Rule2023-13439
Veteran-Owned Small Business and Service-Disabled, Veteran-Owned Small Business-Certification; Correction
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
July 3, 2023
Effective
July 3, 2023
Issuing agencies
Small Business Administration
Abstract
The U.S. Small Business Administration (SBA) is correcting a final rule that was published in the Federal Register on November 29, 2022. The rule implemented a statutory requirement to certify Veteran- Owned Small Business Concerns and Service-Disabled Veteran-Owned Small Business Concerns participating in the Veteran-Owned Small Business Federal Contracting Program. This document is making a correction to the final regulations.
Full Text
<html>
<head>
<title>Federal Register, Volume 88 Issue 126 (Monday, July 3, 2023)</title>
</head>
<body><pre>
[Federal Register Volume 88, Number 126 (Monday, July 3, 2023)]
[Rules and Regulations]
[Pages 42592-42593]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-13439]
=======================================================================
-----------------------------------------------------------------------
SMALL BUSINESS ADMINISTRATION
13 CFR Parts 128 and 134
RIN 3245-AH69
Veteran-Owned Small Business and Service-Disabled, Veteran-Owned
Small Business--Certification; Correction
AGENCY: U.S. Small Business Administration.
ACTION: Correcting amendments.
-----------------------------------------------------------------------
SUMMARY: The U.S. Small Business Administration (SBA) is correcting a
final rule that was published in the Federal Register on November 29,
2022. The rule implemented a statutory requirement to certify Veteran-
Owned Small Business Concerns and Service-Disabled Veteran-Owned Small
Business Concerns participating in the Veteran-Owned Small Business
Federal Contracting Program. This document is making a correction to
the final regulations.
DATES: This final rule is effective on July 3, 2023.
FOR FURTHER INFORMATION CONTACT: Ed Bender, U.S. Small Business
Administration, Office of General Counsel, 409 Third Street SW,
Washington, DC 20416; (202) 205-6455; <a href="/cdn-cgi/l/email-protection#7a3f1e170f141e54181f141e1f083a09181b541d150c"><span class="__cf_email__" data-cfemail="25604148504b410b47404b414057655647440b424a53">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION: On November 29, 2022, SBA amended its
regulations to establish a certification program for Veteran-Owned
Small Businesses (VOSB) and Service-Disabled Veteran-Owned Small
Businesses (SDVOSB) to implement section 862 of the National Defense
Authorization Act for Fiscal Year 2021, Public Law 116-283, 128 Stat.
3292 (January 1, 2021). 87 FR 73400. This document is making the
following corrections to the final regulations:
In the final rule at Sec. 128.102, SBA incorrectly defined
``Applicant'' and ``Service-disabled veteran.'' The definition of
``Applicant'' is revised to reference Veteran Small Business
Certification Program (VetCert) instead of the SBA's self-certification
program and removes ``or a valid disability determination from the
Department of Defense'' as proof of service-disabled veteran status
from the definition of ``Service-disabled veteran.'' By law, SBA is
required to verify the status of a veteran or service-disabled veteran
with the Department of Veteran Affairs and cannot accept documentation
from the Department of Defense as evidence of service-disabled veteran
status.
The final rule at Sec. 128.302(c) establishes that SBA may request
additional documentation at any time during the eligibility
determination process and that an applicant's failure to respond is
grounds for denial. If SBA requests additional documentation which the
applicant fails to submit in a timely manner or the information is
incomplete, that applicant has not met its burden of proof. SBA
inadvertently omitted the process by which SBA may deny certification.
In such cases, SBA may make an adverse inference that missing
information would result in a finding of ineligibility and may deny
certification. While adverse inference is currently used by VetCert and
SBA's other contracting certification programs, the final rule failed
to adequately describe the process in Sec. 128.302(c).
SBA amends Sec. 128.401(a) to clarify that a firm must be
certified at the time of offer on a VOSB or SDVOSB contract. SBA also
corrects internal citations in the joint venture regulations at Sec.
128.402 including paragraph (c)(7); paragraph (e)(2)(i)(B); paragraph
(i)(2); and paragraph (j)(1), (2), and (3). SBA also revises Sec.
128.402(d)(2) to correct a formatting issue with the word
``prot[eacute]g[eacute].''
