Rule2024-28200
Women-Owned Small Business Federal Contract Program Updates and Clarifications
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
December 4, 2024
Effective
January 3, 2025
Issuing agencies
Small Business Administration
Abstract
This final rule makes several changes to the Small Business Administration (SBA or Agency) Women-Owned Small Business (WOSB) Federal Contract Program regulations, including adding definitions that are not currently included in the regulations and conforming the regulations to current statutes that have not yet been integrated. The rule also adopts similar language to that used in SBA's other government contracting program regulations regarding requirements for the qualifying individual's control of an applicant concern and limits on outside employment and makes changes to the process by which an application for certification is reviewed by SBA in order to implement a statutory amendment from the National Defense Authorization Act for Fiscal Year 2022 regarding the effects of a status determination on a small business concern.
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[Federal Register Volume 89, Number 233 (Wednesday, December 4, 2024)]
[Rules and Regulations]
[Pages 96089-96095]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-28200]
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Rules and Regulations
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
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Federal Register / Vol. 89, No. 233 / Wednesday, December 4, 2024 /
Rules and Regulations
[[Page 96089]]
SMALL BUSINESS ADMINISTRATION
13 CFR Parts 124, 126, 127, 128, and 134
RIN 3245-AI04
Women-Owned Small Business Federal Contract Program Updates and
Clarifications
AGENCY: U.S. Small Business Administration.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This final rule makes several changes to the Small Business
Administration (SBA or Agency) Women-Owned Small Business (WOSB)
Federal Contract Program regulations, including adding definitions that
are not currently included in the regulations and conforming the
regulations to current statutes that have not yet been integrated. The
rule also adopts similar language to that used in SBA's other
government contracting program regulations regarding requirements for
the qualifying individual's control of an applicant concern and limits
on outside employment and makes changes to the process by which an
application for certification is reviewed by SBA in order to implement
a statutory amendment from the National Defense Authorization Act for
Fiscal Year 2022 regarding the effects of a status determination on a
small business concern.
DATES: This rule is effective January 3, 2025. It applies to all
solicitations issued on or after that date.
FOR FURTHER INFORMATION CONTACT: Harry T. Alexander Jr., U.S. Small
Business Administration, Office of Contracting Assistance, 409 Third
Street SW, Washington, DC 20416; (202) 619-0314,
<a href="/cdn-cgi/l/email-protection#bcd4ddcecec592ddd0d9c4ddd2d8d9ced6cefccfdedd92dbd3ca"><span class="__cf_email__" data-cfemail="630b0211111a4d020f061b020d0706110911231001024d040c15">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION: On May 16, 2024, SBA published a proposed
rule in the Federal Register to change the process by which an
application for certification is reviewed by SBA. SBA proposed this
change in order to implement a statutory amendment from the National
Defense Authorization Act for Fiscal Year 2022 (Pub. L. 117-81)
regarding the effects of a status determination on a small business
concern. SBA also proposed to replace outdated references to the U.S.
Department of Veterans Affairs Center for Verification and Evaluation
with references to SBA's Veteran Small Business Certification (VetCert)
Program, add definitions of terms used in the Women-Owned Small
Business (WOSB) regulations, provide consistency across the regulations
used in SBA's other government contracting programs, and define who is
authorized to represent a firm when validating or signing certification
pages during the certification process.
During the rule's 60-day comment period, SBA timely received
comments from two commenters, with one commenter expressing full
support for the proposed rule. The other commenter expressed general
support for the substantive changes proposed by SBA, noting that the
rule is ``generally well-conceived and addresses the concerns of the
industry,'' and appreciated SBA's efforts to standardize the
requirements of the government contracting programs.
Section-by-Section Analysis and Response to Comments
Sections 124.106(a), 127.202(c), and 128.203(i)
Sections 124.106(a), 127.202(c), and 128.203(i) address limitations
on outside employment that can affect a business concern's eligibility
for participation in the 8(a) Business Development (BD), WOSB, and
VetCert programs, respectively, based on a qualifying individual's lack
of control. Each of these provisions generally requires the qualifying
individual to devote full time or the number of hours of normal
operation to the business. Each also requires the business concern to
demonstrate how a qualifying individual controls the day-to-day
operations of the business concern, particularly if the qualifying
individual devotes fewer hours to the business than its normal hours of
operation. The language of the three provisions, however, is not
identical. These discrepancies led to questions as to whether SBA
intended different application of the control requirements for
different programs. Current Sec. 127.202 generally requires that a
woman devote sufficient time to the business with a rebuttable
presumption that the business does not qualify for WOSB if a woman
devotes fewer hours to the business than its normal hours of operation.
