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shall7

Women Owned Small Business

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I am asking this question in all seriousness and in a non-partisan manner.

Given the current political environment where the definition between a man and women is becoming less clear, how will this affect the preference given to Women Owned Small Businesses?

If a business owner says they are a woman, who can challenge that?

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19.1503 Status.

  (d)(1) A contracting officer may accept a concern’s self-certification as accurate for a specific procurement reserved for award under this subpart if—

        (i) The apparent successful WOSB eligible under the WOSB Program or EDWOSB offeror provided the required documents;

.         (ii) There has been no protest or other credible information that calls into question the concern’s eligibility as an EDWOSB concern or WOSB concern eligible under the WOSB Program; and

.         (iii) There has been no decision issued by SBA as a result of a current eligibility examination finding the concern did not qualify as an EDWOSB concern or WOSB concern eligible under the WOSB Program at the time it submitted its initial offer.

.      (2) The contracting officer shall file a status protest in accordance with 19.308 if—

        (i) There is information that questions the eligibility of a concern; or

.         (ii) The concern fails to provide all of the required documents to verify its eligibility.

Who will be the first contracting officer to get a transgender self-certification?

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I am thinking even more ambiguous than a person who actually completed a transsexual operation or is taking hormone therapy.

What if the person simply says I know I was born a man but I "identify as a woman?"

I suppose there is an official certification a person must make when they become a transgender?  I was unaware of that.  If that is the case, then it seems a lot of men may do that just to take advantage of the WOSB program.  They don't have to explain why they want to be a woman, they just can.

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Another thought...

There are four SBA-approved WOSB Third Party Certifiers -- if one of them say the applicant is a woman, I suppose a contracting officer can rely on that certification.

  • El Paso Hispanic Chamber of Commerce

  • National Women Business Owners Corporation

  • US Women’s Chamber of Commerce

  • Women’s Business Enterprise National Council

https://www.sba.gov/content/what-you-need-know-if-you-are-women-owned-small-business

 

I can't find that the SBA regulations define woman or women.  However, I did find the following--

13 CFR 127.202 - What are the requirements for control of an EDWOSB or WOSB?

(g) Involvement in the concern by other individuals or entities. Men or other entities may be involved in the management of the concern and may be stockholders, partners or limited liability members of the concern. However, no males or other entity may exercise actual control or have the power to control the concern.

I see women, males, and other entities as the only three possibilities. 

A contracting officer doing a WOSB or EDWOSB set-aside should follow the guidelines in FAR Subpart 19.15.

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That's a good question. FAR 19.1503(c)(2) refers to a birth certificate, so that may factor in.

Things could get even more interesting where an offeror could be a woman for some offers, and a man for others. Like CAS coverage.

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This question is especially relevant now that woman-owned small businesses (WOSB) are eligible for sole-source contract awards (FAR 19.1506, implementing Section 825 of the FY15 NDAA). With this and other tempting incentives in the WOSB program, can we expect to see "bad faith" self-certifications? By "bad faith," I mean assuming new identities to obtain advantage(s) in Government contracts, much like the titular characters in "Mrs. Doubtfire" and "Tootsie" assumed new identities to land jobs.

 

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The SBA nor the FAR defines "man" or "woman" so that is the problem.  If it is the birth certificate that defines peoples' gender then no transgender or transsexual can assume their preferred identity for WOSB purposes

I believe SBA needs to be clearly define a "woman" in order for the WOSB program to continue.

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I agree this is a valid concern, but it all seems so speculative at this point. Does anybody have any concrete examples of "bad faith" self-certifications that are linked to gender choice versus birth certificate?

In my (limited) experience the issues with WOSB certification have been about a male exerting control in fact while a female is a "figure head" that does no actual management. It's often been about a husband using the wife as the company CEO but really doing all the work. This concern would not be that.

I doubt that anybody will take action on this concern at the Federal level until there is a real issue that surfaces -- e.g., a protest where the protester asserts that the winning WOSB is helmed by somebody who is not a "real" woman. Until then, I can't see people eager to tackle this concern, especially in an election year.

H2H

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Although I am not aware of anyone claiming to be a woman to take advantage of the WOSB contracting program, I do know of a case a few years back in Maryland where an individual changed his name to a Hispanic surname to take advantage of a contracting program for such individuals.  Also, there have been questionable assertions of ethic identity such as Elizabeth Warren's claim of being Native American and the NAACP president in Seattle's claim of being an African American.  While these are isolated events, they do demonstrate that such a claim is something that is not beyond the realm of possibility.

