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Public Contract Law Journal

Public Contract Law Journal Vol. 50, No. 1

Size Matters: Implementing Post-Agreement Tracking in The All Small Mentor-Protégé Program

Morgan Huston


  • Discusses background of the Small Business Administration's All-Small Mentor-Protégé Program.
  • Argues that SBA's system of post-completion reporting does not ensure small business proteges are benefitting under the program
  • Proposes amendments to the Small Business Act to (i) require SBA to conduct post-completion tracking of protégés to assess program benefits and (ii) improve other agencies' post-completion tracking procedures
Size Matters: Implementing Post-Agreement Tracking in The All Small Mentor-Protégé Program
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Mentor-protégé programs (MPPs) are meant to increase the participation of small businesses in government contracts by pairing small businesses with more experienced government contractors. The Small Business Administration (SBA), which already acts as the largest administrator of such agreements in the federal government, is becoming increasingly dominant in that sphere with the creation of its All Small Mentor-Protégé Program (ASMPP). Studies and audits of the SBA’s MPPs have found various problems with oversight and measuring protégé benefit. In comparison to other federal agencies, the SBA provides a uniquely risky benefit to incentivize businesses to participate as mentors. Large mentors are able to form joint ventures with their small protégés to bid on contracts that are set-aside for small businesses. Additionally, while other agencies measure benefits to protégés for years after program completion (post-agreement tracking), the SBA only measures benefits to protégés during participation and immediately upon program completion (postcompletion reporting). This Note argues that postcompletion reporting does not ensure conformity with program goals, since a protégé’s ability to compete for future contracts on their own without the assistance of the mentor is not known immediately upon program completion. Therefore, Congress should amend the Small Business Act both to make the SBA subject to post-agreement tracking requirements and to enhance the clarity and specificity of the post-agreement tracking requirement currently in place for other agencies administering MPPs. Doing so would implement a measurement of whether protégés are benefitting under the ASMPP as intended and increase uniformity across federal MPPs.

I. Introduction

In October 2010, the U.S. Small Business Administration (SBA) suspended GTSI Corporation, a large contractor, from all federal contracting based on evidence that it had illegally obtained work set aside for small businesses under a $3 billion contracting program. GTSI allegedly used two small businesses to secure the set-aside contracts as prime contractors, and then proceeded to front as the small businesses themselves via email to improperly engage in subcontracting work on the contracts. Despite this alleged behavior, the suspension was lifted a mere eighteen days later. The suspension lift came at a (relatively small) price to GTSI: GTSI had to agree to restrict its activities with small businesses. These restrictions included, but were not limited to, discontinuing its participation in the SBA’s mentor-protégé program (MPP) and refraining from the formation of joint ventures with small businesses.

Professor Steven Schooner of The George Washington University Law School said that GTSI’s initial suspension was “the first time in decades that the government has completely suspended a significant player, a legitimate top-tier contractor. . . . It puts everybody on notice.” Although it was ultimately lifted, GTSI’s suspension sparked congressional investigation into potential fraud in federal MPPs. MPPs, which pair small businesses with more experienced government contractors, are meant to facilitate small business development. However, there is concern that such programs have been used by large businesses to gain access to set-aside contracts rather than to benefit small businesses.

Currently, it is incumbent on federal agencies that administer MPPs to ensure larger businesses do not gain access to set-asides; the SBA is the largest administrator. The recent implementation of their All Small Mentor-Protégé Program (ASMPP) shows the SBA’s increasing dominance in MPPs. Compared to other agencies, the SBA offers a unique benefit to incentivize large businesses to participate as mentors. A joint venture made up of a large and small business would typically be ineligible to compete for a contract set-aside for small businesses, because they would be considered “affiliated” in making their size determination. The SBA provides an exception from affiliation on the basis of the mentor-protégé agreement, which essentially allows a large business to bid on contracts that are set aside for small businesses when joint venturing with a small protégé. However, if small businesses are not also benefitting from such arrangements, large businesses would be improperly benefitting under a program that is intended to facilitate small business participation. Such an improper benefit would go against the SBA’s statutory mandate to assist small businesses.

