[Federal Register Volume 80, Number 243 (Friday, December 18, 2015)]
[Proposed Rules]
[Pages 78984-78986]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-31806]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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Federal Register / Vol. 80, No. 243 / Friday, December 18, 2015 /
Proposed Rules
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SMALL BUSINESS ADMINISTRATION
13 CFR Part 127
RIN 3245-AG75
Women-Owned Small Business and Economically Disadvantaged Women-
Owned Small Business--Certification
AGENCY: U.S. Small Business Administration.
ACTION: Advance notice of proposed rulemaking.
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SUMMARY: The U.S. Small Business Administration (SBA) is seeking input
and comments on certification of Women-Owned Small Businesses (WOSB)
and Economically Disadvantaged Women-Owned Small Businesses (EDWOSB) in
connection with the Women-Owned Small Business Federal Contract Program
(WOSB Program). SBA is planning to amend its regulations to implement
section 825 of the National Defense Authorization Act for Fiscal Year
2015 (2015 NDAA). Section 825 of the 2015 NDAA removed the statutory
authority allowing WOSBs and EDWOSBs to self-certify. SBA intends to
draft regulations to implement the statutory changes.
DATES: Comments must be received on or before February 16, 2016.
ADDRESSES: You may submit comments, identified by RIN 3245-AG75, by any
of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
For mail, paper, disk, or CD/ROM submissions: Brenda J.
Fernandez, Procurement Analyst, U.S. Small Business Administration,
Office of Policy, Planning and Liaison, 409 Third Street SW., 8th
Floor, Washington, DC 20416.
Hand Delivery/Courier: Brenda J. Fernandez, Procurement
Analyst, U.S. Small Business Administration, Office of Policy, Planning
and Liaison, 409 Third Street SW., 8th Floor, Washington, DC 20416.
SBA will post all comments on www.regulations.gov. If you wish to
submit confidential business information (CBI) as defined in the User
Notice at www.regulations.gov, please submit the information to: Brenda
J. Fernandez, Procurement Analyst, U.S. Small Business Administration,
Office of Policy, Planning and Liaison, 409 Third Street SW., 8th
Floor, Washington, DC 20416, or send an email to
[email protected]. Highlight the information that you consider
to be CBI and explain why you believe SBA should hold this information
as confidential. SBA will review the information and make the final
determination on whether it will publish the information.
FOR FURTHER INFORMATION CONTACT: Brenda J. Fernandez, Procurement
Analyst, Office of Policy, Planning and Liaison, 409 Third Street SW.,
Washington, DC 20416; (202) 205-7337; [email protected].
SUPPLEMENTARY INFORMATION: The WOSB Program, set forth in section 8(m)
of the Small Business Act, 15 U.S.C. 637(m), authorizes Federal
contracting officers to restrict competition to eligible Women-Owned
Small Businesses (WOSBs) and Economically Disadvantaged Women-Owned
Small Businesses (EDWOSBs) for Federal contracts in certain industries.
Congress amended the WOSB Program with section 825 of the National
Defense Authorization Act for Fiscal Year 2015, Public Law 113-291, 128
Stat. 3292 (December 19, 2014) (2015 NDAA), which included language
granting contracting officers the authority to award sole source awards
to WOSBs and EDWOSBs and shortening the time period for SBA to conduct
a required study to determine the industries in which WOSBs are
underrepresented in federal contracting. In addition, section 825 of
the 2015 NDAA amended the Small Business Act to create a requirement
that a firm be certified as a WOSB or EDWOSB by a Federal Agency, a
State government, SBA, or a national certifying entity approved by SBA.
15 USCS 637(m)(2)(E).
On September 14, 2015, SBA published in the Federal Register a
final rule to implement the sole source authority for WOSBs and EDWOSBs
and the revised timeline for SBA to conduct a study to determine the
industries in which WOSBs are underrepresented. 80 FR 55019. SBA did
not implement the certification portion of section 825 of the 2015 NDAA
in this final rule because its implementation is more complicated,
could not be accomplished by merely incorporating the statutory
language into the regulations, and would have delayed the
implementation of the sole source authority unnecessarily. SBA notified
the public that because it did not want to delay the implementation of
the WOSB sole source authority by combining it with changes in the
certification requirements, SBA decided to implement the certification
requirement through a separate rulemaking. This advance notice of
proposed rulemaking (ANPR) seeks to solicit public comments to assist
SBA in drafting a viable proposed rule to implement a WOSB/EDWOSB
certification program.
SBA seeks to better understand what the public believes is the most
appropriate way to structure a WOSB/EDWOSB certification program.
