteed loan program and their proficiency in program requirements. The designation of a lender as a certified lender shall be suspended or revoked at any time that the Administration determines that the lender is not adhering to its rules and regulations or that the loss experience of the lender is excessive as compared to other lenders, but such suspension or revocation shall not affect any outstanding guarantee.
    • (B) In order to encourage all lending institutions and other entities making loans authorized under this subsection to provide loans of $50,000 or less in guarantees to eligible small business loan applicants, the Administration shall develop and allow participating lenders to solely utilize a uniform and simplified loan form for such loans.
    • (C)
      • (i) The Administrator may permit lenders participating in the Certified Lenders Program to liquidate loans made with a guarantee from the Administration pursuant to a liquidation plan approved by the Administrator.
      • (ii) If the Administrator does not approve or deny a request for approval of a liquidation plan within 10 business days of the date on which the request is made (or with respect to any routine liquidation activity under such a plan, within 5 business days) such request shall be deemed to be approved.
  • (20)
    • (A) The Administration is empowered to make loans either directly or in cooperation with banks or other financial institutions through agreements to participate on an immediate or deferred (guaranteed) basis to small business concerns eligible for assistance under subsection (j)(10) and section 637(a) of this title . Such assistance may be provided only if the Administration determines that—
      • (i) the type and amount of such assistance requested by such concern is not otherwise available on reasonable terms from other sources;
      • (ii) with such assistance such concern has a reasonable prospect for operating soundly and profitably within a reasonable period of time;
      • (iii) the proceeds of such assistance will be used within a reasonable time for plant construction, conversion, or expansion, including the acquisition of equipment, facilities, machinery, supplies, or material or to supply such concern with working capital to be used in the manufacture of articles, equipment, supplies, or material for defense or civilian production or as may be necessary to insure a well-balanced national economy; and
      • (iv) such assistance is of such sound value as reasonably to assure that the terms under which it is provided will not be breached by the small business concern.
    • (B)
      • (i) No loan shall be made under this paragraph if the total amount outstanding and committed (by participation or otherwise) to the borrower would exceed $750,000.
      • (ii) Subject to the provisions of clause (i), in agreements to participate in loans on a deferred (guaranteed) basis, participation by the Administration shall be not less than 85 per centum of the balance of the financing outstanding at the time of disbursement.
      • (iii) The rate of interest on financings made on a deferred (guaranteed) basis shall be legal and reasonable.
      • (iv) Financings made pursuant to this paragraph shall be subject to the following limitations:
        • (I) No immediate participation may be purchased unless it is shown that a deferred participation is not available.
        • (II) No direct financing may be made unless it is shown that a participation is unavailable.
    • (C) A direct loan or the Administration’s share of an immediate participation loan made pursuant to this paragraph shall be any secured debt instrument—
      • (i) that is subordinated by its terms to all other borrowings of the issuer;
      • (ii) the rate of interest on which shall not exceed the current average market yield on outstanding marketable obligations of the United States with remaining periods to maturity comparable to the average maturities of such loan and adjusted to the nearest one-eighth of 1 per centum;
      • (iii) the term of which is not more than twenty-five years; and
      • (iv) the principal on which is amortized at such rate as may be deemed appropriate by the Administration, and the interest on which is payable not less often than annually.
  • (21)
    • (A) The Administration may make loans on a guaranteed basis under the authority of this subsection—
      • (i) to a small business concern that has been (or can reasonably be expected to be) detrimentally affected by—
        • (I) the closure (or substantial reduction) of a Department of Defense installation; or
        • (II) the termination (or substantial reduction) of a Department of Defense program on which such small business was a prime contractor or subcontractor (or supplier) at any tier; or
      • (ii) to a qualified individual or a veteran seeking to establish (or acquire) and operate a small business concern.
    • (B) Recognizing that greater risk may be associated with a loan to a small business concern described in subparagraph (A)(i), any reasonable doubts concerning the firm’s proposed business plan for transition to nondefense-related markets shall be resolved in favor of the loan applicant when making any determination regarding the sound value of the proposed loan in accordance with paragraph (6).
    • (C) Loans pursuant to this paragraph shall be authorized in such amounts as provided in advance in appropriation Acts for the purposes of loans under this paragraph.
    • (D) For purposes of this paragraph a qualified individual is—
      • (i) a member of the Armed Forces of the United States, honorably discharged from active duty involuntarily or pursuant to a program providing bonuses or other inducements to encourage voluntary separation or early retirement;
      • (ii) a civilian employee of the Department of Defense involuntarily separated from Federal service or retired pursuant to a program offering inducements to encourage early retirement; or
      • (iii) an employee of a prime contractor, subcontractor, or supplier at any tier of a Department of Defense program whose employment is involuntarily terminated (or voluntarily terminated pursuant to a program offering inducements to encourage voluntary separation or early retirement) due to the termination (or substantial reduction) of a Department of Defense program.
    • (E) In providing assistance under this paragraph, the Administration shall develop procedures to ensure, to the maximum extent practicable, that such assistance is used for projects that—
      • (i) have the greatest potential for—
        • (I) creating new jobs for individuals whose employment is involuntarily terminated due to reductions in Federal defense expenditures; or
        • (II) preventing the loss of jobs by employees of small business concerns described in subparagraph (A)(i); and
      • (ii) have substantial potential for stimulating new economic activity in communities most affected by reductions in Federal defense expenditures.
  • (22) The Administration is authorized to permit participating lenders to impose and collect a reasonable penalty fee on late payments of loans guaranteed under this subsection in an amount not to exceed 5 percent of the monthly loan payment per month plus interest.
  • (23)
    • (A) With respect to each loan approved under this subsection, the Administration shall assess, collect, and retain a fee, not to exceed 0.55 percent per year of the outstanding balance of the deferred participation share of the loan, in an amount established once annually by the Administration in the Administration’s annual budget request to Congress, as necessary to reduce to zero the cost to the Administration of making guarantees under this subsection. As used in this paragraph, the term “cost” has the meaning given that term in section 661a of title 2 .
    • (B) The yearly fee assessed under subparagraph (A) shall be payable by the participating lender and shall not be charged to the borrower.
    • (C) If the Administration determines that fees paid by lenders and by small business borrowers for guarantees under this subsection may be reduced, consistent with reducing to zero the cost to the Administration of making such guarantees—
      • (i) the Administration shall first consider reducing fees paid by small business borrowers under clauses (i) through (iii) of paragraph (18)(A), to the maximum extent possible; and
      • (ii) fees paid by small business borrowers shall not be increased above the levels in effect on December 8, 2004 .
  • (24) The Administration shall notify the Committees on Small Business of the Senate and the House of Representatives not later than 15 days before making any significant policy or administrative change affecting the operation of the loan program under this subsection.
  • (25)
    • (A) Not more than 10 percent of the total number of loans guaranteed in any fiscal year under this subsection may be awarded as part of a pilot program which is commenced by the Administrator on or after October 1, 1996 .
    • (B) In this paragraph, the term ‘pilot program’ means any lending program initiative, project, innovation, or other activity not specifically authorized by law.
    • (C) The Administrator may carry out the low documentation loan program for loans of $100,000 or less only through lenders with significant experience in making small business loans. Not later than 90 days after September 30, 1996 , the Administrator shall promulgate regulations defining the experience necessary for participation as a lender in the low documentation loan program.
  • (26) All fees, interest, and profits received and retained by the Administration under this subsection shall be included in the calculations made by the Director of the Office of Management and Budget to offset the cost (as that term is defined in section 661a of title 2 ) to the Administration of purchasing and guaranteeing loans under this chapter.
  • (27) Repealed. Pub. L. 106–8, § 3(c) , Apr. 2, 1999 , 113 Stat. 16 .
  • (28) In addition to such other lease arrangements as may be authorized by the Administration, a borrower may permanently lease to one or more tenants not more than 20 percent of any property constructed with the proceeds of a loan guaranteed under this subsection, if the borrower permanently occupies and uses not less than 60 percent of the total business space in the property.
  • (29)
    • (A) With respect to a loan under this subsection that is secured by commercial real property, an appraisal of such property by a State licensed or certified appraiser—
      • (i) shall be required by the Administration in connection with any such loan, if such loan is in an amount greater than the Federal banking regulator appraisal threshold; or
      • (ii) may be required by the Administration or the lender in connection with any such loan, if such loan is in an amount equal to or less than the Federal banking regulator appraisal threshold, if such appraisal is necessary for appropriate evaluation of creditworthiness.
    • (B) For purposes of this paragraph, the term “Federal banking regulator appraisal threshold” means the lesser of the threshold amounts set by the Board of Governors of the Federal Reserve System, the Comptroller of the Currency, and the Federal Deposit Insurance Corporation for when a federally related transaction that is a commercial real estate transaction requires an appraisal prepared by a State licensed or certified appraiser.
  • (30) Ownership requirements to determine the eligibility of a small business concern that applies for assistance under any credit program under this chapter shall be determined without regard to any ownership interest of a spouse arising solely from the application of the community property laws of a State for purposes of determining marital interests.
  • (31)
    • (A) As used in this paragraph:
      • (i) The term “disaster area” means the area for which the President has declared a major disaster, during the 5-year period beginning on the date of the declaration.
      • (ii) The term “express lender” means any lender authorized by the Administration to participate in the Express Loan Program.
      • (iii) The term “express loan” means any loan made pursuant to this paragraph in which a lender utilizes to the maximum extent practicable its own loan analyses, procedures, and documentation.
      • (iv) The term “Express Loan Program” means the program for express loans established by the Administration under paragraph (25)(B), as in existence on April 5, 2004 , with a guaranty rate of not more than 50 percent.
    • (B) The authority to make an express loan shall be limited to those lenders deemed qualified to make such loans by the Administration. Designation as an express lender for purposes of making an express loan shall not prohibit such lender from taking any other action authorized by the Administration for that lender pursuant to this subsection.
    • (C) Any express lender shall retain such designation unless the Administration determines that the express lender has violated the law or regulations promulgated by the Administration or modifies the requirements to be an express lender and the lender no longer satisfies those requirements.
    • (D) The maximum loan amount under the Express Loan Program is $1,000,000.
    • (E) Except as otherwise provided in this paragraph, the Administration shall take no regulatory, policy, or administrative action, without regard to whether such action requires notification pursuant to paragraph (24), that has the effect of requiring a lender to make an express loan pursuant to subparagraph (D).
    • (F)
      • (i) In this subparagraph—
        • (I) the term “biomass”—
        • (II) the term “energy efficiency project” means the installation or upgrading of equipment that results in a significant reduction in energy usage; and
        • (III) the term “renewable energy system” means a system of energy derived from—
      • (ii) The Administrator may make a loan under the Express Loan Program for the purpose of—
        • (I) purchasing a renewable energy system; or
        • (II) carrying out an energy efficiency project for a small business concern.
    • (G)
      • (i) The Administrator may not collect a guarantee fee described in paragraph (18) in connection with a loan made under this paragraph to a veteran or spouse of a veteran on or after October 1, 2015 .
      • (ii) In this subparagraph, the term “veteran or spouse of a veteran” means—
        • (I) a veteran, as defined in section 632(q)(4) of this title ;
        • (II) an individual who is eligible to participate in the Transition Assistance Program established under section 1144 of title 10 ;
        • (III) a member of a reserve component of the Armed Forces named in section 10101 of title 10 ;
        • (IV) the spouse of an individual described in subclause (I), (II), or (III); or
        • (V) the surviving spouse (as defined in section 101 of title 38 ) of an individual described in subclause (I), (II), or (III) who died while serving on active duty or as a result of a disability that is service-connected (as defined in such section).
    • (H)
      • (i) The Administrator may guarantee an express loan to a small business concern located in a disaster area in accordance with this subparagraph.
      • (ii) For a loan guaranteed under clause (i)—
        • (I) the maximum loan amount is $150,000; and
        • (II) the guarantee rate shall be not more than 85 percent.
      • (iii) A loan guaranteed under clause (i) shall not be counted in determining the amount of loans made to a borrower for purposes of subparagraph (D).
      • (iv) A small business concern receiving a loan guaranteed under clause (i) shall certify that the small business concern was in operation on the date on which the applicable major disaster occurred as a condition of receiving the loan.
      • (v) A loan guaranteed under clause (i) may only be made to a small business concern that demonstrates, to the satisfaction of the Administrator, sufficient capacity to repay the loan.
      • (vi)
        • (I) Not later than 90 days after the date on which a request for purchase is filed with the Administrator, the Administrator shall determine whether to pay the guaranteed portion of the loan.
        • (II) Notwithstanding any other provision of law, unless there is a subsequent finding of fraud by a court of competent jurisdiction relating to a loan guaranteed under clause (i), on and after the date that is 6 months after the date on which the Administrator determines to pay the guaranteed portion of the loan, the Administrator may not attempt to recapture the paid guarantee.
      • (vii)
        • (I) Unless the Administrator has waived the guarantee fee that would otherwise be collected by the Administrator under paragraph (18) for a loan guaranteed under clause (i), and except as provided in subclause (II), the guarantee fee for the loan shall be equal to the guarantee fee that the Administrator would collect if the guarantee rate for the loan was 50 percent.
        • (II) Subclause (I) shall not apply if the cost of carrying out the program under this subsection in a fiscal year is more than zero and such cost is directly attributable to the cost of guaranteeing loans under clause (i).
      • (viii) Not later than 270 days after November 25, 2015 , the Administrator shall promulgate rules to carry out this subparagraph.
  • (32)
    • (A) In this paragraph—
      • (i) the term “cost” has the meaning given that term in section 661a of title 2 ;
      • (ii) the term “covered energy efficiency loan” means a loan—
        • (I) made under this subsection; and
        • (II) the proceeds of which are used to purchase energy efficient designs, equipment, or fixtures, or to reduce the energy consumption of the borrower by 10 percent or more; and
      • (iii) the term “pilot program” means the pilot program established under subparagraph (B) 4 4 So in original.
    • (B) The Administrator shall establish and carry out a pilot program under which the Administrator shall reduce the fees for covered energy efficiency loans.
    • (C) The pilot program shall terminate at the end of the second full fiscal year after the date that the Administrator establishes the pilot program.
    • (D) A covered energy efficiency loan shall include the maximum participation levels by the Administrator permitted for loans made under this subsection.
    • (E)
      • (i) The fee on a covered energy efficiency loan shall be equal to 50 percent of the fee otherwise applicable to that loan under paragraph (18).
      • (ii) The Administrator may waive clause (i) for a fiscal year if—
        • (I) for the fiscal year before that fiscal year, the annual rate of default of covered energy efficiency loans exceeds that of loans made under this subsection that are not covered energy efficiency loans;
        • (II) the cost to the Administration of making loans under this subsection is greater than zero and such cost is directly attributable to the cost of making covered energy efficiency loans; and
        • (III) no additional sources of revenue authority are available to reduce the cost of making loans under this subsection to zero.
      • (iii) If the Administrator waives the reduction of fees under clause (ii), the Administrator—
        • (I) shall not assess or collect fees in an amount greater than necessary to ensure that the cost of the program under this subsection is not greater than zero; and
        • (II) shall reinstate the fee reductions under clause (i) when the conditions in clause (ii) no longer apply.
      • (iv) The Administrator shall not increase the fees under paragraph (18) on loans made under this subsection that are not covered energy efficiency loans as a direct result of the pilot program.
    • (F)
      • (i) Not later than 1 year after the date that the pilot program terminates, the Comptroller General of the United States shall submit to the Committee on Small Business of the House of Representatives and the Committee on Small Business and Entrepreneurship of the Senate a report on the pilot program.
      • (ii) The report submitted under clause (i) shall include—
        • (I) the number of covered energy efficiency loans for which fees were reduced under the pilot program;
        • (II) a description of the energy efficiency savings with the pilot program;
        • (III) a description of the impact of the pilot program on the program under this subsection;
        • (IV) an evaluation of the efficacy and potential fraud and abuse of the pilot program; and
        • (V) recommendations for improving the pilot program.
  • (33)
    • (A) In this paragraph—
      • (i) the term “cost” has the meaning given that term in section 661a of title 2 ;
      • (ii) the term “pilot program” means the pilot program established under subparagraph (B); and
      • (iii) the term “veteran participation loan” means a loan made under this subsection to a small business concern owned and controlled by veterans of the Armed Forces or members of the reserve components of the Armed Forces.
    • (B) The Administrator shall establish and carry out a pilot program under which the Administrator shall reduce the fees for veteran participation loans.
    • (C) The pilot program shall terminate at the end of the second full fiscal year after the date that the Administrator establishes the pilot program.
    • (D) A veteran participation loan shall include the maximum participation levels by the Administrator permitted for loans made under this subsection.
    • (E)
      • (i) The fee on a veteran participation loan shall be equal to 50 percent of the fee otherwise applicable to that loan under paragraph (18).
      • (ii) The Administrator may waive clause (i) for a fiscal year if—
        • (I) for the fiscal year before that fiscal year, the annual estimated rate of default of veteran participation loans exceeds that of loans made under this subsection that are not veteran participation loans;
        • (II) the cost to the Administration of making loans under this subsection is greater than zero and such cost is directly attributable to the cost of making veteran participation loans; and
        • (III) no additional sources of revenue authority are available to reduce the cost of making loans under this subsection to zero.
      • (iii) If the Administrator waives the reduction of fees under clause (ii), the Administrator—
        • (I) shall not assess or collect fees in an amount greater than necessary to ensure that the cost of the program under this subsection is not greater than zero; and
        • (II) shall reinstate the fee reductions under clause (i) when the conditions in clause (ii) no longer apply.
      • (iv) The Administrator shall not increase the fees under paragraph (18) on loans made under this subsection that are not veteran participation loans as a direct result of the pilot program.
    • (F)
      • (i) Not later than 1 year after the date that the pilot program terminates, the Comptroller General of the United States shall submit to the Committee on Small Business of the House of Representatives and the Committee on Small Business and Entrepreneurship of the Senate a report on the pilot program.
      • (ii) The report submitted under clause (i) shall include—
        • (I) the number of veteran participation loans for which fees were reduced under the pilot program;
        • (II) a description of the impact of the pilot program on the program under this subsection;
        • (III) an evaluation of the efficacy and potential fraud and abuse of the pilot program; and
        • (IV) recommendations for improving the pilot program.
  • (34)
    • (A) In this paragraph—
      • (i) the term “export development activity” includes—
        • (I) obtaining a standby letter of credit when required as a bid bond, performance bond, or advance payment guarantee;
        • (II) participation in a trade show that takes place outside the United States;
        • (III) translation of product brochures or catalogues for use in markets outside the United States;
        • (IV) obtaining a general line of credit for export purposes;
        • (V) performing a service contract from buyers located outside the United States;
        • (VI) obtaining transaction-specific financing associated with completing export orders;
        • (VII) purchasing real estate or equipment to be used in the production of goods or services for export;
        • (VIII) providing term loans or other financing to enable a small business concern, including an export trading company and an export management company, to develop a market outside the United States; and
        • (IX) acquiring, constructing, renovating, modernizing, improving, or expanding a production facility or equipment to be used in the United States in the production of goods or services for export; and
      • (ii) the term “express loan” means a loan in which a lender uses to the maximum extent practicable the loan analyses, procedures, and documentation of the lender to provide expedited processing of the loan application.
    • (B) The Administrator may guarantee the timely payment of an express loan to a small business concern made for an export development activity.
    • (C)
      • (i) The maximum amount of an express loan guaranteed under this paragraph shall be $500,000.
      • (ii) For an express loan guaranteed under this paragraph, the Administrator shall guarantee—
        • (I) 90 percent of a loan that is not more than $350,000; and
        • (II) 75 percent of a loan that is more than $350,000 and not more than $500,000.
  • (35)
    • (A) In this paragraph, the term “cooperative” means an entity that is determined to be a cooperative by the Administrator, in accordance with applicable Federal and State laws and regulation.
    • (B) The Administration shall guarantee loans made to a cooperative for the purpose described in paragraph (15).
  • (36)
    • (A) In this paragraph—
      • (i) the terms “appropriate Federal banking agency” and “insured depository institution” have the meanings given those terms in section 1813 of title 12 ;
      • (ii) the term “covered loan” means a loan made under this paragraph during the covered period;
      • (iii) the term “covered period” means the period beginning on February 15, 2020 and ending on December 31, 2020 ;
      • (iv) the term “eligible recipient” means an individual or entity that is eligible to receive a covered loan;
      • (v) the term “eligible self-employed individual” has the meaning given the term in section 7002(b) of the Families First Coronavirus Response Act ( Public Law 116–127 );
      • (vi) the term “insured credit union” has the meaning given the term in section 1752 of title 12 ;
      • (vii) the term “nonprofit organization” means an organization that is described in section 501(c)(3) of title 26 and that is exempt from taxation under section 501(a) of title 26 ;
      • (viii) the term “payroll costs”—
        • (I) means—
        • (II) shall not include—
      • (ix) the term “veterans organization” means an organization that is described in section 501(c)(19) of title 26 that is exempt from taxation under section 501(a) of title 26 ;
      • (x) the term “community development financial institution” has the meaning given the term in section 4702 of title 12 ); 5 5 So in original. The closing parenthesis preceding the semicolon probably should not appear.
      • (xi) the term “community financial institutions” means—
        • (I) a community development financial institution;
        • (II) a minority depository institution, as defined in section 308 of the Financial Institutions Reform, Recovery, and Enforcement Act of 1989 ( 12 U.S.C. 1463 note);
        • (III) a development company that is certified under title V of the Small Business Investment Act of 1958 ( 15 U.S.C. 695 et seq.); and
        • (IV) an intermediary, as defined in subsection (m)(11); and
      • (xii) the term “credit union” means a State credit union or a Federal credit union, as those terms are defined, respectively, in section 1752 of title 12 .
    • (B) Except as otherwise provided in this paragraph, the Administrator may guarantee covered loans under the same terms, conditions, and processes as a loan made under this subsection.
    • (C) Not later than 15 days after the date on which a loan is made under this paragraph, the Administration shall register the loan using the TIN (as defined in section 7701 of title 26 ) assigned to the borrower.
    • (D)
      • (i) During the covered period, in addition to small business concerns, any business concern, nonprofit organization, veterans organization, or Tribal business concern described in section 657a(b)(2)(C) of this title shall be eligible to receive a covered loan if the business concern, nonprofit organization, veterans organization, or Tribal business concern employs not more than the greater of—
        • (I) 500 employees; or
        • (II) if applicable, the size standard in number of employees established by the Administration for the industry in which the business concern, nonprofit organization, veterans organization, or Tribal business concern operates.
      • (ii)
        • (I) During the covered period, individuals who operate under a sole proprietorship or as an independent contractor and eligible self-employed individuals shall be eligible to receive a covered loan.
        • (II) An eligible self-employed individual, independent contractor, or sole proprietorship seeking a covered loan shall submit such documentation as is necessary to establish such individual as eligible, including payroll tax filings reported to the Internal Revenue Service, Forms 1099–MISC, and income and expenses from the sole proprietorship, as determined by the Administrator and the Secretary.
      • (iii) During the covered period, any business concern that employs not more than 500 employees per physical location of the business concern and that is assigned a North American Industry Classification System code beginning with 72 at the time of disbursal shall be eligible to receive a covered loan.
      • (iv) During the covered period, the provisions applicable to affiliations under section 121.103 of title 13, Code of Federal Regulations, or any successor regulation, are waived with respect to eligibility for a covered loan for—
        • (I) any business concern with not more than 500 employees that, as of the date on which the covered loan is disbursed, is assigned a North American Industry Classification System code beginning with 72;
        • (II) any business concern operating as a franchise that is assigned a franchise identifier code by the Administration; and
        • (III) any business concern that receives financial assistance from a company licensed under section 681 of this title .
      • (v) For purposes of determining whether a business concern, nonprofit organization, veterans organization, or Tribal business concern described in section 657a(b)(2)(C) of this title employs not more than 500 employees under clause (i)(I), the term “employee” includes individuals employed on a full-time, part-time, or other basis.
      • (vi) The provisions applicable to affiliations under section 121.103 of title 13, Code of Federal Regulations, or any successor thereto, shall apply with respect to a nonprofit organization and a veterans organization in the same manner as with respect to a small business concern.
    • (E) During the covered period, with respect to a covered loan, the maximum loan amount shall be the lesser of—
      • (i)
        • (I) the sum of—
        • (II) if requested by an otherwise eligible recipient that was not in business during the period beginning on February 15, 2019 and ending on June 30, 2019 , the sum of—
      • (ii) $10,000,000.
    • (F)
      • (i) During the covered period, an eligible recipient may, in addition to the allowable uses of a loan made under this subsection, use the proceeds of the covered loan for—
        • (I) payroll costs;
        • (II) costs related to the continuation of group health care benefits during periods of paid sick, medical, or family leave, and insurance premiums;
        • (III) employee salaries, commissions, or similar compensations;
        • (IV) payments of interest on any mortgage obligation (which shall not include any prepayment of or payment of principal on a mortgage obligation);
        • (V) rent (including rent under a lease agreement);
        • (VI) utilities; and
        • (VII) interest on any other debt obligations that were incurred before the covered period.
      • (ii)
        • (I) For purposes of making covered loans for the purposes described in clause (i), a lender approved to make loans under this subsection shall be deemed to have been delegated authority by the Administrator to make and approve covered loans, subject to the provisions of this paragraph.
        • (II) In evaluating the eligibility of a borrower for a covered loan with the terms described in this paragraph, a lender shall consider whether the borrower—
      • (iii) The authority to make loans under this paragraph shall be extended to additional lenders determined by the Administrator and the Secretary of the Treasury to have the necessary qualifications to process, close, disburse and service loans made with the guarantee of the Administration.
      • (iv) A loan made under subsection (b)(2) during the period beginning on January 31, 2020 and ending on the date on which covered loans are made available may be refinanced as part of a covered loan.
      • (v) Notwithstanding the waiver of the personal guarantee requirement or collateral under subparagraph (J), the Administrator shall have no recourse against any individual shareholder, member, or partner of an eligible recipient of a covered loan for nonpayment of any covered loan, except to the extent that such shareholder, member, or partner uses the covered loan proceeds for a purpose not authorized under clause (i).
    • (G)
      • (i) An eligible recipient applying for a covered loan shall make a good faith certification—
        • (I) that the uncertainty of current economic conditions makes necessary the loan request to support the ongoing operations of the eligible recipient;
        • (II) acknowledging that funds will be used to retain workers and maintain payroll or make mortgage payments, lease payments, and utility payments;
        • (III) that the eligible recipient does not have an application pending for a loan under this subsection for the same purpose and duplicative of amounts applied for or received under a covered loan; and
        • (IV) during the period beginning on February 15, 2020 and ending on December 31, 2020 , that the eligible recipient has not received amounts under this subsection for the same purpose and duplicative of amounts applied for or received under a covered loan.
    • (H) During the covered period, with respect to a covered loan—
      • (i) in lieu of the fee otherwise applicable under paragraph (23)(A), the Administrator shall collect no fee; and
      • (ii) in lieu of the fee otherwise applicable under paragraph (18)(A), the Administrator shall collect no fee.
    • (I) During the covered period, the requirement that a small business concern is unable to obtain credit elsewhere, as defined in section 632(h) of this title , shall not apply to a covered loan.
    • (J) During the covered period, with respect to a covered loan—
      • (i) no personal guarantee shall be required for the covered loan; and
      • (ii) no collateral shall be required for the covered loan.
    • (K) With respect to a covered loan that has a remaining balance after reduction based on the loan forgiveness amount under section 9005 of this title —
      • (i) the remaining balance shall continue to be guaranteed by the Administration under this subsection; and
      • (ii) the covered loan shall have a minimum maturity of 5 years and a maximum maturity of 10 years from the date on which the borrower applies for loan forgiveness under that section.
    • (L) A covered loan shall bear an interest rate not to exceed 4 percent.
    • (M)
      • (i)
        • (I) In this subparagraph, the term “impacted borrower” means an eligible recipient that—
        • (II) For purposes of this subparagraph, an impacted borrower is presumed to have been adversely impacted by COVID–19.
      • (ii) During the covered period, the Administrator shall—
        • (I) consider each eligible recipient that applies for a covered loan to be an impacted borrower; and
        • (II) require lenders under this subsection to provide complete payment deferment relief for impacted borrowers with covered loans, including payment of principal, interest, and fees, until the date on which the amount of forgiveness determined under section 9005 of this title is remitted to the lender.
      • (iii) During the covered period, with respect to a covered loan that is sold on the secondary market, if an investor declines to approve a deferral requested by a lender under clause (ii), the Administrator shall exercise the authority to purchase the loan so that the impacted borrower may receive a deferral, including payment of principal, interest, and fees, until the date on which the amount of forgiveness determined under section 9005 of this title is remitted to the lender.
      • (iv) Not later than 30 days after March 27, 2020 , the Administrator shall provide guidance to lenders under this paragraph on the deferment process described in this subparagraph.
      • (v) If an eligible recipient fails to apply for forgiveness of a covered loan within 10 months after the last day of the covered period defined in section 9005(a) of this title , such eligible recipient shall make payments of principal, interest, and fees on such covered loan beginning on the day that is not earlier than the date that is 10 months after the last day of such covered period.
    • (N) A covered loan shall be eligible to be sold in the secondary market consistent with this subsection. The Administrator may not collect any fee for any guarantee sold into the secondary market under this subparagraph.
    • (O)
      • (i) With respect to the appropriate Federal banking agencies or the National Credit Union Administration Board applying capital requirements under their respective risk-based capital requirements, a covered loan shall receive a risk weight of zero percent.
      • (ii) Notwithstanding any other provision of law, an insured depository institution or an insured credit union that modifies a covered loan in relation to COVID–19-related difficulties in a troubled debt restructuring on or after March 13, 2020 , shall not be required to comply with the Financial Accounting Standards Board Accounting Standards Codification Subtopic 310–40 (“Receivables – Troubled Debt Restructurings by Creditors”) for purposes of compliance with the requirements of the Federal Deposit Insurance Act ( 12 U.S.C. 1811 et seq.), until such time and under such circumstances as the appropriate Federal banking agency or the National Credit Union Administration Board, as applicable, determines appropriate.
    • (P)
      • (i) The Administrator shall reimburse a lender authorized to make a covered loan at a rate, based on the balance of the financing outstanding at the time of disbursement of the covered loan, of—
        • (I) 5 percent for loans of not more than $350,000;
        • (II) 3 percent for loans of more than $350,000 and less than $2,000,000; and
        • (III) 1 percent for loans of not less than $2,000,000.
      • (ii) An agent that assists an eligible recipient to prepare an application for a covered loan may not collect a fee in excess of the limits established by the Administrator.
      • (iii) A reimbursement described in clause (i) shall be made not later than 5 days after the disbursement of the covered loan.
      • (iv) It is the sense of the Senate that the Administrator should issue guidance to lenders and agents to ensure that the processing and disbursement of covered loans prioritizes small business concerns and entities in underserved and rural markets, including veterans and members of the military community, small business concerns owned and controlled by socially and economically disadvantaged individuals (as defined in section 637(d)(3)(C) of this title ), women, and businesses in operation for less than 2 years.
    • (Q) Nothing in this paragraph shall prohibit a recipient of an economic injury disaster loan made under subsection (b)(2) during the period beginning on January 31, 2020 and ending on the date on which covered loans are made available that is for a purpose other than paying payroll costs and other obligations described in subparagraph (F) from receiving assistance under this paragraph.
    • (R) Notwithstanding any other provision of law, there shall be no prepayment penalty for any payment made on a covered loan.
    • (S)
      • (i) In making loan guarantees under this paragraph after April 24, 2020 , the Administrator shall guarantee not less than $30,000,000,000 in loans made by—
        • (I) insured depository institutions with consolidated assets of not less than $10,000,000,000 and less than $50,000,000,000; and
        • (II) credit unions with consolidated assets of not less than $10,000,000,000 and less than $50,000,000,000.
      • (ii) In making loan guarantees under this paragraph after April 24, 2020 , the Administrator shall guarantee not less than $30,000,000,000 in loans made by—
        • (I) community financial institutions;
        • (II) insured depository institutions with consolidated assets of less than $10,000,000,000; and
        • (III) credit unions with consolidated assets of less than $10,000,000,000.
• (b) Except as to agricultural enterprises as defined in section 647(b)(1) of this title , the Administration also is empowered to the extent and in such amounts as provided in advance in appropriation Acts—
  • (1)
    • (A) to make such loans (either directly or in cooperation with banks or other lending institutions through agreements to participate on an immediate or deferred (guaranteed) basis) as the Administration may determine to be necessary or appropriate to repair, rehabilitate or replace property, real or personal, damaged or destroyed by or as a result of natural or other disasters: Provided , That such damage or destruction is not compensated for by insurance or otherwise: And provided further , That the Administration may increase the amount of the loan by up to an additional 20 per centum of the aggregate costs of such damage or destruction (whether or not compensated for by insurance or otherwise) if it determines such increase to be necessary or appropriate in order to protect the damaged or destroyed property from possible future disasters by taking mitigating measures, including—
      • (i) construction of retaining walls and sea walls;
      • (ii) grading and contouring land; and
      • (iii) relocating utilities and modifying structures, including construction of a safe room or similar storm shelter designed to protect property and occupants from tornadoes or other natural disasters, if such safe room or similar storm shelter is constructed in accordance with applicable standards issued by the Federal Emergency Management Agency;
    • (B) to refinance any mortgage or other lien against a totally destroyed or substantially damaged home or business concern: Provided , That no loan or guarantee shall be extended unless the Administration finds that (i) the applicant is not able to obtain credit elsewhere; (ii) such property is to be repaired, rehabilitated, or replaced; (iii) the amount refinanced shall not exceed the amount of physical loss sustained; and (iv) such amounts shall be reduced to the extent such mortgage or lien is satisfied by insurance or otherwise; and
    • (C) during fiscal years 2000 through 2004, to establish a predisaster mitigation program to make such loans (either directly or in cooperation with banks or other lending institutions through agreements to participate on an immediate or deferred (guaranteed) basis), as the Administrator may determine to be necessary or appropriate, to enable small businesses to use mitigation techniques in support of a formal mitigation program established by the Federal Emergency Management Agency, except that no loan or guarantee may be extended to a small business under this subparagraph unless the Administration finds that the small business is otherwise unable to obtain credit for the purposes described in this subparagraph;
  • (2) to make such loans (either directly or in cooperation with banks or other lending institutions through agreements to participate on an immediate or deferred (guaranteed) basis) as the Administration may determine to be necessary or appropriate to any small business concern, private nonprofit organization, or small agricultural cooperative located in an area affected by a disaster, 7 7 So in original. The comma probably should not appear. (including drought), with respect to both farm-related and nonfarm-related small business concerns, if the Administration determines that the concern, the organization, or the cooperative has suffered a substantial economic injury as a result of such disaster and if such disaster constitutes—
    • (A) a major disaster, as determined by the President under the Robert T. Stafford Disaster Relief and Emergency Assistance Act ( 42 U.S.C. 5121 et seq.);
    • (B) a natural disaster, as determined by the Secretary of Agriculture pursuant to section 1961 of title 7 , in which case, assistance under this paragraph may be provided to farm-related and nonfarm-related small business concerns, subject to the other applicable requirements of this paragraph;
    • (C) a disaster, as determined by the Administrator of the Small Business Administration;
    • (D) an emergency involving Federal primary responsibility determined to exist by the President under the section 5191(b) of title 42 ; or
    • (E) if no disaster or emergency declaration has been issued pursuant to subparagraph (A), (B), (C), or (D), the Governor of a State in which a disaster or emergency has occurred may certify to the Small Business Administration that small business concerns, private nonprofit organizations, or small agricultural cooperatives (1) have suffered economic injury as a result of such disaster or emergency, and (2) are in need of financial assistance which is not available on reasonable terms in the disaster- or emergency-stricken area. Not later than 30 days after the date of receipt of such certification by a Governor of a State, the Administration shall respond in writing to that Governor on its determination and the reasons therefore, 8 8 So in original. Probably should be “therefor,”. and may then make such loans as would have been available under this paragraph if a disaster or emergency declaration had been issued.
  • (3)
    • (A) In this paragraph—
      • (i) the term “active service” has the meaning given that term in section 101(d)(3) of title 10 ;
      • (ii) the term “essential employee” means an individual who is employed by a small business concern and whose managerial or technical expertise is critical to the successful day-to-day operations of that small business concern; and
      • (iii) the term “substantial economic injury” means an economic harm to a business concern that results in the inability of the business concern—
        • (I) to meet its obligations as they mature;
        • (II) to pay its ordinary and necessary operating expenses; or
        • (III) to market, produce, or provide a product or service ordinarily marketed, produced, or provided by the business concern.
    • (B) The Administration may make such disaster loans (either directly or in cooperation with banks or other lending institutions through agreements to participate on an immediate or deferred basis) to assist a small business concern that has suffered or that is likely to suffer substantial economic injury as the result of an essential employee of such small business concern being ordered to perform active service for a period of more than 30 consecutive days.
    • (C) A small business concern described in subparagraph (B) shall be eligible to apply for assistance under this paragraph during the period beginning on the date on which the essential employee is ordered to active service and ending on the date that is 1 year after the date on which such essential employee is discharged or released from active service. The Administrator may, when appropriate (as determined by the Administrator), extend the ending date specified in the preceding sentence by not more than 1 year.
    • (D) Any loan or guarantee extended pursuant to this paragraph shall be made at the same interest rate as economic injury loans under paragraph (2).
    • (E) No loan may be made under this paragraph, either directly or in cooperation with banks or other lending institutions through agreements to participate on an immediate or deferred basis, if the total amount outstanding and committed to the borrower under this subsection would exceed $1,500,000, unless such applicant constitutes, or have 9 9 So in original. Probably should be “has”. become due to changed economic circumstances, a major source of employment in its surrounding area, as determined by the Administration, in which case the Administration, in its discretion, may waive the $1,500,000 limitation.
    • (F) For purposes of assistance under this paragraph, no declaration of a disaster area shall be required.
    • (G)
      • (i) Notwithstanding any other provision of law, the Administrator may make a loan under this paragraph of not more than $50,000 without collateral.
      • (ii) The Administrator may defer payment of principal and interest on a loan described in clause (i) during the longer of—
        • (I) the 1-year period beginning on the date of the initial disbursement of the loan; and
        • (II) the period during which the relevant essential employee is on active service.
    • (H) The Administrator shall give priority to any application for a loan under this paragraph and shall process and make a determination regarding such applications prior to processing or making a determination on other loan applications under this subsection, on a rolling basis.
  • (4)
    • (A) Notwithstanding any other provision of law, for any disaster declared under this subsection or major disaster (including any major disaster relating to which the Administrator declares eligibility for additional disaster assistance under paragraph (9)), the Administrator, in consultation with the Administrator of the Federal Emergency Management Agency, shall ensure, to the maximum extent practicable, that all application periods for disaster relief under this chapter correspond with application deadlines established under the Robert T. Stafford Disaster Relief and Emergency Assistance Act ( 42 U.S.C. 5121 et seq.), or as extended by the President.
    • (B) Notwithstanding any other provision of law, not later than 10 days before the closing date of an application period for a major disaster (including any major disaster relating to which the Administrator declares eligibility for additional disaster assistance under paragraph (9)), the Administrator, in consultation with the Administrator of the Federal Emergency Management Agency, shall submit to the Committee on Small Business and Entrepreneurship of the Senate and the Committee on Small Business of the House of Representatives a report that includes—
      • (i) the deadline for submitting applications for assistance under this chapter relating to that major disaster;
      • (ii) information regarding the number of loan applications and disbursements processed by the Administrator relating to that major disaster for each day during the period beginning on the date on which that major disaster was declared and ending on the date of that report; and
      • (iii) an estimate of the number of potential applicants that have not submitted an application relating to that major disaster.
  • (5) If a disaster is declared under this subsection or the Administrator declares eligibility for additional disaster assistance under paragraph (9), the Administrator shall make every effort to communicate through radio, television, print, and web-based outlets, all relevant information needed by disaster loan applicants, including—
    • (A) the date of such declaration;
    • (B) cities and towns within the area of such declaration;
    • (C) loan application deadlines related to such disaster;
    • (D) all relevant contact information for victim services available through the Administration (including links to small business development center websites);
    • (E) links to relevant Federal and State disaster assistance websites, including links to websites providing information regarding assistance available from the Federal Emergency Management Agency;
    • (F) information on eligibility criteria for Administration loan programs, including where such applications can be found; and
    • (G) application materials that clearly state the function of the Administration as the Federal source of disaster loans for homeowners and renters.
  • (6)
    • (A) The Administrator may enter into an agreement with a qualified private contractor, as determined by the Administrator, to process loans under this subsection in the event of a major disaster (including any major disaster relating to which the Administrator declares eligibility for additional disaster assistance under paragraph (9)), under which the Administrator shall pay the contractor a fee for each loan processed.
    • (B) The Administrator may enter into an agreement with a qualified lender or loss verification professional, as determined by the Administrator, to verify losses for loans under this subsection in the event of a major disaster (including any major disaster relating to which the Administrator declares eligibility for additional disaster assistance under paragraph (9)), under which the Administrator shall pay the lender or verification professional a fee for each loan for which such lender or verification professional verifies losses.
  • (7)
    • (A) In carrying out this section, the Administrator may, where practicable, ensure that the number of full-time equivalent employees—
      • (i) in the Office of the Disaster Assistance is not fewer than 800; and
      • (ii) in the Disaster Cadre of the Administration is not fewer than 1,000.
    • (B) In carrying out this subsection, if the number of full-time employees for either the Office of Disaster Assistance or the Disaster Cadre of the Administration is below the level described in subparagraph (A) for that office, not later than 21 days after the date on which that staffing level decreased below the level described in subparagraph (A), the Administrator shall submit to the Committee on Appropriations and the Committee on Small Business and Entrepreneurship of the Senate and the Committee on Appropriations and Committee on Small Business of the House of Representatives, a report—
      • (i) detailing staffing levels on that date;
      • (ii) requesting, if practicable and determined appropriate by the Administrator, additional funds for additional employees; and
      • (iii) containing such additional information, as determined appropriate by the Administrator.
  • (8)
    • (A) Except as provided in subparagraph (B), and notwithstanding any other provision of law, the aggregate loan amount outstanding and committed to a borrower under this subsection may not exceed $2,000,000.
    • (B) The Administrator may, at the discretion of the Administrator, increase the aggregate loan amount under subparagraph (A) for loans relating to a disaster to a level established by the Administrator, based on appropriate economic indicators for the region in which that disaster occurred.
  • (9)
    • (A) If the President declares a major disaster, the Administrator may declare eligibility for additional disaster assistance in accordance with this paragraph.
    • (B) A major disaster for which the Administrator declares eligibility for additional disaster assistance under this paragraph shall—
      • (i) have resulted in extraordinary levels of casualties or damage or disruption severely affecting the population (including mass evacuations), infrastructure, environment, economy, national morale, or government functions in an area;
      • (ii) be comparable to the description of a catastrophic incident in the National Response Plan of the Administration, or any successor thereto, unless there is no successor to such plan, in which case this clause shall have no force or effect; and
      • (iii) be of such size and scope that—
        • (I) the disaster assistance programs under the other paragraphs under this subsection are incapable of providing adequate and timely assistance to individuals or business concerns located within the disaster area; or
        • (II) a significant number of business concerns outside the disaster area have suffered disaster-related substantial economic injury as a result of the incident.
    • (C)
      • (i) If the Administrator declares eligibility for additional disaster assistance under this paragraph, the Administrator may make such loans under this subparagraph (either directly or in cooperation with banks or other lending institutions through agreements to participate on an immediate or deferred basis) as the Administrator determines appropriate to eligible small business concerns located anywhere in the United States.
      • (ii)
        • (I) If the Administrator determines that the average processing time for applications for disaster loans under this subparagraph relating to a specific major disaster is more than 15 days, the Administrator shall give priority to the processing of such applications submitted by eligible small business concerns located inside the disaster area, until the Administrator determines that the average processing time for such applications is not more than 15 days.
        • (II) If the Administrator determines that the average processing time for applications for disaster loans under this subparagraph relating to a specific major disaster is more than 30 days, the Administrator shall suspend the processing of such applications submitted by eligible small business concerns located outside the disaster area, until the Administrator determines that the average processing time for such applications is not more than 15 days.
      • (iii) A loan under this subparagraph shall be made on the same terms as a loan under paragraph (2).
    • (D) In this paragraph—
      • (i) the term “disaster area” means the area for which the applicable major disaster was declared;
      • (ii) the term “disaster-related substantial economic injury” means economic harm to a business concern that results in the inability of the business concern to—
        • (I) meet its obligations as it matures;
        • (II) meet its ordinary and necessary operating expenses; or
        • (III) market, produce, or provide a product or service ordinarily marketed, produced, or provided by the business concern because the business concern relies on materials from the disaster area or sells or markets in the disaster area; and
      • (iii) the term “eligible small business concern” means a small business concern—
        • (I) that has suffered disaster-related substantial economic injury as a result of the applicable major disaster; and
        • (II)
  • (10) The Administrator shall provide a clear and concise notification on all application materials for loans made under this subsection and on relevant websites notifying an applicant that the applicant may submit all documentation necessary for the approval of the loan at the time of application and that failure to submit all documentation could delay the approval and disbursement of the loan.
  • (11) The Administrator shall establish and implement clear, written policies and procedures for analyzing the ability of a loan applicant to repay a loan made under this subsection.
  • (12)
    • (A) The Administration may provide financial assistance to a small business development center, a women’s business center described in section 656 of this title , the Service Corps of Retired Executives, or any proposed consortium of such individuals or entities to spur disaster recovery and growth of small business concerns located in an area for which the President has declared a major disaster.
    • (B) Financial assistance provided under this paragraph shall be in the form of a grant, contract, or cooperative agreement.
    • (C) Matching funds shall not be required for any grant, contract, or cooperative agreement under this paragraph.
    • (D) A recipient of financial assistance under this paragraph shall provide counseling, training, and other related services, such as promoting long-term resiliency, to small business concerns and entrepreneurs impacted by a major disaster.
    • (E)
      • (i) The Administrator, in cooperation with the recipients of financial assistance under this paragraph, shall establish metrics and goals for performance of grants, contracts, and cooperative agreements under this paragraph, which shall include recovery of sales, recovery of employment, reestablishment of business premises, and establishment of new small business concerns.
      • (ii) The Administrator shall base the goals and metrics for performance established under clause (i), in part, on the estimates of disaster impact prepared by the Office of Disaster Assistance for purposes of estimating loan-making requirements.
    • (F)
      • (i) The term of any grant, contract, or cooperative agreement under this paragraph shall be for not more than 2 years.
      • (ii) The Administrator may make 1 extension of a grant, contract, or cooperative agreement under this paragraph for a period of not more than 1 year, upon a showing of good cause and need for the extension.
    • (G) Financial assistance provided under this paragraph is in addition to, and wholly separate from, any other form of assistance provided by the Administrator under this chapter.
    • (H) The Administration shall award financial assistance under this paragraph on a competitive basis.
  • (13)
    • (A) If a contractor or other person engages in malfeasance in connection with repairs to, rehabilitation of, or replacement of real or personal property relating to which a loan was made under this subsection and the malfeasance results in substantial economic damage to the recipient of the loan or substantial risks to health or safety, upon receiving documentation of the substantial economic damage or the substantial risk to health and safety from an independent loss verifier, and subject to subparagraph (B), the Administrator may increase the amount of the loan under this subsection, as necessary for the cost of repairs, rehabilitation, or replacement needed to address the cause of the economic damage or health or safety risk.
    • (B) The Administrator may only increase the amount of a loan under subparagraph (A) upon receiving an appropriate certification from the borrower and person performing the mitigation attesting to the reasonableness of the mitigation costs and an assignment of any proceeds received from the person engaging in the malfeasance. The assignment of proceeds recovered from the person engaging in the malfeasance shall be equal to the amount of the loan under this section. Any mitigation activities shall be subject to audit and independent verification of completeness and cost reasonableness.
  • (14)
    • (A) The Administrator, acting through the district offices of the Administration, shall identify locations that may be used as recovery centers by the Administration in the event of a disaster declared under this subsection or a major disaster.
    • (B) Each district office of the Administration shall—
      • (i) identify a location described in subparagraph (A) in each county, parish, or similar unit of general local government in the area served by the district office; and
      • (ii) ensure that the locations identified under subparagraph (A) may be used as a recovery center without cost to the Government, to the extent practicable.
  • (15) The Administrator shall increase oversight of entities receiving loans under paragraph (2), and may consider—
    • (A) scheduled site visits to ensure borrower eligibility and compliance with requirements established by the Administrator; and
    • (B) reviews of the use of the loan proceeds by an entity described in paragraph (2) to ensure compliance with requirements established by the Administrator.
    • (A) may make any loan for repair, rehabilitation, or replacement of property damaged or destroyed without regard to whether the required financial assistance is otherwise available from private sources;
    • (B) may, in the case of the total destruction or substantial property damage of a home or business concern, refinance any mortgage or other liens outstanding against the destroyed or damaged property if such property is to be repaired, rehabilitated, or replaced, except that (1) in the case of a business concern, the amount refinanced shall not exceed the amount of the physical loss sustained, and (2) in the case of a home, the amount of each monthly payment of principal and interest on the loan after refinancing under this clause shall not be less than the amount of each such payment made prior to such refinancing;
    • (C) may, in the case of a loan made under clause (A) or a mortgage or other lien refinanced under clause (B) in connection with the destruction of, or substantial damage to, property owned and used as a residence by an individual who by reason of retirement, disability, or other similar circumstances relies for support on survivor, disability, or retirement benefits under a pension, insurance, or other programs, consent to the suspension of the payments of the principal of that loan, mortgage, or lien during the lifetime of that individual and his spouse for so long as the Administration determines that making such payments would constitute a substantial hardship;
    • (D) shall notwithstanding the provisions of any other law and upon presentation by the applicant of proof of loss or damage or injury and a bona fide estimate of cost of repair, rehabilitation, or replacement, cancel the principal of any loan made to cover a loss or damage or injury resulting from such disaster, except that—
      • (i) with respect to a loan made in connection with a disaster occurring on or after January 1, 1971 but prior to January 1, 1972 , the total amount so canceled shall not exceed $2,500, and the interest on the balance of the loan shall be at a rate of 3 per centum per annum; and
      • (ii) with respect to a loan made in connection with a disaster occurring on or after January 1, 1972 but prior to July 1, 1973 , the total amount so canceled shall not exceed $5,000 and the interest on the balance of the loan shall be at a rate of 1 percentum per annum.
    • (E) 10 10 See 1980 Amendment note below. A State grant made on or prior to July 1, 1979 , shall not be considered compensation for the purpose of applying the provisions of section 312(a) of the Disaster Relief and Emergency Assistance Act [ 42 U.S.C. 5155(a) ] to a disaster loan under paragraph (1) (2) 11 11 So in original. Probably should be “or (2)”. of this subsection.
      • (i) make such change in the interest rate on the balance of such loan as is required under that clause effective as of August 16, 1972 ; and
      • (ii) in applying the limitation set forth in that clause with respect to the total amount of such loan which may be canceled, consider as part of the amount so canceled any part of such loan which was previously canceled pursuant to section 231 of the Disaster Relief Act of 1970 [ 15 U.S.C. 636a ].
• (c)
  • (1) In this subsection—
    • (A) the term “disaster area” means any area for which the President declared a major disaster relating to which the Administrator declares eligibility for additional disaster assistance under subsection (b)(9), during the period of that major disaster declaration;
    • (B) the term “eligible individual” means an individual who is eligible for disaster assistance under subsection (b)(1) relating to a major disaster relating to which the Administrator declares eligibility for additional disaster assistance under subsection (b)(9);
    • (C) the term “eligible small business concern” means a business concern that is—
      • (i) a small business concern, as defined under this chapter; or
      • (ii) a small business concern, as defined in section 103 of the Small Business Investment Act of 1958 [ 15 U.S.C. 662 ];
    • (D) the term “preferred lender” means a lender participating in the Preferred Lender Program;
    • (E) the term “Preferred Lender Program” has the meaning given that term in subsection (a)(2)(C)(ii); and
    • (F) the term “qualified private lender” means any privately-owned bank or other lending institution that—
      • (i) is not a preferred lender; and
      • (ii) the Administrator determines meets the criteria established under paragraph (10).
  • (2) The Administrator shall carry out a program, to be known as the Private Disaster Assistance program, under which the Administration may guarantee timely payment of principal and interest, as scheduled, on any loan made to an eligible small business concern located in a disaster area and to an eligible individual.
  • (3) A loan guaranteed by the Administrator under this subsection may be used for any purpose authorized under subsection (b).
  • (4)
    • (A) The Administrator may establish, directly or through an agreement with another entity, an online application process for loans guaranteed under this subsection.
    • (B) The Administrator may coordinate with the head of any other appropriate Federal agency so that any application submitted through an online application process established under this paragraph may be considered for any other Federal assistance program for disaster relief.
    • (C) In establishing an online application process under this paragraph, the Administrator shall consult with appropriate persons from the public and private sectors, including private lenders.
  • (5)
    • (A) The Administrator may guarantee not more than 85 percent of a loan under this subsection.
    • (B) The maximum amount of a loan guaranteed under this subsection shall be $2,000,000.
  • (6) A loan guaranteed under this subsection shall be made under the same terms and conditions as a loan under subsection (b).
  • (7)
    • (A) A loan guaranteed under this subsection made to—
      • (i) a qualified individual may be made by a preferred lender; and
      • (ii) a qualified small business concern may be made by a qualified private lender or by a preferred lender that also makes loans to qualified individuals.
    • (B) If the Administrator determines that a preferred lender knowingly failed to comply with the underwriting standards for loans guaranteed under this subsection or violated the terms of the standard operating procedure agreement between that preferred lender and the Administration, the Administrator shall do 1 or more of the following:
      • (i) Exclude the preferred lender from participating in the program under this subsection.
      • (ii) Exclude the preferred lender from participating in the Preferred Lender Program for a period of not more than 5 years.
  • (8)
    • (A) The Administrator may not collect a guarantee fee under this subsection.
    • (B) The Administrator may pay a qualified private lender or preferred lender an origination fee for a loan guaranteed under this subsection in an amount agreed upon in advance between the qualified private lender or preferred lender and the Administrator.
  • (9) A qualified private lender or preferred lender may use its own loan documentation for a loan guaranteed by the Administrator under this subsection, to the extent authorized by the Administrator. The ability of a lender to use its own loan documentation for a loan guaranteed under this subsection shall not be considered part of the criteria for becoming a qualified private lender under the regulations promulgated under paragraph (10).
  • (10)
    • (A) Not later than 1 year after the date of enactment of the Small Business Disaster Response and Loan Improvements Act of 2008, the Administrator shall issue final regulations establishing permanent criteria for qualified private lenders.
    • (B) Not later than 6 months after the date of enactment of the Small Business Disaster Response and Loan Improvements Act of 2008, the Administrator shall submit a report on the progress of the regulations required by subparagraph (A) to the Committee on Small Business and Entrepreneurship of the Senate and the Committee on Small Business of the House of Representatives.
  • (11)
    • (A) Amounts necessary to carry out this subsection shall be made available from amounts appropriated to the Administration to carry out subsection (b).
    • (B) Funds appropriated to the Administration to carry out this subsection, 7 may be used by the Administrator to meet the loan terms and conditions specified in paragraph (6).
  • (12) The Administrator may enter into an agreement with a qualified private lender or preferred lender to purchase any loan guaranteed under this subsection.
• (d)
  • (1) The Administration may further extend the maturity of or renew any loan made pursuant to this section, or any loan transferred to the Administration pursuant to Reorganization Plan Numbered 2 of 1954, or Reorganization Plan Numbered 1 of 1957, for additional periods not to exceed ten years beyond the period stated therein, if such extension or renewal will aid in the orderly liquidation of such loan.
  • (2) During any period in which principal and interest charges are suspended on the Federal share of any loan, as provided in subsection (b), the Administrator shall, upon the request of any person, firm, or corporation having a participation in such loan, purchase such participation, or assume the obligation of the borrower, for the balance of such period, to make principal and interest payments on the non-Federal share of such loan: Provided , That no such payments shall be made by the Administrator in behalf of any borrower unless (i) the Administrator determines that such action is necessary in order to avoid a default, and (ii) the borrower agrees to make payments to the Administration in an aggregate amount equal to the amount paid in its behalf by the Administrator, in such manner and at such times (during or after the term of the loan) as the Administrator shall determine having due regard to the purposes sought to be achieved by this paragraph.
  • (3) With respect to a disaster occurring on or after October 1, 1978 , and prior 12 12 So in original. Probably should be “prior to”. August 13, 1981 , on the Administration’s share of loans made pursuant to paragraph (1) of subsection (b)—
    • (A) if the loan proceeds are to repair or replace a primary residence and/or repair or replace damaged or destroyed personal property, the interest rate shall be 3 percent on the first $55,000 of such loan;
    • (B) if the loan proceeds are to repair or replace property damaged or destroyed and if the applicant is a business concern which is unable to obtain sufficient credit elsewhere, the interest rate shall be as determined by the Administration, but not in excess of 5 percent per annum; and
    • (C) if the loan proceeds are to repair or replace property damaged or destroyed and if the applicant is a business concern which is able to obtain sufficient credit elsewhere, the interest rate shall not exceed the current average market yield on outstanding marketable obligations of the United States with remaining periods to maturity comparable to the average maturities of such loans and adjusted to the nearest one-eighth of 1 percent, and an additional amount as determined by the Administration, but not to exceed 1 percent: Provided , That three years after such loan is fully disbursed and every two years thereafter for the term of the loan, if the Administration determines that the borrower is able to obtain a loan from non-Federal sources at reasonable rates and terms for loans of similar purposes and periods of time, the borrower shall, upon request by the Administration, apply for and accept such a loan in sufficient amount to repay the Administration: Provided further , That no loan under subsection (b)(1) shall be made, either directly or in cooperation with banks or other lending institutions through agreements to participate on an immediate or deferred basis, if the total amount outstanding and committed to the borrower under such subsection would exceed $500,000 for each disaster, unless an applicant constitutes a major source of employment in an area suffering a disaster, in which case the Administration, in its discretion, may waive the $500,000 limitation.
  • (4) Notwithstanding the provisions of any other law, the interest rate on the Federal share of any loan made under subsection (b) shall be—
    • (A) in the case of a homeowner unable to secure credit elsewhere, the rate prescribed by the Administration but not more than one-half the rate determined by the Secretary of the Treasury taking into consideration the current average market yield on outstanding marketable obligations of the United States with remaining periods to maturity comparable to the average maturities of such loans plus an additional charge of not to exceed 1 per centum per annum as determined by the Administrator, and adjusted to the nearest one-eighth of 1 per centum but not to exceed 8 per centum per annum;
    • (B) in the case of a homeowner able to secure credit elsewhere, the rate prescribed by the Administration but not more than the rate determined by the Secretary of the Treasury taking into consideration the current average market yield on outstanding marketable obligations of the United States with remaining periods to maturity comparable to the average maturities of such loans plus an additional charge of not to exceed 1 per centum per annum as determined by the Administrator, and adjusted to the nearest one-eighth of 1 per centum;
    • (C) in the case of a business concern unable to obtain credit elsewhere, not to exceed 8 per centum per annum;
    • (D) in the case of a business concern able to obtain credit elsewhere, the rate prescribed by the Administration but not in excess of the rate prevailing in private market for similar loans and not more than the rate prescribed by the Administration as the maximum interest rate for deferred participation (guaranteed) loans under subsection (a). Loans under this subparagraph shall be limited to a maximum term of three years.
  • (5) Notwithstanding the provisions of any other law, the interest rate on the Federal share of any loan made under subsection (b)(1) and (b)(2) on account of a disaster commencing on or after October 1, 1982 , shall be—
    • (A) in the case of a homeowner unable to secure credit elsewhere, the rate prescribed by the Administration but not more than one-half the rate determined by the Secretary of the Treasury taking into consideration the current average market yield on outstanding marketable obligations of the United States with remaining periods to maturity comparable to the average maturities of such loan plus an additional charge of not to exceed 1 per centum per annum as determined by the Administrator, and adjusted to the nearest one-eighth of 1 per centum, but not to exceed 4 per centum per annum;
    • (B) in the case of a homeowner able to secure credit elsewhere, the rate prescribed by the Administration but not more than the rate determined by the Secretary of the Treasury taking into consideration the current average market yield on outstanding marketable obligations of the United States with remaining periods to maturity comparable to the average maturities of such loans plus an additional charge of not to exceed 1 per centum per annum as determined by the Administrator, and adjusted to the nearest one-eighth of 1 per centum, but not to exceed 8 per centum per annum;
    • (C) in the case of a business, private nonprofit organization, or other concern, including agricultural cooperatives, unable to obtain credit elsewhere, not to exceed 4 per centum per annum;
    • (D) in the case of a business concern able to obtain credit elsewhere, the rate prescribed by the Administration but not in excess of the lowest of (i) the rate prevailing in the private market for similar loans, (ii) the rate prescribed by the Administration as the maximum interest rate for deferred participation (guaranteed) loans under subsection (a), or (iii) 8 per centum per annum. Loans under this subparagraph shall be limited to a maximum term of 7 years.
  • (6) Notwithstanding the provisions of any other law, such loans, subject to the reductions required by subparagraphs (A) and (B) of subsection (b)(1), shall be in amounts equal to 100 per centum of loss. The interest rates for loans made under subsection (b)(1) and (2), as determined pursuant to paragraph (5), shall be the rate of interest which is in effect on the date of the disaster commenced: Provided , That no loan under subsection (b)(1) and (2) shall be made, either directly or in cooperation with banks or other lending institutions through agreements to participate on an immediate or deferred (guaranteed) basis, if the total amount outstanding and committed to the borrower under subsection (b) would exceed $500,000 for each disaster unless an applicant constitutes a major source of employment in an area suffering a disaster, in which case the Administration, in its discretion, may waive the $500,000 limitation: Provided further , That the Administration, subject to the reductions required by subparagraphs (A) and (B) of subsection (b)(1), shall not reduce the amount of eligibility for any homeowner on account of loss of real estate to less than $100,000 for each disaster nor for any homeowner or lessee on account of loss of personal property to less than $20,000 for each disaster, such sums being in addition to any eligible refinancing: Provided further , That the Administration shall not require collateral for loans of $25,000 or less (or such higher amount as the Administrator determines appropriate in the event of a disaster) which are made under paragraph (1) of subsection (b): Provided further , That the Administrator, in obtaining the best available collateral for a loan of not more than $200,000 under paragraph (1) or (2) of subsection (b) relating to damage to or destruction of the property of, or economic injury to, a small business concern, shall not require the owner of the small business concern to use the primary residence of the owner as collateral if the Administrator determines that the owner has other assets of equal quality and with a value equal to or greater than the amount of the loan that could be used as collateral for the loan: Provided further , That nothing in the preceding proviso may be construed to reduce the amount of collateral required by the Administrator in connection with a loan described in the preceding proviso or to modify the standards used to evaluate the quality (rather than the type) of such collateral. Employees of concerns sharing a common business premises shall be aggregated in determining “major source of employment” status for nonprofit applicants owning such premises.
