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S. 4520 (116th): VA–SBA Act


The text of the bill below is as of Aug 10, 2020 (Introduced). The bill was not enacted into law.


II

116th CONGRESS

2d Session

S. 4520

IN THE SENATE OF THE UNITED STATES

August 10, 2020

introduced the following bill; which was read twice and referred to the Committee on Veterans' Affairs

A BILL

To transfer the responsibility of verifying small business concerns owned and controlled by veterans or service-disabled veterans to the Small Business Administration, and for other purposes.

1.

Short title; table of contents

(a)

Short title

This Act may be cited as the Verification Alignment and Service-disabled Business Adjustment Act or the VA–SBA Act.

(b)

Table of Contents

The table of contents for this Act is as follows:

Sec. 1. Short title; table of contents.

Sec. 2. Transfer date.

Sec. 3. Amendment to and transfer of veteran-owned and service-disabled veteran-owned business database.

Sec. 4. Additional requirements for database.

Sec. 5. Procurement program for small business concerns owned and controlled by service-disabled veterans.

Sec. 6. Certification for small business concerns owned and controlled by veterans.

Sec. 7. Status of self-certified small business concerns owned and controlled by service-disabled veterans.

Sec. 8. Transfer of the Center for Verification and Evaluation of the Department of Veterans Affairs to the Small Business Administration.

Sec. 9. Report.

Sec. 10. Determination of budgetary effects.

2.

Transfer date

For purposes of this Act, the term transfer date means the date that is 2 years after the date of enactment of this Act.

3.

Amendment to and transfer of veteran-owned and service-disabled veteran-owned business database

(a)

Amendment of veteran-Owned and service-Disabled veteran-Owned business database

Effective on the transfer date, section 8127 of title 38, United States Code, is amended—

(1)

in subsection (e), by striking the Secretary under subsection (f) and inserting the Administrator under section 36 of the Small Business Act;

(2)

in subsection (f)—

(A)

by striking the Secretary each place it appears, except in the last place it appears in paragraph (2)(A), and inserting the Administrator;

(B)

in paragraph (1), by striking small business concerns owned and controlled by veterans with service-connected disabilities and inserting small business concerns owned and controlled by service-disabled veterans;

(C)

in paragraph (2)—

(i)

in subparagraph (A)—

(I)

by striking to access and inserting to obtain from the Secretary of Veterans Affairs; and

(II)

by inserting , United States Code, after title 5; and

(ii)

by striking subparagraph (B) and inserting the following:

(B)

For purposes of this subsection—

(i)

the Secretary of Veterans Affairs shall—

(I)

verify an individual’s status as a veteran or a service-disabled veteran; and

(II)

establish a system to permit the Administrator to access, but not alter, the verification of such status; and

(ii)

the Administrator shall verify—

(I)

the status of a business concern as a small business concern; and

(II)

the ownership and control of such business concern.

(C)

The Administrator may not certify a concern under subsection (b) or section 36A if the Secretary of Veterans Affairs cannot provide the verification described under subparagraph (B)(i)(I).

;

(D)

by striking paragraphs (4) and (7);

(E)

by redesignating paragraphs (5) and (6) as paragraphs (4) and (5), respectively, and redesignating paragraph (8) as paragraph (6);

(F)

in paragraph (4), as so redesignated, by striking The Secretary and inserting The Administrator; and

(G)

in paragraph (6), as so redesignated—

(i)

in subparagraph (A)—

(I)

by striking verify the status of the concern as a small business concern or the ownership or control of the concern and inserting certify the status of the concern as a small business concern owned and controlled by veterans (under section 36A) or a small business concern owned and controlled by service-disabled veterans (under subsection (g) of this section);

(II)

by striking verification and inserting certification; and

(III)

by striking the Small Business Administration (as established under section 5(i) of the Small Business Act) and inserting the Administration (as established under section 5(i));

(ii)

in subparagraph (B)—

(I)

in clause (i)—

(aa)

by striking small business concern owned and controlled by veterans with service-connected disabilities and inserting small business concern owned and controlled by service-disabled veterans; and

(bb)

by striking the Small Business Act and inserting the Administration; and

(II)

in clause (ii)—

(aa)

by amending subclause (I) to read as follows:

(I)

the Secretary of Veterans Affairs or the Administrator; or

; and

(bb)

in subclause (II), by striking the contracting officer of the Department and inserting the applicable contracting officer; and

(iii)

by striking subparagraph (C);

