Federal Acquisition Regulation: Certification of Women-Owned Small Businesses, 55769-55775 [2021-21343]

Agencies

• DEPARTMENT OF DEFENSE
• General Services Administration
• National Aeronautics and Space Administration

[Federal Register Volume 86, Number 192 (Thursday, October 7, 2021)]
[Proposed Rules]
[Pages 55769-55775]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-21343]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Parts 2, 19, and 52

[FAR Case 2020-013; Docket No. FAR-2021-0009, Sequence No. 1]
RIN 9000-AO17


Federal Acquisition Regulation: Certification of Women-Owned 
Small Businesses

AGENCY: Department of Defense (DoD), General Services Administration 
(GSA), and National Aeronautics and Space Administration (NASA).

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: DoD, GSA, and NASA are proposing to amend the Federal 
Acquisition Regulation (FAR) to implement the final rule published by 
the Small Business Administration implementing a section of the Carl 
Levin and Howard P. ``Buck'' McKeon National Defense Authorization Act 
for Fiscal Year (FY) 2015.

DATES: Interested parties should submit comments to the Regulatory 
Secretariat Division at one of the addresses shown below on or before 
December 6, 2021 to be considered in the formulation of a final rule.

ADDRESSES: Submit comments in response to FAR Case 2020-013 to the 
Federal eRulemaking portal at https://www.regulations.gov by searching 
for ``FAR Case 2020-013''. Select the link ``Comment Now'' that 
corresponds with ``FAR Case 2020-013''. Follow the instructions 
provided on the ``Comment Now'' screen. Please include your name, 
company name (if any), and ``FAR Case 2020-013'' on your attached 
document. If your comment cannot be submitted using https://www.regulations.gov, call or email the points of contact in the FOR 
FURTHER INFORMATION CONTACT section of this document for alternate 
instructions.
    Instructions: Please submit comments only and cite ``FAR Case 2020-
013'' in all correspondence related to this case. Comments received 
generally 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 https://www.regulations.gov, approximately two to three days after submission 
to verify posting.

FOR FURTHER INFORMATION CONTACT: Ms. Malissa Jones, Procurement 
Analyst, at 703-605-2815, or by email at [email protected], for 
clarification of content. For information pertaining to status or 
publication schedules, contact the Regulatory Secretariat Division at 
202-501-4755 or [email protected]. Please cite FAR Case 2020-013.

SUPPLEMENTARY INFORMATION:

I. Background

    DoD, GSA, and NASA are proposing to revise the FAR to implement 
section 825(a)(1) of the Carl Levin and Howard P. ``Buck'' McKeon 
National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2015 (15 
U.S.C. 637(m)), Public Law 113-291. Section 825 requires women-owned 
small business (WOSB) concerns and economically disadvantaged women-
owned small business (EDWOSB) concerns to be certified by the Small 
Business Administration (SBA), a Federal agency, a State government, or 
a national certifying entity approved by SBA in the WOSB Program to be 
eligible for set-aside or sole-source awards.
    SBA issued a final rule at 85 FR 27650, May 11, 2020, to implement 
section 825(a)(1). In their final rule, SBA amended 13 CFR part 127 
requiring WOSB and EDWOSB concerns be certified by a Federal agency, a 
State government, the SBA, or a national certifying entity approved by 
SBA in order to be eligible under the WOSB Program for set-aside or 
sole-source awards.

II. Discussion and Analysis

    The proposed changes to the FAR and the rationale for the proposed 
changes are summarized in the following paragraphs.
    Changes are proposed to FAR 2.101, Definitions, to update the 
definition of Economically disadvantaged women-owned small business 
concern (EDWOSB) and Women-owned small business (WOSB) concern eligible 
under the WOSB Program to add that the concern is certified by SBA or 
an approved third-party certifier in accordance with 13 CFR 127.300.
    Changes are proposed to FAR 19.308(d), Protesting a firm's status 
as an EDWOSB concern or WOSB concern eligible under the WOSB Program, 
to require a protest to be submitted by email to SBA at 
[email protected]. FAR 19.308(d) is also amended to propose deletion 
of text requiring SBA to consider protests by contracting officers when 
the apparent successful offeror has failed to provide all of the 
required documents, as set forth in FAR 19.1503(c). Changes are also 
proposed to FAR 19.308 to add the requirement that the protest present 
evidence that the concern is not at least 51 percent owned and 
controlled by one or more economically disadvantaged women ``who are 
United States citizens'', based on the requirements of 13 CFR part 127. 
The addition of ``United States citizens'' aligns the FAR text with 
SBA's regulations.
    FAR 19.1501, Definition, is reserved to delete the definition of 
WOSB Program Repository since the WOSB Program Repository is no longer 
the source for WOSB program eligibility as of October 15, 2020.
    FAR 19.1503, Status, is amended to add the requirement for the 
contracting officer to verify the designation as a certified WOSB or 
EDWOSB small business in the Dynamic Small Business Search (DSBS) at 
https://web.sba.gov/pro-net/search/dsp_dsbs.cfm. The designation will 
also appear in the System for Award Management (SAM) after issuance of 
the final rule. Paragraphs (c) and (d) at FAR 19.1503, are proposed to 
be deleted. Paragraphs (e) and (f) at FAR 19.1503 are

