Federal Acquisition Regulation; Sole Source Contracts for Women-Owned Small Businesses, 81888-81892 [2015-32428]
Download as PDF
<![CDATA[
81888
Federal Register / Vol. 80, No. 251 / Thursday, December 31, 2015 / Rules and Regulations
with two or more sources pursuant to
the same solicitation.
*
*
*
*
*
[FR Doc. 2015–32427 Filed 12–30–15; 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, 18, 19, and 52
[FAC 2005–86; FAR Case 2015–032; Item
II; Docket No. 2015–0032; Sequence No. 1]
RIN 9000–AN13
Federal Acquisition Regulation; Sole
Source Contracts for Women-Owned
Small Businesses
Department of Defense (DoD),
General Services Administration (GSA),
and the National Aeronautics and Space
Administration (NASA).
ACTION: Interim rule.
AGENCY:
DoD, GSA, and NASA are
issuing an interim rule amending the
Federal Acquisition Regulation (FAR) to
implement regulatory changes made by
the Small Business Administration
(SBA) that provide for authority to
award sole source contracts to
economically disadvantaged womenowned small business concerns and to
women-owned small business concerns
eligible under the Women-Owned Small
Business (WOSB) Program.
DATES: Effective: December 31, 2015.
Comment date: Interested parties
should submit written comments to the
Regulatory Secretariat Division at one of
the addresses shown below on or before
February 29, 2016 to be considered in
the formation of the final rule.
ADDRESSES: Submit comments
identified by FAC 2005–86, FAR Case
2015–032, by any of the following
methods:
• Regulations.gov: https://
www.regulations.gov. Submit comments
via the Federal eRulemaking portal by
searching for ‘‘FAR Case 2015–032.’’
Select the link ‘‘Comment Now’’ that
corresponds with ‘‘FAR Case 2015–
032.’’ Follow the instructions provided
on the screen. Please include your
name, company name (if any), and
‘‘FAR Case 2015–032’’ on your attached
document.
• Mail: General Services
Administration, Regulatory Secretariat
Division (MVCB), ATTN: Ms. Flowers,
tkelley on DSK3SPTVN1PROD with RULES2
SUMMARY:
VerDate Sep<11>2014
17:22 Dec 30, 2015
Jkt 238001
1800 F Street NW., 2nd Floor,
Washington, DC 20405.
Instructions: Please submit comments
only and cite FAC 2005–86, FAR Case
2015–032, in all correspondence related
to this case. All comments received will
be posted without change to https://
www.regulations.gov, including any
personal and/or business confidential
information provided. To confirm
receipt of your comment(s), please
check www.regulations.gov,
approximately two to three days after
submission to verify posting (except
allow 30 days for posting of comments
submitted by mail).
FOR FURTHER INFORMATION CONTACT: Ms.
Mahruba Uddowla, Procurement
Analyst, at 703–605–2868 for
clarification of content. For information
pertaining to status or publication
schedules, contact the Regulatory
Secretariat Division at 202–501–4755.
Please cite FAC 2005–86, FAR Case
2015–032.
SUPPLEMENTARY INFORMATION:
I. Background
This interim rule revises the FAR to
implement regulatory changes that the
SBA has made in its final rule published
in the Federal Register at 80 FR 55019,
on September 14, 2015, concerning sole
source award authority under the WOSB
Program. SBA’s final rule implements
the statutory requirements of paragraph
(a)(3) of section 825 of the Carl Levin
and Howard P. ‘‘Buck’’ McKeon
National Defense Authorization Act
(NDAA) for Fiscal Year (FY) 2015,
Public Law 113–291, granting
contracting officers the authority to
award sole source contracts to both
economically disadvantaged womenowned small business (EDWOSB)
concerns and to WOSB concerns eligible
under the WOSB Program.
The WOSB Program, as set forth in
section 8(m) of the Small Business Act
(15 U.S.C. 637(m)), authorizes
contracting officers to restrict
competition to EDWOSB concerns and
to WOSB concerns eligible under the
WOSB Program for Federal contracts, in
certain industries that SBA has
determined to be underrepresented or
substantially underrepresented by small
business concerns owned and
controlled by women. DoD, GSA, and
NASA published an interim rule for
FAR Case 2010–015 in the Federal
Register at 76 FR 18304, on April 1,
2011, providing guidance to contracting
officers for the set-asides and
implementing SBA’s final rule,
published in the Federal Register at 75
FR 62258, on October 7, 2010. The FAR
rule was finalized with changes and
PO 00000
Frm 00004
Fmt 4701
Sfmt 4700
published in the Federal Register at 77
FR 12913, on March 2, 2012. The
establishment of a set-aside mechanism
exclusively for women-owned small
businesses was the first step towards
leveling the playing field among the
socioeconomic programs covered by the
Small Business Act, i.e., the HUBZone,
service-disabled veteran-owned smallbusiness, 8(a), and WOSB programs.
The WOSB Program was subsequently
amended in section 825 of the NDAA
for FY2015, which granted contracting
officers the authority to award sole
source contracts to EDWOSB concerns
and WOSB concerns eligible under the
WOSB Program. SBA established
procedures for this new statutory
authority in its final rule published in
the Federal Register at 80 FR 55019, on
September 14, 2015. As in SBA’s earlier
WOSB Program set-aside rule, sole
source awards under the WOSB
program are only permitted in the
industries that SBA has determined to
be underrepresented or substantially
underrepresented by WOSB concerns.
Implementation of these sole source
procedures in the FAR ensures that
contracting officers will have the tools
necessary to maximize Federal
procurement opportunities for WOSB
concerns.
II. Discussion and Analysis
In keeping with the tenets of the
WOSB Program, the sole source
authority may only be used in industry
sectors that SBA has determined to be
underrepresented or substantially
underrepresented by WOSB concerns.
The same eligibility requirements for
participating in set-asides under the
WOSB Program, set forth in SBA’s
regulations at 13 CFR 127.100 through
127.509, also apply to sole source
acquisitions. In general, an award under
the WOSB program may be pursued on
a sole source basis when the contracting
officer does not have a reasonable
expectation, through market research,
that two or more eligible EDWOSB or
WOSB concerns will submit offers at a
fair and reasonable price, but identifies
one responsible EDWOSB or WOSB that
can perform at a fair and reasonable
price. The dollar thresholds for sole
source awards are equal to or less than
$6.5 million for manufacturing
requirements and equal to or less than
$4 million for all other requirements,
including all options.
This rule amends FAR subparts 2.1,
4.8, 6.3, 18.1, 19.0, 19.1, 19.3, 19.15, and
52.2. These changes are summarized in
the following paragraphs:
E:\FR\FM\31DER2.SGM
31DER2
Federal Register / Vol. 80, No. 251 / Thursday, December 31, 2015 / Rules and Regulations
A. Subpart 2.1, Definitions of Words
and Terms
• 2.101, Definitions. This section is
amended to revise the definitions of the
WOSB Program to include contracts
awarded using the sole source authority.
B. Subpart 4.8, Government Contract
Files
• 4.803, Contents of contract files.
