[Federal Register Volume 77, Number 42 (Friday, March 2, 2012)]
[Rules and Regulations]
[Pages 12913-12924]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-4475]
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DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 1, 2, 4, 6, 13, 14, 15, 18, 19, 26, 33, 36, 42, 52,
and 53
[FAC 2005-56; FAR Case 2010-015; Item I; Docket 2010-0015, Sequence 1]
RIN 9000-AL97
Federal Acquisition Regulation; Women-Owned Small Business (WOSB)
Program
AGENCIES: Department of Defense (DoD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Final rule.
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SUMMARY: DoD, GSA, and NASA have adopted as final, with changes, an
interim rule amending the Federal Acquisition Regulation (FAR) to
implement the Small Business Administration's regulations establishing
the Women-Owned Small Business (WOSB) Program. This rule authorizes the
restriction of competition for Federal contracts in certain industries
to economically disadvantaged women-owned small business (EDWOSB)
concerns or WOSB concerns eligible under the WOSB Program.
DATES: Effective Date: April 2, 2012.
FOR FURTHER INFORMATION CONTACT: Mr. Karlos Morgan, Procurement
Analyst, at 202-501-2364, for clarification of content. For information
pertaining to status or publication schedules, contact the Regulatory
Secretariat at 202-501-4755. Please cite FAC 2005-56, FAR Case 2010-
015.
SUPPLEMENTARY INFORMATION:
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.
[[Page 12914]]
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.
II. Discussion and Analysis
The Civilian Agency Acquisition Council and the Defense Acquisition
Regulations Council (the Councils) reviewed the public comments in the
development of the final rule. A discussion of the comments and the
changes made to the rule as a result of those comments are provided as
follows:
A. Changes From the Interim Rule
This final rule makes minor changes to the interim rule. The term
``WOSB concern'' is corrected to ``WOSB concern eligible under the WOSB
Program'' in the FAR and in the Standard Forms. The relevant Paperwork
Reduction Act burden control number is added to the list at FAR 1.106.
B. Analysis of Public Comments
1. The WOSB Program Should Be Modeled After Current SBA Programs
Comment: One respondent commented that the WOSB Program should be
modeled after current SBA programs and require either a self-
certification or an SBA Certification where eligibility appears on the
firm's Central Contractor Registration (CCR) database and Online
Representations and Certifications Application (ORCA) profiles.
Response: The WOSB Program adheres to the authorizing statute,
section 811 of the Small Business Reauthorization Act of 2000, Public
Law 106-554, and SBA regulations. The statute permits both self-
certifications by the concern and third-party certification from an
entity approved by the SBA. In the SBA final rule the supporting
legislative history stated that there was no intent to create a
certification program similar to the one for the section 8(a) Business
Development Program.
2. The WOSB Program Repository Is Burdensome
Comment: One respondent commented that the WOSB Program Repository
is burdensome and to have companies register in CCR, ORCA and then a
third system seems extraneous.
Response: The WOSB Program Repository is SBA's solution to
facilitate the statutory requirement to provide documents verifying
program eligibility. SBA established the repository so that WOSB
concerns eligible under the WOSB Program and EDWOSB concerns would not
have to submit documents each time they are the apparent successful
offeror. The WOSB Program repository minimizes paperwork burden and
increases oversight and program monitoring capabilities.
3. The WOSB Program Requirement To Submit Additional (and Sensitive)
Documents Could Create a Disincentive for the Use of the Program
Comment: One respondent commented that the WOSB Program's
requirement to submit personal information and the additional reviews
on behalf of the Government might create a disincentive to utilize the
program and contracting authority to the fullest extent possible.
Response: The certification and additional documentation
requirements are necessary to meet the statutory provisions and
regulatory requirements of the WOSB Program, and to ensure that only
WOSB concerns eligible under the WOSB Program receive the benefits of
the WOSB Program.
4. Dollar Thresholds and Eligibility Requirements
Comment: One respondent commented that the WOSB Program's EDWOSB
limits and eligibility requirements need to be re-evaluated as the
$750,000.00 threshold may be too low.
Response: The $750,000 personal net worth requirement was
established by the SBA. See the SBA regulation at 13 CFR 127.203 for
limitations and for exclusions, e.g., primary personal residence,
ownership interest in the EDWOSB concern, and retirement accounts.