[[Page 55770]]

redesignated as new paragraphs (c) and (d).
    FAR 19.1504, Exclusions, is amended at paragraph (b) to replace 
Federal Prison Industries, Inc., and AbilityOne with ``mandatory 
Government sources (see section 8.002)'', since both entities are 
referenced at FAR 8.002, Priorities for use of mandatory Government 
sources.
    FAR 19.1505, Set-aside procedures, is amended to allow an offeror 
to submit an offer while awaiting certification under the WOSB Program. 
FAR 19.1505 is also amended to provide the contracting officer with 
guidance if an apparent successful offeror's certification is pending 
under the WOSB Program. The contracting officer, prior to award, shall 
verify the apparently successful offeror is certified in SAM or DSBS. 
If the apparently successful offeror's EDWOSB or WOSB certification is 
pending in DSBS, the contracting officer shall notify SBA's Director/
Government Contracting by email at [email protected], 
and request SBA's eligibility determination.
    Within 15 days from the date of the contracting officer's 
notification, SBA will make a determination regarding the offeror's 
status as an EDWOSB or WOSB eligible under the WOSB program.
    If the contracting officer does not receive a determination from 
SBA within 15 days, the contracting officer, at their discretion, may 
provide SBA additional time to make a determination, or may proceed 
with award to the next highest evaluated offeror. The contracting 
officer shall not make award to an offeror who is not a certified 
EDWOSB or WOSB concern eligible under the WOSB program.
    FAR 19.1506, Women-Owned Small Business Program sole-source awards, 
is amended to instruct a contracting officer that a sole-source award 
can only be made to a concern that has been certified pursuant to 13 
CFR 127.300 as an EDWOSB or WOSB eligible under the WOSB Program. FAR 
19.1506 is also amended to notify contracting officers that they shall 
not request an eligibility determination from SBA on pending 
certification applications for EDWOSB or WOSB sole-source awards.
    Changes are proposed to FAR provision 52.212-3, Offeror 
Representations and Certifications-Commercial Items, to remove the 
representation for WOSB concerns and EDWOSB concerns eligible under the 
WOSB Program. This rulemaking also proposes to update the WOSB and 
EDWOSB joint venture provisions and clauses.
    FAR clause 52.212-5, Contract Terms and Conditions Required to 
Implement Statutes or Executive Orders--Commercial Items, was also 
revised to make conforming changes.
    Changes are proposed to FAR provision 52.219-1, Small Business 
Program Representations, to remove the representation for WOSB concerns 
and EDWOSB concerns eligible under the WOSB Program. This section also 
proposes to update the WOSB and EDWOSB joint venture provisions and 
clauses.
    Changes are proposed to FAR clause 52.219-28, Post-Award Small 
Business Program Rerepresentation, to remove the rerepresentation for 
WOSB concerns and EDWOSB concerns eligible under the WOSB Program. This 
rulemaking also proposes to update the WOSB concern and EDWOSB concern 
joint venture clauses.
    Changes are proposed to FAR clause 52.219-29, Notice of Set-aside 
for, or Sole-Source Award to, Economically Disadvantaged Women-owned 
Small Business Concerns, to delete the definition of WOSB Program 
Repository from the clause and to require that the EDWOSB concern is 
certified by SBA or an approved third-party certifier in accordance 
with 13 CFR 127.300 as an EDWOSB. This section also proposes to delete 
text in the clause that the contracting officer will ensure the 
successful offeror has provided all required documents to the now 
defunct WOSB Program Repository. It adds text for EDWOSB set-aside 
procurements that offers are solicited only from certified EDWOSB 
concerns or concerns with a pending certification application in DSBS. 
This section also proposes to add text that for EDWOSB sole-source 
awards, offers are solicited only from certified EDWOSB concerns.
    Changes are proposed to FAR 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, to delete the 
definition of the now defunct WOSB Program Repository text from the 
clause. This rulemaking proposes to amend the clause to also add to the 
definition of WOSB concern eligible under the WOSB Program that the 
concern is certified by SBA or an approved third-party certifier in 
accordance with 13 CFR 127.300 as a WOSB. This rulemaking also proposes 
to delete text in the clause that the contracting officer will ensure 
the successful offeror has provided all required documents to the WOSB 
Program Repository. This rulemaking also proposes to amend the clause 
to add that offers are solicited only from certified WOSB concerns or 
concerns with a pending certification application in DSBS for WOSB set-
aside procurements. This rulemaking further proposes to amend the 
clause to add, for WOSB sole-source awards, that offers are solicited 
only from certified WOSB concerns.

