[Federal Register Volume 86, Number 192 (Thursday, October 7, 2021)]
[Proposed Rules]
[Pages 55769-55775]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-21343]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 2, 19, and 52
[FAR Case 2020-013; Docket No. FAR-2021-0009, Sequence No. 1]
RIN 9000-AO17
Federal Acquisition Regulation: Certification of Women-Owned
Small Businesses
AGENCY: Department of Defense (DoD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: DoD, GSA, and NASA are proposing to amend the Federal
Acquisition Regulation (FAR) to implement the final rule published by
the Small Business Administration implementing a section of the Carl
Levin and Howard P. ``Buck'' McKeon National Defense Authorization Act
for Fiscal Year (FY) 2015.
DATES: Interested parties should submit comments to the Regulatory
Secretariat Division at one of the addresses shown below on or before
December 6, 2021 to be considered in the formulation of a final rule.
ADDRESSES: Submit comments in response to FAR Case 2020-013 to the
Federal eRulemaking portal at https://www.regulations.gov by searching
for ``FAR Case 2020-013''. Select the link ``Comment Now'' that
corresponds with ``FAR Case 2020-013''. Follow the instructions
provided on the ``Comment Now'' screen. Please include your name,
company name (if any), and ``FAR Case 2020-013'' on your attached
document. If your comment cannot be submitted using https://www.regulations.gov, call or email the points of contact in the FOR
FURTHER INFORMATION CONTACT section of this document for alternate
instructions.
Instructions: Please submit comments only and cite ``FAR Case 2020-
013'' in all correspondence related to this case. Comments received
generally will be posted without change to https://www.regulations.gov,
including any personal and/or business confidential information
provided. To confirm receipt of your comment(s), please check https://www.regulations.gov, approximately two to three days after submission
to verify posting.
FOR FURTHER INFORMATION CONTACT: Ms. Malissa Jones, Procurement
Analyst, at 703-605-2815, or by email at [email protected], for
clarification of content. For information pertaining to status or
publication schedules, contact the Regulatory Secretariat Division at
202-501-4755 or [email protected]. Please cite FAR Case 2020-013.
SUPPLEMENTARY INFORMATION:
I. Background
DoD, GSA, and NASA are proposing to revise the FAR to implement
section 825(a)(1) of the Carl Levin and Howard P. ``Buck'' McKeon
National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2015 (15
U.S.C. 637(m)), Public Law 113-291. Section 825 requires women-owned
small business (WOSB) concerns and economically disadvantaged women-
owned small business (EDWOSB) concerns to be certified by the Small
Business Administration (SBA), a Federal agency, a State government, or
a national certifying entity approved by SBA in the WOSB Program to be
eligible for set-aside or sole-source awards.
SBA issued a final rule at 85 FR 27650, May 11, 2020, to implement
section 825(a)(1). In their final rule, SBA amended 13 CFR part 127
requiring WOSB and EDWOSB concerns be certified by a Federal agency, a
State government, the SBA, or a national certifying entity approved by
SBA in order to be eligible under the WOSB Program for set-aside or
sole-source awards.
II. Discussion and Analysis
The proposed changes to the FAR and the rationale for the proposed
changes are summarized in the following paragraphs.
Changes are proposed to FAR 2.101, Definitions, to update the
definition of Economically disadvantaged women-owned small business
concern (EDWOSB) and Women-owned small business (WOSB) concern eligible
under the WOSB Program to add that the concern is certified by SBA or
an approved third-party certifier in accordance with 13 CFR 127.300.
Changes are proposed to FAR 19.308(d), Protesting a firm's status
as an EDWOSB concern or WOSB concern eligible under the WOSB Program,
to require a protest to be submitted by email to SBA at
[email protected]. FAR 19.308(d) is also amended to propose deletion
of text requiring SBA to consider protests by contracting officers when
the apparent successful offeror has failed to provide all of the
required documents, as set forth in FAR 19.1503(c). Changes are also
proposed to FAR 19.308 to add the requirement that the protest present
evidence that the concern is not at least 51 percent owned and
controlled by one or more economically disadvantaged women ``who are
United States citizens'', based on the requirements of 13 CFR part 127.
The addition of ``United States citizens'' aligns the FAR text with
SBA's regulations.
FAR 19.1501, Definition, is reserved to delete the definition of
WOSB Program Repository since the WOSB Program Repository is no longer
the source for WOSB program eligibility as of October 15, 2020.
FAR 19.1503, Status, is amended to add the requirement for the
contracting officer to verify the designation as a certified WOSB or
EDWOSB small business in the Dynamic Small Business Search (DSBS) at
https://web.sba.gov/pro-net/search/dsp_dsbs.cfm. The designation will
also appear in the System for Award Management (SAM) after issuance of
the final rule. Paragraphs (c) and (d) at FAR 19.1503, are proposed to
be deleted. Paragraphs (e) and (f) at FAR 19.1503 are
[[Page 55770]]
redesignated as new paragraphs (c) and (d).
