§ 632 — Definitions

(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. (A) In addition to the criteria specified in paragraph (1) and subject to the requirements specified under subparagraph (C), 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 (including the Administration when acting pursuant to subparagraph (A)) 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 24 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. (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. (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. (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. (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) 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. (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 the Fishery Resource Disasters Improvement Act), 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) 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) 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. (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 657f of this title. (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— (aa) in the case of a surviving spouse of a veteran with a service-connected disability rated as 100 percent disabling or who dies as a result of a service-connected disability, is 10 years after the date of the death of the veteran; or (bb) in the case of a surviving spouse of a veteran with a service-connected disability rated as less than 100 percent disabling who does not die as a result of a service-connected disability, is 3 years after the date of the death of the veteran. (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. (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. (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. (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. (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. (ff) In this chapter, the term “covered territory business” means a small business concern that has its principal office located in one of the following: (1) The United States Virgin Islands. (2) American Samoa. (3) Guam. (4) The Northern Mariana Islands.