Federal Acquisition Regulation: Certification of Women-Owned Small Businesses, 58237-58243 [2022-20343]

Agencies

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

[Federal Register Volume 87, Number 184 (Friday, September 23, 2022)]
[Rules and Regulations]
[Pages 58237-58243]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-20343]


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DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Parts 2, 19, and 52

[FAC 2022-08; FAR Case 2020-013; Item IV; 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: Final rule.

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SUMMARY: DoD, GSA, and NASA are issuing a final rule 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.

[[Page 58238]]


DATES: Effective October 28, 2022.

FOR FURTHER INFORMATION CONTACT: Ms. Malissa Jones, Procurement 
Analyst, at 571-882-4687, 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 FAC 2022-08, FAR Case 
2020-013.

SUPPLEMENTARY INFORMATION:

I. Background

    DoD, GSA, and NASA published a proposed rule in the Federal 
Register at 86 FR 55769 on October 7, 2021, to amend 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 (Pub. L. 113-291), which amended 15 U.S.C. 637(m), and the Small 
Business Administration (SBA) final rule at 85 FR 27650 issued on May 
11, 2020, implementing section 825(a)(1). Five respondents submitted 
comments on the proposed rule.

II. Discussion and Analysis

    The Civilian Agency Acquisition Council and the Defense Acquisition 
Regulations Council (the Councils) reviewed the public comments in the 
development of the final rule and as a result, a clarifying change has 
been made to 19.1505(d); however, there are no significant changes from 
the proposed rule. A discussion of the comments received is provided as 
follows:

A. Summary of Significant Changes From the Proposed Rule

    There are no significant changes from the proposed rule.

B. Analysis of Public Comments

1. Support for the Rule
    Comment: One respondent expressed support for the rule.
    Response: The Councils acknowledge the respondent's support for the 
rule.
2. Women-Owned Small Business Certification Process
    Comment: Two respondents expressed concern regarding the changes to 
the women-owned small business (WOSB) certification process, indicating 
it is overly complex and is a barrier to entry into the Federal 
marketplace for WOSB concerns. One respondent also indicated that the 
new process will extend award times by requiring contracting officers 
to check the Dynamic Small Business Search (DSBS) to verify the 
certification status of WOSB concerns.
    Response: This rule implements SBA's final rule at 85 FR 27650, 
issued on May 11, 2020, implementing section 825(a)(1) of the NDAA for 
FY 2015, which amended 15 U.S.C. 637(m). In its final rule, SBA amended 
13 CFR part 127 to require WOSB and EDWOSB concerns to be certified by 
SBA or an SBA-approved third-party certifier in accordance with 13 CFR 
127.300. The statutory language mandates the methods for certification; 
therefore, SBA has no authority to retain representation as an option 
for concerns seeking to compete for WOSB and EDWOSB sole-source and 
set-aside procurements. The WOSB and EDWOSB certification requirement 
applies only to those businesses wishing to compete for set-aside or 
sole-source contracts under the WOSB Program (the Program). Other WOSB 
concerns that do not participate in the Program may continue to 
represent their status and receive contract awards outside the Program. 
This rule does not change existing documentation requirements for 
certification. WOSBs will submit the documentation to SBA through 
certify.SBA.gov or to SBA-approved third-party certifiers. In addition, 
a concern's status will appear in the System for Award Management 
(SAM); therefore, this rule will not delay award since contracting 
officers are already required to verify contractor information in SAM 
prior to award.
3. Clarifications
    Comment: One respondent indicated that the Background section of 
the proposed rule incorrectly stated that WOSBs would be able to be 
certified by State governments and that this statement did not align 
with the FAR text of the proposed rule and SBA's final rule. The 
respondent indicated that SBA's final rule implementing section 
825(a)(1) of the NDAA for FY 2015 does not authorize WOSB and EDWOSB 
concerns to be certified by a State government. The respondent 
indicated that the proposed rule FAR text accurately captures the 
program requirements as implemented by SBA.
    Response: The Councils acknowledge the inaccuracy of the statement 
included in the background section of the proposed rule and clarify 
that WOSB and EDWOSB concerns are certified by SBA or a SBA-approved 
third-party certifier.
    Comment: One respondent indicated that the proposed rule does not 
clearly indicate ``when the EDWOSB or WOSB concern must have been 
designated as a certified concern or have a pending application for 
certification in DSBS'' to be eligible for award.
    Response: As a result of the comment received, the FAR text at 
19.1505(d) has been revised to clarify when an offeror is eligible for 
consideration.