III. Applicability to Contracts at or Below the Simplified Acquisition 
Threshold (SAT) and for Commercial Items, Including Commercially 
Available Off-The-Shelf (COTS) Items

    This proposed rule amends the following provisions and clauses: 
Provision 52.212-3, clause 52.212-5, provision 52.219-1, clause 52.219-
28, clause 52.219-29, clause 52.219-30. However, this proposed rule 
does not impose any new requirements on contracts at or below the SAT 
or for commercial items, including COTS items. The provisions and 
clauses continue to apply to acquisitions at or below the SAT and to 
acquisitions for commercial items, including COTS items.

A. Applicability to Contracts at or Below the Simplified Acquisition 
Threshold

    41 U.S.C. 1905 governs the applicability of laws to acquisitions at 
or below the SAT. Section 1905 generally limits the applicability of 
new laws when agencies are making acquisitions at or below the SAT, but 
provides that such acquisitions will not be exempt from a provision of 
law under certain circumstances, including when the FAR Council makes a 
written determination and finding that it would not be in the best 
interest of the Federal Government to exempt contracts and subcontracts 
in amounts not greater than the SAT from the provision of law. The FAR 
Council intends to make a determination to apply this statute to 
acquisitions at or below the SAT.

B. Applicability to Contracts for the Acquisition of Commercial Items, 
Including Commercially Available Off-The-Shelf (COTS) Items

    41 U.S.C. 1906 governs the applicability of laws to contracts for 
the acquisition of commercial items, and is intended to limit the 
applicability of laws to contracts for the acquisition of commercial 
items. Section 1906 provides that if the FAR Council makes a written 
determination that it is not in the best interest of the Federal 
Government to exempt commercial item contracts, the provision of law 
will apply to contracts for the acquisition of commercial items.
    41 U.S.C. 1907 states that acquisitions of COTS items will be 
exempt from

[[Page 55771]]

certain provisions of law unless the Administrator for Federal 
Procurement Policy makes a written determination and finds that it 
would not be in the best interest of the Federal Government to exempt 
contracts for the procurement of COTS items.
    The FAR Council intends to make a determination to apply this 
statute to acquisitions for commercial items. The Administrator for 
Federal Procurement Policy intends to make a determination to apply 
this statute to acquisitions for COTS items.

C. Determinations

    The purpose of this proposed rule is to implement section 825(a)(1) 
of the Carl Levin and Howard P. ``Buck'' McKeon National Defense 
Authorization Act for Fiscal Year 2015 and SBA's implementing 
regulation. Section 825 requires women-owned small business concerns 
and economically disadvantaged women-owned small business concerns to 
be certified to be eligible under the WOSB Program for set-aside or 
sole-source awards (see 13 CFR 127.300).
    Section 825 is silent on the applicability of these requirements 
for acquisitions at or below the SAT and does not independently provide 
for criminal or civil penalties; nor does it include terms making 
express reference to 41 U.S.C. 1905 and its application to acquisitions 
at or below the SAT. Therefore, it does not apply to acquisitions at or 
below the SAT unless the FAR Council makes a written determination as 
provided at 41 U.S.C. 1905. Additionally, the law is silent on the 
applicability of this requirement to acquisitions of COTS items and 
does not independently provide for criminal or civil penalties; nor 
does it include terms making express reference to 41 U.S.C. 1907 and 
its application to acquisitions of COTS items. Therefore, it does not 
apply to acquisition of COTS items unless the Administrator for Federal 
Procurement Policy makes a written determination as provided at 41 
U.S.C. 1907.
    The law furthers the Administration's goal of simplifying the 
acquisition process and facilitating easier access to the Federal 
marketplace, in this case for women-owned small businesses and 
economically disadvantaged women-owned small businesses who make up an 
important component of the Government's industrial base. Exclusion of a 
large segment of Federal contracting, such as acquisitions at or below 
the SAT, and for acquisitions of COTS items, will limit the full 
implementation of these objectives.
    Further, the primary FAR provisions and clauses implementing the 
certification of women-owned small businesses and economically 
disadvantaged women-owned small businesses in the WOSB Program are 
currently prescribed for use in COTS items.
    Exclusion of acquisitions for COTS items would create confusion 
among contractors and the Federal contracting workforce.
    For these reasons, it is in the best interest of the Federal 
Government to apply the requirements of the proposed rule to 
acquisitions at or below the SAT and to acquisitions of COTS items.