To combat this, the SBA uses program-reporting to help protect against fraud, waste, and abuse. Yet the SBA currently only requires reporting during program participation and immediately upon program completion (postcompletion reporting), while other agencies require additional reporting for years after program completion/termination (post-agreement tracking). Measuring whether the protégé obtained capabilities from the mentor-protégé agreement that allow them to successfully compete for future contracts on their own is integral to assessing the program’s efficacy; indeed, it is an express goal of the program. The Government Accountability Office (GAO) and the SBA’s Office of Inspector General (OIG) have conducted multiple studies and audits of the SBA’s MPPs, finding that the SBA did not adequately measure protégé benefit in the programs.

This Note argues that postcompletion reporting does not ensure that small businesses are benefitting as intended under the goals of the program. Post-agreement tracking, which has already been implemented by other agencies, would fill this assessment gap by measuring the benefits to protégés for a period of time after the mentor-protégé agreement is over. It would also further the congressionally articulated goal of increasing uniformity among federal MPP requirements. Congress should therefore amend the Small Business Act to make the SBA subject to such requirements, and to make the requirement currently in place (for other agencies) more specific in terms of: the language used to trigger the requirement, the information protégés must report (such as contract, employee, and revenue data), and the length of time protégés must report such data.

Part II of this Note presents an overview of the development of the ASMPP within the larger context of federal MPPs, the ability to joint venture for set-aside contracts within the ASMPP, and the disparate reporting requirements in place for the SBA and other agencies. Part III argues that Congress should amend the Small Business Act to implement post-agreement tracking requirements for the SBA to ensure the ASMPP is meeting articulated goals.

II. Background: The All-Small Mentor-Protégé Program, Unique Mentor Benefits, and Disparate Reporting Requirements

To understand why post-agreement tracking should be implemented in the SBA’s ASMPP, a brief history of the ASMPP and how it fits into the larger system of federal MPPs is needed. This Part begins with an overview of the ASMPP, including its origination from the 8(a) MPP and inheritance of that program’s problems, as well as its absorption of other federal MPPs. It then describes a benefit specific to mentors participating in SBA’s MPPs, nonaffiliation for joint venture agreements formed between mentors and protégés, and the unique fraud risk it poses. Finally, this Part explains that the SBA’s MPPs are not subject to the same post-agreement tracking requirements mandated by the Small Business Act for other federal agency MPPs.

A. Federal MPP Coalescence: Overview of the Rise of the ASMPP

MPPs are meant to increase small business participation in government contracts. Generally, MPPs pair small businesses with more experienced government contractors. There are currently seven federal agencies that administer a total of nine active federal MPPs. The SBA is the largest administrator of mentor-protégé agreements in the federal government, managing approximately eighty-eight percent of all such agreements reported to Congress as of Fiscal Year 2018. MPPs established by agencies other than the SBA are generally referred to as agency-specific MPPs. Several agency-specific MPPs were discontinued upon the SBA’s implementation of their ASMPP, as it was generally believed other federal MPPs would be unnecessarily duplicative. Others have not been formally phased out, but are considered presently inactive. The SBA currently administers three separate MPPs, two of which are further detailed in this Note: the 8(a) MPP and the ASMPP. The 8(a) MPP, which preceded the ASMPP, still exists independently today. However, the ASMPP is statutorily required to be nearly identical to the 8(a) MPP, and the two may be combined in the near future.

Given the connection between the ASMPP and the 8(a) MPP, the following is a brief summary of the 8(a) MPP. The SBA originally created the 8(a) MPP in 1998 pursuant to amendments made to the Small Business Act in 1978. Protégés in the program are limited to 8(a) small businesses: those “owned and controlled by socially and economically disadvantaged individuals that are in good standing in the 8(a) Program.” As for mentors, any business that “demonstrates a commitment and the ability to assist developing 8(a) Participants” can qualify. This includes both large businesses and small businesses, businesses that have graduated from the 8(a) program, and firms that are in the program’s transitional stage.