This section is amended to include
acquisitions awarded on a sole source
basis under the WOSB Program.
C. Subpart 6.3, Other Than Full and
Open Competition
• 6.302–5, Authorized or required by
statute. This section is amended to add
the statutory authority to make sole
source awards under the WOSB
program (15 U.S.C. 637(m)).
D. Subpart 18.1, Available Acquisition
Flexibilities
• 18.117, Awards to economically
disadvantaged women-owned small
business concerns and women-owned
small business concerns eligible under
the Women-Owned Small Business
Program. This section is amended to
add the statutory authority to make sole
source awards under the WOSB
Program.
PART 19—Small Business Programs
E. 19.000, Scope of Part.
This section is amended to include
the authority for sole source awards to
EDWOSB concerns and WOSB concerns
eligible under the WOSB program.
F. Subpart 19.1—Size Standards
• 19.102, Size standards. This section
is amended to make conforming
changes.
G. Subpart 19.3—Determination of
Small Business Status for Small
Business Programs
• 19.308, Protesting a firm’s status as
an economically disadvantaged womenowned small business concern or
women-owned small business concern
eligible under the Women-Owned Small
Business Program. This section is
amended to include protests of sole
source acquisitions.
tkelley on DSK3SPTVN1PROD with RULES2
H. Subpart 19.15, Women-Owned Small
Business Program
• 19.1505, Set-aside procedures. This
section is amended for editorial
changes.
• 19.1506, Women-Owned Small
Business Program sole source awards.
This section replaces the current FAR
19.1506, Contract clauses, and discusses
the conditions under which a
VerDate Sep<11>2014
17:22 Dec 30, 2015
Jkt 238001
81889
contracting officer may award a sole
source contract to an EDWOSB concern
or to a WOSB concern eligible under the
WOSB Program.
• FAR 19.1507, Contract clauses. This
section is renumbered (from 19.1506 to
19.1507) and amended to make
conforming changes.
harmonizing rules, and of promoting
flexibility. This is a significant
regulatory action and, therefore, was
subject to review under section 6(b) of
E.O. 12866, Regulatory Planning and
Review, dated September 30, 1993. This
rule is not a major rule under 5 U.S.C.
804.
I. Subpart 52.2, Text of Provisions and
Clauses
• FAR 52.212–5, Contract Terms and
Conditions Required to Implement
Statutes or Executive Orders—
Commercial Items. This clause is
amended to make conforming changes.
• FAR 52.219–29, Notice of Set-Aside
for Economically Disadvantaged
Women-Owned Small Business
Concerns. This clause is amended to
add sole source awards.
• FAR 52.219–30 Notice of Set-Aside
for Women-Owned Small Business
Concerns. This clause is amended to
add sole source awards.
V. Regulatory Flexibility Act
The changes 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. The Initial
Regulatory Flexibility Analysis (IRFA) is
summarized as follows:
III. Applicability to Contracts at or
Below the Simplified Acquisition
Threshold and for Commercial Items,
Including Commercially Available Offthe-Shelf Items
This rule amends the FAR clauses at
52.219–29, Notice of Set-Aside for
Economically Disadvantaged Womenowned Small Business Concerns, and
52.219–30, Notice of Set-Aside for
Women-Owned Small Business
Concerns Eligible Under the WomenOwned Small Business Program, in
order to implement paragraph (a)(3) of
section 825 of the NDAA for FY 2015.
The Federal Acquisition Regulatory
Council, pursuant to the authority
granted in 41 U.S.C. 1905 and 1906, and
the Administrator, Office of Federal
Procurement Policy, pursuant to the
authority granted in 41 U.S.C. 1907,
have determined that the application of
this statutory authority to contracts at or
below the simplified acquisition
threshold and to contracts for
commercial items and commercially
available off-the-shelf items, is in the
best interests of the Federal
Government.
IV. Executive Orders 12866 and 13563
Executive Orders (E.O.s) 12866 and
13563 direct agencies to assess all costs
and benefits of available regulatory
alternatives and, if regulation is
necessary, to select regulatory
approaches that maximize net benefits
(including potential economic,
environmental, public health and safety
effects, distributive impacts, and
equity). E.O. 13563 emphasizes the
importance of quantifying both costs
and benefits, of reducing costs, of
PO 00000
Frm 00005
Fmt 4701
Sfmt 4700
DoD, GSA, and NASA are proposing to
amend the Federal Acquisition Regulation
(FAR) to implement paragraph (a)(3) of
section 825 of the Carl Levin and Howard P.
‘Buck’ McKeon National Defense
Authorization Act (NDAA) for Fiscal Year
(FY) 2015, Public Law 113–291. Section 825
of the NDAA for FY 2015 included language
granting contracting officers the authority to
award sole source contracts to WomenOwned Small Businesses (WOSBs) and
Economically Disadvantaged Women-Owned
Small Businesses (EDWOSBs) under the
WOSB Program.
The objectives of this interim rule are to
put the WOSB Program on a level playing
field with other SBA Government contracting
programs that have sole source authority, and
to provide an additional, needed tool for
agencies to meet the statutorily mandated
goal of 5 percent of the total value of all
prime contract and subcontract awards for
WOSBs. The authorizing legislation is
paragraph (a)(3) of section 825 of the NDAA
for Fiscal Year 2015.
This rule may have a positive economic
impact on WOSB concerns. The Dynamic
Small Business Supplemental Search (DSBS)
lists approximately 41,500 firms as either
WOSBs or EDWOSBs under the WOSB
Program. An analysis of the Federal
Procurement Data System from April 1, 2011
(the implementation date of the WOSB
Program), through September 1, 2015,
revealed that there were approximately
44,053 women-owned small business
concerns, including 332 EDWOSBs and 1,063
WOSBs eligible under the WOSB Program,
that received obligated funds from Federal
contract awards, task or delivery orders, and
modifications to existing contracts. This rule
could affect a smaller number of EDWOSBs
and WOSBs than those eligible under the
WOSB Program since the sole source
authority can only be used where a
contracting officer does not have a reasonable
expectation, through market research, that
two or more eligible EDWOSB or WOSB
concerns will submit offers at a fair and
reasonable price; in addition, the sole source
authority for WOSBs and EDWOSBs is
limited to contracts valued at $6.5 million or
less for manufacturing contracts and $4
million or less for all other contracts.
This interim rule does not impose any new
reporting, recordkeeping or other compliance
requirements for small businesses. This rule
E:\FR\FM\31DER2.SGM
31DER2
81890
Federal Register / Vol. 80, No. 251 / Thursday, December 31, 2015 / Rules and Regulations
does not duplicate, overlap, or conflict with
any other Federal rules.
The Regulatory Secretariat has
submitted a copy of the IRFA to the
Chief Counsel for Advocacy of the SBA.
A copy of the IRFA may be obtained
from the Regulatory Secretariat
Division. DoD, GSA, and NASA 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
subparts affected by the rule consistent
with 5 U.S.C. 610. Interested parties
must submit such comments separately
and should cite 5 U.S.C. 610 (FAR Case
2015–032), in correspondence.
tkelley on DSK3SPTVN1PROD with RULES2
VI. Paperwork Reduction Act
The interim 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).
