80 FR 55019 - Women-Owned Small Business Federal Contract Program
SMALL BUSINESS ADMINISTRATION Federal Register Volume 80, Issue 177 (September 14, 2015)
Federal Register Volume 80, Issue 177 (September 14, 2015)
| Page Range | 55019-55022 | |
| FR Document | 2015-22927 |
[Federal Register Volume 80, Number 177 (Monday, September 14, 2015)] [Rules and Regulations] [Pages 55019-55022] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2015-22927] ======================================================================= ----------------------------------------------------------------------- SMALL BUSINESS ADMINISTRATION 13 CFR Part 127 RIN 3245-AG72 Women-Owned Small Business Federal Contract Program AGENCY: U.S. Small Business Administration. ACTION: Final rule. ----------------------------------------------------------------------- SUMMARY: This rule makes changes to the regulations governing the Women-Owned Small Business (WOSB) program. The U.S. Small Business Administration (SBA) is making changes to those regulations to implement section 825 of the National Defense Authorization Act for Fiscal Year 2015. Specifically, this rule implements the authority set forth in section 825 of the 2015 NDAA allowing sole source awards to Women-Owned Small Businesses (WOSBs) or Economically Disadvantaged Women-Owned Small Businesses (EDWOSBs) in appropriate circumstances. DATES: This rule is effective October 14, 2015. FOR FURTHER INFORMATION CONTACT: Brenda Fernandez, U.S. Small Business Administration, Office of Policy, Planning & Liaison, 409 Third Street SW., Washington, DC 20416; (202) 205-7337; brenda.fernandez@sba.gov. SUPPLEMENTARY INFORMATION: I. Background The WOSB Program, set forth in section 8(m) of the Small Business Act, 15 U.S.C. 637(m), authorizes Federal contracting officers to restrict competition to eligible Women-Owned Small Businesses (WOSBs) or Economically Disadvantaged Women-Owned Small Businesses (EDWOSBs) for Federal contracts in certain industries. Section 8(m) establishes criteria for the WOSB Program, including the eligibility and contract requirements for the program. Congress recently amended the WOSB Program in section 825 of the National Defense Authorization Act for Fiscal Year 2015, Public Law 113-291, 128 Stat. 3292 (December 19, 2014) (2015 NDAA), which included language granting contracting officers the authority to award sole source awards to WOSBs and EDWOSBs and shortening the time period for SBA to conduct a required study to determine the industries in which WOSBs are underrepresented in Federal contracting. In addition, section 825 of the 2015 NDAA created a requirement that a firm be certified as a WOSB or EDWOSB by a Federal Agency, a State government, SBA, or a national certifying entity approved by SBA. On May 1, 2015, SBA published in the Federal Register a proposed rule to implement the sole source authority for WOSBs and EDWOSBs and the revised timeline for SBA to conduct a study to determine the industries in which WOSBs are underrepresented. 80 FR 24846. The rule proposed amendments to Sec. 127.101 to include sole source contracts as a type of contracting assistance available under part 127. The rule also proposed to revise Sec. 127.102 by adding the term ``sole source contracts'' to the definitions of ``EDWOSB requirement'' and ``WOSB requirement'' and establishing that the terms ``Substantial underrepresentation'' and ``Underrepresentation'' would be determined by the study to be conducted. The term ``sole source contracts'' was also a proposed addition to Sec. 127.500, which concerns the industries in which a contracting officer is authorized to restrict competition under the WOSB program. This change to Sec. 127.500 proposed to authorize contracting officers to award sole source contracts in those industries as well. SBA also proposed amendments to Sec. 127.503 to establish the conditions for awarding a sole source contract. Essentially if, after conducting market research in an industry where a WOSB or EDWOSB set-aside is authorized, a contracting officer cannot identify two or more WOSBs or EDWOSBs that can perform at a fair and reasonable price but identifies one WOSB or EDWOSB that can perform at a fair and reasonable price, a contract may be awarded on a sole source basis, provided the value of the contract, including options, does not exceed $6.5 million for manufacturing contracts and $4 million for all other contracts. SBA also proposed to amend Sec. 127.507 to authorize contracting officers to award sole source contracts in the WOSB program if the contract requirement is valued at or below the simplified acquisition threshold. Finally, the rule proposed to amend the protest regulations in Sec. 127.600 to make them consistent with the protest procedures for sole source contracts involving service-disabled veteran owned small business concerns (SDVO SBC) (Sec. 125.24(a) and HUBZone small business concerns (Sec. 126.800(a). Paragraph (a) of Sec. 127.501 sets out that the agency will designate ``the industries in which WOSBs are underrepresented and substantially underrepresented'' by NAICS code. However, because