IV.  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, et seq. The FRFA is summarized as follows:

This rule finalizes an interim rule that revised the FAR to implement section 8(m) of the Small Business Act, 15 U.S.C. 637(m), to provide a tool for Federal agencies to ensure equal opportunity, and thereby increases Federal procurement opportunities to Women-Owned Small Business (WOSB) concerns.

The objective of the final rule is to assist Federal agencies in eliminating barriers to the participation by women-owned small business concerns in Federal contracting, thereby achieving the Federal Government's goal of awarding five percent of Federal contract dollars to women-owned small business concerns, as provided in the Federal Acquisition Streamlining Act of 1994.

There were no significant issues raised by the public in response to the Initial Regulatory Flexibility Analysis. No public comments were filed by the Chief Counsel for Advocacy of the Small Business Administration in response to this rule.

The Central Contractor Registration (CCR) database currently lists approximately 3,800 Small Disadvantaged Businesses (SDBs) owned and controlled by one or more women. While DoD, GSA, and NASA acknowledge that there may be other women-owned small business concerns in existence other than those listed in the CCR as being certified by SBA as SDBs, it is difficult to envision more than 6,000 women-owned small business concerns that could meet SBA's eligibility criteria and that are also ready, willing, and able to bid on Government contracts.

In addition, not all areas of Federal procurement have been designated as underrepresented or substantially underrepresented, and opportunities in some of the qualified industries may be limited. Consequently, many otherwise-qualified EDWOSB and WOSB concerns eligible under the WOSB Program may not find it advantageous to pursue contract opportunities under these procedures.

Contracting opportunities identified by Federal agencies as candidates to be set aside for WOSB concerns eligible under the WOSB Program (including EDWOSB concerns) will come from new contracting requirements and contracts currently performed by small and large business concerns. At this time, DoD, GSA, and NASA cannot accurately predict how the existing distribution of contracts by business type may change with this rule.

DoD, GSA, and NASA determined that this rule imposes new reporting and recordkeeping requirements. The certification process described in 13 CFR Subpart C, 127.300 to 127.302, is an information collection. The certification process requires a concern seeking to benefit from Federal contracting opportunities designated for WOSB concerns eligible under the WOSB Program or EDWOSB concerns to verify its status by providing documents to the WOSB Program Repository, submitting a certification to the WOSB Program Repository, and representing its status in an existing electronic contracting system (i.e., Online Representations and Certifications Application (ORCA)). The WOSB concern eligible under the WOSB Program or EDWOSB concern will have to represent in ORCA that it meets each eligibility requirement of the program. Specifically, the WOSB concern eligible under the WOSB Program or EDWOSB concern will be required to submit certain documents verifying eligibility at the time of certification in ORCA (and every year thereafter). These documents will be submitted to a documentrepository established by SBA. Further, the protest and eligibility examination procedures will require the submission of documents from those parties subject to a protest and eligibility examination. To reduce the burden on the WOSB concerns eligible under the WOSB Program or EDWOSB concerns, the same documents submitted at the time of certification will be used for the protests and eligibility examinations, except that for protests and eligibility examinations, SBA will also request copies of proposals submitted in response to a solicitation set-aside for WOSB concerns eligible under the WOSB Program or EDWOSB concerns and certain other documents and information to verify the status of an EDWOSB concern. Finally, this rule also requires the WOSB concerns eligible under the WOSB Program or EDWOSB concerns to retain copies of the documents submitted for a period of six (6) years. DoD, GSA, and NASA believe that any additional burden imposed by this recordkeeping requirement would be minimal since the firms would maintain the information in their general course of business.

This final rule minimizes the significant economic impact on small entities by allowing WOSB concerns eligible under the WOSB Program, including EDWOSB concerns, to be certified by a Federal agency, a State government, or a national certifying entity approved by the SBA. WOSB concerns eligible under the WOSB Program, including EDWOSB concerns, may also self-certify eligibility status to the contracting officer through submission of the required documentation in accordance with standards established by SBA. An alternative approach would have been to require EDWOSB concerns and WOSB concerns eligible under the WOSB Program to apply for formal certification. This alternative approach was ruled out as unnecessary, not required by statute, and too costly. DoD, GSA, and NASA believe that eligibility examinations and protest procedures incorporated into this final rule will minimize the likelihood of fraud and misrepresentation of status as a WOSB concern eligible under the WOSB Program or an EDWOSB concern. DoD, GSA, and NASA have decided that allowing self-certification and the option for firms to apply for certification from SBA-approved certifiers, when combined with random eligibility examinations and a formal protest procedure is a more viable approach than formal certification and greatly reduces the burden on small entities.

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