B-204643 L/M, NOV 10, 1981

B-204643 L/M, NOV 10, 1981

DIGEST: 1. UNDER GENERAL PRINCIPLES OF STATUTORY CONSTRUCTION EARLIER STATUTE WOULD NOT BE SUPERSEDED OR REPEALED BY IMPLICATION UNLESS ITS PROVISIONS WERE PLAINLY AND IRRECONCILABLY REPUGNANT OR IN CONFLICT WITH SUBSEQUENTLY ENACTED STATUTE SINCE REPEAL BY IMPLICATION IS NOT FAVORED AND EVEN TWO SEEMINGLY IRRECONCILABLE STATUTES SHOULD BE HARMONIZED AND RECONCILED IF POSSIBLE. 2. SECTION 222 OF PUBLIC LAW 95-507, 41 U.S.C. SEC. 405A (SUPP. III 1979), WHICH REQUIRES THE OFFICE OF FEDERAL PROCUREMENT POLICY (OFPP) TO INCORPORATE SIMPLIFIED BIDDING, CONTRACT PERFORMANCE AND CONTRACT ADMINISTRATION PROCEDURES FOR SMALL BUSINESS CONCERNS INTO REVISED PROCUREMENT REGULATIONS CAN BE HARMONIZED WITH THE OFPP ACT AMENDMENTS, PUBLIC LAW 96-83, 41 U.S.C. SEC. 401-412 (SUPP. III 1979), SINCE REQUIREMENT FOR UNIFORM PROCUREMENT SYSTEMS MANDATED BY PUBLIC LAW 96-83 AND THE INTENT OF SECTION 222 CAN BE MET THROUGH INCLUSION IN UNIFORM PROCUREMENT SYSTEM OF APPROPRIATE PROVISIONS WHICH ADDRESS THE NEEDS AND CONCERNS OF SMALL BUSINESS. 3. NOTHING IN PUBLIC LAW 96-83 IS INCONSISTENT WITH THE REQUIREMENT OF SECTION 222 OF PUBLIC LAW 95-507 THAT OFPP ANALYZE THE IMPACT ON SMALL BUSINESS OF THE UNIFORM PROCUREMENT POLICIES, REGULATIONS, PROCEDURES, AND FORMS WHICH OFPP WILL PROPOSE UNDER PUBLIC LAW 96-83. 4. GAO IS NOT IN A POSITION TO JUDGE WHETHER OFPP, IN DEVELOPING THE UNIFORM PROCUREMENT SYSTEM, IS SUFFICIENTLY ANALYZING THE IMPACT ON SMALL BUSINESS CONCERNS OR CONSULTING ENOUGH WITH SBA. WHETHER OFPP HAS COMPLIED WITH SECTION 222, AS WELL AS THE EFFECTS OF NONCOMPLIANCE, IS A JUDGMENTAL AND POLICY QUESTION THAT CONGRESS CAN RESOLVE WHEN IT CONSIDERS WHETHER TO INDORSE THE PROCUREMENT SYSTEM PROPOSED BY OFPP.

JOSEPH P. ADDABBO, HOUSE OF REPRESENTATIVES:

YOU RECENTLY REQUESTED A LEGAL OPINION CONCERNING SECTION 222 OF THE ACT TO AMEND THE SMALL BUSINESS ACT AND THE SMALL BUSINESS INVESTMENT ACT OF 1958, PUBLIC LAW 95-507, 41 U.S.C. SEC. 405A (SUPP. III 1979).