paragraph (b) uses the term ``disparity'' instead, SBA intended to propose a technical amendment to this paragraph to replace that term with ``underrepresentation''; such an amendment would make the paragraph consistent with amendments to the definitions and other sections of the WOSB regulations. This purely technical conforming change to Sec. 127.501 is included in this final rule. As explained in the proposed rule, SBA recognized that the new certification requirement for WOSBs would require a more prolonged rulemaking. Because SBA did not want to delay the implementation of the WOSB sole source authority by combining it with the new certification requirement, SBA did not propose any changes to implement the certification requirement but rather indicated that it [[Page 55020]] would do so through a separate future rulemaking. SBA received 495 comments on the proposed rule. With the exception of comments which did not set forth any rationale or make suggestions, SBA discusses and responds fully to all the comments below. II. Summary of Comments Most of the comments supported the rule. Specifically, most of the comments favored SBA's decision to quickly implement the sole source authority granted by the 2015 NDAA. Many of the commenters noted that they believe this authority and the quick implementation by SBA will help WOSB and EDWOSB businesses, and will put the program on more equal footing with SBA's other socio-economic contracting programs. In addition, the comments supported incorporating the statutory authority for sole source awards into the regulations and suggested no meaningful changes to the proposed regulatory text. As such, this final rule adopts the changes set forth in the proposed rule regarding sole source awards to WOSBs and EDWOSBs. The second most covered topic in the comments received pertained to the language of the 2015 NDAA requiring the certification of WOSB and EDWOSB firms. As noted above, SBA did not propose to address the certification portion of the 2015 NDAA in the proposed rule because its implementation is more complicated, could not be accomplished by merely incorporating the statutory language into the regulations, and would have delayed the implementation of the sole source authority unnecessarily. In addition, SBA noted in the supplementary information to the proposed rule that there is no evidence that Congress intended to halt the existing WOSB Program until such time as SBA establishes the infrastructure and issues regulations implementing the statutory certification requirement. SBA continues to believe that the new WOSB sole source authority can and should be implemented as quickly as possible, using existing program rules and procedures, while SBA proceeds with development of the certification requirement through a separate rulemaking. SBA believes that any certification process must be fair, efficient and comprehensive, but should not be burdensome or prevent new WOSBs and EDWOSBs from entering into the Federal marketplace. SBA wants to balance the need to protect the Government and other participants from fraud, with the goal of increasing WOSB and EDWOSB participation in the program. SBA believes that this process should be implemented in a systematic and thoughtful manner, and that increased public participation in the process will help SBA develop the best possible certification program. The comments pertaining to certification of WOSBs and EDWOSBs were varied and covered a wide range of topics. SBA is in the process of developing its strategy for implementation of the certification language in the 2015 NDAA. SBA will consider the comments relating to certification received in response to this proposed rule when drafting the rule implementing the certification requirement. The certification rulemaking will give the public an opportunity to provide SBA with comments relating to SBA's proposed approach to the certification process and assist SBA in crafting the best possible certification program. SBA also received several comments on the definitional changes related to the mandatory study to determine the industries in which WOSBs are underrepresented. The comments were generally supportive of SBA's proposed changes. As such, this final rule adopts the proposed changes to the definitions of the terms ``Underrepresentation,'' ``Substantial underrepresentation,'' ``EDWOSB requirement,'' and ``WOSB requirement'' in Sec. 127.102. Several comments recommended that all NAICS codes should be available for WOSB and EDWOSB set-asides. Determining the industries in which WOSB and/or EDWOSB contracts are available is outside the scope of this rule. In addition, section 825 of the 2015 NDAA specifically requires the Administrator to conduct a study to identify the industries in which small business concerns owned and controlled by women are underrepresented with respect to Federal procurement contracting in order to determine the industries in which WOSB and/or EDWOSB contracts can be awarded. III. Compliance With Executive Orders 12866, 12988, 13132, 13563, the Paperwork Reduction Act (44 U.S.C. Ch. 