  • (7) The Administration shall not withhold disaster assistance pursuant to this paragraph to nurseries who are victims of drought disasters. As used in subsection (b)(2) the term “an area affected by a disaster” includes any county, or county contiguous thereto, determined to be a disaster by the President, the Secretary of Agriculture or the Administrator of the Small Business Administration.
  • (8)
    • (A) Notwithstanding any other provision of law, and subject to the same requirements and procedures that are used to make loans pursuant to subsection (b), a small business concern, homeowner, nonprofit entity, or renter that was located within an area and during the time period with respect to which a major disaster was declared by the President under section 401 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act ( 42 U.S.C. 5170 ) by reason of Superstorm Sandy may apply to the Administrator—
      • (i) for a loan to repair, rehabilitate, or replace property damaged or destroyed by reason of Superstorm Sandy; or
      • (ii) if such a small business concern has suffered substantial economic injury by reason of Superstorm Sandy, for a loan to assist such a small business concern.
    • (B) The Administrator shall select loan recipients and make available loans for a period of not less than 1 year after the date on which the Administrator carries out this authority.
    • (C) Not later than 6 months after the date on which the Administrator begins carrying out this authority, the Inspector General of the Administration shall initiate a review of the controls for ensuring applicant eligibility for loans made under this paragraph.
• (e) The Administration shall not fund any Small Business Development Center or any variation thereof, except as authorized in section 648 of this title .
• (f)
  • (1)
    • (A) In making loans under subsection (b), the Administrator may provide, to the person receiving the loan, an option to defer repayment on the loan.
    • (B) The period of a deferment under subparagraph (A) may not exceed 4 years.
• (g) In making loans under subsection (b), the Administrator shall not require the borrower to pay any non-amortized amount for the first five years after repayment begins.
• (h)
  • (1) The Administration also is empowered, where other financial assistance is not available on reasonable terms, to make such loans (either directly or in cooperation with Banks or other lending institutions through agreements to participate on an immediate or deferred basis) as the Administration may determine to be necessary or appropriate—
    • (A) to assist any public or private organization—
      • (i) which is organized under the laws of the United States or of any State, operated in the interest of handicapped individuals, the net income of which does not inure in whole or in part to the benefit of any shareholder or other individual;
      • (ii) which complies with any applicable occupational health and safety standard prescribed by the Secretary of Labor; and
      • (iii) which, in the production of commodities and in the provision of services during any fiscal year in which it receives financial assistance under this subsection, employs handicapped individuals for not less than 75 per centum of the man-hours required for the production or provision of the commodities or services; or
    • (B) to assist any handicapped individual in establishing, acquiring, or operating a small business concern.
  • (2) The Administration’s share of any loan made under this subsection shall not exceed $350,000, nor may any such loan be made if the total amount outstanding and committed (by participation or otherwise) to the borrower from the business loan and investment fund established by section 633(c)(1)(B) of this title would exceed $350,000. In agreements to participate in loans on a deferred basis under this subsection, the Administration’s participation may total 100 per centum of the balance of the loan at the time of disbursement. The Administration’s share of any loan made under this subsection shall bear interest at the rate of 3 per centum per annum. The maximum term of any such loan, including extensions and renewals thereof, may not exceed fifteen years. All loans made under this subsection shall be of such sound value or so secured as reasonably to assure repayment: Provided, however , That any reasonable doubt shall be resolved in favor of the applicant.
  • (3) For purposes of this subsection, the term “handicapped individual” means a person who has a physical, mental, or emotional impairment, defect, ailment, disease, or disability of a permanent nature which in any way limits the selection of any type of employment for which the person would otherwise be qualified or qual­ifiable.
• (i)
  • (1) The Administration also is empowered to make, participate (on an immediate basis) in, or guarantee loans, repayable in not more than fifteen years, to any small business concern, or to any qualified person seeking to establish such a concern, when it determines that such loans will further the policies established in section 631(b) 2 of this title, with particular emphasis on the preservation or establishment of small business concerns located in urban or rural areas with high proportions of unemployed or low-income individuals, or owned by low-income individuals: Provided, however , That no such loans shall be made, participated in, or guaranteed if the total of such Federal assistance to a single borrower outstanding at any one time would exceed $100,000. The Administration may defer payments on the principal of such loans for a grace period and use such other methods as it deems necessary and appropriate to assure the successful establishment and operation of such concern. The Administration may, in its discretion, as a condition of such financial assistance, require that the borrower take steps to improve his management skills by participating in a management training program approved by the Administration: Provided, however , That any management training program so approved must be of sufficient scope and duration to provide reasonable opportunity for the individuals served to develop entrepreneurial and managerial self-sufficiency.
  • (2) The Administration shall encourage, as far as possible, the participation of the private business community in the program of assistance to such concerns, and shall seek to stimulate new private lending activities to such concerns through the use of the loan guarantees, participations in loans, and pooling arrangements authorized by this subsection.
  • (3) To insure an equitable distribution between urban and rural areas for loans between $3,500 and $100,000 made under this subsection, the Administration is authorized to use the agencies and agreements and delegations developed under title III of the Economic Opportunity Act of 1964, as amended [ 42 U.S.C. 2841 et seq.], as it shall determine necessary.
  • (4) The Administration shall provide for the continuing evaluation of programs under this subsection, including full information on the location, income characteristics, and types of businesses and individuals assisted, and on new private lending activity stimulated, and the results of such evaluation together with recommendations shall be included in the report required by section 639(a) of this title .
  • (5) Loans made pursuant to this subsection (including immediate participation in and guarantees of such loans) shall have such terms and conditions as the Administration shall determine, subject to the following limitations—
    • (A) there is reasonable assurance of repayment of the loan;
    • (B) the financial assistance is not otherwise available on reasonable terms from private sources or other Federal, State, or local programs;
    • (C) the amount of the loan, together with other funds available, is adequate to assure completion of the project or achievement of the purposes for which the loan is made;
    • (D) the loan bears interest at a rate not less than (i) a rate determined by the Secretary of the Treasury, taking into consideration the average market yield on outstanding Treasury obligations of comparable maturity, plus (ii) such additional charge, if any, toward covering other costs of the program as the Administration may determine to be consistent with its purposes: Provided, however , That the rate of interest charged on loans made in redevelopment areas designated under the Public Works and Economic Development Act of 1965 [ 42 U.S.C. 3121 et seq.] shall not exceed the rate currently applicable to new loans made under section 201 of that Act [ 42 U.S.C. 3141 ]; and
    • (E) fees not in excess of amounts necessary to cover administrative expenses and probable losses may be required on loan guarantees.
  • (6) The Administration shall take such steps as may be necessary to insure that, in any fiscal year, at least 50 per centum of the amounts loaned or guaranteed pursuant to this subsection are allotted to small business concerns located in urban areas identified by the Administration as having high concentrations of unemployed or low-income individuals or to small business concerns owned by low-income individuals. The Administration shall define the meaning of low income as it applies to owners of small business concerns eligible to be assisted under this subsection.
  • (7) No financial assistance shall be extended pursuant to this subsection where the Administration determines that the assistance will be used in relocating establishments from one area to another if such relocation would result in an increase in unemployment in the area of original location.
• (j)
  • (1) The Administration shall provide financial assistance to public or private organizations to pay all or part of the cost of projects designed to provide technical or management assistance to individuals or enterprises eligible for assistance under subsection (i), paragraph (10) of this subsection; and section 637(a) of this title , with special attention to small businesses located in areas of high concentration of unemployed or low-income individuals, to small businesses eligible to receive contracts pursuant to section 637(a) of this title .
  • (2) Financial assistance under this subsection may be provided for projects, including, but not limited to—
    • (A) planning and research, including feasibility studies and market research;
    • (B) the identification and development of new business opportunities;
    • (C) the furnishing of centralized services with regard to public services and Federal Government programs including programs authorized under subsection (i); paragraph (10) of this subsection, and section 637(a) of this title ;
    • (D) the establishment and strengthening of business service agencies, including trade associations and cooperatives; and
    • (E) the furnishing of business counseling, management training, and legal and other related services, with special emphasis on the development of management training programs using the resources of the business community, including the development of management training opportunities in existing business, and with emphasis in all cases upon providing management training of sufficient scope and duration to develop entrepreneurial and managerial self-sufficiency on the part of the individuals served.
  • (3) The Administration shall encourage the placement of subcontracts by businesses with small business concerns located in areas of high concentration of unemployed or low-income individuals, with small businesses owned by low-income individuals, and with small businesses eligible to receive contracts pursuant to section 637(a) of this title . The Administration may provide incentives and assistance to such businesses that will aid in the training and upgrading of potential subcontractors or other small business concerns eligible for assistance under subsections (i) and (j), and section 637(a) of this title .
  • (4) The Administration shall give preference to projects which promote the ownership, participation in ownership, or management of small businesses owned by low-income individuals and small businesses eligible to receive contracts pursuant to section 637(a) of this title .
  • (5) The financial assistance authorized for projects under this subsection includes assistance advanced by grant, agreement, or contract.
  • (6) The Administration is authorized to make payments under grants and contracts entered into under this subsection in lump sum or installments, and in advance or by way of reimbursement, and in the case of grants, with necessary adjustments on account of overpayments or underpayments.
  • (7) To the extent feasible, services under this subsection shall be provided in a location which is easily accessible to the individuals and small business concerns served.
  • (8) Repealed. Pub. L. 101–574, title II, § 242(2) , Nov. 15, 1990 , 104 Stat. 2827 .
  • (9) The Administration shall take such steps as may be necessary and appropriate, in coordination and cooperation with the heads of other Federal departments and agencies, to insure that contracts, subcontracts, and deposits made by the Federal Government or with programs aided with Federal funds are placed in such way as to further the purposes of subsections (i) and (j) and section 637(a) of this title .
  • (10) There is established within the Administration a small business and capital ownership development program (hereinafter referred to as the “Program”) which shall provide assistance exclusively for small business concerns eligible to receive contracts pursuant to section 637(a) of this title . The program, and all other services and activities authorized under this subsection and section 637(a) of this title , shall be managed by the Associate Administrator for Minority Small Business and Capital Ownership Development under the supervision of, and responsible to, the Administrator.
    • (A) The Program shall—
      • (i) assist small business concerns participating in the Program (either through public or private organizations) to develop and maintain comprehensive business plans which set forth the Program Participant’s specific business targets, objectives, and goals developed and maintained in conformity with subparagraph (D). 14 14 So in original. The period probably should be a semicolon.
      • (ii) provide for such other nonfinancial services as deemed necessary for the establishment, preservation, and growth of small business concerns participating in the Program, including but not limited to (I) loan packaging, (II) financial counseling, (III) accounting and bookkeeping assistance, (IV) marketing assistance, and (V) management assistance;
      • (iii) assist small business concerns participating in the Program to obtain equity and debt financing;
      • (iv) establish regular performance monitoring and reporting systems for small business concerns participating in the Program to assure compliance with their business plans;
      • (v) analyze and report the causes of success and failure of small business concerns participating in the Program; and
      • (vi) provide assistance necessary to help small business concerns participating in the Program to procure surety bonds, with such assistance including, but not limited to, (I) the preparation of application forms required to receive a surety bond, (II) special management and technical assistance designed to meet the specific needs of small business concerns participating in the Program and which have received or are applying to receive a surety bond, and (III) preparation of all forms necessary to receive a surety bond guarantee from the Administration pursuant to title IV, part B of the Small Business Investment Act of 1958 [ 15 U.S.C. 694a et seq.].
    • (B) Small business concerns eligible to receive contracts pursuant to section 637(a) of this title shall participate in the Program.
    • (C)
      • (i) A small business concern participating in any program or activity conducted under the authority of this paragraph or eligible for the award of contracts pursuant to section 637(a) of this title on September 1, 1988 , shall be permitted continued participation and eligibility in such program or activity for a period of time which is the greater of—
        • (I) 9 years less the number of years since the award of its first contract pursuant to section 637(a) of this title ; or
        • (II) its original fixed program participation term (plus any extension thereof) assigned prior to November 15, 1988 , plus eighteen months.
      • (ii) Nothing contained in this subparagraph shall be deemed to prevent the Administration from instituting a termination or graduation pursuant to subparagraph (F) or (H) for issues unrelated to the expiration of any time period limitation.
    • (D)
      • (i) Promptly after certification under paragraph (11) a Program Participant shall submit a business plan (hereinafter referred to as the “plan”) as described in clause (ii) of this subparagraph for review by the Business Opportunity Specialist assigned to assist such Program Participant. The plan may be a revision of a preliminary business plan submitted by the Program Participant or required by the Administration as a part of the application for certification under this section and shall be designed to result in the Program Participant eliminating the conditions or circumstances upon which the Administration determined eligibility pursuant to section 637(a)(6) of this title . Such plan, and subsequent modifications submitted under clause (iii) of this subparagraph, shall be approved by the business opportunity specialist prior to the Program Participant being eligible for award of a contract pursuant to section 637(a) of this title .
      • (ii) The plans submitted under this subparagraph shall include the following:
        • (I) An analysis of market potential, competitive environment, and other business analyses estimating the Program Participant’s prospects for profitable operations during the term of program participation and after graduation.
        • (II) An analysis of the Program Participant’s strengths and weaknesses with particular attention to correcting any financial, managerial, technical, or personnel conditions which are likely to impede the small business concern from receiving contracts other than those awarded under section 637(a) of this title .
        • (III) Specific targets, objectives, and goals, for the business development of the Program Participant during the next and succeeding years utilizing the results of the analyses conducted pursuant to subclauses (I) and (II).
        • (IV) A transition management plan outlining specific steps to assure profitable business operations after graduation (to be incorporated into the Program Participant’s plan during the first year of the transitional stage of Program participation).
        • (V) Estimates of contract awards pursuant to section 637(a) of this title and from other sources, which the Program Participant will require to meet the specific targets, objectives, and goals for the years covered by its plan. The estimates established shall be consistent with the provisions of subparagraph (I) and section 637(a) of this title .
      • (iii) Each Program Participant shall annually review its currently approved plan with its Business Opportunity Specialist and modify such plan as may be appropriate. Any modified plan shall be submitted to the Administration for approval. The currently approved plan shall be considered valid until such time as a modified plan is approved by the Business Opportunity Specialist. Annual reviews pertaining to years in the transitional stage of program participation shall require, as appropriate, a written verification that such Program Participant has complied with the requirements of subparagraph (I) relating to attaining business activity from sources other than contracts awarded pursuant to section 637(a) of this title .
      • (iv) Each Program Participant shall annually forecast its needs for contract awards under section 637(a) of this title for the next program year and the succeeding program year during the review of its business plan, conducted pursuant to clause (iii). Such forecast shall be known as the section 8(a) [ 15 U.S.C. 637(a) ] contract support level and shall be included in the Program Participant’s business plan. Such forecast shall include—
        • (I) the aggregate dollar value of contract support to be sought on a noncompetitive basis under section 637(a) of this title , reflecting compliance with the requirements of subparagraph (I) relating to attaining business activity from sources other than contracts awarded pursuant to section 637(a) of this title ,
        • (II) the types of contract opportunities being sought, identified by Standard Industrial Classification (SIC) Code or otherwise,
        • (III) an estimate of the dollar value of contract support to be sought on a competitive basis, and
        • (IV) such other information as may be requested by the Business Opportunity Specialist to provide effective business development assistance to the Program Participant.
    • (E) A small business concern participating in the program conducted under the authority of this paragraph and eligible for the award of contracts pursuant to section 637(a) of this title shall be denied all such assistance if such concern—
      • (i) voluntarily elects not to continue participation;
      • (ii) completes the period of Program participation as prescribed by paragraph (15);
      • (iii) is terminated pursuant to a termination proceeding conducted in accordance with section 637(a)(9) of this title ; or
      • (iv) is graduated pursuant to a graduation proceeding conducted in accordance with section 637(a)(9) of this title .
    • (F) For purposes of this section and section 637(a) of this title , the term “terminated” and the term “termination” means the total denial or suspension of assistance under this paragraph or under section 637(a) of this title prior to the graduation of the participating small business concern or prior to the expiration of the maximum program participation term. An action for termination shall be based upon good cause, including—
      • (i) the failure by such concern to maintain its eligibility for Program participation;
      • (ii) the failure of the concern to engage in business practices that will promote its competitiveness within a reasonable period of time as evidenced by, among other indicators, a pattern of unjustified delinquent performance or terminations for default with respect to contracts awarded under the authority of section 637(a) of this title ;
      • (iii) a demonstrated pattern of failing to make required submissions or responses to the Administration in a timely manner;
      • (iv) the willful violation of any rule or regulation of the Administration pertaining to material issues;
      • (v) the debarment of the concern or its disadvantaged owners by any agency pursuant to subpart 9.4 of title 48, Code of Federal Regulations (or any successor regulation); or
      • (vi) the conviction of the disadvantaged owner or an officer of the concern for any offense indicating a lack of business integrity including any conviction for embezzlement, theft, forgery, bribery, falsification or violation of section 645 of this title . For purposes of this clause, no termination action shall be taken with respect to a disadvantaged owner solely because of the conviction of an officer of the concern (who is other than a disadvantaged owner) unless such owner conspired with, abetted, or otherwise knowingly acquiesced in the activity or omission that was the basis of such officer’s conviction.
    • (G) The Director of the Division may initiate a termination proceeding by recommending such action to the Associate Administrator for Minority Small Business and Capital Ownership Development. Whenever the Associate Administrator, or a designee of such officer, determines such termination is appropriate, within 15 days after making such a determination the Program Participant shall be provided a written notice of intent to terminate, specifying the reasons for such action. No Program Participant shall be terminated from the Program pursuant to subparagraph (F) without first being afforded an opportunity for a hearing in accordance with section 637(a)(9) of this title .
    • (H) For the purposes of this subsection and section 637(a) of this title the term “graduated” or “graduation” means that the Program Participant is recognized as successfully completing the program by substantially achieving the targets, objectives, and goals contained in the concern’s business plan thereby demonstrating its ability to compete in the marketplace without assistance under this section or section 637(a) of this title .
    • (I)
      • (i) During the developmental stage of its participation in the Program, a Program Participant shall take all reasonable efforts within its control to attain the targets contained in its business plan for contracts awarded other than pursuant to section 637(a) of this title (hereinafter referred to as “business activity targets.”). Such efforts shall be made a part of the business plan and shall be sufficient in scope and duration to satisfy the Administration that the Program Participant will engage a reasonable marketing strategy that will maximize its potential to achieve its business activity targets.
      • (ii) During the transitional stage of the Program a Program Participant shall be subject to regulations regarding business activity targets that are promulgated by the Administration pursuant to clause (iii);
      • (iii) The regulations referred to in clause (ii) shall:
        • (I) establish business activity targets applicable to Program Participants during the fifth year and each succeeding year of Program Participation; such targets, for such period of time, shall reflect a reasonably consistent increase in contracts awarded other than pursuant to section 637(a) of this title , expressed as a percentage of total sales; when promulgating business activity targets the Administration may establish modified targets for Program Participants that have participated in the Program for a period of longer than four years on June 1, 1989 ;
        • (II) require a Program Participant to attain its business activity targets;
        • (III) provide that, before the receipt of any contract to be awarded pursuant to section 637(a) of this title , the Program Participant (if it is in the transitional stage) must certify that it has complied with the regulations promulgated pursuant to subclause (II), or that it is in compliance with such remedial measures as may have been ordered pursuant to regulations issued under subclause (V);
        • (IV) require the Administration to review each Program Participant’s performance regarding attainment of business activity targets during periodic reviews of such Participant’s business plan; and
        • (V) authorize the Administration to take appropriate remedial measures with respect to a Program Participant that has failed to attain a required business activity target for the purpose of reducing such Participant’s dependence on contracts awarded pursuant to section 637(a) of this title ; such remedial actions may include, but are not limited to assisting the Program Participant to expand the dollar volume of its competitive business activity or limiting the dollar volume of contracts awarded to the Program Participant pursuant to section 637(a) of this title ; except for actions that would constitute a termination, remedial measures taken pursuant to this subclause shall not be reviewable pursuant to section 637(a)(9) of this title .
    • (J)
      • (i) The Administration shall conduct an evaluation of a Program Participant’s eligibility for continued participation in the Program whenever it receives specific and credible information alleging that such Program Participant no longer meets the requirements for Program eligibility. Upon making a finding that a Program Participant is no longer eligible, the Administration shall initiate a termination proceeding in accordance with subparagraph (F). A Program Participant’s eligibility for award of any contract under the authority of section 637(a) of this title may be suspended pursuant to subpart 9.4 of title 48, Code of Federal Regulations (or any successor regulation).
      • (ii)
        • (I) Except as authorized by subclauses (II) or (III), no award shall be made pursuant to section 637(a) of this title to a concern other than a small business concern.
        • (II) In determining the size of a small business concern owned by a socially and economically disadvantaged Indian tribe (or a wholly owned business entity of such tribe), each firm’s size shall be independently determined without regard to its affiliation with the tribe, any entity of the tribal government, or any other business enterprise owned by the tribe, unless the Administrator determines that one or more such tribally owned business concerns have obtained, or are likely to obtain, a substantial unfair competitive advantage within an industry category.
        • (III) Any joint venture established under the authority of section 602(b) of Public Law 100–656 , the “Business Opportunity Development Reform Act of 1988”, shall be eligible for award of a contract pursuant to section 637(a) of this title .
  • (11)
    • (A) The Associate Administrator for Minority Small Business and Capital Ownership Development shall be responsible for coordinating and formulating policies relating to Federal assistance to small business concerns eligible for assistance under subsection (i) and small business concerns eligible to receive contracts pursuant to section 637(a) of this title .
    • (B)
      • (i) Except as provided in clause (iii), no individual who was determined pursuant to section 637(a) of this title to be socially and economically disadvantaged before August 15, 1989 , shall be permitted to assert such disadvantage with respect to any other concern making application for certification after August 15, 1989 .
      • (ii) Except as provided in clause (iii), any individual upon whom eligibility is based pursuant to section 637(a)(4) of this title shall be permitted to assert such eligibility for only one small business concern.
      • (iii) A socially and economically disadvantaged Indian tribe may own more than one small business concern eligible for assistance pursuant to paragraph (10) and section 637(a) of this title if—
        • (I) the Indian tribe does not own another firm in the same industry which has been determined to be eligible to receive contracts under this program, and
        • (II) the individuals responsible for the management and daily operations of the concern do not manage more than two Program Participants.
    • (C) No concern, previously eligible for the award of contracts pursuant to section 637(a) of this title , shall be subsequently recertified for program participation if its prior participation in the program was concluded for any of the reasons described in paragraph (10)(E).
    • (D) A concern eligible for the award of contracts pursuant to this subsection shall remain eligible for such contracts if there is a transfer of ownership and control (as defined pursuant to section 637(a)(4) of this title ) to individuals who are determined to be socially and economically disadvantaged pursuant to section 637(a) of this title . In the event of such a transfer, the concern, if not terminated or graduated, shall be eligible for a period of continued participation in the program not to exceed the time limitations prescribed in paragraph (15).
    • (E) There is established a Division of Program Certification and Eligibility (hereinafter referred to in this paragraph as the “Division”) that shall be made part of the Office of Minority Small Business and Capital Ownership Development. The Division shall be headed by a Director who shall report directly to the Associate Administrator for Minority Small Business and Capital Ownership Development. The Division shall establish field offices within such regional offices of the Administration as may be necessary to perform efficiently its functions and responsibilities.
    • (F) Subject to the provisions of section 637(a)(9) of this title , the functions and responsibility of the Division are to—
      • (i) receive, review and evaluate applications for certification pursuant to paragraphs (4), (5), (6) and (7) of section 637(a) of this title ;
      • (ii) advise each program applicant within 15 days after the receipt of an application as to whether such application is complete and suitable for evaluation and, if not, what matters must be rectified;
      • (iii) render recommendations on such applications to the Associate Administrator for Minority Small Business and Capital Ownership Development;
      • (iv) review and evaluate financial statements and other submissions from concerns participating in the program established by paragraph (10) to ascertain continued eligibility to receive subcontracts pursuant to section 637(a) of this title ;
      • (v) make a request for the initiation of termination or graduation proceedings, as appropriate, to the Associate Administrator for Minority Small Business and Capital Ownership Development;
      • (vi) make recommendations to the Associate Administrator for Minority Small Business and Capital Ownership Development concerning protests from applicants that have been denied program admission;
      • (vii) decide protests regarding the status of a concern as a disadvantaged concern for purposes of any program or activity conducted under the authority of subsection (d) of section 637 of this title , or any other provision of Federal law that references such subsection for a definition of program eligibility; and
      • (viii) implement such policy directives as may be issued by the Associate Administrator for Minority Small Business and Capital Ownership Development pursuant to subparagraph (I) regarding, among other things, the geographic distribution of concerns to be admitted to the program and the industrial make-up of such concerns.
    • (G) An applicant shall not be denied admission into the program established by paragraph (10) due solely to a determination by the Division that specific contract opportunities are unavailable to assist in the development of such concern unless—
      • (i) the Government has not previously procured and is unlikely to procure the types of products or services offered by the concern; or
      • (ii) the purchases of such products or services by the Federal Government will not be in quantities sufficient to support the developmental needs of the applicant and other Program Participants providing the same or similar items or services.
    • (H) Not later than 90 days after receipt of a completed application for Program certification, the Associate Administrator for Minority Small Business and Capital Ownership Development shall certify a small business concern as a Program Participant or shall deny such application.
    • (I) Thirty days before the conclusion of each fiscal year, the Director of the Division shall review all concerns that have been admitted into the Program during the preceding 12-month period. The review shall ascertain the number of entrants, their geographic distribution and industrial classification. The Director shall also estimate the expected growth of the Program during the next fiscal year and the number of additional Business Opportunity Specialists, if any, that will be needed to meet the anticipated demand for the Program. The findings and conclusions of the Director shall be reported to the Associate Administrator for Minority Small Business and Capital Ownership Development by September 30 of each year. Based on such report and such additional data as may be relevant, the Associate Administrator shall, by October 31 of each year, issue policy and program directives applicable to such fiscal year that—
      • (i) establish priorities for the solicitation of program applications from underrepresented regions and industry categories;
      • (ii) assign staffing levels and allocate other program resources as necessary to meet program needs; and
      • (iii) establish priorities in the processing and admission of new Program Participants as may be necessary to achieve an equitable geographic distribution of concerns and a distribution of concerns across all industry categories in proportions needed to increase significantly contract awards to small business concerns owned and controlled by socially and economically disadvantaged individuals. When considering such increase the Administration shall give due consideration to those industrial categories where Federal purchases have been substantial but where the participation rate of such concerns has been limited.
  • (12)
    • (A) The Administration shall segment the Capital Ownership Development Program into two stages: a developmental stage; and a transitional stage.
    • (B) The developmental stage of program participation shall be designed to assist the concern in its effort to overcome its economic disadvantage by providing such assistance as may be necessary and appropriate to access its markets and to strengthen its financial and managerial skills.
    • (C) The transitional stage of program participation shall be designed to overcome, insofar as practicable, the remaining elements of economic disadvantage and to prepare such concern for graduation from the program.
  • (13) A Program Participant, if otherwise eligible, shall be qualified to receive the following assistance during the stages of program participation specified in paragraph 12: 15 15 So in original. Probably should be “paragraph (12):”.
    • (A) Contract support pursuant to section 637(a) of this title .
    • (B) Financial assistance pursuant to subsection (a)(20).
    • (C) A maximum of two exemptions from the requirements of section 35(a) 2 of title 41, which exemptions shall apply only to contracts awarded pursuant to section 637(a) of this title and shall only be used to allow for contingent agreements by a small business concern to acquire the machinery, equipment, facilities, or labor needed to perform such contracts. No exemption shall be made pursuant to this subparagraph if the contract to which it pertains has an anticipated value in excess of $10,000,000. This subparagraph shall cease to be effective on October 1, 1992 .
    • (D) A maximum of five exemptions from the requirements of sections 3131 and 3133 of title 40, which exemptions shall apply only to contracts awarded pursuant to section 637(a) of this title , except that, such exemptions may be granted under this subparagraph only if—
      • (i) the Administration finds that such concern is unable to obtain the requisite bond or bonds from a surety and that no surety is willing to issue a bond subject to the guarantee provision of title IV of the Small Business Investment Act of 1958 ( 15 U.S.C. 692 et seq.);
      • (ii) the Administration and the agency providing the contracting opportunity have provided for the protection of persons furnishing materials or labor to the Program Participant by arranging for the direct disbursement of funds due to such persons by the procuring agency or through any bank the deposits of which are insured by the Federal Deposit Insurance Corporation; and
      • (iii) the contract to which it pertains does not exceed $3,000,000 in amount. This subparagraph shall cease to be effective on October 1, 1994 .
    • (E) Financial assistance whereby the Administration may purchase in whole or in part, and on behalf of such concerns, skills training or upgrading for employees or potential employees of such concerns. Such assistance may be made without regard to section 647(a) of this title . Assistance may be made by direct payment to the training provider or by reimbursing the Program Participant or the Participant’s employee, if such reimbursement is found to be reasonable and appropriate. For purposes of this subparagraph the term “training provider” shall mean an institution of higher education, a community or vocational college, or an institution eligible to provide skills training or upgrading under title I of the Workforce Innovation and Opportunity Act [ 29 U.S.C. 3111 et seq.]. The Administration shall, in consultation with the Secretary of Labor, promulgate rules and regulations to implement this subparagraph that establish acceptable training and upgrading performance standards and provide for such monitoring or audit requirements as may be necessary to ensure the integrity of the training effort. No financial assistance shall be granted under the subparagraph unless the Administrator determines that—
      • (i) such concern has documented that it has first explored the use of existing cost-free or cost-subsidized training programs offered by public and private sector agencies working with programs of employment and training and economic development;
      • (ii) no more than five employees or potential employees of such concern are recipients of any benefits under this subparagraph at any one time;
      • (iii) no more than $2,500 shall be made available for any one employee or potential employee;
      • (iv) the length of training or upgrading financed by this subparagraph shall be no less than one month nor more than six months;
      • (v) such concern has given adequate assurance it will employ the trainee or upgraded employee for at least six months after the training or upgrading financed by this subparagraph has been completed and each trainee or upgraded employee has provided a similar assurance to remain within the employ of such concern for such period; if such concern, trainee, or upgraded employee breaches this agreement, the Administration shall be entitled to and shall make diligent efforts to obtain from the violating party the repayment of all funds expended on behalf of the violating party, such repayment shall be made to the Administration together with such interest and costs of collection as may be reasonable; the violating party shall be barred from receiving any further assistance under this subparagraph;
      • (vi) the training to be financed may take place either at such concern’s facilities or at those of the training provider; and
      • (vii) such concern will maintain such records as the Administration deems appropriate to ensure that the provisions of this paragraph and any other applicable law have not been violated.
    • (F)
      • (i) The transfer of technology or surplus property owned by the United States to such a concern. Activities designed to effect such transfer shall be developed in cooperation with the heads of Federal agencies and shall include the transfer by grant, license, or sale of such technology or property to such a concern. Such property may be transferred to Program Participants on a priority basis. Technology or property transferred under this subparagraph shall be used by the concern during the normal conduct of its business operation and shall not be sold or transferred to any other party (other than the Government) during such concern’s term of participation in the Program and for one year thereafter.
      • (ii)
        • (I) In this clause—
        • (II) The Administrator may transfer technology or surplus property under clause (i) on a priority basis to a small business concern located in a disaster area if—
        • (III) For any transfer of property under this clause to a small business concern, the terms and conditions shall be the same as a transfer to a Program Participant, except that the small business concern shall agree not to sell or transfer the property to any party other than the Federal Government during the covered period.
        • (IV) A small business concern that receives a transfer of property under this clause may not receive a transfer of property under clause (i) during the covered period.
        • (V) If a small business concern sells or transfers property in violation of the agreement described in subclause (III), the Administrator may initiate proceedings to prohibit the small business concern from receiving a transfer of property under this clause or clause (i), in addition to any other remedy available to the Administrator.
      • (iii)
        • (I) In this clause, the term “covered period” means the period beginning on August 13, 2018 , and ending on the date on which the Oversight Board established under section 2121 of title 48 terminates.
        • (II) The Administrator may transfer technology or surplus property under clause (i) to a Puerto Rico business if the Puerto Rico business meets the requirements for such a transfer, without regard to whether the Puerto Rico business is a Program Participant.
    • (G) Training assistance whereby the Administration shall conduct training sessions to assist individuals and enterprises eligible to receive contracts under section 637(a) of this title in the development of business principles and strategies to enhance their ability to successfully compete for contracts in the marketplace.
    • (H) Joint ventures, leader-follower arrangements, and teaming agreements between the Program Participant and other Program Participants and other business concerns with respect to contracting opportunities for the research, development, full-scale engineering or production of major systems. Such activities shall be undertaken on the basis of programs developed by the agency responsible for the procurement of the major system, with the assistance of the Administration.
    • (I) Transitional management business planning training and technical assistance.
    • (J) Program Participants in the developmental stage of Program participation shall be eligible for the assistance provided by subparagraphs (A), (B), (C), (D), (E), (F), and (G).
  • (14) Program Participants in the transitional stage of Program participation shall be eligible for the assistance provided by subparagraphs (A), (B), (F), (G), (H), and (I) of paragraph (13).
  • (15) Subject to the provisions of paragraph (10)(C), a small business concern may receive developmental assistance under the Program and contracts under section 637(a) of this title for a total period of not longer than nine years, measured from the date of its certification under the authority of such section, of which—
    • (A) no more than four years may be spent in the developmental stage of Program Participation; and
    • (B) no more than five years may be spent in the transitional stage of Program Participation.
  • (16)
    • (A) The Administrator shall develop and implement a process for the systematic collection of data on the operations of the Program established pursuant to paragraph (10).
    • (B) Not later than April 30 of each year, the Administrator shall submit a report to the Congress on the Program that shall include the following:
      • (i) The average personal net worth of individuals who own and control concerns that were initially certified for participation in the Program during the immediately preceding fiscal year. The Administrator shall also indicate the dollar distribution of net worths, at $50,000 increments, of all such individuals found to be socially and economically disadvantaged. For the first report required pursuant to this paragraph the Administrator shall also provide the data specified in the preceding sentence for all eligible individuals in the Program as of November 15, 1988 .
      • (ii) A description and estimate of the benefits and costs that have accrued to the economy and the Government in the immediately preceding fiscal year due to the operations of those business concerns that were performing contracts awarded pursuant to section 637(a) of this title .
      • (iii) A compilation and evaluation of those business concerns that have exited the Program during the immediately preceding three fiscal years. Such compilation and evaluation shall detail the number of concerns actively engaged in business operations, those that have ceased or substantially curtailed such operations, including the reasons for such actions, and those concerns that have been acquired by other firms or organizations owned and controlled by other than socially and economically disadvantaged individuals. For those businesses that have continued operations after they exited from the Program, the Administrator shall also separately detail the benefits and costs that have accrued to the economy during the immediately preceding fiscal year due to the operations of such concerns.
      • (iv) A listing of all participants in the Program during the preceding fiscal year identifying, by State and by Region, for each firm: the name of the concern, the race or ethnicity, and gender of the disadvantaged owners, the dollar value of all contracts received in the preceding year, the dollar amount of advance payments received by each concern pursuant to contracts awarded under section 637(a) of this title , and a description including (if appropriate) an estimate of the dollar value of all benefits received pursuant to paragraphs (13) and (14) and subsection (a)(20) during such year.
      • (v) The total dollar value of contracts and options awarded during the preceding fiscal year pursuant to section 637(a) of this title and such amount expressed as a percentage of total sales of (I) all firms participating in the Program during such year; and (II) of firms in each of the nine years of program participation.
      • (vi) A description of such additional resources or program authorities as may be required to provide the types of services needed over the next two-year period to service the expected portfolio of firms certified pursuant to section 637(a) of this title .
      • (vii) The total dollar value of contracts and options awarded pursuant to section 637(a) of this title , at such dollar increments as the Administrator deems appropriate, for each four digit standard industrial classification code under which such contracts and options were classified.
    • (C) The first report required by subparagraph (B) shall pertain to fiscal year 1990.
• (k) In carrying out its functions under subsections (i) and (j) and section 637(a) of this title , the Administration is authorized—
  • (1) to utilize, with their consent, the services and facilities of Federal agencies without reimbursement, and, with the consent of any State or political subdivision of a State, accept and utilize the services and facilities of such State or subdivision without reimbursement;
  • (2) to accept, in the name of the Administration, and employ or dispose of in furtherance of the purposes of this chapter, any money or property, real, personal, or mixed, tangible, or intangible, received by gift, devise, bequest, or otherwise;
  • (3) to accept voluntary and uncompensated services, notwithstanding the provisions of section 1342 of title 31 ; and
  • (4) to employ experts and consultants or organizations thereof as authorized by section 3109 of title 5 , except that no individual may be employed under the authority of this subsection for more than one hundred days in any fiscal year; to compensate individuals so employed at rates not in excess of the daily equivalent of the highest rate payable under section 5332 of title 5 , including traveltime; and to allow them, while away from their homes or regular places of business, travel expenses (including per diem in lieu of subsistence) as authorized by section 5703 of title 5 for persons in the Government service employed intermittently, while so employed: Provided, however , That contracts for such employment may be renewed annually.
• (l)
  • (1) In this subsection—
    • (A) the term “eligible intermediary”—
      • (i) means a private, nonprofit entity that—
        • (I) seeks or has been awarded a loan from the Administrator to make loans to small business concerns under this subsection; and
        • (II) has not less than 1 year of experience making loans to startup, newly established, or growing small business concerns; and
      • (ii) includes—
        • (I) a private, nonprofit community development corporation;
        • (II) a consortium of private, nonprofit organizations or nonprofit community development corporations; and
        • (III) an agency of or nonprofit entity established by a Native American Tribal Government; and
    • (B) the term “Program” means the small business intermediary lending pilot program established under paragraph (2).
  • (2) There is established a 3-year small business intermediary lending pilot program, under which the Administrator may make direct loans to eligible intermediaries, for the purpose of making loans to startup, newly established, and growing small business concerns.
  • (3) The purposes of the Program are—
    • (A) to assist small business concerns in areas suffering from a lack of credit due to poor economic conditions or changes in the financial market; and
    • (B) to establish a loan program under which the Administrator may provide loans to eligible intermediaries to enable the eligible intermediaries to provide loans to startup, newly established, and growing small business concerns for working capital, real estate, or the acquisition of materials, supplies, or equipment.
  • (4)
    • (A) Each eligible intermediary desiring a loan under this subsection shall submit an application to the Administrator that describes—
      • (i) the type of small business concerns to be assisted;
      • (ii) the size and range of loans to be made;
      • (iii) the interest rate and terms of loans to be made;
      • (iv) the geographic area to be served and the economic, poverty, and unemployment characteristics of the area;
      • (v) the status of small business concerns in the area to be served and an analysis of the availability of credit; and
      • (vi) the qualifications of the applicant to carry out this subsection.
    • (B) No loan may be made to an eligible intermediary under this subsection if the total amount outstanding and committed to the eligible intermediary by the Administrator would, as a result of such loan, exceed $1,000,000 during the participation of the eligible intermediary in the Program.
    • (C) Loans made by the Administrator under this subsection shall be for a term of 20 years.
    • (D) Loans made by the Administrator to an eligible intermediary under the Program shall bear an annual interest rate equal to 1.00 percent.
    • (E) The Administrator may not charge any fees or require collateral with respect to any loan made to an eligible intermediary under this subsection.
    • (F) The Administrator shall not require the repayment of principal or interest on a loan made to an eligible intermediary under the Program during the 2-year period beginning on the date of the initial disbursement of funds under that loan.
    • (G) During each of fiscal years 2011, 2012, and 2013, the Administrator may make loans under the Program—
      • (i) to not more than 20 eligible intermediaries; and
      • (ii) in a total amount of not more than $20,000,000.
  • (5)
    • (A) The Administrator, through an eligible intermediary, shall make loans to startup, newly established, and growing small business concerns for working capital, real estate, and the acquisition of materials, supplies, furniture, fixtures, and equipment.
    • (B) An eligible intermediary may not make a loan under this subsection of more than $200,000 to any 1 small business concern.
    • (C) A loan made by an eligible intermediary to a small business concern under this subsection, may have a fixed or a variable interest rate, and shall bear an interest rate specified by the eligible intermediary in the application of the eligible intermediary for a loan under this subsection.
    • (D) The Administrator may not review individual loans made by an eligible intermediary to a small business concern before approval of the loan by the eligible intermediary.
  • (6) The authority of the Administrator to make loans under the Program shall terminate 3 years after September 27, 2010 .
• (m)
  • (1)
    • (A) The purposes of the Microloan Program are—
      • (i) to assist women, low-income, veteran (within the meaning of such term under section 632(q) of this title ), and minority entrepreneurs and business owners and other such individuals possessing the capability to operate successful business concerns;
      • (ii) to assist small business concerns in those areas suffering from a lack of credit due to economic downturns;
      • (iii) to establish a microloan program to be administered by the Small Business Administration—
        • (I) to make loans to eligible intermediaries to enable such intermediaries to provide small-scale loans, particularly loans in amounts averaging not more than $10,000, to startup, newly established, or growing small business concerns for working capital or the acquisition of materials, supplies, or equipment;
        • (II) to make grants to eligible intermediaries that, together with non-Federal matching funds, will enable such intermediaries to provide intensive marketing, management, and technical assistance to microloan borrowers;
        • (III) to make grants to eligible nonprofit entities that, together with non-Federal matching funds, will enable such entities to provide intensive marketing, management, and technical assistance to assist low-income entrepreneurs and other low-income individuals obtain private sector financing for their businesses, with or without loan guarantees; and
        • (IV) to report to the Committees on Small Business of the Senate and the House of Representatives on the effectiveness of the microloan program and the advisability and feasibility of implementing such a program nationwide; and
      • (iv) to establish a welfare-to-work microloan initiative, which shall be administered by the Administration, in order to test the feasibility of supplementing the technical assistance grants provided under clauses (ii) and (iii) of subparagraph (B) to individuals who are receiving assistance under the State program funded under part A of title IV of the Social Security Act ( 42 U.S.C. 601 et seq.), or under any comparable State funded means tested program of assistance for low-income individuals, in order to adequately assist those individuals in—
        • (I) establishing small businesses; and
        • (II) eliminating their dependence on that assistance.
    • (B) There is established a microloan program, under which the Administration may—
      • (i) make direct loans to eligible intermediaries, as provided under paragraph (3), for the purpose of making short-term, fixed interest rate microloans to startup, newly established, and growing small business concerns under paragraph (6);
      • (ii) in conjunction with such loans and subject to the requirements of paragraph (4), make grants to such intermediaries for the purpose of providing intensive marketing, management, and technical assistance to small business concerns that are borrowers under this subsection; and
      • (iii) subject to the requirements of paragraph (5), make grants to nonprofit entities for the purpose of providing marketing, management, and technical assistance to low-income individuals seeking to start or enlarge their own businesses, if such assistance includes working with the grant recipient to secure loans in amounts not to exceed $50,000 from private sector lending institutions, with or without a loan guarantee from the nonprofit entity.
  • (2) An intermediary shall be eligible to receive loans and grants under subparagraphs (B)(i) and (B)(ii) of paragraph (1) if it—
    • (A) meets the definition in paragraph (10); 2 and
    • (B) has at least 1 year of experience making microloans to startup, newly established, or growing small business concerns and providing, as an integral part of its microloan program, intensive marketing, management, and technical assistance to its borrowers.
  • (3)
    • (A)
      • (i) As part of its application for a loan, each intermediary shall submit a description to the Administration of—
        • (I) the type of businesses to be assisted;
        • (II) the size and range of loans to be made;
        • (III) the geographic area to be served and its economic, poverty, and unemployment characteristics;
        • (IV) the status of small business concerns in the area to be served and an analysis of their credit and technical assistance needs;
        • (V) any marketing, management, and technical assistance to be provided in connection with a loan made under this subsection;
        • (VI) the local economic credit markets, including the costs associated with obtaining credit locally;
        • (VII) the qualifications of the applicant to carry out the purpose of this subsection; and
        • (VIII) any plan to involve other technical assistance providers (such as counselors from the Service Corps of Retired Executives or small business development centers) or private sector lenders in assisting selected business concerns.
      • (ii) In selecting intermediaries to participate in the program established under this subsection, the Administration shall give priority to those applicants that provide loans in amounts averaging not more than $10,000.
    • (B) As a condition of any loan made to an intermediary under subparagraph (B)(i) of paragraph (1), the Administrator shall require the intermediary to contribute not less than 15 percent of the loan amount in cash from non-Federal sources.
    • (C) Notwithstanding subsection (a)(3), no loan shall be made under this subsection if the total amount outstanding and committed to one intermediary (excluding outstanding grants) from the business loan and investment fund established by this chapter would, as a result of such loan, exceed $750,000 in the first year of such intermediary’s participation in the program, and $6,000,000 in the remaining years of the intermediary’s participation in the program.
    • (D)
      • (i) The Administrator shall, by regulation, require each intermediary to establish a loan loss reserve fund, and to maintain such reserve fund until all obligations owed to the Administration under this subsection are repaid.
      • (ii)
        • (I) Subject to subclause (III), the Administrator shall require the loan loss reserve fund of an intermediary to be maintained at a level equal to 15 percent of the outstanding balance of the notes receivable owed to the intermediary.
        • (II) After the initial 5 years of an intermediary’s participation in the program authorized by this subsection, the Administrator shall, at the request of the intermediary, conduct a review of the annual loss rate of the intermediary. Any intermediary in operation under this subsection prior to October 1, 1994 , that requests a reduction in its loan loss reserve shall be reviewed based on the most recent 5-year period preceding the request.
        • (III) Subject to the requirements of clause IV, 16 16 So in original. Probably should be “subclause (IV),”. the Administrator may reduce the annual loan loss reserve requirement of an intermediary to reflect the actual average loan loss rate for the intermediary during the preceding 5-year period, except that in no case shall the loan loss reserve be reduced to less than 10 percent of the outstanding balance of the notes receivable owed to the intermediary.
        • (IV) The Administrator may reduce the annual loan loss reserve requirement of an intermediary only if the intermediary demonstrates to the satisfaction of the Administrator that—
    • (E) An intermediary may make a loan under this subsection of more than $20,000 to a small business concern only if such small business concern demonstrates that it is unable to obtain credit elsewhere at comparable interest rates and that it has good prospects for success. In no case shall an intermediary make a loan under this subsection of more than $50,000, or have outstanding or committed to any 1 borrower more than $50,000.
    • (F)
      • (i) Loans made by the Administration under this subsection shall be for a term of 10 years.
      • (ii) Except as provided in clause (iii), loans made by the Administration under this subsection to an intermediary shall bear an interest rate equal to 1.25 percentage points below the rate determined by the Secretary of the Treasury for obligations of the United States with a period of maturity of 5 years, adjusted to the nearest one-eighth of 1 percent.
      • (iii) Loans made by the Administration to an intermediary that makes loans to small business concerns and entrepreneurs averaging not more than $7,500, shall bear an interest rate that is 2 percentage points below the rate determined by the Secretary of the Treasury for obligations of the United States with a period of maturity of 5 years, adjusted to the nearest one-eighth of 1 percent.
      • (iv) The interest rate prescribed in clause (ii) or (iii) shall apply to each separate loan-making site or office of 1 intermediary only if such site or office meets the requirements of that clause.
      • (v) The applicable rate of interest under this paragraph shall—
        • (I) be applied retroactively for the first year of an intermediary’s participation in the program, based upon the actual lending practices of the intermediary as determined by the Administration prior to the end of such year; and
        • (II) be based in the second and subsequent years of an intermediary’s participation in the program, upon the actual lending practices of the intermediary during the term of the intermediary’s participation in the program.
      • (vii) The interest rates prescribed in this subparagraph shall apply to all loans made to intermediaries under this subsection on or after October 28, 1991 .
    • (G) The Administration shall not require repayment of interest or principal of a loan made to an intermediary under this subsection during the first year of the loan.
    • (H) Except as provided in subparagraphs (B) and (D), the Administration shall not charge any fees or require collateral other than an assignment of the notes receivable of the microloans with respect to any loan made to an intermediary under this subsection.
  • (4) Grants made in accordance with subparagraph (B)(ii) of paragraph (1) shall be subject to the following requirements:
    • (A) Except as otherwise provided in subparagraph (C) and subject to subparagraph (B), each intermediary that receives a loan under subparagraph (B)(i) of paragraph (1) shall be eligible to receive a grant to provide marketing, management, and technical assistance to small business concerns that are borrowers under this subsection. Except as provided in subparagraph (C), each intermediary meeting the requirements of subparagraph (B) may receive a grant of not more than 25 percent of the total outstanding balance of loans made to it under this subsection.
    • (B) As a condition of a grant made under subparagraph (A), the Administrator shall require the intermediary to contribute an amount equal to 25 percent of the amount of the grant, obtained solely from non-Federal sources. In addition to cash or other direct funding, the contribution may include indirect costs or in-kind contributions paid for under non-Federal programs.
    • (C)
      • (i) Each intermediary that has a portfolio of loans made under this subsection that averages not more than $10,000 during the period of the intermediary’s participation in the program shall be eligible to receive a grant equal to 5 percent of the total outstanding balance of loans made to the intermediary under this subsection, in addition to grants made under subparagraph (A).
      • (ii) A grant awarded under clause (i) may be used to provide marketing, management, and technical assistance to small business concerns that are borrowers under this subsection.
      • (iii) The contribution requirements in subparagraph (B) do not apply to grants made under this subparagraph.
    • (D) The eligibility for a grant described in subparagraph (A), 7 or (C) shall be determined separately for each loan-making site or office of 1 intermediary.
    • (E)
      • (i) Each intermediary may expend an amount not to exceed 50 percent of the grant funds received under paragraph (1)(B)(ii) to provide information and technical assistance to small business concerns that are prospective borrowers under this subsection.
      • (ii) An intermediary may expend not more than 50 percent of the funds received under paragraph (1)(B)(ii) to enter into third party contracts for the provision of technical assistance.
    • (F)
      • (i) The Administration may accept any funds transferred to the Administration from other departments or agencies of the Federal Government to make grants in accordance with this subparagraph and section 202(b) of the Small Business Reauthorization Act of 1997 to participating intermediaries and technical assistance providers under paragraph (5), for use in accordance with clause (iii) to provide additional technical assistance and related services to recipients of assistance under a State program described in paragraph (1)(A)(iv) at the time they initially apply for assistance under this subparagraph.
      • (ii) In making grants under this subparagraph, the Administration may select, from among participating intermediaries and technical assistance providers described in clause (i), not more than 20 grantees in fiscal year 1998, not more than 25 grantees in fiscal year 1999, and not more than 30 grantees in fiscal year 2000, each of whom may receive a grant under this subparagraph in an amount not to exceed $200,000 per year.
      • (iii) Grants under this subparagraph—
        • (I) are in addition to other grants provided under this subsection and shall not require the contribution of matching amounts as a condition of eligibility; and
        • (II) may be used by a grantee—
      • (iv) Prior to accepting any transfer of funds under clause (i) from a department or agency of the Federal Government, the Administration shall enter into a Memorandum of Understanding with the department or agency, which shall—
        • (I) specify the terms and conditions of the grants under this subparagraph; and
        • (II) provide for appropriate monitoring of expenditures by each grantee under this subparagraph and each recipient of assistance described in clause (i) who receives assistance from a grantee under this subparagraph, in order to ensure compliance with this subparagraph by those grantees and recipients of assistance.
  • (5) Grants made in accordance with subparagraph (B)(iii) of paragraph (1) shall be subject to the following requirements:
    • (A) Subject to the requirements of subparagraph (B), the Administration may make not more than 55 grants annually, each in amounts not to exceed $200,000 for the purposes specified in subparagraph (B)(iii) of paragraph (1).
    • (B) As a condition of any grant made under subparagraph (A), the Administration shall require the grant recipient to contribute an amount equal to 20 percent of the amount of the grant, obtained solely from non-Federal sources. In addition to cash or other direct funding, the contribution may include indirect costs or in-kind contributions paid for under non-Federal programs.
  • (6)
    • (A) An eligible intermediary shall make short-term, fixed rate loans to startup, newly established, and growing small business concerns from the funds made available to it under subparagraph (B)(i) of paragraph (1) for working capital and the acquisition of materials, supplies, furniture, fixtures, and equipment.
    • (B) To the extent practicable, each intermediary that operates a microloan program under this subsection shall maintain a microloan portfolio with an average loan size of not more than $15,000.
    • (C) Notwithstanding any provision of the laws of any State or the constitution of any State pertaining to the rate or amount of interest that may be charged, taken, received, or reserved on a loan, the maximum rate of interest to be charged on a microloan funded under this subsection shall not exceed the rate of interest applicable to a loan made to an intermediary by the Administration—
      • (i) in the case of a loan of more than $7,500 made by the intermediary to a small business concern or entrepreneur by more than 7.75 percentage points; and
      • (ii) in the case of a loan of not more than $7,500 made by the intermediary to a small business concern or entrepreneur by more than 8.5 percentage points.
    • (D) The Administration shall not review individual microloans made by intermediaries prior to approval.
    • (E) In addition to other eligible small businesses concerns, borrowers under any program under this subsection may include individuals who will use the loan proceeds to establish for-profit or nonprofit child care establishments or businesses providing for-profit transportation services.
  • (7)
    • (A) Under the program authorized by this subsection, the Administration may fund, on a competitive basis, not more than 300 intermediaries.
    • (B)
      • (i) Subject to the availability of appropriations, of the total amount of new loan funds made available for award under this subsection in each fiscal year, the Administration shall make available for award in each State (including the District of Columbia, the Commonwealth of Puerto Rico, the United States Virgin Islands, Guam, and American Samoa) an amount equal to the sum of—
        • (I) the lesser of—
        • (II) any additional amount, as determined by the Administration.
      • (ii) If, at the beginning of the third quarter of a fiscal year, the Administration determines that any portion of the amount made available to carry out this subsection is unlikely to be made available under clause (i) during that fiscal year, the Administration may make that portion available for award in any one or more States (including the District of Columbia, the Commonwealth of Puerto Rico, the United States Virgin Islands, Guam, and American Samoa) without regard to clause (i).
  • (8) In approving microloan program applicants and providing funding to intermediaries under this subsection, the Administration shall select and provide funding to such intermediaries as will ensure appropriate availability of loans for small businesses in all industries located throughout each State, particularly those located in urban and in rural areas.
  • (9)
    • (A) The Administration may procure technical assistance for intermediaries participating in the Microloan Program to ensure that such intermediaries have the knowledge, skills, and understanding of microlending practices necessary to operate successful microloan programs.
    • (B) The Administration shall transfer 7 percent of its annual appropriation for loans and loan guarantees under this subsection to the Administration’s Salaries and Expense Account for the specific purpose of providing 1 or more technical assistance grants to experienced microlending organizations and national and regional nonprofit organizations that have demonstrated experience in providing training support for microenterprise development and financing. 20 20 So in original. The period probably should not appear. to achieve the purpose set forth in subparagraph (A).
    • (C) Of amounts made available to carry out the welfare-to-work microloan initiative under paragraph (1)(A)(iv) in any fiscal year, the Administration may use not more than 5 percent to provide technical assistance, either directly or through contractors, to welfare-to-work microloan initiative grantees, to ensure that, as grantees, they have the knowledge, skills, and understanding of microlending and welfare-to-work transition, and other related issues, to operate a successful welfare-to-work microloan initiative.
  • (10) On November 1, 1995 , the Administration shall submit to the Committees on Small Business of the Senate and the House of Representatives a report, including the Administration’s evaluation of the effectiveness of the first 3½ years of the microloan program and the following:
    • (A) the numbers and locations of the intermediaries funded to conduct microloan programs;
    • (B) the amounts of each loan and each grant to intermediaries;
    • (C) a description of the matching contributions of each intermediary;
    • (D) the numbers and amounts of microloans made by the intermediaries to small business concern borrowers;
    • (E) the repayment history of each intermediary;
    • (F) a description of the loan portfolio of each intermediary including the extent to which it provides microloans to small business concerns in rural areas; and
    • (G) any recommendations for legislative changes that would improve program operations.
  • (11) For purposes of this subsection—
    • (A) the term “intermediary” means—
      • (i) a private, nonprofit entity;
      • (ii) a private, nonprofit community development corporation;
      • (iii) a consortium of private, nonprofit organizations or nonprofit community development corporations;
      • (iv) a quasi-governmental economic development entity (such as a planning and development district), other than a State, county, municipal government, or any agency thereof, if—
        • (I) no application is received from an eligible nonprofit organization; or
        • (II) the Administration determines that the needs of a region or geographic area are not adequately served by an existing, eligible nonprofit organization that has submitted an application; or
      • (v) an agency of or nonprofit entity established by a Native American Tribal Government,
    • (B) the term “microloan” means a short-term, fixed rate loan of not more than $50,000, made by an intermediary to a startup, newly established, or growing small business concern;
    • (C) the term “rural area” means any political subdivision or unincorporated area—
      • (i) in a nonmetropolitan county (as defined by the Secretary of Agriculture) or its equivalent thereof; or
      • (ii) in a metropolitan county or its equivalent that has a resident population of less than 20,000 if the Small Business Administration has determined such political subdivision or area to be rural.
  • (12) In lieu of making direct loans to intermediaries as authorized in paragraph (1)(B), during fiscal years 1998 through 2000, the Administration may, on a pilot program basis, participate on a deferred basis of not less than 90 percent and not more than 100 percent on loans made to intermediaries by a for-profit or nonprofit entity or by alliances of such entities, subject to the following conditions:
    • (A) In carrying out this paragraph, the Administration shall not participate in providing financing on a deferred basis to more than 10 intermediaries in urban areas or more than 10 intermediaries in rural areas.
    • (B) The term of each loan shall be 10 years. During the first year of the loan, the intermediary shall not be required to repay any interest or principal. During the second through fifth years of the loan, the intermediary shall be required to pay interest only. During the sixth through tenth years of the loan, the intermediary shall be required to make interest payments and fully amortize the principal.
    • (C) The interest rate on each loan shall be the rate specified by paragraph (3)(F) for direct loans.
  • (13) On January 31, 1999 , and annually thereafter, the Administration shall submit to the Committees on Small Business of the House of Representatives and the Senate a report on any monies distributed pursuant to paragraph (4)(F).
• (n)
  • (1) In this subsection:
    • (A) The term “active service” has the meaning given that term in section 101(d)(3) of title 10 .
    • (B) The term “eligible reservist” means a member of a reserve component of the Armed Forces ordered to perform active service for a period of more than 30 consecutive days.
    • (C) The term “essential employee” means an individual who is employed by a small business concern and whose managerial or technical expertise is critical to the successful day-to-day operations of that small business concern.
    • (D) The term “qualified borrower” means—
      • (i) an individual who is an eligible reservist and who received a direct loan under subsection (a) or (b) before being ordered to active service; or
      • (ii) a small business concern that received a direct loan under subsection (a) or (b) before an eligible reservist, who is an essential employee, was ordered to active service.
  • (2)
    • (A) The Administration shall, upon written request, defer repayment of principal and interest due on a direct loan made under subsection (a) or (b), if such loan was incurred by a qualified borrower.
    • (B) The period of deferral for repayment under this paragraph shall begin on the date on which the eligible reservist is ordered to active service and shall terminate on the date that is 180 days after the date such eligible reservist is discharged or released from active service.
    • (C) Notwithstanding any other provision of law, during the period of deferral described in subparagraph (B), the Administration may, in its discretion, reduce the interest rate on any loan qualifying for a deferral under this paragraph.
  • (3) The Administration shall—
    • (A) encourage intermediaries participating in the program under subsection (m) to defer repayment of a loan made with proceeds made available under that subsection, if such loan was incurred by a small business concern that is eligible to apply for assistance under subsection (b)(3); and
    • (B) not later than 30 days after August 17, 1999 , establish guidelines to—
      • (i) encourage lenders and other intermediaries to defer repayment of, or provide other relief relating to, loan guarantees under subsection (a) and financings under section 697a of this title that were incurred by small business concerns that are eligible to apply for assistance under subsection (b)(3), and loan guarantees provided under subsection (m) if the intermediary provides relief to a small business concern under this paragraph; and
      • (ii) implement a program to provide for the deferral of repayment or other relief to any intermediary providing relief to a small business borrower under this paragraph.

