Rule2022-20343
Federal Acquisition Regulation: Certification of Women-Owned Small Businesses
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
September 23, 2022
Effective
October 28, 2022
Issuing agencies
Defense DepartmentGeneral Services AdministrationNational Aeronautics and Space Administration
Abstract
DoD, GSA, and NASA are issuing a final rule 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.
Full Text
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<title>Federal Register, Volume 87 Issue 184 (Friday, September 23, 2022)</title>
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[Federal Register Volume 87, Number 184 (Friday, September 23, 2022)]
[Rules and Regulations]
[Pages 58237-58243]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-20343]
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DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 2, 19, and 52
[FAC 2022-08; FAR Case 2020-013; Item IV; 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: Final rule.
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SUMMARY: DoD, GSA, and NASA are issuing a final rule 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.
[[Page 58238]]
DATES: Effective October 28, 2022.
FOR FURTHER INFORMATION CONTACT: Ms. Malissa Jones, Procurement
Analyst, at 571-882-4687, or by email at <a href="/cdn-cgi/l/email-protection#b2ffd3dedbc1c1d39cd8dddcd7c1f2d5c1d39cd5ddc4"><span class="__cf_email__" data-cfemail="0a476b666379796b246065646f794a6d796b246d657c">[email protected]</span></a>, for
clarification of content. For information pertaining to status or
publication schedules, contact the Regulatory Secretariat Division at
202-501-4755 or <a href="/cdn-cgi/l/email-protection#561105170433310533351631253778313920"><span class="__cf_email__" data-cfemail="32756173605755615751725541531c555d44">[email protected]</span></a>. Please cite FAC 2022-08, FAR Case
2020-013.
SUPPLEMENTARY INFORMATION:
I. Background
DoD, GSA, and NASA published a proposed rule in the Federal
Register at 86 FR 55769 on October 7, 2021, to amend 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 (Pub. L. 113-291), which amended 15 U.S.C. 637(m), and the Small
Business Administration (SBA) final rule at 85 FR 27650 issued on May
11, 2020, implementing section 825(a)(1). Five respondents submitted
comments on the proposed rule.
II. Discussion and Analysis
The Civilian Agency Acquisition Council and the Defense Acquisition
Regulations Council (the Councils) reviewed the public comments in the
development of the final rule and as a result, a clarifying change has
been made to 19.1505(d); however, there are no significant changes from
the proposed rule. A discussion of the comments received is provided as
follows:
A. Summary of Significant Changes From the Proposed Rule
There are no significant changes from the proposed rule.
B. Analysis of Public Comments
1. Support for the Rule
Comment: One respondent expressed support for the rule.
Response: The Councils acknowledge the respondent's support for the
rule.
2. Women-Owned Small Business Certification Process
Comment: Two respondents expressed concern regarding the changes to
the women-owned small business (WOSB) certification process, indicating
it is overly complex and is a barrier to entry into the Federal
marketplace for WOSB concerns. One respondent also indicated that the
new process will extend award times by requiring contracting officers
to check the Dynamic Small Business Search (DSBS) to verify the
certification status of WOSB concerns.
Response: This rule implements SBA's final rule at 85 FR 27650,
issued on May 11, 2020, implementing section 825(a)(1) of the NDAA for
FY 2015, which amended 15 U.S.C. 637(m). In its final rule, SBA amended
13 CFR part 127 to require WOSB and EDWOSB concerns to be certified by
SBA or an SBA-approved third-party certifier in accordance with 13 CFR
127.300. The statutory language mandates the methods for certification;
therefore, SBA has no authority to retain representation as an option
for concerns seeking to compete for WOSB and EDWOSB sole-source and
set-aside procurements. The WOSB and EDWOSB certification requirement
applies only to those businesses wishing to compete for set-aside or
sole-source contracts under the WOSB Program (the Program). Other WOSB
concerns that do not participate in the Program may continue to
represent their status and receive contract awards outside the Program.
This rule does not change existing documentation requirements for
certification. WOSBs will submit the documentation to SBA through
<a href="http://certify.SBA.gov">certify.SBA.gov</a> or to SBA-approved third-party certifiers. In addition,
a concern's status will appear in the System for Award Management
(SAM); therefore, this rule will not delay award since contracting
officers are already required to verify contractor information in SAM
prior to award.