FAR 19.1504, Exclusions, is amended at paragraph (b) to replace
Federal Prison Industries, Inc., and AbilityOne with ``mandatory
Government sources (see section 8.002)'', since both entities are
referenced at FAR 8.002, Priorities for use of mandatory Government
sources.
FAR 19.1505, Set-aside procedures, is amended to allow an offeror
to submit an offer while awaiting certification under the WOSB Program.
FAR 19.1505 is also amended to provide the contracting officer with
guidance if an apparent successful offeror's certification is pending
under the WOSB Program. The contracting officer, prior to award, shall
verify the apparently successful offeror is certified in SAM or DSBS.
If the apparently successful offeror's EDWOSB or WOSB certification is
pending in DSBS, the contracting officer shall notify SBA's Director/
Government Contracting by email at [email protected],
and request SBA's eligibility determination.
Within 15 days from the date of the contracting officer's
notification, SBA will make a determination regarding the offeror's
status as an EDWOSB or WOSB eligible under the WOSB program.
If the contracting officer does not receive a determination from
SBA within 15 days, the contracting officer, at their discretion, may
provide SBA additional time to make a determination, or may proceed
with award to the next highest evaluated offeror. The contracting
officer shall not make award to an offeror who is not a certified
EDWOSB or WOSB concern eligible under the WOSB program.
FAR 19.1506, Women-Owned Small Business Program sole-source awards,
is amended to instruct a contracting officer that a sole-source award
can only be made to a concern that has been certified pursuant to 13
CFR 127.300 as an EDWOSB or WOSB eligible under the WOSB Program. FAR
19.1506 is also amended to notify contracting officers that they shall
not request an eligibility determination from SBA on pending
certification applications for EDWOSB or WOSB sole-source awards.
Changes are proposed to FAR provision 52.212-3, Offeror
Representations and Certifications-Commercial Items, to remove the
representation for WOSB concerns and EDWOSB concerns eligible under the
WOSB Program. This rulemaking also proposes to update the WOSB and
EDWOSB joint venture provisions and clauses.
FAR clause 52.212-5, Contract Terms and Conditions Required to
Implement Statutes or Executive Orders--Commercial Items, was also
revised to make conforming changes.
Changes are proposed to FAR provision 52.219-1, Small Business
Program Representations, to remove the representation for WOSB concerns
and EDWOSB concerns eligible under the WOSB Program. This section also
proposes to update the WOSB and EDWOSB joint venture provisions and
clauses.
Changes are proposed to FAR clause 52.219-28, Post-Award Small
Business Program Rerepresentation, to remove the rerepresentation for
WOSB concerns and EDWOSB concerns eligible under the WOSB Program. This
rulemaking also proposes to update the WOSB concern and EDWOSB concern
joint venture clauses.
Changes are proposed to FAR clause 52.219-29, Notice of Set-aside
for, or Sole-Source Award to, Economically Disadvantaged Women-owned
Small Business Concerns, to delete the definition of WOSB Program
Repository from the clause and to require that the EDWOSB concern is
certified by SBA or an approved third-party certifier in accordance
with 13 CFR 127.300 as an EDWOSB. This section also proposes to delete
text in the clause that the contracting officer will ensure the
successful offeror has provided all required documents to the now
defunct WOSB Program Repository. It adds text for EDWOSB set-aside
procurements that offers are solicited only from certified EDWOSB
concerns or concerns with a pending certification application in DSBS.
This section also proposes to add text that for EDWOSB sole-source
awards, offers are solicited only from certified EDWOSB concerns.
Changes are proposed to FAR clause 52.219-30, Notice of Set-aside
for, or Sole-Source Award to, Women-Owned Small Business Concerns
Eligible Under the Women-Owned Small Business Program, to delete the
definition of the now defunct WOSB Program Repository text from the
clause. This rulemaking proposes to amend the clause to also add to the
definition of WOSB concern eligible under the WOSB Program that the
concern is certified by SBA or an approved third-party certifier in
accordance with 13 CFR 127.300 as a WOSB. This rulemaking also proposes
to delete text in the clause that the contracting officer will ensure
the successful offeror has provided all required documents to the WOSB
Program Repository. This rulemaking also proposes to amend the clause
to add that offers are solicited only from certified WOSB concerns or
concerns with a pending certification application in DSBS for WOSB set-
aside procurements. This rulemaking further proposes to amend the
clause to add, for WOSB sole-source awards, that offers are solicited
only from certified WOSB concerns.
III. Applicability to Contracts at or Below the Simplified Acquisition
Threshold (SAT) and for Commercial Items, Including Commercially
Available Off-The-Shelf (COTS) Items
This proposed rule amends the following provisions and clauses:
Provision 52.212-3, clause 52.212-5, provision 52.219-1, clause 52.219-
28, clause 52.219-29, clause 52.219-30. However, this proposed rule
does not impose any new requirements on contracts at or below the SAT
or for commercial items, including COTS items. The provisions and
clauses continue to apply to acquisitions at or below the SAT and to
acquisitions for commercial items, including COTS items.