The mentorship requirements are meant to implement the stated purpose of the 8(a) MPP, which is to “enhance the capabilities of the protégé” and “improve its ability to successfully compete for contracts.” Mentors provide various forms of assistance to protégés under the program to effectuate this purpose, such as: technical/management assistance, financial assistance in the form of equity investments/loans, subcontracts, trade education, and assistance in performing prime contracts with the government through joint venture agreements. Although the program is ultimately intended to promote small business concerns, both the mentor and the protégé benefit. In terms of potential mentor benefit, the mentor-protégé relationship allows for the formation of joint ventures. These joint ventures may compete for set-aside contracts typically reserved for small businesses, as long as the protégé qualifies for the contract. This allows the mentor—usually a large business, but not necessarily so—to compete for a set-aside contract in the context of the mentor-protégé relationship that it would otherwise be ineligible for.

The 8(a) MPP can be seen as a precursor to the SBA’s general small business MPP. On January 2, 2013, the National Defense Authorization Act for Fiscal Year 2013 authorized the SBA to establish an MPP for all small business concerns. In July 2016, the SBA issued a final rule providing for a new MPP for all small businesses, which became effective in August 2016. Dubbed the All Small Mentor-Protégé Program, the program largely tracks its predecessor, the 8(a) MPP. In fact, the SBA’s ASMPP is required to be “identical” to the SBA’s 8(a) MPP. ASMPP protégés can be any type of small business, as opposed to 8(a) MPP protégés, which are limited to 8(a) participants. However, the purposes and the benefits of the programs are the same. For this reason, the SBA proposed a new rule that would consolidate the 8(a) MPP and ASMPP.

Like the 8(a) MPP, the ASMPP allows for the creation of joint ventures, which enables mentors and protégés to compete together for set-aside contracts that mentors would ordinarily be ineligible to compete for, as long as the protégé qualifies for the contract. This may include contracts set aside for service-disabled veteran-owned small businesses (SDVOSB), women-owned small businesses (WOSB), and historically underutilized business zone (HUBZone) small businesses, depending on the protégé’s classification.

B. Risky Business: The Unique Mentor Benefit of Affiliation Exception for Joint Ventures

Typically, government procurements that have an anticipated value of between $3,500 and $150,000 (i.e. exceeding the micro-purchase threshold but not exceeding the simplified acquisition threshold) are automatically reserved for small business concerns, unless the Contracting Officer determines that there is not a reasonable expectation of obtaining offers from two or more responsible small business concerns that are competitive. These contracts are deemed “set-aside” for small business concerns, and only small businesses are eligible to compete.

When it comes to qualifying for set-aside contracts, size matters a great deal. To be eligible for these set-aside contracts, a business must be classified as small. To be classified as small, a business must meet certain size requirements. Affiliates of a small business are counted in making the size determination. Under SBA regulations, businesses are affiliates “when one controls or has the power to control the other, or a third party controls or has the power to control both.” Normally, businesses bidding on a contract together as a joint venture are considered affiliated for that contract. Therefore, unless both entities in the joint venture independently qualify for the contract (i.e. they are both small businesses), they would generally be rendered ineligible for the contract because their affiliation would lead to an adverse size determination.

SBA MPP participants, however, can take advantage of an explicit exception to the joint affiliation rules. The SBA is the agency that makes size determinations. As such, the SBA is in a unique position in terms of the benefits it can offer potential mentors. SBA regulations provide that “[n]o determination of affiliation or control may be found between a protégé firm and its mentor based solely on the mentor-protégé agreement or any assistance provided pursuant to the agreement.” This allows a large business to bid on small business set-aside contracts by setting up a mentor-protégé relationship with a small business and then forming a joint venture, subject to certain SBA requirements. Additionally, the joint venture is not limited to bidding on small business set-asides exclusively; they are eligible to bid on whatever contracts the protégé would qualify for on their own. This may include HUBZone, SDVOSB, WOSB, or 8(a) set-asides.

