The Women-Owned Small Business Federal Contract Assistance Program, 34550-34563 [06-5354]

Agencies

• SMALL BUSINESS ADMINISTRATION

[Federal Register Volume 71, Number 115 (Thursday, June 15, 2006)]
[Proposed Rules]
[Pages 34550-34563]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 06-5354]


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SMALL BUSINESS ADMINISTRATION

13 CFR Parts 121, 125 and 127

RIN: 3245-AE65


The Women-Owned Small Business Federal Contract Assistance 
Program

AGENCY: Small Business Administration.

ACTION: Proposed rule.

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SUMMARY: The U.S. Small Business Administration (SBA) proposes to amend 
its regulations governing SBA's government contracting programs. This 
proposed rule would add a new part to implement the Women-Owned Small 
Business Federal Contract Assistance Program authorized under the Small 
Business Reauthorization Act of 2000. It would also make the relevant 
conforming amendments to SBA's regulations.

DATES: Comments must be received on or before July 17, 2006.

ADDRESSES: You may submit comments, identified by Agency name and RIN 
3245-AE65, by any of the following methods: (1) The Federal eRulemaking 
portal at https://www.regulations.gov; (2) E-mail (include RIN number in 
the subject line) to: Linda.Waters@sba.gov; Fax: (202) 205-6390; (3) 
Mail or Hand Delivery/Courier to Linda Waters, Procurement Analyst, 
Office of Federal Contract Assistance for Women Business Owners, U.S. 
Small Business Administration, 409 3rd Street, SW., Washington, DC 
20416.

FOR FURTHER INFORMATION CONTACT: Linda Waters, Procurement Analyst, 
Office of Federal Contract Assistance for Women Business Owners, (202) 
205-7315 or Linda.Waters@sba.gov.

SUPPLEMENTARY INFORMATION:

I. Background

    Women-owned businesses have been regarded as the fastest growing 
segment of the business community in the United States. Although 
between 1997 and 2002 the growth rate in the number of women-owned 
small businesses (WOSBs) was almost twice that of all firms, WOSBs have 
not received a commensurate increase in their share of Federal 
contracting dollars.
    Several congressional and executive efforts over the years to 
increase Federal contracting with WOSBs have not enhanced the WOSB 
share of Federal contracting dollars as much as anticipated. For 
example, in 1979, when Executive Order 12138 charged Federal agencies 
with responsibility for providing procurement assistance to women-owned 
businesses, WOSBs received only 0.2 percent of all Federal 
procurements. More than 9 years later, the percentage of WOSB Federal 
procurements had grown to only one percent. Similarly, in 1988, the 
Women's Business Ownership Act, Public Law 100-588 (Oct. 25, 1988), was 
enacted to assist women in starting, managing and growing small 
businesses. This program has been successful in assisting thousands of 
women in obtaining business financing and in business formation, but 
has enjoyed less success in the Federal procurement arena.
    Section 7106 of the Federal Acquisition Streamlining Act (FASA), 
Public Law 103-355 (Oct. 13, 1994), amended the Small Business Act (the 
Act) by establishing a target that would result in greater 
opportunities for women to compete for Federal contracts. FASA, among 
other things, amended the Small Business Act (the Act) by establishing 
a government-wide goal for participation by WOSBs in procurement 
contracts of not less than 5 percent of the total value of all prime 
contract and subcontract awards for each fiscal year. FASA also 
directed that WOSBs, like other small businesses and small 
disadvantaged businesses (SDBs), have the maximum practicable 
opportunity to become subcontractors for Federal contracts exceeding 
$100,000, and it mandated that WOSBs be included in subcontracting 
plans required under Section 8(d) of the Act, 15 U.S.C. 637(d).
    Federal Procurement Data System (FPDS) data indicates that since 
fiscal year (FY) 1996, Federal agencies have not met the separate 5 
percent government-wide WOSB goal for prime contracts and subcontracts. 
However, the share of Federal prime contracting dollars to WOSBs has 
increased over the years. For example, in FY 2000, WOSBs received 2.3 
percent of the approximately $200 billion in Federal prime contract 
awards. The share of WOSB prime contract awards increased to 2.49 
percent in FY 2001, and again to 2.90, 2.98, and 3.03 percent in FYs 
2002, 2003 and 2004, respectively. Nonetheless, the total percent of 
WOSB prime contract awards stills falls short of the statutory goal of 
5 percent.
    The Government Accountability Office (GAO) published a report in 
February 2001 discussing the trends and obstacles in Federal 
contracting with WOSBs since FY 1996. See Trends and Challenges in 
Contracting With Women-Owned Small Businesses, GAO-01-346. In that 
report, GAO noted that contracting officials complain that one of the 
primary obstacles in achieving the statutory five percent WOSB goal was 
the absence of a ``targeted government program for contracting with 
WOSBs.''
    Section 811 of the Small Business Reauthorization Act of 2000, 
Public Law 106-554, provided such a mechanism. Section 811, enacted on 
December 21, 2000, amended the Act by adding a new section 8(m), 15 
U.S.C. 637(m), authorizing contracting officers to restrict competition 
to eligible WOSBs for certain Federal contracts in industries in which 
SBA has determined that WOSBs are underrepresented or substantially 
underrepresented in Federal procurement. The new section 8(m) of the 
Act explicitly limits the contracting officer's authority to restrict 
competition to contracts not exceeding $3 million ($5 million for 
manufacturing). It further requires SBA to conduct a study to identify 
the industries in which WOSBs are underrepresented and substantially 
underrepresented in Federal procurement and requires the head of any 
department or agency to provide SBA with any information that SBA deems 
necessary to conduct the study.

[[Page 34551]]

    To be eligible as a WOSB under section 8(m) of the Act, the firm 
must be a ``small business concern owned and controlled by women'' as 
defined in section 3(n) of the Act, 15 U.S.C. 632(n). Section 8(m) also 
requires that such concerns be at least 51 percent owned by one or more 
women who are economically disadvantaged, except with respect to 
procurements in industries in which SBA has determined that WOSBs are 
substantially underrepresented in Federal contracting and has waived 
the requirement for economically disadvantaged women business owners.
    Section 8(m) of the Act requires SBA to establish the standards for 
determining the eligibility of a concern as a WOSB or economically 
disadvantaged WOSB (EDWOSB). It also charges SBA with responsibility 
for verifying a concern's eligibility and it provides the penalties for 
a concern's misrepresentation of its status as an EDWOSB or WOSB.
    To implement the new section 8(m) of the Act, this proposed rule 
would establish a WOSB Federal Contract Assistance Program (the 
Program) to be administered by SBA's Office of Government Contracting. 
Although the Program would be considered part of SBA's government 
contracting programs set forth under part 125 of title 13 of the Code 
of Federal Regulations (CFR), for ease of reference, the proposed WOSB 
regulations would be contained in a new part 127 of title 13.
    As proposed, the regulations provide the general definitions 
applicable to the Program; specific eligibility requirements for 
qualification as an EDWOSB or WOSB; the certification procedures for 
the Program; the process for SBA to verify the continuing eligibility 
of a concern; the contract assistance available under the Program; the 
relevant protest and appeal procedures; and the applicable penalties. 
The proposed rule also provides conforming amendments necessary to 
integrate the Program into SBA's size and government contracting 
regulations.
    SBA invites comment on all aspects of this proposed rule.