Where the presumption applies, the woman must provide evidence to SBA
that she has ultimate managerial and supervisory control over both the
long-term decision making and day-to-day management and administration
of the business. This final rule aligns the language of this section to
the current restriction in the VetCert Program. The business will still
be generally required to have the qualified woman that controls the
concern devote full time to the business during the business's normal
hours of operation. The business may, however, demonstrate to SBA that
the woman has ultimate managerial and supervisory control over both the
long-term decision making and day-to-day management of the business
although the woman may not meet full-time devotion.
One commenter expressed support for this change but identified
minor inconsistencies remaining between the rule as proposed and
Sec. Sec. 124.106(a)(4) and 128.203(i). The commenter suggested SBA
revise the rule to fully conform these sections. SBA has made minor
wording changes to Sec. 127.202 to conform that language to the
language regarding outside employment contained in Sec. 124.106(a) for
the 8(a) BD program and Sec. 128.203(i) for the VetCert program. The
commenter additionally noted that the proposed rule does not clarify
whether WOSB allows for exceptions to the control requirements in
``extraordinary circumstances'' as the VetCert regulations provide. SBA
agrees that the ``extraordinary circumstances'' provisions should
equally apply in the WOSB program and has proposed to incorporate them
into the WOSB regulations in a separate rulemaking. See 89 FR 68274,
68316 (Aug. 23, 2024).
Sections 127.102, 126.103, 128.500, and 134.1002
Section 127.102 sets out the definitions for the WOSB Program. SBA
proposed to add a definition for the term ``Applicant,'' as a
definition was not included in the previous version of the regulations
and appears in the regulations of SBA's other government
[[Page 96090]]
contracting programs. SBA believes that including this definition will
provide consistency in the rules that apply to its various
certification programs and make clear that a concern applying for
certification in the WOSB Program is an ``Applicant.'' SBA received no
comments to this provision and adopts it as final in this rule.
SBA also proposed to amend the current definition of the term
``System for Award Management (SAM) (or any successor system).'' SBA
believes that the definition is outdated and should match the
definition that is used in the FAR for consistency purposes. SBA
received no comments to this provision and adopts it as final.
The proposed rule also removed the definition for ``WOSB Program
Repository'' as this definition refers to the old repository system
that is no longer in use. SBA believes that removing this definition,
which is not used elsewhere in 13 CFR part 127, will alleviate any
confusion.
Lastly, the proposed rule amended the definition of ``Interested
party,'' limiting it to certified WOSB concerns or concerns that have a
pending application for WOSB certification, either at SBA or a third-
party certifier, and that submit an offer for a specific Economically
Disadvantaged Women-Owned Small Business (EDWOSB) or WOSB requirement,
rather than any concern that submits an offer for a specific EDWOSB or
WOSB requirement. SBA believes that only certified WOSBs and EDWOSBs or
concerns pending WOSB certification should be able to submit a protest
against an apparent successful offeror's EDWOSB or WOSB status since
only those firms can themselves be eligible for award and truly have an
economic interest in the award. It is not uncommon for an incumbent
contractor to file a bid or size/status protest in order for its
performance to be extended pending the resolution of the protest. SBA
does not want to encourage firms that are not certified WOSBs or
certified EDWOSBs to submit offers merely to be able to file a status
protest that could prolong their performance under a preceding
contract. Such firms have no chance to be awarded a WOSB/EDWOSB
contract, and such protests may be nothing more than delay tactics.
Only firms that are capable of winning the WOSB set-aside contract or
order should be able to protest the WOSB status of an apparent
successful offeror. Furthermore, in Fiscal Year 2024, only one of the
twelve protests received by the WOSB program office would have been
impacted by this change in the definition of ``interested party.''
Thus, this change would have an insignificant impact on the number of
status protests that would have been reviewed. Status protests for the
VetCert program are heard by SBA's Office of Hearings and Appeals
(OHA). The expected impact on firms able to submit a VetCert status
protest would be similarly insignificant by this change in the
definition of ``interested party.''