While there are other possible benefits that a mentor can obtain by participating in the ASMPP, it is widely understood that the main benefit of the ASMPP for mentors is the exception from affiliation for joint ventures. This benefit is unique to SBA MPPs—agency-specific MPPs offer different benefits to mentors to incentivize program participation. The GAO analyzed Federal Procurement Data System-Next Generation (FPDS-NG) and SBA data and determined that the ASMPP had 549 agreements in July 2018 and 106 joint ventures in September 2018. They also determined that twenty-nine joint ventures were awarded set-aside contracts, highlighting the breadth of joint ventures and the prevalence of set-aside contracts for them.

The SBA’s OIG conducted an investigation specifically of joint ventures in the 8(a) MPP to determine protégé benefit and SBA oversight. The OIG conducted the audit “because of the high risk for potential program abuse” by non–8(a) participants. According to the 2012 OIG report:

[t]he joint venture arrangement, established as an incentive, has inherent risks for the government. The risk occurs after the joint venture agreement is approved and a contract is awarded by the procuring agency. The risks are twofold. One is that non-8(a) firms perform a majority of the work on these contracts making it in effect, a non-8(a) contract that is reported as a small business set aside. The other risk is that the 8(a) firm receives little or no developmental benefit from the arrangement, a goal of the joint venture arrangement.

In an attempt to safeguard against the risk of mentors taking advantage of protégés in the joint venture context, the SBA changed the regulations governing joint ventures under the 8(a) MPP in 2011. Despite these changes, the OIG reported in 2012 that protégé benefit from joint venture agreements was not measured and that the SBA conducted ineffective oversight of joint ventures.

This finding was also made despite the fact that the SBA reviews and approves joint venture agreements prior to contract bidding in the 8(a) MPP; the same is not done in the ASMPP. After the SBA has approved the mentor-protégé agreement, joint ventures formed by ASMPP participants qualify for exclusion from affiliation as long as they meet certain requirements. Rather than actually ensuring that they meet those requirements, the SBA allows the mentor-protégé team to submit a certification of compliance stating that they meet these requirements prior to performance of a set-aside contract. It is possible that the OIG would have considered the inherent program risks to be even higher if prior approval had not been required at the time of their audit in 2012. Similarly, it is unclear whether the OIG would have considered their recommendations implemented without a prior approval requirement in place in 2018.

Exacerbating the oversight issue is a workload issue; the report partially attributed the lack of effective oversight in the 8(a) MPP to work overload of those responsible for approving and monitoring 8(a) MPP participants. Part of their work overload resulted from an increase in the number of program participants. In that same vein, the OIG cited a concern regarding workload for the upcoming ASMPP. Because the program had only existed since October 2016, reporting began in fiscal year 2017. The 2017 report numbered ASMPP agreements at 315, while the 2018 report showed over 100% growth in agreements, to 678. As of July 1, 2020, there were 1126 ASMPP agreements. Decreasing the oversight required upfront for joint venture agreements while simultaneously increasing the workload of those responsible for overall program oversight in other respects could lead to an increased risk of SBA’s MPPs unduly benefitting large businesses rather than their intended beneficiaries: small protégés. In its most recent budget submission to Congress, the OIG “anticipate[d] that these expanded programs will create opportunities for additional fraud by large, nondisadvantaged contractors.”

C. Unmeasured Goals: Postcompletion Reporting as Inadequate and Disparate Measurements

On top of these additional fraud risks, the SBA does not adequately measure whether program goals are met. The SBA’s OIG conducted an audit of the SBA in 2019 to determine whether its controls ensured it (1) conducted both initial application reviews and annual evaluations in accordance with ASMPP regulations and (2) measured program success. The report contained three main findings: (1) key controls were missing to prevent unqualified mentors from receiving program benefits; (2) program controls were not effective to ensure small businesses developed as intended; and (3) the SBA did not adequately measure benefits of the ASMPP. While these problems arguably exacerbate one another, the focus in this section will be on the third finding.