§ 636b. Disaster loan interest rates

Any loan made under section 636a 1 1 See References in Text note below. of this title and section 4452 1 of title 42 shall not exceed the current cost of repairing or replacing the disaster injury, loss, or damage in conformity with current codes and specifications. Any loan made under sections 636a 1 and 636d of this title, and sections 3538 and 4452 1 of title 42 shall bear interest at a rate determined by the Secretary of the Treasury, taking into consideration the current average market yield on outstanding marketable obligations of the United States with remaining periods to maturity of ten to twelve years reduced by not to exceed 2 per centum per annum. In no event shall any loan made under this section bear interest at a rate in excess of 6 per centum per annum.

§ 636c. Age of applicant for disaster loans

In the administration of any Federal disaster loan program under the authority of section 636a 1 1 See References in Text note below. of this title, section 4452 1 of title 42, or section 233 of Public Law 91–606 , the age of any adult loan applicant shall not be considered in determining whether such loan should be made or the amount of such loan.

§ 636d. Disaster aid to major sources of employment

• (a) The Small Business Administration in the case of a nonagricultural enterprise, and the Farmers Home Administration in the case of an agricultural enterprise, are authorized to provide any industrial, commercial, agricultural, or other enterprise, which has constituted a major source of employment in an area suffering a major disaster and which is no longer in substantial operation as a result of such disaster, a loan in such amount as may be necessary to enable such enterprise to resume operations in order to assist in restoring the economic viability of the disaster area. Loans authorized by this section shall be made without regard to limitations on the size of loans which may otherwise be imposed by any other provision of law or regulations promulgated pursuant thereto.
• (b) Assistance under this section shall be in addition to any other Federal disaster assistance, except that such other assistance may be adjusted or modified to the extent deemed appropriate by the Director under the authority of section 4418 1 1 See References in Text note below. of title 42. Any loan made under this section shall be subject to the interest requirements of section 636b of this title , but the President, if he deems it necessary, may defer payments of principal and interest for a period not to exceed three years after the date of the loan. Any such deferred payments shall bear interest at the rate determined under section 636b of this title .

§ 636e. Definitions

In this subtitle— 1 1 See References in Text note below.

• (1) the terms “Administration” and “Administrator” mean the Small Business Administration and the Administrator thereof, respectively;
• (2) the term “disaster area” means an area affected by a natural or other disaster, as determined for purposes of paragraph (1) or (2) of section 636(b) of this title , during the period of such declaration;
• (3) the term “disaster loan program of the Administration” means assistance under section 636(b) of this title , as amended by this Act;
• (4) the term “disaster update period” means the period beginning on the date on which the President declares a major disaster (including any major disaster relating to which the Administrator declares eligibility for additional disaster assistance under paragraph (9) of section 636(b) of this title , as added by this Act) and ending on the date on which such declaration terminates;
• (5) the term “major disaster” has the meaning given that term in section 5122 of title 42 ;
• (6) the term “small business concern” has the meaning given that term under section 632 of this title ; and
• (7) the term “State” means any State of the United States, the District of Columbia, the Commonwealth of Puerto Rico, the Northern Mariana Islands, the Virgin Islands, Guam, American Samoa, and any territory or possession of the United States.

§ 636f. Coordination of efforts between the Administrator and the Internal Revenue Service to expedite loan processing

The Administrator and the Commissioner of Internal Revenue shall, to the maximum extent practicable, ensure that all relevant and allowable tax records for loan approval are shared with loan processors in an expedited manner, upon request by the Administrator.

§ 636g. Development and implementation of major disaster response plan

• (a) Not later than 3 months after the date of enactment of this Act, the Administrator shall—
  • (1) by rule, amend the 2006 Atlantic hurricane season disaster response plan of the Administration (in this section referred to as the “disaster response plan”) to apply to major disasters; and
  • (2) submit a report to the Committee on Small Business and Entrepreneurship of the Senate and the Committee on Small Business of the House of Representatives detailing the amendments to the disaster response plan.
• (b) The report required under subsection (a)(2) shall include—
  • (1) any updates or modifications made to the disaster response plan since the report regarding the disaster response plan submitted to Congress on July 14, 2006 ;
  • (2) a description of how the Administrator plans to use and integrate District Office personnel of the Administration in the response to a major disaster, including information on the use of personnel for loan processing and loan disbursement;
  • (3) a description of the disaster scalability model of the Administration and on what basis or function the plan is scaled;
  • (4) a description of how the agency-wide Disaster Oversight Council is structured, which offices comprise its membership, and whether the Associate Deputy Administrator for Entrepreneurial Development of the Administration is a member;
  • (5) a description of how the Administrator plans to coordinate the disaster efforts of the Administration with State and local government officials, including recommendations on how to better incorporate State initiatives or programs, such as State-administered bridge loan programs, into the disaster response of the Administration;
  • (6) recommendations, if any, on how the Administration can better coordinate its disaster response operations with the operations of other Federal, State, and local entities;
  • (7) any surge plan for the disaster loan program of the Administration in effect on or after August 29, 2005 (including surge plans for loss verification, loan processing, mailroom, customer service or call center operations, and a continuity of operations plan);
  • (8) the number of full-time equivalent employees and job descriptions for the planning and disaster response staff of the Administration;
  • (9) the in-service and preservice training procedures for disaster response staff of the Administration;
  • (10) information on the logistical support plans of the Administration (including equipment and staffing needs, and detailed information on how such plans will be scalable depending on the size and scope of the major disaster 1 1 So in original. Probably should be followed by a closing parenthesis. ;
  • (11) a description of the findings and recommendations of the Administrator, if any, based on a review of the response of the Administration to Hurricane Katrina of 2005, Hurricane Rita of 2005, and Hurricane Wilma of 2005; and
  • (12) a plan for how the Administrator, in consultation with the Administrator of the Federal Emergency Management Agency, will coordinate the provision of accommodations and necessary resources for disaster assistance personnel to effectively perform their responsibilities in the aftermath of a major disaster.
• (c)
  • (1) The Administrator shall conduct a disaster simulation exercise at least once every 2 fiscal years. The exercise shall include the participation of, at a minimum, not less than 50 percent of the individuals in the disaster reserve corps and shall test, at maximum capacity, all of the information technology and telecommunications systems of the Administration that are vital to the activities of the Administration during such a disaster.
  • (2) The Administrator shall include a report on the disaster simulation exercises conducted under paragraph (1) each time the Administration submits a report required under section 657 o of this title, as added by this Act.

§ 636h. Disaster planning responsibilities

• (a) The disaster planning function of the Administration shall be assigned to an individual appointed by the Administrator who—
  • (1) is not an employee of the Office of Disaster Assistance of the Administration;
  • (2) has proven management ability;
  • (3) has substantial knowledge in the field of disaster readiness and emergency response; and
  • (4) has demonstrated significant experience in the area of disaster planning.
• (b) The individual assigned the disaster planning function of the Administration shall report directly and solely to the Administrator and shall be responsible for—
  • (1) creating, maintaining, and implementing the comprehensive disaster response plan of the Administration described in section 636g of this title ;
  • (2) ensuring there are in-service and pre-service training procedures for the disaster response staff of the Administration;
  • (3) coordinating and directing the training exercises of the Administration relating to disasters, including disaster simulation exercises and disaster exercises coordinated with other government departments and agencies; and
  • (4) other responsibilities relevant to disaster planning and readiness, as determined by the Administrator.
• (c) In carrying out the responsibilities described in subsection (b), the individual assigned the disaster planning function of the Administration shall coordinate with—
  • (1) the Office of Disaster Assistance of the Administration;
  • (2) the Administrator of the Federal Emergency Management Agency; and
  • (3) other Federal, State, and local disaster planning offices, as necessary.
• (d) The Administrator shall ensure that the individual assigned the disaster planning function of the Administration has adequate resources to carry out the duties under this section.
• (e) Not later than 30 days after the date of enactment of this Act, the Administrator shall submit to the Committee on Small Business and Entrepreneurship of the Senate and the Committee on Small Business of the House of Representatives a report containing—
  • (1) a description of the actions of the Administrator to assign an individual the disaster planning function of the Administration;
  • (2) information detailing the background and expertise of the individual assigned; and
  • (3) information on the status of the implementation of the responsibilities described in subsection (b).

§ 636i. Small business bonding threshold

• (a) Except as provided in subsection (b), and notwithstanding any other provision of law, for any procurement related to a major disaster, the Administrator may, upon such terms and conditions as the Administrator may prescribe, guarantee and enter into commitments to guarantee any surety against loss resulting from a breach of the terms of a bid bond, payment bond, performance bond, or bonds ancillary thereto, by a principal on any total work order or contract amount at the time of bond execution that does not exceed $5,000,000.
• (b) Upon request of the head of any Federal agency other than the Administration involved in reconstruction efforts in response to a major disaster, the Administrator may guarantee and enter into a commitment to guarantee any security against loss under subsection (a) on any total work order or contract amount at the time of bond execution that does not exceed $10,000,000.
• (c) The Administrator may carry out this section only with amounts appropriated in advance specifically to carry out this section.