One commenter expressed support for this change, and suggested SBA
similarly update the 8(a) BD Program, Historically Underutilized
Business Zone (HUBZone) Program, and VetCert Program regulations. SBA
first notes that it does not allow status protests in connection with
the award of 8(a) contracts. Second, SBA proposed to similarly change
the definition of interested party for the HUBZone program in a
separate rulemaking. See 89 FR 68274, 68307. SBA received two positive
comments and no negative comments about this proposed change for the
HUBZone program. SBA agrees with the commenter that similar treatment
should be afforded to the HUBZone program and VetCert program and,
thus, has adopted this comment and amended Sec. Sec. 126.103 and
128.500 in this final rule.
In addition to the changes made to Sec. Sec. 126.103, 127.102, and
128.500, the definition for ``interested party'' must also be updated
in OHA's regulations as OHA has jurisdiction over VetCert status
protests and who may file a Veteran-Owned Small Business Concern (VOSB)
or Service-Disabled Veteran-Owned Small Business Concern (SDVOSB)
status protest. As such, SBA also amends Sec. 134.1002(b) in this
final rule for uniformity purposes and to dispel confusion about the
appropriate definition.
Section 127.300
The proposed rule amended the outdated references in Sec. Sec.
127.300(a)(2) and (b)(3) to certifications made by the U.S. Department
of Veterans Affairs (VA) Center for Verification and Evaluation.
Instead, the proposed rule referred to SBA's Veteran Small Business
Certification Program. SBA believes this change will resolve any
confusion caused by reference to the VA's Verification Program, which
no longer certifies veteran-owned or service-disabled veteran-owned
small business concerns following its transfer to SBA pursuant to
section 862 of the National Defense Authorization Act for Fiscal Year
2021 (Pub. L. 116-283).
The proposed rule also amended Sec. 127.300(c) by referring to
SAM, in addition to the Dynamic Small Business Search (DSBS) system.
This change recognizes that a concern that is a qualified WOSB or
EDWOSB will be designated as such in both SAM and the DSBS system.
SBA did not receive any comments on either of these provisions and
adopts them as final in this rule.
Section 127.303
SBA proposed to add a new paragraph and reorganize Sec.
127.303(a)(1) to provide that a concern certified as a veteran-owned or
service-disabled veteran-owned small business for the VetCert Program
and owned and controlled by one or more women may use documentation of
its VOSB or SDVOSB certification or more recent recertification in
support of its application for WOSB certification. The proposed rule
further provided that if the concern is also seeking EDWOSB
certification, it must submit documentation that demonstrates it is
owned and controlled by one or more women who are economically
disadvantaged in accordance with Sec. 127.203. This change recognizes
a concern's ability to use documentation from SBA's other certification
program in support of its application for WOSB certification. One
commenter expressed specific support for this change. With no
objections to this change, it is adopted as final in this rule.
Section 127.305
The proposed rule incorporated the same language used in Sec.
124.207 for purposes of applying to the 8(a) BD Program. Section
124.207 provides that a concern that has applied to the 8(a) BD program
and has been declined three times within 18 months of the date of the
first final Agency decision finding the concern ineligible cannot
submit a new application for admission to the program until 12 months
from the date of the third final Agency decision to decline. SBA
proposed this change to the WOSB program to provide consistency among
its various certification programs. One commenter supported this
change, and suggested SBA similarly conform the VOSB regulation at
Sec. 128.305. In a separate rulemaking after this proposed rule, SBA
proposed to eliminate the language in Sec. 124.207 that a concern must
wait 12 months to reapply to the 8(a) BD program where it has been
declined three times within 18 months. See 89 FR 68274, 68280. SBA
noted that it believed such a provision was unnecessary and should not
seek to thwart firms that have made legitimate attempts to overcome
deficiencies from reapplying to the 8(a) BD program. Because the
proposed change to the
[[Page 96091]]
WOSB program to incorporate the 12-month waiting period was intended to
promote consistency in SBA's certification programs and SBA has now
proposed to eliminate the similar provision in the 8(a) BD regulations,
SBA does not finalize the proposed language to Sec. 127.305 in this
rule.
Section 127.356(c)
SBA proposed to revise Sec. 127.356(c) to provide consistency
between Sec. 127.356(c) and Sec. 127.356(a) and (b). Currently, Sec.