5. Mentor-Prot[eacute]g[eacute] Program for WOSB Program
Comment: One respondent commented that the Councils should consider
a Mentor-Prot[eacute]g[eacute] Program for the WOSB Program. Such a
program
[[Page 12915]]
already exists for the section 8(a) program. A Mentor-
Prot[eacute]g[eacute] Program would allow women-owned small businesses
to learn from larger, more successful businesses.
Response: Under the Small Business Jobs Act of 2010, Public Law
111-240, SBA was given the authority to establish mentor-
prot[eacute]g[eacute] programs for small business concerns owned and
controlled by service-disabled veterans, small business concerns owned
and controlled by women, and HUBZone small business concerns modeled on
the Mentor-Prot[eacute]g[eacute] Program of the SBA for small business
concerns participating in programs under section 8(a) of the Small
Business Act (15 U.S.C. 637(a)).
6. Order of Precedence Among the WOSB Program and Other Small Business
and Socioeconomic Contracting Programs
Comment: One respondent commented that the interim rule
implementing the WOSB Program did not revise FAR 19.203(c) to include
WOSB concerns eligible under the WOSB Program in the list of programs
to be considered before using a small business set-aside pursuant to
FAR 19.502-2(b). The interim rule, therefore, creates some uncertainty
as to whether a contracting officer must first consider an acquisition
under section 8(a), HUBZone, or service-disabled veteran-owned small
business programs before he or she can properly set-aside an
acquisition for competition among WOSB concerns eligible under the WOSB
Program or EDWOSB concerns.
Response: The interim rule did revise FAR 19.203(c) by adding WOSB
programs.
7. ``WOSB Concern'' Is Used Interchangeably With ``WOSB Concerns
Eligible Under the WOSB Program''
Comment: One respondent commented that FAR subpart 19.15 appears to
use the term ``WOSB concern'' interchangeably with ``WOSB concerns
eligible under the WOSB Program.'' This is potentially confusing and
may lead to a misrepresentation of eligibility by a non-eligible WOSB
concern.
Response: Where applicable, for clarity and consistency, references
to WOSB concern were revised to add ``eligible under the WOSB
Program.''
8. Clarification Is Needed To Differentiate Between Eligibility Under
the WOSB Program and Eligibility as a WOSB in General
Comment: One respondent commented that the terms ``Women-Owned
Small Business Concern'' and ``Women-Owned Small Business (WOSB)
Concern Eligible under the WOSB Program'' (in accordance with 13 CFR
127) should be clarified. It was further suggested that the legislative
and regulatory history for these definitions should be provided in the
Background section of the Federal Register.
Response: The ``Background'' of this final rule provides a brief
legislative and regulatory history for the definitions of ``Women-Owned
Small Business Concern'' and ``Women-Owned Small Business (WOSB)
Concern Eligible under the WOSB Program.'' A more expansive historical
perspective can be found in the SBA's proposed rule published in the
Federal Register at 75 FR 10030 on March 4, 2010, and final rule
published in the Federal Register at 75 FR 62258 on October 7, 2010.
C. Other changes
Other changes include a minor revision to the Optional Form (OF)
347, Order for Supplies and Services; Standard Form (SF) 1447,
Solicitation/Contract; and the SF 1449, Solicitation/Contract/Order for
Commercial Items, to add to the business classification for Women-Owned
Small Business (WOSB) ``eligible under the WOSB Program.''
III. Executive Orders 12866 and 13563
Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess
all costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). E.O.
13563 emphasizes the importance of quantifying both costs and benefits,
of reducing costs, of harmonizing rules, and of promoting flexibility.
This is a significant regulatory action and, therefore, was subject to
review under section 6(b) of E.O. 12866, Regulatory Planning and
Review, dated September 30, 1993. This rule is not a major rule under 5
U.S.C. 804.
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 document
[[Page 12916]]
repository 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.
V. Paperwork Reduction Act
The Paperwork Reduction Act (44 U.S.C. chapter 35) applies. The
rule contains information collection requirements. The Office of
Management and Budget (OMB) has cleared this information collection
requirement under OMB Control Number 3245-0374, titled: ``Certification
for the Women-Owned Small Business Federal Contract Program.'' SBA's
request is discussed in detail in its proposed rule that published in
the Federal Register at 75 FR 10030 on March 4, 2010, and the final
rule that published in the Federal Register at 75 FR 62258 on October
7, 2010.
