Federal Acquisition Regulation; Women-Owned Small Business (WOSB) Program, 18304-18322 [2011-7368]

Download as PDF 18304 Federal Register / Vol. 76, No. 63 / Friday, April 1, 2011 / Rules and Regulations and National Aeronautics and Space Administration (NASA). DEPARTMENT OF DEFENSE GENERAL SERVICES ADMINISTRATION Summary presentation of final and interim rules. ACTION: NATIONAL AERONAUTICS AND SPACE ADMINISTRATION This document summarizes the Federal Acquisition Regulation (FAR) rules agreed to by DoD, GSA, and NASA in this Federal Acquisition Circular (FAC) 2005–51. A companion document, the Small Entity Compliance Guide (SECG), follows this FAC. The FAC, including the SECG, is available via the Internet at http:// www.regulations.gov. SUMMARY: 48 CFR Chapter 1 [Docket FAR 2011–0076, Sequence 3] Federal Acquisition Regulation; Federal Acquisition Circular 2005–51; Introduction Department of Defense (DoD), General Services Administration (GSA), AGENCIES: For effective dates and comment dates, see separate documents, which follow. DATES: The analyst whose name appears in the table below in relation to each FAR case. Please cite FAC 2005–51 and the specific FAR case numbers. For information pertaining to status or publication schedules, contact the Regulatory Secretariat at (202) 501– 4755. FOR FURTHER INFORMATION CONTACT: LIST OF RULES IN FAC 2005–51 Item Subject I ................ II ............... Women-Owned Small Business (WOSB) Program (Interim) ............................................... Clarification of Standard Form 26—Award/Contract ............................................................ SUPPLEMENTARY INFORMATION: Summaries for each FAR rule follow. For the actual revisions and/or amendments made by these FAR cases, refer to the specific item numbers and subject set forth in the documents following these item summaries. FAC 2005–51 amends the FAR as specified below: jlentini on DSKJ8SOYB1PROD with RULES2 Item I—Women-Owned Small Business (WOSB) Program (FAR Case 2010–015) (Interim) This interim rule amends the FAR to add subpart 19.15, Women-Owned Small Business Program, which will assist Federal agencies in achieving the 5 percent statutory goal for contracting with women-owned small business (WOSB) concerns. Agencies may restrict competition to economically disadvantaged womenowned small business (EDWOSB) concerns for contracts assigned a North American Industry Classification Systems (NAICS) code in an industry in which the Small Business Administration has determined that WOSB concerns are underrepresented in Federal procurement. For NAICS code industries where WOSB concerns are not just underrepresented, but substantially underrepresented, agencies may restrict competition to WOSB concerns eligible under the WOSB Program. EDWOSB concerns and WOSB concerns eligible under the WOSB Program must be owned and controlled by one or more women who are citizens of the United States. An EDWOSB concern is automatically a WOSB VerDate Mar<15>2010 16:58 Mar 31, 2011 Jkt 223001 FAR case concern eligible under the WOSB Program. Item II—Clarification of Standard Form 26—Award/Contract (FAR Case 2009– 029) This final rule amends the FAR to revise FAR part 53 to amend the Standard Form (SF) 26, Award/Contract, above blocks 17 and 18 and in block 18 to clarify that block 18 should not be used when awarding a negotiated procurement and should only be checked when awarding a sealed bid contract. The changes will not prevent contracting officers from using block 17 of the SF 26 when awarding negotiated procurements in which the signature of both parties, on a single document, is required; it will only prohibit them from using block 18 of the SF 26 when awarding negotiated procurements. Dated: March 24, 2011. Millisa Gary, Acting Director, Office of Governmentwide Acquisition Policy. Federal Acquisition Circular (FAC) 2005–51 is issued under the authority of the Secretary of Defense, the Administrator of General Services, and the Administrator for the National Aeronautics and Space Administration. Unless otherwise specified, all Federal Acquisition Regulation (FAR) and other directive material contained in FAC 2005–51 is effective April 1, 2011, except for Item II which is effective May 2, 2011. PO 00000 Frm 00002 Fmt 4701 Sfmt 4700 2010–015 2009–029 Analyst Morgan. Jackson. Dated: March 23, 2011. Richard Ginman, Deputy Director, Defense Procurement and Acquisition Policy (Contingency Contracting