THIS SECTION, ENACTED OCTOBER 24, 1978, DIRECTS THE ADMINISTRATOR FOR FEDERAL PROCUREMENT POLICY "TO PROMULGATE A SINGLE, SIMPLIFIED, UNIFORM FEDERAL PROCUREMENT REGULATION AND TO ESTABLISH PROCEDURES FOR INSURING COMPLIANCE" WITH IT. IN DOING SO, THE ADMINISTRATOR, IN CONSULTATION WITH THE SMALL BUSINESS ADMINISTRATION (SBA), IS REQUIRED TO:

"*** CONDUCT ANALYSES OF THE IMPACT ON SMALL BUSINESS CONCERNS RESULTING FROM REVISED PROCUREMENT REGULATIONS, AND INCORPORATE INTO REVISED PROCUREMENT REGULATIONS SIMPLIFIED BIDDING, CONTRACT PERFORMANCE, AND CONTRACT ADMINISTRATION PROCEDURES FOR SMALL BUSINESS CONCERNS."

THE SECTION STATES THAT THE REGULATIONS ARE TO BE ISSUED UNDER AUTHORITY OF AND SUBJECT TO THE PROCEDURES OF THE OFFICE OF FEDERAL PROCUREMENT POLICY (OFPP) ACT, PUBLIC LAW 93 400. THAT ACT, ENACTED AUGUST 30, 1979, ESTABLISHED OFPP AND ASSIGNED TO IT, AMONG OTHER THINGS, THE TASK OF ESTABLISHING "A SYSTEM OF COORDINATED, AND TO THE EXTENT FEASIBLE, UNIFORM PROCUREMENT REGULATIONS FOR THE EXECUTIVE AGENCIES." THE ADMINISTRATOR WAS DIRECTED TO COORDINATE WITH THE EXECUTIVE AGENCIES AFFECTED, INCLUDING THE SBA, IN THE DEVELOPMENT OF POLICIES, REGULATIONS, PROCEDURES, OR FORMS AFFECTING PROCUREMENT.

SECTION 222 MAKES OFPP'S RESPONSIBILITIES IN THIS AREA MORE SPECIFIC. MAKES CLEAR THAT A SINGLE REGULATION IS DESIRED BY THE CONGRESS, RATHER THAN THE SEPARATE BUT IDENTICAL REGULATIONS FOR MILITARY AND CIVILIAN AGENCIES WHICH THE LEGISLATIVE HISTORY OF PUBLIC LAW 93-400 INDICATES WERE ORIGINALLY CONSIDERED AN ALTERNATIVE. SEE S.REP. NO. 93-692, 93D CONG., 2D SESS., REPRINTED IN 1974 U.S.C. CONG. AND AD. NEWS 4601.

IN ADDITION, SECTION 222 GOES BEYOND MERELY REQUIRING THE ADMINISTRATOR TO CONSULT WITH SBA AND DIRECTS THAT THE IMPACT OF THE REVISED REGULATIONS ON SMALL BUSINESSES BE ANALYZED AND THAT SIMPLIFIED PROCEDURES FOR SMALL BUSINESS CONTRACTING BE INCORPORATED IN THE UNIFORM REGULATION.

YOU ASK WHETHER SECTION 222 CURRENTLY IS APPLICABLE IN VIEW OF THE SUBSEQUENT PASSAGE OF THE OFPP ACT AMENDMENTS, PUBLIC LAW 96-83, 41 U.S.C. SECS. 401-412 (SUPP. III 1979). THESE AMENDMENTS, EFFECTIVE OCTOBER 1, 1979, STATE IN SECTION 11 THAT THE PROVISIONS OF THE OFPP ACT SHALL SUPERSEDE THE PROVISIONS OF SECTION 222 "TO THE EXTENT THEY ARE INCONSISTENT THEREWITH."

THE OVERALL PURPOSE OF PUBLIC LAW 96-83 IS VERY CLEAR FROM ITS LEGISLATIVE HISTORY: THE CONGRESS INTENDED TO MAKE OFPP'S PRINCIPAL RESPONSIBILITY THE DEVELOPMENT OF A COMPREHENSIVE, GOVERNMENT-WIDE, UNIFORM PROCUREMENT SYSTEM AND TO GIVE PRIORITY TO THIS TASK ABOVE ALL OTHERS IN WHICH OFPP HAD BEEN ENGAGED. SEE H.R.REP. NO. 96-178, 96TH CONG., 1ST SESS. 8, REPRINTED IN 1979 U.S.C. CONG. & AD. NEWS 1499. THE AMENDMENTS, OFPP ALSO WAS DIRECTED TO EXAMINE THE NEED FOR CHANGES IN FEDERAL PROCUREMENT STATUTES AND TO DESIGN A CENTRAL MANAGEMENT SYSTEM TO ENFORCE AND IMPLEMENT THE UNIFORM PROCUREMENT SYSTEM.