35), and the Regulatory Flexibility Act (5 U.S.C. 601-612) Executive Order 12866 The Office of Management and Budget (OMB) has determined that this rule does not constitute a significant regulatory action under Executive Order 12866. This is not a major rule under the Congressional Review Act (CRA), 5 U.S.C. 800. Executive Order 12988 This action meets applicable standards set forth in Sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden. The action does not have retroactive or preemptive effect. Executive Order 13132 For the purpose of Executive Order 13132, SBA has determined that the rule will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore SBA has determined that this rule has no federalism implications warranting the preparation of a federalism assessment. Executive Order 13563 A description of the need for this regulatory action, the benefits and costs associated with this action, and any alternatives are included in the Initial Regulatory Flexibility Analysis. In drafting this rule, SBA considered input submitted by three coalitions of women's groups representing women-owned small businesses that support this rule and encourage its quick implementation. Paperwork Reduction Act, 44 U.S.C., Ch. 35 For the purpose of the Paperwork Reduction Act, SBA has determined that this proposed rule does not impose additional reporting or recordkeeping requirements. Regulatory Flexibility Act, 5 U.S.C., 601-612 According to the Regulatory Flexibility Act (RFA), when an agency issues a rulemaking, it must prepare a regulatory flexibility analysis to address the impact of the rule on small entities. In accordance with this requirement, SBA has prepared a Final Regulatory Flexibility Analysis addressing the impact of this rule. 1. What are the need for and objective of this final rule? This final rule is necessary to implement section 825 of the National Defense Authorization Act for Fiscal Year 2015, Public Law 113-291, December 19, 2014, 128 Stat. 3292 (2015 NDAA). Section 825 of the 2015 NDAA included language granting contracting officers the authority to award sole source contracts to Women-Owned Small Businesses (WOSBs) and Economically Disadvantaged Women- [[Page 55021]] Owned Small Businesses (EDWOSBs). The purpose of this rule is to establish the procedures whereby Federal agencies may award sole source contracts to WOSBs and EDWOSBs and to provide a mechanism to protest such awards. The rule provides an additional tool for Federal agencies to ensure that WOSBs have an equal opportunity to participate in Federal contracting and ensures consistency among SBA's socio-economic small business contracting programs. The objectives of this final rule are to put the WOSB Program on a level playing field with other SBA government contracting programs with sole source authority, and to provide an additional, needed tool for agencies to meet the statutorily mandated 5% prime contracting goal for WOSBs. Section 825 of the 2015 NDAA also revised the timeline for SBA to conduct a study to determine the industries in which WOSBs are underrepresented. This final rule is necessary to allow SBA to conduct the most reliable and relevant study of WOSB participation in Federal contracting and comply with the new statutorily mandated timeline. 2. What is the legal basis for this final rule? The legal basis for this final rule is section 825 of the National Defense Authorization Act for Fiscal Year 2015, Public Law 113-291, December 19, 2014, 128 Stat. 3292, which amended section 8(m) of the Small Business Act, 15 U.S.C. 637(m). 3. What is SBA's description and estimate of the number of small entities to which the rule will apply? The RFA directs agencies to provide a description, and where feasible, an estimate of the number of small business concerns that may be affected by the rule. This final rule establishes a new procurement mechanism to benefit WOSBs. Therefore, WOSBs and EDWOSBs available to compete for Federal contracts under the WOSB Program are the specific group of small business concerns most directly affected by this rule. SBA searched the Dynamic Small Business Search (DSBS) database and determined that there were approximately 34,000 firms listed as either WOSBs or EDWOSBs under the WOSB Program. In addition, according to the fiscal year 2013 small business goaling report, there were a little over 250,000 actions concerning women-owned small businesses and the total dollar value of those actions was approximately $15 billion. An analysis of the Federal Procurement Data System from April 1, 2011, (the implementation date of the WOSB Program) through January 1, 2013, revealed that there were approximately 26,712 women-owned small business concerns, including 131 EDWOSBs and 388 WOSBs eligible under the WOSB Program, that received Federal contract awards, task or delivery orders, and modifications to existing contracts. Therefore, this rule could affect a smaller number of EDWOSBs and WOSBs than those eligible under the WOSB Program. We note that the sole source authority can only be used where a contracting officer conducts market research in an industry