A. Applicability to Contracts at or Below the Simplified Acquisition
Threshold
41 U.S.C. 1905 governs the applicability of laws to acquisitions at
or below the SAT. Section 1905 generally limits the applicability of
new laws when agencies are making acquisitions at or below the SAT, but
provides that such acquisitions will not be exempt from a provision of
law under certain circumstances, including when the FAR Council makes a
written determination and finding that it would not be in the best
interest of the Federal Government to exempt contracts and subcontracts
in amounts not greater than the SAT from the provision of law. The FAR
Council intends to make a determination to apply this statute to
acquisitions at or below the SAT.
B. Applicability to Contracts for the Acquisition of Commercial Items,
Including Commercially Available Off-The-Shelf (COTS) Items
41 U.S.C. 1906 governs the applicability of laws to contracts for
the acquisition of commercial items, and is intended to limit the
applicability of laws to contracts for the acquisition of commercial
items. Section 1906 provides that if the FAR Council makes a written
determination that it is not in the best interest of the Federal
Government to exempt commercial item contracts, the provision of law
will apply to contracts for the acquisition of commercial items.
41 U.S.C. 1907 states that acquisitions of COTS items will be
exempt from
[[Page 55771]]
certain provisions of law unless the Administrator for Federal
Procurement Policy makes a written determination and finds that it
would not be in the best interest of the Federal Government to exempt
contracts for the procurement of COTS items.
The FAR Council intends to make a determination to apply this
statute to acquisitions for commercial items. The Administrator for
Federal Procurement Policy intends to make a determination to apply
this statute to acquisitions for COTS items.
C. Determinations
The purpose of this proposed rule is to implement section 825(a)(1)
of the Carl Levin and Howard P. ``Buck'' McKeon National Defense
Authorization Act for Fiscal Year 2015 and SBA's implementing
regulation. Section 825 requires women-owned small business concerns
and economically disadvantaged women-owned small business concerns to
be certified to be eligible under the WOSB Program for set-aside or
sole-source awards (see 13 CFR 127.300).
Section 825 is silent on the applicability of these requirements
for acquisitions at or below the SAT and does not independently provide
for criminal or civil penalties; nor does it include terms making
express reference to 41 U.S.C. 1905 and its application to acquisitions
at or below the SAT. Therefore, it does not apply to acquisitions at or
below the SAT unless the FAR Council makes a written determination as
provided at 41 U.S.C. 1905. Additionally, the law is silent on the
applicability of this requirement to acquisitions of COTS items and
does not independently provide for criminal or civil penalties; nor
does it include terms making express reference to 41 U.S.C. 1907 and
its application to acquisitions of COTS items. Therefore, it does not
apply to acquisition of COTS items unless the Administrator for Federal
Procurement Policy makes a written determination as provided at 41
U.S.C. 1907.
The law furthers the Administration's goal of simplifying the
acquisition process and facilitating easier access to the Federal
marketplace, in this case for women-owned small businesses and
economically disadvantaged women-owned small businesses who make up an
important component of the Government's industrial base. Exclusion of a
large segment of Federal contracting, such as acquisitions at or below
the SAT, and for acquisitions of COTS items, will limit the full
implementation of these objectives.
Further, the primary FAR provisions and clauses implementing the
certification of women-owned small businesses and economically
disadvantaged women-owned small businesses in the WOSB Program are
currently prescribed for use in COTS items.
Exclusion of acquisitions for COTS items would create confusion
among contractors and the Federal contracting workforce.
For these reasons, it is in the best interest of the Federal
Government to apply the requirements of the proposed rule to
acquisitions at or below the SAT and to acquisitions of COTS items.
IV. Expected Impact of the Rule
As a result of this proposed rule, contracting officers will be
required to check SAM or DSBS to determine if an EDWOSB or WOSB concern
is certified or has a pending application for certification in DSBS
instead of checking that all required documentation has been submitted
to the now defunct WOSB Repository. Additionally, for set-aside
procurements contracting officers will have to contact SBA should the
apparently successful offeror have a pending application for
certification. Within 15 days from the date of the contracting
officer's notification, SBA will make a determination regarding the
offeror's status as an EDWOSB or WOSB eligible under the WOSB program.
If the contracting officer does not receive a determination from SBA
within 15 days, the contracting officer at their discretion, may
provide SBA additional time to make a determination, or may proceed
with award to the next highest evaluated offeror. For EDWOSB or WOSB
set-asides and sole-source awards, award can only be made to an EDWOSB
or WOSB certified concern.
The changes in this proposed rule will affect internal Government
operations, but not contractor operations. The required documentation
(articles of incorporation, bylaws, stock ledgers or certificates, tax
records, etc.) already exists. In addition, this information is already
required to be provided either to third-party certifiers, governmental
certifying entities, or to SBA through certify.SBA.gov. SBA expects
WOSBs to see a reduction in burden because, under the prior WOSB
Program Repository, SBA determined that the average time required to
complete the process required by the WOSB Program Repository was two
hours, whereas the use of the new certification process requires only
one hour due to technological improvements.