II. Section-by-Section Analysis

    The following is a section-by-section analysis of the proposed 
rule.

A. Conforming Amendments to Parts 121 and 125

    The authority citation for 13 CFR part 121 would be revised to 
include 15 U.S.C. 637(m), since part 121 would be amended to include 
references to the WOSB Federal Contracting Assistance Program.
    Section 121.401 would be amended to add the Program to the list of 
government procurement programs subject to size determinations. This 
would subject EDWOSBs and WOSBs to size protests and determinations 
under part 121 of title 13.
    Section 121.1001 also would be amended by adding a new paragraph 
(a)(9) to describe who may initiate a size protest in connection with a 
particular requirement set aside under the Program. That section would 
provide that any concern that submits an offer for a specific 
requirement set aside under the Program, the contracting officer, or 
the Associate Administrator for Government Contracting or designee, may 
protest the size of another offeror for the particular requirement.
    Section 121.1008 would be amended by adding a sentence that 
requires the SBA Government Contracting Area Director, or designee, to 
notify SBA's Assistant Administrator for Size Standards of receipt of a 
size protest involving a concern that is designated in the Central 
Contractor Registration (CCR) as a certified EDWOSB or WOSB.
    Section 125.6 would be amended to provide that EDWOSBs and WOSBs 
awarded a set-aside contract under this Program must satisfy certain 
requirements if they intend to subcontract. These subcontracting 
limitations are applicable to small businesses awarded a contract as a 
result of their small business status. Similar to the existing Sec.  
125.6(b) governing set asides under the Service-Disabled Veteran-Owned 
Small Business (SDVOSB) Program, the proposed Sec.  125.6(d) would 
allow an EDWOSB or WOSB prime contractor to utilize other WOSBs to help 
it meet the subcontracting requirements. This would afford WOSBs 
greater contracting opportunities.

B. Addition of a New Part 127

    A new part 127 would be added to title 13 of the CFR to provide the 
policies, procedures and requirements governing the Program.
    Subpart A provides background information concerning the Program. 
Specifically, Sec. Sec.  127.100 and 127.101 describe the purpose, 
legal basis and assistance provided under the Program. Section 127.102 
defines the relevant terms used in part 127. Many of those definitions 
are identical to or derived from the definitions provided in parts 121 
and 124 of this title, governing SBA's size, 8(a) Business Development 
(BD) and SDB programs.
    The proposed rule also uses several newly defined terms which SBA 
developed for ease of reference to various statutory requirements. For 
example, the proposed rule uses the term ``economically disadvantaged 
WOSB'' or ``EDWOSB'' to refer to the Act's requirement that certain 
WOSBs be not less than 51 percent owned and controlled by one or more 
women who are economically disadvantaged.
    Subpart B describes the eligibility requirements for qualification 
as an EDWOSB or WOSB. Because the Program uses similar ownership, 
control and economic disadvantage criteria as used in the 8(a) BD and 
SDB programs, this proposed rule similarly requires that the concern be 
at least 51 percent unconditionally owned and controlled by one or more 
women who are United States citizens. One notable exception is with 
respect to the application of community property laws. The Act 
explicitly provides that ownership shall be determined without regard 
to any community property laws. As a result, Sec.  127.201 precludes 
the application of community property laws in ownership determinations 
for purposes of the Program. For reasons of consistency, the economic 
disadvantage requirement in Sec.  127.203 has the same $750,000 
threshold for personal net worth as does the 8(a) BD program and the 
SDB program for purposes of determining a program participant's 
continuing eligibility.
    Subpart C of the proposed rule sets forth the certification 
requirements for concerns that submit offers on procurements set aside 
under the Program. Section 8(m)(2)(F)(i) of the Act authorizes 
certification by ``a Federal agency, a State government, or a national 
certifying entity'' approved by SBA. Consistent with that provision, 
subpart C of this proposed rule establishes the procedures for 
obtaining EDWOSB or WOSB certification from SBA.
    It is noteworthy that Section 8(m)(2)(F)(ii) of the Act also 
authorizes concerns to self-certify their status directly to the 
contracting officer, provided that their self-certifications include 
adequate documentation in accordance with standards established by SBA. 
However, based on prevailing Supreme Court precedent, the likely 
disruption that such an approach would have on the acquisition process 
as well as the Agency's goal of reducing the risk of fraud associated 
with the Program, SBA has decided not to propose a self-certification 
process for procurements set aside under the Program. In its 1995 
decision Adarand v. Pe[ntilde]a, 515 U.S. 200 (1995), the Supreme Court 
questioned

[[Page 34552]]