where a WOSB or EDWOSB set-aside is authorized, and the contracting officer cannot identify two or more WOSBs or EDWOSBs that can perform at a fair and reasonable price, but identifies one WOSB or EDWOSB that can perform. In addition, the sole source authority for WOSBs and EDWOSBs is limited to contracts valued at $6.5 million or less for manufacturing contracts and $4 million or less for all other contracts. Nonetheless, we believe that this rule may have a significant positive economic impact on EDWOSB concerns competing for Federal contracting opportunities in industries determined by SBA to be underrepresented by WOSB concerns and likewise may positively affect WOSB concerns eligible under the WOSB Program competing in industries determined by SBA to be substantially underrepresented by WOSB concerns, since the sole source authority will still provide greater access to Federal contracting opportunities. 4. What are the projected reporting, recordkeeping, Paperwork Reduction Act, and other compliance requirements? SBA has determined that this rule does not impose additional reporting or recordkeeping requirements. 5. What relevant federal rules may duplicate, overlap, or conflict with this rule? SBA has not identified any relevant Federal rules currently in effect that duplicate this rule. The sole source mechanism of the WOSB program will be an addition to the procurement mechanisms available under the existing small business contracting programs that agencies currently administer, such as the HUBZone Program, the Service-Disabled Veteran-Owned (SDVO) Small Business Program, and the 8(a) Business Development Program. The sole source mechanism for WOSBs and EDWOSBs is only authorized where a contracting officer conducts market research in an industry where a WOSB or EDWOSB set aside is authorized, and the contracting officer cannot identify two or more WOSBs or EDWOSBs that can perform at a fair and reasonable price, but identifies one WOSB or EDWOSB that can perform (and so long as the value of the contract, including options, does not exceed $6.5 million for manufacturing contracts and $4 million for all other contracts). Therefore, the addition of the sole source mechanism for WOSBs and EDWOSBs should complement rather than conflict with the goals of existing small business procurement programs. SBA believes that the Federal Acquisition Regulations (FAR) will need to be amended to include this authority so that there is no conflict between the SBA's rules and the FAR. 6. What significant alternatives did SBA consider that accomplish the stated objectives and minimize and significant economic impact on small entities? The RFA requires agencies to identify alternatives to the rule in an effort to minimize any significant economic impact of the rule on small entities. The statutory authority for the sole source awards sets forth specific criteria, including dollar value thresholds for the awards. Therefore, the regulations must implement the statutory provisions, and there are no alternatives for these regulations. List of Subjects in 13 CFR Part 127 Government contracts, Reporting and recordkeeping requirements, Small businesses. Accordingly, for the reasons stated in the preamble, SBA amends 13 CFR part 127 as follows: PART 127--WOMEN-OWNED SMALL BUSINESS FEDERAL CONTRACT PROGRAM 0 1. The authority for part 127 continues to read as follows: Authority: 15 U.S.C. 632, 634(b)(6), 637(m), and 644. 0 2. Revise Sec. 127.101 to read as follows: Sec. 127.101 What type of assistance is available under this part? This part authorizes contracting officers to restrict competition or award sole source contracts or orders to eligible Economically Disadvantaged Women-Owned Small Businesses (EDWOSBs) for certain Federal contracts or orders in industries in which the Small Business Administration (SBA) determines that WOSBs are underrepresented in Federal [[Page 55022]] procurement. It also authorizes contracting officers to restrict competition or award sole source contracts or orders to eligible WOSBs for certain Federal contracts or orders in industries in which SBA determines that WOSBs are substantially underrepresented in Federal procurement and has waived the economically disadvantaged requirement. 0 3. Amend Sec. 127.102 by revising the definitions of the terms ``EDWOSB requirement'', ``Substantial underrepresentation'', ``Underrepresentation'', and ``WOSB requirement'' to read as follows: Sec. 127.102 What are the definitions of the terms used in this part? * * * * * EDWOSB requirement means a Federal requirement for services or supplies for which a contracting officer has restricted competition or awarded a sole source contract or order to eligible EDWOSBs, including Multiple Award Contracts, partial set-asides, reserves, sole source awards, and orders set aside for EDWOSBs issued against a Multiple Award Contract. * * * * * Substantial underrepresentation is determined by a study using a reliable and relevant methodology. * * * * * Underrepresentation is determined by a study using a reliable and relevant methodology. * * * * * WOSB requirement means a Federal requirement for services or supplies for which a contracting officer has restricted competition or awarded a sole source contract or order to eligible WOSBs, including Multiple Award Contracts, partial set-asides, reserves, sole source awards, and orders set aside for WOSBs issued against a Multiple Award Contract. 