and Acquisition Policy). Dated: March 23, 2011. Joseph A. Neurauter, Senior Procurement Executive/Deputy CAO, Office of Acquisition Policy, U.S. General Services Administration. Dated: March 18, 2011. Leigh Pomponio, Procurement Analyst, National Aeronautics and Space Administration. [FR Doc. 2011–7367 Filed 3–31–11; 8:45 am] BILLING CODE 6820–EP–P 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 Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA). ACTION: Interim rule. AGENCIES: E:\FR\FM\01APR2.SGM 01APR2 Federal Register / Vol. 76, No. 63 / Friday, April 1, 2011 / Rules and Regulations 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: jlentini on DSKJ8SOYB1PROD with RULES2 SUMMARY: 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 VerDate Mar<15>2010 16:58 Mar 31, 2011 Jkt 223001 small business (WOSB) concerns and economically disadvantaged womenowned 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)’’, ‘‘womenowned small business (WOSB) concern eligible under the WOSB Program’’, and ‘‘economically disadvantaged womenowned small business (EDWOSB) concern’’. • To qualify as a WOSB concern eligible under the WOSB Program, the concern must be— Æ A small business as defined in 13 CFR part 121 in its primary industry classification; and Æ 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— Æ A small business as defined in 13 CFR part 121 in its primary industry classification; and Æ 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 PO 00000 Frm 00003 Fmt 4701 Sfmt 4700 18305 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 WomenOwned 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 E:\FR\FM\01APR2.SGM 01APR2 18306 Federal Register / Vol. 76, No. 63 / Friday, April 1, 2011 / Rules and Regulations 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: jlentini on DSKJ8SOYB1PROD with RULES2 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 VerDate Mar<15>2010 16:58 Mar 31, 2011 Jkt 223001 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 noneligible 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 PO 00000 Frm 00004 Fmt 4701 Sfmt 4700 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. E:\FR\FM\01APR2.SGM 01APR2 Federal Register / Vol. 76, No. 63 / Friday, April 1, 2011 / Rules and Regulations jlentini on DSKJ8SOYB1PROD with RULES2 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. VerDate Mar<15>2010 16:58 Mar 31, 2011 Jkt 223001 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 PO 00000 Frm 00005 Fmt 4701 Sfmt 4700 18307 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: 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). E:\FR\FM\01APR2.SGM 01APR2 18308 Federal Register / Vol. 76, No. 63 / Friday, April 1, 2011 / Rules and Regulations PART 2—DEFINITIONS OF WORDS AND TERMS 2. Amend section 2.101 in paragraph (b)(2) by— ■ a. Adding, in alphabetical order, the definition ‘‘economically disadvantaged women-owned small business (EDWOSB) concern’’; ■ b. Revising the definition ‘‘womenowned small business concern’’; and ■ c. Adding, in alphabetical order, the definition ‘‘Women-Owned Small Business (WOSB) Program’’. The added and revised text reads as follows: ■ 2.101 Definitions. jlentini on DSKJ8SOYB1PROD with RULES2 * * * * * (b) * * * (2) * * * Economically disadvantaged womenowned small business (EDWOSB) concern—(see definition of WomenOwned 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 VerDate Mar<15>2010 16:58 Mar 31, 2011 Jkt 223001 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 womenowned 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 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 womenowned small business set-asides, or (B) Substantially underrepresented for women-owned small business setasides. * * * * * PART 6—COMPETITION REQUIREMENTS 6.207 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 womenowned 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 Frm 00006 Fmt 4701 Sfmt 4700 PART 13—SIMPLIFIED ACQUISITION PROCEDURES 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 veteranowned small business concerns, or EDWOSB concerns and WOSB concerns eligible under the WOSB Program. * * * * * ■ 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 [Redesignated 6.208] ■ PO 00000 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. 