VII. 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 to meet the
Congressional intent of leveling the
playing field between the WomenOwned Small Business (WOSB)
Program and SBA’s other socioeconomic
contracting programs. Prior to passage of
section 825 of the National Defense
Authorization Act for Fiscal Year 2015,
the WOSB Program was the only
socioeconomic small business program
that did not provide contracting officials
the authority to make sole source
awards to its intended beneficiaries.
WOSBs are an important growth area
in the U.S. economy and yet the Federal
Government has consistently failed to
achieve the minimum five percent
annual women-owned small business
participation goal set forth in statute. As
a result, women entrepreneurs continue
to struggle to gain access to the Federal
marketplace. This situation will persist,
and women-owned small businesses
will be excluded from valuable Federal
procurement opportunities on a daily
basis unless the sole source authority for
EDWOSBs and WOSBs is implemented
as quickly as possible. The new sole
source authority allows contracting
VerDate Sep<11>2014
17:22 Dec 30, 2015
Jkt 238001
officers to implement the preferences
accorded under the WOSB Program to
the fullest extent possible, and serves as
an additional, needed tool to increase
procurement opportunities for WOSBs.
The statute went into effect on the
date of enactment, December 19, 2014.
The SBA final rule went into effect
October 14, 2015. 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,
18, 19, and 52
Government procurement.
Dated: December 17, 2015.
William F. Clark,
Director, Office of Government-wide
Acquisition Policy, Office of Acquisition
Policy, Office of Government-wide Policy.
Therefore, DoD, GSA, and NASA
amend 48 CFR parts 2, 4, 6, 18, 19, and
52 as set forth below:
■ 1. The authority citation for 48 CFR
parts 2, 4, 6, 18, 19, and 52 continues
to read as follows:
Authority: 40 U.S.C. 121(c); 10 U.S.C.
chapter 137; and 51 U.S.C. 20113.
PART 2—DEFINITIONS OF WORDS
AND TERMS
2. Amend section 2.101, paragraph
(b)(2), the definition ‘‘Women-Owned
Small Business (WOSB) Program’’ by—
■ a. Revising the introductory text of
paragraph (1) and paragraph (1)(i);
■ b. Removing from paragraph (1)(ii)
‘‘Eligible’’ and adding to the end of the
paragraph ‘‘in Federal procurement’’;
and
■ c. Removing from the last sentence in
paragraph (2) ‘‘business concern’’ and
adding ‘‘business (WOSB) concern’’ in
its place.
The revisions read as follows:
■
2.101
Definitions.
*
*
*
*
*
(b) * * *
Women-Owned Small Business
(WOSB) Program. (1) Women-Owned
Small Business (WOSB) Program means
a program that authorizes contracting
officers to limit competition, including
award on a sole source basis, to—
(i) Economically disadvantaged
women-owned small business
(EDWOSB) concerns eligible under the
WOSB Program 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
PO 00000
Frm 00006
Fmt 4701
Sfmt 4700
underrepresented in Federal
procurement; and
*
*
*
*
*
PART 4—ADMINISTRATIVE MATTERS
3. Amend section 4.803 by revising
the introductory text of paragraph
(a)(42) and paragraphs (a)(42)(ii)(A) and
(B) to read as follows:
■
4.803
Contents of contract files.
*
*
*
*
*
(a) * * *
(42) When limiting competition, or
awarding on a sole source basis, to
economically disadvantaged womenowned small business (EDWOSB)
concerns or women-owned small
business (WOSB) concerns eligible
under the WOSB Program in accordance
with subpart 19.15, include
documentation—
*
*
*
*
*
(ii) * * *
(A) Underrepresented for EDWOSB
concerns; or
(B) Substantially underrepresented for
WOSB concerns.
*
*
*
*
*
PART 6—COMPETITION
REQUIREMENTS
4. Amend section 6.302–5 by adding
paragraph (b)(7) to read as follows:
■
6.302–5
Authorized or required by statute.
*
*
*
*
*
(b) * * *
(7) Sole source awards under the
WOSB Program-15 U.S.C. 637(m) (see
19.1506).
*
*
*
*
*
PART 18—EMERGENCY
ACQUISITIONS
5. Revise section 18.117 to read as
follows:
■
18.117 Awards to economically
disadvantaged women-owned small
business concerns and women-owned
small business concerns eligible under the
Women-Owned Small Business Program.
Contracts may be awarded to
economically disadvantaged womenowned small business (EDWOSB)
concerns and women-owned small
business (WOSB) concerns eligible
under the WOSB Program on a
competitive or sole source basis. (See
subpart 19.15.)
PART 19—SMALL BUSINESS
PROGRAMS
■
■
6. Amend section 19.000 by—
a. Revising paragraph (a)(3);
E:\FR\FM\31DER2.SGM
31DER2
Federal Register / Vol. 80, No. 251 / Thursday, December 31, 2015 / Rules and Regulations
business (EDWOSB) concern or as a
WOSB concern eligible under the
WOSB Program. For all other
acquisitions, an interested party (see 13
CFR 127.102) may protest the apparent
successful offeror’s EDWOSB or WOSB
status.
*
*
*
*
*
b. Removing paragraph (a)(7);
c. Redesignating paragraphs (a)(8)
through (10) as paragraphs (a)(7)
through (9), respectively; and
■ d. Revising newly redesignated
paragraph (a)(9).
The revisions 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, servicedisabled veteran-owned small business
concerns, and economically
disadvantaged women-owned small
business (EDWOSB) concerns and
women-owned small business (WOSB)
concerns eligible under the WOSB
Program;
*
*
*
*
*
(9) Sole source awards to HUBZone
small business concerns, servicedisabled veteran-owned small business
concerns, and EDWOSB concerns and
WOSB concerns eligible under the
WOSB Program.
*
*
*
*
*
7. Amend section 19.102 by revising
the last sentence of paragraph (f)(1) to
read as follows:
■
19.102
Size standards.
*
*
*
*
*
(f) * * *
(1) * * * However, see the limitations
on subcontracting at 52.219–14 that
apply to any small business offeror
other than a nonmanufacturer for
purposes of set-asides and 8(a) awards,
52.219–3 for HUBZone set-asides and
HUBZone sole source awards, 52.219–
27 for SDVOSB set-asides and SDVOSB
sole source awards, 52.219–29 for
economically disadvantaged womenowned small business (EDWOSB) setasides and EDWOSB sole source
awards, and 52.219–30 for set-asides
and sole source awards to womenowned small business (WOSB) concerns
eligible under the WOSB Program.
*
*
*
*
*
8. Amend section 19.308 by revising
the section heading and paragraph (b)(1)
to read as follows:
tkelley on DSK3SPTVN1PROD with RULES2
■
19.308 Protesting a firm’s status as an
economically disadvantaged women-owned
small business concern or women-owned
small business concern eligible under the
Women-Owned Small Business Program.