4. Outside the Scope of the Rule

    Comment: One respondent indicated that the proposed rule's language 
at FAR 19.1503(c) differs from SBA's regulations regarding when a 
contracting officer must, or may, terminate a contract.
    Response: This comment is outside the scope of the rule. SBA's 
regulations at 13 CFR 137.604(f) correspond to the FAR coverage at 
19.308 on protests, not 19.1503, which addresses an entity's status as 
a WOSB or EDWOSB. The questioned phrase ``the contracting officer may 
terminate'' already appears at FAR 19.1503(e), and is only being 
renumbered as paragraph (c).
    Comment: One respondent recommended that the North American 
Industry Classification System codes be revised to increase the dollar 
thresholds to allow WOSB concerns to qualify for large or high dollar 
value set-aside contracts.
    Response: This comment is outside the scope of this rule.
    Comment: Three respondents submitted comments outside the scope of 
the rule.
    Response: These comments are outside the scope of this rule.

C. Other Changes

    FAR 19.1503(b)(2), 19.1505(e), and 19.1505(f) have been changed to 
clarify the systems that reflect an EDWOSB and WOSB concern's 
certification status. Conforming changes have been made to the 
definition of Economically disadvantaged women-owned small business 
(EDWOSB) concern in FAR clause 52.212-3, Offeror Representations and 
Certifications--Commercial Products and Commercial Services.

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

    This 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. While the provisions and clauses are being 
amended, this rule does not change the application to contracts at or 
below the SAT or for commercial products or for commercial services, 
including COTS items. The provisions and clauses continue to apply to 
acquisitions for

[[Page 58239]]

commercial products or for commercial services, including COTS items, 
and acquisitions at or below the SAT.

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 Federal Acquisition 
Regulatory Council (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 has made a 
determination to apply this statute to acquisitions at or below the 
SAT.

B. Applicability to Contracts for the Acquisition of Commercial 
Products and Commercial Services, 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 products and commercial services, and is 
intended to limit the applicability of laws to contracts for the 
acquisition of commercial products and commercial services. 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 products or commercial services contracts and subcontracts, 
the provision of law will apply to contracts and subcontracts-for the 
acquisition of commercial products and commercial services.
    41 U.S.C. 1907 states that acquisitions of COTS items will be 
exempt from 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 has made a determination to apply this statute to 
acquisitions for commercial products and commercial services. The 
Administrator for Federal Procurement Policy has made a determination 
to apply this statute to acquisitions for COTS items.