IV. Expected Impact of the Rule

    As a result of this proposed rule, contracting officers will be 
required to check SAM or DSBS to determine if an EDWOSB or WOSB concern 
is certified or has a pending application for certification in DSBS 
instead of checking that all required documentation has been submitted 
to the now defunct WOSB Repository. Additionally, for set-aside 
procurements contracting officers will have to contact SBA should the 
apparently successful offeror have a pending application for 
certification. Within 15 days from the date of the contracting 
officer's notification, SBA will make a determination regarding the 
offeror's status as an EDWOSB or WOSB eligible under the WOSB program. 
If the contracting officer does not receive a determination from SBA 
within 15 days, the contracting officer at their discretion, may 
provide SBA additional time to make a determination, or may proceed 
with award to the next highest evaluated offeror. For EDWOSB or WOSB 
set-asides and sole-source awards, award can only be made to an EDWOSB 
or WOSB certified concern.
    The changes in this proposed rule will affect internal Government 
operations, but not contractor operations. The required documentation 
(articles of incorporation, bylaws, stock ledgers or certificates, tax 
records, etc.) already exists. In addition, this information is already 
required to be provided either to third-party certifiers, governmental 
certifying entities, or to SBA through certify.SBA.gov. SBA expects 
WOSBs to see a reduction in burden because, under the prior WOSB 
Program Repository, SBA determined that the average time required to 
complete the process required by the WOSB Program Repository was two 
hours, whereas the use of the new certification process requires only 
one hour due to technological improvements.
    The public cost associated with obtaining the WOSB or EDWOSB 
certification from SBA or a third-party certifier is accounted for 
under the SBA final rule implementing the Program certification 
requirements (85 FR 27660). In addition, the SBA final rule advises 
concerns that only a certified WOSB or EDWOSB may seek a specific sole-
source requirement under the Program and that only a certified WOSB or 
EDWOSB or a concern that has a pending application for certification 
under the Program may submit an offer on a specific EDWOSB or WOSB set-
aside requirement.
    Given SBA's notice to small business concerns, the cost to the 
public associated with the FAR implementation of the SBA final rule is 
de minimis and is limited to the cost of regulatory familiarization, or 
the cost associated with reading this rule and understanding the new 
solicitation provision.

V. 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 not a significant regulatory action and, therefore, was not 
subject to review under section 6(b) of E.O. 12866, Regulatory Planning 
and Review, dated September 30, 1993.

VI. Congressional Review Act

    As required by the Congressional Review Act (5 U.S.C. 801-808) 
before an interim or final rule takes effect, DoD, GSA, and NASA will 
send the rule and the ``Submission of Federal Rules Under the 
Congressional Review Act'' form to each House of the Congress and to 
the Comptroller General of the United States. A major rule cannot take 
effect until 60 days after it is published in the Federal Register. 
This proposed rule is not anticipated to be a major rule under 5 U.S.C. 
804.

VII. Regulatory Flexibility Act

    DoD, GSA, and NASA do not expect this proposed rule to have a 
significant economic impact on a substantial number of small entities 
within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601-612. 
However, an initial regulatory flexibility analysis has

[[Page 55772]]

been performed and is summarized as follows:

    DoD, GSA, and NASA are proposing to amend the Federal 
Acquisition Regulation (FAR) to implement a statutory requirement to 
certify Women-Owned Small Business Concerns (WOSBs) and Economically 
Disadvantaged Women-Owned Small Business Concerns (EDWOSBs) 
participating in the Procurement Program for Women-Owned Small 
Business Concerns (the Program). The certification requirement 
applies only to participants wishing to compete for set-aside or 
sole-source contracts under the Program. Once this rulemaking is 
effective, WOSBs and EDWOSBs that are not certified will not be 
eligible for contracts under the Program. Other WOSBs that do not 
participate in the Program may continue to self-certify their 
status, receive contract awards outside the Program, and count 
toward an agency's goal for awards to WOSBs.
    The objective of this rulemaking is to implement section 
825(a)(1) of the NDAA for Fiscal Year (FY) 2015, Public Law 113-291, 
which amended the Small Business Act to create a requirement that a 
concern be certified as a WOSB or EDWOSB by a Federal agency, a 
State government, the Small Business Administration (SBA), or a 
national certifying entity approved by SBA, in order to be awarded a 
set-aside or sole-source contract under the authority of section 
8(m) of the Small Business Act. The legal basis for this rule is 15 
U.S.C. 637(m)(2)(E).
    This rulemaking will impact approximately 9,000-12,000 WOSBs. 
These businesses will have to apply to be certified as WOSBs or 
EDWOSBs to SBA or third-party certifiers in order to be eligible to 
be awarded any WOSB or EDWOSB set-aside contracts or sole-source 
awards under the WOSB program. However, SBA has minimized the impact 
on WOSBs by accepting certifications already conferred by SBA.
    Data taken from FPDS-NG as of September 20, 2020, revealed that 
7,198 awards were made to WOSB and EDWOSB contractors between FY 
2017-2019. Of the 7,198 awards made, 553 or approximately 8% were 
WOSB and EDWOSB sole-source awards.
    A further breakdown reveals that during FY 2017, a total of 
3,150 awards were made to WOSB and EDWOSB contractors, with 
approximately 9 percent of these awards being sole-sourced. Of the 
3,150 awards made, 244 were sole-sourced to WOSBs and 36 were sole-
sourced to EDWOSBs.
    During FY 2018, a total of 1,460 awards were made to WOSB and 
EDWOSB contractors, with approximately 17 percent of these awards 
being sole-sourced. Of the 1,460 awards made, 207 were sole-sourced 
to WOSBs and 42 were sole-sourced to EDWOSBs.
    During FY 2019, a total of 2,588 awards were made to WOSB and 
EDWOSB, with approximately 9 percent of these awards being sole-
sourced. Of the 2,588 awards made, 204 were sole-sourced to WOSBs 
and 20 were sole-sourced to EDWOSBs.
    The costs to WOSBs for certification should be de minimis, 
because the required documentation (articles of incorporation, 
bylaws, stock ledgers or certificates, tax records, etc.) already 
exists. In addition, this information is already required to be 
provided either to third-party certifiers, governmental certifying 
entities, or to SBA through certify.gov. SBA expects WOSBs to see a 
reduction in burden because under the prior WOSB Program Repository, 
SBA determined that the average time required to complete the 
process required by the WOSB Program Repository was two hours, 
whereas the use of the new certification program requires only one 
hour due to technological improvements.
    This proposed rule does not include any new reporting, 
recordkeeping, or other compliance requirements for small entities.
    The Small Business Administration currently collects information 
to carry out its statutory mandate to provide oversight of 
certification related to SBA's WOSB Federal Contract Program. (OMB 
Control Number 3245-0374, Certification for the Women-Owned Small 
Business Federal Contract Program). Additionally, third-party 
certifiers are required to provide SBA with quarterly reports that 
include the number of applications received, number of applications 
approved and denied, and other information that SBA determines may 
be helpful for ensuring that third-party certifiers are meeting 
their obligations or information or data that may be useful for 
improving the program.
    The proposed rule does not duplicate, overlap, or conflict with 
any other Federal rules.
    There are no known significant alternative approaches that would 
accomplish the stated objectives of the applicable statute.
    Although this proposed rule may have a positive impact on small 
businesses, we do not expect it to have a significant economic 
impact on a substantial number of small entities.

    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. 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 this rule 
in accordance with 5 U.S.C. 610. Interested parties must submit 
comments separately and should cite 5 U.S.C. 610 (FAR case 2020-013) in 
correspondence.

VIII. Paperwork Reduction Act

    The proposed 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. 3501-3521).

List of Subjects in 48 CFR Parts 2, 19, and 52

    Government procurement.

William F. Clark,
Director, Office of Government-wide Acquisition Policy, Office of 
Acquisition Policy, Office of Government-wide Policy.

    Therefore, DoD, GSA, and NASA propose amending 48 CFR parts 2, 19, 
and 52 as set forth below:


0
1. The authority citation for 48 CFR parts 2, 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. In section 2.101, in paragraph (b)(2) amend the definition of 
``Women-Owned Small Business (WOSB) Program'' by:
0
a. In paragraph (1), remove the phrase ``sole source'' and add the 
phrase ``sole-source'' in its place;
0
b. In paragraph (2), remove the phrase ``13 CFR part 127'' and add the 
phrase ``13 CFR part 127, and the concern is certified by SBA or an 
approved third-party certifier in accordance with 13 CFR 127.300'' in 
its place; and
0
c. In paragraph (3), remove the phrase ``(13 CFR part 127)'' and add 
the phrase ``, and the concern is certified by SBA or an approved 
third-party certifier in accordance with 13 CFR 127.300'' in its place.

PART 19--SMALL BUSINESS PROGRAMS

0
3. Amend section 19.308 by:
0
a. Removing from paragraph (d)(1)(ii) ``women, when'' and adding 
``women who are United States citizens, when'' in its place;
0
b. Removing paragraph (d)(2);
0
c. Redesignating paragraph (d)(3) as (d)(2);
0
d. Removing from the newly designated paragraph (d)(2) ``not a'' and 
adding ``not an'' in its place;
0
e. Revising paragraph (f)(1);
0
f. Revising paragraphs (i)(3)(iii) and (i)(5)(iii);
0
g. Removing from paragraph (1)(2) ``409 Third Street SW, Washington, DC 
20416, or facsimile 202-205-6390'' and adding ``by email at 
[email protected]'' in its place; and
0
h. Removing from paragraph (1)(4) ``facsimile 202-205-6873,''.
    The revisions read as follows:

[[Page 55773]]

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.