0 4. Revise Sec. 127.500 to read as follows: Sec. 127.500 In what industries is a contracting officer authorized to restrict competition or make a sole source award under this part? A contracting officer may restrict competition or make a sole source award under this part only in those industries in which SBA has determined that WOSBs are underrepresented or substantially underrepresented in Federal procurement, as specified in Sec. 127.501. Sec. 127.501 [Amended] 0 5. Amend Sec. 127.501 by removing the word ``disparity'' in the two places where it appears in paragraph (b) and adding the word ``underrepresentation'' in its place. 0 6. Amend Sec. 127.503 as follows: 0 a. Revise the section heading; 0 b. Revise paragraph (a) subject heading and paragraph (b) subject heading; 0 c. Redesignate paragraphs (c), (d), (e) and (f) as paragraphs (e), (f), (g) and (h); and 0 d. Add new paragraphs (c) and (d). The revisions and additions read as follows: Sec. 127.503 When is a contracting officer authorized to restrict competition or award a sole source contract or order under this part? (a) Competition restricted to EDWOSBs. * * * (b) Competition restricted to WOSBs. * * * (c) Sole source awards to EDWOSBs. For requirements in industries designated by SBA as underrepresented pursuant to Sec. 127.501, a contracting officer may issue a sole source award to an EDWOSB when the contacting officer determines that: (1) The EDWOSB is a responsible contractor with respect to performance of the requirement and the contracting officer does not have a reasonable expectation that 2 or more EDWOSBs will submit offers; (2) The anticipated award price of the contract (including options) will not exceed $6,500,000 in the case of a contract assigned a North American Industry Classification System (NAICS) code for manufacturing, or $4,000,000 in the case of any other contract opportunity; and (3) In the estimation of the contracting officer, the award can be made at a fair and reasonable price. (d) Sole source awards to WOSBs. For requirements in industries designated by SBA as substantially underrepresented pursuant to Sec. 127.501, a contracting officer may issue a sole source award to a WOSB when the contacting officer determines that: (1) The WOSB is a responsible contractor with respect to performance of the requirement and the contracting officer does not have a reasonable expectation that 2 or more WOSBs will submit offers; (2) The anticipated award price of the contract (including options) will not exceed $6,500,000 in the case of a contract assigned a NAICS code for manufacturing, or $4,000,000 in the case of any other contract opportunity; and (3) In the estimation of the contracting officer, the award can be made at a fair and reasonable price. * * * * * 0 7. Revise Sec. 127.507 to read as follows: Sec. 127.507 Are there EDWOSB and WOSB contracting opportunities at or below the simplified acquisition threshold? If the requirement is valued at or below the simplified acquisition threshold, the contracting officer may set aside the requirement or award the requirement on a sole source basis as set forth in Sec. 127.503. 0 8. Revise Sec. 127.600 to read as follows: Sec. 127.600 Who may protest the status of a concern as an EDWOSB or WOSB? (a) For sole source procurements. SBA or the contracting officer may protest the proposed awardee's EDWOSB or WOSB status. (b) For all other EDWOSB or WOSB requirements. An interested party may protest the apparent successful offeror's EDWOSB or WOSB status. Maria Contreras-Sweet, Administrator. [FR Doc. 2015-22927 Filed 9-11-15; 8:45 am] BILLING CODE 8025-01-P
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(d) Packinghouse procedures. (1) All implements the authority set forth in ‘‘Underrepresentation’’ would be
packinghouses that participate in the section 825 of the 2015 NDAA allowing determined by the study to be
export program must be registered with sole source awards to Women-Owned conducted. The term ‘‘sole source
the Peruvian NPPO. Small Businesses (WOSBs) or contracts’’ was also a proposed addition
(2) The peppers must be packed Economically Disadvantaged Women- to Sec. 127.500, which concerns the
within 24 hours of harvest in a pest- Owned Small Businesses (EDWOSBs) in industries in which a contracting officer
exclusionary packinghouse. The appropriate circumstances. is authorized to restrict competition
peppers must be safeguarded by an DATES: This rule is effective October 14, under the WOSB program. This change
insect-proof mesh screen or plastic 2015. to Sec. 127.500 proposed to authorize
tarpaulin while in transit to the FOR FURTHER INFORMATION CONTACT:
contracting officers to award sole source
packinghouse and while awaiting Brenda Fernandez, U.S. Small Business contracts in those industries as well.