127.356(c) states that an approved third-party certifier must ensure
that all of a concern's documents are uploaded in <a href="https://certify.sba.gov">https://certify.sba.gov</a> or any successor system. SBA believes that is
inconsistent with SBA's intent that it is the responsibility of the
concern, not the SBA-approved third-party certifier, to ensure that all
its documents are uploaded. Paragraphs 127.356(a) and (b) require the
applicant concern to apply directly with a third-party certifier and
register in SAM. Consistent with paragraphs (a) and (b), SBA believes
that it is the responsibility of the applicant concern, and not the
third-party certifier, to ensure that all documents necessary to
determine its eligibility for certification by an approved certifier
are uploaded with its application. SBA believes this uniformity within
the section will lead to less confusion about whose duty it is to make
sure documents have been made available to SBA when a third-party
certifier is involved. Furthermore, a system has not yet been put in
place for a third-party certifier to upload the documents on behalf of
the concern. One commenter expressed support for this clarification. As
such, the final rule adopts the change as proposed.
Section 127.504(a)
Section 127.504 permits a concern that has submitted a complete
application for WOSB or EDWOSB certification to SBA or a third-party
certifier and has not received a negative determination regarding that
application to submit an offer for a competitive WOSB or EDWOSB award.
The proposed rule sought to define ``pending application,'' as this
term is not currently defined in Sec. 127.504 or elsewhere in the WOSB
regulations. SBA believes providing this definition will lead to less
confusion amongst concerns and contracting officers who have been
unsure when an application is pending and believed an application to be
pending at the point of application. This change will support the
acquisition process for WOSB and EDWOSB set-asides.
One commenter agreed with this addition but suggested that the rule
also define when an application may be considered ``complete.'' The
commenter suggested SBA define applications as ``complete'' once the
applicant provides initial submissions of all required materials. SBA
does not believe that is necessary. The only time a ``complete''
application is relevant is in determining whether all necessary
documents have been provided to SBA to enable SBA to evaluate whether
an applicant is eligible for the program. Current Sec. 127.304(a)
provides that SBA will advise each applicant within 15 calendar days
after the receipt of an application whether the application is complete
and suitable for evaluation. Whether an application is complete depends
upon various factors. An exhaustive definition of ``complete''
application would not be simple and would introduce unnecessary
complexity to the regulations. Different documents are required
depending on the business structure of the applicant (e.g., whether an
applicant is a corporation or partnership), whether it is seeking
EDWOSB or merely WOSB certification, or whether it has received another
SBA certification. Although SBA could add a definition saying that a
complete application is one where all required documents have been
submitted, SBA does not believe that adds any meaningful substance to
the current regulation. As such, SBA does not adopt this
recommendation, but rather adopts the proposed language as final in
this rule.
Section 127.604(f)(5)
SBA proposed to add language describing the effects of a status
determination on a concern and the obligation of a concern to update
the System for Award Management (or any successor system) within two
business days of a final determination. This change implements section
863 of the National Defense Authorization Act of Fiscal Year 2022 (Pub.
L. 117-81), which amended section 5(i) of the Small Business Act (15
U.S.C. 634(i)), to provide such language in the status determination of
a concern.
One commenter expressed support for this addition and suggested SBA
similarly revise Sec. 128.500(d). The proposed additions to Sec.
127.604(f)(5) are currently contained in Sec. 128.500(d), except for
new Sec. 127.604(f)(5)(iii). SBA adds similar language to that
contained in Sec. 127.604(f)(5)(iii) to a new paragraph Sec.
128.500(d)(3) for consistency purposes in this final rule.
Section 127.701
SBA proposed to remove this section entirely as it contains
outdated language regarding the previous WOSB program and system
whereby a concern certified its WOSB or EDWOSB status on SAM in
relation with specific eligibility requirements. This section, in its
entirety, is no longer necessary, as Sec. 127.304(f) and other WOSB
program regulations specify that SBA will update DSBS and SAM to
indicate that a concern has been certified by SBA as a WOSB and/or
EDWOSB. One commenter expressed support for this overall deletion. The
final rule accordingly deletes this section.
Compliance With Executive Orders 12866, 12988, 13132, 13563, and the
Paperwork Reduction Act (44 U.S.C. Ch. 35), the Regulatory Flexibility
Act (5 U.S.C. 601-612), and the Congressional Review Act (5 U.S.C. 801-
808)
Executive Orders 12866, 13563, and 14094
Executive Order 12866, Regulatory Planning and Review, Modernizing
Regulatory Review, requires agencies to provide a Regulatory Impact
Analysis assessing costs and benefits and addressing available
alternatives for any ``significant regulatory action'' as defined in
Executive Order 14094, Modernizing Regulatory Review. The Office of
Management and Budget has determined that this final rule is not a
``significant regulatory action'' under Executive Order 12866.