C. Determinations

    This rule implements 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. Section 825(a)(1) is silent on 
applicability to acquisitions of commercial products and commercial 
services. The statute does not provide for civil or criminal penalties. 
Therefore, it does not apply to acquisitions of commercial products and 
commercial services unless the FAR Council makes a written 
determination as provided in 41 U.S.C. 1906. 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.
    Failure to apply section 825(a)(1) to acquisitions at or below the 
SAT, acquisitions of commercial products or commercial services, 
including COTS items, would prevent contracting officers from using 
WOSB set-asides or making sole-source awards to WOSB or EDWOSB concerns 
based on their socioeconomic status. This limitation would restrict 
opportunities for WOSB and EDWOSB concerns in the Federal marketplace 
which is contrary to the longstanding policy expressed in FAR 19.201 of 
promoting ``maximum practicable opportunities'' in Government 
contracting, as well as the Administration's express commitment 
reflected in Executive Order 13985, Advancing Racial Equity and Support 
for Underserved Communities Through the Federal Government, to advance 
equity for underserved communities.
    Application of the law to acquisitions at or below the SAT and 
acquisitions of commercial products and commercial services, including 
COTS items, will maximize the positive impact set-aside and sole-source 
contracts provide for WOSB and EDWOSB concerns by increasing WOSB 
opportunities in the Federal marketplace.
    The Federal Government has a policy of promoting WOSB and EDWOSB 
participation in Government contracting; therefore, applying the 
requirement to acquisitions at or below the SAT and acquisitions of 
commercial products and commercial services, including COTS items, will 
help Federal agencies achieve WOSB goals.
    For these reasons, it is in the best interest of the Federal 
Government to apply the requirements of this rule to acquisitions at or 
below the SAT and to acquisitions of commercial products and commercial 
services and COTS items.

IV. Expected Impact of the Rule

    As a result of this rule, contracting officers will be required to 
check SAM to determine if an EDWOSB or WOSB concern is certified or if 
the concern has a pending application for certification in DSBS, 
instead of checking that all required documentation has been submitted 
to the now defunct WOSB Repository. For EDWOSB or WOSB set-asides and 
sole-source awards, awards can only be made to an EDWOSB or WOSB 
certified concern. For EDWOSB or WOSB set-aside awards, if the 
apparently successful offeror's EDWOSB or WOSB certification is 
pending, the contracting officer will be required to notify SBA's 
Director/Government Contracting, and request SBA's status 
determination. Within 15 calendar days from the date of contracting 
officer notification, SBA will make a determination regarding the 
offeror's status as an EDWOSB or WOSB eligible under the WOSB program. 
If SBA does not provide the contracting officer with a determination 
within 15 days, the contracting officer may provide SBA additional time 
to make a determination, or may proceed with award to the next highest 
evaluated offeror.
    The changes in this rule will affect contractor operations by 
requiring WOSB and EDWOSB concerns to be certified by SBA or a SBA-
approved third-party certifier. However, the requirement to submit 
documentation (i.e., articles of incorporation, bylaws, stock ledgers 
or certificates, tax records, etc.) to SBA through certify.SBA.gov or

[[Page 58240]]

to SBA approved third-party certifiers already exists and remains 
unchanged.
    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 27650). 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 this rule is not a significant impact, and is 
limited to the cost of regulatory familiarization, or the cost 
associated with reading this rule and understanding the revised 
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. The 
Office of Information and Regulatory Affairs (OIRA) in the Office of 
Management and Budget has determined that this is not a major rule 
under 5 U.S.C. 804.

VII. Regulatory Flexibility Act

    DoD, GSA, and NASA have prepared a Final Regulatory Flexibility 
Analysis (FRFA) consistent with the Regulatory Flexibility Act, 5 
U.S.C. 601-612. The FRFA is summarized as follows:

    DoD, GSA, and NASA are issuing a final rule amending the Federal 
Acquisition Regulation (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 (Pub. L. 113-291) 
which amended 15 U.S.C. 637(m), and SBA's final rule at 85 FR 27650 
issued on May 11, 2020, to require that women-owned small business 
(WOSBs) concerns and economically disadvantaged women-owned small 
business (EDWOSBs) concerns participating in the WOSB Program (the 
Program) be certified by SBA or by a SBA-approved third-party 
certifier. EDWOSB and WOSB concerns that are not certified will not 
be eligible for contracts under the Program. The certification 
requirement applies only to participants wishing to compete for set-
aside or sole-source contracts under the Program. EDWOSB and WOSB 
concerns that do not participate in the Program may continue to 
represent their status, receive contract awards outside the Program, 
and the awards may count toward an agency's goal for awards to 
WOSBs.
    There were no significant issues raised by the public comments 
in response to the initial regulatory flexibility analysis.
    This rule will require EDWOSB and WOSB concerns to apply for 
certification through SBA or a SBA-approved third-party certifier 
and to be certified in order to be eligible for WOSB or EDWOSB set-
aside or sole-source contracts under the Program. This rule is 
anticipated to impact 9,000-12,000 WOSB concerns. This estimate 
reflects the approximate number of WOSB concerns in the predecessor 
system SBA used to maintain WOSB certifications. The assumption is 
that the majority of those entities will seek certification from SBA 
or a third-party under the new certification process.
    Data taken from the Federal Procurement Data System as of 
February 8, 2022, revealed that 8,599 set-aside or sole-source 
awards were made to WOSB and EDWOSB concerns from FY 2019 to FY 
2021. Of the 8,599 awards made, 625 or approximately 7 percent, were 
WOSB and EDWOSB sole-source awards. This exemplifies the number of 
opportunities an offeror would potentially miss out on if they are 
not a certified EDWOSB or WOSB concern.
    This final rule does not impose 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). Certified EDWOSB or WOSB 
concerns need to update their certification information with SBA 
once a year to maintain their status with the WOSB Federal Contract 
program.
    There are no known significant alternative approaches to the 
final rule.

    Interested parties may obtain a copy of the FRFA from the 
Regulatory Secretariat Division. The Regulatory Secretariat Division 
has submitted a copy of the FRFA to the Chief Counsel for Advocacy of 
the Small Business Administration.

VIII. Paperwork Reduction Act

    This 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 amend 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


2.101  [Amended]

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) introductory text, removing the phrase ``sole 
source'' and adding the phrase ``sole-source'' in its place;
0
b. In paragraph (2), removing the phrase ``13 CFR part 127'' and adding 
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), removing the phrase ``(13 CFR part 127)'' and 
adding 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) the phrase ``women, when'' and 
adding the phrase ``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) the words

[[Page 58241]]

``not a'' and adding the words ``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 (l)(2) the phrase ``409 Third Street SW, 
Washington, DC 20416, facsimile 202-205-6390'' and adding the phrase 
``by email at [email protected]'' in its place; and
0
h. Removing from paragraph (l)(4) the phrase ``facsimile 202-205-
6873,''.
    The revisions 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.

* * * * *
    (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.
* * * * *


19.502-8  [Amended]

0
4. Amend section 19.502-8 in paragraph (b) by removing ``19.1505(g)'' 
and adding ``19.1505(i)'' in its place.

0
5. 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
6. Remove and reserve section 19.1501.

0
7. 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 SAM (see 
19.1505(d) for set aside procedures). Pending applications for 
certification are only in the Dynamic Small Business Search (DSBS) at 
https://web.sba.gov/pro-net/search/dsp_dsbs.cfm.
    (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 SAM (see section 19.1505(d) for set-aside 
procedures) and the joint venture meets the requirements of 13 CFR 
127.506.

0
8. 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
9. 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. Removing paragraph (e);
0
e. Adding new paragraphs (d) through (f); and
0
f. Revising newly redesignated paragraphs (i) introductory text and 
(i)(1).
    The revisions and addition 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 EDWOSB or WOSB concern may submit an offer 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 SAM to see if the 
EDWOSB or WOSB concern is designated as a certified concern or checking 
DSBS for a pending application for certification.
    (1) If the offeror is designated as certified in SAM or has a 
pending application for certification in DSBS, proceed with the offer 
evaluation.
    (2) Unless the offeror is designated as certified in SAM or has a 
pending application for certification in DSBS, 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 SAM, or has a pending 
application for certification in DSBS. If the apparently successful 
offeror's EDWOSB or WOSB certification is pending in DSBS, the

[[Page 58242]]

