[Federal Register Volume 76, Number 63 (Friday, April 1, 2011)]
[Rules and Regulations]
[Pages 18304-18322]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-7368]
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DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 2, 4, 6, 13, 14, 15, 18, 19, 26, 33, 36, 42, 52, and
53
[FAC 2005-51; FAR Case 2010-015; Item I; Docket 2010-0015, Sequence 1]
RIN 9000-AL97
Federal Acquisition Regulation; Women-Owned Small Business (WOSB)
Program
AGENCIES: Department of Defense (DoD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Interim rule.
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[[Page 18305]]
SUMMARY: DoD, GSA, and NASA are issuing an interim rule amending the
Federal Acquisition Regulation (FAR) to implement the Small Business
Administration's regulations establishing the Women-Owned Small
Business Program.
DATES: Effective Date: April 1, 2011.
Comment Date: Interested parties should submit written comments to
the Regulatory Secretariat on or before May 31, 2011 to be considered
in the formulation of a final rule.
ADDRESSES: Submit comments identified by FAC 2005-51, FAR Case 2010-
015, by any of the following methods:
Regulations.gov: http://www.regulations.gov. Submit
comments via the Federal eRulemaking portal by inputting ``FAR Case
2010-015'' under the heading ``Enter Keyword or ID'' and selecting
``Search.'' Select the link ``Submit a Comment'' that corresponds with
``FAR Case 2010-015.'' Follow the instructions provided at the ``Submit
a Comment'' screen. Please include your name, company name (if any),
and ``FAR Case 2010-015'' on your attached document.
Fax: (202) 501-4067.
Mail: General Services Administration, Regulatory
Secretariat (MVCB), ATTN: Hada Flowers, 1275 First Street, NE., 7th
Floor, Washington, DC 20417.
Instructions: Please submit comments only and cite FAC 2005-51, FAR
Case 2010-015, in all correspondence related to this case. All comments
received will be posted without change to http://www.regulations.gov,
including any personal and/or business confidential information
provided.
FOR FURTHER INFORMATION CONTACT: Mr. Karlos Morgan, Procurement
Analyst, at (202) 501-2364, for clarification of content. For
information pertaining to status or publication schedules, contact the
Regulatory Secretariat at (202) 501-4755. Please cite FAC 2005-51, FAR
Case 2010-015.
SUPPLEMENTARY INFORMATION:
I. Background
DoD, GSA, and NASA are issuing an interim rule amending the FAR, to
implement changes to the Small Business Administration (SBA)
regulations at 13 CFR part 127, entitled ``Women-Owned Small Business
Federal Contract Program'' and implements procedures that were
authorized by the Small Business Act (Pub. L. 85-536, as amended). The
Small Business Act assists in leveling the procurement playing field to
enable small business concerns, including women-owned small business
(WOSB) concerns and economically disadvantaged women-owned small
business (EDWOSB) concerns, to compete for Federal contracting
opportunities.
On December 21, 2000, Congress enacted the Small Business
Reauthorization Act of 2000 (``Act'') (Pub. L. 106-554). Section 811 of
Appendix I of the Act amended the Small Business Act to include section
8(m), which authorized the restriction of competition for Federal
contracts in certain industries to EDWOSB concerns or WOSB concerns
eligible under the WOSB Program. SBA published a final rule
implementing the program on October 7, 2010 (75 FR 62258), which became
effective February 4, 2011.
This interim rule provides the contracting community additional
resources to meet the Government's procurement needs. The addition of
FAR subpart 19.15 incorporates coverage of the Women-Owned Small
Business Program. The rule defines ``Women-Owned Small Business Program
(WOSB Program)'', ``women-owned small business (WOSB) concern eligible
under the WOSB Program'', and ``economically disadvantaged women-owned
small business (EDWOSB) concern''.
To qualify as a WOSB concern eligible under the WOSB
Program, the concern must be--
[cir] A small business as defined in 13 CFR part 121 in its
primary industry classification; and
[cir] Not less than 51 percent directly and unconditionally owned
by, and the management and daily operations controlled by, one or more
women who are citizens of the United States.
To qualify as an EDWOSB concern, the concern must be--
[cir] A small business as defined in 13 CFR part 121 in its
primary industry classification; and
[cir] Not less than 51 percent directly and unconditionally owned
by, and the management and daily operations controlled by, one or more
women who are citizens of the United States and who are economically
disadvantaged. A woman is economically disadvantaged if she can
demonstrate certain income, asset, and other limitations established in
SBA regulations.
Contracting officers may restrict competition in those industries
where SBA has determined that WOSB concerns or EDWOSB concerns are
underrepresented. For a North American Industry Classification System
(NAICS) code in an underrepresented industry, the contracting officer
may set aside for EDWOSB concerns. For a NAICS code in a substantially
underrepresented industry, the contracting officer may set aside for
EDWOSB concerns, or set aside for WOSB concerns that are eligible under
the WOSB Program. An EDWOSB concern is automatically an eligible WOSB
concern.
The contracting officer must expect that two or more concerns will
submit offers; contract award will be made at a fair and reasonable
price; and the anticipated award price of the contract (including
options) will not exceed $6.5 million in the case of a contract
assigned a NAICS code for manufacturing, or $4 million, in the case of
all other contracts. These figures are higher than the statute and SBA
regulation figures because they are adjusted for inflation (see FAR
1.109).
The rule also provides a protest process and procedures for
interested parties to challenge the size and status of a WOSB or EDWOSB
concern. A protest of the size and status does not preclude the
contracting officer from awarding the contract. The FAR allows for the
contracting officer to award a contract after receipt of a protest if
the contracting officer determines in writing that there is an
immediate need or significant harm would result in the event the award
is not made.
II. Executive Order 12866 and 13563
This is a significant regulatory action and, therefore, was subject
to review under Section 6(b) of Executive Order 12866, Regulatory
Planning and Review, dated September 30, 1993. This rule is not a major
rule under 5 U.S.C. 804.
In accordance with Executive Order 13563, Improving Regulation and
Regulatory Review, dated January 18, 2011, DoD, GSA, and NASA
determined that this rule is not excessively burdensome to the public,
and is consistent with the SBA's Women-Owned Small Business Federal
Contract Program.
III. Regulatory Flexibility Act
The change may have a significant economic impact on a substantial
number of small entities within the meaning of the Regulatory
Flexibility Act 5 U.S.C. 601, et seq., because this rule requires small
business concerns that claim to be WOSB or EDWOSB concerns to
demonstrate their status. However, this rule provides Federal agencies
the tools to expand opportunities for women-owned small business
concerns to compete for Federal contracts, thereby, creating a positive
economic impact on WOSB concerns. SBA performed a Final Regulatory
Flexibility Analysis, in its final rule published in the Federal
[[Page 18306]]
Register at 75 FR 62258, October 7, 2010, effective February 4, 2011.
Based on SBA's recent analysis, it is anticipated that further analysis
will not provide different data from the analysis performed by SBA.
Therefore, SBA's data was used to support our analysis.
The Regulatory Secretariat has submitted a copy of the Initial
Regulatory Flexibility Analysis (IRFA) to the Chief Counsel for
Advocacy of the Small Business Administration. A copy of the IRFA may
be obtained from the Regulatory Secretariat. The Councils invite
comments from small business concerns and other interested parties on
the expected impact of this rule on small entities.
DoD, GSA, and NASA will also consider comments from small entities
concerning the existing regulations in parts affected by this rule in
accordance with 5 U.S.C. 610. Interested parties must submit such
comments separately and should cite 5 U.S.C. 610 (FAC 2005-51, FAR Case
2010-015) in correspondence.
The analysis is summarized as follows:
1. What are the reasons for, and objectives of, this interim rule?
DoD, GSA, and NASA are establishing procedures pursuant to the
Small Business Reauthorization Act of 2000 (Pub. L. 106-554),
enacted December 21, 2000. The purpose of the interim rule is to
provide a tool for Federal agencies to ensure equal opportunity, and
thereby increased Federal procurement opportunities to women-owned
small business (WOSB) concerns. DoD, GSA, and NASA are implementing
this interim rule pursuant to section 8(m) of the Small Business
Act, 15 U.S.C. 637(m). These procedures will assist Federal agencies
in eliminating barriers to the participation by WOSB concerns in
Federal contracting, thereby achieving the Federal Government's goal
of awarding five percent of Federal contract dollars to WOSB
concerns, as provided in the Federal Acquisition Streamlining Act of
1994.