3. Clarifications
Comment: One respondent indicated that the Background section of
the proposed rule incorrectly stated that WOSBs would be able to be
certified by State governments and that this statement did not align
with the FAR text of the proposed rule and SBA's final rule. The
respondent indicated that SBA's final rule implementing section
825(a)(1) of the NDAA for FY 2015 does not authorize WOSB and EDWOSB
concerns to be certified by a State government. The respondent
indicated that the proposed rule FAR text accurately captures the
program requirements as implemented by SBA.
Response: The Councils acknowledge the inaccuracy of the statement
included in the background section of the proposed rule and clarify
that WOSB and EDWOSB concerns are certified by SBA or a SBA-approved
third-party certifier.
Comment: One respondent indicated that the proposed rule does not
clearly indicate ``when the EDWOSB or WOSB concern must have been
designated as a certified concern or have a pending application for
certification in DSBS'' to be eligible for award.
Response: As a result of the comment received, the FAR text at
19.1505(d) has been revised to clarify when an offeror is eligible for
consideration.
4. Outside the Scope of the Rule
Comment: One respondent indicated that the proposed rule's language
at FAR 19.1503(c) differs from SBA's regulations regarding when a
contracting officer must, or may, terminate a contract.
Response: This comment is outside the scope of the rule. SBA's
regulations at 13 CFR 137.604(f) correspond to the FAR coverage at
19.308 on protests, not 19.1503, which addresses an entity's status as
a WOSB or EDWOSB. The questioned phrase ``the contracting officer may
terminate'' already appears at FAR 19.1503(e), and is only being
renumbered as paragraph (c).
Comment: One respondent recommended that the North American
Industry Classification System codes be revised to increase the dollar
thresholds to allow WOSB concerns to qualify for large or high dollar
value set-aside contracts.
Response: This comment is outside the scope of this rule.
Comment: Three respondents submitted comments outside the scope of
the rule.
Response: These comments are outside the scope of this rule.
C. Other Changes
FAR 19.1503(b)(2), 19.1505(e), and 19.1505(f) have been changed to
clarify the systems that reflect an EDWOSB and WOSB concern's
certification status. Conforming changes have been made to the
definition of Economically disadvantaged women-owned small business
(EDWOSB) concern in FAR clause 52.212-3, Offeror Representations and
Certifications--Commercial Products and Commercial Services.
III. Applicability to Contracts at or Below the Simplified Acquisition
Threshold (SAT) and for Commercial Products (Including Commercially
Available Off-the-Shelf (COTS) Items) or for Commercial Services
This 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. While the provisions and clauses are being
amended, this rule does not change the application to contracts at or
below the SAT or for commercial products or for commercial services,
including COTS items. The provisions and clauses continue to apply to
acquisitions for
[[Page 58239]]
commercial products or for commercial services, including COTS items,
and acquisitions at or below the SAT.
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 Federal Acquisition
Regulatory Council (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 has made a
determination to apply this statute to acquisitions at or below the
SAT.
B. Applicability to Contracts for the Acquisition of Commercial
Products and Commercial Services, 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 products and commercial services, and is
intended to limit the applicability of laws to contracts for the
acquisition of commercial products and commercial services. 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 products or commercial services contracts and subcontracts,
the provision of law will apply to contracts and subcontracts-for the
acquisition of commercial products and commercial services.
41 U.S.C. 1907 states that acquisitions of COTS items will be
exempt from 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 has made a determination to apply this statute to
acquisitions for commercial products and commercial services. The
Administrator for Federal Procurement Policy has made a determination
to apply this statute to acquisitions for COTS items.
C. Determinations
This rule implements 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. Section 825(a)(1) is silent on
applicability to acquisitions of commercial products and commercial
services. The statute does not provide for civil or criminal penalties.
Therefore, it does not apply to acquisitions of commercial products and
commercial services unless the FAR Council makes a written
determination as provided in 41 U.S.C. 1906. 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.