The public cost associated with obtaining the WOSB or EDWOSB
certification from SBA or a third-party certifier is accounted for
under the SBA final rule implementing the Program certification
requirements (85 FR 27660). In addition, the SBA final rule advises
concerns that only a certified WOSB or EDWOSB may seek a specific sole-
source requirement under the Program and that only a certified WOSB or
EDWOSB or a concern that has a pending application for certification
under the Program may submit an offer on a specific EDWOSB or WOSB set-
aside requirement.
Given SBA's notice to small business concerns, the cost to the
public associated with the FAR implementation of the SBA final rule is
de minimis and is limited to the cost of regulatory familiarization, or
the cost associated with reading this rule and understanding the new
solicitation provision.
V. Executive Orders 12866 and 13563
Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess
all costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). E.O.
13563 emphasizes the importance of quantifying both costs and benefits,
of reducing costs, of harmonizing rules, and of promoting flexibility.
This is not a significant regulatory action and, therefore, was not
subject to review under section 6(b) of E.O. 12866, Regulatory Planning
and Review, dated September 30, 1993.
VI. Congressional Review Act
As required by the Congressional Review Act (5 U.S.C. 801-808)
before an interim or final rule takes effect, DoD, GSA, and NASA will
send the rule and the ``Submission of Federal Rules Under the
Congressional Review Act'' form to each House of the Congress and to
the Comptroller General of the United States. A major rule cannot take
effect until 60 days after it is published in the Federal Register.
This proposed rule is not anticipated to be a major rule under 5 U.S.C.
804.
VII. Regulatory Flexibility Act
DoD, GSA, and NASA do not expect this proposed rule to have a
significant economic impact on a substantial number of small entities
within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601-612.
However, an initial regulatory flexibility analysis has
[[Page 55772]]
been performed and is summarized as follows:
DoD, GSA, and NASA are proposing to amend the Federal
Acquisition Regulation (FAR) to implement a statutory requirement to
certify Women-Owned Small Business Concerns (WOSBs) and Economically
Disadvantaged Women-Owned Small Business Concerns (EDWOSBs)
participating in the Procurement Program for Women-Owned Small
Business Concerns (the Program). The certification requirement
applies only to participants wishing to compete for set-aside or
sole-source contracts under the Program. Once this rulemaking is
effective, WOSBs and EDWOSBs that are not certified will not be
eligible for contracts under the Program. Other WOSBs that do not
participate in the Program may continue to self-certify their
status, receive contract awards outside the Program, and count
toward an agency's goal for awards to WOSBs.
The objective of this rulemaking is to implement section
825(a)(1) of the NDAA for Fiscal Year (FY) 2015, Public Law 113-291,
which amended the Small Business Act to create a requirement that a
concern be certified as a WOSB or EDWOSB by a Federal agency, a
State government, the Small Business Administration (SBA), or a
national certifying entity approved by SBA, in order to be awarded a
set-aside or sole-source contract under the authority of section
8(m) of the Small Business Act. The legal basis for this rule is 15
U.S.C. 637(m)(2)(E).
This rulemaking will impact approximately 9,000-12,000 WOSBs.
These businesses will have to apply to be certified as WOSBs or
EDWOSBs to SBA or third-party certifiers in order to be eligible to
be awarded any WOSB or EDWOSB set-aside contracts or sole-source
awards under the WOSB program. However, SBA has minimized the impact
on WOSBs by accepting certifications already conferred by SBA.
Data taken from FPDS-NG as of September 20, 2020, revealed that
7,198 awards were made to WOSB and EDWOSB contractors between FY
2017-2019. Of the 7,198 awards made, 553 or approximately 8% were
WOSB and EDWOSB sole-source awards.
A further breakdown reveals that during FY 2017, a total of
3,150 awards were made to WOSB and EDWOSB contractors, with
approximately 9 percent of these awards being sole-sourced. Of the
3,150 awards made, 244 were sole-sourced to WOSBs and 36 were sole-
sourced to EDWOSBs.
During FY 2018, a total of 1,460 awards were made to WOSB and
EDWOSB contractors, with approximately 17 percent of these awards
being sole-sourced. Of the 1,460 awards made, 207 were sole-sourced
to WOSBs and 42 were sole-sourced to EDWOSBs.
During FY 2019, a total of 2,588 awards were made to WOSB and
EDWOSB, with approximately 9 percent of these awards being sole-
sourced. Of the 2,588 awards made, 204 were sole-sourced to WOSBs
and 20 were sole-sourced to EDWOSBs.
The costs to WOSBs for certification should be de minimis,
because the required documentation (articles of incorporation,
bylaws, stock ledgers or certificates, tax records, etc.) already
exists. In addition, this information is already required to be
provided either to third-party certifiers, governmental certifying
entities, or to SBA through certify.gov. SBA expects WOSBs to see a
reduction in burden because under the prior WOSB Program Repository,
SBA determined that the average time required to complete the
process required by the WOSB Program Repository was two hours,
whereas the use of the new certification program requires only one
hour due to technological improvements.