Executive Order 13563, Improving Regulation and Regulatory Review,
reaffirms the principles of Executive Order 12866 and requires agencies
to adopt regulations through a process that involves public
participation and, to the extent feasible, base regulations on the open
exchange of information and perspectives from affected stakeholders and
the public as a whole. SBA has developed this rule in a manner
consistent with these requirements. Executive Order 13563 also requires
agencies to assess the benefits and costs of any regulations and
address available alternatives to direct regulation. This rule amends
the WOSB regulations to provide uniformity amongst SBA's government
contracting programs and clarifies certain regulations that have been
misunderstood by concerns and contract officers. As such, the rule has
no effect on the amount or dollar value of any Federal contract
requirements or of any financial assistance provided through SBA.
Therefore, the rule is not likely to have an annual economic effect of
$200 million or more, result in a
[[Page 96092]]
major increase in costs or prices, or have a significant adverse effect
on competition or the United States economy. In addition, this rule
does not create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency, materially alter the
budgetary impact of entitlements, grants, user fees, loan programs, or
the rights and obligations of such recipients, nor raise novel legal or
policy issues arising out of legal mandates, the President's
priorities, or the principles set forth in the Executive order.
Executive Order 12988
This action meets the standards set forth in sections 3(a) and
3(b)(2) of Executive Order 12988, Civil Justice Reform. SBA has taken
the necessary steps to minimize litigation, eliminate drafting errors
and ambiguity, reduce burden, and provide a clear legal standard for
affected conduct. The action does not have preemptive or retroactive
effect.
Executive Order 13132
This action does not have federalism implications as defined in
Executive Order 13132, Federalism. The action would not have
substantial direct effects on the states, on the relationship between
the national government and the states, or on the distribution of power
and responsibilities among the various levels of government. Therefore,
this action does not warrant the preparation of a Federalism
Assessment.
Paperwork Reduction Act
The SBA has determined that this final rule does not impose
additional reporting or recordkeeping requirements under the Paperwork
Reduction Act, 44 U.S.C. chapter 35.
Regulatory Flexibility Act
When an agency issues a rulemaking proposal, the Regulatory
Flexibility Act (RFA) requires the agency to ``prepare and make
available for public comment an initial regulatory flexibility
analysis'' which will ``describe the impact of the proposed rule on
small entities.'' (5 U.S.C. 603(a)). Section 605 of the RFA allows an
agency to certify a rule, in lieu of preparing an analysis, if the
proposed rulemaking is not expected to have a significant economic
impact on a substantial number of small entities.
This final rule may affect all WOSBs, HUBZone concerns, 8(a)
concerns, and VOSB/SDVOSBs, of which there are currently 13,289, 4,015,
5,679, and 32,729, respectively, according to the Dynamic Small
Business Search as of November 2024. All WOSBs, HUBZone concerns, 8(a)
concerns, and VOSB/SDVOSBs are small entities. Given that this is a
large portion of the SBA's contracting program portfolio, the SBA has
determined that this proposed rule will have an impact on a substantial
number of small entities.
However, SBA has determined that the impact on entities affected by
the final rule will not be significant, because this rule does not
increase the burden on small entities and instead is intended to
clarify and provide consistency and uniformity to existing regulations.
As consistency and uniformity are difficult items to measure and there
is not a dataset available, this determination has been assessed
qualitatively. The effect of the final rule will be to adopt similar
language across SBA's government contracting programs regarding
requirements for the qualifying individual's control of an applicant
concern and limits on outside employment. In addition, this final rule
will provide consistency within the WOSB regulations by clarifying
definitions and by incorporating a statutory amendment from the
National Defense Authorization Act for FY 2022. SBA expects the
economic impact of the final rule will be negligible. SBA asserts that
the economic impact, if any, will be minimal and beneficial to WOSBs,
HUBZone concerns, 8(a), and VOSB/SDVOSBs due to conformity across the
programs that will assist in limiting confusion for applicants.
SBA invited comments on whether this rule would have a significant
impact on a substantial number of small entities in the proposed rule
but received none. Accordingly, the Administrator of the SBA hereby
certifies that this rule will not have a significant economic impact on
a substantial number of small entities.
Congressional Review Act
This rule has been determined not to meet the criteria set forth in
5 U.S.C. 804(2). SBA will submit the rule to Congress and the
Government Accountability Office consistent with the Congressional
Review Act's requirements.
List of Subjects
13 CFR Part 124
Administrative practice and procedure, Government procurement,
Government property, Small businesses.