§ 636k. Reports on disaster assistance

• (a)
  • (1) Not later than the fifth business day of each month during the applicable period for a major disaster, the Administrator shall submit to the Committee on Small Business and Entrepreneurship and the Committee on Appropriations of the Senate and to the Committee on Small Business and the Committee on Appropriations of the House of Representatives a report on the operation of the disaster loan program authorized under section 636 of this title for that major disaster during the preceding month.
  • (2) Each report submitted under paragraph (1) shall include—
    • (A) the daily average lending volume, in number of loans and dollars, and the percent by which each category has increased or decreased since the previous report under paragraph (1);
    • (B) the weekly average lending volume, in number of loans and dollars, and the percent by which each category has increased or decreased since the previous report under paragraph (1);
    • (C) the amount of funding spent over the month for loans, both in appropriations and program level, and the percent by which each category has increased or decreased since the previous report under paragraph (1);
    • (D) the amount of funding available for loans, both in appropriations and program level, and the percent by which each category has increased or decreased since the previous report under paragraph (1), noting the source of any additional funding;
    • (E) an estimate of how long the available funding for such loans will last, based on the spending rate;
    • (F) the amount of funding spent over the month for staff, along with the number of staff, and the percent by which each category has increased or decreased since the previous report under paragraph (1);
    • (G) the amount of funding spent over the month for administrative costs, and the percent by which such spending has increased or decreased since the previous report under paragraph (1);
    • (H) the amount of funding available for salaries and expenses combined, and the percent by which such funding has increased or decreased since the previous report under paragraph (1), noting the source of any additional funding; and
    • (I) an estimate of how long the available funding for salaries and expenses will last, based on the spending rate.
• (b)
  • (1) Each week during a disaster update period, the Administration shall submit to the Committee on Small Business and Entrepreneurship of the Senate and to the Committee on Small Business of the House of Representatives a report on the operation of the disaster loan program of the Administration for the area in which the President declared a major disaster.
  • (2) Each report submitted under paragraph (1) shall include—
    • (A) the number of Administration staff performing loan processing, field inspection, and other duties for the declared disaster, and the allocations of such staff in the disaster field offices, disaster recovery centers, workshops, and other Administration offices nationwide;
    • (B) the daily number of applications received from applicants in the relevant area, as well as a breakdown of such figures by State;
    • (C) the daily number of applications pending application entry from applicants in the relevant area, as well as a breakdown of such figures by State;
    • (D) the daily number of applications withdrawn by applicants in the relevant area, as well as a breakdown of such figures by State;
    • (E) the daily number of applications summarily declined by the Administration from applicants in the relevant area, as well as a breakdown of such figures by State;
    • (F) the daily number of applications declined by the Administration from applicants in the relevant area, as well as a breakdown of such figures by State;
    • (G) the daily number of applications in process from applicants in the relevant area, as well as a breakdown of such figures by State;
    • (H) the daily number of applications approved by the Administration from applicants in the relevant area, as well as a breakdown of such figures by State;
    • (I) the daily dollar amount of applications approved by the Administration from applicants in the relevant area, as well as a breakdown of such figures by State;
    • (J) the daily amount of loans dispersed, both partially and fully, by the Administration to applicants in the relevant area, as well as a breakdown of such figures by State;
    • (K) the daily dollar amount of loans disbursed, both partially and fully, from the relevant area, as well as a breakdown of such figures by State;
    • (L) the number of applications approved, including dollar amount approved, as well as applications partially and fully disbursed, including dollar amounts, since the last report under paragraph (1); and
    • (M) the declaration date, physical damage closing date, economic injury closing date, and number of counties included in the declaration of a major disaster.
• (c)
  • (1) During any period for which the Administrator declares eligibility for additional disaster assistance under paragraph (9) of section 636(b) of this title , as amended by this Act, the Administrator shall, on a monthly basis, submit to the Committee on Small Business and Entrepreneurship of the Senate and to the Committee on Small Business of the House of Representatives a report on the disaster assistance operations of the Administration with respect to the applicable major disaster.
  • (2) Each report submitted under paragraph (1) shall specify—
    • (A) the number of applications for disaster assistance distributed;
    • (B) the number of applications for disaster assistance received;
    • (C) the average time for the Administration to approve or disapprove an application for disaster assistance;
    • (D) the amount of disaster loans approved;
    • (E) the average time for initial disbursement of disaster loan proceeds; and
    • (F) the amount of disaster loan proceeds disbursed.
• (d) On the same date that the Administrator notifies any committee of the Senate or the House of Representatives that supplemental funding is necessary for the disaster loan program of the Administration in any fiscal year, the Administrator shall notify in writing the Committee on Small Business and Entrepreneurship of the Senate and the Committee on Small Business of the House of Representatives regarding the need for supplemental funds for that loan program.
• (e)
  • (1) Not later than 6 months after the date on which the President declares a major disaster, and every 6 months thereafter until the date that is 18 months after the date on which the major disaster was declared, the Administrator shall submit a report to the Committee on Small Business and Entrepreneurship of the Senate and to the Committee on Small Business of the House of Representatives regarding Federal contracts awarded as a result of that major disaster.
  • (2) Each report submitted under paragraph (1) shall include—
    • (A) the total number of contracts awarded as a result of that major disaster;
    • (B) the total number of contracts awarded to small business concerns as a result of that major disaster;
    • (C) the total number of contracts awarded to women and minority-owned businesses as a result of that major disaster; and
    • (D) the total number of contracts awarded to local businesses as a result of that major disaster.
• (f)
  • (1) Not later than 6 months after the date of enactment of this Act, the Administrator shall submit a report to the Committee on Small Business and Entrepreneurship of the Senate and the Committee on Small Business of the House of Representatives detailing how the Administration can improve the processing of applications under the disaster loan program of the Administration.
  • (2) The report submitted under paragraph (1) shall include—
    • (A) recommendations, if any, regarding—
      • (i) staffing levels during a major disaster;
      • (ii) how to improve the process for processing, approving, and disbursing loans under the disaster loan program of the Administration, to ensure that the maximum assistance is provided to victims in a timely manner;
      • (iii) the viability of using alternative methods for assessing the ability of an applicant to repay a loan, including the credit score of the applicant on the day before the date on which the disaster for which the applicant is seeking assistance was declared;
      • (iv) methods, if any, for the Administration to expedite loss verification and loan processing of disaster loans during a major disaster for businesses affected by, and located in the area for which the President declared, the major disaster that are a major source of employment in the area or are vital to recovery efforts in the region (including providing debris removal services, manufactured housing, or building materials);
      • (v) legislative changes, if any, needed to implement findings from the Accelerated Disaster Response Initiative of the Administration; and
      • (vi) a description of how the Administration plans to integrate and coordinate the response to a major disaster with the technical assistance programs of the Administration; and
    • (B) the plans of the Administrator for implementing any recommendation made under subparagraph (A).

§ 636l. Semiannual report

Not later than 180 days after December 20, 2019 , and semiannually thereafter, the President shall submit to the Committee on Small Business and Entrepreneurship and the Committee on Appropriations of the Senate and the Committee on Small Business and the Committee on Appropriations of the House of Representatives a report on the number of loans made under the Military Reservist Economic Injury Disaster Loan program and the dollar volume of those loans. The report shall contain the subsidy rate of the disaster loan program as authorized under section 636(b) of this title with the loans made under the Military Reservist Economic Injury Disaster Loan program and without those loans included.

§ 637. Additional powers

• (a)
  • (1) It shall be the duty of the Administration and it is hereby empowered, whenever it determines such action is necessary or appropriate—
    • (A) to enter into contracts with the United States Government and any department, agency, or officer thereof having procurement powers obligating the Administration to furnish articles, equipment, supplies, services, or materials to the Government or to perform construction work for the Government. In any case in which the Administration certifies to any officer of the Government having procurement powers that the Administration is competent and responsible to perform any specific Government procurement contract to be let by any such officer, such officer shall be authorized in his discretion to let such procurement contract to the Administration upon such terms and conditions as may be agreed upon between the Administration and the procurement officer. Whenever the Administration and such procurement officer fail to agree, the matter shall be submitted for determination to the Secretary or the head of the appropriate department or agency by the Administrator. Not later than 5 days from the date the Administration is notified of a procurement officer’s adverse decision, the Administration may notify the contracting officer of the intent to appeal such adverse decision, and within 15 days of such date the Administrator shall file a written request for a reconsideration of the adverse decision with the Secretary of the department or agency head. For the purposes of this subparagraph, a procurement officer’s adverse decision includes a decision not to make available for award pursuant to this subsection a particular procurement requirement or the failure to agree on the terms and conditions of a contract to be awarded noncompetitively under the authority of this subsection. Upon receipt of the notice of intent to appeal, the Secretary of the department or the agency head shall suspend further action regarding the procurement until a written decision on the Administrator’s request for reconsideration has been issued by such Secretary or agency head, unless such officer makes a written determination that urgent and compelling circumstances which significantly affect interests of the United States will not permit waiting for a reconsideration of the adverse decision. If the Administrator’s request for reconsideration is denied, the Secretary of the department or agency head shall specify the reasons why the selected firm was determined to be incapable to perform the procurement requirement, and the findings supporting such determination, which shall be made a part of the contract file for the requirement. A contract may not be awarded under this subsection if the award of the contract would result in a cost to the awarding agency which exceeds a fair market price;
    • (B) to arrange for the performance of such procurement contracts by negotiating or otherwise letting subcontracts to socially and economically disadvantaged small business concerns for construction work, services, or the manufacture, supply, assembly of such articles, equipment, supplies, materials, or parts thereof, or servicing or processing in connection therewith, or such management services as may be necessary to enable the Administration to perform such contracts;
    • (C) to make an award to a small business concern owned and controlled by socially and economically disadvantaged individuals which has completed its period of Program Participation as prescribed by section 636(j)(15) of this title , if—
      • (i) the contract will be awarded as a result of an offer (including price) submitted in response to a published solicitation relating to a competition conducted pursuant to subparagraph (D); and
      • (ii) the prospective contract awardee was a Program Participant eligible for award of the contract on the date specified for receipt of offers contained in the contract solicitation; and
    • (D)
      • (i) A contract opportunity offered for award pursuant to this subsection shall be awarded on the basis of competition restricted to eligible Program Participants if—
        • (I) there is a reasonable expectation that at least two eligible Program Participants will submit offers and that award can be made at a fair market price, and
        • (II) the anticipated award price of the contract (including options) will exceed $5,000,000 in the case of a contract opportunity assigned a standard industrial classification code for manufacturing and $3,000,000 (including options) in the case of all other contract opportunities.
      • (ii) The Associate Administrator for Minority Small Business and Capital Ownership Development, on a nondelegable basis, is authorized to approve a request from an agency to award a contract opportunity under this subsection on the basis of a competition restricted to eligible Program Participants even if the anticipated award price is not expected to exceed the dollar amounts specified in clause (i)(II). Such approvals shall be granted only on a limited basis.
  • (2) Notwithstanding subsections (a), (b), and (e) of section 3131 of title 40 , no small business concern shall be required to provide any amount of any bond as a condition of receiving any subcontract under this subsection if the Administrator determines that such amount is inappropriate for such concern in performing such contract: Provided , That the Administrator shall exercise the authority granted by the paragraph only if—
    • (A) the Administration takes such measures as it deems appropriate for the protection of persons furnishing materials and labor to a small business receiving any benefit pursuant to this paragraph;
    • (B) the Administration assists, insofar as practicable, a small business receiving the benefits of this paragraph to develop, within a reasonable period of time, such financial and other capability as may be needed to obtain such bonds as the Administration may subsequently require for the successful completion of any program conducted under the authority of this subsection;
    • (C) the Administration finds that such small business is unable to obtain the requisite bond or bonds from a surety and that no surety is willing to issue bond or bonds subject to the guarantee provisions of Title IV of the Small Business Investment Act of 1958 [ 15 U.S.C. 692 et seq.]; and
    • (D) the small business is determined to be a start-up concern and such concern has not been participating in any program conducted under the authority of this subsection for a period exceeding one year.
  • (3)
    • (A) Any Program Participant selected by the Administration to perform a contract to be let noncompetitively pursuant to this subsection shall, when practicable, participate in any negotiation of the terms and conditions of such contract.
    • (B)
      • (i) For purposes of paragraph (1) a “fair market price” shall be determined by the agency offering the procurement requirement to the Administration, in accordance with clauses (ii) and (iii).
      • (ii) The estimate of a current fair market price for a new procurement requirement, or a requirement that does not have a satisfactory procurement history, shall be derived from a price or cost analysis. Such analysis may take into account prevailing market conditions, commercial prices for similar products or services, or data obtained from any other agency. Such analysis shall consider such cost or pricing data as may be timely submitted by the Administration.
      • (iii) The estimate of a current fair market price for a procurement requirement that has a satisfactory procurement history shall be based on recent award prices adjusted to insure comparability. Such adjustments shall take into account differences in quantities, performance times, plans, specifications, transportation costs, packaging and packing costs, labor and materials costs, overhead costs, and any other additional costs which may be deemed appropriate.
    • (C) An agency offering a procurement requirement for potential award pursuant to this subsection shall, upon the request of the Administration, promptly submit to the Administration a written statement detailing the method used by the agency to estimate the current fair market price for such contract, identifying the information, studies, analyses, and other data used by such agency. The agency’s estimate of the current fair market price (and any supporting data furnished to the Administration) shall not be disclosed to any potential offeror (other than the Administration).
    • (D) A small business concern selected by the Administration to perform or negotiate a contract to be let pursuant to this subsection may request the Administration to protest the agency’s estimate of the fair market price for such contract pursuant to paragraph (1)(A).
  • (4)
    • (A) For purposes of this section, the term “socially and economically disadvantaged small business concern” means any small business concern which meets the requirements of subparagraph (B) and—
      • (i) which is at least 51 per centum unconditionally owned by—
        • (I) one or more socially and economically disadvantaged individuals,
        • (II) an economically disadvantaged Indian tribe (or a wholly owned business entity of such tribe), or
        • (III) an economically disadvantaged Native Hawaiian organization, or
      • (ii) in the case of any publicly owned business, at least 51 per centum of the stock of which is unconditionally owned by—
        • (I) one or more socially and economically disadvantaged individuals,
        • (II) an economically disadvantaged Indian tribe (or a wholly owned business entity of such tribe), or
        • (III) an economically disadvantaged Native Hawaiian organization.
    • (B) A small business concern meets the requirements of this subparagraph if the management and daily business operations of such small business concern are controlled by one or more—
      • (i) socially and economically disadvantaged individuals described in subparagraph (A)(i)(I) or subparagraph (A)(ii)(I),
      • (ii) members of an economically disadvantaged Indian tribe described in subparagraph (A)(i)(II) or subparagraph (A)(ii)(II), or
      • (iii) Native Hawaiian organizations described in subparagraph (A)(i)(III) or subparagraph (A)(ii)(III).
    • (C) Each Program Participant shall certify, on an annual basis, that it meets the requirements of this paragraph regarding ownership and control.
  • (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.
  • (6)
    • (A) 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. In determining the degree of diminished credit and capital opportunities the Administration shall consider, but not be limited to, the assets and net worth of such socially disadvantaged individual. In determining the economic disadvantage of an Indian tribe, the Administration shall consider, where available, information such as the following: the per capita income of members of the tribe excluding judgment awards, the percentage of the local Indian population below the poverty level, and the tribe’s access to capital markets.
    • (B) Each Program Participant shall annually submit to the Administration—
      • (i) a personal financial statement for each disadvantaged owner;
      • (ii) a record of all payments made by the Program Participant to each of its disadvantaged owners or to any person or entity affiliated with such owners; and
      • (iii) such other information as the Administration may deem necessary to make the determinations required by this paragraph.
    • (C)
      • (i) Whenever, on the basis of information provided by a Program Participant pursuant to subparagraph (B) or otherwise, the Administration has reason to believe that the standards to establish economic disadvantage pursuant to subparagraph (A) have not been met, the Administration shall conduct a review to determine whether such Program Participant and its disadvantaged owners continue to be impaired in their ability to compete in the free enterprise system due to diminished capital and credit opportunities when compared to other concerns in the same business area, which are not socially disadvantaged.
      • (ii) If the Administration determines, pursuant to such review, that a Program Participant and its disadvantaged owners are no longer economically disadvantaged for the purpose of receiving assistance under this subsection, the Program Participant shall be graduated pursuant to section 636(j)(10)(G) of this title subject to the right to a hearing as provided for under paragraph (9).
    • (D)
      • (i) Whenever, on the basis of information provided by a Program Participant pursuant to subparagraph (B) or otherwise, the Administration has reason to believe that the amount of funds or other assets withdrawn from a Program Participant for the personal benefit of its disadvantaged owners or any person or entity affiliated with such owners may have been unduly excessive, the Administration shall conduct a review to determine whether such withdrawal of funds or other assets was detrimental to the achievement of the targets, objectives, and goals contained in such Program Participant’s business plan.
      • (ii) If the Administration determines, pursuant to such review, that funds or other assets have been withdrawn to the detriment of the Program Participant’s business, the Administration shall—
        • (I) initiate a proceeding to terminate the Program Participant pursuant to section 636(j)(10)(F) of this title , subject to the right to a hearing under paragraph (9); or
        • (II) require an appropriate reinvestment of funds or other assets and such other steps as the Administration may deem necessary to ensure the protection of the concern.
    • (E) Whenever the Administration computes personal net worth for any purpose under this paragraph, it shall exclude from such computation—
      • (i) the value of investments that disadvantaged owners have in their concerns, except that such value shall be taken into account under this paragraph when comparing such concerns to other concerns in the same business area that are owned by other than socially disadvantaged persons;
      • (ii) the equity that disadvantaged owners have in their primary personal residences, except that any portion of such equity that is attributable to unduly excessive withdrawals from a Program Participant or a concern applying for program participation shall be taken into account.
  • (7)
    • (A) No small business concern shall be deemed eligible for any assistance pursuant to this subsection unless the Administration determines that with contract, financial, technical, and management support the small business concern will be able to perform contracts which may be awarded to such concern under paragraph (1)(C) and has reasonable prospects for success in competing in the private sector.
    • (B) Limitations established by the Administration in its regulations and procedures restricting the award of contracts pursuant to this subsection to a limited number of standard industrial classification codes in an approved business plan shall not be applied in a manner that inhibits the logical business progression by a participating small business concern into areas of industrial endeavor where such concern has the potential for success.
  • (8) All determinations made pursuant to paragraph (5) with respect to whether a group has been subjected to prejudice or bias shall be made by the Administrator after consultation with the Associate Administrator for Minority Small Business and Capital Ownership Development. All other determinations made pursuant to paragraphs (4), (5), (6), and (7) shall be made by the Associate Administrator for Minority Small Business and Capital Ownership Development under the supervision of, and responsible to, the Administrator.
  • (9)
    • (A) Subject to the provisions of subparagraph (E), the Administration, prior to taking any action described in subparagraph (B), shall provide the small business concern that is the subject of such action, an opportunity for a hearing on the record, in accordance with chapter 5 of title 5.
    • (B) The actions referred to in subparagraph (A) are—
      • (i) denial of program admission based upon a negative determination pursuant to paragraph (4), (5), or (6);
      • (ii) a termination pursuant to section 636(j)(10)(F) of this title ;
      • (iii) a graduation pursuant to section 636(j)(10)(G) of this title ; and
      • (iv) the denial of a request to issue a waiver pursuant to paragraph (21)(B).
    • (C) The Administration’s proposed action, in any proceeding conducted under the authority of this paragraph, shall be sustained unless it is found to be arbitrary, capricious, or contrary to law.
    • (D) A decision rendered pursuant to this paragraph shall be the final decision of the Administration and shall be binding upon the Administration and those within its employ.
    • (E) The adjudicator selected to preside over a proceeding conducted under the authority of this paragraph shall decline to accept jurisdiction over any matter that—
      • (i) does not, on its face, allege facts that, if proven to be true, would warrant reversal or modification of the Administration’s position;
      • (ii) is untimely filed;
      • (iii) is not filed in accordance with the rules of procedure governing such proceedings; or
      • (iv) has been decided by or is the subject of an adjudication before a court of competent jurisdiction over such matters.
    • (F) Proceedings conducted pursuant to the authority of this paragraph shall be completed and a decision rendered, insofar as practicable, within ninety days after a petition for a hearing is filed with the adjudicating office.
  • (10) The Administration shall develop and implement an outreach program to inform and recruit small business concerns to apply for eligibility for assistance under this subsection. Such program shall make a sustained and substantial effort to solicit applications for certification from small business concerns located in areas of concentrated unemployment or underemployment or within labor surplus areas and within States having relatively few Program Participants and from small disadvantaged business concerns in industry categories that have not substantially participated in the award of contracts let under the authority of this subsection.
  • (11) To the maximum extent practicable, construction subcontracts awarded by the Administration pursuant to this subsection shall be awarded within the county or State where the work is to be performed.
  • (12)
    • (A) The Administration shall require each concern eligible to receive subcontracts pursuant to this subsection to annually prepare and submit to the Administration a capability statement. Such statement shall briefly describe such concern’s various contract performance capabilities and shall contain the name and telephone number of the Business Opportunity Specialist assigned such concern. The Administration shall separate such statements by those primarily dependent upon local contract support and those primarily requiring a national marketing effort. Statements primarily dependent upon local contract support shall be disseminated to appropriate buying activities in the marketing area of the concern. The remaining statements shall be disseminated to the Directors of Small and Disadvantaged Business Utilization for the appropriate agencies who shall further distribute such statements to buying activities with such agencies that may purchase the types of items or services described on the capability statements.
    • (B) Contracting activities receiving capability statements shall, within 60 days after receipt, contact the relevant Business Opportunity Specialist to indicate the number, type, and approximate dollar value of contract opportunities that such activities may be awarding over the succeeding 12-month period and which may be appropriate to consider for award to those concerns for which it has received capability statements.
    • (C) Each executive agency reporting to the Federal Procurement Data System contract actions with an aggregate value in excess of $50,000,000 in fiscal year 1988, or in any succeeding fiscal year, shall prepare a forecast of expected contract opportunities or classes of contract opportunities for the next and succeeding fiscal years that small business concerns, including those owned and controlled by socially and economically disadvantaged individuals, are capable of performing. Such forecast shall be periodically revised during such year. To the extent such information is available, the agency forecasts shall specify:
      • (i) The approximate number of individual contract opportunities (and the number of opportunities within a class).
      • (ii) The approximate dollar value, or range of dollar values, for each contract opportunity or class of contract opportunities.
      • (iii) The anticipated time (by fiscal year quarter) for the issuance of a procurement request.
      • (iv) The activity responsible for the award and administration of the contract.
    • (D) The head of each executive agency subject to the provisions of subparagraph (C) shall within 10 days of completion furnish such forecasts to—
      • (i) the Director of the Office of Small and Disadvantaged Business Utilization established pursuant to section 644(k) of this title for such agency; and
      • (ii) the Administrator.
    • (E) The information reported pursuant to subparagraph (D) may be limited to classes of items and services for which there are substantial annual purchases.
    • (F) Such forecasts shall be available to small business concerns.
  • (13) For purposes of this subsection, the term “Indian tribe” means any Indian tribe, band, nation, or other organized group or community of Indians, including any Alaska Native village or regional or village corporation (within the meaning of the Alaska Native Claims Settlement Act [ 43 U.S.C. 1601 et seq.]) which—
    • (A) is recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians, or
    • (B) is recognized as such by the State in which such tribe, band, nation, group, or community resides.
  • (14) A concern may not be awarded a contract under this subsection as a small business concern unless the concern agrees to satisfy the requirements of section 657s of this title .
  • (15) For purposes of this subsection, the term “Native Hawaiian Organization” means any community service organization serving Native Hawaiians in the State of Hawaii which—
    • (A) is a nonprofit corporation that has filed articles of incorporation with the director (or the designee thereof) of the Hawaii Department of Commerce and Consumer Affairs, or any successor agency,
    • (B) is controlled by Native Hawaiians, and
    • (C) whose business activities will principally benefit such Native Hawaiians.
  • (16)
    • (A) The Administration shall award sole source contracts under this section to any small business concern recommended by the procuring agency offering the contract opportunity if—
      • (i) the Program Participant is determined to be a responsible contractor with respect to performance of such contract opportunity;
      • (ii) the award of such contract would be consistent with the Program Participant’s business plan; and
      • (iii) the award of the contract would not result in the Program Participant exceeding the requirements established by section 636(j)(10)(I) of this title .
    • (B) To the maximum extent practicable, the Administration shall promote the equitable geographic distribution of sole source contracts awarded pursuant to this subsection.
  • (17)
    • (A) An otherwise responsible business concern that is in compliance with the requirements of subparagraph (B) shall not be denied the opportunity to submit and have considered its offer for any procurement contract, which contract has as its principal purpose the supply of a product to be let pursuant to this subsection, subsection (m), section 644(a) of this title , section 657a of this title , or section 657f of this title , solely because such concern is other than the actual manufacturer or processor of the product to be supplied under the contract.
    • (B) To be in compliance with the requirements referred to in subparagraph (A), such a business concern shall—
      • (i) be primarily engaged in the wholesale or retail trade;
      • (ii) be a small business concern under the numerical size standard for the Standard Industrial Classification Code assigned to the contract solicitation on which the offer is being made;
      • (iii) be a regular dealer, as defined pursuant to section 35(a) 1 1 See References in Text note below. of title 41 (popularly referred to as the Walsh-Healey Public Contracts Act), in the product to be offered the Government or be specifically exempted from such section by section 636(j)(13)(C) of this title ; and
      • (iv) represent that it will supply the product of a domestic small business manufacturer or processor, unless a waiver of such requirement is granted—
        • (I) by the Administrator, after reviewing a determination by the contracting officer that no small business manufacturer or processor can reasonably be expected to offer a product meeting the specifications (including period for performance) required of an offeror by the solicitation; or
        • (II) by the Administrator for a product (or class of products), after determining that no small business manufacturer or processor is available to participate in the Federal procurement market.
    • (C) This paragraph shall not apply to a contract that has as its principal purpose the acquisition of services or construction.
  • (18)
    • (A) No person within the employ of the Administration shall, during the term of such employment and for a period of two years after such employment has been terminated, engage in any activity or transaction specified in subparagraph (B) with respect to any Program Participant during such person’s term of employment, if such person participated personally (either directly or indirectly) in decision-making responsibilities relating to such Program Participant or with respect to the administration of any assistance provided to Program Participants generally under this subsection, section 636(j)(10) of this title , or section 636(a)(20) of this title .
    • (B) The activities and transactions prohibited by subparagraph (A) include—
      • (i) the buying, selling, or receiving (except by inheritance) of any legal or beneficial ownership of stock or any other ownership interest or the right to acquire any such interest;
      • (ii) the entering into or execution of any written or oral agreement (whether or not legally enforceable) to purchase or otherwise obtain any right or interest described in clause (i); or
      • (iii) the receipt of any other benefit or right that may be an incident of ownership.
    • (C)
      • (i) The employees designated in clause (ii) shall annually submit a written certification to the Administration regarding compliance with the requirements of this paragraph.
      • (ii) The employees referred to in clause (i) are—
        • (I) regional administrators;
        • (II) district directors;
        • (III) the Associate Administrator for Minority Small Business and Capital Ownership Development;
        • (IV) employees whose principal duties relate to the award of contracts or the provision of other assistance pursuant to this subsection or section 636(j)(10) of this title ; and
        • (V) such other employees as the Administrator may deem appropriate.
      • (iii) Any present or former employee of the Administration who violates this paragraph shall be subject to a civil penalty, assessed by the Attorney General, that shall not exceed 300 per centum of the maximum amount of gain such employee realized or could have realized as a result of engaging in those activities and transactions prescribed 2 2 So in original. Probably should be “proscribed”. by subparagraph (B).
      • (iv) In addition to any other remedy or sanction provided for under law or regulation, any person who falsely certifies pursuant to clause (i) shall be subject to a civil penalty under the Program Fraud Civil Remedies Act of 1986 ( 31 U.S.C. 3801–381 2).
  • (19)
    • (A) Any employee of the Administration who has authority to take, direct others to take, recommend, or approve any action with respect to any program or activity conducted pursuant to this subsection or section 636(j) of this title , shall not, with respect to any such action, exercise or threaten to exercise such authority on the basis of the political activity or affiliation of any party. Employees of the Administration shall expeditiously report to the Inspector General of the Administration any such action for which such employee’s participation has been solicitated 3 3 So in original. Probably should be “solicited”. or directed.
    • (B) Any employee who willfully and knowingly violates subparagraph (A) shall be subject to disciplinary action which may consist of separation from service, reduction in grade, suspension, or reprimand.
    • (C) Subparagraph (A) shall not apply to any action taken as a penalty or other enforcement of a violation of any law, rule, or regulation prohibiting or restricting political activity.
    • (D) The prohibitions of subparagraph (A), and remedial measures provided for under subparagraphs (B) and (C) with regard to such prohibitions, shall be in addition to, and not in lieu of, any other prohibitions, measures or liabilities that may arise under any other provision of law.
  • (20)
    • (A) Small business concerns participating in the Program under section 636(j)(10) of this title and eligible to receive contracts pursuant to this section shall semiannually report to their assigned Business Opportunity Specialist the following:
      • (i) A listing of any agents, representatives, attorneys, accountants, consultants, and other parties (other than employees) receiving compensation to assist in obtaining a Federal contract for such Program Participant.
      • (ii) The amount of compensation received by any person listed under clause (i) during the relevant reporting period and a description of the activities performed in return for such compensation.
    • (B) The Business Opportunity Specialist shall promptly review and forward such report to the Associate Administrator for Minority Small Business and Capital Ownership Development. Any report that raises a suspicion of improper activity shall be reported immediately to the Inspector General of the Administration.
    • (C) The failure to submit a report pursuant to the requirements of this subsection and applicable regulations shall be considered “good cause” for the initiation of a termination proceeding pursuant to section 636(j)(10)(F) of this title .
  • (21)
    • (A) Subject to the provisions of subparagraph (B), a contract (including options) awarded pursuant to this subsection shall be performed by the concern that initially received such contract. Notwithstanding the provisions of the preceding sentence, if the owner or owners upon whom eligibility was based relinquish ownership or control of such concern, or enter into any agreement to relinquish such ownership or control, such contract or option shall be terminated for the convenience of the Government, except that no repurchase costs or other damages may be assessed against such concerns due solely to the provisions of this subparagraph.
    • (B) The Administrator may, on a nondelegable basis, waive the requirements of subparagraph (A) only if one of the following conditions exist:
      • (i) When it is necessary for the owners of the concern to surrender partial control of such concern on a temporary basis in order to obtain equity financing.
      • (ii) The head of the contracting agency for which the contract is being performed certifies that termination of the contract would severely impair attainment of the agency’s program objectives or missions;
      • (iii) Ownership and control of the concern that is performing the contract will pass to another small business concern that is a program participant, but only if the acquiring firm would otherwise be eligible to receive the award directly pursuant to subsection (a);
      • (iv) The individuals upon whom eligibility was based are no longer able to exercise control of the concern due to incapacity or death; or
      • (v) When, in order to raise equity capital, it is necessary for the disadvantaged owners of the concern to relinquish ownership of a majority of the voting stock of such concern, but only if—
        • (I) such concern has exited the Capital Ownership Development Program;
        • (II) the disadvantaged owners will maintain ownership of the largest single outstanding block of voting stock (including stock held by affiliated parties); and
        • (III) the disadvantaged owners will maintain control of daily business operations.
    • (C) The Administrator may waive the requirements of subparagraph (A) if—
      • (i) in the case of subparagraph (B) (i), (ii) and (iv), he is requested to do so prior to the actual relinquishment of ownership or control; and
      • (ii) in the case of subparagraph (B)(iii), he is requested to do so as soon as possible after the incapacity or death occurs.
    • (D) Concerns performing contracts awarded pursuant to this subsection shall be required to notify the Administration immediately upon entering an agreement (either oral or in writing) to transfer all or part of its stock or other ownership interest to any other party.
    • (E) Notwithstanding any other provision of law, for the purposes of determining ownership and control of a concern under this section, any potential ownership interests held by investment companies licensed under the Small Business Investment Act of 1958 [ 15 U.S.C. 661 et seq.] shall be treated in the same manner as interests held by the individuals upon whom eligibility is based.
• (b) It shall also be the duty of the Administration and it is empowered, whenever it determines such action is necessary—
  • (1)
    • (A) to provide—
      • (i) technical, managerial, and informational aids to small business concerns—
        • (I) by advising and counseling on matters in connection with Government procurement and policies, principles, and practices of good management;
        • (II) by cooperating and advising with—
        • (III) by maintaining a clearinghouse for information on managing, financing, and operating small business enterprises; and
        • (IV) by disseminating such information, including through recognition events, and by other activities that the Administration determines to be appropriate; and
      • (ii) through cooperation with a profit-making concern (referred to in this paragraph as a “cosponsor”), training, information, and education to small business concerns, except that the Administration shall—
        • (I) take such actions as it determines to be appropriate to ensure that—
        • (II) develop an agreement, executed on behalf of the Administration by an employee of the Administration in Washington, the District of Columbia, that provides, at a minimum, that—
    • (B) To establish, conduct, and publicize, and to recruit, select, and train volunteers for (and to enter into contracts, grants, or cooperative agreements therefor), volunteer programs, including a Service Corps of Retired Executives (SCORE) and an Active Corps of Executive (ACE) for the purposes of subparagraph (A). To facilitate the implementation of such volunteer programs the Administration shall maintain at its headquarters and pay the salaries, benefits, and expenses of a volunteer and professional staff to manage and oversee the program. Any such payments made pursuant to this subparagraph shall be effective only to such extent or in such amounts as are provided in advance in appropriation Acts. Notwithstanding any other provision of law, SCORE may solicit cash and in-kind contributions from the private sector to be used to carry out its functions under this chapter, and may use payments made by the Administration pursuant to this subparagraph for such solicitation and the management of the contributions received.
    • (C) To allow any individual or group of persons participating with it in furtherance of the purposes of subparagraphs (A) and (B) to use the Administration’s office facilities and related material and services as the Administration deems appropriate, including clerical and stenographic services:
      • (i) such volunteers, while carrying out activities under this paragraph shall be deemed Federal employees for the purposes of the Federal tort claims provisions in title 28; and for the purposes of subchapter I of chapter 81 of title 5 (relative to compensation to Federal employees for work injuries) shall be deemed civil employees of the United States within the meaning of the term “employee” as defined in section 8101 of title 5 , and the provisions of that subchapter shall apply except that in computing compensation benefits for disability or death, the monthly pay of a volunteer shall be deemed that received under the entrance salary for a grade GS–11 employee;
      • (ii) the Administrator is authorized to reimburse such volunteers for all necessary out-of-pocket expenses incident to their provision of services under this chapter, or in connection with attendance at meetings sponsored by the Administration, or for the cost of malpractice insurance, as the Administrator shall determine, in accordance with regulations which he or she shall prescribe, and, while they are carrying out such activities away from their homes or regular places of business, for travel expenses (including per diem in lieu of subsistence) as authorized by section 5703 of title 5 for individuals serving without pay; and
      • (iii) such volunteers shall in no way provide services to a client of such Administration with a delinquent loan outstanding, except upon a specific request signed by such client for assistance in connection with such matter.
    • (D) Notwithstanding any other provision of law, no payment for supportive services or reimbursement of out-of-pocket expenses made to persons serving pursuant to this paragraph shall be subject to any tax or charge or be treated as wages or compensation for the purposes of unemployment, disability, retirement, public assistance, or similar benefit payments, or minimum wage laws.
    • (E) In carrying out its functions under subparagraph (A), to make grants (including contracts and cooperative agreements) to any public or private institution of higher education for the establishment and operation of a small business institute, which shall be used to provide business counseling and assistance to small business concerns through the activities of students enrolled at the institution, which students shall be entitled to receive educational credits for their activities.
    • (F) Notwithstanding any other provision of law and pursuant to regulations which the Administrator shall prescribe, counsel may be employed and counsel fees, court costs, bail, and other expenses incidental to the defense of volunteers may be paid in judicial or administrative proceedings arising directly out of the performance of activities pursuant to this paragraph, to which volunteers have been made parties.
    • (G) In carrying out its functions under this chapter and to carry out the activities authorized by title IV of the Women’s Business Ownership Act of 1988 [ 15 U.S.C. 7101 et seq.], the Administration is authorized to accept, in the name of the Administration, and employ or dispose of in furtherance of the purposes of this chapter, any money or property, real, personal, or mixed, tangible, or intangible, received by gift, devise, bequest, or otherwise; and, further, to accept gratuitous services and facilities.
  • (2) to make a complete inventory of all productive facilities of small-business concerns or to arrange for such inventory to be made by any other governmental agency which has the facilities. In making any such inventory, the appropriate agencies in the several States may be requested to furnish an inventory of the productive facilities of small-business concerns in each respective State if such an inventory is available or in prospect;
  • (3) to coordinate and to ascertain the means by which the productive capacity of small-business concerns can be most effectively utilized;
  • (4) to consult and cooperate with officers of the Government having procurement or property disposal powers, in order to utilize the potential productive capacity of plants operated by small-business concerns;
  • (5) to obtain information as to methods and practices which Government prime contractors utilize in letting subcontracts and to take action to encourage the letting of subcontracts by prime contractors to small-business concerns at prices and on conditions and terms which are fair and equitable;
  • (6) to determine within any industry the concerns, firms, persons, corporations, partnerships, cooperatives, or other business enterprises which are to be designated “small-business concerns” for the purpose of effectuating the provisions of this chapter. To carry out this purpose the Administrator, when requested to do so, shall issue in response to each such request an appropriate certificate certifying an individual concern as a “small-business concern” in accordance with the criteria expressed in this chapter. Any such certificate shall be subject to revocation when the concern covered thereby ceases to be a “small-business concern”. Offices of the Government having procurement or lending powers, or engaging in the disposal of Federal property or allocating materials or supplies, or promulgating regulations affecting the distribution of materials or supplies, shall accept as conclusive the Administration’s determination as to which enterprises are to be designated “small-business concerns”, as authorized and directed under this paragraph;
  • (7)
    • (A) To certify to Government procurement officers, and officers engaged in the sale and disposal of Federal property, with respect to all elements of responsibility, including, but not limited to, capability, competency, capacity, credit, integrity, perseverance, and tenacity, of any small business concern or group of such concerns to receive and perform a specific Government contract. A Government procurement officer or an officer engaged in the sale and disposal of Federal property may not, for any reason specified in the preceding sentence preclude any small business concern or group of such concerns from being awarded such contract without referring the matter for a final disposition to the Administration.
    • (B) If a Government procurement officer finds that an otherwise qualified small business concern may be ineligible due to the provisions of section 35(a) 1 of title 41, he shall notify the Administration in writing of such finding. The Administration shall review such finding and shall either dismiss it and certify the small business concern to be an eligible Government contractor for a specific Government contract or if it concurs in the finding, forward the matter to the Secretary of Labor for final disposition, in which case the Administration may certify the small business concern only if the Secretary of Labor finds the small business concern not to be in violation.
    • (C) In any case in which a small business concern or group of such concerns has been certified by the Administration pursuant to (A) or (B) to be a responsible or eligible Government contractor as to a specific Government contract, the officers of the Government having procurement or property disposal powers are directed to accept such certification as conclusive, and shall let such Government contract to such concern or group of concerns without requiring it to meet any other requirement of responsibility or eligibility. Notwithstanding the first sentence of this subparagraph, the Administration may not establish an exemption from referral or notification or refuse to accept a referral or notification from a Government procurement officer made pursuant to subparagraph (A) or (B) of this paragraph, but nothing in this paragraph shall require the processing of an application for certification if the small business concern to which the referral pertains declines to have the application processed.
  • (8) to obtain from any Federal department, establishment, or agency engaged in procurement or in the financing of procurement or production such reports concerning the letting of contracts and subcontracts and the making of loans to business concerns as it may deem pertinent in carrying out its functions under this chapter;
  • (9) to obtain from any Federal department, establishment, or agency engaged in the disposal of Federal property such reports concerning the solicitation of bids, time of sale, or otherwise as it may deem pertinent in carrying out its functions under this chapter;
  • (10) to obtain from suppliers of materials information pertaining to the method of filling orders and the bases for allocating their supply, whenever it appears that any small business is unable to obtain materials from its normal sources;
  • (11) to make studies and recommendations to the appropriate Federal agencies to insure that a fair proportion of the total purchases and contracts for property and services for the Government be placed with small-business enterprises, to insure that a fair proportion of Government contracts for research and development be placed with small-business concerns, to insure that a fair proportion of the total sales of Government property be made to small-business concerns, and to insure a fair and equitable share of materials, supplies, and equipment to small-business concerns;
  • (12) to consult and cooperate with all Government agencies for the purpose of insuring that small-business concerns shall receive fair and reasonable treatment from such agencies;
  • (13) to establish such advisory boards and committees as may be necessary to achieve the purposes of this chapter and of the Small Business Investment Act of 1958 [ 15 U.S.C. 661 et seq.]; to call meetings of such boards and committees from time to time; to pay the transportation expenses and a per diem allowance in accordance with section 5703 of title 5 to the members of such boards and committees for travel and subsistence expenses incurred at the request of the Administration in connection with travel to points more than fifty miles distant from the homes of such members in attending the meeting of such boards and committees; and to rent temporarily, within the District of Columbia or elsewhere, such hotel or other accommodations as are needed to facilitate the conduct of such meetings;
  • (14) to provide at the earliest practicable time such information and assistance as may be appropriate, including information concerning eligibility for loans under section 636(b)(3) of this title , to local public agencies (as defined in section 110(h) of the Housing Act of 1949 [ 42 U.S.C. 1460(h) ]) and to small-business concerns to be displaced by federally aided urban renewal projects in order to assist such small-business concerns in reestablishing their operations;
  • (15) to disseminate, without regard to the provisions of section 3204 of title 39 data and information, in such form as it shall deem appropriate, to public agencies, private organizations, and the general public;
  • (16) to make studies of matters materially affecting the competitive strength of small business, and of the effect on small business of Federal laws, programs, and regulations, and to make recommendations to the appropriate Federal agency or agencies for the adjustment of such programs and regulations to the needs of small business; and
  • (17) to make grants to, and enter into contracts and cooperative agreements with, educational institutions, private businesses, veterans’ nonprofit community-based organizations, and Federal, State, and local departments and agencies for the establishment and implementation of outreach programs for disabled veterans (as defined in section 4211(3) of title 38 ), veterans, and members of a reserve component of the Armed Forces.
• (c)
• (d)
  • (1) It is the policy of the United States that small business concerns, small business concerns owned and controlled by veterans, small business concerns owned and controlled by service-disabled veterans, qualified HUBZone small business concerns, small business concerns owned and controlled by socially and economically disadvantaged individuals, and small business concerns owned and controlled by women, shall have the maximum practicable opportunity to participate in the performance of contracts let by any Federal agency, including contracts and subcontracts for subsystems, assemblies, components, and related services for major systems. It is further the policy of the United States that its prime contractors establish procedures to ensure the timely payment of amounts due pursuant to the terms of their subcontracts with small business concerns, small business concerns owned and controlled by veterans, small business concerns owned and controlled by service-disabled veterans, qualified HUBZone small business concerns, small business concerns owned and controlled by socially and economically disadvantaged individuals, and small business concerns owned and controlled by women.
  • (2) The clause stated in paragraph (3) shall be included in all contracts let by any Federal agency except any contract which—
    • (A) does not exceed the simplified acquisition threshold;
    • (B) including all subcontracts under such contracts will be performed entirely outside of any State, territory, or possession of the United States, the District of Columbia, or the Commonwealth of Puerto Rico; or
    • (C) is for services which are personal in nature.
  • (3) The clause required by paragraph (2) shall be as follows:
    • “(A) It is the policy of the United States that small business concerns, small business concerns owned and controlled by veterans, small business concerns owned and controlled by service-disabled veterans, qualified HUBZone small business concerns, small business concerns owned and controlled by socially and economically disadvantaged individuals, and small business concerns owned and controlled by women shall have the maximum practicable opportunity to participate in the performance of contracts let by any Federal agency, including contracts and subcontracts for subsystems, assemblies, components, and related services for major systems. It is further the policy of the United States that its prime contractors establish procedures to ensure the timely payment of amounts due pursuant to the terms of their subcontracts with small business concerns, small business concerns owned and controlled by veterans, small business concerns owned and controlled by service-disabled veterans, qualified HUBZone small business concerns, small business concerns owned and controlled by socially and economically disadvantaged individuals, and small business concerns owned and controlled by women.
    • “(B) The contractor hereby agrees to carry out this policy in the awarding of subcontracts to the fullest extent consistent with the efficient performance of this contract. The contractor further agrees to cooperate in any studies or surveys as may be conducted by the United States Small Business Administration or the awarding agency of the United States as may be necessary to determine the extent of the contractor’s compliance with this clause.
    • “(C) As used in this contract, the term ‘small business concern’ shall mean a small business as defined pursuant to section 3 of the Small Business Act and relevant regulations promulgated pursuant thereto. The term ‘small business concern owned and controlled by socially and economically disadvantaged individuals’ shall mean a small business concern—
      • “(i) which is at least 51 per centum owned by one or more socially and economically disadvantaged individuals; or, in the case of any publicly owned business, at least 51 per centum of the stock of which is owned by one or more socially and economically disadvantaged individuals; and
      • “(ii) whose management and daily business operations are controlled by one or more of such individuals.
    • “(D) The term ‘small business concern owned and controlled by women’ shall mean a small business concern—
      • “(i) which is at least 51 per centum owned by one or more women; or, in the case of any publicly owned business, at least 51 per centum of the stock of which is owned by one or more women; and
      • “(ii) whose management and daily business operations are controlled by one or more women.
    • “(E) The term ‘small business concern owned and controlled by veterans’ shall mean a small business concern—
      • “(i) which is at least 51 per centum owned by one or more eligible veterans; or, in the case of any publicly owned business, at least 51 per centum of the stock of which is owned by one or more veterans; and
      • “(ii) whose management and daily business operations are controlled by such veterans. The contractor shall treat as veterans all individuals who are veterans within the meaning of the term under section 3(q) of the Small Business Act.
    • “(F) Contractors acting in good faith may rely on written representations by their subcontractors regarding their status as either a small business concern, small business concern owned and controlled by veterans, small business concern owned and controlled by service-disabled veterans, a small business concern owned and controlled by socially and economically disadvantaged individuals, or a small business concern owned and controlled by women.
    • “(G) In this contract, the term ‘qualified HUBZone small business concern’ has the meaning given that term in section 31(b) 4 4 So in original. Probably should be followed by “of the Small Business Act”. .
    • “(H) In this contract, the term ‘small business concern owned and controlled by service-disabled veterans’ has the meaning given that term in section 3(q) 4 .”
  • (4)
    • (A) Each solicitation of an offer for a contract to be let by a Federal agency which is to be awarded pursuant to the negotiated method of procurement and which may exceed $1,000,000, in the case of a contract for the construction of any public facility, or $500,000, in the case of all other contracts, shall contain a clause notifying potential offering companies of the provisions of this subsection relating to contracts awarded pursuant to the negotiated method of procurement.
    • (B) Before the award of any contract to be let, or any amendment or modification to any contract let, by any Federal agency which—
      • (i) is to be awarded, or was let, pursuant to the negotiated method of procurement,
      • (ii) is required to include the clause stated in paragraph (3),
      • (iii) may exceed $1,000,000 in the case of a contract for the construction of any public facility, or $500,000 in the case of all other contracts, and
      • (iv) which offers subcontracting possibilities,
    • (C) If, within the time limit prescribed in regulations of the Federal agency concerned, the apparent successful offeror fails to negotiate the subcontracting plan required by this paragraph, such offeror shall become ineligible to be awarded the contract. Prior compliance of the offeror with other such subcontracting plans shall be considered by the Federal agency in determining the responsibility of that offeror for the award of the contract.
    • (D) No contract shall be awarded to any offeror unless the procurement authority determines that the plan to be negotiated by the offeror pursuant to this paragraph provides the maximum practicable opportunity for small business concerns, qualified HUBZone small business concerns, small business concerns owned and controlled by veterans, small business concerns owned and controlled by service-disabled veterans, small business concerns owned and controlled by socially and economically disadvantaged individuals, and small business concerns owned and controlled by women to participate in the performance of the contract.
    • (E) Notwithstanding any other provision of law, every Federal agency, in order to encourage subcontracting opportunities for small business concerns, small business concerns owned and controlled by veterans, small business concerns owned and controlled by service-disabled veterans, qualified HUBZone small business concerns, and small business concerns owned and controlled by the socially and economically disadvantaged individuals as defined in paragraph (3) of this subsection and for small business concerns owned and controlled by women, is hereby authorized to provide such incentives as such Federal agency may deem appropriate in order to encourage such subcontracting opportunities as may be commensurate with the efficient and economical performance of the contract: Provided , That, this subparagraph shall apply only to contracts let pursuant to the negotiated method of procurement.
    • (F)
      • (i) Each contract subject to the requirements of this paragraph or paragraph (5) shall contain a clause for the payment of liquidated damages upon a finding that a prime contractor has failed to make a good faith effort to comply with the requirements imposed on such contractor by this subsection.
      • (ii) The contractor shall be afforded an opportunity to demonstrate a good faith effort regarding compliance prior to the contracting officer’s final decision regarding the imposition of damages and the amount thereof. The final decision of a contracting officer regarding the contractor’s obligation to pay such damages, or the amounts thereof, shall be subject to chapter 71 of title 41.
      • (iii) Each agency shall ensure that the goals offered by the apparent successful bidder or offeror are attainable in relation to—
        • (I) the subcontracting opportunities available to the contractor, commensurate with the efficient and economical performance of the contract;
        • (II) the pool of eligible subcontractors available to fulfill the subcontracting opportunities; and
        • (III) the actual performance of such contractor in fulfilling the subcontracting goals specified in prior plans.
    • (G) The following factors shall be designated by the Federal agency as significant factors for purposes of evaluating offers for a bundled contract where the head of the agency determines that the contract offers a significant opportunity for subcontracting:
      • (i) A factor that is based on the rate provided under the subcontracting plan for small business participation in the performance of the contract.
      • (ii) For the evaluation of past performance of an offeror, a factor that is based on the extent to which the offeror attained applicable goals for small business participation in the performance of contracts.
  • (5)
    • (A) Each solicitation of a bid for any contract to be let, or any amendment or modification to any contract let, by any Federal agency which—
      • (i) is to be awarded pursuant to the formal advertising method of procurement,
      • (ii) is required to contain the clause stated in paragraph (3) of this subsection,
      • (iii) may exceed $1,000,000 in the case of a contract for the construction of any public facility, or $500,000, in the case of all other contracts, and
      • (iv) offers subcontracting possibilities,
    • (B) If, within the time limit prescribed in regulations of the Federal agency concerned, the bidder selected to be awarded the contract fails to submit the subcontracting plan required by this paragraph, such bidder shall become ineligible to be awarded the contract. Prior compliance of the bidder with other such subcontracting plans shall be considered by the Federal agency in determining the responsibility of such bidder for the award of the contract. The subcontracting plan of the bidder awarded the contract shall be included in and made a material part of the contract.
  • (6) Each subcontracting plan required under paragraph (4) or (5) shall include—
    • (A) percentage goals for the utilization as subcontractors of small business concerns, small business concerns owned and controlled by veterans, small business concerns owned and controlled by service-disabled veterans, qualified HUBZone small business concerns, small business concerns owned and controlled by socially and economically disadvantaged individuals, and small business concerns owned and controlled by women;
    • (B) the name of an individual within the employ of the offeror or bidder who will administer the subcontracting program of the offeror or bidder and a description of the duties of such individual;
    • (C) a description of the efforts the offeror or bidder will take to assure that small business concerns, small business concerns owned and controlled by veterans, small business concerns owned and controlled by service-disabled veterans, qualified HUBZone small business concerns, small business concerns owned and controlled by socially and economically disadvantaged individuals, and small business concerns owned and controlled by women will have an equitable opportunity to compete for subcontracts;
    • (D) assurances that the offeror or bidder will include the clause required by paragraph (2) of this subsection in all subcontracts which offer further subcontracting opportunities, and that the offeror or bidder will require all subcontractors (except small business concerns) who receive subcontracts in excess of $1,000,000 in the case of a contract for the construction of any public facility, or in excess of $500,000 in the case of all other contracts, to adopt a plan similar to the plan required under paragraph (4) or (5), and assurances at a minimum that the offeror or bidder, and all subcontractors required to maintain subcontracting plans pursuant to this paragraph, will—
      • (i) review and approve subcontracting plans submitted by their subcontractors;
      • (ii) monitor subcontractor compliance with their approved subcontracting plans;
      • (iii) ensure that subcontracting reports are submitted by their subcontractors when required;
      • (iv) acknowledge receipt of their subcontractors’ reports;
      • (v) compare the performance of their subcontractors to subcontracting plans and goals; and
      • (vi) discuss performance with subcontractors when necessary to ensure their subcontractors make a good faith effort to comply with their subcontracting plans;
    • (E) assurances that the offeror or bidder will submit such periodic reports and cooperate in any studies or surveys as may be required by the Federal agency or the Administration in order to determine the extent of compliance by the offeror or bidder with the subcontracting plan;
    • (F) a recitation of the types of records the successful offeror or bidder will maintain to demonstrate procedures which have been adopted to comply with the requirements and goals set forth in this plan, including the establishment of source lists of small business concerns, small business concerns owned and controlled by veterans, small business concerns owned and controlled by service-disabled veterans, qualified HUBZone small business concerns, small business concerns owned and controlled by socially and economically disadvantaged individuals, and small business concerns owned and controlled by women; and efforts to identify and award subcontracts to such small business concerns;
    • (G) a recitation of the types of records the successful offeror or bidder will maintain to demonstrate that procedures have been adopted to substantiate the credit the successful offeror or bidder will elect to receive under paragraph (16)(A);
    • (H) a recitation of the types of records the successful offeror or bidder will maintain to demonstrate procedures which have been adopted to ensure subcontractors at all tiers comply with the requirements and goals set forth in the plan established in accordance with subparagraph (D) of this paragraph, including—
      • (i) the establishment of source lists of small business concerns, small business concerns owned and controlled by veterans, small business concerns owned and controlled by service-disabled veterans, qualified HUBZone small business concerns, small business concerns owned and controlled by socially and economically disadvantaged individuals, and small business concerns owned and controlled by women; and
      • (ii) efforts to identify and award subcontracts to such small business concerns; and
    • (I) a representation that the offeror or bidder will—
      • (i) make a good faith effort to acquire articles, equipment, supplies, services, or materials, or obtain the performance of construction work from the small business concerns used in preparing and submitting to the contracting agency the bid or proposal, in the same amount and quality used in preparing and submitting the bid or proposal; and
      • (ii) provide to the contracting officer a written explanation if the offeror or bidder fails to acquire articles, equipment, supplies, services, or materials or obtain the performance of construction work as described in clause (i).
  • (7) The head of the contracting agency shall ensure that—
    • (A) the agency collects and reports data on the extent to which contractors of the agency meet the goals and objectives set forth in subcontracting plans submitted pursuant to this subsection; and
    • (B) the agency periodically reviews data collected and reported pursuant to subparagraph (A) for the purpose of ensuring that such contractors comply in good faith with the requirements of this subsection and subcontracting plans submitted by the contractors pursuant to this subsection.
  • (8) The provisions of paragraphs (4), (5), and (6) shall not apply to offerors or bidders who are small business concerns.
  • (9) The failure of any contractor or subcontractor to comply in good faith with—
    • (A) the clause contained in paragraph (3) of this subsection,
    • (B) any plan required of such contractor pursuant to the authority of this subsection to be included in its contract or subcontract, or
    • (C) assurances provided under paragraph (6)(E),
  • (10) Nothing contained in this subsection shall be construed to supersede the requirements of Defense Manpower Policy Number 4A (32A CFR Chap. 1) or any successor policy.
  • (11) In the case of contracts within the provisions of paragraphs (4), (5), and (6), the Administration is authorized to—
    • (A) assist Federal agencies and businesses in complying with their responsibilities under the provisions of this subsection, including the formulation of subcontracting plans pursuant to paragraph (4);
    • (B) review any solicitation for any contract to be let pursuant to paragraphs (4) and (5) to determine the maximum practicable opportunity for small business concerns, small business concerns owned and controlled by veterans, small business concerns owned and controlled by service-disabled veterans, qualified HUBZone small business concerns, small business concerns owned and controlled by socially and economically disadvantaged individuals, and small business concerns owned and controlled by women to participate as subcontractors in the performance of any contract resulting from any solicitation, and to submit its findings, which shall be advisory in nature, to the appropriate Federal agency; and
    • (C) evaluate compliance with subcontracting plans as a supplement to evaluations performed by the contracting agency, either on a contract-by-contract basis or, in the case of contractors having multiple contracts, on an aggregate basis.
  • (12) For purposes of determining the attainment of a subcontract utilization goal under any subcontracting plan entered into with any executive agency pursuant to this subsection, a mentor firm providing development assistance to a protege firm under the pilot Mentor-Protege Program established pursuant to section 831 of the National Defense Authorization Act for Fiscal Year 1991 ( Public Law 101–510 ; 10 U.S.C. 2301 note [2302 note]) shall be granted credit for such assistance in accordance with subsection (g) of such section.
  • (13)
    • (A) In this paragraph, the term “covered contract” means a contract relating to which a prime contractor is required to develop a subcontracting plan under paragraph (4) or (5).
    • (B)
      • (i) A prime contractor for a covered contract shall notify in writing the contracting officer for the covered contract if the prime contractor pays a reduced price to a subcontractor for goods and services upon completion of the responsibilities of the subcontractor or the payment to a subcontractor is more than 90 days past due for goods or services provided for the covered contract for which the Federal agency has paid the prime contractor.
      • (ii) A prime contractor shall include the reason for the reduction in a payment to or failure to pay a subcontractor in any notice made under clause (i).
    • (C) A contracting officer for a covered contract shall consider the unjustified failure by a prime contractor to make a full or timely payment to a subcontractor in evaluating the performance of the prime contractor.
    • (D) If the contracting officer for a covered contract determines that a prime contractor has a history of unjustified, untimely payments to contractors, the contracting officer shall record the identity of the contractor in accordance with the regulations promulgated under subparagraph (E).
    • (E) Not later than 1 year after September 27, 2010 , the Federal Acquisition Regulatory Council established under section 1302(a) of title 41 shall amend the Federal Acquisition Regulation issued under section 1303(a) of title 41 to—
      • (i) describe the circumstances under which a contractor may be determined to have a history of unjustified, untimely payments to subcontractors;
      • (ii) establish a process for contracting officers to record the identity of a contractor described in clause (i); and
      • (iii) require the identity of a contractor described in clause (i) to be incorporated in, and made publicly available through, the Federal Awardee Performance and Integrity Information System, or any successor thereto.
  • (14) An offeror for a covered contract that intends to identify a small business concern as a potential subcontractor in a bid or proposal for the contract, or in a plan submitted pursuant to this subsection in connection with the contract, shall notify the small business concern prior to making such identification.
  • (15) The Administrator shall establish a reporting mechanism that allows a subcontractor or potential subcontractor to report fraudulent activity or bad faith by a contractor with respect to a subcontracting plan submitted pursuant to this subsection.
  • (16)
    • (A) For purposes of determining whether or not a prime contractor has attained the percentage goals specified in paragraph (6)—
      • (i) if the subcontracting goals pertain only to a single contract with a Federal agency, the prime contractor may elect to receive credit for small business concerns performing as first tier subcontractors or subcontractors at any tier pursuant to the subcontracting plans required under paragraph (6)(D) in an amount equal to the total dollar value of any subcontracts awarded to such small business concerns; and
      • (ii) if the subcontracting goals pertain to more than one contract with one or more Federal agencies, or to one contract with more than one Federal agency, the prime contractor may only receive credit for first tier subcontractors that are small business concerns.
    • (B) The head of each contracting agency shall ensure that the agency—
      • (i) collects and reports data on the extent to which prime contractors of the agency meet the goals and objectives set forth in subcontracting plans submitted pursuant to this subsection; and
      • (ii) periodically reviews data collected and reported pursuant to clause (i) for the purpose of ensuring that such contractors comply in good faith with the requirements of this subsection.
    • (C) Nothing in this paragraph shall be construed to allow a Federal agency to establish a goal for an 5 5 So in original. Probably should be “a”. number of subcontracts with a subcontractor at any tier for a prime contractor otherwise eligible to receive credit under this paragraph.
  • (17)
    • (A) The Administrator shall establish a pilot program for a small business concern without a past performance rating as a prime contractor performing as a first tier subcontractor for a covered contract (as defined in paragraph (13)(A)) to request a past performance rating in the system used by the Federal Government to monitor or record contractor past performance.
    • (B) A small business concern described in subparagraph (A) shall submit an application to the appropriate official for a past performance rating no later than 270 days after the small business concern completed the work for which it seeks a past performance rating or 180 days after the prime contractor completes work on the covered contract, whichever is earlier. Such application shall include written evidence of the past performance factors for which the small business concern seeks a rating and a suggested rating.
    • (C) The appropriate official shall submit the application from the small business concern to the Office of Small and Disadvantaged Business Utilization for the covered contract and to the prime contractor for review. The Office of Small and Disadvantaged Business Utilization and the prime contractor shall, not later than 30 days after receipt of the application, submit to the appropriate official a response regarding the application.
      • (i) If the Office of Small and Disadvantaged Business Utilization and the prime contractor agree on a past performance rating, or if either the Office of Small and Disadvantaged Business Utilization or the prime contractor fail to respond and the responding person agrees with the rating of the applicant small business concern, the appropriate official shall enter the agreed-upon past performance rating in the system described in subparagraph (A).
      • (ii) If the Office of Small and Disadvantaged Business Utilization and the prime contractor fail to respond within 30 days or if they disagree about the rating, or if either the Office of Small and Disadvantaged Business Utilization or the prime contractor fail to respond and the responding person disagrees with the rating of the applicant small business concern, the Office of Small and Disadvantaged Business Utilization or the prime contractor shall submit a notice contesting the application to the appropriate official. The appropriate official shall follow the requirements of subparagraph (D).
    • (D) Not later than 14 calendar days after receipt of a notice under subparagraph (C)(ii), the appropriate official shall submit such notice to the applicant small business concern. Such concern may submit comments, rebuttals, or additional information relating to the past performance of such concern not later 14 6 6 So in original. Probably should be preceded by “than”. calendar days after receipt of such notice. The appropriate official shall enter into the system described in subparagraph (A) a rating that is neither favorable nor unfavorable along with the initial application from such concern, any responses of the Office of Small and Disadvantaged Business Utilization and the prime contractor, and any additional information provided by such concern. A copy of the information submitted shall be provided to the contracting officer (or designee of such officer) for the covered contract.
    • (E) A small business subcontractor may use a past performance rating given under this paragraph to establish its past performance for a prime contract.
    • (F) The pilot program established under this paragraph shall terminate 3 years after the date on which the first applicant small business concern receives a past performance rating for performance as a first tier subcontractor.
    • (G) The Comptroller General of the United States shall begin an assessment of the pilot program 1 year after the establishment of such program. Not later than 6 months after beginning such assessment, the Comptroller General shall submit a report to the Committee on Small Business and Entrepreneurship of the Senate and the Committee on Small Business of the House of Representatives, which shall include—
      • (i) the number of small business concerns and, set forth separately, the number of small business exporters, that have received past performance ratings under the pilot program;
      • (ii) the number of applications, set forth separately by applications from small business concerns and from small business exporters, in which the contracting officer (or designee) or the prime contractor contested the application of the small business concern;
      • (iii) any suggestions or recommendations the Comptroller General or the small business concerns participating in the program have to address disputes between the small business concern, the contracting officer (or designee), and the prime contractor on past performance ratings;
      • (iv) the number of small business concerns awarded prime contracts after receiving a past performance rating under this pilot program; and
      • (v) any suggestions or recommendation the Comptroller General has to improve the operation of the pilot program.
    • (H) In this paragraph—
      • (i) the term “appropriate official” means—
        • (I) a commercial market representative;
        • (II) another individual designated by the senior official appointed by the Administrator with responsibilities under sections 637, 644, 657a, and 657f of this title; or
        • (III) the Office of Small and Disadvantaged Business Utilization of a Federal agency, if the head of the Federal agency and the Administrator agree;
      • (ii) the term “defense item” has the meaning given that term in section 2778(j)(4)(A) of title 22 ;
      • (iii) the term “major non-NATO ally” means a country designated as a major non-NATO ally under section 2321k of title 22 ;
      • (iv) the term “past performance” includes performance of a contract for a sale of defense items (under section 2778 of title 22 ) to the government of a member nation of North 7 7 So in original. Probably should be preceded by “the”. Atlantic Treaty Organization, the government of a major non-NATO ally, or the government of a country with which the United States has a defense cooperation agreement (as certified by the Secretary of State); and
      • (v) the term “small business exporter” means a small business concern that exports defense items under section 2778 of title 22 to the government of a member nation of the North Atlantic Treaty Organization, the government of a major non-NATO ally, or the government of a country with which the United States has a defense cooperation agreement (as certified by the Secretary of State).
• (e)
  • (1) Except as provided in subsection (g)—
    • (A) an executive agency intending to—
      • (i) solicit bids or proposals for a contract for property or services for a price expected to exceed $25,000; or
      • (ii) place an order, expected to exceed $25,000, under a basic agreement, basic ordering agreement, or similar arrangement,
    • (B) an executive agency intending to solicit bids or proposals for a contract for property or services shall post, for a period of not less than ten days, in a public place at the contracting office issuing the solicitation a notice of solicitation described in subsection (f)—
      • (i) in the case of an executive agency other than the Department of Defense, if the contract is for a price expected to exceed $10,000, but not to exceed $25,000; and
      • (ii) in the case of the Department of Defense, if the contract is for a price expected to exceed $5,000, but not to exceed $25,000;
    • (C) an executive agency awarding a contract for property or services for a price exceeding $100,000, or placing an order referred to in clause (A)(ii) exceeding $100,000, shall furnish for publication by the Secretary of Commerce a notice announcing the award or order if there is likely to be any subcontract under such contract or order.
  • (2)
    • (A) A notice of solicitation required to be published under paragraph (1) may be published—
      • (i) by electronic means that meet the accessibility requirements under section 1708(d) of title 41 ; or
      • (ii) by the Secretary of Commerce in the Commerce Business Daily.
    • (B) The Secretary of Commerce shall promptly publish in the Commerce Business Daily each notice or announcement received under this subsection for publication by that means.
  • (3) Whenever an executive agency is required by paragraph (1)(A) to publish a notice of solicitation, such executive agency may not—
    • (A) issue the solicitation earlier than 15 days after the date on which the notice is published; or
    • (B) in the case of a contract or order estimated to be greater than the simplified acquisition threshold, establish a deadline for the submission of all bids or proposals in response to the notice required by paragraph (1)(A) that—
      • (i) in the case of an order under a basic agreement, basic ordering agreement, or similar arrangement, is earlier than the date 30 days after the date the notice required by paragraph (1)(A)(ii) is published;
      • (ii) in the case of a solicitation for research and development, is earlier than the date 45 days after the date the notice required by paragraph (1)(A)(i) is published; or
      • (iii) in any other case, is earlier than the date 30 days after the date the solicitation is issued.
• (f) Each notice of solicitation required by subparagraph (A) or (B) of subsection (e)(1) shall include—
  • (1) an accurate description of the property or services to be contracted for, which description (A) shall not be unnecessarily restrictive of competition, and (B) shall include, as appropriate, the agency nomenclature, National Stock Number or other part number, and a brief description of the item’s form, fit, or function, physical dimensions, predominant material of manufacture, or similar information that will assist a prospective contractor to make an informed business judgment as to whether a copy of the solicitation should be requested;
  • (2) provisions that—
    • (A) state whether the technical data required to respond to the solicitation will not be furnished as part of such solicitation, and identify the source in the Government, if any, from which the technical data may be obtained; and
    • (B) state whether an offeror, its product, or service must meet a qualification requirement in order to be eligible for award, and, if so, identify the office from which a qualification requirement may be obtained;
  • (3) the name, business address, and telephone number of the contracting officer;
  • (4) a statement that all responsible sources may submit a bid, proposal, or quotation (as appropriate) which shall be considered by the agency;
  • (5) in the case of a procurement using procedures other than competitive procedures, a statement of the reason justifying the use of such procedures and the identity of the intended source; and
  • (6) in the case of a contract in an amount estimated to be greater than $25,000 but not greater than the simplified acquisition threshold—
    • (A) a description of the procedures to be used in awarding the contract; and
    • (B) a statement specifying the periods for prospective offerors and the contracting officer to take the necessary preaward and award actions.
• (g)
  • (1) A notice is not required under subsection (e)(1) if—
    • (A) the proposed procurement is for an amount not greater than the simplified acquisition threshold and is to be conducted by—
      • (i) using widespread electronic public notice of the solicitation in a form that allows convenient and universal user access through a single, Government-wide point of entry; and
      • (ii) permitting the public to respond to the solicitation electronically.
    • (B) the notice would disclose the executive agency’s needs and the disclosure of such needs would compromise the national security;
    • (C) the proposed procurement would result from acceptance of—
      • (i) any unsolicited proposal that demonstrates a unique and innovative research concept and the publication of any notice of such unsolicited research proposal would disclose the originality of thought or innovativeness of the proposal or would disclose proprietary information associated with the proposal; or
      • (ii) a proposal submitted under section 638 of this title ;
    • (D) the procurement is made against an order placed under a requirements contract;
    • (E) the procurement is made for perishable subsistence supplies;
    • (F) the procurement is for utility services, other than telecommunication services, and only one source is available; or
    • (G) the procurement is for the services of an expert for use in any litigation or dispute (including preparation for any foreseeable litigation or dispute) that involves or could involve the Federal Government in any trial, hearing, or proceeding before any court, administrative tribunal, or agency, or in any part of an alternative dispute resolution process, whether or not the expert is expected to testify.
  • (2) The requirements of subsection (a)(1)(A) do not apply to any procurement under conditions described in paragraph (2), (3), (4), (5), or (7) of section 3304(a) of title 41 or paragraph (2), (3), (4), (5), or (7) of section 2304(c) of title 10 .
  • (3) The requirements of subsection (a)(1)(A) shall not apply in the case of any procurement for which the head of the executive agency makes a determination in writing, after consultation with the Administrator for Federal Procurement Policy and the Administrator of the Small Business Administration, that it is not appropriate or reasonable to publish a notice before issuing a solicitation.
• (h)
  • (1) An executive agency may not award a contract using procedures other than competitive procedures unless—
    • (A) except as provided in paragraph (2), a written justification for the use of such procedures has been approved—
      • (i) in the case of a contract for an amount exceeding $100,000 (but equal to or less than $1,000,000), by the advocate for competition for the procuring activity (without further delegation);
      • (ii) in the case of a contract for an amount exceeding $1,000,000 (but equal to or less than $10,000,000), by the head of the procuring activity or a delegate who, if a member of the Armed Forces, is a general or flag officer, or, if a civilian, is serving in a position in grade GS–16 or above under the General Schedule (or in a comparable or higher position under another schedule); or
      • (iii) in the case of a contract for an amount exceeding $10,000,000, by the senior procurement executive of the agency designated pursuant to section 414(3) of title 41 1 (without further delegation); and
    • (B) all other requirements applicable to the use of such procedures under division C (except sections 3302, 3307(e), 3501(b), 3509, 3906, 4710, and 4711) of subtitle I of title 41 or chapter 137 of title 10, as appropriate, have been satisfied.
  • (2) The same exceptions as are provided in paragraphs (3) and (4) of section 3304(e) of title 41 or section 2304(f)(2) of title 10 shall apply with respect to the requirements of paragraph (1)(A) of this subsection in the same manner as such exceptions apply to the requirements of section 3304(e)(1) of title 41 or section 2304(f)(1) of title 10 , as appropriate.
• (i) An executive agency shall make available to any business concern, or the authorized representative of such concern, the complete solicitation package for any on-going procurement announced pursuant to a notice under subsection (e). An executive agency may require the payment of a fee, not exceeding the actual cost of duplication, for a copy of such package.
• (j) For purposes of this section, the term “executive agency” has the meaning provided such term in section 133 of title 41 .
• (k)
  • (1) Notices of subcontracting opportunities may be submitted for publication on the appropriate Federal Web site (as determined by the Administrator) by—
    • (A) a business concern awarded a contract by an executive agency subject to subsection (e)(1)(C); and
    • (B) a business concern that is a subcontractor or supplier (at any tier) to such contractor having a subcontracting opportunity in excess of $10,000.
  • (2) The notice of a subcontracting opportunity shall include—
    • (A) a description of the business opportunity that is comparable to the description specified in paragraphs (1), (2), (3), and (4) of subsection (f); and
    • (B) the due date for receipt of offers.
• (l)
  • (1) The Administration shall utilize, as appropriate, its entrepreneurial development and management assistance programs, including programs involving State or private sector partners, to provide business counseling and training to any small business concern adversely affected by the deployment of units of the Armed Forces of the United States in support of a period of military conflict.
  • (2) In this subsection, the term “period of military conflict” means—
    • (A) a period of war declared by the Congress;
    • (B) a period of national emergency declared by the Congress or by the President; or
    • (C) a period of a contingency operation, as defined in section 101(a) of title 10 .
• (m)
  • (1) In this subsection, the following definitions apply:
    • (A) The term “contracting officer” has the meaning given such term in section 2101(1) of title 41 .
    • (B) The term “small business concern owned and controlled by women” has the meaning given such term in section 632(n) of this title , except that ownership shall be determined without regard to any community property law.
  • (2) In accordance with this subsection, a contracting officer may restrict competition for any contract for the procurement of goods or services by the Federal Government to small business concerns owned and controlled by women, if—
    • (A) each of the concerns is not less than 51 percent owned by one or more women who are economically disadvantaged (and such ownership is determined without regard to any community property law);
    • (B) the contracting officer has a reasonable expectation that two or more small business concerns owned and controlled by women will submit offers for the contract;
    • (C) the contract is for the procurement of goods or services with respect to an industry identified by the Administrator pursuant to paragraph (3);
    • (D) in the estimation of the contracting officer, the contract award can be made at a fair and reasonable price; and
    • (E) each of the concerns is certified by a Federal agency, a State government, the Administrator, or a national certifying entity approved by the Administrator as a small business concern owned and controlled by women.
  • (3) With respect to a small business concern owned and controlled by women, the Administrator may waive subparagraph (2)(A) if the Administrator determines that the concern is in an industry in which small business concerns owned and controlled by women are substantially underrepresented.
  • (4) The Administrator shall conduct a study to identify industries in which small business concerns owned and controlled by women are underrepresented with respect to Federal procurement contracting.
  • (5)
    • (A) In carrying out this subsection, the Administrator shall establish procedures relating to—
      • (i) the filing, investigation, and disposition by the Administration of any challenge to the eligibility of a small business concern to receive assistance under this subsection (including a challenge, filed by an interested party, relating to the veracity of a certification made or information provided to the Administration by a small business concern under paragraph (2)(E)); and
      • (ii) verification by the Administrator of the accuracy of any certification made or information provided to the Administration by a small business concern under paragraph (2)(E).
    • (B) The procedures established under subparagraph (A) may provide for program examinations (including random program examinations) by the Administrator of any small business concern making a certification or providing information to the Administrator under paragraph (2)(E).
    • (C) In addition to the penalties described in section 645(d) of this title , any small business concern that is determined by the Administrator to have misrepresented the status of that concern as a small business concern owned and controlled by women for purposes of this subsection, shall be subject to—
      • (i) section 1001 of title 18 ; and
      • (ii) sections 3729 through 3733 of title 31.
  • (6) Upon the request of the Administrator, the head of any Federal department or agency shall promptly provide to the Administrator such information as the Administrator determines to be necessary to carry out this subsection.
  • (7) A contracting officer may award a sole source contract under this subsection to any small business concern owned and controlled by women described in paragraph (2)(A) and certified under paragraph (2)(E) if—
    • (A) such concern is determined to be a responsible contractor with respect to performance of the contract opportunity and the contracting officer does not have a reasonable expectation that 2 or more businesses described in paragraph (2)(A) will submit offers;
    • (B) the anticipated award price of the contract (including options) will not exceed—
      • (i) $6,500,000, in the case of a contract opportunity assigned a standard industrial classification code for manufacturing; or
      • (ii) $4,000,000, in the case of any other contract opportunity; and
    • (C) in the estimation of the contracting officer, the contract award can be made at a fair and reasonable price.
  • (8) A contracting officer may award a sole source contract under this subsection to any small business concern owned and controlled by women certified under paragraph (2)(E) that is in an industry in which small business concerns owned and controlled by women are substantially underrepresented (as determined by the Administrator under paragraph (3)) if—
    • (A) such concern is determined to be a responsible contractor with respect to performance of the contract opportunity and the contracting officer does not have a reasonable expectation that 2 or more businesses in an industry that has received a waiver under paragraph (3) will submit offers;
    • (B) the anticipated award price of the contract (including options) will not exceed—
      • (i) $6,500,000, in the case of a contract opportunity assigned a standard industrial classification code for manufacturing; or
      • (ii) $4,000,000, in the case of any other contract opportunity; and
    • (C) in the estimation of the contracting officer, the contract award can be made at a fair and reasonable price.
• (n)
  • (1) In accordance with this subsection, the Administrator may make grants to and enter into cooperative agreements with any coalition of private entities, public entities, or any combination of private and public entities—
    • (A) to expand business-to-business relationships between large and small businesses; and
    • (B) to provide businesses, directly or indirectly, with online information and a database of companies that are interested in mentor-protege programs or community-based, statewide, or local business development programs.
  • (2) Subject to subparagraph (B), the Administrator may make a grant to a coalition under paragraph (1) only if the coalition provides for activities described in paragraph (1)(A) or (1)(B) an amount, either in kind or in cash, equal to the grant amount.
  • (3) There is authorized to be appropriated to carry out this subsection $6,600,000, to remain available until expended, for each of fiscal years 2001 through 2006.