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 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
10. Amend section 19.1506 by:
0
a. Revising the section heading;
0
b. In paragraphs (a) introductory text and (b) introductory text 
removing the phrase ``sole source'' and adding 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), removing the phrase ``sole 
source'' and adding the phrase ``sole-source'' in its place.
    The revision 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 
applications for certification for EDWOSB or WOSB sole-source awards.
* * * * *

PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

0
11. Amend section 52.212-3 by:
0
a. Revising the date of the provision;
0
b. In paragraph (a):
0
i. In the definition ``Economically disadvantaged women-owned small 
business (EDWOSB) concern'' removing the phrase ``13 CFR part 127'' and 
adding 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;
0
ii. 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 
Products and Commercial Services.

* * * * *

Offeror Representations and Certifications--Commercial Products and 
Commercial Services (Oct 2022)

* * * * *
    (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 [square] is, [square] is not a joint 
venture that complies with the requirements of 13 CFR 127.506(a) 
through (c). [The offeror shall enter the name and unique entity 
identifier of each party to the joint venture:__.]
    (7) Economically disadvantaged women-owned small business 
(EDWOSB) joint venture. The offeror represents that it [square] is, 
[square] is not a joint venture that complies with the requirements 
of 13 CFR 127.506(a) through (c). [The offeror shall enter the name 
and unique entity identifier of each party to the joint venture:__.]
* * * * *

0
12. Amend section 52.212-5 by:
0
a. Revising the date of the clause;
0
b. In paragraph (b)(23), removing the date ``(SEP 2021)'' and adding 
the date ``(OCT 2022)'' in its place; and
0
c. In paragraph (b)(24), removing the date ``(SEP 2021)'' and adding 
the date ``(OCT 2022)'' in its place.
    The revision reads as follows:


52.212-5   Contract Terms and Conditions Required To Implement Statutes 
or Executive Orders--Commercial Products and Commercial Services.

* * * * *

Contract Terms and Conditions Required To Implement Statutes or 
Executive Orders--Commercial Products and Commercial Services (OCT 
2022)

* * * * *

0
13. Amend section 52.219-1 by:
0
a. Revising the date of the provision;
0
b. In paragraph (a), revising 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 (Oct 2022)

    (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 eligible 
under the WOSB Program. The offeror represents as part of its offer 
that it [square] is, [square] is not a joint venture that complies 
with the requirements of 13 CFR 127.506(a) through (c). [The offeror 
shall enter the name and unique entity identifier of each party to 
the joint venture: __.]
    (5) Economically disadvantaged women-owned small business 
(EDWOSB) joint venture. The offeror represents as part of its offer 
that it [square] is, [square] is not a joint venture that complies 
with the requirements of 13 CFR

[[Page 58243]]

127.506(a) through (c). [The offeror shall enter the name and unique 
entity identifier of each party to the joint venture: __.]
* * * * *

0
14. 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.

* * * * *

Post-Award Small Business Program Rerepresentation (Oct 2022)

* * * * *
    (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 127.506(a) through (c). [The Contractor shall 
enter the name and unique entity identifier of each party to 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 127.506(a) through (c). [The Contractor shall 
enter the name and unique entity identifier of each party to the 
joint venture:__ .]
* * * * *

0
15. Amend section 52.219-29 by revising the date of the clause, 
paragraphs (a) and (c), and the paragraph (d) subject heading to 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 (Oct 2022)

    (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 application for certification 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.
    (d) Joint venture.* * *
* * * * *

0
16. Amend section 52.219-30 by revising the date of the clause, 
paragraphs (a) and (c), and the paragraph (d) subject heading 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.

* * * * *

Notice of Set-Aside for, or Sole-Source Award to, Women-Owned Small 
Business Concerns Eligible Under the Women-Owned Small Business Program 
(Oct 2022)

    (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 application for 
certification 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.
    (d) Joint venture. * * *
* * * * *
[FR Doc. 2022-20343 Filed 9-22-22; 8:45 am]
BILLING CODE 6820-EP-P