*
*
*
*
*
(b)(1) For sole source acquisitions, the
contracting officer or SBA may protest
the offeror’s status as an economically
disadvantaged women-owned small
VerDate Sep<11>2014
17:22 Dec 30, 2015
Jkt 238001
9. Revise the heading of subpart 19.15
to read as follows:
■
Subpart 19.15—Women-Owned Small
Business Program
*
*
*
*
*
10. Amend section 19.1505 by
revising paragraph (a)(2) to read as
follows:
■
19.1505
Set-aside procedures.
(a) * * *
(2) May set aside acquisitions
exceeding the micro-purchase threshold
for competition restricted to EDWOSB
concerns or WOSB concerns eligible
under the WOSB Program when the
acquisition—
(i) Is assigned a NAICS code in which
SBA has determined that WOSB
concerns are underrepresented in
Federal procurement; or
(ii) Is assigned a NAICS code in which
SBA has determined that WOSB
concerns are substantially
underrepresented in Federal
procurement, as specified on SBA’s Web
site at https://www.sba.gov/WOSB.
*
*
*
*
*
19.1506
[Redesignated as 19.1507]
11. Redesignate section 19.1506 as
section 19.1507.
■ 12. Add section 19.1506 to read as
follows:
■
19.1506 Women-Owned Small Business
Program sole source awards.
(a) A contracting officer shall consider
a contract award to an EDWOSB
concern on a sole source basis (see
6.302–5(b)(7)) before considering small
business set-asides (see 19.203 and
subpart 19.5) provided none of the
exclusions at 19.1504 apply and—
(1) The acquisition is assigned a
NAICS code in which SBA has
determined that WOSB concerns are
underrepresented in Federal
procurement;
(2) The contracting officer does not
have a reasonable expectation that offers
would be received from two or more
EDWOSB concerns; and
(3) The conditions in paragraph (c) of
this section exist.
(b) A contracting officer shall consider
a contract award to a WOSB concern
(including EDWOSB concerns) eligible
PO 00000
Frm 00007
Fmt 4701
Sfmt 4700
81891
under the WOSB Program on a sole
source basis (see 6.302–5(b)(7)) before
considering small business set-asides
(see 19.203 and subpart 19.5) provided
none of the exclusions at 19.1504 apply
and—
(1) The acquisition is assigned a
NAICS code in which SBA has
determined that WOSB concerns are
substantially underrepresented in
Federal procurement;
(2) The contracting officer does not
have a reasonable expectation that offers
would be received from two or more
WOSB concerns (including EDWOSB
concerns); and
(3) The conditions in paragraph (c) of
this section exist.
(c)(1) The anticipated award price of
the contract, including options, will not
exceed—
(i) $6.5 million for a requirement
within the NAICS codes for
manufacturing; or
(ii) $4 million for a requirement
within any other NAICS codes.
(2) The EDWOSB concern or WOSB
concern has been determined to be a
responsible contractor with respect to
performance.
(3) The award can be made at a fair
and reasonable price.
(d) The SBA has the right to appeal
the contracting officer’s decision not to
make a sole source award to either an
EDWOSB concern or WOSB concern
eligible under the WOSB program.
12. Revise newly redesignated section
19.1507 to read as follows:
19.1507 Contract clauses.
(a) The contracting officer shall insert
the clause 52.219–29, Notice of SetAside for, or Sole Source Award to,
Economically Disadvantaged Womenowned Small Business Concerns, in
solicitations and contracts for
acquisitions that are set aside or
reserved for, or awarded on a sole
source basis to, EDWOSB concerns
under 19.1505(b) or 19.1506(a). This
includes multiple-award contracts when
orders may be set aside for EDWOSB
concerns as described in 8.405–5 and
16.505(b)(2)(i)(F).
(b) The contracting officer shall insert
the clause 52.219–30, Notice of SetAside for, or Sole Source Award to,
Women-Owned Small Business
Concerns Eligible Under the WomenOwned Small Business Program, in
solicitations and contracts for
acquisitions that are set aside or
reserved for, or awarded on a sole
source basis to WOSB concerns under
19.1505(c) or 19.1506(b). This includes
multiple-award contracts when orders
may be set aside for WOSB concerns
eligible under the WOSB Program as
E:\FR\FM\31DER2.SGM
31DER2
81892
Federal Register / Vol. 80, No. 251 / Thursday, December 31, 2015 / Rules and Regulations
described in 8.405–5 and
16.505(b)(2)(i)(F).
PART 52—SOLICITATION PROVISIONS
AND CONTRACT CLAUSES
*
13. Amend section 52.212–5 by
revising the date of the clause and
paragraphs (b)(23) and (24) to read as
follows:
■
52.212–5 Contract Terms and Conditions
Required To Implement Statutes or
Executive Orders—Commercial Items.
*
*
*
*
*
GENERAL SERVICES
ADMINISTRATION
*
*
*
*
(b)* * *
___(23) 52.219–29, Notice of SetAside for, or Sole Source Award to,
Economically Disadvantaged WomenOwned Small Business Concerns (Dec
2015) (15 U.S.C. 637(m)).
___(24) 52.219–30, Notice of SetAside for, or Sole Source Award to,
Women-Owned Small Business
Concerns Eligible Under the WomenOwned Small Business Program (Dec
2015) (15 U.S.C. 637(m)).
*
*
*
*
*
NATIONAL AERONAUTICS AND
SPACE ADMINISTRATION
48 CFR Parts 22, 25, and 52
[FAC 2005–86; FAR Case 2015–034; Item
III; Docket No. 2015–0034; Sequence No.
1]
RIN 9000–AN15
Federal Acquisition Regulation; New
Designated Countries—Montenegro
and New Zealand
14. Amend section 52.219–29 by
revising the section heading, the
introductory paragraph, the title and
date of the clause, and paragraph (b)(1)
to read as follows:
■
52.219–29 Notice of Set-Aside for, or Sole
Source Award to, Economically
Disadvantaged Women-Owned Small
Business Concerns.
As prescribed in 19.1507, insert the
following clause:
Notice of Set-Aside for, or Sole Source
Award to, Economically Disadvantaged
Women-Owned Small Business
Concerns (Dec 2015)
*
*
*
*
*
(b) * * *
(1) Contracts that have been set aside
or reserved for, or awarded on a sole
source basis to, EDWOSB concerns;
*
*
*
*
*
15. Amend section 52.219–30 by
revising the section heading, the
introductory paragraph, the title and
date of clause, and paragraph (b)(1) to
read as follows:
■
tkelley on DSK3SPTVN1PROD with RULES2
[FR Doc. 2015–32428 Filed 12–30–15; 8:45 am]
DEPARTMENT OF DEFENSE
*
52.219–30 Notice of Set-Aside for, or Sole
Source Award to, Women-Owned Small
Business Concerns Eligible Under the
Women-Owned Small Business Program.
