Women-Owned Small Business (WOSB) Program (FAR Case 2010-015)

Summary:

FAC 2005-51 includes an interim rule amending the Federal Acquisition Regulation (FAR) to implement the Small Business Administration's regulations establishing the Women-Owned Small Business Program.

Supplementary Information:

I. Background

DoD, DoD, GSA, and NASA are issuing an interim rule amending the FAR, to implement changes to the Small Business Administration (SBA) regulations at 13 CFR part 127, entitled "Women-Owned Small Business Federal Contract Program" and implements procedures that were authorized by the Small Business Act (Pub. L. 85-536, as amended). The Small Business Act assists in levelling the procurement playing field to enable small business concerns, including women-owned small business (WOSB) concerns and economically disadvantaged women-owned small business (EDWOSB) concerns, to compete for Federal contracting opportunities.

On December 21, 2000, Congress enacted the Small Business Reauthorization Act of 2000 ("Act") (Pub. L. 106-554). Section 811 of Appendix I of the Act amended the Small Business Act to include section 8(m), which authorized the restriction of competition for Federal contracts in certain industries to EDWOSB concerns or WOSB concerns eligible under the WOSB Program. SBA published a final rule implementing the program on October 7, 2010 (75 FR 62258), which became effective February 4, 2011.

This interim rule provides the contracting community additional resources to meet the Government's procurement needs. The addition of FAR subpart 19.15 incorporates coverage of the Women-Owned Small Business Program. The rule defines "Women-Owned Small Business Program (WOSB Program)", "women-owned small business (WOSB) concern eligible under the WOSB Program", and "economically disadvantaged women-owned small business (EDWOSB) concern".

To qualify as a WOSB concern eligible under the WOSB Program, the concern must be--

•  A small business as defined in 13 CFR part 121 in its primary industry classification; and

•  Not less than 51 percent directly and unconditionally owned by, and the management and daily operations controlled by, one or more women who are citizens of the United States.

To qualify as an EDWOSB concern, the concern must be--

•  A small business as defined in 13 CFR part 121 in its primary industry classification; and

•  Not less than 51 percent directly and unconditionally owned by, and the management and daily operations controlled by, one or more women who are citizens of the United States and who are economically disadvantaged. A woman is economically disadvantaged if she can demonstrate certain income, asset, and other limitations established in SBA regulations.

Contracting officers may restrict competition in those industries where SBA has determined that WOSB concerns or EDWOSB concerns are underrepresented. For a North American Industry Classification System (NAICS) code in an underrepresented industry, the contracting officer may set aside for EDWOSB concerns. For a NAICS code in a substantially underrepresented industry, the contracting officer may set aside for EDWOSB concerns, or set aside for WOSB concerns that are eligible under the WOSB Program. An EDWOSB concern is automatically an eligible WOSB concern.

The contracting officer must expect that two or more concerns will submit offers; contract award will be made at a fair and reasonable price; and the anticipated award price of the contract (including options) will not exceed $6.5 million in the case of a contract assigned a NAICS code for manufacturing, or $4 million, in the case of all other contracts. These figures are higher than the statute and SBA regulation figures because they are adjusted for inflation (see FAR 1.109).

The rule also provides a protest process and procedures for interested parties to challenge the size and status of a WOSB or EDWOSB concern. A protest of the size and status does not preclude the contracting officer from awarding the contract. The FAR allows for the contracting officer to award a contract after receipt of a protest if the contracting officer determines in writing that there is an immediate need or significant harm would result in the event the award is not made.

Dates:

The Effective Date for this interim rule is 1 April 2011.

Interested parties should submit written comments to the Regulatory Secretariat on or before 31 May 2011 to be considered in the formulation of a final rule.

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