13 CFR Part 126
Administrative practice and procedure, Government procurement,
Penalties, Reporting and recordkeeping requirements, Small businesses.
13 CFR Part 127
Government contracts, Government employees, Reporting and
recordkeeping requirements, Small businesses, Women.
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, Claims, Confidential
business information, Equal access to justice, Equal employment
opportunity, Lawyers, Organization and function (Government agencies).
Accordingly, for the reasons stated in the preamble, SBA amends 13
CFR parts 124, 126, 127, 128, and 134 as follows:
PART 124--8(A) BUSINESS DEVELOPMENT/SMALL DISADVANTAGED BUSINESS
STATUS DETERMINATIONS
0
1. The authority citation for part 124 continues to read as follows:
Authority: 15 U.S.C. 634(b)(6), 636(j), 637(a), 637(d), 644, 42
U.S.C. 9815; and Pub. L. 99-661, 100 Stat. 3816; Sec. 1207, Pub. L.
100-656, 102 Stat. 3853; Pub. L. 101-37, 103 Stat. 70; Pub. L. 101-
574, 104 Stat. 2814; Sec. 8021, Pub. L. 108-87, 117 Stat. 1054; and
Sec. 330, Pub. L. 116-260.
0
2. Amend Sec. 124.106 by:
0
a. Revising paragraphs (a)(3) and (4);
0
b. Redesignating paragraph (a)(5) as paragraph (a)(6); and
0
c. Adding a new paragraph (a)(5).
The revisions and addition read as follows:
Sec. 124.106 When do disadvantaged individuals control an applicant
or Participant?
* * * * *
(a) * * *
(3) One or more disadvantaged individuals who manage the applicant
or Participant generally must devote full-time to the business concern
during its normal hours of operations. The disadvantaged individual who
holds the highest officer position of the business concern may not
engage in outside employment that prevents the disadvantaged individual
from devoting the time and attention to the concern necessary to
control its management and daily business operations.
(4) Where a disadvantaged individual claiming to control a business
concern devotes fewer hours to the business than its normal hours of
operation, SBA will assume that the disadvantaged
[[Page 96093]]
individual does not control the business concern, unless the concern
demonstrates that the disadvantaged individual has ultimate managerial
and supervisory control over both the long-term decision making and
day-to-day management of the business.
(5) Any disadvantaged individual who seeks to engage in outside
employment after certification must notify SBA of the nature and
anticipated duration of the outside employment and demonstrate to SBA
that the outside employment will not prevent the disadvantaged
individual from controlling the business concern.
* * * * *
PART 126--HUBZONE PROGRAM
0
3. The authority citation for part 126 continues to read as follow:
Authority: 15 U.S.C. 632(a), 632(j), 632(p), 644 and 657a.
0
4. Amend Sec. 126.103 by revising the definition of ``Interested
party'' to read as follows:
Sec. 126.103 What definitions are important in the HUBZone program?
* * * * *
Interested party means any certified HUBZone small business concern
that submits an offer for a specific HUBZone set-aside contract
(including a multiple award contract) or order, any concern that
submitted an offer in full and open competition and its opportunity for
award will be affected by a price evaluation preference given to a
certified HUBZone small business concern or by a reserve of an award
given to a certified HUBZone small business concern, the contracting
activity's contracting officer, or SBA.
* * * * *
PART 127--WOMEN OWNED SMALL BUSINESS FEDERAL CONTRACT PROGRAM
0
5. The authority citation for part 127 continues to read as follows:
Authority: 15 U.S.C. 632, 634(b)(6), 637(m), 644 and 657r.
0
6. Amend Sec. 127.102 by:
0
a. Adding a definition for ``Applicant'' in alphabetical order;
0
b. Revising the definitions of ``Interested party'' and ``System for
Award Management (SAM) (or any successor system)''; and
0
c. Removing the definition of ``WOSB Program Repository''.
The addition and revisions read as follows:
Sec. 127.102 What are the definitions of the terms used in this part?
* * * * *
Applicant means a firm applying for certification in the WOSB
Certification Program.
* * * * *
Interested party means a concern certified as, or pending
certification as, a WOSB or EDWOSB that submits an offer for a specific
EDWOSB or WOSB contract (including Multiple Award Contracts) or order,
or SBA.