As prescribed in 19.1507, insert the
following clause:
17:22 Dec 30, 2015
*
*
*
*
(b) * * *
(1) Contracts that have been set aside
or reserved for, or awarded on a sole
source basis to, WOSB concerns eligible
under the WOSB Program;
*
*
*
*
*
BILLING CODE 6820–EP–P
Contract Terms and Conditions
Required To Implement Statutes or
Executive Orders—Commercial Items
(Dec 2015)
VerDate Sep<11>2014
Notice of Set-Aside for, or Sole Source
Award to, Women-Owned Small
Business Concerns Eligible Under the
Women-Owned Small Business
Program (Dec 2015)
Jkt 238001
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
add Montenegro and New Zealand as
new designated countries under the
World Trade Organization Government
Procurement Agreement (WTO GPA)
and update the list of parties to the
Agreement on Trade in Civil Aircraft.
DATES: Effective: February 1, 2016.
FOR FURTHER INFORMATION CONTACT: Ms.
Cecelia L. Davis, Procurement Analyst,
at 202–219–0202, for clarification of
content. For information pertaining to
status or publication schedules, contact
the Regulatory Secretariat Division at
202–501–4755. Please cite FAC 2005–
86, FAR Case 2015–034.
SUPPLEMENTARY INFORMATION:
SUMMARY:
I. Background
On July 15, 2015, Montenegro became
a party to the WTO GPA. New Zealand
became a party to the WTO GPA on
August 12, 2015. The Trade Agreements
Act (19 U.S.C. 2501 et seq.) provides the
authority for the President to waive the
Buy American Act and other
PO 00000
Frm 00008
Fmt 4701
Sfmt 4700
discriminatory provisions for eligible
products from countries that have
signed an international trade agreement
with the United States (such as the
WTO GPA). The President has delegated
this authority to the U.S. Trade
Representative.
Effective July 15, 2015, because
Montenegro became a party to the WTO
GPA, and because the U.S. Trade
Representative has determined that
Montenegro will provide appropriate
reciprocal competitive Government
procurement opportunities to United
States products and services, the U.S.
Trade Representative published a notice
in the Federal Register at 80 FR 39829
on July 10, 2015, waiving the Buy
American Act and other discriminatory
provisions for eligible products from
Montenegro.
Effective August 12, 2015, because
New Zealand became a party to the
WTO GPA, and because the U.S. Trade
Representative has determined that New
Zealand will provide appropriate
reciprocal competitive Government
procurement opportunities to United
States products and services, the U.S.
Trade Representative published a notice
in the Federal Register at 80 FR 48386
on August 12, 2015, waiving the Buy
American Act and other discriminatory
provisions for eligible products from
New Zealand.
In addition, the Office of the U.S.
Trade Representative has also indicated
that Montenegro is a party to the
Agreement on Trade in Civil Aircraft.
The U.S. Trade Representative has
waived the Buy American Act for civil
aircraft and related articles from
countries that are parties to the
Agreement on Trade in Civil Aircraft.
II. Discussion and Analysis
Therefore, this rule adds Montenegro
and New Zealand to the list of World
Trade Organization Government
Procurement Agreement countries
wherever it appears in the FAR, whether
as a separate definition, part of the
definition of ‘‘designated country’’ or
‘‘Recovery Act designated country,’’ or
as part of the list of countries exempt
from the prohibition of acquisition of
products produced by forced or
indentured child labor (FAR 22.1503,
25.003, 52.222–19, 52.225–5, 52.225–11,
and 52.225–23).
This rule also updates FAR 25.407
and 52.225–7 to reflect that Montenegro
is already a party to the Agreement on
Trade in Civil Aircraft.
Conforming changes were required to
FAR 52.212–5, Contract Terms and
Conditions Required to Implement
Statute or Executive Orders—
Commercial Items, and 52.213–4, Terms
E:\FR\FM\31DER2.SGM
31DER2
]]>Agencies
[Federal Register Volume 80, Number 251 (Thursday, December 31, 2015)]
[Rules and Regulations]
[Pages 81888-81892]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-32428]
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 2, 4, 6, 18, 19, and 52
[FAC 2005-86; FAR Case 2015-032; Item II; Docket No. 2015-0032;
Sequence No. 1]
RIN 9000-AN13
Federal Acquisition Regulation; Sole Source Contracts for Women-
Owned Small Businesses
AGENCY: Department of Defense (DoD), General Services Administration
(GSA), and the National Aeronautics and Space Administration (NASA).
ACTION: Interim rule.
-----------------------------------------------------------------------
SUMMARY: DoD, GSA, and NASA are issuing an interim rule amending the
Federal Acquisition Regulation (FAR) to implement regulatory changes
made by the Small Business Administration (SBA) that provide for
authority to award sole source contracts to economically disadvantaged
women-owned small business concerns and to women-owned small business
concerns eligible under the Women-Owned Small Business (WOSB) Program.
DATES: Effective: December 31, 2015.
Comment date: Interested parties should submit written comments to
the Regulatory Secretariat Division at one of the addresses shown below
on or before February 29, 2016 to be considered in the formation of the
final rule.
ADDRESSES: Submit comments identified by FAC 2005-86, FAR Case 2015-
032, by any of the following methods:
Regulations.gov: https://www.regulations.gov. Submit
comments via the Federal eRulemaking portal by searching for ``FAR Case
2015-032.'' Select the link ``Comment Now'' that corresponds with ``FAR
Case 2015-032.'' Follow the instructions provided on the screen. Please
include your name, company name (if any), and ``FAR Case 2015-032'' on
your attached document.
Mail: General Services Administration, Regulatory
Secretariat Division (MVCB), ATTN: Ms. Flowers, 1800 F Street NW., 2nd
Floor, Washington, DC 20405.
Instructions: Please submit comments only and cite FAC 2005-86, FAR
Case 2015-032, in all correspondence related to this case. All comments
received will be posted without change to https://www.regulations.gov,
including any personal and/or business confidential information
provided. To confirm receipt of your comment(s), please check
www.regulations.gov, approximately two to three days after submission
to verify posting (except allow 30 days for posting of comments
submitted by mail).
FOR FURTHER INFORMATION CONTACT: Ms. Mahruba Uddowla, Procurement
Analyst, at 703-605-2868 for clarification of content. For information
pertaining to status or publication schedules, contact the Regulatory
Secretariat Division at 202-501-4755. Please cite FAC 2005-86, FAR Case
2015-032.
SUPPLEMENTARY INFORMATION:
I. Background
This interim rule revises the FAR to implement regulatory changes
that the SBA has made in its final rule published in the Federal
Register at 80 FR 55019, on September 14, 2015, concerning sole source
award authority under the WOSB Program. SBA's final rule implements the
statutory requirements of paragraph (a)(3) of section 825 of the Carl
Levin and Howard P. ``Buck'' McKeon National Defense Authorization Act
(NDAA) for Fiscal Year (FY) 2015, Public Law 113-291, granting
contracting officers the authority to award sole source contracts to
both economically disadvantaged women-owned small business (EDWOSB)
concerns and to WOSB concerns eligible under the WOSB Program.