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 7. Amend section 14.502 by redesignating paragraph (b)(7) as (b)(8); ■ E:\FR\FM\01APR2.SGM 01APR2 Federal Register / Vol. 76, No. 63 / Friday, April 1, 2011 / Rules and Regulations 11. Amend section 19.000 by revising paragraph (a)(3) to read as follows: EDWOSB concern, or WOSB concern eligible under the WOSB Program (see the provision at 52.219–1, Small Business Program Representations). * * * * * ■ 15. Amend section 19.202–6 by— ■ a. Removing from the end of paragraph (a)(4) the word ‘‘and’’; ■ b. Removing from paragraph (a)(5) ‘‘(see Subpart 19.14).’’ and adding ‘‘(see subpart 19.14); and’’ in its place; and ■ c. Adding paragraph (a)(6) to read as follows: 19.000 19.202–6 price. and adding a new paragraph (b)(7) to read as follows: on a competitive basis. (See subpart 19.15.) 14.502 18.203 Conditions for use. * * * * * (b) * * * (7) The use of a set-aside for economically disadvantaged womanowned 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 8. Amend section 15.503 in paragraph (a)(2) by— ■ a. Removing from the end of paragraph (a)(2)(i)(C) the word ‘‘or’’; ■ b. Removing from the end of paragraph (a)(2)(i)(D) ‘‘19.1405.’’ and adding ‘‘19.1405; or’’ in its place; ■ c. Adding paragraph (a)(2)(i)(E); and ■ 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 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: jlentini on DSKJ8SOYB1PROD with RULES2 ■ 18.117 Awards to economically disadvantaged women-owned small business (EDWOSB) concerns and womenowned small business (WOSB) concerns eligible under the WOSB Program. Contracts may be awarded to EDWOSB concerns and WOSB concerns 16:58 Mar 31, 2011 [Amended] 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 ■ Scope of part (a) * * * (3) Setting acquisitions aside for exclusive competitive participation by small business, 8(a) business development participants, HUBZone small business concerns, servicedisabled 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; * * * * * ■ 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 setaside, under subpart 19.14 as a servicedisabled veteran-owned small business set-aside, or under subpart 19.15 as an economically disadvantaged womenowned small business (EDWOSB) or women-owned small business (WOSB) set-aside. * * * * * 19.202 [Amended] 13. Amend section 19.202 by removing ‘‘19.13 or 19.14’’ and adding ‘‘19.13, 19.14, or 19.15’’ in its place. ■ 14. Amend section 19.202–5 by revising paragraph (a) to read as follows: ■ 18.117 through 18.126 [Redesignated as 18.118 through 18.127] VerDate Mar<15>2010 Jkt 223001 18309 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 veteranowned small business, HUBZone small business, small disadvantaged business, women-owned small business, PO 00000 Frm 00007 Fmt 4701 Sfmt 4700 Determination of fair market (a) * * * (6) Set-asides for EDWOSB concerns and WOSB concerns eligible under the WOSB Program (see subpart 19.15). * * * * * ■ 16. Amend section 19.203 by— ■ a. Revising paragraph (a); ■ b. Removing from paragraph (b) ‘‘or SDVOSB Program’’ and adding ‘‘SDVOSB Program, or WOSB Program’’ in its place; ■ 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 WomenOwned Small Business (WOSB) Program (subpart 19.15). * * * * * ■ 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 womenowned small business concerns and women-owned small business (WOSB) concerns eligible under the WOSB Program. 19.308 [Redesignated as 19.309] 18. Redesignate section 19.308 as section 19.309; and add a new section 19.308 to read as follows: ■ E:\FR\FM\01APR2.SGM 01APR2 18310 Federal Register / Vol. 76, No. 63 / Friday, April 1, 2011 / Rules and Regulations jlentini on DSKJ8SOYB1PROD with RULES2 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: Womenowned 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 VerDate Mar<15>2010 16:58 Mar 31, 2011 Jkt 223001 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. PO 00000 Frm 00008 Fmt 4701 Sfmt 4700 (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. ■ 19. Amend section 19.402 by revising paragraphs (c)(1)(i) and (ii) to read as follows: E:\FR\FM\01APR2.SGM 01APR2 Federal Register / Vol. 76, No. 63 / Friday, April 1, 2011 / Rules and Regulations 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 womenowned small, and women-owned small eligible under the Woman-Owned Small Business Program; and * * * * * ■ 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. * * * * * * * * ■ 21. Amend section 19.804–2 by revising paragraph (a)(9) to read as follows: 19.804–2 Agency offering. jlentini on DSKJ8SOYB1PROD with RULES2 (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, servicedisabled veteran-owned small business concerns, or a set-aside under the WOSB Program. * * * * * ■ 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 veteranowned small business set-asides (see VerDate Mar<15>2010 16:58 Mar 31, 2011 Jkt 223001 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). * * * * * ■ 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. PO 00000 Frm 00009 Fmt 4701 Sfmt 4700 18311 (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, bylaws 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. E:\FR\FM\01APR2.SGM 01APR2 18312 Federal Register / Vol. 76, No. 63 / Friday, April 1, 2011 / Rules and Regulations (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 nonmanufacturer 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). jlentini on DSKJ8SOYB1PROD with RULES2 19.1505 Set-aside procedures. (a) The contracting officer may setaside acquisitions exceeding the micropurchase 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. VerDate Mar<15>2010 16:58 Mar 31, 2011 Jkt 223001 (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 PO 00000 Frm 00010 Fmt 4701 Sfmt 4700 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 womenowned 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] 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 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 veteranowned small business status, and 19.308 for protests of the status of an economically disadvantaged womenowned small business concern or of a women-owned small business concern eligible under the Women-Owned Small Business Program.) * * * * * E:\FR\FM\01APR2.SGM 01APR2 Federal Register / Vol. 76, No. 63 / Friday, April 1, 2011 / Rules and Regulations PART 36—CONSTRUCTION AND ARCHITECT-ENGINEER CONTRACTS 36.501 [Amended] 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 27. Amend section 42.501 by revising paragraph (b) to read as follows: ■ 42.501 52.212–3 Offeror Representations and Certifications—Commercial Items. 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 28. Amend section 52.212–3 by— a. Revising the date of the clause; b. Adding in paragraph (a), in alphabetical order, the definitions ‘‘economically disadvantaged womenowned small business (EDWOSB) concern’’ and ‘‘women-owned small business (WOSB) concern eligible under the WOSB Program’’; ■ c. Redesignating paragraphs (c)(6), (c)(7), (c)(8), and (c)(9) as paragraphs (c)(8), (c)(9), (c)(10), and (c)(11), respectively; ■ d. Adding new paragraphs (c)(6) and (c)(7); ■ 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)’’; ■ 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)’’; ■ 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; jlentini on DSKJ8SOYB1PROD with RULES2 ■ ■ ■ VerDate Mar<15>2010 19:25 Mar 31, 2011 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; ■ 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 ■ j. Revising the date of Alternate II and the introductory text. The added and revised text to read as follows: ■ Jkt 223001 * * * * * Offeror Representations and Certifications—Commercial Items (APR 2011) (a) * * * Economically disadvantaged womenowned 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 womenowned small business (EDWOSB) concern. [Complete only if the offeror represented PO 00000 Frm 00011 Fmt 4701 Sfmt 4700 18313 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: * * * * * 29. Amend section 52.212–5 by— a. Revising the date of the clause; b. Redesignating paragraphs (b)(21) through (b)(46) as paragraphs (b)(23) through (b)(48); and ■ 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) * * * ll (21) 52.219–29 Notice of Total SetAside for Economically Disadvantaged Women-Owned Small Business (EDWOSB) Concerns (APR 2011). ll (22) 52.219–30 Notice of Total SetAside for Women-Owned Small Business (WOSB) Concerns Eligible Under the WOSB Program (APR 2011). * * * * * 30. Amend section 52.219–1 by— a. Removing from the introductory paragraph ‘‘19.308(a)(1)’’ and adding ‘‘19.309(a)(1)’’ in its place; ■ b. Revising the date of the provision; ■ c. Redesignating paragraphs (b)(4) through (b)(6) as paragraphs (b)(6) through (b)(8); ■ d. Adding new paragraphs (b)(4) and (b)(5); ■ e. Removing from newly redesignated (b)(7) ‘‘in paragraph (b)(4)’’ and adding ‘‘in paragraph (b)(6)’’ in its place; ■ ■ E:\FR\FM\01APR2.SGM 01APR2 18314 Federal Register / Vol. 76, No. 63 / Friday, April 1, 2011 / Rules and