§ 637b. Availability of information

• (a) For any contract to be let by any Federal agency, such agency shall provide to any small business concern upon its request—
  • (1) a copy of bid sets and specifications with respect to such contract;
  • (2) the name and telephone number of an employee of such agency to answer questions with respect to such contract; and
  • (3) adequate citations to each major Federal law or agency rule with which such business concern must comply in performing such contract.
• (b) Subsection (a) shall not apply to any contract or subcontract under such contract which—
  • (1) will be performed entirely outside any State, territory, or possession of the United States, the District of Columbia, or the Commonwealth of Puerto Rico; or
  • (2) is for services which are personal in nature.

§ 637c. Definitions

For purposes of this Act—

• (1) the term “Administrator” means the Administrator of the Small Business Administration;
• (2) the term “Federal agency” has the meaning given the term “agency” by section 551(1) of title 5 , but does not include the United States Postal Service or the Government Accountability Office; and
• (3) the term “Government procurement contract” means any contract for the procurement of any goods or services by any Federal agency.

§ 637d. Subcontracting plan reports

• (1) Not later than 1 year after January 2, 2013 , the Administrator of the Small Business Administration shall take such actions as are necessary to ensure that the electronic subcontracting reporting system established by the Administration to carry out the requirement of section 637(d)(6)(E) of this title is modified to ensure that it can identify entities that fail to submit required reports.
• (2) Not later than March 31 of each year, the Administrator of the Small Business Administration shall provide the Committee on Small Business of the House of Representatives and the Committee on Small Business and Entrepreneurship of the Senate a report, based on data available through existing systems, that sets forth, by agency (and to the extent practicable, by type of goal or plan), the following information:
  • (A) the percentage of entities required to submit reports pursuant to section 637(d)(6) of this title that filed such reports and that failed to file such reports during the prior fiscal year;
  • (B) the percentage of entities filing such reports that met, exceeded, or failed to meet goals set forth in their subcontracting plans during the prior fiscal year; and
  • (C) the aggregate value by which such entities exceeded, or failed to meet, their subcontracting goals during the prior fiscal year.