packing. The peppers must be packed in Administration, Office of Policy, SBA also proposed amendments to Sec.
insect-proof cartons or containers, or Planning & Liaison, 409 Third Street 127.503 to establish the conditions for
covered with insect-proof mesh or SW., Washington, DC 20416; (202) 205– awarding a sole source contract.
plastic tarpaulin, for transit into the 7337; brenda.fernandez@sba.gov. Essentially if, after conducting market
continental United States or its research in an industry where a WOSB
SUPPLEMENTARY INFORMATION:
Territories. These safeguards must or EDWOSB set-aside is authorized, a
remain intact until arrival in the I. Background contracting officer cannot identify two
continental United States or its The WOSB Program, set forth in or more WOSBs or EDWOSBs that can
Territories or the consignment will be perform at a fair and reasonable price
section 8(m) of the Small Business Act,
denied entry into the continental United but identifies one WOSB or EDWOSB
15 U.S.C. 637(m), authorizes Federal
States or its Territories. that can perform at a fair and reasonable
contracting officers to restrict
(3) During the time the packinghouse price, a contract may be awarded on a
competition to eligible Women-Owned
is in use for exporting peppers to the sole source basis, provided the value of
Small Businesses (WOSBs) or
continental United States or its the contract, including options, does not
Economically Disadvantaged Women-
Territories, the packinghouse may only exceed $6.5 million for manufacturing
Owned Small Businesses (EDWOSBs)
accept peppers from registered contracts and $4 million for all other
for Federal contracts in certain
approved production sites. contracts. SBA also proposed to amend
industries. Section 8(m) establishes
(e) Phytosanitary certificate. Each Sec. 127.507 to authorize contracting
criteria for the WOSB Program, officers to award sole source contracts
consignment of peppers must be including the eligibility and contract
accompanied by a phytosanitary in the WOSB program if the contract
requirements for the program. Congress requirement is valued at or below the
certificate of inspection issued by the recently amended the WOSB Program in
Peruvian NPPO stating that the fruit in simplified acquisition threshold.
section 825 of the National Defense Finally, the rule proposed to amend the
the consignment has been produced in Authorization Act for Fiscal Year 2015,
accordance with the requirements of the protest regulations in Sec. 127.600 to
Public Law 113–291, 128 Stat. 3292 make them consistent with the protest
systems approach in 7 CFR 319.56–73. (December 19, 2014) (2015 NDAA), procedures for sole source contracts
(Approved by the Office of Management and which included language granting involving service-disabled veteran
Budget under control number 0579–0434) contracting officers the authority to owned small business concerns (SDVO
Done in Washington, DC, this 9th day of award sole source awards to WOSBs SBC) (Sec. 125.24(a) and HUBZone
September 2015. and EDWOSBs and shortening the time small business concerns (Sec.
Michael C. Gregoire, period for SBA to conduct a required 126.800(a).
Associate Administrator, Animal and Plant study to determine the industries in Paragraph (a) of Sec. 127.501 sets out
Health Inspection Service. which WOSBs are underrepresented in that the agency will designate ‘‘the
[FR Doc. 2015–23037 Filed 9–11–15; 8:45 am] Federal contracting. In addition, section industries in which WOSBs are
BILLING CODE 3410–34–P
825 of the 2015 NDAA created a underrepresented and substantially
requirement that a firm be certified as a underrepresented’’ by NAICS code.