Regulations f. Removing from newly redesignated (b)(8) ‘‘in paragraph (b)(6)’’ and adding ‘‘in paragraph (b)(8)’’ in its place; ■ g. Adding in paragraph (c), in alphabetical order, the definitions ‘‘economically disadvantaged womenowned small business (EDWOSB) concern’’ and ‘‘women-owned small business (WOSB) concern eligible under the WOSB Program’’; ■ h. Revising paragraph (d)(2); ■ 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 ■ j. Redesignating Alternate I paragraph (7) as paragraph (9). ■ 52.219–1 Small Business Program Representations. * * * * * Small Business Program Representations (APR 2011) jlentini on DSKJ8SOYB1PROD with RULES2 * * * * * (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: ll.] Each WOSB concern participating in the joint venture shall submit a separate signed copy of the WOSB representation. (5) Economically disadvantaged womenowned 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: VerDate Mar<15>2010 16:58 Mar 31, 2011 Jkt 223001 _________.] Each EDWOSB concern participating in the joint venture shall submit a separate signed copy of the EDWOSB representation. 52.219–29 Notice of Total Set-Aside for Economically Disadvantaged WomenOwned Small Business (EDWOSB) Concerns. * As prescribed in 19.1506, insert the following clause: * * * * (c) * * * Economically disadvantaged womenowned 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] 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] 32. Amend section 52.219–22 by— a. Removing from the introductory paragraph ‘‘19.308(b)’’ and adding ‘‘19.309(b)’’ in its place; and ■ 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] 33. Amend section 52.219–28 by removing from the introductory paragraph ‘‘19.308(d)’’ and adding ‘‘19.309(d)’’ in its place; ■ 34. Add sections 52.219–29 and 52.219–30 to read as follows: ■ PO 00000 Frm 00012 Fmt 4701 Sfmt 4700 Notice of Total Set-Aside for Economically Disadvantaged WomenOwned 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 E:\FR\FM\01APR2.SGM 01APR2 Federal Register / Vol. 76, No. 63 / Friday, April 1, 2011 / Rules and Regulations 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 WomenOwned Small Business Concerns Eligible Under the Women-Owned Small Business Program (APR 2011) jlentini on DSKJ8SOYB1PROD with RULES2 (a) Definitions. Women-owned small business (WOSB) concern eligible under the VerDate Mar<15>2010 16:58 Mar 31, 2011 Jkt 223001 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); PO 00000 Frm 00013 Fmt 4701 Sfmt 4700 18315 (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 35. Revise section 53.301–1447 to read as follows: ■ 53.301–1447 Solicitation/Contract. BILLING CODE 6820–EP–P E:\FR\FM\01APR2.SGM 01APR2 VerDate Mar<15>2010 Federal Register / Vol. 76, No. 63 / Friday, April 1, 2011 / Rules and Regulations 16:58 Mar 31, 2011 Jkt 223001 PO 00000 Frm 00014 Fmt 4701 Sfmt 4725 E:\FR\FM\01APR2.SGM 01APR2 ER01AP11.040</GPH> jlentini on DSKJ8SOYB1PROD with RULES2 18316 36. Revise section 53.301–1449 to read as follows: ■ VerDate Mar<15>2010 16:58 Mar 31, 2011 Jkt 223001 53.301–1449 Solicitation/Contract/Order for Commercial Items. PO 00000 Frm 00015 Fmt 4701 Sfmt 4700 E:\FR\FM\01APR2.SGM 01APR2 18317 ER01AP11.041</GPH> jlentini on DSKJ8SOYB1PROD with RULES2 Federal Register / Vol. 76, No. 63 / Friday, April 1, 2011 / Rules and Regulations VerDate Mar<15>2010 Federal Register / Vol. 76, No. 63 / Friday, April 1, 2011 / Rules and Regulations 16:58 Mar 31, 2011 Jkt 223001 PO 00000 Frm 00016 Fmt 4701 Sfmt 4725 E:\FR\FM\01APR2.SGM 01APR2 ER01AP11.042</GPH> jlentini on DSKJ8SOYB1PROD with RULES2 18318 37. Revise section 53.302–347 to read as follows: ■ VerDate Mar<15>2010 16:58 Mar 31, 2011 Jkt 223001 53.302–347 PO 00000 Frm 00017 18319 Order for Supplies or Services. Fmt 4701 Sfmt 4700 E:\FR\FM\01APR2.SGM 01APR2 ER01AP11.043</GPH> jlentini on DSKJ8SOYB1PROD with RULES2 Federal Register / Vol. 76, No. 63 / Friday, April 1, 2011 / Rules and Regulations VerDate Mar<15>2010 Federal Register / Vol. 76, No. 63 / Friday, April 1, 2011 / Rules and Regulations 16:58 Mar 31, 2011 Jkt 223001 PO 00000 Frm 00018 Fmt 4701 Sfmt 4725 E:\FR\FM\01APR2.SGM 01APR2 ER01AP11.044</GPH> jlentini on DSKJ8SOYB1PROD with RULES2 18320 VerDate Mar<15>2010 16:58 Mar 31, 2011 Jkt 223001 PO 00000 Frm 00019 Fmt 4701 Sfmt 9990 E:\FR\FM\01APR2.SGM 01APR2 18321 ER01AP11.045</GPH> jlentini on DSKJ8SOYB1PROD with RULES2 Federal Register / Vol. 76, No. 63 / Friday, April 1, 