the use of self-certifications in affirmative action contracting 
programs. In addition, by requiring the submission of the supporting 
documentation to the contracting officer for review, Section 
8(m)(2)(F)(ii) essentially places the responsibility for policing self-
certifications on contracting officers. That added responsibility would 
create extra work for acquisition officials and would likely result in 
delays and other administrative inconveniences in the procurement 
process. Moreover, SBA certification, as authorized in section 
8(m)(2)(F)(i) and as proposed here, would reduce the likelihood of 
fraud and misrepresentation of WOSB status. As a result, this proposed 
rule requires certification by SBA in order for a concern to be 
eligible to receive an award set aside under this Program.
    Specifically, Sec.  127.300 of this proposed rule explains the 
purpose of EDWOSB or WOSB certification. That section indicates that 
SBA certification and designation of the concern on CCR as a certified 
EDWOSB or WOSB is necessary before a concern may submit an offer for an 
EDWOSB or WOSB requirement. The concern also must qualify as a small 
business for the particular procurement and must not have been subject 
to any material change in eligibility since its certification.
    Sections 127.301 through 127.303 provide the specific procedures 
for obtaining EDWOSB and WOSB certification. As proposed, the 
procedures are intended to impose the least burdensome application 
requirements and to simplify the certification scheme by providing a 
single certification process through SBA. In particular, the proposed 
Sec.  127.302 authorizes use of an SBA electronic application process, 
with the electronic application to be made available at a Web site to 
be determined when the final rule is published. To maximize the use of 
existing certification programs, Sec.  127.303 describes the other 
program certifications SBA will accept as EDWOSB or WOSB certifications 
for purposes of the Program, based on SBA's determination of the 
certification's compliance with governing EDWOSB and WOSB eligibility 
requirements.
    In an effort to minimize the burden on certified concerns, Sec.  
127.304 provides a three-year certification period, and Sec.  127.305 
sets forth streamlined recertification procedures and notification of 
change obligations. These requirements ensure the continuing 
eligibility of concerns designated on CCR as certified EDWOSBs and 
WOSBs.
    SBA seeks comments on the proposed certification procedures under 
subpart C. SBA specifically invites commenters to discuss alternative 
procedures to better streamline the certification process. SBA also 
solicits comments on what, if any, additional safeguards SBA should 
adopt to further protect the integrity of the certification process.
    Proposed Sec. Sec.  127.400 through 127.405 under subpart D discuss 
the program examination process for determining the continuing 
eligibility of a firm that is designated on CCR as a certified EDWOSB 
or WOSB. Those sections explain when and how SBA will conduct the 
program examination and the decertification procedures SBA will follow 
when it is unable to verify that a concern qualifies as an EDWOSB or 
WOSB.
    Proposed Sec.  127.401 also explains the distinctions between the 
program examination process and the EDWOSB and WOSB protest mechanism 
provided under the proposed subpart F. The proposed Sec.  127.401 makes 
clear that the program examination process is intended to verify the 
continuing EDWOSB or WOSB eligibility of a concern generally, while an 
EDWOSB or WOSB status protest is designed to determine the EDWOSB or 
WOSB eligibility of a concern for a specific procurement. The separate 
program examination procedures will assist in maintaining the integrity 
of the certification process by subjecting certified concerns to random 
examinations of their EDWOSB and WOSB eligibility. Consequently, 
program examinations will serve to supplement the protest mechanism by 
monitoring the continuing eligibility of firms that claim EDWOSB and 
WOSB status.
    Moreover, Sec.  127.401(a) further provides that if SBA is 
conducting a program examination on a concern that has submitted an 
offer on a pending EDWOSB or WOSB requirement and SBA has credible 
information that the concern may not qualify as an EDWOSB or WOSB, SBA 
may file a protest under Sec.  127.600 to challenge the concern's 
eligibility for award for the specific requirement.
    The provisions governing the available Federal contract assistance 
under this program are set forth in proposed subpart E. Sections 
127.500 through 127.502 discuss the industries in which contracting 
officers are authorized to restrict competition to EDWOSBs and WOSBs. 
As required under section section 8(m) of the Act, Sec.  127.500 
explains that contracting officers may only restrict competition to 
EDWOSBs and WOSBs in industries in which SBA has determined that WOSBs 
are either underrepresented or substantially underrepresented in 
Federal procurement. Sections 127.501 and 127.502 indicate how SBA will 
determine, identify and provide public notice of those industries.
    Those sections, like section 8(m) of the Act, do not specify how 
SBA will determine whether WOSBs are underrepresented or substantially 
underrepresented in a particular industry. Instead, Sec.  127.501 
provides generally that at least every three years SBA, or another 
entity authorized to act on its behalf, will conduct a study to 
identify the underrepresented or substantially underrepresented 
industries. As provided under Sec.  8(m) of the Act, Sec.  127.501 also 
requires other Federal agencies to furnish SBA, or any other entity SBA 
may designate for that purpose, with data or information that SBA finds 
necessary to conduct the study. It also explains the effective date of 
SBA's designation of eligible industries. Section 127.502 indicates 
that SBA will post a list of the eligible industries on its Internet 
Web site.
    SBA also proposes to publish a separate Federal Register notice, 
specifically detailing the methodology used to analyze the 
participation of WOSBs in Federal contracting and to designate the 
industries that will be eligible for restricted competition under the 
Program.
    Section 127.503 addresses when a contracting officer is authorized 
to restrict competition under the Program. It establishes a similar 
``rule-of-two'' standard as used in small business set asides. That 
section further makes clear that contracting officers may only allow 
certified WOSBs to submit offers for requirements in industries in 
which SBA has determined that WOSBs are substantially underrepresented 
and has waived the requirement for ownership and control of the firm by 
economically disadvantaged women.
    Sections 127.504 and 127.505 describe the additional requirements a 
concern must satisfy to submit an offer on an EDWOSB or WOSB 
requirement. Section 127.504 indicates that in addition to the 
certification requirements under subpart C, offerors on EDWOSB or WOSB 
requirements must also certify that they are small under the size 
standard for the procurement and that they will comply with the 
limitations on subcontracting rule set forth in Sec.  125.6 of this 
title. Section 127.505 explains that an EDWOSB or WOSB that is a non-
manufacturer, as defined in Sec.  121.406(b), may submit an offer for 
an

[[Page 34553]]

EDWOSB or WOSB requirement if it meets the requirements of Sec.  
121.406(b).
    Proposed Sec.  127.506 provides the rules governing joint venture 
relationships involving WOSBs. That section provides joint venture 
provisions that are modeled after the SDB joint venture regulations 
contained in Sec.  124.1002(f).
    The proposed Subpart F sets forth the procedures for protesting the 
status of a concern as an EDWOSB or WOSB, including the procedures for 
filing protests, for rendering protest determinations and for appealing 
those determinations to SBA's Associate Deputy Administrator for 
Government Contracting and Business Development (ADA/GC&BD). Sections 
127.600 through 127.602 describe who is authorized to file and decide 
EDWOSB and WOSB status protests and the permissible grounds for filing 
protests.
    Sections 127.603 through 127.606 prescribe the applicable deadlines 
for filing and determining EDWOSB and WOSB protests and for appealing 
SBA's protest determinations. Unlike program examinations under the 
proposed subpart D, protests are time sensitive because they are tied 
to a particular procurement. As a result, Sec. Sec.  127.604 and 
127.605 prescribe filing and decision deadlines to minimize undue 
interruptions in the underlying procurement.
    The final section of the proposed part 127, subpart G, Sec.  
127.700, prescribes the applicable penalties that may be imposed on any 
person or concern that misrepresents the status of a concern as an 
EDWOSB or WOSB for purposes of receiving a benefit under the Program.
    Compliance with Executive Orders 12866, 12988, and 13132, the 
Paperwork Reduction Act (44 U.S.C. Ch. 35), and the Regulatory 
Flexibility Act (5 U.S.C. 601-612).
Executive Order 12866
    The Office of Management and Budget (OMB) has determined that this 
rule is a ``significant'' regulatory action under Executive Order 
12866. The Regulatory Impact Analysis is set forth below.

Regulatory Impact Analysis

1. Necessity of Regulation

    This regulatory action is needed to implement section 8(m) of the 
Act, which was enacted as part of section 811 of the Small Business 
Reauthorization Act of 2000, Public Law 106-554. Section 8(m) 
authorizes the creation of the WOSB Program. Under this Program certain 
Federal contracts in industries in which SBA has determined that WOSBs 
are underrepresented or substantially underrepresented in Federal 
procurement may be restricted to WOSBs that meet certain requirements. 
This rule will establish such requirements and the procedures necessary 
to administer the Program.