§ 638. Research and development

• (a) Research and development are major factors in the growth and progress of industry and the national economy. The expense of carrying on research and development programs is beyond the means of many small-business concerns, and such concerns are handicapped in obtaining the benefits of research and development programs conducted at Government expense. These small-business concerns are thereby placed at a competitive disadvantage. This weakens the competitive free enterprise system and prevents the orderly development of the national economy. It is the policy of the Congress that assistance be given to small-business concerns to enable them to undertake and to obtain the benefits of research and development in order to maintain and strengthen the competitive free enterprise system and the national economy.
• (b) It shall be the duty of the Administration, and it is empowered—
  • (1) to assist small-business concerns to obtain Government contracts for research and development;
  • (2) to assist small-business concerns to obtain the benefits of research and development performed under Government contracts or at Government expense;
  • (3) to provide technical assistance to small-business concerns to accomplish the purposes of this section;
  • (4) to develop and maintain a source file and an information program to assure each qualified and interested small business concern the opportunity to participate in Federal agency small business innovation research programs and small business technology transfer programs;
  • (5) to coordinate with participating agencies a schedule for release of SBIR and STTR solicitations, and to prepare a master release schedule so as to maximize small businesses’ opportunities to respond to solicitations;
  • (6) to independently survey and monitor the operation of SBIR and STTR programs within participating Federal agencies;
  • (7) to report not less than annually to the Committee on Small Business of the Senate, and to the Committee on Science and the Committee on Small Business of the House of Representatives, on the SBIR and STTR programs of the Federal agencies and the Administration’s information and monitoring efforts related to the SBIR and STTR programs, including—
    • (A) the data on output and outcomes collected pursuant to subsections (g)(8) and ( o )(9);
    • (B) the number of proposals received from, and the number and total amount of awards to, HUBZone small business concerns and firms with venture capital, hedge fund, or private equity firm investment (including those majority-owned by multiple venture capital operating companies, hedge funds, or private equity firms) under each of the SBIR and STTR programs;
    • (C) a description of the extent to which each Federal agency is increasing outreach and awards to firms owned and controlled by women or by socially or economically disadvantaged individuals under each of the SBIR and STTR programs;
    • (D) general information about the implementation of, and compliance with the allocation of funds required under, subsection (dd) for firms owned in majority part by venture capital operating companies, hedge funds, or private equity firms and participating in the SBIR program;
    • (E) a detailed description of appeals of Phase III awards and notices of noncompliance with the SBIR Policy Directive and the STTR Policy Directive filed by the Administrator with Federal agencies;
    • (F) an accounting of funds, initiatives, and outcomes under the Commercialization Readiness Program; and
    • (G) a description of the extent to which Federal agencies are providing in a timely manner information needed to maintain the database described in subsection (k);
  • (8) to provide for and fully implement the tenets of Executive Order No. 13329 (Encouraging Innovation in Manufacturing);
  • (9) to coordinate the implementation of electronic databases at each of the Federal agencies participating in the SBIR program or the STTR program, including the technical ability of the participating agencies to electronically share data; and
  • (10) to consult, where appropriate, with personnel from the relevant Federal agency to assist small business concerns participating in a SBIR or STTR program with commercializing research developed under such a program before such small business concern is awarded a contract from such Federal agency.
• (c) The Administration is authorized to consult and cooperate with all Government agencies and to make studies and recommendations to such agencies, and such agencies are authorized and directed to cooperate with the Administration in order to carry out and to accomplish the purposes of this section.
• (d)
  • (1) The Administrator is authorized to consult with representatives of small-business concerns with a view to assisting and encouraging such firms to undertake joint programs for research and development carried out through such corporate or other mechanism as may be most appropriate for the purpose. Such joint programs may, among other things, include the following purposes:
    • (A) to construct, acquire, or establish laboratories and other facilities for the conduct of research;
    • (B) to undertake and utilize applied research;
    • (C) to collect research information related to a particular industry and disseminate it to participating members;
    • (D) to conduct applied research on a protected, proprietary, and contractual basis with member or nonmember firms, Government agencies, and others;
    • (E) to prosecute applications for patents and render patent services for participating members; and
    • (F) to negotiate and grant licenses under patents held under the joint program, and to establish corporations designed to exploit particular patents obtained by it.
  • (2) The Administrator may, after consultation with the Attorney General and the Chairman of the Federal Trade Commission, and with the prior written approval of the Attorney General, approve any agreement between small-business firms providing for a joint program of research and development, if the Administrator finds that the joint program proposed will maintain and strengthen the free enterprise system and the economy of the Nation. The Administrator or the Attorney General may at any time withdraw his approval of the agreement and the joint program of research and development covered thereby, if he finds that the agreement or the joint program carried on under it is no longer in the best interests of the competitive free enterprise system and the economy of the Nation. A copy of the statement of any such finding and approval intended to be within the coverage of this subsection, and a copy of any modification or withdrawal of approval, shall be published in the Federal Register. The authority conferred by this subsection on the Administrator shall not be delegated by him.
  • (3) No act or omission to act pursuant to and within the scope of any joint program for research and development, under an agreement approved by the Administrator under this subsection, shall be construed to be within the prohibitions of the antitrust laws or the Federal Trade Commission Act [ 15 U.S.C. 41 et seq.]. Upon publication in the Federal Register of the notice of withdrawal of his approval of the agreement granted under this subsection, either by the Administrator or by the Attorney General, the provisions of this subsection shall not apply to any subsequent act or omission to act by reason of such agreement or approval.
• (e) For the purpose of this section—
  • (1) the term “extramural budget” means the sum of the total obligations minus amounts obligated for such activities by employees of the agency in or through Government-owned, Government-operated facilities, except that for the Department of Energy it shall not include amounts obligated for atomic energy defense programs solely for weapons activities or for naval reactor programs, and except that for the Agency for International Development it shall not include amounts obligated solely for general institutional support of international research centers or for grants to foreign countries;
  • (2) the term “Federal agency” means an executive agency as defined in section 105 of title 5 or a military department as defined in section 102 of such title, except that it does not include any agency within the Intelligence Community (as the term is defined in section 3.4(f) of Executive Order 12333 or its successor orders);
  • (3) the term “funding agreement” means any contract, grant, or cooperative agreement entered into between any Federal agency and any small business for the performance of experimental, developmental, or research work funded in whole or in part by the Federal Government;
  • (4) the term “Small Business Innovation Research Program” or “SBIR” means a program under which a portion of a Federal agency’s research or research and development effort is reserved for award to small business concerns through a uniform process having—
    • (A) a first phase for determining, insofar as possible, the scientific and technical merit and feasibility of ideas that appear to have commercial potential, as described in subparagraph (B), submitted pursuant to SBIR program solicitations;
    • (B) a second phase, which shall not include any invitation, pre-screening, or pre-selection process for eligibility for Phase II, that will further develop proposals which meet particular program needs, in which awards shall be made based on the scientific and technical merit and feasibility of the proposals, as evidenced by the first phase, considering, among other things, the proposal’s commercial potential, as evidenced by—
      • (i) the small business concern’s record of successfully commercializing SBIR or other research;
      • (ii) the existence of second phase funding commitments from private sector or non-SBIR funding sources;
      • (iii) the existence of third phase, follow-on commitments for the subject of the research; and
      • (iv) the presence of other indicators of the commercial potential of the idea; and
    • (C) where appropriate, a third phase for work that derives from, extends, or completes efforts made under prior funding agreements under the SBIR program—
      • (i) in which commercial applications of SBIR-funded research or research and development are funded by non-Federal sources of capital or, for products or services intended for use by the Federal Government, by follow-on non-SBIR Federal funding awards; or
      • (ii) for which awards from non-SBIR Federal funding sources are used for the continuation of research or research and development that has been competitively selected using peer review or merit-based selection procedures;
  • (5) the term “research” or “research and development” means any activity which is (A) a systematic, intensive study directed toward greater knowledge or understanding of the subject studied; (B) a systematic study directed specifically toward applying new knowledge to meet a recognized need; or (C) a systematic application of knowledge toward the production of useful materials, devices, and systems or methods, including design, development, and improvement of prototypes and new processes to meet specific requirements;
  • (6) the term “Small Business Technology Transfer Program” or “STTR” means a program under which a portion of a Federal agency’s extramural research or research and development effort is reserved for award to small business concerns for cooperative research and development through a uniform process having—
    • (A) a first phase, to determine, to the extent possible, the scientific, technical, and commercial merit and feasibility of ideas submitted pursuant to STTR program solicitations;
    • (B) a second phase, which shall not include any invitation, pre-screening, or pre-selection process for eligibility for Phase II, that will further develop proposals that meet particular program needs, in which awards shall be made based on the scientific, technical, and commercial merit and feasibility of the idea, as evidenced by the first phase and by other relevant information; and
    • (C) where appropriate, a third phase for work that derives from, extends, or completes efforts made under prior funding agreements under the STTR program—
      • (i) in which commercial applications of STTR-funded research or research and development are funded by non-Federal sources of capital or, for products or services intended for use by the Federal Government, by follow-on non-STTR Federal funding awards; and
      • (ii) for which awards from non-STTR Federal funding sources are used for the continuation of research or research and development that has been competitively selected using peer review or scientific review criteria;
  • (7) the term “cooperative research and development” means research or research and development conducted jointly by a small business concern and a research institution in which not less than 40 percent of the work is performed by the small business concern, and not less than 30 percent of the work is performed by the research institution;
  • (8) the term “research institution” means a nonprofit institution, as defined in section 3703(5) 1 1 See References in Text note below. of this title, and includes federally funded research and development centers, as identified by the National Scientific Foundation in accordance with the governmentwide Federal Acquisition Regulation issued in accordance with section 1303(a)(1) of title 41 (or any successor regulation thereto);
  • (9) the term “commercial applications” shall not be construed to exclude testing and evaluation of products, services, or technologies for use in technical or weapons systems, and further, awards for testing and evaluation of products, services, or technologies for use in technical or weapons systems may be made in either Phase II or Phase III of the Small Business Innovation Research Program and of the Small Business Technology Transfer Program, as defined in this subsection;
  • (10) the term “commercialization” means—
    • (A) the process of developing products, processes, technologies, or services; and
    • (B) the production and delivery (whether by the originating party or by others) of products, processes, technologies, or services for sale to or use by the Federal Government or commercial markets;
  • (11) the term “Phase I” means—
    • (A) with respect to the SBIR program, the first phase described in paragraph (4)(A); and
    • (B) with respect to the STTR program, the first phase described in paragraph (6)(A);
  • (12) the term “Phase II” means—
    • (A) with respect to the SBIR program, the second phase described in paragraph (4)(B); and
    • (B) with respect to the STTR program, the second phase described in paragraph (6)(B);
  • (13) the term “Phase III” means—
    • (A) with respect to the SBIR program, the third phase described in paragraph (4)(C); and
    • (B) with respect to the STTR program, the third phase described in paragraph (6)(C); and
  • (14) the term “senior procurement executive” means an official designated under section 1702(c) of title 41 as the senior procurement executive of a Federal agency participating in a SBIR or STTR program.
• (f)
  • (1) Except as provided in paragraph (2)(B), each Federal agency which has an extramural budget for research or research and development in excess of $100,000,000 for fiscal year 1992, or any fiscal year thereafter, shall expend with small business concerns—
    • (A) not less than 1.5 percent of such budget in each of fiscal years 1993 and 1994;
    • (B) not less than 2.0 percent of such budget in each of fiscal years 1995 and 1996;
    • (C) not less than 2.5 percent of such budget in each of fiscal years 1997 through 2011;
    • (D) not less than 2.6 percent of such budget in fiscal year 2012;
    • (E) not less than 2.7 percent of such budget in fiscal year 2013;
    • (F) not less than 2.8 percent of such budget in fiscal year 2014;
    • (G) not less than 2.9 percent of such budget in fiscal year 2015;
    • (H) not less than 3.0 percent of such budget in fiscal year 2016; and
    • (I) not less than 3.2 percent of such budget in fiscal year 2017 and each fiscal year thereafter,
  • (2) A Federal agency shall not—
    • (A) use any of its SBIR budget established pursuant to paragraph (1) for the purpose of funding administrative costs of the program, including costs associated with salaries and expenses; or
    • (B) make available for the purpose of meeting the requirements of paragraph (1) an amount of its extramural budget for basic research which exceeds the percentages specified in paragraph (1).
  • (3) Funding agreements with small business concerns for research or research and development which result from competitive or single source selections other than an SBIR program shall not be considered to meet any portion of the percentage requirements of paragraph (1).
  • (4) Nothing in this subsection may be construed to prohibit a Federal agency from expending with small business concerns an amount of the extramural budget for research or research and development of the agency that exceeds the amount required under paragraph (1).
• (g) Each Federal agency required by subsection (f) to establish a small business innovation research program shall, in accordance with this chapter and regulations issued hereunder—
  • (1) unilaterally determine categories of projects to be in its SBIR program;
  • (2) issue small business innovation research solicitations in accordance with a schedule determined cooperatively with the Small Business Administration;
  • (3) unilaterally determine research topics within the agency’s SBIR solicitations, giving special consideration to broad research topics and to topics that further 1 or more critical technologies, as identified by—
    • (A) the National Critical Technologies Panel (or its successor) in the 1991 report required under section 6683 1 of title 42, and in subsequent reports issued under that authority; or
    • (B) the Secretary of Defense, in the 1992 report issued in accordance with section 2522 1 of title 10, and in subsequent reports issued under that authority;
  • (4)
    • (A) unilaterally receive and evaluate proposals resulting from SBIR proposals; and
    • (B) make a final decision on each proposal submitted under the SBIR program—
      • (i) not later than 1 year after the date on which the applicable solicitation closes, if with respect to the National Institutes of Health or the National Science Foundation, or 90 days after the date on which the applicable solicitation closes, if with respect to any other participating agency; or
      • (ii) if the Administrator authorizes an extension with respect to a solicitation, not later than 90 days after the date that would otherwise be applicable to the agency under clause (i);
  • (5) subject to subsection ( l ), unilaterally select awardees for its SBIR funding agreements and inform each awardee under such an agreement, to the extent possible, of the expenses of the awardee that will be allowable under the funding agreement;
  • (6) administer its own SBIR funding agreements (or delegate such administration to another agency);
  • (7) make payments to recipients of SBIR funding agreements on the basis of progress toward or completion of the funding agreement requirements and, in all cases, make payment to recipients under such agreements in full, subject to audit, on or before the last day of the 12-month period beginning on the date of completion of such requirements;
  • (8) collect annually, and maintain in a common format in accordance with the simplified reporting requirements under subsection (v), such information from awardees as is necessary to assess the SBIR program, including information necessary to maintain the database described in subsection (k), including—
    • (A) whether an awardee—
      • (i) has venture capital, hedge fund, or private equity firm investment or is majority-owned by multiple venture capital operating companies, hedge funds, or private equity firms and, if so—
        • (I) the amount of venture capital, hedge fund, or private equity firm investment that the awardee has received as of the date of the award; and
        • (II) the amount of additional capital that the awardee has invested in the SBIR technology;
      • (ii) has an investor that—
        • (I) is an individual who is not a citizen of the United States or a lawful permanent resident of the United States and, if so, the name of any such individual; or
        • (II) is a person that is not an individual and is not organized under the laws of a State or the United States and, if so, the name of any such person;
      • (iii) is owned by a woman or has a woman as a principal investigator; 2 2 So in original. Probably should be “investor;”.
      • (iv) is owned by a socially or economically disadvantaged individual or has a socially or economically disadvantaged individual as a principal investigator; 2
      • (v) is a faculty member or a student of an institution of higher education, as that term is defined in section 1001 of title 20 ; or
      • (vi) is located in a State described in subsection (u)(3);
    • (B) a justification statement from the agency, if an awardee receives an award in an amount that is more than the award guidelines under this section; and
    • (C) data with respect to the Federal and State Technology Partnership Program (FAST Program);
  • (9) make an annual report on the SBIR program to the Small Business Administration and the Office of Science and Technology Policy;
  • (10) include, as part of its annual performance plan as required by subsections (a) and (b) of section 1115 of title 31 , a section on its SBIR program, and shall submit such section to the Committee on Small Business of the Senate, and the Committee on Science and the Committee on Small Business of the House of Representatives;
  • (11) provide for and fully implement the tenets of Executive Order No. 13329 (Encouraging Innovation in Manufacturing); and
  • (12) provide timely notice to the Administrator of any case or controversy before any Federal judicial or administrative tribunal concerning the SBIR program of the Federal agency.
• (h) In addition to the requirements of subsection (f), each Federal agency which has a budget for research or research and development in excess of $20,000,000 for any fiscal year beginning with fiscal year 1983 or subsequent fiscal year shall establish goals specifically for funding agreements for research or research and development to small business concerns, and no goal established under this subsection shall be less than the percentage of the agency’s research or research and development budget expended under funding agreements with small business concerns in the immediately preceding fiscal year.
• (i)
  • (1) Each Federal agency required by this section to have an SBIR program or to establish goals shall report annually to the Small Business Administration the number of awards (including awards under subsection (y)) pursuant to grants, contracts, or cooperative agreements over $10,000 in amount and the dollar value of all such awards, identifying SBIR awards and comparing the number and amount of such awards with awards to other than small business concerns.
  • (2)
    • (A) Not later than 4 months after the date of the enactment of each appropriations Act for a Federal agency required by this section to have an SBIR program, the Federal agency shall submit to the Administrator a report, which shall include a description of the methodology used for calculating the amount of the extramural budget of that Federal agency.
    • (B) The Administrator shall include an analysis of the methodology received from each Federal agency referred to in subparagraph (A) in the report required by subsection (b)(7).
• (j)
  • (1) The Small Business Administration, after consultation with the Administrator of the Office of Federal Procurement Policy, the Director of the Office of Science and Technology Policy, and the Intergovernmental Affairs Division of the Office of Management and Budget, shall, within one hundred and twenty days of July 22, 1982 , issue policy directives for the general conduct of the SBIR programs within the Federal Government, including providing for—
    • (A) simplified, standardized, and timely SBIR solicitations;
    • (B) a simplified, standardized funding process which provides for (i) the timely receipt and review of proposals; (ii) outside peer review for at least Phase II proposals, if appropriate; (iii) protection of proprietary information provided in proposals; (iv) selection of awardees; (v) retention of rights in data generated in the performance of the contract by the small business concern; (vi) transfer of title to property provided by the agency to the small business concern if such a transfer would be more cost effective than recovery of the property by the agency; (vii) cost sharing; and (viii) cost principles and payment schedules;
    • (C) exemptions from the regulations under paragraph (2) 3 3 So in original. Probably should be “subparagraph (B)”. if national security or intelligence functions clearly would be jeopardized;
    • (D) minimizing regulatory burden associated with participation in the SBIR program for the small business concern which will stimulate the cost-effective conduct of Federal research and development and the likelihood of commercialization of the results of research and development conducted under the SBIR program;
    • (E) simplified, standardized, and timely annual report on the SBIR program to the Small Business Administration and the Office of Science and Technology Policy;
    • (F) standardized and orderly withdrawal from program participation by an agency having a SBIR program; at the discretion of the Administration, such directives may require a phased withdrawal over a period of time sufficient in duration to minimize any adverse impact on small business concerns; and
    • (G) the voluntary participation in a SBIR program by a Federal agency not required to establish such a program pursuant to subsection (f).
  • (2) Not later than 90 days after October 28, 1992 , the Administrator shall modify the policy directives issued pursuant to this subsection to provide for—
    • (A) retention by a small business concern of the rights to data generated by the concern in the performance of an SBIR award for a period of not less than 4 years;
    • (B) continued use by a small business concern participating in Phase III of the SBIR program, as a directed bailment, of any property transferred by a Federal agency to the small business concern in Phase II of an SBIR program for a period of not less than 2 years, beginning on the initial date of the concern’s participation in Phase III of such program;
    • (C) procedures to ensure, to the extent practicable, that an agency which intends to pursue research, development, or production of a technology developed by a small business concern under an SBIR program enters into follow-on, non-SBIR funding agreements with the small business concern for such research, development, or production;
    • (D) an increase to $150,000 in the amount of funds which an agency may award in Phase I of an SBIR program, and to $1,000,000 in Phase II of an SBIR program, and an adjustment of such amounts every year for inflation;
    • (E) a process for notifying the participating SBIR agencies and potential SBIR participants of the 1991, 1992, and the current critical technologies, as identified—
      • (i) by the National Critical Technologies Panel (or its successor), in accordance with section 6683 1 of title 42; or
      • (ii) by the Secretary of Defense, in accordance with section 2522 1 of title 10;
    • (F) enhanced outreach efforts to increase the participation of socially and economically disadvantaged small business concerns, as defined in section 637(a)(4) of this title , and the participation of small businesses that are 51 percent owned and controlled by women in technological innovation and in SBIR programs, including Phase III of such programs, and the collection of data to document such participation;
    • (G) technical and programmatic guidance to encourage agencies to develop gap-funding programs to address the delay between an award for Phase I of an SBIR program and the application for and extension of an award for Phase II of such program;
    • (H) procedures to ensure that a small business concern that submits a proposal for a funding agreement for Phase I of an SBIR program and that has received more than 15 Phase II SBIR awards during the preceding 5 fiscal years is able to demonstrate the extent to which it was able to secure Phase III funding to develop concepts resulting from previous Phase II SBIR awards; and
    • (I) procedures to ensure that agencies participating in the SBIR program retain the information submitted under subparagraph (H) at least until the Government Accountability Office submits the report required under section 105 of the Small Business Research and Development Enhancement Act of 1992.
  • (3) Not later than 120 days after December 21, 2000 , the Administrator shall modify the policy directives issued pursuant to this subsection—
    • (A) to clarify that the rights provided for under paragraph (2)(A) apply to all Federal funding awards under this section, including Phase I, Phase II, and Phase III;
    • (B) to provide for the requirement of a succinct commercialization plan with each application for a Phase II award that is moving toward commercialization;
    • (C) to require agencies to report to the Administration, not less frequently than annually, all instances in which an agency pursued research, development, or production of a technology developed by a small business concern using an award made under the SBIR program of that agency, and determined that it was not practicable to enter into a follow-on non-SBIR program funding agreement with the small business concern, which report shall include, at a minimum—
      • (i) the reasons why the follow-on funding agreement with the small business concern was not practicable;
      • (ii) the identity of the entity with which the agency contracted to perform the research, development, or production; and
      • (iii) a description of the type of funding agreement under which the research, development, or production was obtained; and
    • (D) to implement subsection (v), including establishing standardized procedures for the provision of information pursuant to subsection (k)(3).
  • (4) Upon the enactment of this paragraph, the Administrator shall modify the policy directives issued pursuant to this subsection to require procurement center representatives (as described in section 644( l ) of this title) to consult with the appropriate personnel from the relevant Federal agency, to assist small business concerns participating in the SBIR program, particularly in Phase III.
• (k)
  • (1) Not later than 180 days after December 21, 2000 , the Administrator shall develop, maintain, and make available to the public a searchable, up-to-date, electronic database that includes—
    • (A) the name, size, location, and an identifying number assigned by the Administrator, of each small business concern that has received a Phase I or Phase II SBIR or STTR award from a Federal agency;
    • (B) a description of each Phase I or Phase II SBIR or STTR award received by that small business concern, including—
      • (i) an abstract of the project funded by the award, excluding any proprietary information so identified by the small business concern;
      • (ii) the Federal agency making the award; and
      • (iii) the date and amount of the award;
    • (C) an identification of any business concern or subsidiary established for the commercial application of a product or service for which an SBIR or STTR award is made;
    • (D) information regarding mentors and Mentoring Networks, as required by section 657e(d) of this title ;
    • (E) with respect to assistance under the STTR program only—
      • (i) whether the small business concern or the research institution initiated their collaboration on each assisted STTR project;
      • (ii) whether the small business concern or the research institution originated any technology relating to the assisted STTR project;
      • (iii) the length of time it took to negotiate any licensing agreement between the small business concern and the research institution under each assisted STTR project; and
      • (iv) how the proceeds from commercialization, marketing, or sale of technology resulting from each assisted STTR project were allocated (by percentage) between the small business concern and the research institution; and
    • (F) for each small business concern that has received a Phase I or Phase II SBIR or STTR award from a Federal agency, whether the small business concern—
      • (i) has venture capital, hedge fund, or private equity firm investment and, if so, whether the small business concern is registered as majority-owned by multiple venture capital operating companies, hedge funds, or private equity firms as required under subsection (dd)(3);
      • (ii) is owned by a woman or has a woman as a principal investigator; 2
      • (iii) is owned by a socially or economically disadvantaged individual or has a socially or economically disadvantaged individual as a principal investigator; 2
      • (iv) is owned by a faculty member or a student of an institution of higher education, as that term is defined in section 1001 of title 20 ; or
      • (v) received assistance under the Federal and State Technology Partnership Program (FAST Program).
  • (2) Not later than 90 days after December 31, 2011 , the Administrator, in consultation with Federal agencies required to have an SBIR program pursuant to subsection (f)(1) or an STTR program pursuant to subsection (n)(1), shall develop and maintain a database to be used exclusively for SBIR and STTR program evaluation that—
    • (A) contains for each small business concern that applies for, submits a proposal for, or receives an award under Phase I or Phase II of the SBIR program or the STTR program—
      • (i) the name, size, and location of, and the identifying number assigned by the Administration to, the small business concern;
      • (ii) an abstract of the applicable project;
      • (iii) the specific aims of the project;
      • (iv) the number of employees of the small business concern;
      • (v) the names and titles of the key individuals that will carry out the project, the position each key individual holds in the small business concern, and contact information for each key individual;
      • (vi) the percentage of effort each individual described in clause (v) will contribute to the project;
      • (vii) whether the small business concern is majority-owned by multiple venture capital operating companies, hedge funds, or private equity firms; and
      • (viii) the Federal agency to which the application is made and contact information for the person or office within the Federal agency that is responsible for reviewing applications and making awards under the SBIR program or the STTR program;
    • (B) contains for each Phase II award made by a Federal agency—
      • (i) information collected in accordance with paragraph (3) on revenue from the sale of new products or services resulting from the research conducted under the award;
      • (ii) information collected in accordance with paragraph (3) on additional investment from any source, other than Phase I or Phase II SBIR or STTR awards, to further the research and development conducted under the award; and
      • (iii) any other information received in connection with the award that the Administrator, in conjunction with the SBIR and STTR program managers of Federal agencies, considers relevant and appropriate;
    • (C) includes any narrative information that a small business concern receiving a Phase II award voluntarily submits to further describe the outputs and outcomes of its awards;
    • (D) includes, for each awardee—
      • (i) the name, size, and location of, and any identifying number assigned by the Administrator to, the awardee;
      • (ii) whether the awardee has venture capital, hedge fund, or private equity firm investment and, if so—
        • (I) the amount of venture capital, hedge fund, or private equity firm investment as of the date of the award;
        • (II) the percentage of ownership of the awardee held by a venture capital operating company, hedge fund, or private equity firm, including whether the awardee is majority-owned by multiple venture capital operating companies, hedge funds, or private equity firms; and
        • (III) the amount of additional capital that the awardee has invested in the SBIR or STTR technology, which information shall be collected on an annual basis;
      • (iii) the names and locations of any affiliates of the awardee;
      • (iv) the number of employees of the awardee;
      • (v) the number of employees of the affiliates of the awardee; and
      • (vi) the names of, and the percentage of ownership of the awardee held by—
        • (I) any individual who is not a citizen of the United States or a lawful permanent resident of the United States; or
        • (II) any person that is not an individual and is not organized under the laws of a State or the United States;
    • (E) includes any other data collected by or available to any Federal agency that such agency considers may be useful for SBIR or STTR program evaluation;
    • (F) is available for use solely for program evaluation purposes by the Federal Government or, in accordance with policy directives issued by the Administration, by other authorized persons who are subject to a use and nondisclosure agreement with the Federal Government covering the use of the database; and
    • (G) includes a timely and accurate list of any individual or small business concern that has participated in the SBIR program or STTR program that has been—
      • (i) convicted of a fraud-related crime involving funding received under the SBIR program or STTR program; or
      • (ii) found civilly liable for a fraud-related violation involving funding received under the SBIR program or STTR program.
  • (3)
    • (A) A small business concern applying for a Phase II award under this section shall be required to update information in the database established under this subsection for any prior Phase II award received by that small business concern. In complying with this paragraph, a small business concern may apportion sales or additional investment information relating to more than one Phase II award among those awards, if it notes the apportionment for each award.
    • (B) A small business concern receiving a Phase II award under this section shall—
      • (i) update information in the database concerning that award at the termination of the award period; and
      • (ii) be requested to voluntarily update such information annually thereafter for a period of 5 years.
    • (C) Not later than 60 days after the date established by a Federal agency for submitting applications or proposals for a Phase I or Phase II award under the SBIR program or STTR program, the head of the Federal agency shall submit to the Administrator the data required under paragraph (2) with respect to each small business concern that applies or submits a proposal for the Phase I or Phase II award.
  • (4) Information provided under paragraph (2) shall be considered privileged and confidential and not subject to disclosure pursuant to section 552 of title 5 .
  • (5) Inclusion of information in the database under this subsection shall not be considered to be publication for purposes of subsection (a) or (b) of section 102 of title 35 .
• (l)
  • (1) If a Federal agency required to establish an SBIR program under subsection (f) makes an award with respect to an SBIR solicitation topic or subtopic for which the agency received only 1 proposal, the agency shall provide written justification for making the award in its next quarterly report to the Administration and in the agency’s next annual report required under subsection (g)(8).
  • (2) An agency referred to in paragraph (1) shall include in its next annual report required under subsection (g)(8) an accounting of the awards the agency has made for Phase I of an SBIR program during the reporting period to entities that have received more than 15 awards for Phase II of an SBIR program during the preceding 5 fiscal years.
  • (3) An agency referred to in paragraph (1) shall include in its next annual report required under subsection (g)(8), an accounting of the number of awards it has made to critical technology topics, as defined in subsection (g)(3), including an identification of the specific critical technologies topics, and the percentage by number and dollar amount of the agency’s total SBIR awards to such critical technology topics.
• (m) The authorization to carry out the Small Business Innovation Research Program established under this section shall terminate on September 30, 2022 .
• (n)
  • (1)
    • (A) With respect to each fiscal year through fiscal year 2022, each Federal agency that has an extramural budget for research, or research and development, in excess of $1,000,000,000 for that fiscal year, shall expend with small business concerns not less than the percentage of that extramural budget specified in subparagraph (B), specifically in connection with STTR programs that meet the requirements of this section and any policy directives and regulations issued under this section.
    • (B) The percentage of the extramural budget required to be expended by an agency in accordance with subparagraph (A) shall be—
      • (i) 0.15 percent for each fiscal year through fiscal year 2003;
      • (ii) 0.3 percent for each of fiscal years 2004 through 2011;
      • (iii) 0.35 percent for each of fiscal years 2012 and 2013;
      • (iv) 0.40 percent for each of fiscal years 2014 and 2015; and
      • (v) 0.45 percent for fiscal year 2016 and each fiscal year thereafter.
  • (2) A Federal agency shall not—
    • (A) use any of its STTR budget established pursuant to paragraph (1) for the purpose of funding administrative costs of the program, including costs associated with salaries and expenses, or, in the case of a small business concern or a research institution, costs associated with salaries, expenses, and administrative overhead (other than those direct or indirect costs allowable under guidelines of the Office of Management and Budget and the governmentwide Federal Acquisition Regulation issued in accordance with section 1303(a)(1) of title 41 ); or
    • (B) make available for the purpose of meeting the requirements of paragraph (1) an amount of its extramural budget for basic research which exceeds the percentage specified in paragraph (1).
  • (3) Funding agreements with small business concerns for research or research and development which result from competitive or single source selections other than an STTR program shall not be considered to meet any portion of the percentage requirements of paragraph (1).
• (o) Each Federal agency required to establish an STTR program in accordance with subsection (n) and regulations issued under this chapter, shall—
  • (1) unilaterally determine categories of projects to be included in its STTR program;
  • (2) issue STTR solicitations in accordance with a schedule determined cooperatively with the Administration;
  • (3) unilaterally determine research topics within the agency’s STTR solicitations, giving special consideration to broad research topics and to topics that further 1 or more critical technologies, as identified—
    • (A) by the National Critical Technologies Panel (or its successor) in reports required under section 6683 1 of title 42; or
    • (B) by the Secretary of Defense, in accordance with section 2522 1 of title 10;
  • (4)
    • (A) unilaterally receive and evaluate proposals resulting from STTR solicitations; and
    • (B) make a final decision on each proposal submitted under the STTR program—
      • (i) not later than 1 year after the date on which the applicable solicitation closes, if with respect to the National Institutes of Health or the National Science Foundation, or 90 days after the date on which the applicable solicitation closes, if with respect to any other participating agency; or
      • (ii) if the Administrator authorizes an extension for a solicitation, not later than 90 days after the date that would be applicable to the agency under clause (i);
  • (5) unilaterally select awardees for its STTR funding agreements and inform each awardee under such an agreement, to the extent possible, of the expenses of the awardee that will be allowable under the funding agreement;
  • (6) administer its own STTR funding agreements (or delegate such administration to another agency);
  • (7) make payments to recipients of STTR funding agreements on the basis of progress toward or completion of the funding agreement requirements and, in all cases, make payment to recipients under such agreements in full, subject to audit, on or before the last day of the 12-month period beginning on the date of the completion of such requirements;
  • (8) include, as part of its annual performance plan as required by subsections (a) and (b) of section 1115 of title 31 , a section on its STTR program, and shall submit such section to the Committee on Small Business of the Senate, and the Committee on Science and the Committee on Small Business of the House of Representatives;
  • (9) collect annually, and maintain in a common format in accordance with the simplified reporting requirements under subsection (v), such information from applicants and awardees as is necessary to assess the STTR program outputs and outcomes, including information necessary to maintain the database described in subsection (k), including—
    • (A) whether an applicant or awardee—
      • (i) has venture capital, hedge fund, or private equity firm investment or is majority-owned by multiple venture capital operating companies, hedge funds, or private equity firms and, if so—
        • (I) the amount of venture capital, hedge fund, or private equity firm investment that the applicant or awardee has received as of the date of the application or award, as applicable; and
        • (II) the amount of additional capital that the applicant or awardee has invested in the STTR technology;
      • (ii) has an investor that—
        • (I) is an individual who is not a citizen of the United States or a lawful permanent resident of the United States and, if so, the name of any such individual; or
        • (II) is a person that is not an individual and is not organized under the laws of a State or the United States and, if so, the name of any such person;
      • (iii) is owned by a woman or has a woman as a principal investigator; 2
      • (iv) is owned by a socially or economically disadvantaged individual or has a socially or economically disadvantaged individual as a principal investigator; 2
      • (v) is a faculty member or a student of an institution of higher education, as that term is defined in section 1001 of title 20 ; or
      • (vi) is located in a State in which the total value of contracts awarded to small business concerns under all STTR programs is less than the total value of contracts awarded to small business concerns in a majority of other States, as determined by the Administrator in biennial fiscal years, beginning with fiscal year 2008, based on the most recent statistics compiled by the Administrator;
    • (B) if an awardee receives an award in an amount that is more than the award guidelines under this section, a statement from the agency that justifies the award amount; and
    • (C) data with respect to the Federal and State Technology Partnership Program (FAST Program);
  • (10) submit an annual report on the STTR program to the Administration and the Office of Science and Technology Policy;
  • (11) adopt the agreement developed by the Administrator under subsection (w) as the agency’s model agreement for allocating between small business concerns and research institutions intellectual property rights and rights, if any, to carry out follow-on research, development, or commercialization;
  • (12) develop, in consultation with the Office of Federal Procurement Policy and the Office of Government Ethics, procedures to ensure that federally funded research and development centers (as defined in subsection (e)(8)) that participate in STTR agreements—
    • (A) are free from organizational conflicts of interests relative to the STTR program;
    • (B) do not use privileged information gained through work performed for an STTR agency or private access to STTR agency personnel in the development of an STTR proposal; and
    • (C) use outside peer review, as appropriate;
  • (13) not later than July 31, 1993 , develop procedures for assessing the commercial merit and feasibility of STTR proposals, as evidenced by—
    • (A) the small business concern’s record of successfully commercializing STTR or other research;
    • (B) the existence of Phase II funding commitments from private sector or non-STTR funding sources;
    • (C) the existence of Phase III follow-on commitments for the subject of the research; and
    • (D) the presence of other indicators of the commercial potential of the idea;
  • (14) implement an outreach program to research institutions and small business concerns for the purpose of enhancing its STTR program, in conjunction with any such outreach done for purposes of the SBIR program;
  • (15) provide for and fully implement the tenets of Executive Order No. 13329 (Encouraging Innovation in Manufacturing); and
  • (16) provide timely notice to the Administrator of any case or controversy before any Federal judicial or administrative tribunal concerning the STTR program of the Federal agency.
• (p)
  • (1) The Administrator shall issue a policy directive for the general conduct of the STTR programs within the Federal Government. Such policy directive shall be issued after consultation with—
    • (A) the heads of each of the Federal agencies required by subsection (n) to establish an STTR program;
    • (B) the Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office; and
    • (C) the Director of the Office of Federal Procurement Policy.
  • (2) The policy directive required by paragraph (1) shall provide for—
    • (A) simplified, standardized, and timely STTR solicitations;
    • (B) a simplified, standardized funding process that provides for—
      • (i) the timely receipt and review of proposals;
      • (ii) outside peer review, if appropriate;
      • (iii) protection of proprietary information provided in proposals;
      • (iv) selection of awardees;
      • (v) retention by a small business concern of the rights to data generated by the concern in the performance of an STTR award for a period of not less than 4 years;
      • (vi) continued use by a small business concern, as a directed bailment, of any property transferred by a Federal agency to the small business concern in Phase II of the STTR program for a period of not less than 2 years, beginning on the initial date of the concern’s participation in Phase III of such program;
      • (vii) cost sharing;
      • (viii) cost principles and payment schedules; and
      • (ix) 1-year awards for Phase I of an STTR program, generally not to exceed $150,000, and 2-year awards for Phase II of an STTR program, generally not to exceed $1,000,000, (each of which the Administrator shall adjust for inflation annually) greater or lesser amounts to be awarded at the discretion of the awarding agency, and shorter or longer periods of time to be approved at the discretion of the awarding agency where appropriate for a particular project;
    • (C) minimizing regulatory burdens associated with participation in STTR programs;
    • (D) guidelines for a model agreement, to be used by all agencies, for allocating between small business concerns and research institutions intellectual property rights and rights, if any, to carry out follow-on research, development, or commercialization;
    • (E) procedures to ensure that—
      • (i) a recipient of an STTR award is a small business concern, as defined in section 632 of this title and the regulations promulgated thereunder; and
      • (ii) such small business concern exercises management and control of the performance of the STTR funding agreement pursuant to a business plan providing for the commercialization of the technology that is the subject matter of the award;
    • (F) procedures to ensure, to the extent practicable, that an agency which intends to pursue research, development, or production of a technology developed by a small business concern under an STTR program enters into follow-on, non-STTR funding agreements with the small business concern for such research, development, or production; and
    • (G) procedures to ensure that procurement center representatives (as described in section 644( l ) of this title)—
      • (i) consult with the appropriate personnel from the relevant Federal agency, to assist small business concerns participating in the STTR program, particularly in Phase III;
      • (ii) provide technical assistance to such concerns to submit a bid for an award of a Federal contract; and
      • (iii) consult with the appropriate personnel from the relevant Federal agency in providing the assistance described in clause (i).
  • (3) Not later than 120 days after October 15, 2001 , the Administrator shall modify the policy directive issued pursuant to this subsection to clarify that the rights provided for under paragraph (2)(B)(v) apply to all Federal funding awards under this section, including Phase I, Phase II, and Phase III.
• (q)
  • (1) Each Federal agency required by this section to conduct an SBIR program or STTR program may enter into an agreement with 1 or more vendors selected under paragraph (2)(A) to provide small business concerns engaged in SBIR or STTR projects with technical and business assistance services, such as access to a network of scientists and engineers engaged in a wide range of technologies, assistance with product sales, intellectual property protections, market research, market validation, and development of regulatory plans and manufacturing plans, or access to technical and business literature available through on-line data bases, for the purpose of assisting such concerns in—
    • (A) making better technical decisions concerning such projects;
    • (B) solving technical problems which arise during the conduct of such projects;
    • (C) minimizing technical risks associated with such projects; and
    • (D) developing and commercializing new commercial products and processes resulting from such projects, including intellectual property protections.
  • (2)
    • (A) Each agency may select 1 or more vendors from which small business concerns may obtain assistance in meeting the goals listed in paragraph (1) for a term not to exceed 5 years. Such selection shall be competitive and shall utilize merit-based criteria.
    • (B) A small business concern may, by contract or otherwise, select 1 or more vendors to assist the small business concern in meeting the goals listed in paragraph (1).
  • (3)
    • (A) A Federal agency described in paragraph (1) may—
      • (i) provide to the recipient of a Phase I SBIR or STTR award, through a vendor selected under paragraph (2)(A), the services described in paragraph (1), in an amount equal to not more than $6,500 per year; or
      • (ii) authorize the recipient of a Phase I SBIR or STTR award to purchase the services described in paragraph (1), in an amount equal to not more than $6,500 per year, which shall be in addition to the amount of the recipient’s award.
    • (B) A Federal agency described in paragraph (1) may—
      • (i) provide to the recipient of a Phase II SBIR or STTR award, through a vendor selected under paragraph (2)(A), the services described in paragraph (1), in an amount equal to not more than $50,000 per project; or
      • (ii) authorize the recipient of a Phase II SBIR or STTR award to purchase the services described in paragraph (1), in an amount equal to not more than $50,000 per project, which may, as determined appropriate by the head of the Federal agency, be included as part of the recipient’s award or be in addition to the amount of the recipient’s award.
    • (C) In carrying out subparagraphs (A) and (B), each Federal agency shall provide the allowable amounts to a recipient that meets the eligibility requirements under the applicable subparagraph, if the recipient requests to seek technical or business assistance from an individual or entity other than a vendor selected under paragraph (2)(A) by the Federal agency. Business-related services aimed at improving the commercialization success of a small business concern may be obtained from an entity, such as a public or private organization or an agency of or other entity established or funded by a State that facilitates or accelerates the commercialization of technologies or assists in the creation and growth of private enterprises that are commercializing technology.
    • (D) A Federal agency may not—
      • (i) use the amounts authorized under subparagraph (A) or (B) unless 1 or more vendors selected under paragraph (2)(A) provides the technical or business assistance to the recipient; or
      • (ii) enter a contract with a vendor under paragraph (2)(A) under which the amount provided for technical or business assistance is based on total number of Phase I or Phase II awards.
    • (E) The Administrator shall establish a limit on the amount of technical and business assistance services that may be received or purchased under subparagraph (B) by a small business concern that has received multiple Phase II SBIR or STTR awards for a fiscal year.
  • (4)
    • (A) A small business concern that receives technical or business assistance from a vendor under this subsection during a fiscal year shall submit to the Federal agency contracting with the vendor a description of the technical or business assistance provided and the benefits and results of the technical or business assistance provided.
    • (B) The information required under subparagraph (A) shall be collected by a Federal agency as part of a report required to be submitted by small business concerns engaged in SBIR or STTR projects of the Federal agency for which the requirement was in effect on August 13, 2018 .
• (r)
  • (1) In the case of a small business concern that is awarded a funding agreement for Phase II of an SBIR or STTR program, a Federal agency may enter into a Phase III agreement with that business concern for additional work to be performed during or after the Phase II period. The Phase II funding agreement with the small business concern may, at the discretion of the agency awarding the agreement, set out the procedures applicable to Phase III agreements with that agency or any other agency.
  • (2) In this subsection, the term “Phase III agreement” means a follow-on, non-SBIR or non-STTR funded contract as described in paragraph (4)(C) or paragraph (6)(C) of subsection (e).
  • (3) Each funding agreement under an SBIR or STTR program shall include provisions setting forth the respective rights of the United States and the small business concern with respect to intellectual property rights and with respect to any right to carry out follow-on research.
  • (4) To the greatest extent practicable, Federal agencies and Federal prime contractors shall—
    • (A) consider an award under the SBIR program or the STTR program to satisfy the requirements under section 2304 of title 10 and any other applicable competition requirements; and
    • (B) issue, without further justification, Phase III awards relating to technology, including sole source awards, to the SBIR and STTR award recipients that developed the technology.
• (s) All funds awarded, appropriated, or otherwise made available in accordance with subsection (f) or (n) must be awarded pursuant to competitive and merit-based selection procedures.
• (t) Program information relating to the SBIR and STTR programs shall be included by each Federal agency in any update or revision required of the Federal agency under section 306(b) of title 5 .
• (u)
  • (1) In this subsection, the term “technology development program” means—
    • (A) the Experimental Program to Stimulate Competitive Research of the National Science Foundation, as established under section 1862g of title 42 ;
    • (B) the Defense Experimental Program to Stimulate Competitive Research of the Department of Defense;
    • (C) the Experimental Program to Stimulate Competitive Research of the Department of Energy;
    • (D) the Experimental Program to Stimulate Competitive Research of the Environmental Protection Agency;
    • (E) the Experimental Program to Stimulate Competitive Research of the National Aeronautics and Space Administration;
    • (F) the Institutional Development Award Program of the National Institutes of Health; and
    • (G) the National Research Initiative Competitive Grants Program of the Department of Agriculture.
  • (2) Each Federal agency that is subject to subsection (f) and that has established a technology development program may, in each fiscal year, review for funding under that technology development program—
    • (A) any proposal to provide outreach and assistance to one or more small business concerns interested in participating in the SBIR program, including any proposal to make a grant or loan to a company to pay a portion or all of the cost of developing an SBIR proposal, from an entity, organization, or individual located in—
      • (i) a State that is eligible to participate in that program; or
      • (ii) a State described in paragraph (3); or
    • (B) any proposal for Phase I of the SBIR program, if the proposal, though meritorious, is not funded through the SBIR program for that fiscal year due to funding restraints, from a small business concern located in—
      • (i) a State that is eligible to participate in a technology development program; or
      • (ii) a State described in paragraph (3).
  • (3) A State referred to in subparagraph (A)(ii) or (B)(ii) of paragraph (2) is a State in which the total value of contracts awarded to small business concerns under all SBIR programs is less than the total value of contracts awarded to small business concerns in a majority of other States, as determined by the Administrator in biennial fiscal years, beginning with fiscal year 2000, based on the most recent statistics compiled by the Administrator.
• (v)
  • (1) The Administrator shall work with the Federal agencies required by this section to have an SBIR or STTR program to standardize reporting requirements for the collection of data from SBIR or STTR applicants and awardees, including data for inclusion in the database under subsection (k), taking into consideration the unique needs of each agency, and to the extent possible, permitting the updating of previously reported information by electronic means. Such requirements shall be designed to minimize the burden on small businesses.
  • (2) Not later than 1 year after December 31, 2011 , and after a period of public comment, the Administrator shall issue regulations or guidelines, taking into consideration the unique needs of each Federal agency, to ensure that each Federal agency required to carry out an SBIR program or STTR program simplifies and standardizes the program proposal, selection, contracting, compliance, and audit procedures for the SBIR program or STTR program of the Federal agency (including procedures relating to overhead rates for applicants and documentation requirements) to reduce the paperwork and regulatory compliance burden on small business concerns applying to and participating in the SBIR program or STTR program.
• (w)
  • (1) The Administrator shall promulgate regulations establishing a single model agreement for use in the STTR program that allocates between small business concerns and research institutions intellectual property rights and rights, if any, to carry out follow-on research, development, or commercialization.
  • (2) In promulgating regulations under paragraph (1), the Administrator shall provide to affected agencies, small business concerns, research institutions, and other interested parties the opportunity to submit written comments.
• (x)
  • (1) In carrying out subsection (g), the Secretary of Defense shall, not less often than once every 4 years, revise and update the criteria and procedures utilized to identify areas of the research and development efforts of the Department of Defense which are suitable for the provision of funds under the Small Business Innovation Research Program and the Small Business Technology Transfer Program.
  • (2) The criteria and procedures described in paragraph (1) shall be developed through the use of the most current versions of the following plans:
    • (A) The Joint Warfighting Science and Technology Plan required under section 270 of the National Defense Authorization Act for Fiscal Year 1997 ( Public Law 104–201 ; 10 U.S.C. 2501 note).
    • (B) The Defense Technology Area Plan of the Department of Defense.
    • (C) The Basic Research Plan of the Department of Defense.
  • (3) The criteria and procedures described in paragraph (1) shall include input in the identification of areas of research and development efforts described in that paragraph from Department of Defense program managers (PMs) and program executive officers (PEOs).
• (y)
  • (1) The Secretary of Defense and the Secretary of each military department is authorized to create and administer a “Commercialization Readiness Program” to accelerate the transition of technologies, products, and services developed under the Small Business Innovation Research Program or Small Business Technology Transfer Program to Phase III, including the acquisition process. The authority to create and administer a Commercialization Readiness Program under this subsection may not be construed to eliminate or replace any other SBIR program or STTR program that enhances the insertion or transition of SBIR or STTR technologies, including any such program in effect on January 6, 2006 .
  • (2) In carrying out the Commercialization Readiness Program, the Secretary of Defense and the Secretary of each military department shall identify research programs of the Small Business Innovation Research Program or Small Business Technology Transfer Program that have the potential for rapid transitioning to Phase III and into the acquisition process.
  • (3) No research program may be identified under paragraph (2) unless the Secretary of the military department concerned certifies in writing that the successful transition of the program to Phase III and into the acquisition process is expected to meet high priority military requirements of such military department.
  • (4)
    • (A) The Secretary of Defense and each Secretary of a military department may use not more than an amount equal to 1 percent of the funds available to the Department of Defense or the military department pursuant to the Small Business Innovation Research Program for payment of expenses incurred to administer the Commercialization Readiness Program under this subsection.
    • (B) The funds described in subparagraph (A)—
      • (i) shall not be subject to the limitations on the use of funds in subsection (f)(2); and
      • (ii) shall not be used to make Phase III awards.
  • (5) For any contract with a value of not less than $100,000,000, the Secretary of Defense is authorized to—
    • (A) establish goals for the transition of Phase III technologies in subcontracting plans; and
    • (B) require a prime contractor on such a contract to report the number and dollar amount of contracts entered into by that prime contractor for Phase III SBIR or STTR projects.
  • (6) The Secretary of Defense shall—
    • (A) set a goal to increase the number of Phase II SBIR contracts and the number of Phase II STTR contracts awarded by the Secretary that lead to technology transition into programs of record or fielded systems;
    • (B) use incentives in effect on December 31, 2011 , or create new incentives, to encourage agency program managers and prime contractors to meet the goal under subparagraph (A); and
    • (C) submit to the Administrator for inclusion in the annual report under subsection (b)(7)—
      • (i) the number and percentage of Phase II SBIR and STTR contracts awarded by the Secretary that led to technology transition into programs of record or fielded systems;
      • (ii) information on the status of each project that received funding through the Commercialization Readiness Program and efforts to transition those projects into programs of record or fielded systems; and
      • (iii) a description of each incentive that has been used by the Secretary under subparagraph (B) and the effectiveness of that incentive with respect to meeting the goal under subparagraph (A).
• (z)
  • (1) In carrying out its duties under this section relating to SBIR and STTR solicitations by Federal departments and agencies, the Administrator shall—
    • (A) ensure that such departments and agencies give high priority to small business concerns that participate in or conduct energy efficiency or renewable energy system research and development projects; and
    • (B) include in the annual report to Congress under subsection (b)(7) a determination of whether the priority described in subparagraph (A) is being carried out.
  • (2) The Administrator shall consult with the heads of other Federal departments and agencies in determining whether priority has been given to small business concerns that participate in or conduct energy efficiency or renewable energy system research and development projects, as required by this subsection.
  • (3) The Administrator shall, as soon as is practicable after December 19, 2007 , issue guidelines and directives to assist Federal agencies in meeting the requirements of this subsection.
  • (4) In this subsection—
    • (A) the term “biomass”—
      • (i) means any organic material that is available on a renewable or recurring basis, including—
        • (I) agricultural crops;
        • (II) trees grown for energy production;
        • (III) wood waste and wood residues;
        • (IV) plants (including aquatic plants and grasses);
        • (V) residues;
        • (VI) fibers;
        • (VII) animal wastes and other waste materials; and
        • (VIII) fats, oils, and greases (including recycled fats, oils, and greases); and
      • (ii) does not include—
        • (I) paper that is commonly recycled; or
        • (II) unsegregated solid waste;
    • (B) the term “energy efficiency project” means the installation or upgrading of equipment that results in a significant reduction in energy usage; and
    • (C) the term “renewable energy system” means a system of energy derived from—
      • (i) a wind, solar, biomass (including biodiesel), or geothermal source; or
      • (ii) hydrogen derived from biomass or water using an energy source described in clause (i).
• (aa)
  • (1) No Federal agency may issue an award under the SBIR program or the STTR program if the size of the award exceeds the award guidelines established under this section by more than 50 percent.
  • (2) Participating agencies shall maintain information on awards exceeding the guidelines established under this section, including—
    • (A) the amount of each award;
    • (B) a justification for exceeding the guidelines for each award;
    • (C) the identity and location of each award recipient; and
    • (D) whether an award recipient has received any venture capital, hedge fund, or private equity firm investment and, if so, whether the recipient is majority-owned by multiple venture capital operating companies, hedge funds, or private equity firms.
  • (3) The Administrator shall include the information described in paragraph (2) in the annual report of the Administrator to Congress.
  • (4) Upon the receipt of an application from a Federal agency, the Administrator may grant a waiver from the requirement under paragraph (1) with respect to a specific topic (but not for the agency as a whole) for a fiscal year if the Administrator determines, based on the information contained in the application from the agency, that—
    • (A) the requirement under paragraph (1) will interfere with the ability of the agency to fulfill its research mission through the SBIR program or the STTR program; and
    • (B) the agency will minimize, to the maximum extent possible, the number of awards that do not satisfy the requirement under paragraph (1) to preserve the nature and intent of the SBIR program and the STTR program.
  • (5) Nothing in this subsection shall be construed to prevent a Federal agency from supplementing an award under the SBIR program or the STTR program using funds of the Federal agency that are not part of the SBIR program or the STTR program of the Federal agency.
• (bb)
  • (1) A small business concern that received a Phase I award from a Federal agency under this section shall be eligible to receive a subsequent Phase II award from another Federal agency, if the head of each relevant Federal agency or the relevant component of the Federal agency makes a written determination that the topics of the relevant awards are the same and both agencies report the awards to the Administrator for inclusion in the public database under subsection (k).
  • (2) A small business concern that received a Phase I award under this section under the SBIR program or the STTR program may receive a subsequent Phase II award in either the SBIR program or the STTR program and the participating agency or agencies shall report the awards to the Administrator for inclusion in the public database under subsection (k).
  • (3) The head of a Federal agency shall verify that any activity to be performed with respect to a project with a Phase I or Phase II SBIR or STTR award has not been funded under the SBIR program or STTR program of another Federal agency.
• (cc) During fiscal years 2012 through 2022, the National Institutes of Health, the Department of Defense, and the Department of Education may each provide to a small business concern an award under Phase II of the SBIR program with respect to a project, without regard to whether the small business concern was provided an award under Phase I of an SBIR program with respect to such project, if the head of the applicable agency determines that the small business concern has completed the determinations described in subsection (e)(4)(A) with respect to such project despite not having been provided a Phase I award.
• (dd)
  • (1) Upon providing a written determination described in paragraph (2) to the Administrator, the Committee on Small Business and Entrepreneurship of the Senate, and the Committee on Small Business and the Committee on Science, Space, and Technology of the House of Representatives, not later than 30 days before the date on which any such award is made—
    • (A) the Director of the National Institutes of Health, the Secretary of Energy, and the Director of the National Science Foundation may award not more than 25 percent of the funds allocated for the SBIR program of the applicable Federal agency to small business concerns that are owned in majority part by multiple venture capital operating companies, hedge funds, or private equity firms through competitive, merit-based procedures that are open to all eligible small business concerns; and
    • (B) the head of a Federal agency other than a Federal agency described in subparagraph (A) that participates in the SBIR program may award not more than 15 percent of the funds allocated for the SBIR program of the Federal agency to small business concerns that are owned in majority part by multiple venture capital operating companies, hedge funds, or private equity firms through competitive, merit-based procedures that are open to all eligible small business concerns.
  • (2) A written determination described in this paragraph is a written determination by the head of a Federal agency that explains how the use of the authority under paragraph (1) will—
    • (A) induce additional venture capital, hedge fund, or private equity firm funding of small business innovations;
    • (B) substantially contribute to the mission of the Federal agency;
    • (C) demonstrate a need for public research; and
    • (D) otherwise fulfill the capital needs of small business concerns for additional financing for SBIR projects.
  • (3) A small business concern that is majority-owned by multiple venture capital operating companies, hedge funds, or private equity firms and qualified for participation in the program authorized under paragraph (1) shall—
    • (A) register with the Administrator on the date that the small business concern submits an application for an award under the SBIR program; and
    • (B) indicate in any SBIR proposal that the small business concern is registered under subparagraph (A) as majority-owned by multiple venture capital operating companies, hedge funds, or private equity firms.
  • (4)
    • (A) The head of a Federal agency that makes an award under this subsection during a fiscal year shall collect and submit to the Administrator data relating to the number and dollar amount of Phase I awards, Phase II awards, and any other category of awards by the Federal agency under the SBIR program during that fiscal year.
    • (B) The Administrator shall include as part of each annual report by the Administration under subsection (b)(7) any data submitted under subparagraph (A) and a discussion of the compliance of each Federal agency that makes an award under this subsection during the fiscal year with the maximum percentages under paragraph (1).
  • (5) If a Federal agency awards more than the percent of the funds allocated for the SBIR program of the Federal agency authorized under paragraph (1) for a purpose described in paragraph (1), the head of the Federal agency shall transfer an amount equal to the amount awarded in excess of the amount authorized under paragraph (1) to the funds for general SBIR programs from the non-SBIR and non-STTR research and development funds of the Federal agency not later than 180 days after the date on which the Federal agency made the award that caused the total awarded under paragraph (1) to be more than the amount authorized under paragraph (1) for a purpose described in paragraph (1).
  • (6)
    • (A) In this paragraph, the term “covered small business concern” means a small business concern that—
      • (i) was not majority-owned by multiple venture capital operating companies, hedge funds, or private equity firms on the date on which the small business concern submitted an application in response to a solicitation under the SBIR programs; and
      • (ii) on the date of the award under the SBIR program is majority-owned by multiple venture capital operating companies, hedge funds, or private equity firms.
    • (B) If a Federal agency does not make an award under a solicitation under the SBIR program before the date that is 9 months after the date on which the period for submitting applications under the solicitation ends—
      • (i) a covered small business concern is eligible to receive the award, without regard to whether the covered small business concern meets the requirements for receiving an award under the SBIR program for a small business concern that is majority-owned by multiple venture capital operating companies, hedge funds, or private equity firms, if the covered small business concern meets all other requirements for such an award; and
      • (ii) the head of the Federal agency shall transfer an amount equal to any amount awarded to a covered small business concern under the solicitation to the funds for general SBIR programs from the non-SBIR and non-STTR research and development funds of the Federal agency, not later than 90 days after the date on which the Federal agency makes the award.
  • (7) A Federal agency may not use investment of venture capital or investment from hedge funds or private equity firms as a criterion for the award of contracts under the SBIR program or STTR program.
• (ee)
  • (1) Subject to the limitations under this section, the head of each participating Federal agency may make SBIR and STTR awards to any eligible small business concern that—
    • (A) intends to enter into an agreement with a Federal laboratory or federally funded research and development center for portions of the activities to be performed under that award; or
    • (B) has entered into a cooperative research and development agreement (as defined in section 3710a(d) of this title ) with a Federal laboratory.
  • (2) No Federal agency shall—
    • (A) condition an SBIR or STTR award upon entering into agreement with any Federal laboratory or any federally funded laboratory or research and development center for any portion of the activities to be performed under that award;
    • (B) approve an agreement between a small business concern receiving an SBIR or STTR award and a Federal laboratory or federally funded laboratory or research and development center, if the small business concern performs a lesser portion of the activities to be performed under that award than required by this section and by the SBIR Policy Directive and the STTR Policy Directive of the Administrator; or
    • (C) approve an agreement that violates any provision, including any data rights protections provision, of this section or the SBIR and the STTR Policy Directives.
  • (3) Not later than 180 days after December 31, 2011 , the Administrator shall modify the SBIR Policy Directive and the STTR Policy Directive issued under this section to ensure that small business concerns—
    • (A) have the flexibility to use the resources of the Federal laboratories or federally funded research and development centers; and
    • (B) are not mandated to enter into agreement with any Federal laboratory or any federally funded laboratory or research and development center as a condition of an award.
  • (4) If a small business concern receiving an award under this section enters into an agreement with a Federal laboratory or federally funded research and development center for portions of the activities to be performed under that award, the Federal laboratory or federally funded research and development center may not require advance payment from the small business concern in an amount greater than the amount necessary to pay for 30 days of such activities.
• (ff)
  • (1) A small business concern that receives a Phase II SBIR award or a Phase II STTR award for a project remains eligible to receive 1 additional Phase II SBIR award or Phase II STTR award for continued work on that project.
  • (2) The head of a Federal agency shall verify that any activity to be performed with respect to a project with a Phase I or Phase II SBIR or STTR award has not been funded under the SBIR program or STTR program of another Federal agency.
• (gg)
  • (1) The head of each covered Federal agency may allocate not more than 10 percent of the funds allocated to the SBIR program and the STTR program of the covered Federal agency—
    • (A) for awards for technology development, testing, evaluation, and commercialization assistance for SBIR and STTR Phase II technologies; or
    • (B) to support the progress of research, research and development, and commercialization conducted under the SBIR or STTR programs to Phase III.
  • (2)
    • (A) A covered Federal agency may not establish a pilot program unless the covered Federal agency makes a written application to the Administrator, not later than 90 days before the first day of the fiscal year in which the pilot program is to be established, that describes a compelling reason that additional investment in SBIR or STTR technologies is necessary, including unusually high regulatory, systems integration, or other costs relating to development or manufacturing of identifiable, highly promising small business technologies or a class of such technologies expected to substantially advance the mission of the agency.
    • (B) The Administrator shall—
      • (i) make a determination regarding an application submitted under subparagraph (A) not later than 30 days before the first day of the fiscal year for which the application is submitted;
      • (ii) publish the determination in the Federal Register; and
      • (iii) make a copy of the determination and any related materials available to the Committee on Small Business and Entrepreneurship of the Senate and the Committee on Small Business and the Committee on Science, Space, and Technology of the House of Representatives.
  • (3) The head of a covered Federal agency may not make an award under a pilot program in excess of 3 times the dollar amounts generally established for Phase II awards under subsection (j)(2)(D) or (p)(2)(B)(ix).
  • (4) Any applicant that receives an award under a pilot program shall register with the Administrator in a registry that is available to the public.
  • (5) When making an award under this section, the head of a covered Federal agency shall give consideration to whether the technology to be supported by the award is likely to be manufactured in the United States.
  • (6) The head of each covered Federal agency shall include in the annual report of the covered Federal agency to the Administrator an analysis of the various activities considered for inclusion in the pilot program of the covered Federal agency and a statement of the reasons why each activity considered was included or not included, as the case may be.
  • (7) The authority to establish a pilot program under this section expires at the end of fiscal year 2022.
  • (8) In this subsection—
    • (A) the term “covered Federal agency”—
      • (i) means a Federal agency participating in the SBIR program or the STTR program; and
      • (ii) does not include the Department of Defense; and
    • (B) the term “pilot program” means each program established under paragraph (1).
• (hh)
  • (1) Federal agencies participating in the SBIR program or STTR program shall, to the extent possible, shorten the amount of time between the provision of notice of an award under the SBIR program or STTR program and the subsequent release of funding with respect to the award.
  • (2)
    • (A) Not later than 1 year after August 13, 2018 , the Under Secretary of Defense for Research and Engineering, acting through the Director of Defense Procurement and Acquisition Policy of the Department of Defense, shall establish a pilot program to reduce the time for awards under the SBIR and STTR programs of the Department of Defense, under which the Department of Defense shall—
      • (i) develop simplified and standardized procedures and model contracts throughout the Department of Defense for Phase I, Phase II, and Phase III SBIR awards;
      • (ii) for Phase I SBIR and STTR awards, reduce the amount of time between solicitation closure and award;
      • (iii) for Phase II SBIR and STTR awards, reduce the amount of time between the end of a Phase I award and the start of the Phase II award;
      • (iv) for Phase II SBIR and STTR awards that skip Phase I, reduce the amount of time between solicitation closure and award;
      • (v) for sequential Phase II SBIR and STTR awards, reduce the amount of time between Phase II awards; and
      • (vi) reduce the award times described in clauses (ii), (iii), (iv), and (v) to be as close to 90 days as possible.
    • (B) In carrying out the pilot program under subparagraph (A), the Director of Defense Procurement and Acquisition Policy of the Department of Defense shall consult with the Director of the Office of Small Business Programs of the Department of Defense.
    • (C) The pilot program under subparagraph (A) shall terminate on September 30, 2022 .
• (ii)
  • (1) Federal agencies participating in the SBIR program or STTR program shall provide to the Administrator, for the annual report on the SBIR and STTR program under subsection (b)(7), the average amount of time the agency takes to make a final decision on proposals submitted under such programs, the average amount of time the agency takes to release funding with respect to an award under such programs, and the goals established to reduce such amounts.
  • (2) The Comptroller General of the United States shall submit to the Committee on Small Business and Entrepreneurship of the Senate, the Committee on Armed Services of the Senate, the Committee on Small Business of the House of Representatives, and the Committee on Armed Services of the House of Representatives—
    • (A) not later than 1 year after August 13, 2018 , and every year thereafter for 3 years, a report that—
      • (i) provides the average and median amount of time that each component of the Department of Defense with an SBIR or STTR program takes to review and make a final decision on proposals submitted under the program; and
      • (ii) compares that average and median amount of time with that of other Federal agencies participating in the SBIR or STTR program; and
    • (B) not later than December 5, 2021 , a report that—
      • (i) includes the information described in subparagraph (A);
      • (ii) assesses where each Federal agency participating in the SBIR or STTR program needs improvement with respect to the proposal review and award times under the program;
      • (iii) identifies best practices for shortening the proposal review and award times under the SBIR and STTR programs, including the pros and cons of using contracts compared to grants; and
      • (iv) analyzes the efficacy of the pilot program established under subsection (hh)(2).
• (jj)
  • (1) The Director of the National Institutes of Health may use $5,000,000 of the funds allocated under subsection (n)(1) for a Proof of Concept Partnership pilot program to accelerate the creation of small businesses and the commercialization of research innovations from qualifying institutions. To implement this program, the Director shall award, through a competitive, merit-based process, grants to qualifying institutions. These grants shall only be used to administer Proof of Concept Partnership awards in conformity with this subsection.
  • (2) In this subsection—
    • (A) the term “Director” means the Director of the National Institutes of Health;
    • (B) the term “pilot program” refers to the Proof of Concept Partnership pilot program; and
    • (C) the terms “qualifying institution” and “institution” mean a university or other research institution that participates in the National Institutes of Health’s STTR program.
  • (3)
    • (A) A Proof of Concept Partnership shall be set up by a qualifying institution to award grants to individual researchers. These grants should provide researchers with the initial investment and the resources to support the proof of concept work and commercialization mentoring needed to translate promising research projects and technologies into a viable company. This work may include technical validations, market research, clarifying intellectual property rights position and strategy, and investigating commercial or business opportunities.
    • (B) The administrator of a Proof of Concept Partnership program shall award grants in accordance with the following guidelines:
      • (i) The Proof of Concept Partnership shall use a market-focused project management oversight process, including—
        • (I) a rigorous, diverse review board comprised of local experts in translational and proof of concept research, including industry, start-up, venture capital, technical, financial, and business experts and university technology transfer officials;
        • (II) technology validation milestones focused on market feasibility;
        • (III) simple reporting effective at redirecting projects; and
        • (IV) the willingness to reallocate funding from failing projects to those with more potential.
      • (ii) Not more than $100,000 shall be awarded towards an individual proposal.
    • (C) The administrator of a Proof of Concept Partnership program shall make educational resources and guidance available to researchers attempting to commercialize their innovations.
  • (4)
    • (A) The Director may make awards to a qualifying institution for up to $1,000,000 per year for up to 4 years.
    • (B) In determining which qualifying institutions receive pilot program grants, the Director shall consider, in addition to any other criteria the Director determines necessary, the extent to which qualifying institutions—
      • (i) have an established and proven technology transfer or commercialization office and have a plan for engaging that office in the program’s implementation;
      • (ii) have demonstrated a commitment to local and regional economic development;
      • (iii) are located in diverse geographies and are of diverse sizes;
      • (iv) can assemble project management boards comprised of industry, start-up, venture capital, technical, financial, and business experts;
      • (v) have an intellectual property rights strategy or office; and
      • (vi) demonstrate a plan for sustainability beyond the duration of the funding award.
  • (5) The funds for the pilot program shall not be used—
    • (A) for basic research, but to evaluate the commercial potential of existing discoveries, including—
      • (i) proof of concept research or prototype development; and
      • (ii) activities that contribute to determining a project’s commercialization path, to include technical validations, market research, clarifying intellectual property rights, and investigating commercial and business opportunities; or
    • (B) to fund the acquisition of research equipment or supplies unrelated to commercialization activities.
  • (6) The Director shall submit to the Committee on Science, Space, and Technology and the Committee on Small Business of the House of Representatives and the Committee on Small Business and Entrepreneurship of the Senate an evaluative report regarding the activities of the pilot program. The report shall include—
    • (A) a detailed description of the institutional and proposal selection process;
    • (B) an accounting of the funds used in the pilot program;
    • (C) a detailed description of the pilot program, including incentives and activities undertaken by review board experts;
    • (D) a detailed compilation of results achieved by the pilot program, including the number of small business concerns included and the number of business packages developed, and the number of projects that progressed into subsequent STTR phases; and
    • (E) an analysis of the program’s effectiveness with supporting data.
  • (7) The pilot program under this subsection shall terminate at the end of fiscal year 2022.
• (kk) The annual SBIR or STTR report to Congress by the Administration under subsection (b)(7) shall include, for each Phase III award—
  • (1) the name of the agency or component of the agency or the non-Federal source of capital making the Phase III award;
  • (2) the name of the small business concern or individual receiving the Phase III award; and
  • (3) the dollar amount of the Phase III award.
• (ll)
  • (1) Each Federal agency required by this section to conduct an SBIR program or an STTR program shall enable a small business concern that is an SBIR applicant or an STTR applicant to indicate to the Federal agency whether the Federal agency has the consent of the concern to—
    • (A) identify the concern to appropriate local and State-level economic development organizations as an SBIR applicant or an STTR applicant; and
    • (B) release the contact information of the concern to such organizations.
  • (2) The Administrator shall establish rules to implement this subsection. The rules shall include a requirement that a Federal agency include in the SBIR and STTR application a provision through which the applicant can indicate consent for purposes of paragraph (1).
• (mm)
  • (1) Subject to paragraph (3) and until September 30, 2022 , the Administrator shall allow each Federal agency required to conduct an SBIR program to use not more than 3 percent of the funds allocated to the SBIR program of the Federal agency for—
    • (A) the administration of the SBIR program or the STTR program of the Federal agency;
    • (B) the provision of outreach and technical assistance relating to the SBIR program or STTR program of the Federal agency, including technical assistance site visits, personnel interviews, and national conferences;
    • (C) the implementation of commercialization and outreach initiatives that were not in effect on December 31, 2011 ;
    • (D) carrying out the program under subsection (y);
    • (E) activities relating to oversight and congressional reporting, including waste, fraud, and abuse prevention activities;
    • (F) targeted reviews of recipients of awards under the SBIR program or STTR program of the Federal agency that the head of the Federal agency determines are at high risk for fraud, waste, or abuse to ensure compliance with requirements of the SBIR program or STTR program, respectively;
    • (G) the implementation of oversight and quality control measures, including verification of reports and invoices and cost reviews;
    • (H) carrying out subsection (dd);
    • (I) contract processing costs relating to the SBIR program or STTR program of the Federal agency;
    • (J) funding for additional personnel and assistance with application reviews; and
    • (K) funding for improvements that increase commonality across data systems, reduce redundancy, and improve data oversight and accuracy.
  • (2)
    • (A) Except as provided in subparagraph (B), a Federal agency participating in the program under this subsection shall use a portion of the funds authorized for uses under paragraph (1) to carry out the policy directive required under subsection (j)(2)(F) and to increase the participation of States with respect to which a low level of SBIR awards have historically been awarded.
    • (B) A Federal agency may request the Administrator to waive the requirement contained in subparagraph (A). Such request shall include an explanation of why the waiver is necessary. The Administrator may grant the waiver based on a determination that the agency has demonstrated a sufficient need for the waiver, that the outreach objectives of the agency are being met, and that there is increased participation by States with respect to which a low level of SBIR awards have historically been awarded.
  • (3) A Federal agency may not use funds as authorized under paragraph (1) until after the effective date of performance criteria, which the Administrator shall establish, to measure any benefits of using funds as authorized under paragraph (1) and to assess continuation of the authority under paragraph (1).
  • (4) Not later than 180 days after December 31, 2011 , the Administrator shall issue rules to carry out this subsection.
  • (5) Each Federal agency shall coordinate the activities funded under subparagraph (E), (F), or (G) of paragraph (1) with their respective Inspectors General, when appropriate, and each Federal agency that allocates more than $50,000,000 to the SBIR program of the Federal agency for a fiscal year may share such funding with its Inspector General when the Inspector General performs such activities.
  • (6) The Administrator shall collect data and provide to the Committee on Small Business and Entrepreneurship of the Senate and the Committee on Small Business, the Committee on Science, Space, and Technology, and the Committee on Appropriations of the House of Representatives a report on the use of funds under this subsection, including funds used to achieve the objectives of paragraph (2)(A) and any use of the waiver authority under paragraph (2)(B).
• (nn)
  • (1) The head of each Federal agency required to participate in the SBIR program or the STTR program shall develop metrics to evaluate the effectiveness and the benefit to the people of the United States of the SBIR program and the STTR program of the Federal agency that—
    • (A) are science-based and statistically driven;
    • (B) reflect the mission of the Federal agency; and
    • (C) include factors relating to the economic impact of the programs.
  • (2) The head of each Federal agency described in paragraph (1) shall conduct an annual evaluation using the metrics developed under paragraph (1) of—
    • (A) the SBIR program and the STTR program of the Federal agency; and
    • (B) the benefits to the people of the United States of the SBIR program and the STTR program of the Federal agency.
  • (3)
    • (A) The head of each Federal agency described in paragraph (1) shall submit to the appropriate committees of Congress and the Administrator an annual report describing in detail the results of an evaluation conducted under paragraph (2).
    • (B) The head of each Federal agency described in paragraph (1) shall make each report submitted under subparagraph (A) available to the public online.
    • (C) In this paragraph, the term “appropriate committees of Congress” means—
      • (i) the Committee on Small Business and Entrepreneurship of the Senate; and
      • (ii) the Committee on Small Business and the Committee on Science, Space, and Technology of the House of Representatives.
• (oo) All funds awarded, appropriated, or otherwise made available in accordance with subsection (f) or (n) must be awarded pursuant to competitive and merit-based selection procedures.
• (pp)
  • (1) The Administrator may only carry out a covered pilot program that is in operation on December 31, 2011 , during the 3-year period beginning on such date.
  • (2) The Administrator may only carry out a covered pilot program established after December 31, 2011 —
    • (A) during the 3-year period beginning on the date on which such program is established; and
    • (B) if such program does not continue and is not based on, in any manner, a previously established covered pilot program.
  • (3) In this subsection, the term “covered pilot program” means any initiative, project, innovation, or other activity—
    • (A) established by the Administrator;
    • (B) relating to an SBIR or STTR program; and
    • (C) not specifically authorized by law.
• (qq)
  • (1)
    • (A) Not later than 1 year after December 31, 2011 , the head of each Federal agency participating in the SBIR or STTR program shall—
      • (i) establish a system to measure, where appropriate, the success of small business concerns with respect to the receipt of Phase II SBIR or STTR awards for projects that have received Phase I SBIR or STTR awards;
      • (ii) establish a minimum performance standard for small business concerns with respect to the receipt of Phase II SBIR or STTR awards for projects that have received Phase I SBIR or STTR awards; and
      • (iii) begin evaluating, each fiscal year, whether each small business concern that received a Phase I SBIR or STTR award from the agency meets the minimum performance standard established under clause (ii).
    • (B) If the head of a Federal agency determines that a small business concern that received a Phase I SBIR or STTR award from the agency is not meeting the minimum performance standard established under subparagraph (A)(ii), such concern may not participate in Phase I (or Phase II if under the authority of subsection (cc)) of the SBIR or STTR program of that agency during the 1-year period beginning on the date on which such determination is made.
  • (2)
    • (A) Not later than 2 years after December 31, 2011 , the head of each Federal agency participating in the SBIR or STTR program shall—
      • (i) establish a system to measure, where appropriate, the success of small business concerns with respect to the receipt of Phase III SBIR or STTR awards for projects that have received Phase I SBIR or STTR awards;
      • (ii) establish a minimum performance standard for small business concerns with respect to the receipt of Phase III SBIR or STTR awards for projects that have received Phase I SBIR or STTR awards; and
      • (iii) begin evaluating, each fiscal year, whether each small business concern that received a Phase I SBIR or STTR award from the agency meets the minimum performance standard established under clause (ii).
    • (B) If the head of a Federal agency determines that a small business concern that received a Phase I SBIR or STTR award from the agency is not meeting the minimum performance standard established under subparagraph (A)(ii), such concern may not participate in Phase I (or Phase II if under the authority of subsection (cc)) of the SBIR or STTR program of that agency during the 1-year period beginning on the date on which such determination is made.
  • (3)
    • (A) Each system and minimum performance standard established under paragraph (1) or paragraph (2) shall be submitted by the head of the applicable Federal agency to the Administrator and shall be subject to the approval of the Administrator. In making a determination with respect to approval, the Administrator shall ensure that the minimum performance standard exceeds a de minimis level. The Administrator shall publish on the Internet Web site of the Administration the systems and minimum performance standards approved.
    • (B) The head of each covered Federal agency shall submit to the Administrator the results of each evaluation conducted under paragraph (1) or paragraph (2).
  • (4) Each system and minimum performance standard established under paragraph (1) or paragraph (2) and each approval provided by the Administrator under paragraph (3)(A), at least 60 days before becoming effective, shall be preceded by the provision of notice of and an opportunity for public comment on such system, standard, or approval.
• (rr) In order to increase the number of small businesses receiving awards under the SBIR or STTR programs of participating agencies, and to simplify the application process for such awards, the Administrator shall establish and maintain a public Internet Web site on which the Administrator shall publish such information relating to notice of and application for awards under the SBIR program and STTR program of each participating Federal agency as the Administrator determines appropriate.
• (ss) Not later than October 1, 2013 , and annually thereafter, the head of each Federal agency that makes more than $50,000,000 in awards under the SBIR and STTR programs of the agency combined shall submit to the Administrator, for inclusion in the annual report required under subsection (b)(7), information that includes—
  • (1) a description of efforts undertaken by the head of the Federal agency to enhance United States manufacturing activities;
  • (2) a comprehensive description of the actions undertaken each year by the head of the Federal agency in carrying out the SBIR or STTR program of the agency in support of Executive Order 13329 (69 Fed. Reg. 9181; relating to encouraging innovation in manufacturing);
  • (3) an assessment of the effectiveness of the actions described in paragraph (2) at enhancing the research and development of United States manufacturing technologies and processes;
  • (4) a description of efforts by vendors selected to provide discretionary technical assistance under subsection (q)(1) to help SBIR and STTR concerns manufacture in the United States; and
  • (5) recommendations that the program managers of the SBIR or STTR program of the agency consider appropriate for additional actions to increase the effectiveness of enhancing manufacturing activities.
• (tt)
  • (1) Not later than March 30, 2019 , the Administrator shall submit to the Committee on Small Business and Entrepreneurship of the Senate, the Committee on Small Business of the House of Representatives, and the Committee on Science, Space, and Technology of the House of Representatives—
    • (A) each report, evaluation, or analysis, as applicable, described in subsection (b)(7), (g)(9), ( o )(10), (y)(6)(C), (gg)(6), (jj)(6), and (mm)(6); and
    • (B) metrics regarding, and an evaluation of, the authority provided to the National Institutes of Health, the Department of Defense, and the Department of Education under subsection (cc).
  • (2) Not later than December 31, 2018 , the head of each agency that is responsible for carrying out a provision described in subparagraph (A) or (B) of paragraph (1) shall submit to the Administrator any information that is necessary for the Administrator to carry out the responsibilities of the Administrator under that paragraph.
• (uu)
  • (1)
    • (A) Except as provided in subparagraph (B), not later than one year after August 13, 2018 , a covered agency shall implement a commercialization assistance pilot program, under which an eligible entity may receive a subsequent Phase II SBIR award.
    • (B) If the Administrator determines that a covered agency has a program that is sufficiently similar to the commercialization assistance pilot program established under this subsection, such covered agency shall not be required to implement a commercialization assistance pilot program under this subsection.
  • (2) The head of each covered agency may allocate not more than 5 percent of the funds allocated to the SBIR program of the covered agency for the purpose of making a subsequent Phase II SBIR award under the commercialization assistance pilot program.
  • (3) A commercialization assistance pilot program established under this subsection shall terminate on September 30, 2022 .
  • (4) To be selected to receive a subsequent Phase II SBIR award under a commercialization assistance pilot program, an eligible entity shall submit to the covered agency implementing such pilot program an application at such time, in such manner, and containing such information as the covered agency may require, including—
    • (A) an updated Phase II commercialization plan; and
    • (B) the source and amount of the matching funding required under paragraph (5).
  • (5)
    • (A) The Administrator shall require, as a condition of any subsequent Phase II SBIR award made to an eligible entity under this subsection, that a matching amount (excluding any fees collected by the eligible entity receiving such award) equal to the amount of such award be provided from an eligible third-party investor.
    • (B) An eligible entity may not use funding from ineligible sources to meet the matching requirement of subparagraph (A).
  • (6) A subsequent Phase II SBIR award made to an eligible entity under this subsection—
    • (A) may not exceed the limitation described under subsection (aa)(1); and
    • (B) shall be disbursed during Phase II.
  • (7) The funds awarded to an eligible entity under this subsection may only be used for research and development activities that build on eligible entity’s Phase II program and ensure the research funded under such Phase II is rapidly progressing towards commercialization.
  • (8) In selecting eligible entities to participate in a commercialization assistance pilot program under this subsection, the head of a covered agency shall consider—
    • (A) the extent to which such award could aid the eligible entity in commercializing the research funded under the eligible entity’s Phase II program;
    • (B) whether the updated Phase II commercialization plan submitted under paragraph (4) provides a sound approach for establishing technical feasibility that could lead to commercialization of such research;
    • (C) whether the proposed activities to be conducted under such updated Phase II commercialization plan further improve the likelihood that such research will provide societal benefits;
    • (D) whether the small business concern has progressed satisfactorily in Phase II to justify receipt of a subsequent Phase II SBIR award;
    • (E) the expectations of the eligible third-party investor that provides matching funding under paragraph (5); and
    • (F) the likelihood that the proposed activities to be conducted under such updated Phase II commercialization plan using matching funding provided by such eligible third-party investor will lead to commercial and societal benefit.
  • (9) Not later than 6 years after August 13, 2018 , the Comptroller General of the United States shall submit to the Committee on Science, Space, and Technology and the Committee on Small Business of the House of Representatives, and the Committee on Small Business and Entrepreneurship of the Senate, a report including—
    • (A) a summary of the activities of commercialization assistance pilot programs carried out under this subsection;
    • (B) a detailed compilation of results achieved by such commercialization assistance pilot programs, including the number of eligible entities that received awards under such programs;
    • (C) the rate at which each eligible entity that received a subsequent Phase II SBIR award under this subsection commercialized research of the recipient;
    • (D) the growth in employment and revenue of eligible entities that is attributable to participation in a commercialization assistance pilot program;
    • (E) a comparison of commercialization success of eligible entities participating in a commercialization assistance pilot program with recipients of an additional Phase II SBIR award under subsection (ff);
    • (F) demographic information, such as ethnicity and geographic location, of eligible entities participating in a commercialization assistance pilot program;
    • (G) an accounting of the funds used at each covered agency that implements a commercialization assistance pilot program under this subsection;
    • (H) the amount of matching funding provided by eligible third-party investors, set forth separately by source of funding;
    • (I) an analysis of the effectiveness of the commercialization assistance pilot program implemented by each covered agency; and
    • (J) recommendations for improvements to the commercialization assistance pilot program.
  • (10) For purposes of this subsection:
    • (A) The term “covered agency” means a Federal agency required to have an SBIR program.
    • (B) The term “eligible entity” means a small business concern that has received a Phase II award under an SBIR program and an additional Phase II SBIR award under subsection (ff) from the covered agency to which such small business concern is applying for a subsequent Phase II SBIR award.
    • (C) The term “eligible third-party investor” means a small business concern other than an eligible entity, a venture capital firm, an individual investor, a non-SBIR Federal, State or local government, or any combination thereof.
    • (D) The term “ineligible sources” means the following:
      • (i) The eligible entity’s internal research and development funds.
      • (ii) Funding in forms other than cash, such as in-kind or other intangible assets.
      • (iii) Funding from the owners of the eligible entity, or the family members or affiliates of such owners.
      • (iv) Funding attained through loans or other forms of debt obligations.
    • (E) The term “subsequent Phase II SBIR award” means an award granted to an eligible entity under this subsection to carry out further commercialization activities for research conducted pursuant to an SBIR program.