2011 / Rules and Regulations 18322 Federal Register / Vol. 76, No. 63 / Friday, April 1, 2011 / Rules and Regulations [FR Doc. 2011–7368 Filed 3–31–11; 8:45 am] BILLING CODE 6820–EP–C DEPARTMENT OF DEFENSE GENERAL SERVICES ADMINISTRATION NATIONAL AERONAUTICS AND SPACE ADMINISTRATION 48 CFR Part 53 [FAC 2005–51; FAR Case 2009–029; Item II; Docket 2010–0096, Sequence 1] RIN 9000–AL72 Federal Acquisition Regulation; Clarification of Standard Form 26— Award/Contract Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA). ACTION: Final rule. AGENCIES: DoD, GSA, and NASA are issuing a final rule amending the Federal Acquisition Regulation (FAR) to include clarifications to Standard Form (SF) 26, Award/Contract. This revised form includes changes above blocks 17 and 18 and in block 18 to clarify that block 18 should not be used when awarding a negotiated procurement and should only be checked when awarding a sealed bid contract. DATES: Effective Date: May 2, 2011. FOR FURTHER INFORMATION CONTACT: Mr. Michael O. Jackson, Procurement Analyst, at (202) 208–4949 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 2009–029. SUPPLEMENTARY INFORMATION: SUMMARY: jlentini on DSKJ8SOYB1PROD with RULES2 I. Background DoD, GSA, and NASA published a proposed rule in the Federal Register at 75 FR 54560 on September 8, 2010, to clarify the use of blocks 17 and 18 of the Standard Form (SF) 26, Award/Contract. VerDate Mar<15>2010 16:58 Mar 31, 2011 Jkt 223001 FAR 53.214(a) prescribes the SF 26 for use in contracting for supplies and services by sealed bidding (except for construction and architect-engineer services). The SF 26 is used to award sealed bid contracts after obtaining bids using a SF 33, Solicitation, Offer, and Award. FAR 14.408–1(d)(1) specifies that, if an offer made using a SF 33 leads to further changes, the resulting contract must be prepared as a bilateral document using the SF 26. Agencies identified instances in which contracting officers mistakenly checked block 18 when awarding negotiated, not sealed bid contracts, which created the potential for disputes between the agency and contractors. The clarifications provided on the form for when to use blocks 17 and 18 should eliminate this issue. The changes will not prevent contracting officers from using block 17 of the SF 26 to award negotiated procurements; it will clarify to contracting officers the proper use of block 17 and block 18 and prohibit the use of block 18 of the SF 26 when awarding negotiated procurements. This final rule clarifies the use of block 18 on the SF 26, Award/Contract, and references the new form at FAR 53.214(a) and 53.215–1(a). No respondents submitted comments on the proposed rule. II. Executive Order 12866 and 13563 This is not a significant regulatory action and, therefore, was not 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 FAR drafting conventions. III. Regulatory Flexibility Act The Department of Defense, the General Services Administration, and PO 00000 Frm 00020 Fmt 4701 Sfmt 4700 the National Aeronautics and Space Administration certify that this final rule will not 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 it is solely a clarification for the benefit of Government contracting officers and does not make any substantive changes to current policy. IV. Paperwork Reduction Act The final rule does not contain any information collection requirements that require the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35). List of Subjects in 48 CFR Part 53 Government procurement. Dated: March 24, 2011. Millisa Gary, Acting Director, Office of Governmentwide Acquisition Policy. Therefore, DoD, GSA, and NASA amend 48 CFR part 53 as set forth below: PART 53—FORMS 1. The authority citation for 48 CFR part 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). 53.214 [Amended] 2. Amend section 53.214 by removing from paragraph (a) ‘‘SF 26 (APR 2008)’’ and adding ‘‘SF 26 (Rev. 5/2011)’’ in its place. ■ 53.215–1 [Amended] 3. Amend section 53.215–1 by removing from paragraph (a) ‘‘SF 26 (APR 2008)’’ and adding ‘‘SF 26 (Rev. 5/ 2011)’’ in its place. ■ 4. Revise section 53.301–26 to read as follows: ■ 53.301–26 Award/Contract. BILLING CODE 6820–EP–P E:\FR\FM\01APR2.SGM 01APR2

Agencies

[Federal Register Volume 76, Number 63 (Friday, April 1, 2011)]
[Rules and Regulations]
[Pages 18304-18322]
From the Federal Register Online via the Government Printing 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 s