2. Alternative Approaches to Proposed Rule

    Before proposing this rule, SBA evaluated the estimated costs and 
benefits of the alternatives. The primary alternative SBA considered in 
implementing section 8(m) of the Act was with respect to the provisions 
relating to the certification of firms that claim EDWOSB or WOSB 
status. In particular, section 8(m)(2)(F) provides that participants of 
the WOSB Program must be certified by a Federal agency, a State 
government, or a national certifying entity approved by the 
Administrator, as a small business concern owned and controlled by 
economically disadvantaged women.
    In developing proposed regulations to implement those provisions, 
SBA considered the legislative provision under section 8(m)(2)(F)(ii) 
of the Small Business Act. That section authorizes firms to self-
certify their status as EDWOSB and WOSB concerns and submit the 
necessary supporting documentation directly to the contracting officer 
for the particular procurement. SBA has decided not to adopt that 
approach because of the possible constitutional infirmities associated 
with self-certification, the probable delay in requiring contracting 
officers to review the supporting documentation and the Agency's desire 
to reduce the risk of fraud. SBA determined that the alternative 
approach proposed is the most cost-effective for both the government 
and WOSBs. The proposed approach provides for a simplified electronic 
application process and for SBA to accept other Federal program 
certifications that it determines comply with the EDWOSB and WOSB 
eligibility requirements. The approach also is consistent with SBA's 
statutory responsibilities under section 8(m) of the Act to establish 
certification standards and procedures.
Executive Order 12988
    For purposes of Executive Order 12988, SBA has drafted this 
proposed rule, to the extent practicable, in accordance with the 
standards set forth in section 3 of that Order.
Executive Order 13132
    For purposes of Executive Order 13132, SBA has determined that this 
proposed rule has no Federalism implications warranting the preparation 
of a Federalism Assessment.
Paperwork Reduction Act
    For purposes of the Paperwork Reduction Act, 44 U.S.C. Chapter 35, 
SBA has determined that this proposed rule imposes two new reporting 
requirements. The titles, descriptions of respondents and the 
information collections, along with an estimate of the annual reporting 
burdens are discussed below. Included in the estimates is the time for 
reviewing instructions, searching existing data sources, gathering and 
maintaining the data needed, and completing and reviewing each 
collection of information. As required by the Paperwork Reduction Act, 
SBA will also submit the two information collections to OMB for review.
    SBA invites comments on: (1) Whether the proposed collections of 
information are necessary for the proper performance of SBA's 
functions, including whether the information will have a practical 
utility; (2) the accuracy of SBA's estimate of the burdens of the 
proposed collections of information, including the validity of the 
methodology and assumptions used; (3) ways to enhance the quality, 
utility, and clarity of the information to be collected; and (4) ways 
to minimize the burden of the collections of information on 
respondents, including through the use of automated collection 
techniques, when appropriate, and other forms of information 
technology.
    Please send comments by the closing date for comment for this 
proposed rule to David Rostker, Office of Management and Budget, Office 
of Information and Regulatory Affairs, 725 17th Street, NW., 
Washington, DC 20503, and to Linda Waters, Procurement Analyst, Office 
of Federal Contract Assistance for Women Business Owners, Small 
Business Administration, 409 Third Street, SW., Washington, DC 20416.

A. Application for Certification

    Title: Application for the Women-Owned Small Business (WOSB) 
Federal Contract Assistance Program Certification. [No SBA Form Number]
    Summary: The proposed regulations require concerns [that have not 
been otherwise certified] seeking certification for the WOSB program to 
submit to SBA an application, which demonstrates that the concern meets 
the eligibility requirements for the Program. Concerns will be required 
to submit information establishing that: (1) The concern is small as 
defined by SBA in 13 CFR part 121, Small Business Size Regulations; (2) 
one or more women unconditionally

[[Page 34554]]

and directly own at least 51% of the concern; (3) the woman or women 
who own at least 51% of the concern are United States citizens; and (4) 
if seeking certification as an EDWOSB, the 51% or more owners are 
economically disadvantaged, that is, their ability to compete in the 
free enterprise system has been impaired due to diminished capital and 
credit opportunities as compared to others in the same line of 
business. Concerns will be subject to criminal, civil and 
administrative penalties for making misrepresentations or false 
statements in the application for certification as an EDWOSB or WOSB.
    Need and Purpose: Section 811 of the Small Business Reauthorization 
Act of 2000 authorizes contracting officers to restrict competition to 
eligible WOSBs for certain Federal contracts in industries in which SBA 
has determined that WOSBs are underrepresented or substantially 
underrepresented in Federal procurement. Section 811 specifies the 
eligibility criteria for EDWOSBs and WOSBs and requires SBA to 
establish procedures for verifying the eligibility of concerns that 
claim that status. The information submitted on the application for 
certification will enable SBA to verify that the concern qualifies as 
an EDWOSB or WOSB.
    Description of Respondents: Concerns that are seeking certification 
as an EDWOSB or WOSB will submit this application. Concerns that have 
been certified under other Federal programs (including SBA's 8(a) and 
SDB programs), and that satisfy EDWOSB and WOSB eligibility 
requirements, will automatically qualify and will not need to submit 
this application. This program has not yet been implemented; therefore, 
there is no actual data to measure the number of respondents or the 
time to complete the certification. However, because the certification 
requirements and procedures for the WOSB program will be similar to the 
SDB, HUBZone and 8(a) certification programs, SBA relied on its 
experience with those programs as its basis for arriving at the 
following estimates.
    As of January 2006, there were approximately 76,000 WOSBs 
registered in CCR. SBA estimates that of this total, approximately 
16,500 WOSBs will ultimately seek certification from SBA, at the rate 
of approximately 2,000 concerns each year. SBA estimates that each of 
these 2,000 applicants will need approximately 2.5 hours to complete 
the certification application, at a cost of approximately $150.00 per 
hour. Therefore, the estimated aggregate hour burden for this 
certification is 5,000 hours per annum, costing an aggregated $750,000 
for the year.

B. Recertification

    Title: Recertification Form for the Women-Owned Small Business 
(WOSB) Federal Contract Assistance Program. [No SBA Form Number]
    Summary: According to the proposed regulations, EDWOSBs and WOSBs 
that are designated as certified concerns on CCR must recertify their 
eligibility to SBA every three years. The recertification form will 
require an authorized representative of a concern that is listed on CCR 
as a certified EDWOSB or WOSB to certify under the penalty of perjury 
that it continues to satisfy the eligibility requirements to qualify as 
an EDWOSB or WOSB. Specifically, the concern will certify that: (1) 
There has been no material change in circumstances that could affect 
the concern's eligibility for the WOSB program since such eligibility 
was last determined; and (2) SBA has not decertified the concern, or 
otherwise determined that the concern does not qualify as a EDWOSB or 
WOSB.
    Need and Purpose: As noted above, section 8(m) of the Small 
Business Act requires SBA to determine that all concerns in the WOSB 
program meet the eligibility requirements for participation in the 
Program. As part of this responsibility, SBA has an ongoing need to 
ensure that each concern certified as an EDWOSB or WOSB continues to 
meet the eligibility requirements. The information submitted on the 
recertification form will enable SBA to verify that the concern 
continues to qualify as an EDWOSB or WOSB.
    Description of Respondents: All concerns that are designated on CCR 
as certified EDWOSBs and WOSBs are required to submit the 
recertification form to SBA within 60 days prior to the expiration of 
their three-year certification period. Since the proposed regulations 
do not require concerns to recertify their EDWOSB or WOSB status until 
two months before the expiration of their three-year certification 
term, no concerns will recertify their status during the first two 
years of the operation of the WOSB Program. Thereafter, SBA estimates 
that approximately 1,000 concerns will recertify their eligibility to 
SBA each year. The estimated decline in the number of concerns 
recertifying relative to the number of concerns that initially 
certified would more than likely be attributable to WOSBs not being 
eligible due to size or ownership, losing interest in the program or 
ceasing operation.
    SBA estimates that each of the 1,000 WOSBs recertifying each year 
will need approximately 30 minutes to complete the recertification 
form. SBA estimates that the cost to complete this collection will be 
approximately $75.00 per half-hour. Thus, the estimated aggregated 
burden is 500 hours per annum, costing an aggregated $75,000 for the 
year.