2. What is the legal basis for this interim rule?
On December 21, 2000, Congress enacted the Small Business
Reauthorization Act of 2000 (``Act'') (Pub. L. 106-554). Section 811
of Appendix I of the Act amended the Small Business Act to include
section 8(m), which authorized the restriction of competition for
Federal contracts in certain industries to economically
disadvantaged women-owned small business (EDWOSB) concerns or WOSB
concerns eligible under the WOSB Program. The Small Business
Administration published its WOSB final rule in the Federal Register
October 7, 2010 (75 FR 62258).
3. What is the description and estimate of the number of small
entities to which the rule will apply?
This rule may positively affect EDWOSB concerns that participate
in Federal procurement in industries where SBA determines that WOSB
concerns are underrepresented and may positively affect WOSB
concerns eligible under the WOSB Program that participate in Federal
procurement in industries where SBA determines that WOSB concerns
are substantially underrepresented. In addition, the rule may
negatively affect other small business concerns, as described below,
to the extent that small business concerns not owned and controlled
by women or non-eligible WOSB concerns may be excluded from
competing for certain Federal contracting opportunities.
The 2002 Survey of Business Owners published by the U.S. Bureau
of the Census reported 6,489,493 women-owned business concerns in
the United States. More than 900,000 of these business concerns have
one or more paid employees. Most women-owned business concerns,
however, do not participate in the Federal contracting market.
In February 2006, SBA awarded a contract to the Kauffman-RAND
Institute for Entrepreneurship Public Policy (RAND) to complete a
study of the underrepresentation of WOSB concerns in Federal prime
contracts by industry code. The resulting study, ``the RAND
Report,'' was published in April 2007 and is available to the public
at http://www.RAND.org/pubs/technical_reports/TR442.
The Survey of Business Owners database used in the RAND Report
represents all women-owned business (large and small) and only WOSB
concerns are eligible under the regulations. As of January 21, 2007,
approximately 93,000 business concerns represented themselves as
WOSB concerns in the Federal Government's Central Contractor
Registration (CCR) database as actual or potential Federal
contractors. The study conducted by the RAND Corporation narrowed
the pool of WOSB concerns in the CCR to approximately 56,000 to more
closely approximate the universe of firms who are ready, willing,
and able to do business with the Government. However, far fewer than
56,000 WOSB concerns are likely to be affected by this interim rule
because only those eligible WOSB concerns competing for contracts in
the eligible industries could possibly receive contracts under the
program. Utilizing the Federal Procurement Data System data set for
the total number of WOSB concerns (identified by Dun and Bradstreet
DUNS number) that received obligated funds from awards, contracts,
orders, and modifications to existing contracts for FY 2005, it was
identified that approximately 12,000 WOSB concerns were recipients
of Federal contracts in the 83 NAICS codes that would be eligible
under the WOSB Program. Thus, this rule may affect approximately
12,000 WOSB concerns.
In addition, WOSB concerns that are not economically
disadvantaged could be affected only to the extent that they compete
for Federal contracts in industries in which WOSB concerns are
determined to be substantially underrepresented. For industries in
which WOSB concerns are determined to be substantially
underrepresented, the potential number of WOSB concerns that could
be direct beneficiaries of these procedures restricting certain
Federal contracts to WOSB concerns is also likely to be much fewer
than the number of WOSB concerns registered in CCR, since not all
WOSB concerns will satisfy the eligibility requirements for EDWOSB
status. The CCR currently lists only approximately 3,800 small
disadvantaged business (SDB) concerns owned and controlled by one or
more women. This is a useful statistic because the $750,000 net
worth requirement is the same for SDB concerns and for EDWOSB
concerns. While DoD, GSA, and NASA acknowledge that there may be
other WOSB concerns in existence besides those listed in the CCR as
being certified by SBA as SDB concerns, it is difficult to envision
more than 6,000 WOSB concerns that could meet SBA's eligibility
criteria and that are also ready, willing, and able to bid on
Government contracts.
Moreover, the anticipated benefits of these procedures may be
less attractive to many WOSB concerns than a number of other
preferences designed to assist small business concerns, such as the
HUBZone, 8(a), and other programs. Not all areas of Federal
procurement have been designated as underrepresented or
substantially underrepresented, and opportunities in some of the
qualified industries may be limited. Consequently, many otherwise-
qualified EDWOSB and WOSB concerns may not find it advantageous to
pursue contract opportunities under these procedures.
DoD, GSA, and NASA determined that this rule will also
negatively affect non-WOSB concerns (small business concerns not 51
percent owned and controlled by women) or women-owned small business
concerns that are not eligible under the WOSB Program that are
seeking Federal contracts for which competition has been restricted
to participants in these procedures. This could affect the number of
future contracts for those business concerns that derive a
significant portion of their business from Federal contracting. To
the extent that contracting officers use these procedures, non-WOSB
concerns or non-eligible WOSB concerns may be excluded from
competing for certain Federal contracting opportunities. However,
this would occur only in industries in which WOSB concerns have been
found to be underrepresented or substantially underrepresented, thus
receiving fewer contracts than would be expected absent
discrimination in the marketplace, and where the anticipated dollar
value of the procurement does not exceed $4 million or $6.5 million,
in the case of manufacturing contracts. In addition, we note that
industries in which WOSB concerns are underrepresented are ones in
which they have gotten less than their fair share of contracts and
this suggests, at least implicitly, that non-WOSB concerns have
therefore been getting more than the share they would receive in the
absence of discrimination, and the ongoing effects of past
discrimination. The number of small business concerns that would be
excluded from eligibility for competing for contracts designated for
the program under these procurements or from future such
determinations is not known at this time.
[[Page 18307]]
Contracting opportunities identified by Federal agencies as
candidates to be set aside for WOSB concerns will come from new
contracting requirements and contracts currently performed by small
and large business concerns. At this time, DoD, GSA, and NASA cannot
accurately predict how the existing distribution of contracts by
business type may change with this rule. However, DoD, GSA, and NASA
do not expect a great many of the contracts awarded through the
8(a), HUBZone, or SDVOSB programs ($22.6 billion in FY 2006) to be
re-competed as WOSB or EDWOSB set-aside contracts because those
programs also support other statutory goals that agencies strive to
achieve through their contracting activities. It is acknowledged,
however, that some redistribution of contracts among the various
programs may occur as a result of these procedures.
4. What are the projected reporting, recordkeeping, Paperwork
Reduction Act and other compliance requirements?
For purposes of the Paperwork Reduction Act, 44 U.S.C. chapter
35, DoD, GSA, and NASA determined that the rule imposes new
reporting and recordkeeping requirements. The certification process
described in 13 CFR subpart C, 127.300 to 127.302, is an information
collection. The certification process requires a concern seeking to
benefit from Federal contracting opportunities designated for WOSB
or EDWOSB concerns to verify its status by providing documents to
the WOSB Program Repository, submitting a certification to the WOSB
Program Repository, and representing its status in an existing
electronic contracting system (i.e., ORCA). The WOSB or EDWOSB
concern will have to represent in ORCA that it meets each
eligibility requirement of the program.
Specifically, the WOSB or EDWOSB concern will be required to
submit certain documents verifying eligibility at the time of
certification in ORCA (and every year thereafter). These documents
will be submitted to a document repository established by SBA.
Further, the protest and eligibility examination procedures will
require the submission of documents from those parties subject to a
protest and eligibility examination. To reduce the burden on the
WOSB or EDWOSB concerns, the same documents submitted at the time of
certification will be used for the protests and eligibility
examinations, except that for protests and eligibility examinations,
SBA will also request copies of proposals submitted in response to a
WOSB or EDWOSB solicitation and certain other documents and
information to verify the status of an EDWOSB concern.
Finally, this rule also requires the WOSB concerns or EDWOSB
concerns to retain copies of the documents submitted for a period of
six years. DoD, GSA, and NASA believe that any additional burden
imposed by this recordkeeping requirement would be minimal since the
firms would maintain the information in their general course of
business.
5. What relevant federal rules may duplicate, overlap, or conflict
with this rule?
None.