The WOSB Program, as set forth in section 8(m) of the Small
Business Act (15 U.S.C. 637(m)), authorizes contracting officers to
restrict competition to EDWOSB concerns and to WOSB concerns eligible
under the WOSB Program for Federal contracts, in certain industries
that SBA has determined to be underrepresented or substantially
underrepresented by small business concerns owned and controlled by
women. DoD, GSA, and NASA published an interim rule for FAR Case 2010-
015 in the Federal Register at 76 FR 18304, on April 1, 2011, providing
guidance to contracting officers for the set-asides and implementing
SBA's final rule, published in the Federal Register at 75 FR 62258, on
October 7, 2010. The FAR rule was finalized with changes and published
in the Federal Register at 77 FR 12913, on March 2, 2012. The
establishment of a set-aside mechanism exclusively for women-owned
small businesses was the first step towards leveling the playing field
among the socioeconomic programs covered by the Small Business Act,
i.e., the HUBZone, service-disabled veteran-owned small-business, 8(a),
and WOSB programs.
The WOSB Program was subsequently amended in section 825 of the
NDAA for FY2015, which granted contracting officers the authority to
award sole source contracts to EDWOSB concerns and WOSB concerns
eligible under the WOSB Program. SBA established procedures for this
new statutory authority in its final rule published in the Federal
Register at 80 FR 55019, on September 14, 2015. As in SBA's earlier
WOSB Program set-aside rule, sole source awards under the WOSB program
are only permitted in the industries that SBA has determined to be
underrepresented or substantially underrepresented by WOSB concerns.
Implementation of these sole source procedures in the FAR ensures that
contracting officers will have the tools necessary to maximize Federal
procurement opportunities for WOSB concerns.
II. Discussion and Analysis
In keeping with the tenets of the WOSB Program, the sole source
authority may only be used in industry sectors that SBA has determined
to be underrepresented or substantially underrepresented by WOSB
concerns. The same eligibility requirements for participating in set-
asides under the WOSB Program, set forth in SBA's regulations at 13 CFR
127.100 through 127.509, also apply to sole source acquisitions. In
general, an award under the WOSB program may be pursued on a sole
source basis when the contracting officer does not have a reasonable
expectation, through market research, that two or more eligible EDWOSB
or WOSB concerns will submit offers at a fair and reasonable price, but
identifies one responsible EDWOSB or WOSB that can perform at a fair
and reasonable price. The dollar thresholds for sole source awards are
equal to or less than $6.5 million for manufacturing requirements and
equal to or less than $4 million for all other requirements, including
all options.
This rule amends FAR subparts 2.1, 4.8, 6.3, 18.1, 19.0, 19.1,
19.3, 19.15, and 52.2. These changes are summarized in the following
paragraphs:
[[Page 81889]]
A. Subpart 2.1, Definitions of Words and Terms
2.101, Definitions. This section is amended to revise the
definitions of the WOSB Program to include contracts awarded using the
sole source authority.
B. Subpart 4.8, Government Contract Files
4.803, Contents of contract files. This section is amended
to include acquisitions awarded on a sole source basis under the WOSB
Program.
C. Subpart 6.3, Other Than Full and Open Competition
6.302-5, Authorized or required by statute. This section
is amended to add the statutory authority to make sole source awards
under the WOSB program (15 U.S.C. 637(m)).
D. Subpart 18.1, Available Acquisition Flexibilities
18.117, Awards to economically disadvantaged women-owned
small business concerns and women-owned small business concerns
eligible under the Women-Owned Small Business Program. This section is
amended to add the statutory authority to make sole source awards under
the WOSB Program.
PART 19--Small Business Programs
E. 19.000, Scope of Part.
This section is amended to include the authority for sole source
awards to EDWOSB concerns and WOSB concerns eligible under the WOSB
program.
F. Subpart 19.1--Size Standards
19.102, Size standards. This section is amended to make
conforming changes.
G. Subpart 19.3--Determination of Small Business Status for Small
Business Programs
19.308, Protesting a firm's status as an economically
disadvantaged women-owned small business concern or women-owned small
business concern eligible under the Women-Owned Small Business Program.
This section is amended to include protests of sole source
acquisitions.
H. Subpart 19.15, Women-Owned Small Business Program
19.1505, Set-aside procedures. This section is amended for
editorial changes.
19.1506, Women-Owned Small Business Program sole source
awards. This section replaces the current FAR 19.1506, Contract
clauses, and discusses the conditions under which a contracting officer
may award a sole source contract to an EDWOSB concern or to a WOSB
concern eligible under the WOSB Program.
FAR 19.1507, Contract clauses. This section is renumbered
(from 19.1506 to 19.1507) and amended to make conforming changes.
I. Subpart 52.2, Text of Provisions and Clauses
FAR 52.212-5, Contract Terms and Conditions Required to
Implement Statutes or Executive Orders--Commercial Items. This clause
is amended to make conforming changes.
FAR 52.219-29, Notice of Set-Aside for Economically
Disadvantaged Women-Owned Small Business Concerns. This clause is
amended to add sole source awards.
FAR 52.219-30 Notice of Set-Aside for Women-Owned Small
Business Concerns. This clause is amended to add sole source awards.
III. Applicability to Contracts at or Below the Simplified Acquisition
Threshold and for Commercial Items, Including Commercially Available
Off-the-Shelf Items
This rule amends the FAR clauses at 52.219-29, Notice of Set-Aside
for Economically Disadvantaged Women-owned Small Business Concerns, and
52.219-30, Notice of Set-Aside for Women-Owned Small Business Concerns
Eligible Under the Women-Owned Small Business Program, in order to
implement paragraph (a)(3) of section 825 of the NDAA for FY 2015. The
Federal Acquisition Regulatory Council, pursuant to the authority
granted in 41 U.S.C. 1905 and 1906, and the Administrator, Office of
Federal Procurement Policy, pursuant to the authority granted in 41
U.S.C. 1907, have determined that the application of this statutory
authority to contracts at or below the simplified acquisition threshold
and to contracts for commercial items and commercially available off-
the-shelf items, is in the best interests of the Federal Government.
IV. Executive Orders 12866 and 13563
Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess
all costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). E.O.
13563 emphasizes the importance of quantifying both costs and benefits,
of reducing costs, of harmonizing rules, and of promoting flexibility.
This is a significant regulatory action and, therefore, was subject to
review under section 6(b) of E.O. 12866, Regulatory Planning and
Review, dated September 30, 1993. This rule is not a major rule under 5
U.S.C. 804.
V. Regulatory Flexibility Act
The changes 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. The Initial Regulatory
Flexibility Analysis (IRFA) is summarized as follows:
DoD, GSA, and NASA are proposing to amend the Federal
Acquisition Regulation (FAR) to implement paragraph (a)(3) of
section 825 of the Carl Levin and Howard P. `Buck' McKeon National
Defense Authorization Act (NDAA) for Fiscal Year (FY) 2015, Public
Law 113-291. Section 825 of the NDAA for FY 2015 included language
granting contracting officers the authority to award sole source
contracts to Women-Owned Small Businesses (WOSBs) and Economically
Disadvantaged Women-Owned Small Businesses (EDWOSBs) under the WOSB
Program.