This proposed rule does not include any new reporting,
recordkeeping, or other compliance requirements for small entities.
The Small Business Administration currently collects information
to carry out its statutory mandate to provide oversight of
certification related to SBA's WOSB Federal Contract Program. (OMB
Control Number 3245-0374, Certification for the Women-Owned Small
Business Federal Contract Program). Additionally, third-party
certifiers are required to provide SBA with quarterly reports that
include the number of applications received, number of applications
approved and denied, and other information that SBA determines may
be helpful for ensuring that third-party certifiers are meeting
their obligations or information or data that may be useful for
improving the program.
The proposed rule does not duplicate, overlap, or conflict with
any other Federal rules.
There are no known significant alternative approaches that would
accomplish the stated objectives of the applicable statute.
Although this proposed rule may have a positive impact on small
businesses, we do not expect it to have a significant economic
impact on a substantial number of small entities.
The Regulatory Secretariat has submitted a copy of the IRFA to the
Chief Counsel for Advocacy of the SBA. A copy of the IRFA may be
obtained from the Regulatory Secretariat. DoD, GSA, and NASA invite
comments from small business concerns and other interested parties on
the expected impact of this rule on small entities.
DoD, GSA, and NASA will also consider comments from small entities
concerning the existing regulations in subparts affected by this rule
in accordance with 5 U.S.C. 610. Interested parties must submit
comments separately and should cite 5 U.S.C. 610 (FAR case 2020-013) in
correspondence.
VIII. Paperwork Reduction Act
The proposed rule does not contain any information collection
requirements that require the approval of the Office of Management and
Budget under the Paperwork Reduction Act (44 U.S.C. 3501-3521).
List of Subjects in 48 CFR Parts 2, 19, and 52
Government procurement.
William F. Clark,
Director, Office of Government-wide Acquisition Policy, Office of
Acquisition Policy, Office of Government-wide Policy.
Therefore, DoD, GSA, and NASA propose amending 48 CFR parts 2, 19,
and 52 as set forth below:
0
1. The authority citation for 48 CFR parts 2, 19, and 52 continues to
read as follows:
Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 51
U.S.C. 20113.
PART 2--DEFINITIONS OF WORDS AND TERMS
0
2. In section 2.101, in paragraph (b)(2) amend the definition of
``Women-Owned Small Business (WOSB) Program'' by:
0
a. In paragraph (1), remove the phrase ``sole source'' and add the
phrase ``sole-source'' in its place;
0
b. In paragraph (2), remove the phrase ``13 CFR part 127'' and add the
phrase ``13 CFR part 127, and the concern is certified by SBA or an
approved third-party certifier in accordance with 13 CFR 127.300'' in
its place; and
0
c. In paragraph (3), remove the phrase ``(13 CFR part 127)'' and add
the phrase ``, and the concern is certified by SBA or an approved
third-party certifier in accordance with 13 CFR 127.300'' in its place.
PART 19--SMALL BUSINESS PROGRAMS
0
3. Amend section 19.308 by:
0
a. Removing from paragraph (d)(1)(ii) ``women, when'' and adding
``women who are United States citizens, when'' in its place;
0
b. Removing paragraph (d)(2);
0
c. Redesignating paragraph (d)(3) as (d)(2);
0
d. Removing from the newly designated paragraph (d)(2) ``not a'' and
adding ``not an'' in its place;
0
e. Revising paragraph (f)(1);
0
f. Revising paragraphs (i)(3)(iii) and (i)(5)(iii);
0
g. Removing from paragraph (1)(2) ``409 Third Street SW, Washington, DC
20416, or facsimile 202-205-6390'' and adding ``by email at
[email protected]'' in its place; and
0
h. Removing from paragraph (1)(4) ``facsimile 202-205-6873,''.
The revisions read as follows:
[[Page 55773]]
19.308 Protesting a firm's status as an economically disadvantaged
women-owned small business concern or women-owned small business
concern eligible under the Women-Owned Small Business Program.
* * * * *
(f)(1) The contracting officer shall forward all protests to SBA.
The protests are to be submitted to SBA's Director for Government
Contracting by email at [email protected].
* * * * *
(i) * * *
(3) * * *
(iii) SBA will remove the concern's designation in the Dynamic
Small Business Search (DSBS) as an EDWOSB or WOSB concern eligible
under the WOSB Program. The concern shall not submit an offer as an
EDWOSB concern or WOSB concern eligible under the WOSB Program, until
SBA issues a decision that the ineligibility is resolved.
* * * * *
(5) * * *
(iii) SBA will remove the concern's designation in DSBS as an
EDWOSB or WOSB concern eligible under the WOSB Program. The concern
shall not submit an offer as an EDWOSB concern or WOSB concern eligible
under the WOSB Program, until SBA issues a decision that the
ineligibility is resolved or OHA finds the concern is eligible on
appeal.