Regulatory Flexibility Act

    SBA has determined that this proposed rule establishing the WOSB 
Federal Contract Assistance Program may have a significant economic 
impact on a substantial number of small entities within the meaning of 
the Regulatory Flexibility Act (RFA), 5 U.S.C. 601, et seq. 
Accordingly, SBA has prepared an Initial Regulatory Flexibility 
Analysis (IRFA) addressing the impact of the WOSB Federal Contract 
Assistance Program in accordance with Section 603, Title 5, of the 
United States Code. The IRFA examines the objectives and legal basis 
for the proposed rule; the kind and number of small entities that may 
be affected; the projected recordkeeping, reporting, and other 
requirements; whether there are any Federal rules that may duplicate, 
overlap, or conflict with the proposed rule; and whether there are any 
significant alternatives to the proposed rule.
1. What are the Reasons for, and Objectives of, the Proposed Rule?
    SBA is proposing to establish the Women-Owned Small Business 
Federal Assistance Program pursuant to the SBA Reauthorization Act, 
Pub. L. 106-554, enacted December 21, 2000. Section 8(m) of the Act 
created a ``Procurement Program for Women-Owned Small Business 
Concerns'' which authorizes the use of ``restricted competition'' in 
industries where WOSBs are underrepresented in Federal procurement and 
when certain other conditions are met. The purpose of the proposed rule 
is to create an initial framework and infrastructure for implementing 
this new program, thereby providing a tool Federal agencies may 
eventually use to increase Federal contracting to WOSBs.
    The objective of this proposed rule is to increase the amount of 
Federal contract dollars awarded to WOSBs in industries where they are 
currently underutilized. The program will assist Federal agencies in 
achieving the Federal Government's goal of awarding 5 percent of 
Federal contract dollars to WOSBs, as provided in the Federal 
Acquisition Streamlining Act of 1994. Federal procurement was nearly 
$300 billion in FY 2004, of which $9.1 billion

[[Page 34555]]

in Federal contracts, or 3 percent, went to WOSBs.
2. What is the Legal Basis for the Proposed Rule?
    This action, including publication of proposed rules, is authorized 
pursuant to section 8(m) of SBA's Reauthorization Act (Pub. L. 106-
554), enacted December 21, 2000, that authorizes a new mechanism for 
Federal contracting with WOSBs.
3. What is SBA's description and estimate of the number of small 
entities to which the rule will apply?
    The RFA directs agencies to provide a description, and where 
feasible, an estimate of the number of small business concerns that may 
be affected by the proposed rules, if adopted. This proposed rule would 
ultimately establish in the Federal Acquisition Regulation (FAR) a new 
procurement mechanism to benefit WOSBs. Therefore, WOSBs that compete 
for Federal contracts are the specific group of small business concerns 
most directly affected by this proposed rule. This rule may also affect 
other small businesses to the extent that small businesses not owned 
and controlled by women 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 businesses in the United 
States. More than 900,000 of these businesses have one or more paid 
employees. Most women-owned businesses, however, do not participate in 
the Federal contracting market. The information contained in the 
Federal Government's CCR provides the best source of information on 
businesses interested in Federal contracting, including information on 
businesses identified as WOSBs.
    In February 2005, approximately 75,000 businesses represented 
themselves as WOSBs in CCR as actual or potential Federal contractors. 
The potential number of WOSBs that could be direct beneficiaries of a 
program restricting certain Federal contracts to only WOSBs is likely 
to be much fewer than the number of WOSBs registered in CCR. Not all 
WOSBs will satisfy the certification requirements for SBA-certified 
EDWOSB and WOSB status. Also, the expected benefits of the Program may 
be less attractive to some WOSBs than other programs designed to assist 
small businesses.
    SBA estimates that up to 16,500 WOSBs over time may seek status as 
an SBA-certified WOSB. SBA's experience with its SDB Certification and 
Eligibility Program provides an example of a similar program for 
certain designated entities that may reveal the level of interest and 
participation by WOSBs. SBA has found that not all businesses 
identified in CCR as minority-owned seek or are eligible for SBA-
certified SDB status. Approximately 22 percent of minority-owned small 
businesses (MSB) registered in CCR have obtained certified SDB status. 
In lieu of other indications, SBA assumes that a similar experience 
will occur with WOSBs seeking SBA certification. Applying the 22 
percent certified SDB to MSB ratio to the 75,000 CCR-registered WOSBs 
results in approximately 16,500 potentially certified WOSBs. Currently, 
7,673 WOSBs are SBA-certified as SDB or HUBZone firms, many of which 
are likely to seek SBA-certified WOSB status.
    The potential number of SBA-certified WOSBs could be lower or 
higher than estimated. This proposed rule, if adopted, will affect SBA-
certified WOSBs that participate in Federal procurement in industries 
where they are underrepresented. Not all areas of Federal procurement 
are likely to be designated as underrepresented, and opportunities in 
some of the qualified areas may be limited. Consequently, many 
otherwise-qualified WOSBs will not find WOSB-certified status as 
beneficial.
    On the other hand, the estimated number of SBA-certified WOSBs 
could also be higher than 16,500. As other WOSBs realize that they can 
successfully compete in those qualified industries where contracts may 
be restricted to SBA-certified WOSBs, more WOSBs may pursue becoming 
qualified and active participants in this market, especially those now 
participating in state and local disadvantaged business enterprise 
contracting programs.
    The proposed rule, if adopted, may also affect non-WOSBs (firms not 
51 percent owned and controlled by women) seeking Federal contracts for 
which competition has been restricted to participants in this program. 
The CCR lists approximately 300,000 small businesses that are not 
WOSBs. Among these are 22,000 small businesses certified in the 8(a) 
and HUBZone Programs.
    Additional contracting opportunities identified by Federal agencies 
as candidates to set aside for SBA-certified WOSBs will come from new 
contracting requirements and contracts currently performed by small and 
large businesses. At this time, SBA cannot estimate how the existing 
distribution of contracts by business type may change by this proposed 
rule. Until the WOSB-underrepresented industries are identified, no 
supportable quantifiable estimate can be made on the potential benefits 
to WOSBs and impact on other small businesses. However, SBA does not 
expect that many, if any, contracts awarded through the 8(a), HUBZone, 
or SDVOSB Programs ($14.3 billion in FY 2004) will be re-competed as 
WOSB set-aside contracts because those programs also support 
socioeconomic goals that agencies strive to achieve through their 
contracting activities.
4. What are the Projected Reporting, Recordkeeping, Paperwork Reduction 
Act and Other Compliance Requirements?
    WOSBs are not required to be certified as such in order to contract 
with the Federal Government. This will still be true if the proposed 
rule is adopted. However, for a WOSB to participate in the Program, it 
will have to be certified by SBA as a WOSB. This provision ensures that 
the program is narrowly tailored and participation is restricted to 
qualified WOSBs. Similar provisions apply to WOSBs desiring to 
participate in SBA's 8(a) or SDB program or the Department of 
Transportation's Disadvantaged Business Enterprise program. SBA may 
accept WOSBs currently certified for those programs when presented with 
evidence of the existing certification.
    This certification requirement will have associated costs, i.e., 
labor costs, for participating WOSBs. At a minimum, potential 
participants must complete specific forms and provide adequate 
documentation. Documents include what a business would normally have on 
hand, e.g., ownership records, tax records, etc. Firms applying for 
certification will have to locate, copy and submit supporting 
documents. SBA estimates that the cost to complete these activities 
will be approximately $150.00 per hour. After the tax and other 
business papers for documentation are assembled, completing the form is 
estimated to take about 2.5 hours. An estimated 2,000 firms per year 
are expected to apply using the full form process and thus, the total 
cost is estimated to be $750,000 per year. The paperwork burden on the 
WOSB applying for certification is estimated from SBA's experience with 
SDB and 8(a) applications that require similar documentation to support 
the claim of economic disadvantage and 51 percent ownership and control 
of the firm.
    This rule also proposes a recertification process. However, to 
minimize the reporting burden on WOSBs, SBA is proposing that WOSBs 
recertify every three years instead of