The objectives of this interim rule are to put the WOSB Program
on a level playing field with other SBA Government contracting
programs that have sole source authority, and to provide an
additional, needed tool for agencies to meet the statutorily
mandated goal of 5 percent of the total value of all prime contract
and subcontract awards for WOSBs. The authorizing legislation is
paragraph (a)(3) of section 825 of the NDAA for Fiscal Year 2015.
This rule may have a positive economic impact on WOSB concerns.
The Dynamic Small Business Supplemental Search (DSBS) lists
approximately 41,500 firms as either WOSBs or EDWOSBs under the WOSB
Program. An analysis of the Federal Procurement Data System from
April 1, 2011 (the implementation date of the WOSB Program), through
September 1, 2015, revealed that there were approximately 44,053
women-owned small business concerns, including 332 EDWOSBs and 1,063
WOSBs eligible under the WOSB Program, that received obligated funds
from Federal contract awards, task or delivery orders, and
modifications to existing contracts. This rule could affect a
smaller number of EDWOSBs and WOSBs than those eligible under the
WOSB Program since the sole source authority can only be used where
a contracting officer does not have a reasonable expectation,
through market research, that two or more eligible EDWOSB or WOSB
concerns will submit offers at a fair and reasonable price; in
addition, the sole source authority for WOSBs and EDWOSBs is limited
to contracts valued at $6.5 million or less for manufacturing
contracts and $4 million or less for all other contracts.
This interim rule does not impose any new reporting,
recordkeeping or other compliance requirements for small businesses.
This rule
[[Page 81890]]
does not duplicate, overlap, or conflict with any other Federal
rules.
The Regulatory Secretariat has submitted a copy of the IRFA to the
Chief Counsel for Advocacy of the SBA. A copy of the IRFA may be
obtained from the Regulatory Secretariat Division. DoD, GSA, and NASA
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 subparts affected by the rule
consistent with 5 U.S.C. 610. Interested parties must submit such
comments separately and should cite 5 U.S.C. 610 (FAR Case 2015-032),
in correspondence.
VI. Paperwork Reduction Act
The interim 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).
VII. 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 to meet the Congressional intent of leveling the playing
field between the Women-Owned Small Business (WOSB) Program and SBA's
other socioeconomic contracting programs. Prior to passage of section
825 of the National Defense Authorization Act for Fiscal Year 2015, the
WOSB Program was the only socioeconomic small business program that did
not provide contracting officials the authority to make sole source
awards to its intended beneficiaries.
WOSBs are an important growth area in the U.S. economy and yet the
Federal Government has consistently failed to achieve the minimum five
percent annual women-owned small business participation goal set forth
in statute. As a result, women entrepreneurs continue to struggle to
gain access to the Federal marketplace. This situation will persist,
and women-owned small businesses will be excluded from valuable Federal
procurement opportunities on a daily basis unless the sole source
authority for EDWOSBs and WOSBs is implemented as quickly as possible.
The new sole source authority allows contracting officers to implement
the preferences accorded under the WOSB Program to the fullest extent
possible, and serves as an additional, needed tool to increase
procurement opportunities for WOSBs.
The statute went into effect on the date of enactment, December 19,
2014. The SBA final rule went into effect October 14, 2015. 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, 18, 19, and 52
Government procurement.
Dated: December 17, 2015.
William F. Clark,
Director, Office of Government-wide Acquisition Policy, Office of
Acquisition Policy, Office of Government-wide Policy.
Therefore, DoD, GSA, and NASA amend 48 CFR parts 2, 4, 6, 18, 19,
and 52 as set forth below:
0
1. The authority citation for 48 CFR parts 2, 4, 6, 18, 19, and 52
continues to read as follows:
Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 51
U.S.C. 20113.
PART 2--DEFINITIONS OF WORDS AND TERMS
0
2. Amend section 2.101, paragraph (b)(2), the definition ``Women-Owned
Small Business (WOSB) Program'' by--
0
a. Revising the introductory text of paragraph (1) and paragraph
(1)(i);
0
b. Removing from paragraph (1)(ii) ``Eligible'' and adding to the end
of the paragraph ``in Federal procurement''; and
0
c. Removing from the last sentence in paragraph (2) ``business
concern'' and adding ``business (WOSB) concern'' in its place.
The revisions read as follows:
2.101 Definitions.
* * * * *
(b) * * *
Women-Owned Small Business (WOSB) Program. (1) Women-Owned Small
Business (WOSB) Program means a program that authorizes contracting
officers to limit competition, including award on a sole source basis,
to--
(i) Economically disadvantaged women-owned small business (EDWOSB)
concerns eligible under the WOSB Program 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
* * * * *
PART 4--ADMINISTRATIVE MATTERS
0
3. Amend section 4.803 by revising the introductory text of paragraph
(a)(42) and paragraphs (a)(42)(ii)(A) and (B) to read as follows:
4.803 Contents of contract files.
* * * * *
(a) * * *
(42) When limiting competition, or awarding on a sole source basis,
to economically disadvantaged women-owned small business (EDWOSB)
concerns or women-owned small business (WOSB) concerns eligible under
the WOSB Program in accordance with subpart 19.15, include
documentation--
* * * * *
(ii) * * *
(A) Underrepresented for EDWOSB concerns; or
(B) Substantially underrepresented for WOSB concerns.
* * * * *
PART 6--COMPETITION REQUIREMENTS
0
4. Amend section 6.302-5 by adding paragraph (b)(7) to read as follows:
6.302-5 Authorized or required by statute.
* * * * *
(b) * * *
(7) Sole source awards under the WOSB Program-15 U.S.C. 637(m) (see
19.1506).
* * * * *
PART 18--EMERGENCY ACQUISITIONS
0
5. Revise section 18.117 to read as follows:
18.117 Awards to economically disadvantaged women-owned small
business concerns and women-owned small business concerns eligible
under the Women-Owned Small Business Program.
Contracts may be awarded to economically disadvantaged women-owned
small business (EDWOSB) concerns and women-owned small business (WOSB)
concerns eligible under the WOSB Program on a competitive or sole
source basis. (See subpart 19.15.)
PART 19--SMALL BUSINESS PROGRAMS
0
6. Amend section 19.000 by--
0
a. Revising paragraph (a)(3);
[[Page 81891]]
0
b. Removing paragraph (a)(7);
0
c. Redesignating paragraphs (a)(8) through (10) as paragraphs (a)(7)
through (9), respectively; and
0
d. Revising newly redesignated paragraph (a)(9).
The revisions 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 (EDWOSB) concerns and women-owned small
business (WOSB) concerns eligible under the WOSB Program;
* * * * *
(9) Sole source awards to HUBZone small business concerns, service-
disabled veteran-owned small business concerns, and EDWOSB concerns and
WOSB concerns eligible under the WOSB Program.