Failure to apply section 825(a)(1) to acquisitions at or below the
SAT, acquisitions of commercial products or commercial services,
including COTS items, would prevent contracting officers from using
WOSB set-asides or making sole-source awards to WOSB or EDWOSB concerns
based on their socioeconomic status. This limitation would restrict
opportunities for WOSB and EDWOSB concerns in the Federal marketplace
which is contrary to the longstanding policy expressed in FAR 19.201 of
promoting ``maximum practicable opportunities'' in Government
contracting, as well as the Administration's express commitment
reflected in Executive Order 13985, Advancing Racial Equity and Support
for Underserved Communities Through the Federal Government, to advance
equity for underserved communities.
Application of the law to acquisitions at or below the SAT and
acquisitions of commercial products and commercial services, including
COTS items, will maximize the positive impact set-aside and sole-source
contracts provide for WOSB and EDWOSB concerns by increasing WOSB
opportunities in the Federal marketplace.
The Federal Government has a policy of promoting WOSB and EDWOSB
participation in Government contracting; therefore, applying the
requirement to acquisitions at or below the SAT and acquisitions of
commercial products and commercial services, including COTS items, will
help Federal agencies achieve WOSB goals.
For these reasons, it is in the best interest of the Federal
Government to apply the requirements of this rule to acquisitions at or
below the SAT and to acquisitions of commercial products and commercial
services and COTS items.
IV. Expected Impact of the Rule
As a result of this rule, contracting officers will be required to
check SAM to determine if an EDWOSB or WOSB concern is certified or if
the concern has a pending application for certification in DSBS,
instead of checking that all required documentation has been submitted
to the now defunct WOSB Repository. For EDWOSB or WOSB set-asides and
sole-source awards, awards can only be made to an EDWOSB or WOSB
certified concern. For EDWOSB or WOSB set-aside awards, if the
apparently successful offeror's EDWOSB or WOSB certification is
pending, the contracting officer will be required to notify SBA's
Director/Government Contracting, and request SBA's status
determination. Within 15 calendar days from the date of contracting
officer notification, SBA will make a determination regarding the
offeror's status as an EDWOSB or WOSB eligible under the WOSB program.
If SBA does not provide the contracting officer with a determination
within 15 days, the contracting officer may provide SBA additional time
to make a determination, or may proceed with award to the next highest
evaluated offeror.
The changes in this rule will affect contractor operations by
requiring WOSB and EDWOSB concerns to be certified by SBA or a SBA-
approved third-party certifier. However, the requirement to submit
documentation (i.e., articles of incorporation, bylaws, stock ledgers
or certificates, tax records, etc.) to SBA through <a href="http://certify.SBA.gov">certify.SBA.gov</a> or
[[Page 58240]]
to SBA approved third-party certifiers already exists and remains
unchanged.
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 27650). 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 this rule is not a significant impact, and is
limited to the cost of regulatory familiarization, or the cost
associated with reading this rule and understanding the revised
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. The
Office of Information and Regulatory Affairs (OIRA) in the Office of
Management and Budget has determined that this is not a major rule
under 5 U.S.C. 804.
VII. Regulatory Flexibility Act
DoD, GSA, and NASA have prepared a Final Regulatory Flexibility
Analysis (FRFA) consistent with the Regulatory Flexibility Act, 5
U.S.C. 601-612. The FRFA is summarized as follows:
DoD, GSA, and NASA are issuing a final rule amending the Federal
Acquisition Regulation (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 (Pub. L. 113-291)
which amended 15 U.S.C. 637(m), and SBA's final rule at 85 FR 27650
issued on May 11, 2020, to require that women-owned small business
(WOSBs) concerns and economically disadvantaged women-owned small
business (EDWOSBs) concerns participating in the WOSB Program (the
Program) be certified by SBA or by a SBA-approved third-party
certifier. EDWOSB and WOSB concerns that are not certified will not
be eligible for contracts under the Program. The certification
requirement applies only to participants wishing to compete for set-
aside or sole-source contracts under the Program. EDWOSB and WOSB
concerns that do not participate in the Program may continue to
represent their status, receive contract awards outside the Program,
and the awards may count toward an agency's goal for awards to
WOSBs.
There were no significant issues raised by the public comments
in response to the initial regulatory flexibility analysis.