* * * * *
0
4. Amend section 19.1500 by revising paragraph (c) to read as follows:
19.1500 General.
* * * * *
(c) An economically disadvantaged women-owned small business
(EDWOSB) concern and a WOSB concern eligible under the WOSB Program are
subcategories of ``women-owned small business concern'' as defined in
section 2.101.
19.1501 [Removed and Reserved]
0
5. Remove and reserve section 19.1501.
0
6. Revise section 19.1503 to read as follows:
19.1503 Status.
(a) Status as an EDWOSB concern or WOSB concern eligible under the
WOSB Program is determined by the Small Business Administration in
accordance with 13 CFR part 127.
(b) For a WOSB that seeks a WOSB or EDWOSB set-aside or sole-source
contract, the contracting officer shall verify that the offeror--
(1) Is registered in the System for Award Management (SAM); and
(2) Is designated as a certified EDWOSB or WOSB concern in the
Dynamic Small Business Search (DSBS) at https://web.sba.gov/pro-net/search/dsp_dsbs.cfm (see 19.1505(d) for set aside procedures). DSBS
will provide SBA's certification status to SAM.
(c) If there is a decision issued by SBA as a result of a current
eligibility examination finding that the concern did not qualify as an
EDWOSB concern or WOSB concern eligible under the WOSB Program, the
contracting officer may terminate the contract, and shall not exercise
any option, or award further task or delivery orders. Agencies shall
not count or include the award toward the small business goals for an
EDWOSB concern or WOSB concern eligible under the WOSB Program and must
update FPDS from the date of award to reflect the final SBA decision.
(d) A joint venture may be considered an EDWOSB concern or WOSB
concern eligible under the WOSB Program if the EDWOSB or WOSB
participant is certified in DSBS (see section 19.1505(d) for set aside
procedures) and the joint venture meets the requirements of 13 CFR
127.506.
0
7. Amend section 19.1504 by revising paragraph (b) to read as follows:
19.1504 Exclusions.
* * * * *
(b) Requirements that can be satisfied through award to mandatory
Government sources (see section 8.002);
* * * * *
0
8. Amend section 19.1505 by:
0
a. Revising paragraph (a)(2);
0
b. Redesignating paragraphs (f) and (g) as paragraphs (h) and (i);
0
c. Redesignating paragraph (d) as paragraph (g);
0
d. Adding paragraph (d);
0
e. Revising paragraph (e);
0
f. Adding paragraph (f); and
0
g. Revising newly redesignated paragraph (i) introductory text and
(i)(1).
The revisions read as follows:
19.1505 Set-aside procedures.
(a) * * *
(2)(i) May set aside acquisitions exceeding the micro-purchase
threshold for competition restricted to EDWOSB concerns when the
acquisition is assigned a NAICS code in which SBA has determined that
WOSB concerns are underrepresented in Federal procurement; or
(ii) May set aside acquisitions exceeding the micro-purchase
threshold for competition restricted to WOSB concerns eligible under
the WOSB Program when the acquisition is assigned a NAICS code in which
SBA has determined that WOSB concerns are substantially
underrepresented in Federal procurement, as specified on SBA's website
at http://www.sba.gov/WOSB.
* * * * *
(d) An offer is eligible for consideration under an EDWOSB or WOSB
set-aside when the offeror--
(1) Qualifies as a small business concern under the size standard
corresponding to the NAICS code assigned to the contract, and
(2)(i) For an EDWOSB set-aside, is certified pursuant to 13 CFR
127.300 as an EDWOSB or has a pending application for EDWOSB
certification in the DSBS (see 13 CFR 127.504(a)), or
(ii) For a WOSB set-aside, is certified pursuant to 13 CFR 127.300
as an EDWOSB or WOSB, or has a pending application for EDWOSB or WOSB
certification in the DSBS (see 13 CFR 127.504(a)).
(e) The contracting officer shall verify that offers received are
eligible for consideration for award by checking to see if the EDWOSB
or WOSB concern is designated as a certified concern or has a pending
application for certification in DSBS.
(1) If the offeror is designated as certified or has a pending
application for certification, proceed with the offer evaluation.
(2) Unless the offeror is designated as certified or has a pending
application for certification, the offer is not eligible for award and
shall be removed from consideration.
(f) Prior to award, the contracting officer shall verify the
apparently successful offeror is certified in DSBS. If the apparently
successful offeror's EDWOSB or WOSB certification is pending, the
contracting officer shall notify SBA's Director/Government Contracting
by email at [email protected], and request SBA's status
determination. The contracting officer shall provide SBA with the
offeror's name, unique entity identifier, type of set-aside, NAICS
code, and solicitation number.
(1) Within 15 calendar days from the date of the contracting
officer's notification, SBA will make a determination regarding the
offeror's status as an EDWOSB or WOSB eligible under the WOSB program.