6. What significant alternatives were considered that accomplish
the stated objectives and minimize any significant economic impact
on small entities?
DoD, GSA, and NASA minimized the significant economic impact on
small entities. Pursuant to section 8(m) of the Small Business Act,
a WOSB concern may be certified by a Federal agency, a State
government, or a national certifying entity approved by the SBA; or
a WOSB concern may self-certify to the contracting officer that it
is a small business concern owned and controlled by women, along
with adequate documentation in accordance with standards established
by SBA. As discussed earlier, EDWOSB and WOSB concerns are allowed
to self-certify their status in CCR and ORCA databases or provide
evidence of certification from an approved third-party certifier.
Therefore, although there may be some overlap, the addition of the
set-aside mechanism for WOSB concerns should complement rather than
conflict with the goals of existing set-aside programs.
An alternative approach would have been to require EDWOSB and
WOSB concerns to apply for formal certification. This alternative
approach was ruled out as unnecessary, not required by statute, and
too costly. DoD, GSA, and NASA believe that eligibility examinations
and protest procedures incorporated into this interim rule will
minimize the likelihood of fraud and misrepresentation of WOSB and
EDWOSB status. DoD, GSA, and NASA have decided that allowing self-
certification and the option for firms to apply for certification
from SBA-approved certifiers, when combined with random eligibility
examinations and a formal protest procedure, is a more viable
approach than formal certification and greatly reduces the burden on
small entities.
In addition, DoD, GSA, and NASA estimate that implementation of
this interim rule will require no additional proposal costs for WOSB
concerns, as compared to submitting proposals under any other small
business set-aside preferences. Moreover, WOSB concerns currently
represent their status for purposes of data collection that is needed
to implement 15 U.S.C. 644(g); therefore, the self-certification
process of this interim rule imposes no additional requirement on WOSB
concerns.
IV. Paperwork Reduction Act
The Paperwork Reduction Act (44 U.S.C. chapter 35) applies because
this interim rule contains information collection requirements. A
request for approval on a new information collection requirement was
submitted by SBA and approved by the Office of Management and Budget
(OMB Control Number 3245-0374). Based on the annual reporting burden
estimates provided by SBA, it was determined that additional estimates
would not produce different data. As a result, a request for approval
on a new information collection requirement for FAR Case 2010-015 was
not submitted to OMB. It was determined that the information collection
requirement concerning FAR Case 2010-015 will be covered under SBA's
OMB Control Number 3245-0374, Certification for the Women-Owned Small
Business Federal Contract Program.
V. Determination To Issue an Interim Rule
A determination has been made under the authority of the Secretary
of Defense (DoD), the Administrator of General Services (GSA), and the
Administrator of the National Aeronautics and Space Administration
(NASA) that urgent and compelling reasons exist to promulgate this
interim rule without prior opportunity for public comment. This action
is necessary because section 8(m) of the Small Business Reauthorization
Act of 2000 (Pub. L. 106-554) (15 U.S.C. 637(m)), authorizes Federal
contracting officers to restrict competition for Federal contracts in
certain industries to EDWOSB concerns or WOSB concerns eligible under
the WOSB Program. Further, SBA published a final rule implementing the
Women-Owned Small Business Federal Contract Program on October 7, 2010
(75 FR 62258), which went into effect February 4, 2011. This rule must
be immediately incorporated into the FAR to ensure Governmentwide
application. However, pursuant to 41 U.S.C. 1707 and FAR 1.501-3(b),
DoD, GSA, and NASA will consider public comments received in response
to this interim rule in the formation of the final rule.
List of Subjects in 48 CFR Parts 2, 4, 6, 13, 14, 15, 18, 19, 26,
33, 36, 42, 52, and 53
Government procurement.
Dated: March 24, 2011.
Millisa Gary,
Acting Director, Office of Governmentwide Acquisition Policy.
Therefore, DoD, GSA, and NASA amend 48 CFR parts 2, 4, 6, 13, 14,
15, 18, 19, 26, 33, 36, 42, 52, and 53 as set forth below:
0
1. The authority citation for 48 CFR parts 2, 4, 6, 13, 14, 15, 18, 19,
26, 33, 36, 42, 52, and 53 continues to read as follows:
Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 42
U.S.C. 2473(c).
[[Page 18308]]
PART 2--DEFINITIONS OF WORDS AND TERMS
0
2. Amend section 2.101 in paragraph (b)(2) by--
0
a. Adding, in alphabetical order, the definition ``economically
disadvantaged women-owned small business (EDWOSB) concern'';
0
b. Revising the definition ``women-owned small business concern''; and
0
c. Adding, in alphabetical order, the definition ``Women-Owned Small
Business (WOSB) Program''.
The added and revised text reads as follows:
2.101 Definitions.
* * * * *
(b) * * *
(2) * * *
Economically disadvantaged women-owned small business (EDWOSB)
concern--(see definition of Women-Owned Small Business (WOSB) Program
in this section).
* * * * *
Women-owned small business concern means--
(1) A small business concern--
(i) That is at least 51 percent owned by one or more women; or, in
the case of any publicly owned business, at least 51 percent of the
stock of which is owned by one or more women; and
(ii) Whose management and daily business operations are controlled
by one or more women; or
(2) A small business concern eligible under the Women-Owned Small
Business Program in accordance with 13 CFR part 127 (see subpart
19.15).
Women-Owned Small Business (WOSB) Program. (1) Women-Owned Small
Business Program (WOSB Program) means a program that authorizes
contracting officers to limit competition to--
(i) Eligible economically disadvantaged women-owned small business
concerns for Federal contracts assigned a North American Industry
Classification Systems (NAICS) code in an industry in which the Small
Business Administration (SBA) has determined that WOSB concerns are
underrepresented in Federal procurement; and
(ii) Eligible WOSB concerns eligible under the WOSB Program for
Federal contracts assigned a NAICS code in an industry in which SBA has
determined that WOSB concerns are substantially underrepresented.
(2) 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. It automatically
qualifies as a women-owned small business concern eligible under the
WOSB Program.
(3) 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.
* * * * *
PART 4--ADMINISTRATIVE MATTERS
0
3. Amend section 4.803 by revising paragraph (a)(6); and adding
paragraph (a)(42) to read as follows:
4.803 Contents of contract files.
(a) * * *
(6) Set-aside decision including the type and extent of market
research conducted.
* * * * *
(42) When limiting competition to women-owned small business (WOSB)
concerns or economically disadvantaged women-owned small business
(EDWOSB) concerns in accordance with subpart 19.15, include
documentation--
(i) Of the type and extent of market research; and
(ii) That the NAICS code assigned to the acquisition is for an
industry that SBA has designated as--
(A) Underrepresented for economically disadvantaged women-owned
small business set-asides, or
(B) Substantially underrepresented for women-owned small business
set-asides.
* * * * *
PART 6--COMPETITION REQUIREMENTS
6.207 [Redesignated 6.208]
0
4. Redesignate section 6.207 as section 6.208, and add new section
6.207 to read as follows:
6.207 Set-asides for economically disadvantaged women-owned small
business (EDWOSB) concerns or women-owned small business (WOSB)
concerns eligible under the WOSB Program.
(a) To fulfill the statutory requirements relating to 15 U.S.C.
637(m), contracting officers may set aside solicitations for only
EDWOSB concerns or WOSB concerns eligible under the WOSB Program (see
19.1505).
(b) No separate justification or determination and findings is
required under this part to set aside a contract action for EDWOSB
concerns or WOSB concerns eligible under the WOSB Program.
PART 13--SIMPLIFIED ACQUISITION PROCEDURES
0
5. Amend section 13.003 by revising paragraph (b)(2) to read as
follows:
13.003 Policy.
* * * * *
(b) * * *
(2) The contracting officer may make an award to a small business
under the 8(a) Program (see subpart 19.8), or set aside for HUBZone
small business concerns (see 19.1305), service-disabled veteran-owned
small business concerns (see 19.1405), or economically disadvantaged
women-owned small business (EDWOSB) concerns and woman-owned small
business (WOSB) concerns eligible under the WOSB Program (see 19.1505),
an acquisition of supplies or services that has an anticipated dollar
value exceeding the micro-purchase threshold and at or below the
simplified acquisition threshold. The following contracting officer's
decisions for acquisitions at or below the simplified acquisition
threshold are not subject to review under subpart 19.4:
(i) A decision not to make an award under the 8(a) Program (see
subpart 19.8).