(3)

by redesignating subsection (k) (relating to definitions) as subsection (l);

(4)

by inserting after subsection (j) (relating to annual reports) the following:

(k)

Annual transfer for certification costs

For each fiscal year, the Secretary of Veterans Affairs shall reimburse the Administrator in an amount necessary to cover any cost incurred by the Administrator for certifying small business concerns owned and controlled by veterans that do not qualify as small business concerns owned and controlled by service-disabled veterans for the Secretary for purposes of this section and section 8128 of this title. The Administrator is authorized to accept such reimbursement. The amount of any such reimbursement shall be determined jointly by the Secretary and the Administrator and shall be provided from fees collected by the Secretary under multiple-award schedule contracts. Any disagreement about the amount shall be resolved by the Director of the Office of Management and Budget.

; and

(5)

in subsection (l) (relating to definitions), as so redesignated—

(A)

by redesignating paragraphs (1), (2), and (3) as paragraphs (2), (3), and (4), respectively; and

(B)

by inserting before paragraph (2), as so redesignated, the following:

(1)

The term Administrator means the Administrator of the Small Business Administration.

.

(b)

Transfer of requirements relating to database to the Small Business Act

Effective on the transfer date, subsection (f) of section 8127 of title 38, United States Code (as amended by subsection (a)), is transferred to section 36 of the Small Business Act (15 U.S.C. 657f), inserted so as to appear after subsection (e).

(c)

Conforming amendments

The following amendments shall take effect on the transfer date:

(1)

Small Business Act

Section 3(q)(2)(C)(i)(III) of the Small Business Act (15 U.S.C. 632(q)(2)(C)(i)(III)) is amended by striking section 8127(f) of title 38, United States Code and inserting section 36.

(2)

Title 38

Section 8128 of title 38, United States Code, is amended by striking maintained by the Secretary under section 8127(f) of this title and inserting maintained by the Administrator of the Small Business Act under section 36 of the Small Business Act.

4.

Additional requirements for database

(a)

Administration access to database before the transfer date

During the period between the date of the enactment of this Act and the transfer date, the Secretary of Veterans Affairs shall provide the Administrator of the Small Business Administration with access to the contents of the database described under section 8127(f) of title 38, United States Code.

(b)

Rule of construction

Nothing in this Act or the amendments made by this Act may be construed—

(1)

as prohibiting the Administrator of the Small Business Administration from combining the contents of the database described under section 8127(f) of title 38, United States Code, with other databases maintained by the Administration; or

(2)

as requiring the Administrator to use any system or technology related to the database described under section 8127(f) of title 38, United States Code, on or after the transfer date to comply with the requirement to maintain a database under subsection (f) of section 36 of the Small Business Act (as transferred pursuant to section 3(b) of this Act).

(c)

Recognition of the issuance of joint regulations

The date specified under section 1832(e) of the National Defense Authorization Act for Fiscal Year 2017 (15 U.S.C. 632 note) shall be deemed to be October 1, 2018.

5.

Procurement program for small business concerns owned and controlled by service-disabled veterans

(a)

Procurement program for small business concerns owned and controlled by service-Disabled veterans

Section 36 of the Small Business Act (15 U.S.C. 657f) is amended—

(1)

by redesignating subsection (d) as paragraph (3), adjusting the margin accordingly, and transferring such paragraph to subsection (h) of such section, as added by paragraph (6) of this subsection, so as to appear after paragraph (2);

(2)

by striking subsection (e);

(3)

by redesignating subsections (a), (b), and (c) as subsections (c), (d), and (e) respectively;

(4)

by inserting before subsection (c), as so redesignated, the following:

(a)

Contracting officer defined

For purposes of this section, the term contracting officer has the meaning given such term in section 2101 of title 41, United States Code.

(b)

Certification of small business concerns owned and controlled by service-Disabled veterans

With respect to a procurement program or preference established under this Act that applies to prime contractors, the Administrator shall—

(1)

certify whether a concern has status as a small business concern owned and controlled by service-disabled veterans; and

(2)

require the periodic recertification of such status.

;

(5)

in subsection (d), as so redesignated, by striking and that the award can be made at a fair market price and inserting , that the award can be made at a fair market price, and if each concern is certified by the Administrator as a small business concern owned and controlled by service-disabled veterans;

(6)

by adding at the end the following:

(g)

Certification requirement

Notwithstanding subsection (c), a contracting officer may only award a sole source contract to a small business concern owned and controlled by service-disabled veterans or a contract on the basis of competition restricted to small business concerns owned and controlled by service-disabled veterans if such a concern is certified by the Administrator as a small business concern owned and controlled by service-disabled veterans.