WOSB or EDWOSB by a Federal However, because paragraph (b) uses the
SMALL BUSINESS ADMINISTRATION Agency, a State government, SBA, or a term ‘‘disparity’’ instead, SBA intended
national certifying entity approved by to propose a technical amendment to
13 CFR Part 127 SBA. this paragraph to replace that term with
On May 1, 2015, SBA published in ‘‘underrepresentation’’; such an
RIN 3245–AG72 the Federal Register a proposed rule to amendment would make the paragraph
implement the sole source authority for consistent with amendments to the
Women-Owned Small Business
WOSBs and EDWOSBs and the revised definitions and other sections of the
Federal Contract Program
timeline for SBA to conduct a study to WOSB regulations. This purely
AGENCY: U.S. Small Business determine the industries in which technical conforming change to Sec.
Administration. WOSBs are underrepresented. 80 FR 127.501 is included in this final rule.
ACTION: Final rule. 24846. The rule proposed amendments As explained in the proposed rule,
to Sec. 127.101 to include sole source SBA recognized that the new
SUMMARY: This rule makes changes to contracts as a type of contracting certification requirement for WOSBs
the regulations governing the Women- assistance available under part 127. The would require a more prolonged
Owned Small Business (WOSB) rule also proposed to revise Sec. rulemaking. Because SBA did not want
tkelley on DSK3SPTVN1PROD with RULES
program. The U.S. Small Business 127.102 by adding the term ‘‘sole source to delay the implementation of the
Administration (SBA) is making contracts’’ to the definitions of WOSB sole source authority by
changes to those regulations to ‘‘EDWOSB requirement’’ and ‘‘WOSB combining it with the new certification
implement section 825 of the National requirement’’ and establishing that the requirement, SBA did not propose any
Defense Authorization Act for Fiscal terms ‘‘Substantial changes to implement the certification
Year 2015. Specifically, this rule underrepresentation’’ and requirement but rather indicated that it
VerDate Sep<11>2014 16:26 Sep 11, 2015 Jkt 235001 PO 00000 Frm 00005 Fmt 4700 Sfmt 4700 E:\FR\FM\14SER1.SGM 14SER1](https://thefederalregister.org/doc/80_FR_55196/page/1.svg)
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procurement. It also authorizes where it appears in paragraph (b) and (3) In the estimation of the contracting
contracting officers to restrict adding the word ‘‘underrepresentation’’ officer, the award can be made at a fair
competition or award sole source in its place. and reasonable price.
contracts or orders to eligible WOSBs * * * * *
for certain Federal contracts or orders in ■ 6. Amend § 127.503 as follows:
■ a. Revise the section heading; ■ 7. Revise § 127.507 to read as follows:
industries in which SBA determines
that WOSBs are substantially ■ b. Revise paragraph (a) subject § 127.507 Are there EDWOSB and WOSB
underrepresented in Federal heading and paragraph (b) subject contracting opportunities at or below the
procurement and has waived the heading; simplified acquisition threshold?
economically disadvantaged ■ c. Redesignate paragraphs (c), (d), (e) If the requirement is valued at or
requirement. and (f) as paragraphs (e), (f), (g) and (h); below the simplified acquisition
and threshold, the contracting officer may
■ 3. Amend § 127.102 by revising the
■ d. Add new paragraphs (c) and (d). set aside the requirement or award the
definitions of the terms ‘‘EDWOSB
The revisions and additions read as requirement on a sole source basis as set
requirement’’, ‘‘Substantial
follows: forth in § 127.503.
underrepresentation’’,
‘‘Underrepresentation’’, and ‘‘WOSB ■ 8. Revise § 127.600 to read as follows:
§ 127.503 When is a contracting officer
requirement’’ to read as follows: authorized to restrict competition or award § 127.600 Who may protest the status of a
§ 127.102 What are the definitions of the a sole source contract or order under this concern as an EDWOSB or WOSB?
terms used in this part? part? (a) For sole source procurements. SBA
* * * * * (a) Competition restricted to or the contracting officer may protest
EDWOSB requirement means a EDWOSBs. * * * the proposed awardee’s EDWOSB or
Federal requirement for services or (b) Competition restricted to WOSBs. WOSB status.
supplies for which a contracting officer * * * (b) For all other EDWOSB or WOSB
has restricted competition or awarded a requirements. An interested party may
(c) Sole source awards to EDWOSBs.
sole source contract or order to eligible protest the apparent successful offeror’s
For requirements in industries
EDWOSBs, including Multiple Award EDWOSB or WOSB status.