(2) If the contracting officer does not receive a determination
from SBA within 15 calendar days, the contracting officer at their
discretion, may provide SBA additional time to make a determination, or
may proceed with award to the next highest evaluated offeror.
(3) The contracting officer shall not make award to an offeror who
is not a
[[Page 55774]]
certified EDWOSB or WOSB concern eligible under the WOSB program.
* * * * *
(i) The SBA procurement center representative (PCR) may recommend
use of the WOSB Program. If the contracting officer rejects a
recommendation by SBA's PCR--
(1) The contracting officer shall notify the PCR as soon as
practicable;
* * * * *
0
9. Amend section 19.1506 by:
0
a. Revising the section heading;
0
b. In paragraphs (a) and (b) remove the phrase ``sole source'' and add
the phrase ``sole-source'' in its place;
0
c. Redesignating paragraph (d) as paragraph (e);
0
d. Adding a new paragraph (d); and
0
e. In newly redesignated paragraph (e), remove the phrase ``sole
source'' and add the phrase ``sole-source'' in its place.
The revisions and addition read as follows:
19.1506 Women-Owned Small Business Program sole-source awards.
* * * * *
(d) A contracting officer shall only award a sole-source contract
to a concern that has been certified pursuant to 13 CFR 127.300 as an
EDWOSB or WOSB eligible under the WOSB program. Contracting officers
shall not request a status determination from SBA on pending
certification applications for EDWOSB or WOSB sole-source awards.
* * * * *
PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
0
10. Amend section 52.212-3 by:
0
a. Revising the date of the provision;
0
b. In paragraph (a), revise the definition ``Women-owned small business
(WOSB) concern eligible under the WOSB Program''; and
0
c. Revising paragraphs (c)(6) and (7);
The revisions read as follows:
52.212-3 Offeror Representations and Certifications--Commercial Items.
* * * * *
Offeror Representations and Certifications--Commercial Items (DATE)
* * * * *
(a) * * *
Women-owned small business (WOSB) concern eligible under the WOSB
Program (in accordance with 13 CFR part 127), means a small business
concern that is at least 51 percent directly and unconditionally owned
by, and the management and daily business operations of which are
controlled by, one or more women who are citizens of the United States,
and the concern is certified by SBA or an approved third-party
certifier in accordance with 13 CFR 127.300.
* * * * *
(c) * * *
(6) WOSB joint venture eligible under the WOSB Program. The offeror
represents that it [squ] is, [squ] is not a joint venture that complies
with the requirements of 13 CFR part 127. [The offeror shall enter the
name or names of the WOSB concern eligible under the WOSB Program and
other small businesses that are participating in the joint venture:
____.]
(7) Economically disadvantaged women-owned small business (EDWOSB)
joint venture. The offeror represents that it [squ] is, [squ] is not a
joint venture that complies with the requirements of 13 CFR part 127.
[The offeror shall enter the name or names of the EDWOSB concern and
other small businesses that are participating in the joint venture:
____.]
* * * * *
0
11. Amend section 52.212-5 by:
0
a. Revising the date of the clause;
0
b. In paragraph (b), remove ``[Contracting Officer check as
appropriate.]'' and add ``[Contracting Officer check as appropriate.]''
in its place;
0
c. In paragraph (b)(23), remove ``(SEP 2021)'' and add ``(DATE)'' in
its place; and
0
d. In paragraph (b)(24), remove ``(SEP 2021)'' and add ``(DATE)'' in
its place.
The revision reads as follows:
52.212-5 Contract Terms and Conditions Required To Implement Statutes
or Executive Orders--Commercial Items.
* * * * *
Contract Terms and Conditions Required To Implement Statutes or
Executive Orders--Commercial Items (DATE)
* * * * *
0
12. Amend section 52.219-1 by:
0
a. Revising the date of the provision;
0
b. In paragraph (a), revise the definitions ``Economically
disadvantaged women-owned small business (EDWOSB) concern'' and
``Women-owned small business (WOSB) concern eligible under the WOSB
Program''; and
0
c. Revising paragraphs (c)(4) and (5).
The revisions read as follows:
52.219-1 Small Business Program Representations.
* * * * *
Small Business Program Representations (DATE)
(a) * * *
Economically disadvantaged women-owned small business (EDWOSB)
concern means a small business concern that is at least 51 percent
directly and unconditionally owned by, and the management and daily
business operations of which are controlled by, one or more women who
are citizens of the United States and who are economically
disadvantaged in accordance with 13 CFR part 127, and the concern is
certified by SBA or an approved third-party certifier in accordance
with 13 CFR 127.300. It automatically qualifies as a women-owned small
business concern eligible under the WOSB Program.
* * * * *
Women-owned small business (WOSB) concern eligible under the WOSB
Program (in accordance with 13 CFR part 127) means a small business
concern that is at least 51 percent directly and unconditionally owned
by, and the management and daily business operations of which are
controlled by, one or more women who are citizens of the United States,
and the concern is certified by SBA or an approved third-party
certifier in accordance with 13 CFR 127.300.