The final rule also amended part 134, subpart J, so that all VOSB
and SDVOSB status protests are heard by SBA's Office of Hearing and
Appeals (OHA). This correction makes several revisions to subpart J.
First, Sec. 134.1005(a)(2) failed to include a sentence which
addresses specificity requirements that is included in other SBA
contracting programs and previously used by SBA's SDVOSB self-
certification program in part 125. This rule adds back that omitted
sentence to Sec. 134.1005(a)(2). Second, the final rule inadvertently
retained language from previous versions of Sec. 134.1007(j)(1) and
(2). SBA corrects Sec. 134.1007(j)(1) to remove references to the
outdated process for VOSB and SDVOSB status protests. SBA also amends
the effects of a decision in Sec. 134.1007(j)(2) because the final
rule included the previous approach used for OHA appeals of VA
contracts. This approach is contrary to SBA's other contracting
programs and inconsistent with SBA's intent for VetCert status protest.
Accordingly, Sec. 134.1007(j)(2) is amended so that, when an
ineligible firm has been awarded a contract, the agency shall terminate
the contract unless the contracting officer has made a written
determination that termination is not in the best interests of the
Government.
List of Subjects
13 CFR Part 128
Government contracts, Government procurement, Reporting and
recordkeeping requirements, Small businesses, Technical assistance,
Veterans.
13 CFR Part 134
Administrative practice and procedure.
Accordingly, 13 CFR parts 128 and 134 are corrected by making the
following correcting amendments:
PART 128--VETERAN SMALL BUSINESS CERTIFICATION PROGRAM
0
1. The authority citation for part 128 continues to read as follows:
Authority: 15 U.S.C. 632(q), 634(b)(6), 644, 645, 657f, 657f-1.
0
2. Amend Sec. 128.102 by revising the definitions of ``Applicant'' and
``Service-disabled veteran'' to read as follows:
Sec. 128.102 What definitions are important in the Veteran Small
Business Certification Program?
Applicant means a firm applying for certification in the Veteran
Small Business Certification Program.
* * * * *
Service-disabled veteran means a veteran who is registered in the
Beneficiary Identification and Records Locator Subsystem or successor
system, maintained by Department of Veterans Affairs' Veterans Benefits
Administration as a service-disabled veteran.
* * * * *
0
3. Amend Sec. 128.302 by adding a sentence to the end of paragraph (c)
to read as follows:
Sec. 128.302 How does SBA process applications for certification?
* * * * *
(c) * * * If an Applicant does not provide requested information
within the allotted time provided by SBA, or if it submits incomplete
information, SBA may draw an adverse inference and presume that the
information that the Applicant failed to provide would
[[Page 42593]]
demonstrate ineligibility and deny certification on this basis.
* * * * *
0
4. Amend Sec. 128.401 by revising paragraph (a) to read as follows:
Sec. 128.401 What requirements must a VOSB or SDVOSB meet to submit
an offer on a contract?
(a) Certification requirement. Only certified VOSBs and SDVOSBs are
eligible to submit an offer on a specific VOSB or SDVOSB requirement.
The concern must qualify as a small business concern under the size
standard corresponding to the NAICS code assigned to the contract and
be a certified VOSB or SDVOSB at the time of initial offer or response
which includes price. Any small business concern that submits a
complete certification application with to SBA on or before December
31, 2023, shall be eligible to self-certify for SDVOSB sole source or
set-aside contracts (other than VA contracts) until SBA declines or
approves the concern's application. Any small business concern that
does not submit to SBA a complete SDVOSB certification application to
SBA on or before December 31, 2023, will no longer be eligible to self-
certify for SDVOSB sole source or set-aside contracts effective January
1, 2024.
* * * * *
0
5. Amend Sec. 128.402 by revising the first sentence of paragraph
(c)(7), the introductory text of paragraph (d)(2), and paragraphs
(e)(2)(i)(B), (i)(2), and (j)(1) through (3) to read as follows:
Sec. 128.402 When may a joint venture submit an offer on a VOSB or
SDVOSB contract?