designated by SBA as underrepresented
Contracts, partial set-asides, reserves, pursuant to § 127.501, a contracting Maria Contreras-Sweet,
sole source awards, and orders set aside officer may issue a sole source award to Administrator.
for EDWOSBs issued against a Multiple an EDWOSB when the contacting officer [FR Doc. 2015–22927 Filed 9–11–15; 8:45 am]
Award Contract. determines that: BILLING CODE 8025–01–P
* * * * * (1) The EDWOSB is a responsible
Substantial underrepresentation is contractor with respect to performance
determined by a study using a reliable of the requirement and the contracting COMMODITY FUTURES TRADING
and relevant methodology. officer does not have a reasonable COMMISSION
* * * * * expectation that 2 or more EDWOSBs
Underrepresentation is determined by will submit offers; 17 CFR Part 170
a study using a reliable and relevant (2) The anticipated award price of the
methodology. RIN 3038–AE09
contract (including options) will not
* * * * * exceed $6,500,000 in the case of a Membership in a Registered Futures
WOSB requirement means a Federal contract assigned a North American Association
requirement for services or supplies for Industry Classification System (NAICS)
which a contracting officer has code for manufacturing, or $4,000,000 AGENCY: Commodity Futures Trading
restricted competition or awarded a sole in the case of any other contract Commission.
source contract or order to eligible opportunity; and ACTION: Final rule.
WOSBs, including Multiple Award (3) In the estimation of the contracting
Contracts, partial set-asides, reserves, SUMMARY: The Commodity Futures
officer, the award can be made at a fair Trading Commission (‘‘Commission’’ or
sole source awards, and orders set aside and reasonable price.
for WOSBs issued against a Multiple ‘‘CFTC’’) is adopting a new rule (‘‘Final
(d) Sole source awards to WOSBs. For Rule’’) to require that all persons
Award Contract.
requirements in industries designated registered with the Commission as
■ 4. Revise § 127.500 to read as follows: by SBA as substantially introducing brokers (‘‘IB’’), commodity
§ 127.500 In what industries is a underrepresented pursuant to § 127.501, pool operators (‘‘CPO’’), or commodity
contracting officer authorized to restrict a contracting officer may issue a sole trading advisors (‘‘CTA’’), subject to an
competition or make a sole source award source award to a WOSB when the exception for those persons who are
under this part? contacting officer determines that: exempt from registration as a CTA
A contracting officer may restrict (1) The WOSB is a responsible pursuant to a particular provision of the
competition or make a sole source contractor with respect to performance Commission’s regulations, must, in each
award under this part only in those of the requirement and the contracting case, become and remain a member of
industries in which SBA has officer does not have a reasonable at least one registered futures
determined that WOSBs are expectation that 2 or more WOSBs will association (‘‘RFA’’).
underrepresented or substantially submit offers; DATES: The Final Rule will become
tkelley on DSK3SPTVN1PROD with RULES
underrepresented in Federal (2) The anticipated award price of the effective November 13, 2015. All
procurement, as specified in § 127.501. contract (including options) will not persons subject to the Final Rule must
exceed $6,500,000 in the case of a comply with the Final Rule by not later
§ 127.501 [Amended] than December 31, 2015.
contract assigned a NAICS code for
■5. Amend § 127.501 by removing the manufacturing, or $4,000,000 in the case FOR FURTHER INFORMATION CONTACT:
word ‘‘disparity’’ in the two places of any other contract opportunity; and Katherine Driscoll, Associate Chief
VerDate Sep<11>2014 16:26 Sep 11, 2015 Jkt 235001 PO 00000 Frm 00008 Fmt 4700 Sfmt 4700 E:\FR\FM\14SER1.SGM 14SER1](https://thefederalregister.org/doc/80_FR_55196/page/4.svg)
Document Created: 2018-02-26 10:15:25
Document Modified: 2018-02-26 10:15:25
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Rules and Regulations | |
| Action | Final rule. | |
| Dates | This rule is effective October 14, 2015. | |
| Contact | Brenda Fernandez, U.S. Small Business Administration, Office of Policy, Planning & Liaison, 409 Third Street SW., Washington, DC 20416; (202) 205-7337; [email protected] | |
| FR Citation | 80 FR 55019 | |
| RIN Number | 3245-AG72 | |
| CFR Associated | Government Contracts; Reporting and Recordkeeping Requirements and Small Businesses |
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