The OIG determined that the SBA had not collected sufficient data to understand whether the ASMPP had the intended effect. The inadequacy was in the data collection and analysis rather than the annual evaluation process itself. To remedy these issues, the OIG recommended that the SBA “align its application and annual evaluation processes with program regulations and take steps to adequately measure program success,” as well as “prioritize staff and information technology resources to improve the implementation of its program processes.” While the SBA agreed with the OIG’s recommendations concerning the program’s processes, it did not concur with the latter recommendation, claiming that it “reserve[s] the right to allocate resources as it deems appropriate to meet the regulatory and program requirements of the organization.”

The OIG did not specify how it believes the long-term ASMPP objectives identified by the SBA (such as whether the protégé increased their capacity to qualify for more contracts) could be measured, since the annual evaluation reports are not continued after the mentor-protégé relationship has ended. The simple answer is that the long-term objectives cannot be measured if there are no evaluation reports after the mentor-protégé relationship has ended. An earlier GAO report on various federal MPPs which the OIG cited at the beginning of their own report highlights a more in-depth answer.

Pursuant to the Small Business Jobs Act of 2010, the GAO conducted a study of thirteen federal MPPs in 2011 to determine whether they actually facilitated small business contract participation. The GAO separated reporting into four possible categories: (1) intermediate reviews and reports; (2) intermediate participant briefing; (3) reports/presentation at conclusion; and (4) post-agreement review. Despite distinguishing between the terms “postcompletion” and “postagreement,” the GAO seemed to conflate the two terms throughout their report and in their recommendations. Postcompletion reporting is not enough to determine that protégés are developing as intended under MPPs, and this is borne out by comparison to every other remaining program that the GAO evaluated in their report.

As of the date of this writing, the GAO has considered every evaluated agency that still administers its own MPP to have implemented their recommendations. All of the agencies—other than the SBA—require at least a year, with most requiring two years, of post-agreement tracking information from protégés in order to ensure that the protégés are benefitting from the program as intended. The SBA is the only agency that requires nothing more than a report immediately upon completion. While all other agencies with an MPP require post-agreement tracking, the SBA does not. The SBA does collect postcompletion information, but there is a difference between collecting information from protégés immediately upon program completion and tracking their progress afterwards.

Postcompletion reporting is an insufficient mechanism for ensuring conformity with the overall goals of the program. Under the Small Business Jobs Act of 2010, an assessment of the protégé’s ability to compete for contracts without the assistance of the mentor is vital. Under the program, protégés are meant to increase their capabilities in order to successfully compete for future contracts on their own. Benefits reporting during the course of an active agreement between the mentor and the protégé, as the SBA does,—or immediately thereafter in the form of a “close out” report—is a poor metric for determining the protégé’s ability to compete for contracts on their own.

According to current SBA regulations for the ASMPP, “the protégé must report to SBA whether it believed the mentor-protégé relationship was beneficial and describe any lasting benefits to the protégé.” Although it is desirable for protégés to believe they have benefitted from their participation in the program immediately upon completion, this does not constitute a measurement of whether the program has lived up to its stated purpose.

Later, this regulatory difference between programs became a part of federal law. Congress’ 2013 amendment to the Small Business Act, which authorized the ASMPP’s creation, also mandated that the SBA approve agency-specific MPPs to promote uniformity between programs. As amended, the law tasked the SBA with issuing regulations for individual agencies that have their own MPPs, to ensure that those programs “improve the ability of proteges to compete for [f]ederal . . . contracts.” The Small Business Act further details minimum requirements that the regulations must contain, including “[p]ostparticipation reporting requirements.” This provision, which does not apply to the SBA’s own MPPs, implemented reporting after participation in the program to track protégé performance outcomes.

Post-agreement tracking is therefore considered a statutory baseline requirement for other federal MPPs to ensure protégés are benefitting as intended. This essentially means that all federal MPPs—other than those administered by the SBA—are supposed to be subject to post-agreement tracking requirements. Thus, as the law stands, the SBA is meant to issue regulations ensuring that other agencies meet minimum requirements that they themselves are not even required to meet. This is counterintuitive, given that the very reason those requirements were put in place was to ensure uniformity in measuring program success. In the Small Business Act, Congress mandated that the SBA include postparticipation reporting requirements in their regulations for other agencies administering MPPs. The regulations the SBA actually issued did not include that requirement, and instead required that agency plans would be evaluated based on their compliance with the SBA’s ASMPP or 8(a) MPP regulations.