(ii) A decision not to set aside an acquisition for HUBZone small
business concerns, service-disabled veteran-owned small business
concerns, or EDWOSB concerns and WOSB concerns eligible under the WOSB
Program.
* * * * *
0
6. Amend section 13.102 by removing from the introductory text of
paragraph (a) ``(see Subpart 4.11)'' and adding ``(see subpart 4.11)''
in its place; and revising paragraph (a)(3) to read as follows:
13.102 Source List.
(a) * * *
(3) Women-owned small business concern, including economically
disadvantaged women-owned small business concerns and women-owned small
business concerns eligible under the Woman-owned Small Business (WOSB)
Program.
* * * * *
PART 14--SEALED BIDDING
0
7. Amend section 14.502 by redesignating paragraph (b)(7) as (b)(8);
[[Page 18309]]
and adding a new paragraph (b)(7) to read as follows:
14.502 Conditions for use.
* * * * *
(b) * * *
(7) The use of a set-aside for economically disadvantaged woman-
owned small business concerns and women-owned small business concerns
eligible under the Woman-Owned Small Business Program (see subpart
19.15).
* * * * *
PART 15--CONTRACTING BY NEGOTIATION
0
8. Amend section 15.503 in paragraph (a)(2) by--
0
a. Removing from the end of paragraph (a)(2)(i)(C) the word ``or'';
0
b. Removing from the end of paragraph (a)(2)(i)(D) ``19.1405.'' and
adding ``19.1405; or'' in its place;
0
c. Adding paragraph (a)(2)(i)(E); and
0
d. Revising paragraph (a)(2)(ii)(C).
The added and revised text reads as follows:
15.503 Notifications to unsuccessful offerors.
(a) * * *
(2) * * *
(i) * * *
(E) When using the Woman-Owned Small Business Program procedures in
19.1505.
(ii) * * *
(C) That no response is required unless a basis exists to challenge
the size status or small business status of the apparently successful
offeror (e.g., small business concern, small disadvantaged business
concern, HUBZone small business concern, service-disabled veteran-owned
small business concern, economically disadvantaged women-owned small
business concern, or women-owned small business concern eligible under
the Women-Owned Small Business Program).
* * * * *
PART 18--EMERGENCY ACQUISITIONS
18.117 through 18.126 [Redesignated as 18.118 through 18.127]
0
9. Redesignate sections 18.117 through 18.126 as sections 18.118
through 18.127, respectively; and add a new section 18.117 to read as
follows:
18.117 Awards to economically disadvantaged women-owned small business
(EDWOSB) concerns and women-owned small business (WOSB) concerns
eligible under the WOSB Program.
Contracts may be awarded to EDWOSB concerns and WOSB concerns on a
competitive basis. (See subpart 19.15.)
18.203 [Amended]
0
10. Amend section 18.203 by removing from paragraph (a) ``(See 6.207''
and adding ``(See 6.208'' in its place.
PART 19--SMALL BUSINESS PROGRAMS
0
11. Amend section 19.000 by revising paragraph (a)(3) to read as
follows:
19.000 Scope of part
(a) * * *
(3) Setting acquisitions aside for exclusive competitive
participation by small business, 8(a) business development
participants, HUBZone small business concerns, service-disabled
veteran-owned small business concerns, and economically disadvantaged
women-owned small business concerns and women-owned small business
concerns eligible under the Women-Owned Small Business Program;
* * * * *
0
12. Amend section 19.201 by revising paragraph (d)(10) to read as
follows:
19.201 General policy.
* * * * *
(d) * * *
(10) Make recommendations in accordance with agency procedures as
to whether a particular acquisition should be awarded under subpart
19.5 as a small business set-aside, under subpart 19.8 as a Section
8(a) award, under subpart 19.13 as a HUBZone set-aside, under subpart
19.14 as a service-disabled veteran-owned small business set-aside, or
under subpart 19.15 as an economically disadvantaged women-owned small
business (EDWOSB) or women-owned small business (WOSB) set-aside.
* * * * *
19.202 [Amended]
0
13. Amend section 19.202 by removing ``19.13 or 19.14'' and adding
``19.13, 19.14, or 19.15'' in its place.
0
14. Amend section 19.202-5 by revising paragraph (a) to read as
follows:
19.202-5 Data collection and reporting requirements.
* * * * *
(a) Require each prospective contractor to represent whether it is
a small business, veteran-owned small business, service-disabled
veteran-owned small business, HUBZone small business, small
disadvantaged business, women-owned small business, EDWOSB concern, or
WOSB concern eligible under the WOSB Program (see the provision at
52.219-1, Small Business Program Representations).
* * * * *
0
15. Amend section 19.202-6 by--
0
a. Removing from the end of paragraph (a)(4) the word ``and'';
0
b. Removing from paragraph (a)(5) ``(see Subpart 19.14).'' and adding
``(see subpart 19.14); and'' in its place; and
0
c. Adding paragraph (a)(6) to read as follows:
19.202-6 Determination of fair market price.
(a) * * *
(6) Set-asides for EDWOSB concerns and WOSB concerns eligible under
the WOSB Program (see subpart 19.15).
* * * * *
0
16. Amend section 19.203 by--
0
a. Revising paragraph (a);
0
b. Removing from paragraph (b) ``or SDVOSB Program'' and adding
``SDVOSB Program, or WOSB Program'' in its place;
0
c. Removing from paragraph (c) ``or SDVOSB programs'' and adding
``SDVOSB, or WOSB programs'' in its place.
19.203 Relationship among small business programs.
(a) There is no order of precedence among the 8(a) Program (subpart
19.8), HUBZone Program (subpart 19.13), Service-Disabled Veteran-Owned
Small Business (SDVOSB) Procurement Program (subpart 19.14), or the
Women-Owned Small Business (WOSB) Program (subpart 19.15).
* * * * *
0
17. Amend section 19.301-1 by revising the third sentence of paragraph
(d) to read as follows:
19.301-1 Representation by the offeror.
* * * * *
(d) * * * The SBA's regulations on penalties for misrepresentations
and false statements are contained in 13 CFR 121.108 for small
business, 13 CFR 124.501 for 8(a) small business, 13 CFR 124.1004 for
small disadvantaged business, 13 CFR 125.29 for veteran or service-
disabled veteran-owned small business, 13 CFR 126.900 for HUBZone small
business, and 13 CFR 127.700 for economically disadvantaged women-owned
small business concerns and women-owned small business (WOSB) concerns
eligible under the WOSB Program.
19.308 [Redesignated as 19.309]
0
18. Redesignate section 19.308 as section 19.309; and add a new section
19.308 to read as follows:
[[Page 18310]]
19.308 Protesting a firm's status as an economically disadvantaged
women-owned small business (EDWOSB) concern or women-owned small
business (WOSB) concern eligible under the WOSB Program.
(a) An offeror, the contracting officer, or the SBA may protest the
apparent successful offeror's status as an EDWOSB concern or WOSB
concern eligible under the WOSB Program.
(b) Protests relating to small business size status are subject to
the procedures of subpart 19.3. An interested party (see 19.308(a))
seeking to protest both the size and status of an apparent successful
offeror shall file two separate protests.
(c) All protests shall be in writing and must state all specific
grounds for the protest.
(1) SBA will consider protests challenging the status of a concern
if--
(i) The protest presents evidence that the concern is not at least
51 percent owned and controlled by one or more women who are United
States citizens; or
(ii) The protest presents evidence that the concern is not at least
51 percent owned and controlled by one or more economically
disadvantaged women, when it is in connection with an EDWOSB contract.
(2) SBA shall consider protests by a contracting officer when the
apparent successful offeror has failed to provide all of the required
documents, as set forth in FAR 19.1503(c).
(d) Protest by an offeror.
(1) An offeror shall submit its protest to the contracting
officer--
(i) To be received by the close of business by the fifth business
day after bid opening (in sealed bid acquisitions); or
(ii) To be received by the close of business by the fifth business
day after notification by the contracting officer of the apparent
successful offeror (in negotiated acquisitions).
(2) Any protest received after the designated time limit is
untimely, unless it is from the contracting officer or SBA.