List of Subjects in 48 CFR Parts 1, 2, 4, 6, 13, 14, 15, 18, 19,
26, 33, 36, 42, 52, and 53
Government procurement.
Dated: February 21, 2012.
Laura Auletta,
Director, Office of Governmentwide Acquisition Policy, Office of
Acquisition Policy, Office of Governmentwide Policy.
Interim Rule Adopted as Final With Changes
Accordingly, the interim rule amending 48 CFR parts 2, 4, 6, 13,
14, 15, 18, 19, 26, 33, 36, 42, 52, and 53, which was published in the
Federal Register at 76 FR 18304 on April 1, 2011, is adopted as final
with the following changes:
0
1. The authority citation for 48 CFR parts 1, 2, 4, 18, 19, 52, and 53
continues to read as follows:
Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 42
U.S.C. 2473(c).
PART 1--FEDERAL ACQUISITION REGULATIONS SYSTEM
1.106 [Amended]
0
2. Amend section 1.106, in the table following the introductory text,
by adding in numerical sequence, FAR segment ``52.219-29'' and its
corresponding OMB Control Number ``3245-0374'', and FAR segment
``52.219-30'' and its corresponding OMB Control Number ``3245-0374''.
PART 2--DEFINITIONS OF WORDS AND TERMS
0
3. Amend section 2.101, in paragraph (b)(2), in the definition ``Women-
Owned Small Business (WOSB) Program'' by revising paragraph (3) to read
as follows:
2.101 Definitions.
* * * * *
(b) * * *
(2) * * *
Women-Owned Small Business (WOSB) Program. * * *
(3) Women-owned small business (WOSB) concern eligible under the
WOSB Program means a small business concern that is at least 51 percent
directly and unconditionally owned by, and the management and daily
business operations of which are controlled by, one or more women who
are citizens of the United States (13 CFR part 127).
* * * * *
PART 4--ADMINISTRATIVE MATTERS
4.803 [Amended]
0
4. Amend section 4.803 by removing from the introductory text of
paragraph (a)(42) ``concerns or'' and adding ``concerns eligible under
the WOSB Program or'' in its place.
PART 18--EMERGENCY ACQUISITIONS
18.117 [Amended]
0
5. Amend section 18.117 by removing ``concerns on'' and adding
``concerns eligible under the WOSB Program on'' in its place.
PART 19--SMALL BUSINESS PROGRAMS
0
6. Amend section 19.201 by revising paragraph (d)(10) to read as
follows:
19.201 General policy.
* * * * *
(d) * * *
(10) Make recommendations in accordance with agency procedures as
to whether a particular acquisition should be awarded under subpart
19.5 as a small business set-aside, under subpart 19.8 as a section
8(a) award, under subpart 19.13 as a HUBZone set-aside, under subpart
19.14 as a service-disabled veteran-owned small business set-aside, or
under subpart 19.15 as a set-aside for economically disadvantaged
women-owned small business (EDWOSB) concerns or women-owned small
business (WOSB) concerns eligible under the WOSB Program.
* * * * *
19.308 [Amended]
0
7. Amend section 19.308 by removing from paragraphs (h)(2)(i) and
(h)(3)(iv) ``concern, and'' and adding ``concern eligible under the
WOSB Program, and'' in its place.
0
8. Amend section 19.501 by revising the second sentence of paragraph
(c) to read as follows:
19.501 General.
* * * * *
(c) * * * The contracting officer shall perform market research and
document why a small business set-aside is inappropriate when an
acquisition is not set aside for small business, unless
[[Page 12917]]
an award is anticipated to a small business under the 8(a), HUBZone,
SDVOSB, or WOSB Programs. * * *
* * * * *
0
9. Amend section 19.1500 by revising paragraph (b) and adding paragraph
(c) to read as follows:
19.1500 General.
* * * * *
(b) The purpose of the WOSB Program is to ensure 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 participation goals (see 13 part CFR 127).
(c) An economically disadvantaged women-owned small business
(EDWOSB) concern or WOSB concern eligible under the WOSB Program is a
subcategory of ``women-owned small business concern'' as defined in
2.101.
0
10. Revise section 19.1503 to read as follows:
19.1503 Status.
(a) Status as an EDWOSB concern or WOSB concern eligible under the
WOSB Program is determined in accordance with 13 CFR part 127.