III. Measuring Benefit: Congress Should Amend the Small Business Act to Implement Post-agreement Tracking for SBA MPPs

Given the increasing dominance of the ASMPP over other federal MPPs, the uniquely risky benefit offered to ASMPP mentors, and the discrepancy between the ASMPP’s reporting requirements and those of agency specific MPPs, this Note argues that implementing post-agreement tracking for the SBA is necessary. Congress should amend the Small Business Act to mandate post-agreement tracking for the SBA because post-agreement tracking measures program goals that other forms of reporting cannot. Implementing post-agreement tracking is feasible by comparing the post-agreement reporting requirements of other federal MPPs to the reporting requirement already in place during the course of ASMPP participation. This Part describes the changes Congress should make to the requirement to ensure consistent measurement of protégé benefit across federal MPPs, including the adoption of post-agreement tracking language as well as minimums for the duration and content of reports.

A. Post-Agreement Tracking Ensures Measurement of Program Goals and Uniformity

For the reasons outlined above, postcompletion reporting is an insufficient mechanism to ensure program goals are met. While all forms of reporting MPPs engage in are useful in different ways, post-agreement review is absolutely essential to ensure conformity with program goals.

Congress intended for MPPs to increase the participation of small businesses in government contracting. It emphasized postparticipation reporting as a minimum requirement for ensuring protégé benefits in its amendment to the Small Business Act. Following the 2011 GAO report, the Committee on Small Business highlighted that MPPs are meant to assist protégés over the long term The Committee also expressed concern that protégés’ ability to successfully compete for contracts without the mentor was not being measured. The Committee likewise lamented the lack of data, because it led to an inability to determine if the program’s goals were being achieved.

The SBA has also articulated this goal of future, independent contracting success for protégés. Even the current ASMPP regulations requiring postcompletion reporting seem to hint at this goal. But it takes time to know what the lasting benefits of the program really are for protégés—if any—and post-agreement tracking is therefore the only way to truly measure the program’s effectiveness.

Congress has also made it clear that it desires uniformity across MPP requirements. There is currently a discrepancy in the Small Business Act between what is required of the SBA and what is required of other agencies administering MPPs. Implementing post-agreement tracking measures for all federal agencies—including the SBA—will resolve this discrepancy. The SBA has not implemented post-agreement tracking of its own volition via regulation thus far and has shown a willingness to change regulatory oversight of program requirements in the past. Implementing post-agreement tracking by statutory amendment rather than by regulation will ensure that post-agreement tracking is mandatory across every agency, including the SBA.

B. Post-Agreement Tracking Is a Feasible Measurement Mechanism

Post-agreement tracking is more than a theoretical possibility: several agencies have implemented post-agreement tracking measures for their MPPs. Those agencies’ reporting requirements serve as examples of successful implementation of post-agreement tracking measures. Similarly, post-agreement tracking implementation would not be overly burdensome for either the SBA or the protégé based on those programs, as well as on the relatively low administrative cost of the ASMPP in comparison to those programs.

Two agencies with MPPs serve as examples of feasibility: the Department of Defense (DoD) and the National Aeronautics and Space Administration (NASA). Post-agreement tracking is statutorily required for the DoD’s MPP. Protégés are required to report for two years after the mentor-protégé agreement ends. Reports must include successes that can be attributed to the program, such as in employment, annual revenue, and annual participation in DoD contracts; the DoD is also required to “conduct annual performance reviews of the postcompletion information reported by protégés.” NASA similarly requires that protégés submit data on employment and revenue for two years after the agreement ends. Likewise, both agencies require that:

[R]eports include information on all within-agency and other prime contract and subcontract awards to protégés, and subcontract awards from protégés, such as [the] [n]umber/dollar of prime contract awards to protégé; [n]umber/dollar of subcontract awards to protégé from mentor; [n]umber/dollar of subcontract awards to protégé from other sources (other than mentor); [n]umber/dollar of subcontract awards from protégé to mentor; and [n]umber/dollar of subcontract awards from protégé to other sources (other than mentor).