(e)(1) The contracting officer shall forward all protests to SBA.
The protests are to be submitted to SBA's Director for Government
Contracting, U.S. Small Business Administration, 409 Third Street, SW.,
Washington, DC 20416 or by fax to (202) 205-6390, Attn: Women-owned
Small Business Status Protest. SBA's protest regulations are found in
subpart F ``Protests'' at 13 CFR 127.600 through 127.605.
(2) The protest shall include a referral letter written by the
contracting officer with information pertaining to the solicitation.
The referral letter must include the following information to allow SBA
to determine timeliness and standing of the protest:
(i) The solicitation number; the name, address, telephone number
and facsimile number of the contracting officer, the successful offeror
and the protester.
(ii) Whether the protestor submitted an offer.
(iii) Whether the protested concern was the apparent successful
offeror.
(iv) When the protested concern submitted its offer.
(v) Whether the acquisition was conducted using sealed bid or
negotiated procedures.
(vi) The bid opening date, if applicable.
(vii) The date the contracting officer received the protest.
(viii) The date the protestor received notification about the
apparent successful offeror, if applicable; and
(ix) Whether a contract has been awarded.
(f) SBA will notify the protester and the contracting officer of
the date the protest was received.
(g) Before SBA decision. The contracting officer may award the
contract after receipt of the protest but before SBA issues its
decision if the contracting officer determines in writing that an award
must be made to prevent significant harm to the public interest.
(1) SBA will determine the merits of the status protest within 15
business days after receipt of a protest, or within any extension of
that time that the contracting officer may grant SBA.
(2) If SBA does not issue its determination within 15 business
days, the contracting officer shall contact SBA to obtain the status of
its decision.
(3) After contacting SBA, if the contracting officer determines in
writing that there is an immediate need and it is in the public's
interest to proceed with award, the contracting officer may award the
contract. This determination shall be provided to the SBA Director for
Government Contracting and a copy shall be included in the contract
file.
(h) After SBA decision. SBA will notify the contracting officer,
the protester, and the protested concern of its determination. The
determination is effective immediately and is final unless overturned
on appeal by SBA's Office of Hearings and Appeals (OHA) pursuant to 13
CFR part 134.
(1) If SBA has denied or dismissed the protest, the contracting
officer may award the contract to the protested concern. If OHA
subsequently overturns the SBA Director for Government Contracting's
determination or dismissal, the contracting officer may apply the OHA
decision to the procurement in question.
(2) If SBA has sustained the protest and determined that the
concern is not eligible under the WOSB Program, and no OHA appeal has
been filed, then--
(i) The concern must remove its designation in the Central
Contractor Registration (CCR) and Online Representations and
Certifications Application (ORCA) as an EDWOSB or WOSB concern, and
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.
(ii) The contracting officer shall not award the contract to the
protested concern.
(iii) The contracting officer shall terminate the award, shall not
exercise any options or award further task or delivery orders, if the
contracting officer receives the determination after contract award.
(iv) The contracting officer may allow contract performance to
continue when a written determination is made in accordance with
19.308(g) and (h), but shall not exercise any options or award further
task or delivery orders.
(v) The contracting officer shall update the FPDS to reflect the
final SBA decision.
(3) If SBA has sustained the protest and determined that the
concern is not eligible under the WOSB Program, and a timely OHA appeal
has been filed, then--
(i) The contracting officer must consider whether performance can
be suspended until an OHA decision is rendered.
(ii) The contracting officer shall either terminate the contract,
not exercise the next option, or not award further task or delivery
orders, if OHA affirms the SBA Director for Government Contracting's
determination finding the protested concern is ineligible. The
contracting officer may allow contract performance to continue when a
written determination is made in accordance with 19.308(g) and (h), but
shall not exercise any options or award further task or delivery
orders; and
(iii) The contracting officer shall update the FPDS to reflect
OHA's decision.
(iv) The concern must remove its designation in CCR and ORCA as an
EDWOSB or WOSB concern, and shall not submit an offer as an EDWOSB
concern or WOSB concern eligible under the WOSB Program, until SBA
issues a decision that the ineligibility is resolved or OHA finds the
concern is eligible on appeal.
0
19. Amend section 19.402 by revising paragraphs (c)(1)(i) and (ii) to
read as follows:
[[Page 18311]]
19.402 Small Business Administration procurement center
representatives.
* * * * *
(c) * * *
(1) * * *
(i) The setting aside of selected acquisitions not unilaterally set
aside by the contracting officer;
(ii) New qualified small business sources, including veteran-owned
small, service-disabled veteran-owned small, HUBZone small, small
disadvantaged, economically disadvantaged women-owned small, and women-
owned small eligible under the Woman-Owned Small Business Program; and
* * * * *
0
20. Amend section 19.501 by revising the second sentence in paragraph
(c) to read as follows:
19.501 General.
* * * * *
(c) * * * The contracting officer shall perform market research and
document why a small business set-aside is inappropriate when an
acquisition is not set aside for small business, unless an award is
anticipated to a small business under the 8(a), HUBZone, service-
disabled veteran-owned, or WOSB programs. * * *
* * * * *
0
21. Amend section 19.804-2 by revising paragraph (a)(9) to read as
follows:
19.804-2 Agency offering.
(a) * * *
(9) A statement that prior to the offering no solicitation for the
specific acquisition has been issued as a small business, HUBZone,
service-disabled veteran-owned small business set-aside, or a set-aside
under the Women-Owned Small Business (WOSB) Program, and that no other
public communication (such as a notice through the Governmentwide point
of entry (GPE)) has been made showing the contracting agency's clear
intention to set-aside the acquisition for small business, HUBZone
small business, service-disabled veteran-owned small business concerns,
or a set-aside under the WOSB Program.
* * * * *
0
22. Amend section 19.1202-2 by revising paragraph (b)(1) to read as
follows:
19.1202-2 Applicability.
* * * * *
(b) * * *
(1) Small business set-asides (see subpart 19.5), HUBZone set-
asides (see subpart 19.13), service-disabled veteran-owned small
business set-asides (see subpart 19.14), economically disadvantaged
women-owned small business set-asides, and set-asides for women-owned
small business concerns eligible under the Women-Owned Small Business
Program (see subpart 19.15).
* * * * *
0
23. Add subpart 19.15 to read as follows:
Subpart 19.15--Women-Owned Small Business (WOSB) Program
Sec.
19.1500 General.
19.1501 Definition.
19.1502 Applicability.
19.1503 Status.
19.1504 Exclusions
19.1505 Set-aside procedures.
19.1506 Contract clauses.
Subpart 19.15--Women-Owned Small Business (WOSB) Program
19.1500 General.
(a) Section 8(m) of the Small Business Act (15 U.S.C. 637(m))
created the Women-Owned Small Business (WOSB) Program.
(b) The purpose of the WOSB Program is to ensure women-owned small
business concerns have an equal opportunity to participate in Federal
contracting and to assist agencies in achieving their WOSB
participation goals (see 13 CFR part 127).
19.1501 Definition.
WOSB Program Repository means a secure, Web-based application that
collects, stores, and disseminates documents to the contracting
community and SBA, which verify the eligibility of a business concern
for a contract to be awarded under the WOSB Program.
19.1502 Applicability.
The procedures in this subpart apply to all Federal agencies that
employ one or more contracting officers.
19.1503 Status.
(a) Status as an economically disadvantaged women-owned small
business (EDWOSB) or WOSB concern is determined in accordance with 13
CFR part 127.
(b) The contracting officer shall verify that the offeror--
(1) Is registered in Central Contractor Registration (CCR);
(2) Is self-certified in the Online Representation and
Certifications Application (ORCA); and
(3) Has submitted documents verifying its eligibility at the time
of initial offer to the WOSB Program Repository. The contract shall not
be awarded until all required documents are received.
(c)(1) An EDWOSB or WOSB concern that has been certified by an SBA
approved third party certifier, (which includes SBA certification under
the 8(a) Program), must provide the following eligibility requirement
documents--
(i) The third-party certification;
(ii) SBA's WOSB Program Certification form (SBA Form 2413); and
(iii) The joint venture agreement, if applicable.
(2) An EDWOSB or WOSB concern that has not been certified by an SBA
approved third party certifier or by SBA under the 8(a) Program, must
provide the following documents:
(i) The U.S. birth certificate, naturalization documentation, or
unexpired U.S. passport for each woman owner.