(b) The contracting officer shall verify that the offeror--
(1) Is registered in Central Contractor Registration (CCR);
(2) Is self-certified in the Online Representations and
Certifications Application (ORCA); and
(3) Has submitted documents verifying its eligibility at the time
of initial offer to the WOSB Program Repository. The contract shall not
be awarded until all required documents are received.
(c)(1) An EDWOSB concern or WOSB concern eligible under the WOSB
Program that has been certified by a SBA approved third party
certifier, (which includes SBA certification under the 8(a) Program),
must provide the following eligibility requirement documents--
(i) The third-party certification;
(ii) SBA's WOSB Program Certification form (SBA Form 2413 for WOSB
concerns eligible under the WOSB Program and SBA Form 2414 for EDWOSB
concerns); and
(iii) The joint venture agreement, if applicable.
(2) An EDWOSB concern or WOSB concern eligible under the WOSB
Program that has not been certified by an SBA approved third party
certifier or by SBA under the 8(a) Program, must provide the following
documents:
(i) The U.S. birth certificate, naturalization documentation, or
unexpired U.S. passport for each woman owner.
(ii) The joint venture agreement, if applicable.
(iii) For limited liability companies, Articles of organization
(also referred to as certificate of organization or articles of
formation) and any amendments, and the operating agreement and any
amendments.
(iv) For corporations, articles of incorporation and any
amendments, by-laws and any amendments, all issued stock certificates,
including the front and back copies, signed in accord with the by-laws,
stock ledger, and voting agreements, if any.
(v) For partnerships, the partnership agreement and any amendments.
(vi) For sole proprietorships, corporations, limited liability
companies and partnerships if applicable, the assumed/fictitious name
certificate(s).
(vii) SBA's WOSB Program Certification form (SBA Form 2413 for WOSB
concerns eligible under the WOSB Program and SBA Form 2414 for EDWOSB
concerns).
(viii) For EDWOSB concerns, in addition to the above, the SBA Form
413, Personal Financial Statement, available to the public at http://www.sba.gov/tools/Forms/index.html, for each woman claiming economic
disadvantage.
(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.
(e) If there is a decision issued by SBA as a result of a current
eligibility examination finding that the concern did not qualify as an
EDWOSB concern or WOSB concern eligible under the WOSB Program, the
contracting officer may terminate the contract, and shall not exercise
any option nor award further task or delivery orders. The contracting
officer shall not count or include the award toward the small business
accomplishments for an EDWOSB concern or WOSB concern eligible under
the WOSB Program and must update FPDS from the date of award.
(f) A joint venture may be considered an EDWOSB concern or WOSB
concern eligible under the WOSB Program if it meets the requirements of
13 CFR 127.506.
(g) An EDWOSB concern or WOSB concern eligible under the WOSB
Program that is a non-manufacturer, as defined in 13 CFR 121.406(b),
may submit an offer on a requirement set aside for an EDWOSB concern or
a WOSB concern eligible under the WOSB Program with a NAICS code for
supplies, if it meets the requirements under the non-manufacturer rule
set forth in that regulation.
0
11. Amend section 19.1505 by revising paragraphs (a), (c)(1), (d), and
(f) to read as follows:
19.1505 Set-aside procedures.
(a) The contracting officer--
(1) Shall comply with 19.203 before deciding to set aside an
acquisition under the WOSB Program.
(2) May set aside acquisitions exceeding the micro-purchase
threshold for competition restricted to EDWOSB concerns or WOSB
concerns eligible under the WOSB Program in those NAICS codes in which
SBA has determined that WOSB concerns eligible under the WOSB program
are underrepresented or substantially underrepresented in Federal
procurement, as specified on SBA's Web site at http://www.sba.gov/WOSB.
* * * * *
(c) * * *
(1) Two or more WOSB concerns eligible under the WOSB Program
(including EDWOSB concerns), will submit offers;
* * * * *
(d) The contracting officer may make an award, if only one
acceptable offer is received from a qualified EDWOSB concern or WOSB
concern eligible under the WOSB Program.
* * * * *
(f) If no acceptable offers are received from an EDWOSB concern or
WOSB concern eligible under the WOSB Program, the set-aside shall be
withdrawn and the requirement, if still valid, must be considered for
set aside
[[Page 12918]]
in accordance with 19.203 and subpart 19.5.