* * * * *
    (f)(1) The contracting officer shall forward all protests to SBA. 
The protests are to be submitted to SBA's Director for Government 
Contracting by email at [email protected].
* * * * *
    (i) * * *
    (3) * * *
    (iii) SBA will remove the concern's designation in the Dynamic 
Small Business Search (DSBS) as an EDWOSB or WOSB concern eligible 
under the WOSB Program. The concern 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.
* * * * *
    (5) * * *
    (iii) SBA will remove the concern's designation in DSBS as an 
EDWOSB or WOSB concern eligible under the WOSB Program. The concern 
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
4. Amend section 19.1500 by revising paragraph (c) to read as follows:


19.1500  General.

* * * * *
    (c) An economically disadvantaged women-owned small business 
(EDWOSB) concern and a WOSB concern eligible under the WOSB Program are 
subcategories of ``women-owned small business concern'' as defined in 
section 2.101.


19.1501  [Removed and Reserved]

0
5. Remove and reserve section 19.1501.
0
6. Revise section 19.1503 to read as follows:


19.1503  Status.

    (a) Status as an EDWOSB concern or WOSB concern eligible under the 
WOSB Program is determined by the Small Business Administration in 
accordance with 13 CFR part 127.
    (b) For a WOSB that seeks a WOSB or EDWOSB set-aside or sole-source 
contract, the contracting officer shall verify that the offeror--
    (1) Is registered in the System for Award Management (SAM); and
    (2) Is designated as a certified EDWOSB or WOSB concern in the 
Dynamic Small Business Search (DSBS) at https://web.sba.gov/pro-net/search/dsp_dsbs.cfm (see 19.1505(d) for set aside procedures). DSBS 
will provide SBA's certification status to SAM.
    (c) If there is a decision issued by SBA as a result of a current 
eligibility examination finding that the concern did not qualify as an 
EDWOSB concern or WOSB concern eligible under the WOSB Program, the 
contracting officer may terminate the contract, and shall not exercise 
any option, or award further task or delivery orders. Agencies shall 
not count or include the award toward the small business goals for an 
EDWOSB concern or WOSB concern eligible under the WOSB Program and must 
update FPDS from the date of award to reflect the final SBA decision.
    (d) A joint venture may be considered an EDWOSB concern or WOSB 
concern eligible under the WOSB Program if the EDWOSB or WOSB 
participant is certified in DSBS (see section 19.1505(d) for set aside 
procedures) and the joint venture meets the requirements of 13 CFR 
127.506.
0
7. Amend section 19.1504 by revising paragraph (b) to read as follows:


19.1504  Exclusions.

* * * * *
    (b) Requirements that can be satisfied through award to mandatory 
Government sources (see section 8.002);
* * * * *
0
8. Amend section 19.1505 by:
0
a. Revising paragraph (a)(2);
0
b. Redesignating paragraphs (f) and (g) as paragraphs (h) and (i);
0
c. Redesignating paragraph (d) as paragraph (g);
0
d. Adding paragraph (d);
0
e. Revising paragraph (e);
0
f. Adding paragraph (f); and
0
g. Revising newly redesignated paragraph (i) introductory text and 
(i)(1).
    The revisions read as follows:


19.1505  Set-aside procedures.

    (a) * * *
    (2)(i) May set aside acquisitions exceeding the micro-purchase 
threshold for competition restricted to EDWOSB concerns when the 
acquisition is assigned a NAICS code in which SBA has determined that 
WOSB concerns are underrepresented in Federal procurement; or
    (ii) May set aside acquisitions exceeding the micro-purchase 
threshold for competition restricted to WOSB concerns eligible under 
the WOSB Program when the acquisition is assigned a NAICS code in which 
SBA has determined that WOSB concerns are substantially 
underrepresented in Federal procurement, as specified on SBA's website 
at https://www.sba.gov/WOSB.
* * * * *
    (d) An offer is eligible for consideration under an EDWOSB or WOSB 
set-aside when the offeror--
    (1) Qualifies as a small business concern under the size standard 
corresponding to the NAICS code assigned to the contract, and
    (2)(i) For an EDWOSB set-aside, is certified pursuant to 13 CFR 
127.300 as an EDWOSB or has a pending application for EDWOSB 
certification in the DSBS (see 13 CFR 127.504(a)), or
    (ii) For a WOSB set-aside, is certified pursuant to 13 CFR 127.300 
as an EDWOSB or WOSB, or has a pending application for EDWOSB or WOSB 
certification in the DSBS (see 13 CFR 127.504(a)).
    (e) The contracting officer shall verify that offers received are 
eligible for consideration for award by checking to see if the EDWOSB 
or WOSB concern is designated as a certified concern or has a pending 
application for certification in DSBS.
    (1) If the offeror is designated as certified or has a pending 
application for certification, proceed with the offer evaluation.
    (2) Unless the offeror is designated as certified or has a pending 
application for certification, the offer is not eligible for award and 
shall be removed from consideration.
    (f) Prior to award, the contracting officer shall verify the 
apparently successful offeror is certified in DSBS. If the apparently 
successful offeror's EDWOSB or WOSB certification is pending, the 
contracting officer shall notify SBA's Director/Government Contracting 
by email at [email protected], and request SBA's status 
determination. The contracting officer shall provide SBA with the 
offeror's name, unique entity identifier, type of set-aside, NAICS 
code, and solicitation number.
    (1) Within 15 calendar days from the date of the contracting 
officer's notification, SBA will make a determination regarding the 
offeror's status as an EDWOSB or WOSB eligible under the WOSB program.
    (2) If the contracting officer does not receive a determination 
from SBA within 15 calendar days, the contracting officer at their 
discretion, may provide SBA additional time to make a determination, or 
may proceed with award to the next highest evaluated offeror.
    (3) The contracting officer shall not make award to an offeror who 
is not a