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Retreadfed, you are making the same point I am making but yours is regarding race.  Same question applies.  One day this will be challenged in a court and we'll see what happens :) 

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High school biology is but a hazy memory, but I think the answer to this question is stamped on every cell in the in the business owner's body.  A woman who gets gender reassignment surgery should be eligible for the WOSB program. 

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Politicians are always condemning special interest programs on the stump but they can't wait to create more as soon as they are back in the office.  I was told once that if they hang one more socio-economic program on the Christmas tree, it will all fall over. 

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According to 13 CFR 127.300, "How is a concern certified as an EDWOSB or WOSB?" paragraph (c):

Quote

Documents provided to contracting officer. All of the documents set forth in paragraphs (d) and (e) of this section must be provided to the contracting officer to verify eligibility at the time of initial offer. The documents will be provided via the WOSB Program Repository or, if the repository is unavailable, directly to the contracting officer. The documents must be retained for a minimum of six (6) years.

According to 13 CFR 127.300(e):

Quote

These documents must be signed and include the following: (1) Birth certificates, Naturalization papers, OR unexpired passports for owners who are women....

Emphasis added. It seems to me that the determination of who is or is not a woman must depend on one of those. Why else would they be required? But as I recall, you don't have to prove your gender when applying for a U.S. passport.

Sooner or later, this will end up in court, and we'll learn the answer in due time. Until then, if the required document does not say that the woman is female, then the answer must be...

You're crazy if you think I'm going to finish that sentence. I don't get paid to make those determinations anymore.

Good question, shall7, now I'm going back to reading Sartre's Being and Nothingness.

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Shall7 - Yes a good question left to the legal scholars to sort out but in reading the discussion my thought was this….

The question might better be “What program should a person choose if they know that they were born a man but identify as a women?”   In such a case such a person may be able to offer evidence to qualify for the 8(a) Program (see references below).  Where the  finally falls with regard to SBA’s programs will be interesting to say the least.

15 U.S.C. 637

 Socially disadvantaged individuals are those who have been subjected to racial or ethnic prejudice or cultural bias because of their identity as a member of a group without regard to their individual qualities.”

13 CFR 124.103

§124.103   Who is socially disadvantaged?

(a) General. Socially disadvantaged individuals are those who have been subjected to racial or ethnic prejudice or cultural bias within American society because of their identities as members of groups and without regard to their individual qualities. The social disadvantage must stem from circumstances beyond their control.

(b) Members of designated groups. (1) There is a rebuttable presumption that the following individuals are socially disadvantaged: Black Americans; Hispanic Americans; Native Americans (Alaska Natives, Native Hawaiians, or enrolled members of a Federally or State recognized Indian Tribe); Asian Pacific Americans (persons with origins from Burma, Thailand, Malaysia, Indonesia, Singapore, Brunei, Japan, China (including Hong Kong), Taiwan, Laos, Cambodia (Kampuchea), Vietnam, Korea, The Philippines, U.S. Trust Territory of the Pacific Islands (Republic of Palau), Republic of the Marshall Islands, Federated States of Micronesia, the Commonwealth of the Northern Mariana Islands, Guam, Samoa, Macao, Fiji, Tonga, Kiribati, Tuvalu, or Nauru); Subcontinent Asian Americans (persons with origins from India, Pakistan, Bangladesh, Sri Lanka, Bhutan, the Maldives Islands or Nepal); and members of other groups designated from time to time by SBA according to procedures set forth at paragraph (d) of this section. Being born in a country does not, by itself, suffice to make the birth country an individual's country of origin for purposes of being included within a designated group.

(2) An individual must demonstrate that he or she has held himself or herself out, and is currently identified by others, as a member of a designated group if SBA requires it.

(3) The presumption of social disadvantage may be overcome with credible evidence to the contrary. Individuals possessing or knowing of such evidence should submit the information in writing to the Associate Administrator for Business Development (AA/BD) for consideration.

(c) Individuals not members of designated groups. (1) An individual who is not a member of one of the groups presumed to be socially disadvantaged in paragraph (b)(1) of this section must establish individual social disadvantage by a preponderance of the evidence.