* * * * *
System for Award Management (SAM) (or any successor system) means
the primary Government repository for prospective Federal awardee and
Federal awardee information and the centralized Government system for
certain contracting, grants, and other assistance-related processes. It
includes--
(1) Data collected from prospective Federal Awardees required for
the conduct of business with the Government;
(2) Prospective contractor-submitted annual representations and
certifications in accordance with FAR subpart 4.12 (48 CFR subpart
4.12); and
(3) Identification of those parties excluded from receiving Federal
Contracts, certain subcontracts, and certain types of Federal financial
and non-financial assistance and benefits.
* * * * *
0
7. Amend Sec. 127.202 by revising paragraph (c) to read as follows:
Sec. 127.202 What are the requirements for control of an EDWOSB or
WOSB?
* * * * *
(c) Limitation on outside employment. (1) A woman or economically
disadvantaged woman generally must devote full time to the business
concern during its normal hours of operations. The woman or
economically disadvantaged woman who holds the highest officer position
of the business concern may not engage in outside employment that
prevents her from devoting the time and attention to the business
concern necessary to control its management and daily operations.
(2) Where a woman or economically disadvantaged woman claiming to
control a business concern devotes fewer hours to the business than its
normal hours of operation, SBA will assume that she does not control
the business concern, unless the concern demonstrates that she has
ultimate managerial and supervisory control over both the long-term
decision making and day-to-day management of the business.
(3) Any qualifying woman or economically disadvantage woman who
seeks to engage in outside employment after certification must notify
SBA of the nature and anticipated duration of the outside employment
and demonstrate to SBA that the outside employment will not prevent her
from controlling the business concern.
* * * * *
0
8. Amend Sec. 127.300 by revising the section heading and paragraphs
(a)(2), (b)(3), and (c) to read as follows:
Sec. 127.300 How is a concern certified as an EDWOSB or WOSB?
(a) * * *
(2) A concern may submit evidence to SBA that it is a women-owned
and controlled small business that is an SBA-certified participant in
the Veteran Small Business Certification Program.
* * * * *
(b) * * *
(3) A concern may submit evidence to SBA that it is an economically
disadvantaged women-owned and controlled small business that is a
certified participant in the Veteran Small Business Certification
Program.
* * * * *
(c) If SBA determines that the concern is a qualified WOSB or
EDWOSB, it will issue a letter of certification and designate the
concern as a certified WOSB or EDWOSB on the Dynamic Small Business
Search (DSBS) system, SAM, or successor system.
0
9. Amend Sec. 127.303 by:
0
a. Redesignating paragraph (a)(1)(iii) as paragraph (a)(1)(iv);
0
b. Adding new paragraph (a)(1)(iii);
0
c. Removing paragraph (a)(2); and
0
d. Redesignating paragraph (a)(3) as paragraph (a)(2).
The addition reads as follows:
Sec. 127.303 What must a concern submit for certification?
(a) * * *
(1) * * *
(iii) A concern that is certified by SBA as a veteran-owned or
service-disabled veteran-owned small business for the Veteran Small
Business Certification Program and is owned and controlled by one or
more women may use documentation of its VOSB or SDVOSB certification or
most recent recertification in support of its application for WOSB
certification. If the concern is also seeking EDWOSB certification, the
concern must also submit documentation demonstrating that it is owned
and controlled by one or more women who are economically disadvantaged
in accordance with Sec. 127.203(b)(3).
* * * * *
0
10. Amend Sec. 127.304 by revising paragraph (a) to read as follows:
[[Page 96094]]
Sec. 127.304 How is an application for certification processed?
(a) The SBA's Director of Government Contracting (D/GC) or designee
is authorized to approve or decline applications for certification. SBA
must receive all required information and supporting documents before
it will begin processing a concern's application. SBA will not process
incomplete applications.
(1) SBA will advise each applicant after the receipt of an
application whether the application is complete and suitable for
evaluation and, if not, what additional information or clarification is
required to complete the application.
(2) SBA will make its determination within ninety (90) calendar
days after receipt of a complete package, whenever practicable.
* * * * *
0
11. Amend Sec. 127.356 by revising paragraph (c) to read as follows:
Sec. 127.356 How does a concern obtain certification from an approved
certifier?
* * * * *
(c) The concern must ensure that all documents necessary to
determine its eligibility for certification by an approved certifier
are uploaded in <a href="https://certify.sba.gov">https://certify.sba.gov</a> or any successor system.
0
12. Amend Sec. 127.504 by adding a sentence to the end of paragraph
(a) introductory text to read as follows:
Sec. 127.504 What requirements must an EDWOSB or WOSB meet to be
eligible for an EDWOSB or WOSB requirement?
