Federal Acquisition Regulation: Certification of Women-Owned Small Businesses
| Published date | 07 October 2021 |
| Citation | 86 FR 55769 |
| Record Number | 2021-21343 |
| Section | Proposed rules |
| Court | General Services Administration,National Aeronautics And Space Administration |
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Federal Register / Vol. 86, No. 192 / Thursday, October 7, 2021 / Proposed Rules
changes in the pattern of land use,
population density or growth rate, and
related effects on air and water and
other natural systems, including
ecosystems.
(3) Cumulative effects, which are
effects on the environment that result
from the incremental effects of the
action when added to the effects of
other past, present, and reasonably
foreseeable actions regardless of what
agency (Federal or non-Federal) or
person undertakes such other actions.
Cumulative effects can result from
individually minor but collectively
significant actions taking place over a
period of time.
(4) Effects include ecological (such as
the effects on natural resources and on
the components, structures, and
functioning of affected ecosystems),
aesthetic, historic, cultural, economic,
social, or health, whether direct,
indirect, or cumulative. Effects may also
include those resulting from actions
which may have both beneficial and
detrimental effects, even if on balance
the agency believes that the effects will
be beneficial.
* * * * *
(z) Reasonable alternatives means a
reasonable range of alternatives that are
technically and economically feasible,
and meet the purpose and need for the
proposed action.
* * * * *
[FR Doc. 2021–21867 Filed 10–6–21; 8:45 am]
BILLING CODE 3325–F2–P
DEPARTMENT OF DEFENSE
GENERAL SERVICES
ADMINISTRATION
NATIONAL AERONAUTICS AND
SPACE ADMINISTRATION
48 CFR Parts 2, 19, and 52
[FAR Case 2020–013; Docket No. FAR–
2021–0009, Sequence No. 1]
RIN 9000–AO17
Federal Acquisition Regulation:
Certification of Women-Owned Small
Businesses
AGENCY
: Department of Defense (DoD),
General Services Administration (GSA),
and National Aeronautics and Space
Administration (NASA).
ACTION
: Proposed rule.
SUMMARY
: DoD, GSA, and NASA are
proposing to amend the Federal
Acquisition Regulation (FAR) to
implement the final rule published by
the Small Business Administration
implementing a section of the Carl
Levin and Howard P. ‘‘Buck’’ McKeon
National Defense Authorization Act for
Fiscal Year (FY) 2015.
DATES
: Interested parties should submit
comments to the Regulatory Secretariat
Division at one of the addresses shown
below on or before December 6, 2021 to
be considered in the formulation of a
final rule.
ADDRESSES
: Submit comments in
response to FAR Case 2020–013 to the
Federal eRulemaking portal at https://
www.regulations.gov by searching for
‘‘FAR Case 2020–013’’. Select the link
‘‘Comment Now’’ that corresponds with
‘‘FAR Case 2020–013’’. Follow the
instructions provided on the ‘‘Comment
Now’’ screen. Please include your name,
company name (if any), and ‘‘FAR Case
2020–013’’ on your attached document.
If your comment cannot be submitted
using https://www.regulations.gov, call
or email the points of contact in the
FOR
FURTHER INFORMATION CONTACT
section of
this document for alternate instructions.
Instructions: Please submit comments
only and cite ‘‘FAR Case 2020–013’’ in
all correspondence related to this case.
Comments received generally will be
posted without change to https://
www.regulations.gov, including any
personal and/or business confidential
information provided. To confirm
receipt of your comment(s), please
check https://www.regulations.gov,
approximately two to three days after
submission to verify posting.
FOR FURTHER INFORMATION CONTACT
: Ms.
Malissa Jones, Procurement Analyst, at
703–605–2815, or by email at
Malissa.jones@gsa.gov, for clarification
of content. For information pertaining to
status or publication schedules, contact
the Regulatory Secretariat Division at
202–501–4755 or GSARegSec@gsa.gov.