(2) Evidence of individual social disadvantage must include the following elements:

(i) At least one objective distinguishing feature that has contributed to social disadvantage, such as race, ethnic origin, gender, physical handicap, long-term residence in an environment isolated from the mainstream of American society, or other similar causes not common to individuals who are not socially disadvantaged;

(ii) Personal experiences of substantial and chronic social disadvantage in American society, not in other countries; and

(iii) Negative impact on entry into or advancement in the business world because of the disadvantage. SBA will consider any relevant evidence in assessing this element. In every case, however, SBA will consider education, employment and business history, where applicable, to see if the totality of circumstances shows disadvantage in entering into or advancing in the business world.

(A) Education. SBA considers such factors as denial of equal access to institutions of higher education, exclusion from social and professional association with students or teachers, denial of educational honors rightfully earned, and social patterns or pressures which discouraged the individual from pursuing a professional or business education.

(B) Employment. SBA considers such factors as unequal treatment in hiring, promotions and other aspects of professional advancement, pay and fringe benefits, and other terms and conditions of employment; retaliatory or discriminatory behavior by an employer; and social patterns or pressures which have channeled the individual into nonprofessional or non-business fields.

(C) Business history. SBA considers such factors as unequal access to credit or capital, acquisition of credit or capital under commercially unfavorable circumstances, unequal treatment in opportunities for government contracts or other work, unequal treatment by potential customers and business associates, and exclusion from business or professional organizations.

(d) Socially disadvantaged group inclusion—(1) General. Representatives of an identifiable group whose members believe that the group has suffered chronic racial or ethnic prejudice or cultural bias may petition SBA to be included as a presumptively socially disadvantaged group under paragraph (b)(1) of this section. Upon presentation of substantial evidence that members of the group have been subjected to racial or ethnic prejudice or cultural bias because of their identity as group members and without regard to their individual qualities, SBA will publish a notice in the Federal Register that it has received and is considering such a request, and that it will consider public comments.

(2) Standards to be applied. In determining whether a group has made an adequate showing that it has suffered chronic racial or ethnic prejudice or cultural bias for the purposes of this section, SBA must determine that:

(i) The group has suffered prejudice, bias, or discriminatory practices;

(ii) Those conditions have resulted in economic deprivation for the group of the type which Congress has found exists for the groups named in the Small Business Act; and

(iii) Those conditions have produced impediments in the business world for members of the group over which they have no control and which are not common to small business owners generally.

(3) Procedure. The notice published under paragraph (d)(1) of this section will authorize a specified period for the receipt of public comments supporting or opposing the petition for socially disadvantaged group status. If appropriate, SBA may hold hearings. SBA may also conduct its own research relative to the group's petition.

(4) Decision. In making a final decision that a group should be considered presumptively disadvantaged, SBA must find that a preponderance of the evidence demonstrates that the group has met the standards set forth in paragraph (d)(2) of this section based on SBA's consideration of the group petition, the comments from the public, and any independent research it performs. SBA will advise the petitioners of its final decision in writing, and publish its conclusion as a notice in the Federal Register. If appropriate, SBA will amend paragraph (b)(1) of this section to include a new group.

[63 FR 35739, June 30, 1998, as amended at 74 FR 45753, Sept. 4, 2009; 76 FR 8254, Feb. 11, 2011]”

 

 

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C Culham, there does seem to be strong evidence that the 8(a) program would apply to them due to "social disadvantage" but what about after graduating the program?  The question of WOSB status still applies.

Perhaps a new small business category needs to be created such as LGBTQIAOSB "Lesbian, Gay, Bisexual, Transgender, . . . ., Intersex, Asexual/Agender/Aromantic Owned Small Business"

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I don't think we need a new category. Some of us think there are too many categories already. Instead, maybe it's time to replace WOSB with a new category that covers all gender and sexuality-related historical disadvantage issues.

Not going to happen anytime soon, but still worth considering, in my view.

H2H

"Hey, if you want black nominees every year, you need to just have black categories. That’s what you need. You need to have black categories. You already do it with men and women. Think about it: There’s no real reason for there to be a man and a woman category in acting. C’mon. There’s no reason. It’s not track and field. You don’t have to separate ‘em. You know, Robert De Niro’s never said, 'I better slow this acting down, so Meryl Streep can catch up.'" -- Chris Rock, 2016 Academy Awards

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Guest Jason Lent

My first thought was that transgender folks have indeed been subjected to "cultural bias within American society because of their identities as members of groups and without regard to their individual qualities", but that was quickly snuffed out by the bold below:

Quote

(a) General.   Socially disadvantaged individuals are those who have been subjected to racial or ethnic prejudice or cultural bias within American society because of their identities as members of groups and without regard to their individual qualities. The social disadvantage must stem from circumstances beyond their control.

