September 16, 2011Conflicting interpretations of agency internal reporting requirements in the Small Business Act have prompted a stalemate between four departments and congressional overseers examining the performance of programs designed to assure that small businesses get a fair share of federal contracting.
The Government Accountability Office in a report had found that seven agencies were not complying with the law's requirement that the Offices of Small and Disadvantaged Business Utilization in every department except Defense must report directly to the agency.
At a hearing Thursday with the House Small Business Subcommittee on Contracting and the Workforce, a GAO specialist reported that the State, Commerce, Treasury and Justice departments recently had declined requests that they comply.
Subcommittee Chairman Mick Mulvaney, R-S.C., told the hearing that a failure to comply presents a clear conflict of interest and is "completely unacceptable . . . President Obama says that 'small business contracting should always be a high priority in the procurement process,' but his administration disregards the basic protections for small business contractors," Mulvaney said. "Instead of just lip service, he should make sure his administration is following the law in regards to small business requirements."
OSDBUs were created in 1978 to help reserve some federal contracts for for-profit small business concerns in which socially and economically disadvantaged individuals own at least a 51 percent interest and manage and control daily business operations. Concretely, they seek to make sure that the tendency of contracting officers to bundle contracts for larger contractors does not exclude the disadvantaged. Reporting directly to an agency's leader rather than only to its contracting officers is considered essential to fair consideration of contract awards, and more than half the agencies GAO surveyed said their OSDBUs report only to the agency head.
On Sept. 9, Small Business Administrator Karen Mills sent a memo to all agency heads asking them to comply. "Open and direct communication between the OSDBU director and the secretary, deputy secretary or their equivalent is paramount to ensure that small businesses receive the maximum practicable opportunity to compete for and win federal contracts that allow them to grow their businesses and create jobs," she wrote.
GAO's June report said seven noncomplying agencies also were out of compliance in 2003. They include Agriculture, Commerce, Interior, Justice, State, Treasury and the Social Security Administration. In August, Mulvaney sent letters to the noncomplying agencies asking them to respond by Aug. 31 about how they "intend to rectify the reporting relationship."
William Shear, director of financial markets and community investments at GAO, explained at the hearing that Commerce and Justice disagreed that they're not in compliance, while State and Treasury made a legal argument that they are free to delegate the authority for how OSDBUs report. Shear told Government Executive that Agriculture didn't reply, Interior sent a letter saying it will comply, and SSA promised to comply but hasn't followed up with documentation.
Claims by Commerce and Justice that they are in compliance, Shear said at the hearing, "don't fit the fact pattern" obtained when auditors interviewed the OSDBUs about interaction with agency heads. He said GAO found evidence of tension and frustration at OSDBUs in agencies that were not complying because contracting offices are not always fulfilling their needs. "But some tension is healthy," Shear said. He noted that there are no sanctions for noncomplying agencies.
Ranking member Judy Chu, D-Calif., agreed with the call for compliance at the hearing, which also dealt with mentor-protégé programs and SBA's performance on data on its procurement center representatives. "Failure to comply with this requirement not only shows a callous disregard for the law, but also shortchanges small businesses that end up suffering the consequences of OSDBU's diminished agency standing," she said.
A spokesman for Commerce, Kevin Griffis, told Government Executive that "the department is in compliance with the law, and both its record and the progress being made to continue to improve its performance speak for themselves. In 2010, the Small Business Administration, in its Small Business procurement score card, awarded the department a grade of 'A' for its procurement practices -- up from the previous year's 'C.'
Justice spokeswoman Gina Talamona said in an email that the department "fully supports the mission of the Office of Small and Disadvantaged Business Utilization. Consistent with the Small Business Act, department regulations provide that the director report directly to the deputy attorney general. Although OSDBU is located within the department's Justice management division for administrative purposes, the director still reports to the deputy attorney general on substantive matters."
Mulvaney said he plans to hold another hearing on OSDBUs and invite agency heads or senior officials from noncomplying agencies, adding, "They won't enjoy it."
September 16, 2011