Please cite FAR Case 2020–013.
SUPPLEMENTARY INFORMATION
:
I. Background
DoD, GSA, and NASA are proposing
to revise the FAR to implement section
825(a)(1) of the Carl Levin and Howard
P. ‘‘Buck’’ McKeon National Defense
Authorization Act (NDAA) for Fiscal
Year (FY) 2015 (15 U.S.C. 637(m)),
Public Law 113–291. Section 825
requires women-owned small business
(WOSB) concerns and economically
disadvantaged women-owned small
business (EDWOSB) concerns to be
certified by the Small Business
Administration (SBA), a Federal agency,
a State government, or a national
certifying entity approved by SBA in the
WOSB Program to be eligible for set-
aside or sole-source awards.
SBA issued a final rule at 85 FR
27650, May 11, 2020, to implement
section 825(a)(1). In their final rule, SBA
amended 13 CFR part 127 requiring
WOSB and EDWOSB concerns be
certified by a Federal agency, a State
government, the SBA, or a national
certifying entity approved by SBA in
order to be eligible under the WOSB
Program for set-aside or sole-source
awards.
II. Discussion and Analysis
The proposed changes to the FAR and
the rationale for the proposed changes
are summarized in the following
paragraphs.
Changes are proposed to FAR 2.101,
Definitions, to update the definition of
Economically disadvantaged women-
owned small business concern
(EDWOSB) and Women-owned small
business (WOSB) concern eligible under
the WOSB Program to add that the
concern is certified by SBA or an
approved third-party certifier in
accordance with 13 CFR 127.300.
Changes are proposed to FAR
19.308(d), Protesting a firm’s status as
an EDWOSB concern or WOSB concern
eligible under the WOSB Program, to
require a protest to be submitted by
email to SBA at wosbprotest@sba.gov.
FAR 19.308(d) is also amended to
propose deletion of text requiring SBA
to consider protests by contracting
officers when the apparent successful
offeror has failed to provide all of the
required documents, as set forth in FAR
19.1503(c). Changes are also proposed to
FAR 19.308 to add the requirement that
the protest present evidence that the
concern is not at least 51 percent owned
and controlled by one or more
economically disadvantaged women
‘‘who are United States citizens’’, based
on the requirements of 13 CFR part 127.
The addition of ‘‘United States citizens’’
aligns the FAR text with SBA’s
regulations.
FAR 19.1501, Definition, is reserved
to delete the definition of WOSB
Program Repository since the WOSB
Program Repository is no longer the
source for WOSB program eligibility as
of October 15, 2020.
FAR 19.1503, Status, is amended to
add the requirement for the contracting
officer to verify the designation as a
certified WOSB or EDWOSB small
business in the Dynamic Small Business
Search (DSBS) at https://web.sba.gov/
pro-net/search/dsp_dsbs.cfm. The
designation will also appear in the
System for Award Management (SAM)
after issuance of the final rule.
Paragraphs (c) and (d) at FAR 19.1503,
are proposed to be deleted. Paragraphs
(e) and (f) at FAR 19.1503 are
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redesignated as new paragraphs (c) and
(d).
FAR 19.1504, Exclusions, is amended
at paragraph (b) to replace Federal
Prison Industries, Inc., and AbilityOne
with ‘‘mandatory Government sources
(see section 8.002)’’, since both entities
are referenced at FAR 8.002, Priorities
for use of mandatory Government
sources.
FAR 19.1505, Set-aside procedures, is
amended to allow an offeror to submit
an offer while awaiting certification
under the WOSB Program. FAR 19.1505
is also amended to provide the
contracting officer with guidance if an
apparent successful offeror’s
certification is pending under the
WOSB Program. The contracting officer,
prior to award, shall verify the
apparently successful offeror is certified
in SAM or DSBS. If the apparently
successful offeror’s EDWOSB or WOSB
certification is pending in DSBS, the
contracting officer shall notify SBA’s
Director/Government Contracting by
email at WOSBpendingcertification@
sba.gov, and request SBA’s eligibility
determination.