* * * * *
PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
0
12. Amend section 52.212-3 by revising the date of the provision and
paragraphs (c)(6)(ii), (c)(7)(i), and (c)(7)(ii) to read as follows:
52.212-3 Offeror Representations and Certifications--Commercial Items.
* * * * *
OFFEROR REPRESENTATIONS AND CERTIFICATIONS--COMMERCIAL ITEMS APR 2012
* * * * *
(c) * * *
(6) * * *
(ii) It [ballot] is, [ballot] is not a joint venture that
complies with the requirements of 13 CFR part 127, and the
representation in paragraph (c)(6)(i) of this provision is accurate
for each WOSB concern eligible under the WOSB Program participating
in the joint venture. [The offeror shall enter the name or names of
the WOSB concern eligible under the WOSB Program and other small
businesses that are participating in the joint venture: ------------
----.] Each WOSB concern eligible under the WOSB Program
participating in the joint venture shall submit a separate signed
copy of the WOSB representation.
(7) * * *
(i) It [ballot] is, [ballot] is not an EDWOSB concern, has
provided all the required documents to the WOSB Repository, and no
change in circumstances or adverse decisions have been issued that
affects its eligibility; and
(ii) It [ballot] is, [ballot] is not a joint venture that
complies with the requirements of 13 CFR part 127, and the
representation in paragraph (c)(7)(i) of this provision is accurate
for each EDWOSB concern participating in the joint venture. [The
offeror shall enter the name or names of the EDWOSB concern and
other small businesses that are participating in the joint venture:
----------------.] Each EDWOSB concern participating in the joint
venture shall submit a separate signed copy of the EDWOSB
representation.
* * * * *
0
13. Amend section 52.212-5 by revising the date of the clause and
paragraphs (b)(24) and (b)(25) to read as follows:
52.212-5 Contract Terms and Conditions Required to Implement Statutes
or Executive Orders--Commercial Items.
* * * * *
CONTRACT TERMS AND CONDITIONS REQUIRED TO IMPLEMENT STATUTES OR
EXECUTIVE ORDERS--COMMERCIAL ITEMS APR 2012
* * * * *
(b) * * *
-- (24) 52.219-29, Notice of Set-Aside for Economically
Disadvantaged Women-Owned Small Business (EDWOSB) Concerns (4/2/12)
(15 U.S.C. 637(m)).
-- (25) 52.219-30, Notice of Set-Aside for Women-Owned Small
Business (WOSB) Concerns Eligible Under the WOSB Program (4/2/12)
(15 U.S.C. 637(m)).
* * * * *
0
14. Amend section 52.219-1 by revising the date of the provision and
paragraphs (b)(4)(ii) and (b)(5)(ii) to read as follows:
52.219-1 Small Business Program Representations.
* * * * *
SMALL BUSINESS PROGRAM REPRESENTATIONS APR 2012
* * * * *
(b) * * *
(4) * * *
(ii) It [ballot] is, [ballot] is not a joint venture that
complies with the requirements of 13 CFR part 127, and the
representation in paragraph (b)(4)(i) of this provision is accurate
for each WOSB concern eligible under the WOSB Program participating
in the joint venture. [The offeror shall enter the name or names of
the WOSB concern eligible under the WOSB Program and other small
businesses that are participating in the joint venture: ------------
----.] Each WOSB concern eligible under the WOSB Program
participating in the joint venture shall submit a separate signed
copy of the WOSB representation.
(5) * * *
(ii) It [ballot] is, [ballot] is not a joint venture that
complies with the requirements of 13 CFR part 127, and the
representation in paragraph (b)(5)(i) of this provision is accurate
for each EDWOSB concern participating in the joint venture. [The
offeror shall enter the name or names of the EDWOSB concern and
other small businesses that are participating in the joint venture:
----------------.] Each EDWOSB concern participating in the joint
venture shall submit a separate signed copy of the EDWOSB
representation.
* * * * *
0
15. Amend section 52.219-29 by--
0
a. Revising the date of the clause;
0
b. Removing from paragraph (c)(3) ``EDWOSB concern'' and adding
``apparent successful offeror'' in its place; and
0
c. Removing from paragraph (f) ``An EDWOSB that'' and adding ``An
EDWOSB concern that'' in its place.