§ 638a. GAO study with respect to venture capital operating company, hedge fund, and private equity firm involvement

Not later than 3 years after December 31, 2011 , and every 3 years thereafter, the Comptroller General of the United States shall—

• (1) conduct a study of the impact of requirements relating to venture capital operating company, hedge fund, and private equity firm involvement under section 638 of this title ; and
• (2) submit to Congress a report regarding the study conducted under paragraph (1).

§ 638b. Reducing vulnerability of SBIR and STTR programs to fraud, waste, and abuse

• (a)
  • (1) Not later than 90 days after December 31, 2011 , the Administrator shall amend the SBIR Policy Directive and the STTR Policy Directive to include measures to prevent fraud, waste, and abuse in the SBIR program and the STTR program.
  • (2) The amendments required under paragraph (1) shall include—
    • (A) definitions or descriptions of fraud, waste, and abuse;
    • (B) guidelines for the monitoring and oversight of applicants to and recipients of awards under the SBIR program or the STTR program;
    • (C) a requirement that each Federal agency that participates in the SBIR program or STTR program include information concerning the method established by the Inspector General of the Federal agency to report fraud, waste, and abuse (including any telephone hotline or Web-based platform)—
      • (i) on the Web site of the Federal agency; and
      • (ii) in any solicitation or notice of funding opportunity issued by the Federal agency for the SBIR program or the STTR program; and
    • (D) a requirement that each applicant for and small business concern that receives funding under the SBIR program or the STTR program shall certify whether the applicant or small business concern is in compliance with the laws relating to the SBIR program and the STTR program and the conduct guidelines established under the SBIR Policy Directive and the STTR Policy Directive.
  • (3) The Administrator shall develop, in consultation with the Council of Inspectors General on Integrity and Efficiency, the procedures and requirements for the certification set forth under paragraph (2)(D) after providing notice of and an opportunity for public comment on such procedures and requirements.
  • (4) The certification developed under paragraph (3) may—
    • (A) cover the lifecycle of an award to require certifications at the application, funding, reporting, and closeout phases of every SBIR and STTR award;
    • (B) require the small business concern to certify compliance with the “principal investigator 1 1 So in original. Probably should be “investor”. primary employment” requirement, the “small business concern” definition requirement, and the “performance of work” requirements as set forth in the Directive applicable to the award;
    • (C) require the small business concern to disclose whether it has applied for, plans to apply for, or received an SBIR or STTR award for identical or essentially equivalent work (as defined under the SBIR Policy Directive and the STTR Policy Directive), and require the concern to certify that the award that it is applying for or obtaining funding for is not identical or essentially equivalent to work it has performed, or will perform, in connection with any other SBIR or STTR award that the concern has applied for or received from any other agency except as fully disclosed to all funding agencies; and
    • (D) require that the small business concern certify that it will or did perform the work on the award at its facilities with its employees, unless otherwise indicated.
  • (5) The Inspector General of each Federal agency that participates in the SBIR program or STTR program shall cooperate to prevent fraud, waste, and abuse in the SBIR program and the STTR program by—
    • (A) establishing fraud detection indicators;
    • (B) reviewing regulations and operating procedures of the Federal agency;
    • (C) coordinating information sharing between Federal agencies, to the extent otherwise permitted under Federal law; and
    • (D) improving the education and training of and outreach to—
      • (i) administrators of the SBIR program and the STTR program of the Federal agency;
      • (ii) applicants to the SBIR program or the STTR program; and
      • (iii) recipients of awards under the SBIR program or the STTR program.
• (b) Not later than 1 year after December 31, 2011 , to establish a baseline of changes made to the program to fight fraud, waste, and abuse, and every 4 years thereafter to evaluate the effectiveness of the agency strategies, the Comptroller General of the United States shall—
  • (1) conduct a study that evaluates—
    • (A) the implementation by each Federal agency that participates in the SBIR program or the STTR program of the amendments to the SBIR Policy Directive and the STTR Policy Directive made pursuant to subsection (a);
    • (B) the effectiveness of the management information system of each Federal agency that participates in the SBIR program or STTR program in identifying duplicative SBIR and STTR projects;
    • (C) the effectiveness of the risk management strategies of each Federal agency that participates in the SBIR program or STTR program in identifying areas of the SBIR program or the STTR program that are at high risk for fraud;
    • (D) technological tools that may be used to detect patterns of behavior that may indicate fraud by applicants to the SBIR program or the STTR program;
    • (E) the success of each Federal agency that participates in the SBIR program or STTR program in reducing fraud, waste, and abuse in the SBIR program or the STTR program of the Federal agency;
    • (F) the extent to which the Inspector General of each Federal agency that participates in the SBIR and STTR program effectively conducts investigations, audits, inspections, and outreach relating to the SBIR and STTR programs of the Federal agency; and
    • (G) the effectiveness of the Government and public databases described in section 638(k) of this title in reducing vulnerabilities of the SBIR program and the STTR program to fraud, waste, and abuse, particularly with respect to Federal agencies funding duplicative proposals and business concerns falsifying information in proposals; and
  • (2) submit to the Committee on Small Business and Entrepreneurship of the Senate, the Committee on Small Business and the Committee on Science, Space, and Technology of the House of Representatives, and the head of each Federal agency that participates in the SBIR program or STTR program a report on the results of the study conducted under paragraph (1).
• (c) Not later than October 1 of each year, the Inspector General of each Federal agency that participates in the SBIR program or STTR program shall submit to the Committee on Small Business and Entrepreneurship of the Senate and the Committee on Small Business and the Committee on Science, Space, and Technology of the House of Representatives a report describing—
  • (1) the number of cases referred to the Inspector General in the preceding year that related to fraud, waste, or abuse with respect to the SBIR program or STTR program;
  • (2) the actions taken in each case described in paragraph (1) if fraud, waste, or abuse was determined to have occurred;
  • (3) if no action was taken in a case described in paragraph (1) and fraud, waste, or abuse was determined to have occurred, the justification for action not being taken; and
  • (4) an accounting of the funds used to address fraud, waste, and abuse, including a description of personnel and resources funded and funds that were recovered or saved.

§ 639. Reporting requirements and agency cooperation

• (a) The Administration shall, as soon as practicable each fiscal year make a comprehensive annual report to the President, the President of the Senate, the Senate Select Committee on Small Business, and the Speaker of the House of Representatives. Such report shall include a description of the state of small business in the Nation and the several States, and a description of the operations of the Administration under this chapter, including, but not limited to, the general lending, disaster relief, Government regulation relief, procurement and property disposal, research and development, technical assistance, dissemination of data and information, and other functions under the jurisdiction of the Administration during the previous fiscal year. Such report shall contain recommendations for strengthening or improving such programs, or, when necessary or desirable to implement more effectively congressional policies and proposals, for establishing new or alternative programs. In addition, such report shall include the names of the business concerns to whom contracts are let and for whom financing is arranged by the Administration, together with the amounts involved. With respect to minority small business concerns, the report shall include the proportion of loans and other assistance under this chapter provided to such concerns, the goals of the Administration for the next fiscal year with respect to such concerns, and recommendations for improving assistance to minority small business concerns under this chapter.
• (b)
• (c)
• (d) For the purpose of aiding in carrying out the national policy 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, and to maintain and strengthen the overall economy of the Nation, the Department of Defense shall make an annual report to the Committees on Small Business of the Senate and the House of Representatives, showing the amount of funds appropriated to the Department of Defense which have been expended, obligated, or contracted to be spent with small business concerns and the amount of such funds expended, obligated, or contracted to be spent with firms other than small business in the same fields of operation; and such reports shall show separately the funds expended, obligated, or contracted to be spent for basic and applied scientific research and development.
• (e)
  • (1) 1 1 Paragraph designation “(1)” supplied editorially. The Administration and the Inspector General of the Administration shall retain all correspondence, records of inquiries, memoranda, reports, books, and records, including memoranda as to all investigations conducted by or for the Administration, for a period of at least one year from the date of each thereof, and shall at all times keep the same available for inspection and examination by the Senate Select Committee on Small Business and the Committee on Small Business of the House of Representatives, or their duly authorized representatives.
  • (2) The Committee on Small Business of either the Senate or the House of Representatives may request that the Office of the Inspector General of the Administration conduct an investigation of any program or activity conducted under the authority of section 636(j) or 637(a) of this title. Not later than thirty days after the receipt of such a request, the Inspector General shall inform the committee, in writing, of the disposition of the request by such office.
• (f) To the extent deemed necessary by the Administrator to protect and preserve small-business interests, the Administration shall consult and cooperate with other departments and agencies of the Federal Government in the formulation by the Administration of policies affecting small-business concerns. When requested by the Administrator, each department and agency of the Federal Government shall consult and cooperate with the Administration in the formulation by such department or agency of policies affecting small-business concerns, in order to insure that small-business interests will be recognized, protected, and preserved. This subsection shall not require any department or agency to consult or cooperate with the Administration in any case where the head of such department or agency determines that such consultation or cooperation would unduly delay action which must be taken by such department or agency to protect the national interest in an emergency.
• (g) The Administration shall transmit, not later than December 31 of each year, to the Senate Select Committee on Small Business and Committee on Small Business of the House of Representatives a sealed report with respect to—
  • (1) complaints alleging illegal conduct by employees of the Administration which were received or acted upon by the Administration during the preceding fiscal year; and
  • (2) investigations undertaken by the Administration, including external and internal audits and security and investigation reports.
• (h) The Administration shall transmit, not later than March 31 of each year, to the Committees on Small Business of the Senate and House of Representatives a report on the secondary market operations during the preceding calendar year. This report shall include, but not be limited to, (1) the number and the total dollar amount of loans sold into the secondary market and the distribution of such loans by size of loan, size of lender, geographic location of lender, interest rate, maturity, lender servicing fees, whether the rate is fixed or variable, and premium paid; (2) the number and dollar amount of loans resold in the secondary market with a distribution by size of loan, interest rate, and premiums; (3) the number and total dollar amount of pools formed; (4) the number and total dollar amount of loans in each pool; (5) the dollar amount, interest rate, and terms on each loan in each pool and whether the rate is fixed or variable; (6) the number, face value, interest rate, and terms of the trust certificates issued for each pool; (7) to the maximum extent possible, the use by the lender of the proceeds of sales of loans in the secondary market for additional lending to small business concerns; and (8) an analysis of the information reported in (1) through (7) to assess small businesses’ access to capital at reasonable rates and terms as a result of secondary market operations.

§ 639a. Review of loan program; submission of estimated needs for additional authorization

It is the sense of the Congress that the regular business loan program of the Small Business Administration should be reviewed by the Congress at least once every two years. It is further the sense of the Congress that the Small Business Administration should submit its estimated needs for additional authorization for such program to the Congress at least one year in advance of the date on which such authorization is to be provided, in order to assure an orderly and recurring review of such program and to avoid emergency appeals for additional authorization. Compliance by the Small Business Administration with the foregoing policy will enable the Congress on and after July 25, 1962 , to provide additional authorization for such program on a two-year basis.

§ 640. Voluntary agreements among small-business concerns

• (a) The President is authorized to consult with representatives of small-business concerns with a view to encouraging the making by such persons with the approval of the President of voluntary agreements and programs to further the objectives of this chapter.
• (b) No act or omission to act pursuant to this chapter which occurs while this chapter is in effect, if requested by the President pursuant to a voluntary agreement or program approved under subsection (a) of this section and found by the President to be in the public interest as contributing to the national defense, shall be construed to be within the prohibitions of the antitrust laws or the Federal Trade Commission Act [ 15 U.S.C. 41 et seq.] of the United States. A copy of each such request intended to be within the coverage of this section, and any modification or withdrawal thereof, shall be furnished to the Attorney General and the Chairman of the Federal Trade Commission when made, and it shall be published in the Federal Register unless publication thereof would, in the opinion of the President, endanger the national security.
• (c) The authority granted in subsection (b) of this section shall be delegated only (1) to an official who shall for the purpose of such delegation be required to be appointed by the President by and with the advice and consent of the Senate, (2) upon the condition that such official consult with the Attorney General and the Chairman of the Federal Trade Commission not less than ten days before making any request or finding thereunder, and (3) upon the condition that such official obtain the approval of the Attorney General to any request thereunder before making the request.
• (d) Upon withdrawal of any request or finding hereunder, or upon withdrawal by the Attorney General of his approval of the voluntary agreement or program on which the request or finding is based, the provisions of this section shall not apply to any subsequent act, or omission to act, by reason of such finding or request.

§ 641. Transfer to Administration of other functions, powers, and duties

The President may transfer to the Administration any functions, powers, and duties of any department or agency which relate primarily to small-business problems. In connection with any such transfer, the President may provide for appropriate transfers of records, property, necessary personnel, and unexpended balances of appropriations and other funds available to the department or agency from which the transfer is made.

§ 642. Requirements for loans

• (1) certify to the Administration the names of any attorneys, agents, or other persons engaged by or on behalf of such business enterprise for the purpose of expediting applications made to the Administration for assistance of any sort, and the fees paid or to be paid to any such persons;
• (2) execute an agreement binding any such business enterprise for a period of two years after any assistance is rendered by the Administration to such business enterprise, to refrain from employing, tendering any office or employment to, or retaining for professional services, any person who, on the date such assistance or any part thereof was rendered, or within one year prior thereto, shall have served as an officer, attorney, agent, or employee of the Administration occupying a position or engaging in activities which the Administration shall have determined involve discretion with respect to the granting of assistance under this chapter; and
• (3) furnish the names of lending institutions to which such business enterprise has applied for loans together with dates, amounts, terms, and proof of refusal.

§ 643. Fair charge for use of Government-owned property

To the fullest extent the Administration deems practicable, it shall make a fair charge for the use of Government-owned property and make and let contracts on a basis that will result in a recovery of the direct costs incurred by the Administration.