* * * * *
(c) * * *
(4) Women-owned small business (WOSB) joint venture concern
eligible under the WOSB Program. The offeror represents as part of its
offer that it [squ] is, [squ] is not a joint venture that complies with
the requirements of 13 CFR part 127. [The offeror shall enter the name
or names of the WOSB concern eligible under the WOSB Program and other
small businesses that are participating in the joint venture: ____.]
(5) Economically disadvantaged women-owned small business (EDWOSB)
joint venture. The offeror represents as part of its offer that it
[squ] is, [squ] is not a joint venture that complies with the
requirements of 13 CFR part 127. [The offeror shall enter the name or
names of the EDWOSB concern and other small businesses that are
participating in the joint venture: ____.]
* * * * *
0
13. Amend section 52.219-28 by revising the date of the clause and
paragraphs (h)(4) and (5) to read as follows:
52.219-28 Post-Award Small Business Program Rerepresentation.
* * * * *
[[Page 55775]]
Post-Award Small Business Program Rerepresentation (DATE)
* * * * *
(h) * * *
(4) Women-owned small business (WOSB) joint venture eligible under
the WOSB Program. The Contractor represents that it [square] is,
[square] is not a joint venture that complies with the requirements of
13 CFR part 127. [The Contractor shall enter the name or names of the
WOSB concern eligible under the WOSB Program and other small businesses
that are participating in the joint venture: ____.]
(5) Economically disadvantaged women-owned small business (EDWOSB)
joint venture. The Contractor represents that it [square] is, [square]
is not a joint venture that complies with the requirements of 13 CFR
part 127. [The Contractor shall enter the name or names of the EDWOSB
concern and other small businesses that are participating in the joint
venture: ____.]
* * * * *
0
14. Amend section 52.219-29 by:
0
a. Revising the date of the clause;
0
b. Revising paragraphs (a) and (c);
0
d. In paragraph (d), remove ``Joint Venture'' and add ``Joint venture''
in its place.
The revisions read as follows:
52.219-29 Notice of Set-Aside for, or Sole-Source Award to,
Economically Disadvantaged Women-Owned Small Business Concerns.
* * * * *
Notice of Set-Aside for, or Sole-Source Award to, Economically
Disadvantaged Women-Owned Small Business Concerns (DATE)
(a) Definition. Economically disadvantaged women-owned small
business (EDWOSB) concern, as used in this clause, means a small
business concern that is at least 51 percent directly and
unconditionally owned by, and the management and daily business
operations of which are controlled by, one or more women who are
citizens of the United States and who are economically disadvantaged in
accordance with 13 CFR part 127, and is certified pursuant to 13 CFR
127.300 as an EDWOSB. It automatically qualifies as a women-owned small
business (WOSB) concern eligible under the WOSB Program.
* * * * *
(c) General. (1) For EDWOSB set-aside procurements, offers are
solicited only from certified EDWOSB concerns or EDWOSB concerns with a
pending certification application in the Dynamic Small Business Search
(DSBS).
(2) For EDWOSB sole-source awards, offers are solicited only from
certified EDWOSB concerns.
(3) Offers received from other concerns will not be considered.
(4) Any award resulting from this solicitation will be made to a
certified EDWOSB concern.
* * * * *
0
15. Amend section 52.219-30 by:
0
a. Revising the date of the clause;
0
b. Revising paragraphs (a) and (c);
0
d. In paragraph (d), remove ``Joint Venture'' and add ``Joint venture''
in its place.
The revisions read as follows:
52.219-30 Notice of Set-Aside for, or Sole-Source Award to, Women-
Owned Small Business Concerns Eligible Under the Women-Owned Small
Business Program.
* * * * *
Notice of Set-Aside for, or Sole-Source Award to, Women-Owned Small
Business Concerns Eligible Under the Women-Owned Small Business Program
(DATE)
(a) Definition. Women-owned small business (WOSB) concern eligible
under the WOSB Program (in accordance with 13 CFR part 127), as used in
this clause, means a small business concern that is at least 51 percent
directly and unconditionally owned by, and the management and daily
business operations of which are controlled by, one or more women who
are citizens of the United States, and the concern is certified by SBA
or an approved third-party certifier in accordance with 13 CFR 127.300
as a WOSB. A certified EDWOSB is automatically eligible as a certified
WOSB.
* * * * *
(c) General. (1) For WOSB set-aside procurements, offers are
solicited only from certified WOSB concerns eligible under the WOSB
Program or WOSB concerns with a pending certification application
status in the Dynamic Small Business Search (DSBS).
(2) For WOSB sole-source awards, offers are solicited only from
certified WOSB concerns.
(3) Offers received from other concerns shall not be considered.
(4) Any award resulting from this solicitation will be made to a
certified WOSB concern eligible under the WOSB Program.
* * * * *
[FR Doc. 2021-21343 Filed 10-6-21; 8:45 am]
BILLING CODE 6820-EP-P