[[Page 34556]]

annually. The total cost associated with the recertification process is 
expected to be less than the certification process because the 
information required to be submitted is far less. However, the labor 
cost is expected to be the same $150 per hour because the same level of 
knowledge about the firm's status will be necessary. It will take 
approximately 30 minutes to complete the recertification form and with 
1,000 concerns expected to recertify their eligibility each year, the 
total cost of recertification will be approximately $75,000.
5. What Relevant Federal Rules may Duplicate, Overlap, or Conflict with 
the Rule?
    SBA has not identified any relevant Federal rules currently in 
effect that duplicate, overlap, or conflict with this proposed rule. 
This ``restricted competition'' program for WOSBs would be an addition 
to the small business, SDB, HUBZone, SDVOSB and 8(a) preference 
programs that agencies currently administer. Because any contract to a 
WOSB may also count toward the agency's small business goal, this 
program enhances an agency's chances of meeting its goals in the other 
preference programs as well as the 5 percent WOSB goal. Where 
applicable, a WOSB contract can also count toward other goals, such as 
SDVOSB or SDB. Therefore, rather than duplicate, overlap or conflict 
with, the addition of the WOSB program should complement existing 
rules. Because agencies are not required to use the Program, the issue 
of which preference program takes precedence should be mitigated.
6. What Significant Alternatives did SBA Consider that Accomplish the 
Stated Objectives and Minimize Any Significant Economic Impact on Small 
Entities?
    The Regulatory Flexibility Act (RFA) requires agencies to identify 
alternatives to the proposed rule in an effort to ``minimize any 
significant economic impact of the proposed rule on small entities.'' 
SBA has determined that the proposed rule may have a significant 
economic impact on a substantial number of small entities.
    This proposed rule would implement a WOSB Federal Contracting 
Program as established by Section 811 of Pub. L. 106-554 (15 U.S.C. 
637(m)). Most of the provisions of this proposed rule reflect 
requirements under that Program. The legislation does provide SBA with 
alternative approaches for the certification of WOSBs. Specifically, a 
WOSB may be certified by a Federal agency, a State government, or a 
national certifying entity approved by the Administrator, or a WOSB may 
submit a certification 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 the 
Administration. As discussed earlier, SBA is proposing that it will be 
responsible for certifying businesses as EDWOSBs and WOSBs.
    SBA decided to perform the certification function based on 
administrative and legal considerations. SBA currently performs 
certifications for status as 8(a) firms, HUBZone firms, and SDBs. 
Because the Act uses similar ownership, control and economic 
disadvantage criteria as used in the 8(a) BD and SDB Programs, SBA is 
able to efficiently utilize existing processes to determine the 
eligibility of businesses as EDWOSBs and WOSBs. SBA also believes that 
such an approach would reduce the likelihood of fraud and 
misrepresentation of WOSB status.
    An alternative approach would have businesses self-certify their 
status directly to the contracting officer, provided that their self-
certifications include adequate documentation in accordance with 
standards established by SBA. However, based on prevailing Supreme 
Court precedent, the likely disruption that such an approach would have 
on the acquisition process as well as the Agency's goal of preventing 
fraud, SBA has decided not to propose a self-certification process for 
procurements set aside under the Program.
    As described in this RFA's discussion of reporting requirements and 
other compliance issues, WOSBs will incur new costs associated with the 
application process. However, SBA believes that its proposed 
certification approach is more preferable than for potential bidders to 
submit the same information with each offer and, most likely, to 
different contracting officers. Not only could that entail higher costs 
in the long run, it creates a potential for inconsistent and erroneous 
decisions.
    SBA welcomes comments on this proposed rule's RFA. Comments from 
small entities concerning the affected 13 CFR parts will be considered 
in accordance with section 610 of the Act. Such comments must be 
submitted separately and should cite 5 U.S.C. 601, et seq. in 
correspondence.

List of Subjects

13 CFR Part 121

    Government procurement, Government property, Grant programs--
business, Individuals with disabilities, Loan programs--business, Small 
businesses.

13 CFR Part 125

    Government contracts, Government procurement, Reporting and 
recordkeeping requirements, Small businesses, Technical assistance.

13 CFR Part 127

    Administrative practice and procedure, Government procurement, 
Reporting and recordkeeping requirements, Small businesses.

    Accordingly, for the reasons stated in the preamble, SBA proposes 
to amend 13 CFR chapter I as follows:

PART 121--SMALL BUSINESS SIZE REGULATIONS

    1. The authority citation for 13 CFR part 121 is revised to read as 
follows:

    Authority: 15 U.S.C. 632, 634(b)(6), 636(b), 637, 644, and 
662(5); and Pub. L. 105-135, sec. 401 et seq., 111 Stat. 2592; Pub. 
L. 106-24, 113 Stat. 39.

Sec.  121.401  [Amended]

    2. Amend Sec.  121.401 by adding the phrase ``the Women-Owned Small 
Business (WOSB) Federal Contract Assistance Program,'' after the phrase 
``SBA's HUBZone Program''.
    3. Amend Sec.  121.1001 by adding a new paragraph (a)(9) to read as 
follows:


Sec.  121.1001  Who may initiate a size protest or request a formal 
size determination?