THE LEGISLATIVE HISTORY OF PUBLIC LAW 96-83, HOWEVER, DOES NOT DEAL SPECIFICALLY WITH SECTION 11 OR GIVE ANY INDICATION AS TO WHAT PROVISIONS OF SECTION 222 THE CONGRESS BELIEVED MIGHT BE INCONSISTENT WITH THE OFPP ACT AMENDMENTS. UNDER GENERAL PRINCIPLES OF STATUTORY CONSTRUCTION, SECTION 222 WOULD NOT BE SUPERSEDED OR REPEALED BY IMPLICATION UNLESS ITS PROVISIONS WERE PLAINLY OR IRRECONCILABLY REPUGNANT TO OR IN CONFLICT WITH THOSE OF PUBLIC LAW 96-83, SINCE REPEAL BY IMPLICATION IS NOT FAVORED AND EVEN TWO SEEMINGLY IRRECONCILABLE STATUTES SHOULD BE HARMONIZED OR RECONCILED IF POSSIBLE. SEE C.J.S. STATUTES SECS. 286-292 (1953, 1981 SUPP.).

IN OUR OPINION, THE GOALS AND DIRECTIVES OF SECTION 222 AND PUBLIC LAW 96-83 ARE CONSISTENT. UNDER SECTION 2(7) OF PUBLIC LAW 96-83, IT IS DECLARED TO BE THE POLICY OF CONGRESS TO PROMOTE ECONOMY, EFFICIENCY, AND EFFECTIVENESS IN FEDERAL PROCUREMENT BY "ACHIEVING GREATER UNIFORMITY AND SIMPLICITY, WHENEVER APPROPRIATE, IN PROCUREMENT PROCEDURES." WHILE THE GOVERNMENT THUS IS INTENDED TO BE THE CHIEF BENEFICIARY OF THE UNIFORM PROCUREMENT SYSTEM UNDER PUBLIC LAW 96-83, THE SYSTEM SHOULD AT THE SAME TIME MAKE IT LESS DIFFICULT FOR SMALL BUSINESS CONCERNS TO DO BUSINESS WITH THE GOVERNMENT AND FACILITATE THEIR ENTRY INTO AND PARTICIPATION IN THE FEDERAL CONTRACTING SYSTEM, THE EXPRESSED GOAL OF SECTION 222. SEE S.REP. 95-1140, 95TH CONG., 2D SESS. 11, REPRINTED IN 1978 U.S.C. CONG. AND AD. NEWS 3873.

WE BELIEVE THE CONGRESSIONAL INTENT OF BOTH PUBLIC LAW 96-83 AND SECTION 222 CAN BE MET THROUGH INCLUSION IN THE UNIFORM PROCUREMENT SYSTEM OF APPROPRIATE PROVISIONS WHICH ADDRESS THE NEEDS AND CONCERNS OF SMALL BUSINESSES. SMALL BUSINESS SET-ASIDES AND RESTRICTIONS ON THE IMPOSITION OF BONDING REQUIREMENTS ARE EXAMPLES OF THE TYPE OF PROVISIONS WHICH WOULD REFLECT THE NEEDS OF SMALL BUSINESSES.