(ii) The joint venture agreement, if applicable.
(iii) For limited liability companies, Articles of organization
(also referred to as certificate of organization or articles of
formation) and any amendments, and the operating agreement and any
amendments.
(iv) For corporations, articles of incorporation and any
amendments, by-laws and any amendments, all issued stock certificates,
including the front and back copies, signed in accord with the by-laws,
stock ledger, and voting agreements, if any.
(v) For partnerships, the partnership agreement and any amendments.
(vi) For sole proprietorships, corporations, limited liability
companies and partnerships if applicable, the assumed/fictitious name
certificate(s).
(vii) SBA's WOSB Program Certification form (SBA Form 2413).
(viii) For EDWOSB concerns, in addition to the above, the SBA Form
413, Personal Financial Statement, available to the public at http://www.sba.gov/tools/Forms/index.html, for each woman claiming economic
disadvantage.
(d)(1) A contracting officer may accept a concern's self-
certification as accurate for a specific procurement reserved for award
under this subpart if--
(i) The apparent successful WOSB or EDWOSB offeror provided the
required documents;
(ii) There has been no protest or other credible information that
calls into question the concern's eligibility as an EDWOSB or WOSB
concern; and
(iii) There has been no decision issued by SBA as a result of a
current eligibility examination finding the concern did not qualify as
an EDWOSB or WOSB concern at the time it submitted its initial offer
for an EDWOSB or WOSB requirement.
[[Page 18312]]
(2) The contracting officer shall file a status protest in
accordance with FAR 19.308 if--
(i) There is information that questions the eligibility of a
concern; or
(ii) The concern fails to provide all of the required documents to
verify its eligibility.
(e) If there is a decision issued by SBA as a result of a current
eligibility examination finding the concern did not qualify as an
EDWOSB or WOSB concern, the contracting officer may terminate the
contract, and shall not exercise any option nor award further task or
delivery orders. The contracting officer shall not count or include the
award toward the small business accomplishments for an EDWOSB or WOSB
concern and must update FPDS from the date of award.
(f) A joint venture may be considered an EDWOSB concern or WOSB
concern if it meets the requirements of 13 CFR 127.506.
(g) An EDWOSB or WOSB concern that is a non-manufacturer, as
defined in 13 CFR 121.406(b), may submit an offer on an EDWOSB or WOSB
requirement with a NAICS code for supplies, if it meets the
requirements under the non-manufacturer rule set forth in that
regulation.
19.1504 Exclusions.
This subpart does not apply to--
(a) Requirements that an 8(a) concern is currently performing under
the 8(a) Program or that SBA has accepted for performance under the
authority of the 8(a) Program, unless SBA has consented to release the
requirements from the 8(a) Program;
(b) Requirements that can be satisfied through award to--
(1) Federal Prison Industries, Inc. (see subpart 8.6); or
(2) Javits-Wagner-O'Day Act participating non-profit agencies for
the blind or severely disabled (see subpart 8.7);
(c) Orders against indefinite delivery contracts (see subpart
16.5); or
(d) Orders against Federal Supply Schedules (see subpart 8.4).
19.1505 Set-aside procedures.
(a) The contracting officer may set-aside acquisitions exceeding
the micro-purchase threshold for competition restricted to EDWOSB or
WOSB concerns eligible under the WOSB Program in those NAICS codes in
which SBA has determined that women-owned small business concerns are
underrepresented or substantially underrepresented in Federal
procurement, as specified on SBA's Web site at http://www.sba.gov/WOSB.
(b) For requirements in NAICS codes designated by SBA as
underrepresented, a contracting officer may restrict competition to
EDWOSB concerns if the contracting officer has a reasonable expectation
based on market research that--
(1) Two or more EDWOSB concerns will submit offers for the
contract;
(2) The anticipated award price of the contract (including options)
does not exceed $6.5 million, in the case of a contract assigned an
NAICS code for manufacturing; or $4 million, for all other contracts;
and
(3) Contract award will be made at a fair and reasonable price.
(c) A contracting officer may restrict competition to WOSB concerns
eligible under the WOSB Program (including EDWOSB concerns), for
requirements in NAICS codes designated by SBA as substantially
underrepresented if there is a reasonable expectation based on market
research that--
(1) Two or more WOSB concerns (including EDWOSB concerns), will
submit offers;
(2) The anticipated award price of the contract (including options)
will not exceed $6.5 million, in the case of a contract assigned an
NAICS code for manufacturing, or $4 million for all other contracts;
and
(3) Contract award may be made at a fair and reasonable price.
(d) The contracting officer may make an award, if only one
acceptable offer is received from a qualified EDWOSB or WOSB concern.
(e) The contracting officer must check whether the apparently
successful offeror filed all the required eligibility documents, and
file a status protest if any documents are missing. See 19.1503(d)(2).
(f) If no acceptable offers are received from an EDWOSB or WOSB
concern, the set-aside shall be withdrawn and the requirement, if still
valid, must be considered for set aside in accordance with 19.203 and
subpart 19.5.
(g) If the contracting officer rejects a recommendation by SBA's
Procurement Center Representative--
(1) The contracting officer shall notify the procurement center
representative as soon as practicable;
(2) SBA shall notify the contracting officer of its intent to
appeal the contracting officer's decision no later than five business
days after receiving notice of the contracting officer's decision;
(3) The contracting officer shall suspend further action regarding
the procurement until the head of the agency issues a written decision
on the appeal, that there are urgent and compelling circumstances which
significantly affect the interests of the United States compel award of
the contract;
(4) Within 15 business days of SBA's notification to the head of
the contracting activity, SBA shall file a formal appeal to the head of
the agency, or the appeal will be determined withdrawn; and
(5) The head of the agency, or designee, shall specify in writing
the reasons for a denial of an appeal brought under this section.
19.1506 Contract clauses.
(a) The contracting officer shall insert the clause 52.219-29,
Notice of Total Set-Aside for Economically Disadvantaged Women-owned
Small Business (EDWOSB) Concerns, in solicitations and contracts for
acquisitions that are set aside for economically disadvantaged women-
owned small business concerns under 19.1505(b).
(b) The contracting officer shall insert the clause 52.219-30,
Notice of Total Set-Aside for Women-Owned Small Business (WOSB)
Concerns Eligible Under the Women-Owned Small Business Program, in
solicitations and contracts for acquisitions that are set aside for
women-owned small business concerns under 19.1505(c).
PART 26--OTHER SOCIOECONOMIC PROGRAMS
26.202-1 [Amended]
0
24. Amend section 26.202-1 introductory text by removing ``(see
6.207)'' and adding ``(see 6.208)'' in its place.
PART 33--PROTEST, DISPUTES, AND APPEALS
0
25. Amend section 33.102 by revising the last sentence of paragraph (a)
to read as follows:
33.102 General.
(a) * * * (See 19.302 for protests of small business status, 19.305
for protests of disadvantaged business status, 19.306 for protests of
HUBZone small business status, and 19.307 for protests of service-
disabled veteran-owned small business status, and 19.308 for protests
of the status of an economically disadvantaged women-owned small
business concern or of a women-owned small business concern eligible
under the Women-Owned Small Business Program.)
* * * * *
[[Page 18313]]
PART 36--CONSTRUCTION AND ARCHITECT-ENGINEER CONTRACTS
36.501 [Amended]
0
26. Amend section 36.501 by removing from the first sentence of
paragraph (b) ``or 19.14'' and adding ``19.14, or 19.15'' in its place.
PART 42--CONTRACT ADMINISTRATION AND AUDIT SERVICES
0
27. Amend section 42.501 by revising paragraph (b) to read as follows:
42.501 General.
* * * * *
(b) Postaward orientation is encouraged to assist (see part 19)--
(1) Small business concerns;
(2) Small disadvantaged business concerns;
(3) Veteran-owned small business concerns;
(4) Service-disabled veteran-owned small business concerns;
(5) HUBZone small business concerns; and
(6) Women-owned small business concerns (including economically
disadvantaged women-owned small business concerns and women-owned small
business concerns eligible under the Women-Owned Small Business
Program).