(h)

Enforcement; penalties

(1)

Verification of eligibility

In carrying out this section, the Administrator shall establish procedures relating to—

(A)

the filing, investigation, and disposition by the Administration of any challenge to the eligibility of a small business concern to receive assistance under this section (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 subsection (b)); and

(B)

verification by the Administrator of the accuracy of any certification made or information provided to the Administration by a small business concern under subsection (b).

(2)

Examinations

The procedures established under paragraph (1) shall provide for a program of examinations by the Administrator of any small business concern making a certification or providing information to the Administrator under subsection (b), to determine the veracity of any statements or information provided as part of such certification or otherwise provided under subsection (b).

(i)

Provision of data

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 subsection (b) or to be able to certify the status of the concern as a small business concern owned and controlled by veterans under section 36A.

; and

(7)

in paragraph (3) of subsection (h), as redesignated and transferred by paragraph (1) of this subsection, by inserting and section 36A before the period at the end.

(b)

Penalties for misrepresentation

Section 16 of the Small Business Act (15 U.S.C. 645) is amended—

(1)

in subsection (d)(1)—

(A)

in the matter preceding subparagraph (A)—

(i)

by striking the comma that immediately follows another comma; and

(ii)

by striking , a ‘small and inserting , a small business concern owned and controlled by service-disabled veterans, a small business concern owned and controlled by veterans, a ‘small; and

(B)

in paragraph (A), by striking 9, 15, or 31 and inserting 8, 9, 15, 31, 36, or 36A; and

(2)

in subsection (e)—

(A)

by striking the comma that immediately follows another comma; and

(B)

by striking , a ‘small and inserting , a small business concern owned and controlled by service-disabled veterans, a small business concern owned and controlled by veterans, a ‘small.

6.

Certification for small business concerns owned and controlled by veterans

The Small Business Act (15 U.S.C. 631 et seq.) is amended by inserting after section 36 the following:

36A.

Certification of small business concerns owned and controlled by veterans

(a)

In general

With respect to the program established under section 8127 of title 38, United States Code, the Administrator shall—

(1)

certify whether a concern has status as a small business concern owned and controlled by veterans; and

(2)

require the periodic recertification of such status.

(b)

Enforcement; penalties

(1)

Verification of eligibility

In carrying out this section, the Administrator shall establish procedures relating to—

(A)

the filing, investigation, and disposition by the Administration of any challenge to the eligibility of a small business concern to receive assistance under section 36 (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 subsection (a)); and

(B)

verification by the Administrator of the accuracy of any certification made or information provided to the Administration by a small business concern under subsection (a).

(2)

Examination of applicants

The procedures established under paragraph (1) shall provide for a program of examinations by the Administrator of any small business concern making a certification or providing information to the Administrator under subsection (a), to determine the veracity of any statements or information provided as part of such certification or otherwise provided under subsection (a).

.

7.

Status of self-certified small business concerns owned and controlled by service-disabled veterans

(a)

In general

Notwithstanding any other provision of law, any small business concern that self-certified as a small business concern owned and controlled by service-disabled veterans shall—

(1)

if the concern files a certification application with the Administrator of the Small Business Administration before the end of the 1-year period beginning on the transfer date, maintain such self-certification until the Administrator makes a determination with respect to such certification; and

(2)

if the concern does not file such a certification application before the end of the 1-year period beginning on the transfer date, lose, at the end of such 1-year period, any self-certification of the concern as a small business concern owned and controlled by service-disabled veterans.

(b)

Non-Applicability to Department of Veterans Affairs

Subsection (a) shall not apply to participation in contracts (including subcontracts) with the Department of Veterans Affairs.

(c)

Notice

The Administrator shall notify any small business concern that self-certified as a small business concern owned and controlled by service-disabled veterans about the requirements of this Act, including the transfer date, and make such notice publicly available, on the date of the enactment of this Act.

8.

Transfer of the Center for Verification and Evaluation of the Department of Veterans Affairs to the Small Business Administration

(a)

Definition

In this section, the term function

(1)

means any duty, obligation, power, authority, responsibility, right, privilege, activity, or program; and

(2)

does not include employees.

(b)

Abolishment

The Center for Verification and Evaluation of the Department of Veterans Affairs, as defined under section 74.1 of title 38, Code of Federal Regulations, is abolished effective on the transfer date.