WE SEE NOTHING IN PUBLIC LAW 96-83 WHICH IS INCONSISTENT WITH THE SECTION 222 REQUIREMENT THAT OFPP ANALYZE THE IMPACT ON SMALL BUSINESSES OF THE UNIFORM PROCUREMENT POLICIES, REGULATIONS, PROCEDURES, AND FORMS WHICH IT WILL PROPOSE UNDER PUBLIC LAW 96-83. FURTHER, UNDER SECTION 7(E) OF PUBLIC LAW 96-83, OFPP MUST CONSULT WITH SBA IN THE DEVELOPMENT AND IMPLEMENTATION OF THE UNIFORM PROCUREMENT SYSTEM.

YOU ASK WHETHER OFPP HAS COMPLIED WITH SECTION 222, AND WHAT IMPLICATIONS WOULD FOLLOW IF NONCOMPLIANCE WERE ESTABLISHED. WE ARE NOT IN A POSITION TO JUDGE WHETHER OFPP, IN DEVELOPING ITS UNIFORM PROCUREMENT SYSTEM, IS SUFFICIENTLY ANALYZING THE IMPACT ON SMALL BUSINESS CONCERNS OR CONSULTING ENOUGH WITH SBA. WE THINK THE QUESTION OF WHETHER OFPP HAS COMPLIED WITH SECTION 222, AS WELL AS THE EFFECTS OF ANY NONCOMPLIANCE, IS A JUDGMENTAL AND POLICY ONE FOR THE CONGRESS TO RESOLVE WHEN IT CONSIDERS WHETHER TO INDORSE THE PROCUREMENT SYSTEM PROPOSED BY OFPP. IN THIS CONNECTION, OFPP HAS ALREADY SUBMITTED TO CONGRESS ITS PROPOSAL FOR A UNIFORM PROCUREMENT SYSTEM AND HAS RECENTLY PUBLISHED A NEW DRAFT PROPOSAL FOR A UNIFORM SYSTEM, ON WHICH IT SEEKS COMMENTS AND PLANS TO HOLD HEARINGS. THE SMALL BUSINESS COMMUNITY, AS WELL AS OTHERS, WILL HAVE AN OPPORTUNITY TO PRESENT VIEWS ON THE SUBJECT DURING THIS COMMENT PERIOD.

IN OFPP'S VIEW, IT HAS CONSIDERED THE IMPACT ON SMALL BUSINESS CONCERNS THROUGHOUT THE PROCESS OF DEVELOPMENT OF THE UNIFORM PROCUREMENT SYSTEM. THERE HAS BEEN CONTINUING LIAISON BETWEEN THE SBA AND THE FEDERAL ACQUISITION REGULATION (FAR) STAFF, WITH THE SBA REPRESENTATIVE REVIEWING ALL REGULATIONS AND PROCEDURES PROPOSED DURING THE PAST TWO AND A HALF YEARS. IN ADDITION, THERE WILL BE AN SBA REPRESENTATIVE ON THE FAR EXECUTIVE STAFF AS IT MOVES INTO THE TASK OF MAINTENANCE, RATHER THAN DEVELOPMENT, OF THE NEW REGULATION. OFPP BELIEVES THAT SMALL BUSINESSES PARTICULARLY WILL BENEFIT FROM THE SIMPLIFIED, STANDARDIZED FORMS WHICH IT HAS DEVELOPED TO REPLACE INDIVIDUAL AGENCY FORMS. IN ADDITION, OFPP POINTS TO CHAPTER 2, SECTION 3 OF ITS DRAFT PROPOSAL FOR A UNIFORM PROCUREMENT SYSTEM, IN WHICH IT RECOMMENDS RAISING THE CEILING ON SMALL PURCHASES, SET ASIDE FOR SMALL BUSINESS CONCERNS UNDER PUBLIC LAW 95-507, FROM $10,000 TO $25,000, AND ELIMINATING ALL CURRENT SOCIO-ECONOMIC REQUIREMENTS FOR SUCH PURCHASES, AS A STEP TAKEN IN COMPLIANCE WITH SECTION 222.

WE HOPE THIS HAS BEEN HELPFUL.