[[Page 55774]]

certified EDWOSB or WOSB concern eligible under the WOSB program.
* * * * *
    (i) The SBA procurement center representative (PCR) may recommend 
use of the WOSB Program. If the contracting officer rejects a 
recommendation by SBA's PCR--
    (1) The contracting officer shall notify the PCR as soon as 
practicable;
* * * * *
0
9. Amend section 19.1506 by:
0
a. Revising the section heading;
0
b. In paragraphs (a) and (b) remove the phrase ``sole source'' and add 
the phrase ``sole-source'' in its place;
0
c. Redesignating paragraph (d) as paragraph (e);
0
d. Adding a new paragraph (d); and
0
e. In newly redesignated paragraph (e), remove the phrase ``sole 
source'' and add the phrase ``sole-source'' in its place.
    The revisions and addition read as follows:


19.1506  Women-Owned Small Business Program sole-source awards.

* * * * *
    (d) A contracting officer shall only award a sole-source contract 
to a concern that has been certified pursuant to 13 CFR 127.300 as an 
EDWOSB or WOSB eligible under the WOSB program. Contracting officers 
shall not request a status determination from SBA on pending 
certification applications for EDWOSB or WOSB sole-source awards.
* * * * *

PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

0
10. Amend section 52.212-3 by:
0
a. Revising the date of the provision;
0
b. In paragraph (a), revise the definition ``Women-owned small business 
(WOSB) concern eligible under the WOSB Program''; and
0
c. Revising paragraphs (c)(6) and (7);
    The revisions read as follows:


52.212-3  Offeror Representations and Certifications--Commercial Items.

* * * * *
Offeror Representations and Certifications--Commercial Items (DATE)
* * * * *
    (a) * * *
    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, 
and the concern is certified by SBA or an approved third-party 
certifier in accordance with 13 CFR 127.300.
* * * * *
    (c) * * *
    (6) WOSB joint venture eligible under the WOSB Program. The offeror 
represents that it [squ] is, [squ] is not a joint venture that complies 
with the requirements of 13 CFR part 127. [The offeror shall enter the 
name or names of the WOSB concern eligible under the WOSB Program and 
other small businesses that are participating in the joint venture: 
____.]
    (7) Economically disadvantaged women-owned small business (EDWOSB) 
joint venture. The offeror represents that it [squ] is, [squ] is not a 
joint venture that complies with the requirements of 13 CFR part 127. 
[The offeror shall enter the name or names of the EDWOSB concern and 
other small businesses that are participating in the joint venture: 
____.]
* * * * *
0
11. Amend section 52.212-5 by:
0
a. Revising the date of the clause;
0
b. In paragraph (b), remove ``[Contracting Officer check as 
appropriate.]'' and add ``[Contracting Officer check as appropriate.]'' 
in its place;
0
c. In paragraph (b)(23), remove ``(SEP 2021)'' and add ``(DATE)'' in 
its place; and
0
d. In paragraph (b)(24), remove ``(SEP 2021)'' and add ``(DATE)'' in 
its place.
    The revision 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 (DATE)
* * * * *
0
12. Amend section 52.219-1 by:
0
a. Revising the date of the provision;
0
b. In paragraph (a), revise the definitions ``Economically 
disadvantaged women-owned small business (EDWOSB) concern'' and 
``Women-owned small business (WOSB) concern eligible under the WOSB 
Program''; and
0
c. Revising paragraphs (c)(4) and (5).
    The revisions read as follows:


52.219-1  Small Business Program Representations.