    (a) * * *
    (9) For SBA's WOSB Federal Contracting Assistance Program, the 
following entities may protest:
    (i) Any concern that submits an offer for a specific requirement 
set aside for WOSBs or WOSBs owned by one or more women who are 
economically disadvantaged (EDWOSB).
    (ii) The contracting officer;
    (iii) The SBA Government Contracting Area Director; and
    (iv) The Associate Administrator for Government Contracting, or 
designee.
* * * * *
    4. Amend Sec.  121.1008(a) by adding a new sentence after the 
second sentence to read as follows:


Sec.  121.1008  What happens after SBA receives a size protest or a 
request for a formal size determination?

    (a) * * * If the protest pertains to a requirement set aside for 
WOSBs or EDWOSBs, the Area Director will also notify SBA's Assistant 
Administrator for Size Standards of the protest. * * *

[[Page 34557]]

PART 125--GOVERNMENT CONTRACTING PROGRAMS

    5. The authority citation for 13 CFR part 125 continues to read as 
follows:

    Authority: 15 U.S.C. 632(p), (q), 637, 644, and 657f.

    6. Section 125.6 is amended by redesignating paragraphs (d) through 
(j) as paragraphs (e) through (k), respectively, and by adding a new 
paragraph (d) to read as follows:


Sec.  125.6  Prime contractor performance requirements (limitations on 
subcontracting).

* * * * *
    (d) An economically disadvantaged women-owned small business or 
women-owned small business (WOSB) awarded a contract pursuant to Sec.  
127.503 of this chapter may subcontract part of the contract provided:
    (1) In the case of a contract for services (except construction), 
the concern spends at least 50 percent of the cost of the contract 
performance incurred for personnel on the concern's employees or the 
employees of other concerns designated as a certified WOSB in the 
Central Contractor Registration (CCR);
    (2) In the case of a contract for general construction, the concern 
spends at least 15 percent of the cost of contract performance incurred 
for personnel on the concern's employees or the employees of other 
concerns designated as a certified WOSB in CCR;
    (3) In the case of a contract for construction by special trade 
contractors, the concern spends at least 25 percent of the cost of 
contract performance incurred for personnel on the concern's employees 
or the employees of other concerns designated as a certified WOSB in 
CCR; and
    (4) In the case of a contract for procurement of supplies or 
products (other than procurement from a non-manufacturer in such 
supplies or products), at least 50 percent of the cost of manufacturing 
the supplies or products (not including the costs of materials), will 
be performed by the concern or other concerns designated as a certified 
WOSB in CCR.
    (5) In the case of a contract awarded under Sec.  126.503 to a 
joint venture formed in accordance with Sec.  127.506, the joint 
venture must perform the applicable percentage of work.
* * * * *
    7. Add a new part 127 to read as follows:

PART 127--WOMEN-OWNED SMALL BUSINESS FEDERAL CONTRACT ASSISTANCE 
PROGRAM

Subpart A--General Provisions
127.100 What is the purpose of part 127?
127.101 What type of assistance is available under part 127?
127.102 What are the definitions of the terms used in part 127?
Subpart B--Eligibility Requirements To Qualify as an EDWOSB or WOSB
127.200 What are the requirements a concern must meet to qualify as 
an EDWOSB or WOSB?
127.201 What are the requirements for ownership of an EDWOSB and 
WOSB?
127.202 What are the requirements for control of an EDWOSB or WOSB?
127.203 What are the rules governing the requirement that 
economically disadvantaged women must own EDWOSBs?
Subpart C--Certification of EDWOSB or WOSB Status
127.300 What is the purpose of obtaining EDWOSB or WOSB 
certification?
127.301 How may a concern become certified as an EDWOSB or WOSB?
127.302 What is the process for obtaining EDWOSB or WOSB 
certification from SBA?
127.303 What are the other program certifications SBA will accept as 
EDWOSB or WOSB certifications for purposes of the WOSB Program?
127.304 How long does EDWOSB or WOSB certification last?
127.305 How does a concern maintain certification?
Subpart D--Program Examinations
127.400 What is a program examination?
127.401 What is the difference between a program examination and an 
EDOWSB or WOSB status protest pursuant to subpart F of this part?
127.402 How will SBA conduct a program examination?
127.403 What happens if SBA verifies the concern's eligibility?
127.404 What happens if SBA is unable to verify a concern's 
eligibility?
Subpart E--Federal Contract Assistance
127.500 In what industries is a contracting officer authorized to 
restrict competition under this part?
127.501 How will SBA determine the industries in which WOSBs are 
underrepresented or substantially underrepresented?
127.502 How will SBA identify and provide notice of the industries 
that are eligible for EDWOSB or WOSB requirements?
127.503 When is a contracting officer authorized to restrict 
competition under this part?
127.504 What additional requirements must a concern satisfy to 
submit an offer on a EDWOSB or WOSB requirement?
127.505 May a non-manufacturer submit an offer on an EDWOSB or WOSB 
requirement for supplies?
127.506 May a joint venture submit an offer on an EDWOSB or WOSB 
requirement?
Subpart F--Protests
127.600 Who may protest the status of a concern as an EDWOSB or 
WOSB?
127.601 May a protest challenging the size and status of a concern 
as a EDWOSB or WOSB be filed together?
127.602 What are the grounds for filing an EDWOSB or WOSB status 
protest?
127.603 What are the requirements for filing an EDWOSB or WOSB 
protest?
127.604 How will SBA process an EDWOSB or WOSB status protest?
127.605 What are the procedures for appealing an EDWOSB or WOSB 
status protest decision?
Subpart G--Penalties
121.700 What penalties may be imposed under this part?

    Authority: 15 U.S.C. 632, 634(b)(6), 637(m), and 644.

Subpart A--General Provisions


Sec.  127.100  What is the purpose of part 127?

    Section 8(m) of the Small Business Act authorizes certain 
procurement mechanisms to increase Federal contracting opportunities 
for women-owned small businesses (WOSBs) and to assist agencies in 
achieving their WOSB participation goals mandated under Section 15(g) 
of the Small Business Act.


Sec.  127.101  What type of assistance is available under part 127?

    This part authorizes contracting officers to restrict competition 
to eligible WOSBs for certain Federal contracts in industries in which 
the Small Business Administration (SBA) has determined that WOSBs are 
underrepresented or substantially underrepresented in Federal 
procurement.


Sec.  127.102  What are the definitions of the terms used in part 127?