(c)

Transfer of functions

Effective on the transfer date, all functions that, immediately before the transfer date, were functions of the Center for Verification and Evaluation shall be functions of the Small Business Administration.

(d)

Transfer of assets

So much of the property (including contracts for the procurement of property or services) and records used, held, available, or to be made available in connection with a function transferred under this section shall be available to the Small Business Administration at such time or times as the President directs for use in connection with the functions transferred.

(e)

Savings provisions

(1)

Continuing effect of legal documents

All orders, determinations, rules, regulations, permits, agreements, grants, contracts, certificates, licenses, registrations, privileges, and other administrative actions—

(A)

which have been issued, made, granted, or allowed to become effective by the President, any Federal agency or official thereof, or by a court of competent jurisdiction, in the performance of functions which are transferred under this section; and

(B)

which are in effect on the transfer date, or were final before the transfer date and are to become effective on or after the transfer date,

shall continue in effect according to their terms until modified, terminated, superseded, set aside, or revoked in accordance with law by the President, the Administrator of the Small Business Administration or other authorized official, a court of competent jurisdiction, or by operation of law.
(2)

Proceedings not affected

The provisions of this section shall not affect any proceedings, including notices of proposed rulemaking, or any application for any license, permit, certificate, or financial assistance pending before the Department of Veterans Affairs on the transfer date, with respect to functions transferred by this section but such proceedings and applications shall be continued. Orders shall be issued in such proceedings, appeals shall be taken therefrom, and payments shall be made pursuant to such orders, as if this section had not been enacted, and orders issued in any such proceedings shall continue in effect until modified, terminated, superseded, or revoked by a duly authorized official, by a court of competent jurisdiction, or by operation of law. Nothing in this paragraph shall be deemed to prohibit the discontinuance or modification of any such proceeding under the same terms and conditions and to the same extent that such proceeding could have been discontinued or modified if this section had not been enacted.

(3)

Suits not affected

The provisions of this section shall not affect suits commenced before the transfer date, and in all such suits, proceedings shall be had, appeals taken, and judgments rendered in the same manner and with the same effect as if this section had not been enacted.

(4)

Nonabatement of actions

No suit, action, or other proceeding commenced by or against the Department of Veterans Affairs, or by or against any individual in the official capacity of such individual as an officer of the Department of Veterans Affairs, shall abate by reason of the enactment of this section.

(5)

Administrative actions relating to promulgation of regulations

Any administrative action relating to the preparation or promulgation of a regulation by the Department of Veterans Affairs relating to a function transferred under this section may be continued by the Administrator of the Small Business Administration with the same effect as if this section had not been enacted.

(f)

References

Any reference in any other Federal law, Executive order, rule, regulation, or delegation of authority, or any document of or pertaining to a function of the Center for Verification and Evaluation that is transferred under this section is deemed, after the transfer date, to refer to the Small Business Administration.

9.

Report

Not later than 1 year after the date of the enactment of this Act, and every 6 months thereafter until the transfer date, the Administrator of the Small Business Administration and Secretary of Veterans Affairs shall jointly submit to the Committee on Appropriations, the Committee on Small Business, and the Committee on Veterans’ Affairs of the House of Representatives and the Committee on Appropriations, the Committee on Small Business and Entrepreneurship, and the Committee on Veterans’ Affairs of the Senate a report on the planning for the transfer of functions and property required under this Act and the amendments made by this Act on the transfer date, which shall include—

(1)

a discussion of whether and how the verification database and operations of the Center for Verification and Evaluation of the Department of Veterans Affairs will be incorporated into the existing certification database of the Small Business Administration;

(2)

projections for the numbers and timing, in terms of fiscal year, of—

(A)

already verified concerns that will come up for recertification; and

(B)

self-certified concerns that are expected to apply for certification;

(3)

an explanation of how outreach to veteran service organizations, the service-disabled veteran-owned and veteran-owned small business community, and other stakeholders will be conducted; and

(4)

other pertinent information determined by the Administrator and the Secretary.

10.

Determination of budgetary effects

The budgetary effects of this Act, for the purpose of complying with the Statutory Pay-As-You-Go Act of 2010, shall be determined by reference to the latest statement titled Budgetary Effects of PAYGO Legislation for this Act, submitted for printing in the Congressional Record by the Chairman of the Senate Budget Committee, provided that such statement has been submitted prior to the vote on passage.