Although the language of section 825 of the 2015 NDAA authorizes four
different types of certification programs (by a Federal Agency, a State
government, SBA, or a national certifying entity approved by SBA), SBA
requests comments as to whether each of the four types should be
pursued, or whether one or more of the types of certification are not
feasible. SBA also requests comments on whether there should be a grace
period after implementation to give firms that have self-certified the
time necessary to complete the certification process. If a grace period
were implemented, how long should that period be? In addition, in
drafting any proposed rule to implement a WOSB/EDWOSB certification
process, SBA must also consider what should happen to the current WOSB
repository. As such, SBA requests comments as to whether the repository
should continue to be maintained after the certification program is
implemented, and if so, why and in what capacity should it be used in
the future.
SBA's regulations currently authorize WOSB and EDWOSB
certifications by third party national certifying entities approved by
SBA, by SBA where the firm is owned and controlled by one or more women
and has been certified as a Participant in the 8(a) Business
Development (BD) Program, and by
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states that have certified firms owned and controlled by women to be
Disadvantaged Business Enterprises (DBEs) for the U.S. Department of
Transportation's (DOT's) DBE program. 13 CFR 127.300(d). SBA seeks
comments on how those certification processes are working, how they can
be improved, and how best to incorporate them into any new
certification requirements.
To better understand how SBA should structure the new certification
processes, this ANPR seeks comments in response to the questions below,
relating to each of the four certification approaches.
Third Party Certification
As noted above, SBA regulations currently provide for certification
by third party national certifying entities that have been approved by
SBA. To date, SBA has approved four third party entities to certify
firms as WOSBs and EDWOSBs.
1. How many third party certifiers would be needed to adequately
serve the full community of WOSBs and EDWOSBs seeking certification?
2. Should SBA modify its regulations to add more information about
the procedures and processes used by third party certifiers to certify
firms as WOSBs and EDWOSBs for SBA's WOSB program?
3. Should SBA regulations contain information on how to become an
approved third party certifier?
4. What type of notice should be required to identify third party
certifiers?
5. Should cost to EDWOSB and WOSBs be part of the criteria that SBA
considers when deciding whether to approve one or more additional third
party certifiers? If so, what if any methodology should SBA utilize
when considering cost?
6. Should SBA consider the ongoing cost of recertification when
evaluating third party certifiers?
7. Should SBA determine the term period a third-party certification
is valid? If so, what should be an appropriate term for certification
validity?
8. Should SBA authorize a third-party limited access to an
applicant's repository file for the purpose of directly uploading
approved certification documents?
9. Should SBA change its current processes regarding denials by
third party certifiers?
10. In the future, should SBA consider allowing third party
certifiers to approve mentor-prot[eacute]g[eacute] agreements and joint
venture agreements involving EDWOSB and WOSB participants?
Certification by States and Other Federal Agencies
The changes to the WOSB program made by section 825 of the 2015
NDAA authorize WOSB and EDWOSB certifications by other Federal agencies
and State governments. SBA's current regulations authorize SBA to
recognize WOSB certifications made by states that have certified firms
that are owned and controlled by women to be DBEs for the DOT's DBE
program. The regulations do not, however, recognize any other State
certifications and do not authorize other Federal agencies to certify
WOSBs and EDWOSBs.
1. Should the authority to certify WOSBs and EDWOSBs be extended to
States generally? If the authority should be extended, how should SBA
authorize individual States to participate as WOSB and EDWOSB
certifying entities (i.e., what sort of approval process should be
implemented to ensure that SBA's WOSB and EDWOSB requirements are
properly applied)?
2. Should SBA accept DBE certifications for women-owned firms as
conclusive of WOSB ownership and control status or should SBA look
further at one or more specific eligibility requirement(s)?
3. What other State entities might have sufficient expertise to
make WOSB and EDWOSB certifications?
4. Should SBA consider other Federal agencies as entities that can
certify WOSBs and EDWOSBs? If so, how should that occur? Should an
agency be able to certify a WOSB or EDWOSB only for purposes of a
specific WOSB or EDWOSB contract with that agency? Which office within
those agencies should bear the responsibility for this certification
authority?
5. Should there be a protest mechanism that would allow an
interested party to protest the WOSB or EDWOSB status of a firm
certified by a State or other Federal agency to SBA?