Indeed, those folk decided to become transgendered (via surgery, hormone therapy, et cetera).

That said, I don't think a physical gender revised to "female" would be merit inclusion in WOSB set-asides. It would be difficult, if not impossible, to make the case that the cultural bias against women would have negatively impacted someone who was, to any observer, not a woman prior to said revision. Nuances could include when the revision took place, but I suppose that could threaten a lot of the tropes normally held by gender activists. Answering the question, "If a person was male until 19 years old and has been a female for 4 years, how much negative cultural bias on account of their new gender have they actually received?" would hope to answer one question by bringing up countless others.

If anything, a small business concern for transgender folks would be much more appropriate than entertaining the complications of transgender women.

Considering the bold below, does anyone else read that to mean the disadvantage needs to be specific American culture?

Quote

(c) Individuals not members of designated groups.

      (1) An individual who is not a member of one of the groups presumed to be socially disadvantaged in paragraph (b)(1) of this section must establish individual social disadvantage by a preponderance of the evidence.
      (2) Evidence of individual social disadvantage must include the following elements:
            (i) At least one objective distinguishing feature that has contributed to social disadvantage, such as race, ethnic origin, gender, physical handicap, long-term residence in an environment isolated from the mainstream of American society, or other similar causes not common to individuals who are not socially disadvantaged;
            (ii) Personal experiences of substantial and chronic social disadvantage in American society, not in other countries; and
            (iii) Negative impact on entry into or advancement in the business world because of the disadvantage. SBA will consider any relevant evidence in assessing this element. In every case, however, SBA will consider education, employment and business history, where applicable, to see if the totality of circumstances shows disadvantage in entering into or advancing in the business world.

There must be another part of the CFR that addresses the inclusion of women as socially disadvantaged group, since other countries surely have significant and gravely condemning discriminatory cultural practices against women.

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The true issue is what determines gender for these purposes?  Is it biology or cultural identification?  If biology, in humans, gender determination is done through pairs of X and Y chromosomes.  It is my understanding, gender reassignment surgery and hormone therapy do not change these characteristics.

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16 hours ago, Retreadfed said:

The true issue is what determines gender for these purposes?  Is it biology or cultural identification?  If biology, in humans, gender determination is done through pairs of X and Y chromosomes.  It is my understanding, gender reassignment surgery and hormone therapy do not change these characteristics.

That is the traditional view but times are changing.  Many people will consider this view "narrow minded" or the "old school way of thinking".

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On ‎3‎/‎18‎/‎2016 at 5:04 PM, apsofacto said:

High school biology is but a hazy memory, but I think the answer to this question is stamped on every cell in the in the business owner's body.  A woman who gets gender reassignment surgery should be eligible for the WOSB program. 

What if the woman never gets reassignment surgery but is only doing hormone therapy?  Surgery is a little more of a solid argument than hormone therapy is but again we are in the gray area.  I think the solution to this gray area is a new Small Business Program that covers everything (Lesbian, Gay, Bisexual, Transgender, Transsexual...etc.)

Without doing so, any man can simply lie and claim to be a WOSB and no one will want to question him out of fear of being labeled a bigot and being insensitive to his/her sexual identity.

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For purposes of high school restrooms, locker rooms, and showers, surgery and hormone therapy are irrelevant -- the key is the gender with which the individual chooses to identify.  

I don't see it happening anytime soon for WOSB purposes.  If a transgender woman ever did get a WOSB contract, I can easily imagine a real woman (can I say that?) protesting.  

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1 minute ago, ji20874 said:

For purposes of high school restrooms, locker rooms, and showers, surgery and hormone therapy are irrelevant -- the key is the gender with which the individual chooses to identify.  

I don't see it happening anytime soon for WOSB purposes.  If a transgender woman ever did get a WOSB contract, I can easily imagine a real woman (can I say that?) protesting.  

I agree, the key is the gender that the person identifies with is the issue at hand.  And my opinion is that you cannot say "a real woman" because you cannot question a person's sexual identity (case in point, Caitlyn Jenner is a woman in the eyes of the law because she says she is).

Reference:

http://www.people.com/article/caitlyn-jenner-legally-declared-woman-judge

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