Small Disadvantaged Business Self-Certification (FAR Case 2009-019)

FAC 2005-47 includes an interim rule, with request for comments, amending the Federal Acquisition Regulation (FAR) to incorporate changes made by the Small Business Administration (SBA) to its Small Disadvantaged Business (SDB) Program.

Background:

This interim rule amends the FAR to allow subcontractors on Federal contracts to self-represent their status as SDBs to prime contractors.

SBA published an interim final rule in the Federal Register at 73 FR 57490, October 3, 2008, to allow SDB subcontractors to provide written statements to prime contractors representing in good faith their status as an SDB concern for the purposes of subcontract awards under Federal prime contracts. Under SBA's previous regulation, only those firms that were certified by SBA as SDBs could participate as SDBs for Federal prime contract and subcontract opportunities.

SBA stated that, effective October 3, 2008, it would no longer serve as a source for SDB certification for firms seeking to establish themselves as SDBs. The revision to SBA's regulation removed any uncertainty regarding SDB subcontractors' ability to self-represent themselves in good faith to prime contractors.

In order to maintain consistency between the SBA regulations and the FAR, the Councils are amending the FAR as outlined below:

• FAR 2.101, Definitions: The term "small disadvantaged business concern" is revised to be consistent with 13 CFR part 124, which continues to recognize small business concerns that have been certified by SBA, and to add language that allows small business concerns to self-represent their status as SDBs for subcontracts.

•  FAR 19.301-1, Representations by the offeror: Amended to update citations.

•  FAR 19.703, Eligibility requirements for participating in the program: Amended to add language that allows the contractor to rely on small business concerns to self-represent their status as SDBs for subcontracts.

•  FAR 52.219-8, Utilization of Small Business Concerns: Amended to include language that the small business concern can self-represent its SDB status in writing.

•  FAR 52.219-25, Small Disadvantaged Business Participation Program--Disadvantaged Status and Reporting: Amended to allow the contractor to accept written self-representations of small disadvantaged status from subcontractors.

This is not a significant regulatory action and, therefore, was not subject to review under Section 6(b) of the Executive Order 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.

The Effective Date for this interim rule is 13 December 2010.

Comments are due on or before 11 February 2011 to be considered in the formulation of a final rule.

Click here to read the entire Federal Register notice for this rule.

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