* * * * *
PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
0
28. Amend section 52.212-3 by--
0
a. Revising the date of the clause;
0
b. Adding in paragraph (a), in alphabetical order, the definitions
``economically disadvantaged women-owned small business (EDWOSB)
concern'' and ``women-owned small business (WOSB) concern eligible
under the WOSB Program'';
0
c. Redesignating paragraphs (c)(6), (c)(7), (c)(8), and (c)(9) as
paragraphs (c)(8), (c)(9), (c)(10), and (c)(11), respectively;
0
d. Adding new paragraphs (c)(6) and (c)(7);
0
e. Removing from the ``Note'' ``(c)(6) and (c)(7)'' and adding ``(c)(8)
and (9)'' in its place and revising its heading to read ``Note to
paragraphs (c)(8) and (9)'';
0
f. Removing from the newly redesignated paragraph (c)(10)(i)(A) ``in
the database'' and adding ``in the CCR Dynamic Small Business Search
database'' in its place; and removing the words ``(PRO-Net)'';
0
g. Removing from the newly redesignated paragraph (c)(10)(ii) ``in
paragraph (c)(8)(i)'' and adding ``in paragraph (c)(10)(i)'' in its
place;
0
h. Removing from the newly redesignated paragraph (c)(11)(ii) ``in
paragraph (c)(9)(i)'' and adding ``in paragraph (c)(11)(i)'' in its
place;
0
i. Revising the date of Alternate I and the introductory text;
redesignating paragraph (10) as paragraph (12); and removing from the
newly redesignated paragraph (12) ``or (c)(8)'' and adding ``or
(c)(10)'' in its place; and
0
j. Revising the date of Alternate II and the introductory text.
The added and revised text to read as follows:
52.212-3 Offeror Representations and Certifications--Commercial Items.
* * * * *
Offeror Representations and Certifications--Commercial Items (APR 2011)
(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. It automatically
qualifies as a women-owned small business 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.
* * * * *
(c) * * *
(6) WOSB concern eligible under the WOSB Program. [Complete only
if the offeror represented itself as a women-owned small business
concern in paragraph (c)(5) of this provision.] The offeror
represents that--
(i) It * is, * is not a WOSB concern eligible under the WOSB
Program, has provided all the required documents to the WOSB
Repository, and no change in circumstances or adverse decisions have
been issued that affects its eligibility; and
(ii) It * is, * is not a joint venture that complies with the
requirements of 13 CFR part 127, and the representation in paragraph
(c)(6)(i) of this provision is accurate in reference to the WOSB
concern or concerns that are participating in the joint venture.
[The offeror shall enter the name or names of the WOSB concern or
concerns that are participating in the joint venture: .] Each WOSB
concern participating in the joint venture shall submit a separate
signed copy of the WOSB representation.
(7) Economically disadvantaged women-owned small business
(EDWOSB) concern. [Complete only if the offeror represented itself
as a WOSB concern eligible under the WOSB Program in (c)(6) of this
provision.] The offeror represents that--
(i) It * is, * is not an EDWOSB concern eligible under the WOSB
Program, has provided all the required documents to the WOSB
Repository, and no change in circumstances or adverse decisions have
been issued that affects its eligibility; and
(ii) It * is, * is not a joint venture that complies with the
requirements of 13 CFR part 127, and the representation in paragraph
(c)(7)(ii) of this provision is accurate in reference to the EDWOSB
concern or concerns that are participating in the joint venture. The
offeror shall enter the name or names of the EDWOSB concern or
concerns that are participating in the joint venture: ------------.
Each EDWOSB concern participating in the joint venture shall submit
a separate signed copy of the EDWOSB representation.
* * * * *
Alternate I (APR 2011). As prescribed in 12.301(b)(2), add the
following paragraph (c)(12) to the basic provision:
* * * * *
Alternate II (APR 2011). As prescribed in 12.301(b)(2), add the
following paragraph (c)(10)(iii) to the basic provision:
* * * * *
0
29. Amend section 52.212-5 by--
0
a. Revising the date of the clause;
0
b. Redesignating paragraphs (b)(21) through (b)(46) as paragraphs
(b)(23) through (b)(48); and
0
c. Adding new paragraphs (b)(21) and (b)(22)
The revised and added text reads as follows:
52.212-5 Contract Terms and Conditions Required to Implement Statutes
or Executive Orders--Commercial Items.
* * * * *
Contract Terms and Conditions Required To Implement Statutes or
Executive Orders--Commercial Items (APR 2011)
* * * * *
(b) * * *
---- (21) 52.219-29 Notice of Total Set-Aside for Economically
Disadvantaged Women-Owned Small Business (EDWOSB) Concerns (APR
2011).
---- (22) 52.219-30 Notice of Total Set-Aside for Women-Owned
Small Business (WOSB) Concerns Eligible Under the WOSB Program (APR
2011).
* * * * *
0
30. Amend section 52.219-1 by--
0
a. Removing from the introductory paragraph ``19.308(a)(1)'' and adding
``19.309(a)(1)'' in its place;
0
b. Revising the date of the provision;
0
c. Redesignating paragraphs (b)(4) through (b)(6) as paragraphs (b)(6)
through (b)(8);
0
d. Adding new paragraphs (b)(4) and (b)(5);
0
e. Removing from newly redesignated (b)(7) ``in paragraph (b)(4)'' and
adding ``in paragraph (b)(6)'' in its place;
[[Page 18314]]
0
f. Removing from newly redesignated (b)(8) ``in paragraph (b)(6)'' and
adding ``in paragraph (b)(8)'' in its place;
0
g. Adding in paragraph (c), in alphabetical order, the definitions
``economically disadvantaged women-owned small business (EDWOSB)
concern'' and ``women-owned small business (WOSB) concern eligible
under the WOSB Program'';
0
h. Revising paragraph (d)(2);
0
i. Revising the date of Alternate I, and removing from the introductory
paragraph ``the following paragraph (b)(7)'' and adding ``the following
paragraph (b)(9)'' in its place; and
0
j. Redesignating Alternate I paragraph (7) as paragraph (9).
52.219-1 Small Business Program Representations.
* * * * *
Small Business Program Representations (APR 2011)
* * * * *
(b) * * *
(4) Women-owned small business (WOSB) concern eligible under the
WOSB Program. [Complete only if the offeror represented itself as a
women-owned small business concern in paragraph (b)(3) of this
provision.] The offeror represents as part of its offer that--
(i) It * is, * is not a WOSB concern eligible under the WOSB
Program, has provided all the required documents to the WOSB
Repository, and no change in circumstances or adverse decisions have
been issued that affects its eligibility; and
(ii) It * is, * is not a joint venture that complies with the
requirements of 13 CFR part 127, and the representation in paragraph
(b)(4)(i) of this provision is accurate in reference to the WOSB
concern or concerns that are participating in the joint venture.
[The offeror shall enter the name or names of the WOSB concern or
concerns that are participating in the joint venture: ----.] Each
WOSB concern participating in the joint venture shall submit a
separate signed copy of the WOSB representation.
(5) Economically disadvantaged women-owned small business
(EDWOSB) concern. [Complete only if the offeror represented itself
as a women-owned small business concern eligible under the WOSB
Program in (b)(4) of this provision.] The offeror represents as part
of its offer that--
(i) It * is, * is not an EDWOSB concern eligible under the WOSB
Program, has provided all the required documents to the WOSB
Repository, and no change in circumstances or adverse decisions have
been issued that affects its eligibility; and
(ii) It * is, * is not a joint venture that complies with the
requirements of 13 CFR part 127, and the representation in paragraph
(b)(5)(i) of this provision is accurate in reference to the EDWOSB
concern or concerns that are participating in the joint venture.
[The offeror shall enter the name or names of the EDWOSB concern or
concerns that are participating in the joint venture: --------------
----.] Each EDWOSB concern participating in the joint venture shall
submit a separate signed copy of the EDWOSB representation.
* * * * *
(c) * * *
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. 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.
* * * * *
(d) * * *
(2) Under 15 U.S.C. 645(d), any person who misrepresents a
firm's status as a business concern that is small, HUBZone small,
small disadvantaged, service-disabled veteran-owned small,
economically disadvantaged women-owned small, or women-owned small
eligible under the WOSB Program in order to obtain a contract to be
awarded under the preference programs established pursuant to
section 8, 9, 15, 31, and 36 of the Small Business Act or any other
provision of Federal law that specifically references section 8(d)
for a definition of program eligibility, shall--
* * * * *
Alternate I (APR 2011). * * *
* * * * *
52.219-2 [Amended]
0
31. Amend section 52.219-2 by removing from the introductory paragraph
``19.308(c)'' and adding ``19.309(c)'' in its place.