SBA Certification Program
The changes to the WOSB program made by section 825 of the 2015
NDAA authorize SBA to certify firms as WOSBs and EDWOSBs. SBA currently
runs two certification programs. SBA certifies firms as 8(a) BD Program
Participants under the 8(a) BD Program, and SBA certifies firms as
HUBZone SBCs under the HUBZone Program. 13 CFR 124.201 through 124.207,
and 126.300 through 226.309; see also https://www.sba.gov/content/steps-applying-8a-program; https://www.sba.gov/content/applying-hubzone-program. SBA's regulations currently recognize certification as
an 8(a) BD Program Participant as evidence of a concern's status as a
WOSB and EDWOSB, where it is clear that the firm is owned and
controlled by one or more women. This is because the 8(a) BD program
regulations have similar ownership and control requirements as those
applicable to WOSBs and EDWOSBs under the WOSB Program. In addition,
the requirements governing economic disadvantage for EDWOSBs under the
WOSB Program are similar to those applicable to Participants in the
8(a) BD program. The ownership and control requirements for the HUBZone
Program differ from those applicable to the WOSB Program. As such,
certification as a HUBZone SBC does not qualify as certification as a
WOSB or EDWOSB.
If SBA were to set up its own WOSB/EDWOSB certification program,
SBA would want to ensure that it creates an efficient system that
enables eligible firms to become certified in a reasonable amount of
time, with a reasonable amount of effort, while also providing the
necessary oversight to ensure that this Program is not used by
ineligible firms. In carrying out these objectives, there are many
different forms and structures that SBA could adopt. For example, SBA
could adopt a framework under which only minimal documentation is
collected and reviewed at the time of application (such as corporate
documents and some financial records). In such a scenario, SBA could
then use its authority to conduct program examinations and carry out
status protests to serve an oversight role. This approach would provide
for a faster application and certification process, while still
maintaining oversight by providing in-depth examination and protests
relating to specific contracts. On the other hand, SBA could adopt a
method that includes a detailed initial review, requiring extensive
document production. Such a certification process would be similar to
the 8(a) BD certification program. This would be a more thorough review
providing additional oversight, and would be more time-consuming for
both the SBA and WOSB/EDWOSB applicants.
1. Should SBA limit its WOSB and EDWOSB certifications only to
those made through the 8(a) BD program, as is currently authorized in
SBA's regulations?
2. Should SBA's regulations be clarified to specify how a women-
owned firm applying to the 8(a) BD program can simultaneously receive
certification as a WOSB and EDWOSB?
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3. Recognizing that SBA has limited resources, should SBA create a
new certification program specific to WOSBs and EDWOSBs? If so, how
should SBA structure such a certification program so that the limited
resources do not cause the time period for certification to be overly
lengthy? How should SBA handle the likelihood of a large number of
firms seeking certification once the certification process is
operational? Should SBA consider or attempt to establish an online
WOSB/EDWOSB certification program, with dynamic feedback during the
certification process?
4. What, if any, documents should SBA collect when certifying a
firm as a WOSB or EDWOSB? Are the current repository document
requirements unnecessary or significantly burdensome and if so, why?
5. Should SBA and third-party certifiers utilize the same processes
for certifying concerns as EDWOSBs and WOSBs?
6. How long should the ED/WOSB certification process take? How
would this compare with the current amount of time required for self-
certification?
7. Should firms that SBA finds ineligible during the application
process have the right to a request for reconsideration or an appeal of
that decision? If an appeal, should it be to SBA's Office of Hearings
and Appeals (OHA)? Currently, firms denied certification for the 8(a)
BD program may appeal to OHA.
8. How long should a certification be valid? Currently the System
for Award Management (SAM) requires users to update and verify their
information annually. Should firms certified by SBA as EDWOSBs or WOSBs
be required to update their certifications manually?
9. Should firms need to be recertified annually? If not annually,
how long should WOSB or EDWOSB certification last? How should a firm be
re-certified as a WOSB or EDWOSB once the time period for certification
expires: should it have to re-apply anew, or should it be able to
submit only those items to SBA for review that have changed since its
initial certification? Should there be an online process that
facilitates application or re-certification? If no changes have
occurred, should the firm be able to submit an affidavit or declaration
to that effect and be automatically re-certified?
10. If a firm was previously certified by a third-party certifier,
should it be able to apply to SBA for certification (or re-
certification), or should it be permitted to apply only to the entity
that originally certified it?
The SBA welcomes comments on the above questions and any other
certification aspect of the WOSB Program. The SBA also welcomes any
available data to help substantiate recommendations made in response to
the foregoing questions, or other potential policy options. SBA reminds
commenters that all submissions by commenters are available to the
public upon request.
Maria Contreras-Sweet,
Administrator.
[FR Doc. 2015-31806 Filed 12-17-15; 8:45 am]
BILLING CODE 8025-01-P