    For purposes of this part:
    8(a) Business Development (8(a) BD) concern means a concern that 
SBA has certified as an 8(a) BD program participant.
    AA/GC means SBA's Associate Administrator for Government 
Contracting.
    ADA/GC&BD means SBA's Associate Deputy Administrator for Government 
Contracting and Business Development.
    Central Contractor Registration (CCR) means the system that 
functions as the central registration and repository of contractor data 
for the Federal government. CCR also serves as the single portal for 
conducting searches of small business contractors and as the 
authoritative source for identifying contractors that are certified as 
8(a) BD program participants, small

[[Page 34558]]

disadvantaged businesses, WOSBs and EDWOSBs. Prospective Federal 
contractors must be registered in CCR prior to award of a contract or 
purchase agreement, unless the award results from a solicitation issued 
on or before May 31, 1998.
    Certified concern means a concern that is determined to qualify as 
an economically disadvantaged WOSB or WOSB by SBA or under another 
program that SBA has determined includes the same eligibility criteria 
as set forth in Sec.  127.200.
    Citizen means a person born or naturalized in the United States. 
Resident aliens and holders of permanent visas are not considered to be 
citizens.
    Concern means a firm that satisfies the requirements in Sec.  
121.105 this chapter.
    Contracting officer has the meaning given to that term in section 
27(f)(5) of the Office of Federal Procurement Policy Act (codified at 
41 U.S.C. 423(f)(5)).
    Decertification or decertify means the determination by SBA that a 
certified concern does not qualify as an economically disadvantaged 
WOSB or as a WOSB.
    Economically disadvantaged WOSB (EDWOSB) means a concern that is 
small pursuant to part 121 of this title and that is at least 51% owned 
and controlled by one or more women who are economically disadvantaged 
in accordance with Sec. Sec.  127.200, 127.201, 127.202 and 127.203. An 
EDWOSB automatically qualifies as a WOSB.
    EDWOSB requirement means a Federal requirement for services or 
supplies for which a contracting officer has restricted competition to 
EDWOSBs.
    Immediate family member means father, mother, husband, wife, son, 
daughter, brother, sister, grandfather, grandmother, grandson, 
granddaughter, father-in-law, mother-in-law, son-in-law, and daughter-
in-law.
    Interested party means any concern that submits an offer for a 
specific EDWOSB or WOSB requirement.
    Primary industry classification means the six digit North American 
Industry Classification System (NAICS) code designation that best 
describes the primary business activity of the concern. The NAICS code 
designations are described in the NAICS manual available via the 
Internet at https://www.census.gov/NAICS.
    Small disadvantaged business (SDB) means a concern that SBA has 
certified in accordance with subpart B of part 124 of this chapter, and 
has listed on CCR as an SDB.
    WOSB means a concern that is small pursuant to part 121 of this 
chapter, and that is at least 51% owned and controlled by one or more 
women in accordance with Sec. Sec.  127.200, 127.201 and 127.202.
    WOSB requirement means a Federal requirement for services or 
supplies for which a contracting officer has restricted competition to 
eligible WOSBs.

Subpart B--Eligibility Requirements To Qualify as an EDWOSB or WOSB


Sec.  127.200  What are the requirements a concern must meet to qualify 
as an EDWOSB or WOSB?

    (a) Qualification as an EDWOSB. To qualify as an EDWOSB, a concern 
must be:
    (1) A small business as defined in part 121 of this chapter; and
    (2) Not less than 51 percent unconditionally and directly owned and 
controlled by one or more women who are United States citizens and are 
economically disadvantaged.
    (b) Qualification as a WOSB. To qualify as a WOSB, a concern must 
be:
    (1) A small business as defined in part 121 of this chapter; and
    (2) Not less than 51 percent unconditionally and directly owned and 
controlled by one or more women who are United States citizens.


Sec.  127.201  What are the requirements for ownership of an EDWOSB and 
WOSB?

    (a) General. To qualify as an EDWOSB or WOSB, one or more women 
must unconditionally and directly own at least 51 percent of the 
concern. Ownership will be determined without regard to community 
property laws.
    (b) Requirement for unconditional ownership. To be considered 
unconditional, the ownership must not be subject to any conditions, 
executory agreements, voting trusts, or other arrangements that cause 
or potentially cause ownership benefits to go to another. The pledge or 
encumbrance of stock or other ownership interest as collateral, 
including seller-financed transactions, does not affect the 
unconditional nature of ownership if the terms follow normal commercial 
practices and the owner retains control absent violations of the terms.
    (c) Requirement for direct ownership. To be considered direct, the 
qualifying women must own 51 percent of the concern directly. The 51 
percent ownership may not be through another business entity or a trust 
(including employee stock ownership trusts) that is, in turn, owned and 
controlled by one or more women or economically disadvantaged women. 
However, ownership by a trust, such as a living trust, may be treated 
as the functional equivalent of ownership by a woman or economically 
disadvantaged woman where the trust is revocable, and the woman is the 
grantor, a trustee, and the sole current beneficiary of the trust.
    (d) Ownership of a partnership. In the case of a concern that is a 
partnership, at least 51 percent of each class of partnership interest 
must be unconditionally owned by one or more women. The ownership must 
be reflected in the concern's partnership agreement. For purposes of 
this requirement, general and limited partnership interests are 
considered different classes of partnership interest.
    (e) Ownership of a limited liability company. In the case of a 
concern that is a limited liability company, at least 51 percent of 
each class of member interest must be unconditionally owned by one or 
more women.
    (f) Ownership of a corporation. In the case of a concern that is a 
corporation, at least 51 percent of each class of voting stock 
outstanding and 51 percent of the aggregate of all stock outstanding 
must be unconditionally owned by one or more women. In determining 
unconditional ownership of the concern, any unexercised stock options 
or similar agreements held by a woman will be disregarded. However, any 
unexercised stock option or other agreement, including the right to 
convert non-voting stock or debentures into voting stock, held by any 
other individual or entity will be treated as having been exercised.


Sec.  127.202  What are the requirements for control of an EDWOSB or 
WOSB?

    (a) General. To qualify as an EDWOSB or WOSB, the management and 
daily business operations of the concern must be controlled by one or 
more women. Control by one or more women means that both the long-term 
decision making and the day-to-day management and administration of the 
business operations must be conducted by one or more women.
    (b) Managerial position and experience. A woman must hold the 
highest officer position in the concern (usually President or Chief 
Executive Officer) and must have managerial experience of the extent 
and complexity needed to run the concern. The woman manager need not 
have the technical expertise or possess the required license to be 
found to control the concern if she can demonstrate that she has 
ultimate managerial and supervisory control over those who possess the 
required licenses or technical expertise. However, if a man possesses 
the required license and

[[Page 34559]]

has an equity interest in the concern, he may be found to control the 
concern.
    (c) Limitation on outside employment. The woman who holds the 
highest officer position of the concern may not engage in outside 
employment that prevents her from devoting sufficient time and 
attention to the daily affairs of the concern to control its management 
and business operations.
    (d) Control over a partnership. In the case of a partnership, one 
or more women must serve as general partners, with control over all 
partnership decisions.
    (e) Control over a limited liability company. In the case of a 
limited liability company, one or more women must serve as management 
members, with control over all decisions of the limited liability 
company.
    (f) Control over a corporation. One or more women must control the 
Board of Directors of the concern. Women are considered to control the 
Board of Directors when either:
    (1) One or more women own at least 51 percent of all voting stock 
of the concern, are on the Board of Directors and have the percentage 
of voting stock necessary to overcome any super majority voting 
requirements; or
    (2) Women comprise the majority of voting directors through actual 
numbers or, where permitted by state law, through weighted voting.
    (g) Involvement in the concern by other individuals or entities. 
Men or other entities may be involved in the management of the concern 
and may be stockholders, partners or limited liability members of the 
concern. However, no males or other entity may exercise actual control 
or