This rule will require EDWOSB and WOSB concerns to apply for
certification through SBA or a SBA-approved third-party certifier
and to be certified in order to be eligible for WOSB or EDWOSB set-
aside or sole-source contracts under the Program. This rule is
anticipated to impact 9,000-12,000 WOSB concerns. This estimate
reflects the approximate number of WOSB concerns in the predecessor
system SBA used to maintain WOSB certifications. The assumption is
that the majority of those entities will seek certification from SBA
or a third-party under the new certification process.
Data taken from the Federal Procurement Data System as of
February 8, 2022, revealed that 8,599 set-aside or sole-source
awards were made to WOSB and EDWOSB concerns from FY 2019 to FY
2021. Of the 8,599 awards made, 625 or approximately 7 percent, were
WOSB and EDWOSB sole-source awards. This exemplifies the number of
opportunities an offeror would potentially miss out on if they are
not a certified EDWOSB or WOSB concern.
This final rule does not impose 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). Certified EDWOSB or WOSB
concerns need to update their certification information with SBA
once a year to maintain their status with the WOSB Federal Contract
program.
There are no known significant alternative approaches to the
final rule.
Interested parties may obtain a copy of the FRFA from the
Regulatory Secretariat Division. The Regulatory Secretariat Division
has submitted a copy of the FRFA to the Chief Counsel for Advocacy of
the Small Business Administration.
VIII. Paperwork Reduction Act
This 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 amend 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
2.101 [Amended]
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) introductory text, removing the phrase ``sole
source'' and adding the phrase ``sole-source'' in its place;
0
b. In paragraph (2), removing the phrase ``13 CFR part 127'' and adding
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), removing the phrase ``(13 CFR part 127)'' and
adding 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) the phrase ``women, when'' and
adding the phrase ``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) the words
[[Page 58241]]
``not a'' and adding the words ``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 (l)(2) the phrase ``409 Third Street SW,
Washington, DC 20416, facsimile 202-205-6390'' and adding the phrase
``by email at <a href="/cdn-cgi/l/email-protection#ddaab2aebfadafb2a9b8aea99daebfbcf3bab2ab"><span class="__cf_email__" data-cfemail="0b7c6478697b79647f6e787f4b78696a256c647d">[email protected]</span></a>'' in its place; and
0
h. Removing from paragraph (l)(4) the phrase ``facsimile 202-205-
6873,''.
The revisions read as follows:
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 <a href="/cdn-cgi/l/email-protection#30475f435240425f44554344704352511e575f46"><span class="__cf_email__" data-cfemail="21564e524351534e55445255615243400f464e57">[email protected]</span></a>.
* * * * *
(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.
* * * * *
19.502-8 [Amended]
0
4. Amend section 19.502-8 in paragraph (b) by removing ``19.1505(g)''
and adding ``19.1505(i)'' in its place.
0
5. 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
6. Remove and reserve section 19.1501.
0
7. 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 SAM (see
19.1505(d) for set aside procedures). Pending applications for
certification are only in the Dynamic Small Business Search (DSBS) at
<a href="https://web.sba.gov/pro-net/search/dsp_dsbs.cfm">https://web.sba.gov/pro-net/search/dsp_dsbs.cfm</a>.
(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 SAM (see section 19.1505(d) for set-aside
procedures) and the joint venture meets the requirements of 13 CFR
127.506.
0
8. 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
9. 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. Removing paragraph (e);
0
e. Adding new paragraphs (d) through (f); and
0
f. Revising newly redesignated paragraphs (i) introductory text and
(i)(1).
The revisions and addition 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 <a href="http://www.sba.gov/WOSB">http://www.sba.gov/WOSB</a>.
* * * * *
(d) An EDWOSB or WOSB concern may submit an offer 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 SAM to see if the
EDWOSB or WOSB concern is designated as a certified concern or checking
DSBS for a pending application for certification.
(1) If the offeror is designated as certified in SAM or has a
pending application for certification in DSBS, proceed with the offer
evaluation.
