Women-Owned Small Business Federal Contract Program Updates and Clarifications

SMALL BUSINESS ADMINISTRATION <CFR>13 CFR Parts 124, 127, and 128</CFR> <DEPDOC>[Docket ID SBA-2024-0004]</DEPDOC> <RIN>RIN 3245-AI04</RIN> <SUBJECT>Women-Owned Small Business Federal Contract Program Updates and Clarifications</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> U.S. Small Business Administration. <HD SOURCE="HED">ACTION:</HD> Notice of proposed rulemaking. <SUM> <HD SOURCE="HED">SUMMARY:</HD> This proposed rule would make several changes to the Small Business Administration's (SBA or Agency) Women-Owned Small Business Federal Contract (WOSB) Program regulations, including adding definitions that are not currently included in the regulations and conforming the regulations to current statutes that have not yet been integrated. The rule would also adopt similar language to that used in SBA's other government contracting program regulations regarding the length of time that a firm that has been declined three times must wait before reapplying to the WOSB Program, and limits on outside employment. The Agency requests comment on all aspects of this proposed rule. </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> Comments must be received on or before July 15, 2024. </EFFDATE> <HD SOURCE="HED">ADDRESSES:</HD> You may submit comments, identified by RIN 3245-AI04 or Docket No. 2024-0004, by any of the following methods: • <E T="03">Federal eRulemaking Portal: https://www.regulations.gov</E> and follow the instructions for submitting comments. • <E T="03">Mail (for paper, disk, or CD-ROM submissions):</E> Harry T. Alexander Jr., Business Opportunity Specialist, Office of Contracting Assistance, U.S. Small Business Administration, 409 Third Street SW, Washington, DC 20416. <E T="03">Instructions:</E> All submissions received must include the agency name and docket number or Regulatory Information Number (RIN) for this rulemaking. All comments received will be posted on <E T="03">https://www.regulations.gov.</E> If you wish to submit confidential business information (CBI) as defined in the User Notice at <E T="03">https://www.regulations.gov,</E> please submit the comments to Harry T. Alexander Jr. and highlight the information that you consider to be CBI and explain why you believe this information should be held confidential. <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> Harry T. Alexander Jr., U.S. Small Business Administration, Office of Contracting Assistance, 409 Third Street SW, Washington, DC 20416; (202) 619-0314, <E T="03">harry.alexanderjr@sba.gov.</E> </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> SBA proposes to make changes to the process by which an application for certification is reviewed by SBA in order to implement a statutory amendment from the National Defense Authorization Act for Fiscal Year 2022 regarding the effects of a status determination on a small business concern. SBA also proposes to remove outdated references to the U.S. Department of Veterans Affairs Center for Verification and Evaluation, instead referring to SBA's Veteran Small Business Certification Program. The rule would also provide additional definitions of terms used in the regulations, attempt to provide consistency across the regulations used in SBA's other government contracting programs, and define who is authorized to represent a firm when validating or signing certification pages during the certification process. <HD SOURCE="HD1">Section-by-Section Analysis</HD> <HD SOURCE="HD2">Sections 124.106(a), 127.202(c), and 128.203(i)</HD> Sections 124.106(a) (for the 8(a) Business Development (BD) program), 127.202(c) (for the women-owned small business (WOSB program), and 128.203(i) (for the veteran small business certification (VetCert) program) address limitations on outside employment that can affect a business concern's eligibility for participation in the 8(a) BD, WOSB, and VetCert programs based on a qualifying individual's lack of control. Basically, each of these provisions generally requires the qualifying individual to devote fulltime or the number of hours of normal operation to the business. Each also requires the business concern to demonstrate how a qualifying individual does in fact control the day-to-day operations of the business concern if the qualifying individual does devotes fewer hours to the business than its normal hours of operation. The language of the three provisions, however, is not identical. This has led to questions as to whether SBA intended different application of the control requirements for different programs. In order to clear up any confusion, this rule proposes to change the wording of the three provisions to make them identical to ensure that the control requirement is consistently applied. Basically, the rule would align the language of the restrictions in 8(a) BD and WOSB programs to the current restriction in the VetCert Program. <HD SOURCE="HD2">Section 127.102</HD> Section 127.102 sets out the definitions