The SBA already collects similar information from protégés during program participation and upon program completion. The SBA estimated that reporting constitutes a time burden of approximately two hours annually for protégés. Given that the SBA already collects similar information from protégés during the course of their participation in the program, it would be feasible for them to continue collecting such information after a protégé completes the program.

The cost associated with post-agreement tracking is also not likely to be overly burdensome on the SBA. The DoD’s MPP, which is authorized under separate statutory authority from the ASMPP, receives appropriated funds. The DoD has estimated its total annual cost related to post-agreement tracking to be $51,000. This is relatively low compared to the total annual cost of administering the program, which the DoD recently estimated to be over $31 million. Like the ASMPP, NASA’s MPP does not receive its own federal funding. While there may be some administrative costs associated with post-agreement tracking, other agencies have managed to bear the burden with either a low proportion of their allocated budget (DoD) or with no allocated budget at all (NASA). In their response to the GAO report post-agreement tracking recommendation, some agency officials specifically cited potential costs as a concern, while others merely saw it as an extension of the reporting requirements already in place. Congress and the SBA have focused on maintaining low program costs. The ASMPP currently costs approximately $2,231,000 to administer. If SBA’s post-agreement tracking costs take up a similarly low proportion of its already-low current budget, the costs should not be overly burdensome.

C. What to Include in the Amendment Based on Other Programs

Congress should amend the Small Business Act to ensure SBA complies and conforms with federal MPP reporting requirements. Congress should make SBA MPPs subject to the same post-agreement reporting requirements as agency-specific MPPs under the Small Business Act, while adding language to enhance and clarify the requirements that are already in place.

The language of the Act currently only subjects other agencies to the requirements outlined in section 657r(b)(3). Congress should make the SBA subject to these same requirements. Congress should either move the existing provision to apply it to all programs, or add identical language elsewhere in the Act.

Congress should also amend the current post-agreement reporting requirements in the Small Business Act to ensure uniformity across federal MPPs. Congress should change the “[p]ostparticipation reporting requirements” language to “post-agreement tracking,” to make it unmistakably clear that this is not meant to be mere postcompletion reporting. Congress should also further detail the post-agreement tracking requirement to increase uniformity across MPPs. Congress should provide for a specific time period post-agreement during which reports are required. The agency-specific MPPs mandate post-agreement tracking for two years, so this should be the minimum requirement. There should be a focus on future contracts awarded to the protégé in the requirements to ensure program goals are met. As outlined above, the DoD and NASA both include a number of measurements of the number/dollar of contracts awarded to protégés, both as a prime and as a subcontractor, by the mentor and from other sources. Both also include the measurements of number of employees and annual gross revenue, and a measurement of the prime and subcontracts awarded from the agency itself. Congress should include these same measurements in its post-agreement tracking requirement. These specific mandates should be labeled as minimum requirements. This change would emphasize the SBA’s ability to impose additional reporting requirements (qualitative or quantitative) at its discretion, including individualized measurements for particular protégés.

IV. Conclusion

The solution proposed by this Note helps to ensure that protégés are benefitting as intended under the SBA’s ASMPP. Post-agreement tracking would fill an existing assessment void by measuring whether program goals that cannot be measured during or immediately upon program completion are met. Post-agreement tracking would measure a protégés ability to compete for future contracts on their own without the assistance of the mentor. Post-agreement tracking would also eliminate a major discrepancy in MPP reporting requirements between the SBA and other agencies.

This Note does not argue that all agency discretion should be removed from the reporting requirements decision, but rather that a certain level of post-agreement reporting should be a baseline minimum for measuring program success in the ASMPP. In fact, the solution provided by this Note would not change the reporting requirements of most MPP-administering agencies. The SBA is meant to serve small business interests, and the ASMPP is meant to increase the participation of small businesses in government contracts. In the absence of post-agreement tracking, it is impossible to tell whether the ASMPP is actually fit for its purpose.