52.219-22 [Amended]
0
32. Amend section 52.219-22 by--
0
a. Removing from the introductory paragraph ``19.308(b)'' and adding
``19.309(b)'' in its place; and
0
b. Removing from Alternate I ``(Oct 1998)'' and adding ``(APR 2011)'';
and removing text ``19.307(b)'' and adding ``19.309(b)'' in its place.
52.219-28 [Amended]
0
33. Amend section 52.219-28 by removing from the introductory paragraph
``19.308(d)'' and adding ``19.309(d)'' in its place;
0
34. Add sections 52.219-29 and 52.219-30 to read as follows:
52.219-29 Notice of Total Set-Aside for Economically Disadvantaged
Women-Owned Small Business (EDWOSB) Concerns.
As prescribed in 19.1506, insert the following clause:
Notice of Total Set-Aside for Economically Disadvantaged Women-Owned
Small Business (EDWOSB) Concerns (APR 2011)
(a) Definitions. 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. It automatically qualifies as a
women-owned small business (WOSB) concern eligible under the WOSB
Program.
WOSB Program Repository means a secure, Web-based application
that collects, stores, and disseminates documents to the contracting
community and SBA, which verify the eligibility of a business
concern for a contract to be awarded under the WOSB Program.
(b) General. (1) Offers are solicited only from EDWOSB concerns.
Offers received from concerns that are not EDWOSB concerns will not
be considered.
(2) Any award resulting from this solicitation will be made to
an EDWOSB concern.
(3) The contracting officer will ensure that the EDWOSB concern
has provided all required documents to the WOSB Program Repository.
The contract will not be awarded until all required documents are
received.
(c) Agreement. An EDWOSB concern agrees that in the performance
of the contract for--
(1) Services (except construction), the concern will perform at
least 50 percent of the cost of the contract incurred for personnel
with its own employees;
(2) Supplies or products (other than procurement from a non-
manufacturer in such supplies or products), the concern will perform
at least 50 percent of the cost of manufacturing the supplies or
products (not including the costs of materials);
(3) General construction, the concern will perform at least 15
percent of the cost of the contract with its own employees (not
including the costs of materials); and
(4) Construction by special trade contractors, the concern will
perform at least 25 percent of the cost of the contract with its own
employees (not including the cost of materials).
(d) Joint Venture. A joint venture may be considered an EDWOSB
concern if--
(1) It meets the applicable size standard corresponding to the
NAICS code assigned to the contract, unless an exception to
affiliation applies pursuant to 13 CFR 121.103(h)(3);
(2) The EDWOSB participant of the joint venture is designated in
the Central Contractor Registration (CCR) database and
[[Page 18315]]
the Online Representations and Certifications Application (ORCA) as
an EDWOSB concern;
(3) The parties to the joint venture have entered into a written
joint venture agreement that contains provisions--
(i) Setting forth the purpose of the joint venture;
(ii) Designating an EDWOSB concern as the managing venturer of
the joint venture, and an employee of the managing venturer as the
project manager responsible for the performance of the contract;
(iii) Stating that not less than 51 percent of the net profits
earned by the joint venture will be distributed to the EDWOSB;
(iv) Specifying the responsibilities of the parties with regard
to contract performance, sources of labor, and negotiation of the
EDWOSB contract; and
(v) Requiring the final original records be retained by the
managing venturer upon completion of the EDWOSB contract performed
by the joint venture.
(4) The joint venture performs the applicable percentage of work
required in accordance with paragraph (c) above; and
(5) The procuring activity executes the contract in the name of
the EDWOSB or joint venture.
(e) Nonmanufacturer. An EDWOSB that is a non-manufacturer, as
defined in 13 CFR 121.406(b) or FAR 19.102(f), may submit an offer
on an EDWOSB requirement with a NAICS code for supplies, if it meets
the requirements under the non-manufacturer rule set forth in those
regulations.
(End of clause)
52.219-30 Notice of Total Set-Aside for Women-Owned Small Business
Concerns Eligible Under the Women-Owned Small Business Program.
As prescribed in 19.1506, insert the following clause:
Notice of Total Set-Aside for Women-Owned Small Business Concerns
Eligible Under the Women-Owned Small Business Program (APR 2011)
(a) Definitions. 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.
WOSB Program Repository means a secure, Web-based application
that collects, stores, and disseminates documents to the contracting
community and SBA, which verify the eligibility of a business
concern for a contract to be awarded under the WOSB Program.
(b) General. (1) Offers are solicited only from WOSBs. Offers
received from concerns that are not WOSBs shall not be considered.
(2) Any award resulting from this solicitation will be made to a
WOSB.
(3) The contracting officer will ensure that the WOSB has
provided the required documents to the WOSB Program Repository. The
contract shall not be awarded until all required documents are
received.
(c) Agreement. A WOSB agrees that in the performance of the
contract for--
(1) Services (except construction), the concern will perform at
least 50 percent of the cost of the contract incurred for personnel
with its own employees;
(2) Supplies or products (other than procurement from a non-
manufacturer in such supplies or products), the concern will perform
at least 50 percent of the cost of manufacturing the supplies or
products (not including the costs of materials);
(3) General construction, the concern will perform at least 15
percent of the cost of the contract with its own employees (not
including the costs of materials); and
(4) Construction by special trade contractors, the concern will
perform at least 25 percent of the cost of the contract with its own
employees (not including cost of materials).
(d) Joint Venture. A joint venture may be considered a WOSB if--
(1) It meets the applicable size standard corresponding to the
NAICS code assigned to the contract, unless an exception to
affiliation applies pursuant to 13 CFR 121.103(h)(3);
(2) The WOSB participant of the joint venture is designated in
the Central Contractor Registration (CCR) database and the Online
Representations and Certifications Application (ORCA) as a WOSB
concern;
(3) The parties to the joint venture have entered into a written
joint venture agreement that contains provisions--
(i) Setting forth the purpose of the joint venture;
(ii) Designating a WOSB as the managing venturer of the joint
venture, and an employee of the managing venturer as the project
manager responsible for the performance of the contract;
(iii) Stating that not less than 51 percent of the net profits
earned by the joint venture will be distributed to the WOSB;
(iv) Specifying the responsibilities of the parties with regard
to contract performance, sources of labor, and negotiation of the
WOSB contract; and
(v) Requiring the final original records be retained by the
managing venturer upon completion of the WOSB contract performed by
the joint venture.
(4) The joint venture must perform the applicable percentage of
work required in accordance with paragraph (c) above; and
(5) The procuring activity executes the contract in the name of
the WOSB or joint venture.
(e) Nonmanufacturer. A WOSB that is a non-manufacturer, as
defined in 13 CFR 121.406(b) or FAR 19.102(f), may submit an offer
on a WOSB requirement with a NAICS code for supplies, if it meets
the requirements under the non-manufacturer rule set forth in those
regulations.
(End of clause)
PART 53--FORMS
0
35. Revise section 53.301-1447 to read as follows:
53.301-1447 Solicitation/Contract.
BILLING CODE 6820-EP-P
[[Page 18316]]
[GRAPHIC] [TIFF OMITTED] TR01AP11.040
[[Page 18317]]
[GRAPHIC] [TIFF OMITTED] TR01AP11.041
0
36. Revise section 53.301-1449 to read as follows:
53.301-1449 Solicitation/Contract/Order for Commercial Items.
[[Page 18318]]
[GRAPHIC] [TIFF OMITTED] TR01AP11.042
[[Page 18319]]
[GRAPHIC] [TIFF OMITTED] TR01AP11.043
0
37. Revise section 53.302-347 to read as follows:
53.302-347 Order for Supplies or Services.
[[Page 18320]]
[GRAPHIC] [TIFF OMITTED] TR01AP11.044
[[Page 18321]]
[GRAPHIC] [TIFF OMITTED] TR01AP11.045
[[Page 18322]]
[FR Doc. 2011-7368 Filed 3-31-11; 8:45 am]
BILLING CODE 6820-EP-C