(a) * * * An application is pending upon notification from SBA that
the application is deemed complete and has sufficient documentation for
full analysis.
* * * * *
0
13. Amend Sec. 127.604 by adding paragraph (f)(5) to read as follows:
Sec. 127.604 How will SBA process an EDWOSB or WOSB status protest?
* * * * *
(f) * * *
(5) Once a final determination has been made that a concern does
not meet the requirements of a WOSB or EDWOSB, the concern cannot self-
certify as a WOSB or EDWOSB, as applicable, for any WOSB or EDWOSB
contract. If a concern does so, it may be in violation of criminal
laws, including section 16(d) of the Small Business Act, 15 U.S.C.
645(d). If the concern has already certified itself as a WOSB or EDWOSB
on a pending procurement, the concern must immediately inform the
contracting officer for the procuring agency of its decertification.
(i) Not later than two days after the date on which a final
determination is made, such concern must update its WOSB/EDWOSB status
in the System for Award Management (or any successor system).
(ii) If a business concern fails to update its WOSB/EDWOSB status
in the System for Award Management (or any successor system) in
response to the final determination, SBA will make such update within
two business days of the concern's failure to do so.
(iii) A concern required to make an update in the System for Award
Management (or any successor system) shall notify a contracting officer
for each contract with respect to which such concern has an offer or
bid pending of the determination made, if the concern finds, in good
faith, that such determination affects the eligibility of the concern
to perform such contract.
Sec. 127.701 [Removed]
0
14. Remove Sec. 127.701.
PART 128--VETERAN SMALL BUSINESS CERTIFICATION PROGRAM
0
15. 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
16. Amend Sec. 128.203 by revising paragraph (i) to read as follows:
Sec. 128.203 Who does SBA consider to control a VOSB or SDVOSB?
* * * * *
(i) Limitation on outside employment. (1) A qualifying veteran
generally must devote full time to the business concern during its
normal hours of operations. The qualifying veteran who holds the
highest officer position of the business concern may not engage in
outside employment that prevents the qualifying veteran from devoting
the time and attention to the concern necessary to control its
management and daily business operations.
(2) Where a qualifying veteran claiming to control a business
concern devotes fewer hours to the business than its normal hours of
operation, SBA will assume that the qualifying veteran does not control
the business concern, unless the concern demonstrates that the
qualifying veteran has ultimate managerial and supervisory control over
both the long-term decision making and day-to-day management of the
business.
(3) Any qualifying veteran who seeks to engage in outside
employment after certification must notify SBA of the nature and
anticipated duration of the outside employment and demonstrate to SBA
that the outside employment will not prevent the qualifying veteran
from controlling the business concern.
* * * * *
0
17. Amend Sec. 128.500 by adding paragraphs (d)(3) and (e) to read as
follows:
Sec. 128.500 What are the requirements for filing a VOSB or SDVOSB
status protest?
* * * * *
(d) * * *
(3) A concern required to make an update in the System for Award
Management (or any successor system) shall notify a contracting officer
for each contract with respect to which such concern has an offer or
bid pending of the determination made, if the concern finds, in good
faith, that such determination affects the eligibility of the concern
to perform such contract.
(e) Only interested parties may protest the VOSB or SDVOSB status
of an apparent successful offeror for a VOSB or SDVOSB contract. An
interested party means any certified VOSB or SDVOSB that submits an
offer for a specific VOSB or SDVOSB set-aside contract (including a
multiple award contract) or order, or SBA.
PART 134--RULES OF PROCEDURE GOVERNING CASES BEFORE THE OFFICE OF
HEARINGS AND APPEALS
0
18. The authority citation for part 134 continues 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
19. Amend Sec. 134.1002 by revising paragraph (b) to read as follows:
Sec. 134.1002 Who may file a VOSB or SDVOSB status protest?
* * * * *
(b) For all other procurements, any interested party may protest
the apparent successful offeror's VOSB or SDVOSB status. An interested
party means the contracting officer, SBA, VA, or any certified VOSB or
SDVOSB that submits an offer for a specific set-aside
[[Page 96095]]
VOSB or SDVOSB contract (including Multiple Award Contracts) or order.
* * * * *
Isabella Casillas Guzman,
Administrator.
[FR Doc. 2024-28200 Filed 12-3-24; 8:45 am]
BILLING CODE 8026-09-P
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