I.  Background

DoD, GSA, and NASA published an interim rule in the Federal Register at 76 FR 18304 on April 1, 2011, to implement the Small Business Administration (SBA) regulations at 13 CFR part 127 and the procedures authorized under section 8(m) of the Small Business Act, Public Law 85-536, (15 U.S.C. 637(m)). Seven respondents submitted comments on the interim rule. All respondents expressed support for the WOSB Program; however, some revisions to the WOSB Program were recommended. This final rule incorporates changes made in response to public comments as well as minor technical corrections.

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 provide for a procurement program for women-owned small business concerns. Today, this program is known as the Women-Owned Small Business (WOSB) Program.

The purpose of the WOSB Program is to ensure that women-owned small business concerns have an equal opportunity to participate in Federal contracting and to assist agencies in achieving their women-owned small business concern participation goals.

Under the WOSB Program, contracting officers may restrict competition for Federal contracts to small business concerns owned and controlled by women, under certain conditions, including but not limited to: (1) The procurement requirement is in an industry the SBA has determined to be underrepresented or substantially underrepresented by small business concerns owned and controlled by women; and (2) small business concerns owned and controlled by women participating in the WOSB Program have met the Program's eligibility requirements. 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 North American Industry Classification System (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).

Section 3(n) of the Small Business Act (15 U.S.C. 632(n)) broadly defines a small business concern owned and controlled by women as one that is at least 51 percent owned by one or more women (or in the case of any publicly owned business, at least 51 percent of the stock is owned by one or more women) and whose management and daily business operations are controlled by one or more women. The Governmentwide goal for participation by small business concerns owned and controlled by women is 5 percent of the total value of all prime and subcontract awards (15 U.S.C. 644(g)). However, not all small business concerns owned and controlled by women are eligible to participate in the WOSB Program set forth in section 8(m) of the Small Business Act (15 U.S.C. 637(m)).

The SBA established detailed criteria at 13 CFR 127.200, 127.201, 127.202, and 127.203 for the women-owned small businesses authorized under the Act to participate in the Program: EDWOSB concerns and WOSB concerns eligible under the WOSB Program. In contrast with the broader definition for women-owned small businesses provided at 15 U.S.C. 632(n), both EDWOSB concerns and WOSB concerns eligible under the WOSB Program must be no less than 51 percent unconditionally and directly owned by one or more women who are United States citizens. (Other WOSB Program-specific eligibility criteria are set forth in the SBA's regulations and FAR subpart 19.15.) Thus, EDWOSB concerns and WOSB concerns eligible under the WOSB Program are actually subcategories of the larger group of women-owned small business concerns.