* * * * *
(c) * * *
(7) Specifying the responsibilities of the parties with regard to
negotiation of the contract, source of labor, and contract performance,
including ways that the parties to the joint venture will ensure that
the joint venture and the certified VOSB or SDVOSB partner(s) to the
joint venture will meet the limitations on subcontracting requirements
set forth in paragraph (d) of this section, where practical. * * *
* * * * *
(d) * * *
(2) The certified VOSB or SDVOSB partner(s) to the joint venture
must perform at least 40% of the work performed by the joint venture,
except that in the context of a joint venture between a
prot[eacute]g[eacute] VOSB or SDVOSB and its SBA-approved mentor the
VOSB or SDVOSB prot[eacute]g[eacute] must individually perform at least
40% of the work performed by the joint venture.
* * * * *
(e) * * *
(2) * * *
(i) * * *
(B) The parties will perform the contract in compliance with the
joint venture agreement and with the limitations on subcontracting
requirements set forth in paragraph (d) of this section.
* * * * *
(i) * * *
(2) At the completion of every VOSB or SDVOSB contract awarded to a
joint venture, the certified VOSB or SDVOSB partner to the joint
venture must submit a report to the relevant contracting officer and to
SBA, signed by an authorized official of each partner to the joint
venture, explaining how and certifying that the performance of work
requirements were met for the contract, and further certifying that the
contract was performed in accordance with the provisions of the joint
venture agreement that are required under paragraph (c) of this
section.
* * * * *
(j) * * *
(1) Failure to enter a joint venture agreement that complies with
paragraph (c) of this section;
(2) Failure to perform a contract in accordance with the joint
venture agreement or limitations on subcontracting requirements in
paragraph (d) of this section; or
(3) Failure to submit the certification required by paragraph (e)
of this section or comply with paragraph (h) of this section.
PART 134--RULES OF PROCEDURE GOVERNING CASES BEFORE THE OFFICE OF
HEARINGS AND APPEALS
0
6. The authority citation for part 134 is revised to read as follows:
Authority: 5 U.S.C. 504; 15 U.S.C. 632, 634(b)(6), 634(i),
637(a), 648(l), 656(i), 657t and 687(c); E.O. 12549, 51 FR 6370, 3
CFR, 1986 Comp., p. 189.
Subpart J issued under 15 U.S.C. 657f.
Subpart K issued under 15 U.S.C. 657f.
Subpart L issued under 15 U.S.C. 636(a)(36); Pub. L. 116-136,
134 Stat. 281; Pub. L. 116-139, 134 Stat. 620; Pub. L. 116-142, 134
Stat. 641; and Pub. L. 116-147, 134 Stat. 660.
Subpart M issued under 15 U.S.C. 657a; Pub. L. 117-81, 135 Stat.
1541.
0
7. Amend Sec. 134.1005 in paragraph (a)(2) by removing the semicolon
and adding a period in its place and by adding a sentence at the end to
read as follows:
Sec. 134.1005 Contents of the VOSB or SDVOSB status protest.
(a) * * *
(2) * * * A protest merely asserting that the protested concern is
not an eligible VOSB or SDVOSB, without setting forth specific facts or
allegations, is insufficient;
* * * * *
0
8. Amend Sec. 134.1007 by revising paragraphs (j)(1) and (2) to read
as follows:
Sec. 134.1007 Processing a VOSB or SDVOSB status protest.
* * * * *
(j) * * *
(1) A contracting officer may award a contract to a protested
concern after the Judge has determined either that the protested
concern is eligible for inclusion in SBA's certification database or
has dismissed all protests against it.
(2) A contracting officer shall not award a contract to a protested
concern that the Judge has determined is not an eligible VOSB or
SDVOSB. If the contract has already been awarded, the contracting
officer shall terminate the contract, unless the contracting officer
has made a written determination that termination is not in the best
interests of the Government. However, the contracting officer shall not
exercise any options or award further task or delivery orders.
* * * * *
Larry Stubblefield,
Deputy Associate Administrator, Government Contracting and Business
Development.
[FR Doc. 2023-13439 Filed 6-30-23; 8:45 am]
BILLING CODE 8026-09-P
</pre><script data-cfasync="false" src="/cdn-cgi/scripts/5c5dd728/cloudflare-static/email-decode.min.js"></script></body>
</html>Indexed from Federal Register on July 3, 2023.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.