NDAA for Fiscal Year 2012

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TITLE XVI--INDUSTRIAL BASE MATTERS Subtitle C--Matters Relating to Small Business Concerns
P. L. 112-	House Conference Report 112-705
SEC. 1653. SUBCONTRACTING PLANS. (a) Amendments to Small Business Act Requirements- Section 8(d) of the Small Business Act (15 U.S.C. 637(d)) is amended by-- (1) redesignating paragraphs (7), (8), (9), (10), (11), and (12) as paragraphs (8), (9), (10), (11), (12), and (13) respectively; (2) inserting after paragraph (6) the following: `(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.'; (3) in paragraph (9), as redesignated by paragraph (1) of this subsection, striking `shall be a material breach of such contract or subcontract' and inserting `shall be a material breach of such contract or subcontract and may be considered in any past performance evaluation of the contractor'; (4) in subparagraph (C) of paragraph (11), as redesignated by paragraph (1) of this subsection, by striking `, either on a contract-by-contract basis, or in the case contractors' and inserting `as a supplement to evaluations performed by the contracting agency, either on a contract-by-contract basis or, in the case of contractors'; and (5) by adding at the end the following: `(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.'. (b) Additional Requirements- (1) REPORTING REQUIREMENTS- Not later than 1 year after the date of the enactment of this part, 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 8(d)(6)(E) of the Small Business Act is modified to ensure that it can identify entities that fail to submit required reports. (2) ANNUAL REPORT- 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 8(d)(6) of the Small Business Act 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.	Subcontracting plans (sec. 1653) The House bill contained a provision (sec. 1655) that would amend section 8(d) of the Small Business Act (15 U.S.C. 637(d)) to modify and strengthen the authorities of the Small Business Administration relative to the submission and enforcement of small business subcontracting plans. The Senate amendment contained a provision (sec. 888) that would require the establishment of a new mechanism for reporting fraudulent activity or bad faith by prime contractors with respect to subcontracting plans. The Senate recedes with an amendment that would strengthen requirements for collecting, reviewing, and evaluating information on prime contractor compliance with small business subcontracting plans, require the establishment of a new mechanism for reporting fraudulent activity or bad faith by prime contractors with respect to subcontracting plans, and require the Small Business Administration to submit an annual report on compliance with such plans.
	House Report 112-479
	SECTION 1655--SUBCONTRACTING PLANS This section would amend subsection (d) of section 8 of the Small Business Act (15 U.S.C. 637) to require an offeror or bidder responding to a Federal solicitation to submit a subcontracting report every 6 months during contract performance, an annual report during performance and a summary report within 30 days of the end of the contract. This section would also provide authority for a Procurement Center Representative (PCR) to determine if the subcontracting plan fails to provide the maximum practicable opportunity for small business concerns to participate and, allows the PCR to delay acceptance of the subcontracting plan for up to 30 days in that case. However, this section would provide an exception if the appropriate personnel of the contracting agency certify that the agency's need for the property or services is of such an unusual and compelling urgency that the United States would be seriously injured unless the agency is permitted to accept the subcontracting plan. Furthermore, this section would not provide a Procurement Center Representative the authority to delay the award or performance of a Department of Defense contract.

SEC. 1653. SUBCONTRACTING PLANS.