* * * * *
0
7. Amend section 19.102 by revising the last sentence of paragraph
(f)(1) to read as follows:
19.102 Size standards.
* * * * *
(f) * * *
(1) * * * However, see the limitations on subcontracting at 52.219-
14 that apply to any small business offeror other than a
nonmanufacturer for purposes of set-asides and 8(a) awards, 52.219-3
for HUBZone set-asides and HUBZone sole source awards, 52.219-27 for
SDVOSB set-asides and SDVOSB sole source awards, 52.219-29 for
economically disadvantaged women-owned small business (EDWOSB) set-
asides and EDWOSB sole source awards, and 52.219-30 for set-asides and
sole source awards to women-owned small business (WOSB) concerns
eligible under the WOSB Program.
* * * * *
0
8. Amend section 19.308 by revising the section heading and paragraph
(b)(1) to read as follows:
19.308 Protesting a firm's status as an economically disadvantaged
women-owned small business concern or women-owned small business
concern eligible under the Women-Owned Small Business Program.
* * * * *
(b)(1) For sole source acquisitions, the contracting officer or SBA
may protest the offeror's status as an economically disadvantaged
women-owned small business (EDWOSB) concern or as a WOSB concern
eligible under the WOSB Program. For all other acquisitions, an
interested party (see 13 CFR 127.102) may protest the apparent
successful offeror's EDWOSB or WOSB status.
* * * * *
0
9. Revise the heading of subpart 19.15 to read as follows:
Subpart 19.15--Women-Owned Small Business Program
* * * * *
0
10. Amend section 19.1505 by revising paragraph (a)(2) to read as
follows:
19.1505 Set-aside procedures.
(a) * * *
(2) May set aside acquisitions exceeding the micro-purchase
threshold for competition restricted to EDWOSB concerns or WOSB
concerns eligible under the WOSB Program when the acquisition--
(i) Is assigned a NAICS code in which SBA has determined that WOSB
concerns are underrepresented in Federal procurement; or
(ii) Is assigned a NAICS code in which SBA has determined that WOSB
concerns are substantially underrepresented in Federal procurement, as
specified on SBA's Web site at https://www.sba.gov/WOSB.
* * * * *
19.1506 [Redesignated as 19.1507]
0
11. Redesignate section 19.1506 as section 19.1507.
0
12. Add section 19.1506 to read as follows:
19.1506 Women-Owned Small Business Program sole source awards.
(a) A contracting officer shall consider a contract award to an
EDWOSB concern on a sole source basis (see 6.302-5(b)(7)) before
considering small business set-asides (see 19.203 and subpart 19.5)
provided none of the exclusions at 19.1504 apply and--
(1) The acquisition is assigned a NAICS code in which SBA has
determined that WOSB concerns are underrepresented in Federal
procurement;
(2) The contracting officer does not have a reasonable expectation
that offers would be received from two or more EDWOSB concerns; and
(3) The conditions in paragraph (c) of this section exist.
(b) A contracting officer shall consider a contract award to a WOSB
concern (including EDWOSB concerns) eligible under the WOSB Program on
a sole source basis (see 6.302-5(b)(7)) before considering small
business set-asides (see 19.203 and subpart 19.5) provided none of the
exclusions at 19.1504 apply and--
(1) The acquisition is assigned a NAICS code in which SBA has
determined that WOSB concerns are substantially underrepresented in
Federal procurement;
(2) The contracting officer does not have a reasonable expectation
that offers would be received from two or more WOSB concerns (including
EDWOSB concerns); and
(3) The conditions in paragraph (c) of this section exist.
(c)(1) The anticipated award price of the contract, including
options, will not exceed--
(i) $6.5 million for a requirement within the NAICS codes for
manufacturing; or
(ii) $4 million for a requirement within any other NAICS codes.
(2) The EDWOSB concern or WOSB concern has been determined to be a
responsible contractor with respect to performance.
(3) The award can be made at a fair and reasonable price.
(d) The SBA has the right to appeal the contracting officer's
decision not to make a sole source award to either an EDWOSB concern or
WOSB concern eligible under the WOSB program.
12. Revise newly redesignated section 19.1507 to read as follows:
19.1507 Contract clauses.
(a) The contracting officer shall insert the clause 52.219-29,
Notice of Set-Aside for, or Sole Source Award to, Economically
Disadvantaged Women-owned Small Business Concerns, in solicitations and
contracts for acquisitions that are set aside or reserved for, or
awarded on a sole source basis to, EDWOSB concerns under 19.1505(b) or
19.1506(a). This includes multiple-award contracts when orders may be
set aside for EDWOSB concerns as described in 8.405-5 and
16.505(b)(2)(i)(F).
(b) The contracting officer shall insert the clause 52.219-30,
Notice of Set-Aside for, or Sole Source Award to, Women-Owned Small
Business Concerns Eligible Under the Women-Owned Small Business
Program, in solicitations and contracts for acquisitions that are set
aside or reserved for, or awarded on a sole source basis to WOSB
concerns under 19.1505(c) or 19.1506(b). This includes multiple-award
contracts when orders may be set aside for WOSB concerns eligible under
the WOSB Program as
[[Page 81892]]
described in 8.405-5 and 16.505(b)(2)(i)(F).
PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
0
13. Amend section 52.212-5 by revising the date of the clause and
paragraphs (b)(23) and (24) to read 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 (Dec 2015)
* * * * *
(b)* * *
___(23) 52.219-29, Notice of Set-Aside for, or Sole Source Award
to, Economically Disadvantaged Women-Owned Small Business Concerns (Dec
2015) (15 U.S.C. 637(m)).
___(24) 52.219-30, Notice of Set-Aside for, or Sole Source Award
to, Women-Owned Small Business Concerns Eligible Under the Women-Owned
Small Business Program (Dec 2015) (15 U.S.C. 637(m)).
* * * * *
0
14. Amend section 52.219-29 by revising the section heading, the
introductory paragraph, the title and date of the clause, and paragraph
(b)(1) to read as follows:
52.219-29 Notice of Set-Aside for, or Sole Source Award to,
Economically Disadvantaged Women-Owned Small Business Concerns.
As prescribed in 19.1507, insert the following clause:
Notice of Set-Aside for, or Sole Source Award to, Economically
Disadvantaged Women-Owned Small Business Concerns (Dec 2015)
* * * * *
(b) * * *
(1) Contracts that have been set aside or reserved for, or awarded
on a sole source basis to, EDWOSB concerns;
* * * * *
0
15. Amend section 52.219-30 by revising the section heading, the
introductory paragraph, the title and date of clause, and paragraph
(b)(1) to read as follows:
52.219-30 Notice of Set-Aside for, or Sole Source Award to, Women-
Owned Small Business Concerns Eligible Under the Women-Owned Small
Business Program.
As prescribed in 19.1507, insert the following clause:
Notice of Set-Aside for, or Sole Source Award to, Women-Owned Small
Business Concerns Eligible Under the Women-Owned Small Business Program
(Dec 2015)
* * * * *
(b) * * *
(1) Contracts that have been set aside or reserved for, or awarded
on a sole source basis to, WOSB concerns eligible under the WOSB
Program;
* * * * *
[FR Doc. 2015-32428 Filed 12-30-15; 8:45 am]
BILLING CODE 6820-EP-P