(2) Unless the offeror is designated as certified in SAM or has a
pending application for certification in DSBS, 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 SAM, or has a pending
application for certification in DSBS. If the apparently successful
offeror's EDWOSB or WOSB certification is pending in DSBS, the
[[Page 58242]]
contracting officer shall notify SBA's Director/Government Contracting
by email at <a href="/cdn-cgi/l/email-protection#e9bea6baab998c878d80878e8a8c9b9d808f808a889d808687a99a8b88c78e869f"><span class="__cf_email__" data-cfemail="580f170b1a283d363c31363f3b3d2a2c313e313b392c313736182b3a39763f372e">[email protected]</span></a>, 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 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
10. Amend section 19.1506 by:
0
a. Revising the section heading;
0
b. In paragraphs (a) introductory text and (b) introductory text
removing the phrase ``sole source'' and adding 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), removing the phrase ``sole
source'' and adding the phrase ``sole-source'' in its place.
The revision 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
applications for certification for EDWOSB or WOSB sole-source awards.
* * * * *
PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
0
11. Amend section 52.212-3 by:
0
a. Revising the date of the provision;
0
b. In paragraph (a):
0
i. In the definition ``Economically disadvantaged women-owned small
business (EDWOSB) concern'' removing the phrase ``13 CFR part 127'' and
adding 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;
0
ii. 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
Products and Commercial Services.
* * * * *
Offeror Representations and Certifications--Commercial Products and
Commercial Services (Oct 2022)
* * * * *
(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 [square] is, [square] is not a joint
venture that complies with the requirements of 13 CFR 127.506(a)
through (c). [The offeror shall enter the name and unique entity
identifier of each party to the joint venture:__.]
(7) Economically disadvantaged women-owned small business
(EDWOSB) joint venture. The offeror represents that it [square] is,
[square] is not a joint venture that complies with the requirements
of 13 CFR 127.506(a) through (c). [The offeror shall enter the name
and unique entity identifier of each party to the joint venture:__.]
* * * * *
0
12. Amend section 52.212-5 by:
0
a. Revising the date of the clause;
0
b. In paragraph (b)(23), removing the date ``(SEP 2021)'' and adding
the date ``(OCT 2022)'' in its place; and
0
c. In paragraph (b)(24), removing the date ``(SEP 2021)'' and adding
the date ``(OCT 2022)'' in its place.
The revision reads as follows:
52.212-5 Contract Terms and Conditions Required To Implement Statutes
or Executive Orders--Commercial Products and Commercial Services.
* * * * *
Contract Terms and Conditions Required To Implement Statutes or
Executive Orders--Commercial Products and Commercial Services (OCT
2022)
* * * * *
0
13. Amend section 52.219-1 by:
0
a. Revising the date of the provision;
0
b. In paragraph (a), revising 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 (Oct 2022)
(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 eligible
under the WOSB Program. The offeror represents as part of its offer
that it [square] is, [square] is not a joint venture that complies
with the requirements of 13 CFR 127.506(a) through (c). [The offeror
shall enter the name and unique entity identifier of each party to
the joint venture: __.]
(5) Economically disadvantaged women-owned small business
(EDWOSB) joint venture. The offeror represents as part of its offer
that it [square] is, [square] is not a joint venture that complies
with the requirements of 13 CFR
[[Page 58243]]
127.506(a) through (c). [The offeror shall enter the name and unique
entity identifier of each party to the joint venture: __.]
* * * * *
0
14. 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.
* * * * *
Post-Award Small Business Program Rerepresentation (Oct 2022)
* * * * *
(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 127.506(a) through (c). [The Contractor shall
enter the name and unique entity identifier of each party to 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 127.506(a) through (c). [The Contractor shall
enter the name and unique entity identifier of each party to the
joint venture:__ .]
* * * * *
0
15. Amend section 52.219-29 by revising the date of the clause,
paragraphs (a) and (c), and the paragraph (d) subject heading to 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 (Oct 2022)
(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 application for certification 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.
(d) Joint venture.* * *
* * * * *
0
16. Amend section 52.219-30 by revising the date of the clause,
paragraphs (a) and (c), and the paragraph (d) subject heading to 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
(Oct 2022)
(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 application for
certification 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.
(d) Joint venture. * * *
* * * * *
[FR Doc. 2022-20343 Filed 9-22-22; 8:45 am]
BILLING CODE 6820-EP-P
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</html>Indexed from Federal Register on September 23, 2022.
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