for the Women-Owned Small Business (WOSB) Federal Contract Program. This rule first proposes to add a definition for the term “Applicant” as a definition was not included in the previous version of the regulations and appears in the regulations of SBA's other government contracting programs. SBA believes that including this definition will provide consistency in the rules that apply to its various certification programs and make clear that a concern applying for certification in the WOSB Program is an “Applicant.” The proposed rule would amend the current definition of the term “System for Award Management (SAM) (or any successor system).” SBA believes that the definition is outdated and should match the definition that is used in the FAR for consistency purposes. The proposed rule would also remove the definition for “WOSB Program Repository” as this definition refers to the old repository system that is no longer in use. SBA believes that removing this definition, which is not used elsewhere in 13 CFR part 127, will alleviate any confusion. Lastly, the proposed rule would amend the current definition of “Interested party,” limiting it to certified WOSB concerns or concerns that have a pending application for WOSB certification, either at SBA or a third-party certifier, that submit an offer for a specific Economically Disadvantaged Women-Owned Small Business (EDWOSB) or WOSB requirement, rather than any concern who submits an offer for a specific EDWOSB or WOSB requirement. SBA believes that only certified WOSBs and EDWOSBs or concerns pending WOSB certification should be able to submit a protest against an apparent successful offeror's EDWOSB or WOSB status. It is not uncommon for an incumbent contractor to file a bid or size/status protest in order for its performance to be extended pending the resolution of the protest. SBA does not want to encourage firms that are not certified WOSBs or certified EDWOSBs to submit offers merely to be able to file a status protest that could prolong their performance under a preceding contract. Such firms have no chance to be awarded a WOSB/EDWOSB contract, and such protests may be nothing more than delay tactics. Only firms that are capable of winning the WOSB set-aside contract or order should be able to protest the WOSB status of an apparent successful offeror. <HD SOURCE="HD2">Section 127.202</HD> Current § 127.202 generally requires that a woman devote sufficient time to the business with a rebuttable presumption that the business is not a WOSB if a woman devotes fewer hours to the business than its normal hours of operation. Where the presumption applies, the woman must provide evidence to SBA that she has ultimate managerial and supervisory control over both the long-term decision making and day-to-day management and administration of the business. This rule proposes to align this language to the current restriction in the Veteran Small Business Certification Program. The business still will be generally required to have the qualified woman that controls the concern devote the woman's full time to the business during the business's normal hours of operation. The business may, however, demonstrate to SBA that the woman has ultimate managerial and supervisory control over both the long-term decision making and day-to-day management of the business. <HD SOURCE="HD2">Section 127.300</HD> The proposed rule would amend the outdated references in § 127.300(a)(2) and (b)(3) to certifications made by the U.S. Department of Veterans Affairs (VA) Center for Verification and Evaluation. Instead, the regulation would refer to SBA's Veteran Small Business Certification Program. SBA believes this change would resolve any confusion caused by reference to the VA's Verification Program, which no longer certifies veteran-owned or service-disabled veteran-owned small business concerns following its transfer to SBA pursuant to section 862 of the National Defense Authorization Act for Fiscal Year 2021. The proposed rule would also amend § 127.300(c) by referring to SAM, in addition to the Dynamic Small Business Search (DSBS) system. This change would recognize that a concern that is a qualified WOSB or EDWOSB will be designated as such in both SAM and the DSBS system. <HD SOURCE="HD2">Section 127.303</HD> The proposed rule would add a new paragraph and reorganize § 127.303(a)(1) to provide that a concern certified as a veteran-owned or service-disabled veteran-owned small business for the Veteran Small Business Certification Program and owned and controlled by one or more women may use documentation of its Veteran-Owned Small Business Concern (VOSB) or Service-Disabled Veteran-Owned Small Business Concern (SDVOSB) certification or more recent recertification in support of its application for WOSB certification. The proposed rule would further provide that if the concern is also seeking EDWOSB certification, it m ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 34k characters. 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