The revised text reads as follows:
52.219-29 Notice of Set-Aside for Economically Disadvantaged Women-
Owned Small Business Concerns.
* * * * *
NOTICE OF SET-ASIDE FOR ECONOMICALLY DISADVANTAGED WOMEN-OWNED SMALL
BUSINESS CONCERNS APR 2012
* * * * *
0
16. Amend section 52.219-30 by--
0
a. Revising the date of the clause, paragraph (c), and the introductory
text of paragraphs (d) and (e);
0
b. Removing from paragraph (e)(2) ``concern;'' and adding ``concern
eligible under the WOSB Program;'' in its place;
0
c. Removing from paragraph (e)(3)(ii) ``WOSB as'' and adding ``WOSB
concern eligible under the WOSB Program as'' in its place;
0
d. Revising paragraph (e)(5); and
0
e. Removing from paragraph (f) ``WOSB that'' and adding ``WOSB concern
eligible under the WOSB Program that'' in its place.
The revised text reads as follows:
52.219-30 Notice of Set-Aside for Women-Owned Small Business Concerns
Eligible Under the Women-Owned Small Business Program.
* * * * *
NOTICE OF SET-ASIDE FOR WOMEN-OWNED SMALL BUSINESS CONCERNS ELIGIBLE
UNDER THE WOMEN-OWNED SMALL BUSINESS PROGRAM APR 2012
* * * * *
(c) General. (1) Offers are solicited only from WOSB concerns
eligible under the WOSB Program. Offers received from concerns that
are not WOSB concerns eligible under the WOSB program shall not be
considered.
(2) Any award resulting from this solicitation will be made to a
WOSB concern eligible under the WOSB Program.
(3) The Contracting Officer will ensure that the apparent
successful offeror has provided the required documents to the WOSB
Program Repository. The contract shall not be awarded until all
required documents are received.
(d) Agreement. A WOSB concern eligible under the WOSB Program
agrees that in the performance of the contract for-- * * *
* * * * *
(e) Joint Venture. A joint venture may be considered a WOSB
concern eligible under the WOSB Program if--
* * * * *
(5) The procuring activity executes the contract in the name of
the WOSB concern eligible under the WOSB Program or joint venture.
* * * * *
PART 53--FORMS
53.212 [Amended]
0
17. Amend section 53.212 by removing ``SF 1449, (Rev. 10/2010)'' and
adding ``SF 1449 (Rev. 2/2012)'' in its place.
53.213 [Amended]
0
18. Amend section 53.213 by removing from paragraph (a) ``SF 1449,
(Rev. 10/2010)'' and adding ``SF 1449 (Rev. 2/2012)'' in its place; and
by removing from paragraph (f) ``SF 1449, (Rev. 10/2010)'' and ``OF
347, (Rev. 10/
[[Page 12919]]
2010)'' and adding ``SF 1449 (Rev. 2/2012)'' and ``OF 347 (Rev. 2/
2012)'' in their place, respectively.
53.214 [Amended]
0
19. Amend section 53.214 by removing from paragraph (d) ``SF 1447 (Rev.
11/2010)'' and adding ``SF 1447 (Rev. 2/2012)'' in its place.
53.236-1 [Amended]
0
20. Amend section 53.236-1 by removing from paragraph (e) ``OF 347
(Rev. 10/2010)'' and adding ``OF 347 (Rev. 2/2012)'' in its place.
0
21. Revise section 53.301-1447 to read as follows:
53.301-1447 Solicitation/Contract
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[GRAPHIC] [TIFF OMITTED] TR02MR12.000
[[Page 12920]]
[GRAPHIC] [TIFF OMITTED] TR02MR12.001
0
22. Revise section 53.301-1449 to read as follows:
53.301-1449 Solicitation/Contract/Order for Commercial Items.
[[Page 12921]]
[GRAPHIC] [TIFF OMITTED] TR02MR12.002
[[Page 12922]]
[GRAPHIC] [TIFF OMITTED] TR02MR12.003
0
23. Revise section 53.302-347 to read as follows:
53.302-347 Order for Supplies or Services.
[[Page 12923]]
[GRAPHIC] [TIFF OMITTED] TR02MR12.004
[[Page 12924]]
[GRAPHIC] [TIFF OMITTED] TR02MR12.005
[FR Doc. 2012-4475 Filed 3-1-12; 8:45 am]
BILLING CODE 6820-C