* * * * *
Small Business Program Representations (DATE)
    (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, and the concern is 
certified by SBA or an approved third-party certifier in accordance 
with 13 CFR 127.300. 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, 
and the concern is certified by SBA or an approved third-party 
certifier in accordance with 13 CFR 127.300.
* * * * *
    (c) * * *
    (4) Women-owned small business (WOSB) joint venture concern 
eligible under the WOSB Program. The offeror represents as part of its 
offer that it [squ] is, [squ] is not a joint venture that complies with 
the requirements of 13 CFR part 127. [The offeror shall enter the name 
or names of the WOSB concern eligible under the WOSB Program and other 
small businesses that are participating in the joint venture: ____.]
    (5) Economically disadvantaged women-owned small business (EDWOSB) 
joint venture. The offeror represents as part of its offer that it 
[squ] is, [squ] is not a joint venture that complies with the 
requirements of 13 CFR part 127. [The offeror shall enter the name or 
names of the EDWOSB concern and other small businesses that are 
participating in the joint venture: ____.]
* * * * *
0
13. Amend section 52.219-28 by revising the date of the clause and 
paragraphs (h)(4) and (5) to read as follows:


52.219-28  Post-Award Small Business Program Rerepresentation.

* * * * *

[[Page 55775]]

Post-Award Small Business Program Rerepresentation (DATE)
* * * * *
    (h) * * *
    (4) Women-owned small business (WOSB) joint venture eligible under 
the WOSB Program. The Contractor represents that it [square] is, 
[square] is not a joint venture that complies with the requirements of 
13 CFR part 127. [The Contractor shall enter the name or names of the 
WOSB concern eligible under the WOSB Program and other small businesses 
that are participating in the joint venture: ____.]
    (5) Economically disadvantaged women-owned small business (EDWOSB) 
joint venture. The Contractor represents that it [square] is, [square] 
is not a joint venture that complies with the requirements of 13 CFR 
part 127. [The Contractor shall enter the name or names of the EDWOSB 
concern and other small businesses that are participating in the joint 
venture: ____.]
* * * * *
0
14. Amend section 52.219-29 by:
0
a. Revising the date of the clause;
0
b. Revising paragraphs (a) and (c);
0
d. In paragraph (d), remove ``Joint Venture'' and add ``Joint venture'' 
in its place.
    The revisions read as follows:


52.219-29  Notice of Set-Aside for, or Sole-Source Award to, 
Economically Disadvantaged Women-Owned Small Business Concerns.

* * * * *
Notice of Set-Aside for, or Sole-Source Award to, Economically 
Disadvantaged Women-Owned Small Business Concerns (DATE)
    (a) Definition. Economically disadvantaged women-owned small 
business (EDWOSB) concern, as used in this clause, 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, and is certified pursuant to 13 CFR 
127.300 as an EDWOSB. It automatically qualifies as a women-owned small 
business (WOSB) concern eligible under the WOSB Program.
* * * * *
    (c) General. (1) For EDWOSB set-aside procurements, offers are 
solicited only from certified EDWOSB concerns or EDWOSB concerns with a 
pending certification application in the Dynamic Small Business Search 
(DSBS).
    (2) For EDWOSB sole-source awards, offers are solicited only from 
certified EDWOSB concerns.
    (3) Offers received from other concerns will not be considered.
    (4) Any award resulting from this solicitation will be made to a 
certified EDWOSB concern.
* * * * *
0
15. Amend section 52.219-30 by:
0
a. Revising the date of the clause;
0
b. Revising paragraphs (a) and (c);
0
d. In paragraph (d), remove ``Joint Venture'' and add ``Joint venture'' 
in its place.
    The revisions 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.

* * * * *
Notice of Set-Aside for, or Sole-Source Award to, Women-Owned Small 
Business Concerns Eligible Under the Women-Owned Small Business Program 
(DATE)
    (a) Definition. Women-owned small business (WOSB) concern eligible 
under the WOSB Program (in accordance with 13 CFR part 127), as used in 
this clause, 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 the concern is certified by SBA 
or an approved third-party certifier in accordance with 13 CFR 127.300 
as a WOSB. A certified EDWOSB is automatically eligible as a certified 
WOSB.
* * * * *
    (c) General. (1) For WOSB set-aside procurements, offers are 
solicited only from certified WOSB concerns eligible under the WOSB 
Program or WOSB concerns with a pending certification application 
status in the Dynamic Small Business Search (DSBS).
    (2) For WOSB sole-source awards, offers are solicited only from 
certified WOSB concerns.
    (3) Offers received from other concerns shall not be considered.
    (4) Any award resulting from this solicitation will be made to a 
certified WOSB concern eligible under the WOSB Program.
* * * * *
[FR Doc. 2021-21343 Filed 10-6-21; 8:45 am]
BILLING CODE 6820-EP-P