§ 644. Awards or contracts

• (a)
  • (1) For purposes of this chapter, small business concerns shall receive any award or contract if such award or contract is, in the determination of the Administrator and the contracting agency, in the interest of—
    • (A) maintaining or mobilizing the full productive capacity of the United States;
    • (B) war or national defense programs; or
    • (C) assuring that a fair proportion of the total purchases and contracts for goods and services of the Government in each industry category (as defined under paragraph (2)) are awarded to small business concerns.
  • (2)
    • (A) In this subsection, the term “industry category” means a discrete group of similar goods and services, as determined by the Administrator in accordance with the North American Industry Classification System codes used to establish small business size standards, except that the Administrator shall limit an industry category to a greater extent than provided under the North American Industry Classification System codes if the Administrator receives evidence indicating that further segmentation of the industry category is warranted—
      • (i) due to special capital equipment needs;
      • (ii) due to special labor requirements;
      • (iii) due to special geographic requirements, except as provided in subparagraph (B);
      • (iv) due to unique Federal buying patterns or requirements; or
      • (v) to recognize a new industry.
    • (B) The Administrator may not further segment an industry category based on geographic requirements unless—
      • (i) the Government typically designates the geographic area where work for contracts for goods or services is to be performed;
      • (ii) Government purchases comprise the major portion of the entire domestic market for such goods or services; and
      • (iii) it is unreasonable to expect competition from business concerns located outside of the general geographic area due to the fixed location of facilities, high mobilization costs, or similar economic factors.
  • (3) Determinations made pursuant to paragraph (1) may be made for individual awards or contracts, any part of an award or contract or task order, or for classes of awards or contracts or task orders.
  • (4)
    • (A) The requirements of this paragraph shall apply to a proposed procurement that includes in its statement of work goods or services currently being supplied or performed by a small business concern and, as determined by the Administrator—
      • (i) is in a quantity or of an estimated dollar value which makes the participation of a small business concern as a prime contractor unlikely;
      • (ii) in the case of a proposed procurement for construction, seeks to bundle or consolidate discrete construction projects; or
      • (iii) is a solicitation that involves an unnecessary or unjustified bundling of contract requirements.
    • (B) With respect to proposed procurements described in subparagraph (A), at least 30 days before issuing a solicitation and concurrent with other processing steps required before issuing the solicitation, the contracting agency shall provide a copy of the proposed procurement to the procurement center representative of the contracting agency (as described in subsection ( l )) along with a statement explaining—
      • (i) why the proposed procurement cannot be divided into reasonably small lots (not less than economic production runs) to permit offers on quantities less than the total requirement;
      • (ii) why delivery schedules cannot be established on a realistic basis that will encourage the participation of small business concerns in a manner consistent with the actual requirements of the Government;
      • (iii) why the proposed procurement cannot be offered to increase the likelihood of the participation of small business concerns;
      • (iv) in the case of a proposed procurement for construction, why the proposed procurement cannot be offered as separate discrete projects; or
      • (v) why the contracting agency has determined that the bundling of contract requirements is necessary and justified.
    • (C) If the procurement center representative believes that the proposed procurement will make the participation of small business concerns as prime contractors unlikely, the procurement center representative, within 15 days after receiving the statement described in subparagraph (B), shall recommend to the contracting agency alternative procurement methods for increasing prime contracting opportunities for small business concerns.
    • (D) If the procurement center representative and the contracting agency fail to agree on an alternative procurement method, the Administrator shall submit the matter to the head of the appropriate department or agency for a determination.
  • (5) With respect to a contract for the sale of Government property, small business concerns shall receive any such contract if, in the determination of the Administrator and the disposal agency, the award of such contract is in the interest of assuring that a fair proportion of the total sales of Government property be made to small business concerns.
  • (6) Nothing in this subsection shall be construed to change any preferences or priorities established by law with respect to the sale of electrical power or other property by the Federal Government.
  • (7) A contract may not be awarded under this subsection if the cost of the contract to the awarding agency exceeds a fair market price.
• (b) With respect to any work to be performed the amount of which would exceed the maximum amount of any contract for which a surety may be guaranteed against loss under section 694b of this title , the contracting procurement agency shall, to the extent practicable, place contracts so as to allow more than one small business concern to perform such work.
• (c)
  • (1) As used in this subsection:
    • (A) The term “Committee” means the Committee for Purchase From People Who Are Blind or Severely Disabled established under section 8502 of title 41 .
    • (B) The term “public or private organization for the handicapped” has the same meaning given such term in section 632(e) of this title .
    • (C) The term “handicapped individual” has the same meaning given such term in section 632(f) of this title .
  • (2)
    • (A) During fiscal year 1995, public or private organizations for the handicapped shall be eligible to participate in programs authorized under this section in an aggregate amount not to exceed $40,000,000.
    • (B) None of the amounts authorized for participation by subparagraph (A) may be placed on the procurement list maintained by the Committee pursuant to section 8503 of title 41 .
  • (3) The Administrator shall monitor and evaluate such participation.
  • (4)
    • (A) Not later than ten days after the announcement of a proposed award of a contract by an agency or department to a public or private organization for the handicapped, a for-profit small business concern that has experienced or is likely to experience severe economic injury as the result of the proposed award may file an appeal of the proposed award with the Administrator.
    • (B) If such a concern files an appeal of a proposed award under subparagraph (A) and the Administrator, after consultation with the Executive Director of the Committee, finds that the concern has experienced or is likely to experience severe economic injury as the result of the proposed award, not later than thirty days after the filing of the appeal, the Administration shall require each agency and department having procurement powers to take such action as may be appropriate to alleviate economic injury sustained or likely to be sustained by the concern.
  • (5) Each agency and department having procurement powers shall report to the Office of Federal Procurement Policy each time a contract subject to paragraph (2)(A) is entered into, and shall include in its report the amount of the next higher bid submitted by a for-profit small business concern. The Office of Federal Procurement Policy shall collect data reported under the preceding sentence through the Federal procurement data system and shall report to the Administration which shall notify all such agencies and departments when the maximum amount of awards authorized under paragraph (2)(A) has been made during any fiscal year.
  • (6) For the purpose of this subsection, a contract may be awarded only if at least 75 per centum of the direct labor performed on each item being produced under the contract in the sheltered workshop or performed in providing each type of service under the contract by the sheltered workshop is performed by handicapped individuals.
  • (7) Agencies awarding one or more contracts to such an organization pursuant to the provisions of this subsection may use multiyear contracts, if appropriate.
• (d) For purposes of this section priority shall be given to the awarding of contracts and the placement of subcontracts to small business concerns which shall perform a substantial proportion of the production on those contracts and subcontracts within areas of concentrated unemployment or underemployment or within labor surplus areas. Notwithstanding any other provision of law, total labor surplus area set-asides pursuant to Defense Manpower Policy Number 4 (32A C.F.R. Chapter 1) or any successor policy shall be authorized if the Secretary or his designee specifically determines that there is a reasonable expectation that offers will be obtained from a sufficient number of eligible concerns so that awards will be made at reasonable prices. As soon as practicable and to the extent possible, in determining labor surplus areas, consideration shall be given to those persons who would be available for employment were suitable employment available. Until such definition reflects such number, the present criteria of such policy shall govern.
• (e)
  • (1) To the maximum extent practicable, procurement strategies used by a Federal department or agency having contracting authority shall facilitate the maximum participation of small business concerns as prime contractors, subcontractors, and suppliers, and each such Federal department or agency shall—
    • (A) provide opportunities for the participation of small business concerns during acquisition planning processes and in acquisition plans; and
    • (B) invite the participation of the appropriate Director of Small and Disadvantaged Business Utilization in acquisition planning processes and provide that Director access to acquisition plans.
  • (2)
    • (A) Before proceeding with an acquisition strategy that could lead to a contract containing consolidated procurement requirements, the head of an agency shall conduct market research to determine whether consolidation of the requirements is necessary and justified.
    • (B) For purposes of subparagraph (A), consolidation of the requirements may be determined as being necessary and justified if, as compared to the benefits that would be derived from contracting to meet those requirements if not consolidated, the Federal Government would derive from the consolidation measurably substantial benefits, including any combination of benefits that, in combination, are measurably substantial. Benefits described in the preceding sentence may include the following:
      • (i) Cost savings.
      • (ii) Quality improvements.
      • (iii) Reduction in acquisition cycle times.
      • (iv) Better terms and conditions.
      • (v) Any other benefits.
    • (C) The reduction of administrative or personnel costs alone shall not be a justification for bundling of contract requirements unless the cost savings are expected to be substantial in relation to the dollar value of the procurement requirements to be consolidated.
  • (3) If the head of a contracting agency determines that an acquisition plan for a procurement involves a substantial bundling of contract requirements, the head of a contracting agency shall publish a notice on a public website that such determination has been made not later than 7 days after making such determination. Any solicitation for a procurement related to the acquisition plan may not be published earlier than 7 days after such notice is published. Along with the publication of the solicitation, the head of a contracting agency shall publish a justification for the determination, which shall include the following information:
    • (A) The specific benefits anticipated to be derived from the bundling of contract requirements and a determination that such benefits justify the bundling.
    • (B) An identification of any alternative contracting approaches that would involve a lesser degree of bundling of contract requirements.
    • (C) An assessment of—
      • (i) the specific impediments to participation by small business concerns as prime contractors that result from the bundling of contract requirements; and
      • (ii) the specific actions designed to maximize participation of small business concerns as subcontractors (including suppliers) at various tiers under the contract or contracts that are awarded to meet the requirements.
  • (4)
    • (A) In the case of a solicitation of offers for a bundled or consolidated contract that is issued by the head of an agency, a small business concern that provides for use of a particular team of subcontractors or a joint venture of small business concerns may submit an offer for the performance of the contract.
    • (B) The head of the agency shall evaluate an offer described in subparagraph (A) in the same manner as other offers, with due consideration to the capabilities of all of the proposed subcontractors or members of the joint venture as follows:
      • (i) When evaluating an offer of a small business prime contractor that includes a proposed team of small business subcontractors, the head of the agency shall consider the capabilities and past performance of each first tier subcontractor that is part of the team as the capabilities and past performance of the small business prime contractor.
      • (ii) When evaluating an offer of a joint venture of small business concerns, if the joint venture does not demonstrate sufficient capabilities or past performance to be considered for award of a contract opportunity, the head of the agency shall consider the capabilities and past performance of each member of the joint venture as the capabilities and past performance of the joint venture.
    • (C) Participation of a small business concern in a team or a joint venture under this paragraph shall not affect the status of that concern as a small business concern for any other purpose.
• (f)
  • (1) In this subsection, the term “disaster area” means the area for which the President has declared a major disaster, during the period of the declaration.
  • (2) An agency shall provide a contracting preference for a small business concern located in a disaster area if the small business concern will perform the work required under the contract in the disaster area.
  • (3) If an agency awards a contract to a small business concern under the circumstances described in paragraph (2), the value of the contract shall be doubled for purposes of determining compliance with the goals for procurement contracts under subsection (g)(1)(A).
• (g)
  • (1)
    • (A) The President shall annually establish Governmentwide goals for procurement contracts awarded to small business concerns, small business concerns owned and controlled by service-disabled veterans, qualified HUBZone small business concerns, small business concerns owned and controlled by socially and economically disadvantaged individuals, and small business concerns owned and controlled by women in accordance with the following:
      • (i) The Governmentwide goal for participation by small business concerns shall be established at not less than 23 percent of the total value of all prime contract awards for each fiscal year. In meeting this goal, the Government shall ensure the participation of small business concerns from a wide variety of industries and from a broad spectrum of small business concerns within each industry.
      • (ii) The Governmentwide goal for participation by small business concerns owned and controlled by service-disabled veterans shall be established at not less than 3 percent of the total value of all prime contract and subcontract awards for each fiscal year.
      • (iii) The Governmentwide goal for participation by qualified HUBZone small business concerns shall be established at not less than 3 percent of the total value of all prime contract and subcontract awards for each fiscal year.
      • (iv) The Governmentwide goal for participation by small business concerns owned and controlled by socially and economically disadvantaged individuals shall be established at not less than 5 percent of the total value of all prime contract and subcontract awards for each fiscal year.
      • (v) The Governmentwide goal for participation by small business concerns owned and controlled by women shall be established at not less than 5 percent of the total value of all prime contract and subcontract awards for each fiscal year.
    • (B) Each agency shall have an annual goal that presents, for that agency, the maximum practicable opportunity for small business concerns, small business concerns owned and controlled by service-disabled veterans, qualified HUBZone small business concerns, small business concerns owned and controlled by socially and economically disadvantaged individuals, and small business concerns owned and controlled by women to participate in the performance of contracts let by such agency. The Small Business Administration and the Administrator for Federal Procurement Policy shall, when exercising their authority pursuant to paragraph (2), 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.
  • (2)
    • (A) The head of each Federal agency shall, after consultation with the Administration, establish goals for the participation by small business concerns, by small business concerns owned and controlled by service-disabled veterans, by qualified HUBZone small business concerns, by small business concerns owned and controlled by socially and economically disadvantaged individuals, and by small business concerns owned and controlled by women in procurement contracts of such agency. Such goals shall separately address prime contract awards and subcontract awards for each category of small business covered.
    • (B) Goals established under this subsection shall be jointly established by the Administration and the head of each Federal agency and shall realistically reflect the potential of small business concerns, small business concerns owned and controlled by service-disabled veterans, qualified HUBZone small business concerns, small business concerns owned and controlled by socially and economically disadvantaged individuals, and small business concerns owned and controlled by women to perform such contracts and to perform subcontracts under such contracts. Contracts excluded from review by procurement center representatives pursuant to subsection ( l )(9)(B) shall not be considered when establishing these goals.
    • (C) Whenever the Administration and the head of any Federal agency fail to agree on established goals, the disagreement shall be submitted to the Administrator for Federal Procurement Policy for final determination.
    • (D) After establishing goals under this paragraph for a fiscal year, the head of each Federal agency shall develop a plan for achieving such goals at both the prime contract and the subcontract level, which shall apportion responsibilities among the agency’s acquisition executives and officials. In establishing goals under this paragraph, the head of each Federal agency shall make a consistent effort to annually expand participation by small business concerns from each industry category in procurement contracts and subcontracts of such agency, including participation by small business concerns owned and controlled by service-disabled veterans, qualified HUBZone small business concerns, small business concerns owned and controlled by socially and economically disadvantaged individuals, and small business concerns owned and controlled by women.
    • (E) The head of each Federal agency, in attempting to attain expanded participation under subparagraph (D), shall consider—
      • (i) contracts awarded as the result of unrestricted competition; and
      • (ii) contracts awarded after competition restricted to eligible small business concerns under this section and under the program established under section 637(a) of this title .
    • (F)
      • (i) Each procurement employee or program manager described in clause (ii) shall communicate to the subordinates of the procurement employee or program manager the importance of achieving goals established under subparagraph (A).
      • (ii) A procurement employee or program manager described in this clause is a senior procurement executive, senior program manager, or Director of Small and Disadvantaged Business Utilization of a Federal agency having contracting authority.
  • (3) First tier subcontracts that are awarded by Management and Operating contractors sponsored by the Department of Energy to small business concerns, small businesses 1 1 So in original. Probably should be “business”. concerns owned and controlled by service disabled veterans, qualified HUBZone small business concerns, small business concerns owned and controlled by socially and economically disadvantaged individuals, and small business concerns owned and controlled by women, shall be considered toward the annually established agency and Government-wide goals for procurement contracts awarded.
• (h)
  • (1) At the conclusion of each fiscal year, the head of each Federal agency shall submit to the Administrator a report describing—
    • (A) the extent of the participation by small business concerns, small business concerns owned and controlled by veterans (including service-disabled veterans), qualified HUBZone small business concerns, small business concerns owned and controlled by socially and economically disadvantaged individuals, and small business concerns owned and controlled by women in the procurement contracts of such agency during such fiscal year;
    • (B) whether the agency achieved the goals established for the agency under subsection (g)(2) with respect to such fiscal year;
    • (C) any justifications for a failure to achieve such goals; and
    • (D) a remediation plan with proposed new practices to better meet such goals, including analysis of factors leading to any failure to achieve such goals.
  • (2) Not later than 60 days after receiving a report from each Federal agency under paragraph (1) with respect to a fiscal year, the Administrator shall submit to the President and Congress, and to make available on a public Web site, a report that includes—
    • (A) a copy of each report submitted to the Administrator under paragraph (1);
    • (B) a determination of whether each goal established by the President under subsection (g)(1) for such fiscal year was achieved;
    • (C) a determination of whether each goal established by the head of a Federal agency under subsection (g)(2) for such fiscal year was achieved;
    • (D) the reasons for any failure to achieve a goal established under paragraph (1) or (2) of subsection (g) for such fiscal year and a description of actions planned by the applicable agency to address such failure, including the Administrator’s comments and recommendations on the proposed remediation plan; and
    • (E) for the Federal Government and each Federal agency, an analysis of the number and dollar amount of prime contracts awarded during such fiscal year to—
      • (i) small business concerns—
        • (I) in the aggregate;
        • (II) through sole source contracts;
        • (III) through competitions restricted to small business concerns;
        • (IV) through unrestricted competition;
        • (V) that were purchased by another entity after the initial contract was awarded and as a result of the purchase, would no longer be deemed to be small business concerns for purposes of the initial contract; and
        • (VI) that were awarded using a procurement method that restricted competition to small business concerns owned and controlled by service-disabled veterans, qualified HUBZone small business concerns, small business concerns owned and controlled by socially and economically disadvantaged individuals, small business concerns owned and controlled by women, or a subset of any such concerns;
      • (ii) small business concerns owned and controlled by service-disabled veterans—
        • (I) in the aggregate;
        • (II) through sole source contracts;
        • (III) through competitions restricted to small business concerns;
        • (IV) through competitions restricted to small business concerns owned and controlled by service-disabled veterans;
        • (V) through unrestricted competition;
        • (VI) that were purchased by another entity after the initial contract was awarded and as a result of the purchase, would no longer be deemed to be small business concerns owned and controlled by service-disabled veterans for purposes of the initial contract; and
        • (VII) that were awarded using a procurement method that restricted competition to qualified HUBZone small business concerns, small business concerns owned and controlled by socially and economically disadvantaged individuals, small business concerns owned and controlled by women, or a subset of any such concerns;
      • (iii) qualified HUBZone small business concerns—
        • (I) in the aggregate;
        • (II) through sole source contracts;
        • (III) through competitions restricted to small business concerns;
        • (IV) through competitions restricted to qualified HUBZone small business concerns;
        • (V) through unrestricted competition where a price evaluation preference was used;
        • (VI) through unrestricted competition where a price evaluation preference was not used;
        • (VII) that were purchased by another entity after the initial contract was awarded and as a result of the purchase, would no longer be deemed to be qualified HUBZone small business concerns for purposes of the initial contract; and
        • (VIII) that were awarded using a procurement method that restricted competition to small business concerns owned and controlled by service-disabled veterans, small business concerns owned and controlled by socially and economically disadvantaged individuals, small business concerns owned and controlled by women, or a subset of any such concerns;
      • (iv) small business concerns owned and controlled by socially and economically disadvantaged individuals—
        • (I) in the aggregate;
        • (II) through sole source contracts;
        • (III) through competitions restricted to small business concerns;
        • (IV) through competitions restricted to small business concerns owned and controlled by socially and economically disadvantaged individuals;
        • (V) through unrestricted competition;
        • (VI) by reason of that concern’s certification as a small business owned and controlled by socially and economically disadvantaged individuals;
        • (VII) that were purchased by another entity after the initial contract was awarded and as a result of the purchase, would no longer be deemed to be small business concerns owned and controlled by socially and economically disadvantaged individuals for purposes of the initial contract; and
        • (VIII) that were awarded using a procurement method that restricted competition to small business concerns owned and controlled by service-disabled veterans, qualified HUBZone small business concerns, small business concerns owned and controlled by women, or a subset of any such concerns;
      • (v) small business concerns owned by an Indian tribe (as such term is defined in section 637(a)(13) of this title ) other than an Alaska Native Corporation—
        • (I) in the aggregate;
        • (II) through sole source contracts;
        • (III) through competitions restricted to small business concerns;
        • (IV) through competitions restricted to small business concerns owned and controlled by socially and economically disadvantaged individuals;
        • (V) through unrestricted competition; and
        • (VI) that were purchased by another entity after the initial contract was awarded and as a result of the purchase, would no longer be deemed to be small business concerns owned by an Indian tribe other than an Alaska Native Corporation for purposes of the initial contract;
      • (vi) small business concerns owned by a Native Hawaiian Organization—
        • (I) in the aggregate;
        • (II) through sole source contracts;
        • (III) through competitions restricted to small business concerns;
        • (IV) through competitions restricted to small business concerns owned and controlled by socially and economically disadvantaged individuals;
        • (V) through unrestricted competition; and
        • (VI) that were purchased by another entity after the initial contract was awarded and as a result of the purchase, would no longer be deemed to be small business concerns owned by a Native Hawaiian Organization for purposes of the initial contract;
      • (vii) small business concerns owned by an Alaska Native Corporation—
        • (I) in the aggregate;
        • (II) through sole source contracts;
        • (III) through competitions restricted to small business concerns;
        • (IV) through competitions restricted to small business concerns owned and controlled by socially and economically disadvantaged individuals;
        • (V) through unrestricted competition; and
        • (VI) that were purchased by another entity after the initial contract was awarded and as a result of the purchase, would no longer be deemed to be small business concerns owned by an Alaska Native Corporation for purposes of the initial contract; and
      • (viii) small business concerns owned and controlled by women—
        • (I) in the aggregate;
        • (II) through competitions restricted to small business concerns;
        • (III) through competitions restricted using the authority under section 637(m)(2) of this title ;
        • (IV) through competitions restricted using the authority under section 637(m)(2) of this title and in which the waiver authority under section 637(m)(3) of this title was used;
        • (V) through sole source contracts awarded using the authority under subsection 2 2 So in original. Probably should be “section”. 637(m)(7) of this title;
        • (VI) through sole source contracts awarded using the authority under section 637(m)(8) of this title ;
        • (VII) by industry for contracts described in subclause (III), (IV), (V), or (VI);
        • (VIII) through unrestricted competition;
        • (IX) that were purchased by another entity after the initial contract was awarded and as a result of the purchase, would no longer be deemed to be small business concerns owned and controlled by women for purposes of the initial contract; and
        • (X) that were awarded using a procurement method that restricted competition to small business concerns owned and controlled by service-disabled veterans, qualified HUBZone small business concerns, small business concerns owned and controlled by socially and economically disadvantaged individuals, or a subset of any such concerns; and
    • (F) for the Federal Government, the number, dollar amount, and distribution with respect to the North American Industry Classification System of subcontracts awarded during such fiscal year to small business concerns, small business concerns owned and controlled by service-disabled veterans, qualified HUBZone small business concerns, small business concerns owned and controlled by socially and economically disadvantaged individuals, and small business concerns owned and controlled by women, provided that such information is publicly available through data systems developed pursuant to the Federal Funding Accountability and Transparency Act of 2006 ( Public Law 109–282 ), or otherwise available as provided in paragraph (3).
  • (3)
    • (A)
      • (i) To assist in the implementation of this section, the Administrator shall have access to information collected through the Federal Procurement Data System, Federal Subcontracting Reporting System, or any new or successor system.
      • (ii) On the date that the Administrator makes available the report required under paragraph (2), the Administrator of the General Services Administration shall submit to the President and Congress, and shall make available on a public website, a report in the same form and manner, and including the same information, as the report required under paragraph (2). The report shall include all procurements made for the period covered by the report and may not exclude any contract awarded.
    • (B) To assist in the implementation of this section, the head of each contracting agency shall provide, upon request of the Administrator, procurement information collected through agency data collection sources in existence at the time of the request. Contracting agencies shall not be required to establish new data collection systems to provide such data.
  • (4)
    • (A) In addition to the requirements under paragraph (2) and for each best in class designation, the Administrator shall include in the report required by such paragraph—
      • (i) the total amount of spending Governmentwide in such designation; and
      • (ii) the number of small business concerns awarded contracts and the dollar amount of such contracts awarded within each such designation to each of the following—
        • (I) qualified HUBZone small business concerns;
        • (II) small business concerns owned and controlled by women;
        • (III) small business concerns owned and controlled by service-disabled veterans; and
        • (IV) small business concerns owned and controlled by socially and economically disadvantaged individuals.
    • (B) The term “best in class” has the meaning given such term by the Director of the Office of Management and Budget.
    • (C) The Administrator shall report on the information described by subparagraph (A) beginning on the date that such information is available in the Federal Procurement Data System, the System for Award Management, or any successor to such systems.
• (i) Nothing in this chapter or any other provision of law precludes exclusive small business set-asides for procurements of architectural and engineering services, research, development, test and evaluation, and each Federal agency is authorized to develop such set-asides to further the interests of small business in those areas.
• (j)
  • (1) Each contract for the purchase of goods and services that has an anticipated value greater than the micro-purchase threshold, but not greater than the simplified acquisition threshold shall be reserved exclusively for small business concerns unless the contracting officer is unable to obtain offers from two or more small business concerns that are competitive with market prices and are competitive with regard to the quality and delivery of the goods or services being purchased.
  • (2) In carrying out paragraph (1), a contracting officer shall consider a responsive offer timely received from an eligible small business offeror.
  • (3) Nothing in paragraph (1) shall be construed as precluding an award of a contract with a value not greater than $100,000 under the authority of subsection (a) of section 637 of this title , section 712 3 3 See References in Text note below. of the Business Opportunity Development Reform Act of 1988 ( Public Law 100–656 ; 15 U.S.C. 644 note), or section 7102 of the Federal Acquisition Streamlining Act of 1994.
• (k) There is hereby established in each Federal agency having procurement powers an office to be known as the “Office of Small and Disadvantaged Business Utilization”. The management of each such office shall be vested in an officer or employee of such agency, with experience serving in any combination of the following roles: program manager, deputy program manager, or assistant program manager for Federal acquisition program; chief engineer, systems engineer, assistant engineer, or product support manager for Federal acquisition program; Federal contracting officer; small business technical advisor; contracts administrator for Federal Government contracts; attorney specializing in Federal procurement law; small business liaison officer; officer or employee who managed Federal Government contracts for a small business; or individual whose primary responsibilities were for the functions and duties of section 637, 644, 657a, 657f, or 657q of this title. Such officer or employee—
  • (1) shall be known as the “Director of Small and Disadvantaged Business Utilization” for such agency;
  • (2) shall be appointed by the head of such agency to a position that is a Senior Executive Service position (as such term is defined under section 3132(a) of title 5 ), except that, for any agency in which the positions of Chief Acquisition Officer and senior procurement executive (as such terms are defined under section 657q(a) of this title ) are not Senior Executive Service positions, the Director of Small and Disadvantaged Business Utilization may be appointed to a position compensated at not less than the minimum rate of basic pay payable for grade GS–15 of the General Schedule under section 5332 of title 5 (including comparability payments under section 5304 of title 5 );
  • (3) shall be responsible only to (including with respect to performance appraisals), and report directly and exclusively to, the head of such agency or to the deputy of such head, except that the Director for the Office of the Secretary of Defense shall be responsible only to (including with respect to performance appraisals), and report directly and exclusively to, such Secretary or the Secretary’s designee;
  • (4) shall be responsible for the implementation and execution of the functions and duties under sections 637, 644, 657a, 657f, and 657q of this title which relate to such agency;
  • (5) shall identify proposed solicitations that involve significant bundling of contract requirements, and work with the agency acquisition officials and the Administration to revise the procurement strategies for such proposed solicitations where appropriate to increase the probability of participation by small businesses as prime contractors, or to facilitate small business participation as subcontractors and suppliers, if a solicitation for a bundled contract is to be issued;
  • (6) shall assist small business concerns to obtain payments, required late payment interest penalties, or information regarding payments due to such concerns from an executive agency or a contractor, in conformity with chapter 39 of title 31 or any other protection for contractors or subcontractors (including suppliers) that is included in the Federal Acquisition Regulation or any individual agency supplement to such Government-wide regulation, 4 4 So in original. The comma probably should be a semicolon.
  • (7) shall have supervisory authority over personnel of such agency to the extent that the functions and duties of such personnel relate to functions and duties under sections 637, 644, 657a, 657f, and 657q of this title;
  • (8) shall assign a small business technical adviser to each office to which the Administration has assigned a procurement center representative—
    • (A) who shall be a full-time employee of the procuring activity and shall be well qualified, technically trained and familiar with the supplies or services purchased at the activity; and
    • (B) whose principal duty shall be to assist the Administration procurement center representative in his duties and functions relating to sections 637, 644, 657a, 657f, and 657q of this title, 4
  • (9) shall cooperate, and consult on a regular basis, with the Administration with respect to carrying out the functions and duties described in paragraph (4) of this subsection;
  • (10) shall make recommendations to contracting officers as to whether a particular contract requirement should be awarded pursuant to subsection (a) or section 637, 644, 657a, or 657f of this title, and the failure of the contracting officer to accept any such recommendations shall be documented and included within the appropriate contract file;
  • (11) shall review and advise such agency on any decision to convert an activity performed by a small business concern to an activity performed by a Federal employee;
  • (12) shall provide to the Chief Acquisition Officer and senior procurement executive of such agency advice and comments on acquisition strategies, market research, and justifications related to section 657q of this title ;
  • (13) may provide training to small business concerns and contract specialists, except that such training may only be provided to the extent that the training does not interfere with the Director carrying out other responsibilities under this subsection;
  • (14) shall receive unsolicited proposals and, when appropriate, forward such proposals to personnel of the activity responsible for reviewing such proposals;
  • (15) shall carry out exclusively the duties enumerated in this chapter, and shall, while the Director, not hold any other title, position, or responsibility, except as necessary to carry out responsibilities under this subsection;
  • (16) shall submit, each fiscal year, to the Committee on Small Business of the House of Representatives and the Committee on Small Business and Entrepreneurship of the Senate a report describing—
    • (A) the training provided by the Director under paragraph (13) in the most recently completed fiscal year;
    • (B) the percentage of the budget of the Director used for such training in the most recently completed fiscal year;
    • (C) the percentage of the budget of the Director used for travel in the most recently completed fiscal year; and
    • (D) any failure of the agency to comply with section 637, 644, 657a, or 657f of this title;
  • (17) shall, when notified by a small business concern prior to the award of a contract that the small business concern believes that a solicitation, request for proposal, or request for quotation unduly restricts the ability of the small business concern to compete for the award—
    • (A) submit the notice of the small business concern to the contracting officer and, if necessary, recommend ways in which the solicitation, request for proposal, or request for quotation may be altered to increase the opportunity for competition;
    • (B) inform the advocate for competition of such agency (as established under section 1705 of title 41 or section 2318 of title 10 ) of such notice; and
    • (C) ensure that the small business concern is aware of other resources and processes available to address unduly restrictive provisions in a solicitation, request for proposal, or request for quotation, even if such resources and processes are provided by such agency, the Administration, the Comptroller General, or a procurement technical assistance program established under chapter 142 of title 10;
  • (18) shall review summary data provided by purchase card issuers of purchases made by the agency greater than the micro-purchase threshold (as defined under section 1902 of title 41 ) and less than the simplified acquisition threshold to ensure that the purchases have been made in compliance with the provisions of this chapter and have been properly recorded in the Federal Procurement Data System, if the method of payment is a purchase card issued by the Department of Defense pursuant to section 2784 of title 10 or by the head of an executive agency pursuant to section 1909 of title 41 ;
  • (19) shall provide assistance to a small business concern awarded a contract or subcontract under this chapter or under title 10 or title 41 in finding resources for education and training on compliance with contracting regulations (including the Federal Acquisition Regulation) after award of such a contract or subcontract;
  • (20) shall review all subcontracting plans required by paragraph (4) or (5) of section 637(d) of this title to ensure that the plan provides maximum practicable opportunity for small business concerns to participate in the performance of the contract to which the plan applies; 5 5 So in original. Probably should be followed by “and”.
  • (21) shall consult with the appropriate personnel from the relevant Federal agency to assist small business concerns participating in a SBIR or STTR program under section 638 of this title with researching applicable solicitations for the award of a Federal contract (particularly with the Federal agency that has a funding agreement, as defined under section 638 of this title , with the concern) to market the research developed by such concern under such SBIR or STTR program.
• (l)
  • (1) The Administrator shall assign to each major procurement center a procurement center representative with such assistance as may be appropriate.
  • (2) A procurement center representative is authorized to—
    • (A) attend any provisioning conference or similar evaluation session during which determinations are made as to whether requirements are to be procured through other than full and open competition and make recommendations with respect to such requirements to the members of such conference or session;
    • (B) review, at any time, barriers to small business participation in Federal contracting previously imposed on goods and services through acquisition method coding or similar procedures, and recommend to personnel of the appropriate activity the prompt reevaluation of such barriers;
    • (C) review barriers to small business participation in Federal contracting arising out of restrictions on the rights of the United States in technical data, and, when appropriate, recommend that personnel of the appropriate activity initiate a review of the validity of such an asserted restriction;
    • (D) review any bundled or consolidated solicitation or contract in accordance with this chapter;
    • (E) have access to procurement records and other data of the procurement center commensurate with the level of such representative’s approved security clearance classification, with such data provided upon request in electronic format, when available;
    • (F) receive unsolicited proposals from small business concerns and transmit such proposals to personnel of the activity responsible for reviewing such proposals, who shall furnish the procurement center representative with information regarding the disposition of any such proposal;
    • (G) consult with the Director the Office of Small and Disadvantaged Business Utilization of that agency and the agency personnel described in paragraph 6 6 So in original. Probably should be “paragraphs”. (7) and (8) of subsection (k) with regard to agency insourcing decisions covered by subsection (k)(11);
    • (H) be an advocate for the maximum practicable utilization of small business concerns in Federal contracting, including by advocating against the consolidation or bundling of contract requirements when not justified;
    • (I) assist small business concerns with finding resources for education and training on compliance with contracting regulations (including the Federal Acquisition Regulation) after award of a contract or subcontract;
    • (J) consult with the appropriate personnel from the relevant Federal agency, to assist small business concerns participating in a SBIR or STTR program under section 9 with Phase III; 5
    • (K) carry out any other responsibility assigned by the Administrator.
  • (3) A procurement center representative is authorized to appeal the failure to act favorably on any recommendation made pursuant to paragraph (2). Such appeal shall be filed and processed in the same manner and subject to the same conditions and limitations as an appeal filed by the Administrator pursuant to subsection (a).
  • (4) The Administration shall assign and co-locate at least two small business technical advisers to each major procurement center in addition to such other advisers as may be authorized from time to time. The sole duties of such advisers shall be to assist the procurement center representative for the center to which such advisers are assigned in carrying out the functions described in paragraph (2) and the representatives referred to in subsection (k)(6).
  • (5)
    • (A) A procurement center representative assigned under this subsection shall—
      • (i) be a full-time employee of the Administration;
      • (ii) be fully qualified, technically trained, and familiar with the goods and services procured by the major procurement center to which that representative is assigned; and
      • (iii) have the certification described in subparagraph (C).
    • (B) The Administrator shall establish personnel positions for procurement center representatives assigned under this subsection, which are classified at a grade level of the General Schedule sufficient to attract and retain highly qualified personnel.
    • (C)
      • (i) Consistent with the requirements of clause (ii), a procurement center representative shall have a Level III Federal Acquisition Certification in Contracting (or any successor certification) or the equivalent Department of Defense certification, except that any person serving in such a position on or before January 3, 2013 , may continue to serve in that position for a period of 5 years without the required certification.
      • (ii)
        • (I) The certification described in clause (i) is not required for any person serving as a procurement center representative until the date that is one calendar year after the date such person is appointed as a procurement center representative.
        • (II) The requirements of subclause (I) shall—
  • (6) For purposes of this subsection, the term “major procurement center” means a procurement center that, in the opinion of the Administrator, purchases substantial dollar amounts of goods or services, including goods or services that are commercially available.
  • (7)
    • (A) At such times as the Administrator deems appropriate, the breakout procurement center representative 7 7 So in original. Probably should be “the procurement center representative”. shall conduct familiarization sessions for contracting officers and other appropriate personnel of the procurement center to which such representative is assigned. Such sessions shall acquaint the participants with the provisions of this subsection and shall instruct them in methods designed to further the purposes of such subsection.
    • (B) A procurement center representative may provide training under subparagraph (A) only to the extent that the training does not interfere with the representative carrying out other activities under this subsection.
  • (8) A procurement center representative shall prepare and personally deliver an annual briefing and report to the head of the procurement center to which such representative is assigned. Such briefing and report shall detail the past and planned activities of the representative and shall contain such recommendations for improvement in the operation of the center as may be appropriate. The head of such center shall personally receive such briefing and report and shall, within 60 calendar days after receipt, respond, in writing, to each recommendation made by such representative.
  • (9) The Administrator—
    • (A) may not limit the scope of review by the procurement center representative for any solicitation of a contract or task order without regard to whether the contract or task order or part of the contract or task order is set aside for small business concerns, whether 1 or more contracts or task order awards are reserved for small business concerns under a multiple award contract, or whether or not the solicitation would result in a bundled or consolidated contract (as defined in subsection (s)) or a bundled or consolidated task order; and
    • (B) shall, unless the contracting agency requests a review, limit the scope of review by the procurement center representative for any solicitation of a contract or task order if such solicitation is awarded by or for the Department of Defense and—
      • (i) is conducted pursuant to section 2762 of title 22 ;
      • (ii) is a humanitarian operation as defined in section 401(e) of title 10 ;
      • (iii) is for a contingency operation, as defined in section 101(a)(13) of title 10 ;
      • (iv) is to be awarded pursuant to an agreement with the government of a foreign country in which Armed Forces of the United States are deployed; or
      • (v) both the place of award and the place of performance are outside of the United States and its territories.
• (m) All procurement center representatives (including those referred to in subsection (k)(6)), in addition to such other duties as may be assigned by the Administrator, shall increase, insofar as possible, the number and dollar value of procurements that may be used for the programs established under this section and section 637(a) of this title .
• (n) For purposes of this section, the determination of labor surplus areas shall be made on the basis of the criteria in effect at the time of the determination, except that any minimum population criteria shall not exceed twenty-five thousand. Such determination, as modified by the preceding sentence, shall be made by the Secretary of Labor.
• (o) A concern may not be awarded a contract under subsection (a) as a small business concern unless the concern agrees to satisfy the requirements of section 657s of this title .
• (p)
  • (1) In this subsection, the term “bundled contract” has the meaning given such term in section 632( o )(1) of this title.
  • (2)
    • (A) Not later than 180 days after December 21, 2000 , the Administrator of the Small Business Administration shall develop and shall thereafter maintain a database containing data and information regarding—
      • (i) each bundled contract awarded by a Federal agency; and
      • (ii) each small business concern that has been displaced as a prime contractor as a result of the award of such a contract.
  • (3) For each bundled contract that is to be recompeted as a bundled contract, the Administrator shall determine—
    • (A) the amount of savings and benefits (in accordance with subsection (e)) achieved under the bundling of contract requirements; and
    • (B) whether such savings and benefits will continue to be realized if the contract remains bundled, and whether such savings and benefits would be greater if the procurement requirements were divided into separate solicitations suitable for award to small business concerns.
  • (4)
    • (A) Not later than 1 year after December 21, 2000 , and annually in March thereafter, the Administration shall transmit a report on contract bundling to the Committees on Small Business of the House of Representatives and the Senate.
    • (B) Each report transmitted under subparagraph (A) shall include—
      • (i) data on the number, arranged by industrial classification, of small business concerns displaced as prime contractors as a result of the award of bundled contracts by Federal agencies; and
      • (ii) a description of the activities with respect to previously bundled contracts of each Federal agency during the preceding year, including—
        • (I) data on the number and total dollar amount of all contract requirements that were bundled; and
        • (II) with respect to each bundled contract, data or information on—
  • (5)
    • (A) To assist in the implementation of this section, the Administration shall have access to information collected through the Federal Procurement Data System.
    • (B) To assist in the implementation of this section, the head of each contracting agency shall provide, upon request of the Administration, procurement information collected through existing agency data collection sources.
• (q)
  • (1)
    • (A) Each Federal agency shall include in each solicitation for any multiple award contract above the substantial bundling threshold of the Federal agency a provision soliciting bids from any responsible source, including responsible small business concerns and teams or joint ventures of small business concerns.
    • (B) When evaluating an offer of a small business prime contractor that includes a proposed team of small business subcontractors for any multiple award contract above the substantial bundling threshold of the Federal agency, the head of the agency shall consider the capabilities and past performance of each first tier subcontractor that is part of the team as the capabilities and past performance of the small business prime contractor.
    • (C) When evaluating an offer of a joint venture of small business concerns for any multiple award contract above the substantial bundling threshold of the Federal agency, if the joint venture does not demonstrate sufficient capabilities or past performance to be considered for award of a contract opportunity, the head of the agency shall consider the capabilities and past performance of each member of the joint venture as the capabilities and past performance of the joint venture.
  • (2)
    • (A) Not later than 1 year after September 27, 2010 , the Federal Acquisition Regulatory Council established under section 1302(a) of title 41 shall amend the Federal Acquisition Regulation issued under section 1303(a) of title 41 to—
      • (i) establish a Government-wide policy regarding contract bundling, including regarding the solicitation of teaming and joint ventures under paragraph (1); and
      • (ii) require that the policy established under clause (i) be published on the website of each Federal agency.
    • (B) Not later than 30 days after the date on which the head of a Federal agency submits data certifications to the Administrator for Federal Procurement Policy, the head of the Federal agency shall publish on the website of the Federal agency a list and rationale for any bundled contract for which the Federal agency solicited bids or that was awarded by the Federal agency.
  • (3) Not later than 90 days after September 27, 2010 , and every 3 years thereafter, the Administrator shall submit to the Committee on Small Business and Entrepreneurship of the Senate and the Committee on Small Business of the House of Representatives a report regarding procurement center representatives and commercial market representatives, which shall—
    • (A) identify each area for which the Administration has assigned a procurement center representative or a commercial market representative;
    • (B) explain why the Administration selected the areas identified under subparagraph (A); and
    • (C) describe the activities performed by procurement center representatives and commercial market representatives.
• (r) Not later than 1 year after September 27, 2010 , the Administrator for Federal Procurement Policy and the Administrator, in consultation with the Administrator of General Services, shall, by regulation, establish guidance under which Federal agencies may, at their discretion—
  • (1) set aside part or parts of a multiple award contract for small business concerns, including the subcategories of small business concerns identified in subsection (g)(2);
  • (2) notwithstanding the fair opportunity requirements under section 2304c(b) of title 10 and section 4106(c) of title 41 , set aside orders placed against multiple award contracts for small business concerns, including the subcategories of small business concerns identified in subsection (g)(2); and
  • (3) reserve 1 or more contract awards for small business concerns under full and open multiple award procurements, including the subcategories of small business concerns identified in subsection (g)(2).
• (s)
  • (1) Not later than October 1, 2015 , the Administrator of the Small Business Administration, in consultation with the Small Business Procurement Advisory Council, the Administrator for Federal Procurement Policy, and the Administrator of General Services, shall develop a plan to improve the quality of data reported on bundled or consolidated contracts in the Federal procurement data system (described in section 1122(a)(4)(A) of title 41 ).
  • (2) The plan shall—
    • (A) describe the roles and responsibilities of the Administrator of the Small Business Administration, each Director of Small and Disadvantaged Business Utilization, the Administrator for Federal Procurement Policy, the Administrator of General Services, senior procurement executives, and Chief Acquisition Officers in—
      • (i) improving the quality of data reported on bundled or consolidated contracts in the Federal procurement data system; and
      • (ii) contributing to the annual report required by subsection (p)(4);
    • (B) recommend changes to policies and procedures, including training procedures of relevant personnel, to properly identify and mitigate the effects of bundled or consolidated contracts;
    • (C) recommend requirements for periodic and statistically valid data verification and validation; and
    • (D) recommend clear data verification responsibilities.
  • (3) The Administrator of the Small Business Administration shall submit the plan to the Committee on Small Business of the House of Representatives and the Committee on Small Business and Entrepreneurship of the Senate not later than December 1, 2016 .
  • (4) Not later than October 1, 2016 , the Administrator of the Small Business Administration shall implement the plan described in this subsection.
  • (5) The Administrator shall annually provide to the Committee on Small Business of the House of Representatives and the Committee on Small Business and Entrepreneurship of the Senate a certification of the accuracy and completeness of data reported on bundled and consolidated contracts.
  • (6) In this subsection, the following definitions apply:
    • (A) The terms “Chief Acquisition Officer” and “senior procurement executive” have the meanings given such terms in section 657q(a) of this title .
    • (B) The term “bundled or consolidated contract” means a bundled contract (as defined in section 632( o ) of this title) or a contract resulting from the consolidation of contracting requirements (as defined in section 657q(a)(2) of this title ).
• (t) Not later than one year after June 30, 2016 , the Comptroller General of the United States shall submit to the Committee on Small Business of the House of Representatives and the Committee on Small Business and Entrepreneurship of the Senate a report on the application and utilization of contracting activities of the Administration (including contracting activities relating to HUBZone small business concerns) in Puerto Rico. The report shall also identify any provisions of Federal law that may create an obstacle to the efficient implementation of such contracting activities.
• (u) The Administrator shall provide to small business development centers and entities participating in the Procurement Technical Assistance Cooperative Agreement Program under chapter 142 of title 10 and shall make available on the website of the Administration, a list of resources for small business concerns seeking education and assistance on compliance with contracting regulations (including the Federal Acquisition Regulation) after award of a contract or subcontract.
• (v) Not less than annually, the Administrator shall provide to the Defense Acquisition University (established under section 1746 of title 10 ), the Federal Acquisition Institute (established under section 1201 of title 41 ), the individual responsible for mandatory training and education of the acquisition workforce of each agency (described under section 1703(f)(1)(C) of title 41 ), small business development centers, and entities participating in the Procurement Technical Assistance Cooperative Agreement Program under chapter 142 of title 10—
  • (1) a list of all changes made in the prior year to regulations promulgated—
    • (A) by the Administrator that affect Federal acquisition; and
    • (B) by the Federal Acquisition Council that implement amendments to this chapter; and
  • (2) any materials the Administrator has developed that explain, train, or assist Federal agencies or departments or small business concerns with compliance with the regulations described in paragraph (1).
• (w)
  • (1) With respect to any solicitation for the award of a contract for construction anticipated to be awarded to a small business concern, the agency administering such contract shall provide a notice along with the solicitation to prospective bidders and offerors that includes—
    • (A) information about the agency’s policies or practices in complying with the requirements of the Federal Acquisition Regulation relating to the timely definitization of requests for an equitable adjustment; and
    • (B) information about the agency’s past performance in definitizing requests for equitable adjustments in accordance with paragraph (2).
  • (2) An agency shall provide the past performance information described under paragraph (1)(B) as follows:
    • (A) For the 3-year period preceding the issuance of the notice, to the extent such information is available.
    • (B) With respect to an agency that, on August 13, 2018 , has not compiled the information described under paragraph (1)(B)—
      • (i) beginning 1 year after August 13, 2018 , for the 1-year period preceding the issuance of the notice;
      • (ii) beginning 2 years after August 13, 2018 , for the 2-year period preceding the issuance of the notice; and
      • (iii) beginning 3 years after August 13, 2018 , and each year thereafter, for the 3-year period preceding the issuance of the notice.
  • (3) In the notice required under paragraph (1), the agency shall ensure that the past performance information described under paragraph (1)(B) is set forth separately for each definitization action that was completed during the following periods:
    • (A) Not more than 30 days after receipt of a request for an equitable adjustment.
    • (B) Not more than 60 days after receipt of a request for an equitable adjustment.
    • (C) Not more than 90 days after receipt of a request for an equitable adjustment.
    • (D) Not more than 180 days after receipt of a request for an equitable adjustment.
    • (E) Not more than 365 days after receipt of a request for an equitable adjustment.
    • (F) More than 365 days after receipt of a request for an equitable adjustment.
    • (G) After the completion of the performance of the contract through a contract modification addressing all undefinitized requests for an equitable adjustment received during the term of the contract.
• (x)
  • (1) If an agency awards a prime contract to Puerto Rico business or a covered territory business, or a prime contractor awards a subcontract (at any tier) to a subcontractor that is a Puerto Rico business or a covered territory business, during the period beginning on August 13, 2018 , and ending on the date that is 4 years after such date, the value of the contract or subcontract shall be doubled for purposes of determining compliance with the goals for procurement contracts under subsection (g)(1)(A) during such period.
  • (2) Along with the report required under subsection (h)(1), the head of each Federal agency shall submit to the Administrator, and make publicly available on the scorecard described in section 868(b) of the National Defense Authorization Act for Fiscal Year 2016 ( 15 U.S.C. 644 note), an analysis of the number and dollar amount of prime contracts awarded pursuant to paragraph (1) for each fiscal year of the period described in such paragraph.
  • (3) In this subsection, the term “covered territory business” means a small business concern that has its principal office located in one of the following:
    • (A) The United States Virgin Islands.
    • (B) American Samoa.
    • (C) Guam.
    • (D) The Northern Mariana Islands.