Within 15 days from the date of the
contracting officer’s notification, SBA
will make a determination regarding the
offeror’s status as an EDWOSB or WOSB
eligible under the WOSB program.
If the contracting officer does not
receive a determination from SBA
within 15 days, the contracting officer,
at their discretion, may provide SBA
additional time to make a
determination, or may proceed with
award to the next highest evaluated
offeror. The contracting officer shall not
make award to an offeror who is not a
certified EDWOSB or WOSB concern
eligible under the WOSB program.
FAR 19.1506, Women-Owned Small
Business Program sole-source awards, is
amended to instruct a contracting officer
that a sole-source award can only be
made to a concern that has been
certified pursuant to 13 CFR 127.300 as
an EDWOSB or WOSB eligible under
the WOSB Program. FAR 19.1506 is also
amended to notify contracting officers
that they shall not request an eligibility
determination from SBA on pending
certification applications for EDWOSB
or WOSB sole-source awards.
Changes are proposed to FAR
provision 52.212–3, Offeror
Representations and Certifications-
Commercial Items, to remove the
representation for WOSB concerns and
EDWOSB concerns eligible under the
WOSB Program. This rulemaking also
proposes to update the WOSB and
EDWOSB joint venture provisions and
clauses.
FAR clause 52.212–5, Contract Terms
and Conditions Required to Implement
Statutes or Executive Orders—
Commercial Items, was also revised to
make conforming changes.
Changes are proposed to FAR
provision 52.219–1, Small Business
Program Representations, to remove the
representation for WOSB concerns and
EDWOSB concerns eligible under the
WOSB Program. This section also
proposes to update the WOSB and
EDWOSB joint venture provisions and
clauses.
Changes are proposed to FAR clause
52.219–28, Post-Award Small Business
Program Rerepresentation, to remove
the rerepresentation for WOSB concerns
and EDWOSB concerns eligible under
the WOSB Program. This rulemaking
also proposes to update the WOSB
concern and EDWOSB concern joint
venture clauses.
Changes are proposed to FAR clause
52.219–29, Notice of Set-aside for, or
Sole-Source Award to, Economically
Disadvantaged Women-owned Small
Business Concerns, to delete the
definition of WOSB Program Repository
from the clause and to require that the
EDWOSB concern is certified by SBA or
an approved third-party certifier in
accordance with 13 CFR 127.300 as an
EDWOSB. This section also proposes to
delete text in the clause that the
contracting officer will ensure the
successful offeror has provided all
required documents to the now defunct
WOSB Program Repository. It adds text
for EDWOSB set-aside procurements
that offers are solicited only from
certified EDWOSB concerns or concerns
with a pending certification application
in DSBS. This section also proposes to
add text that for EDWOSB sole-source
awards, offers are solicited only from
certified EDWOSB concerns.
Changes are proposed to FAR clause
52.219–30, Notice of Set-aside for, or
Sole-Source Award to, Women-Owned
Small Business Concerns Eligible Under
the Women-Owned Small Business
Program, to delete the definition of the
now defunct WOSB Program Repository
text from the clause. This rulemaking
proposes to amend the clause to also
add to the definition of WOSB concern
eligible under the WOSB Program that
the concern is certified by SBA or an
approved third-party certifier in
accordance with 13 CFR 127.300 as a
WOSB. This rulemaking also proposes
to delete text in the clause that the
contracting officer will ensure the
successful offeror has provided all
required documents to the WOSB
Program Repository. This rulemaking
also proposes to amend the clause to
add that offers are solicited only from
certified WOSB concerns or concerns
with a pending certification application
in DSBS for WOSB set-aside
procurements. This rulemaking further
proposes to amend the clause to add, for
WOSB sole-source awards, that offers
are solicited only from certified WOSB
concerns.
III. Applicability to Contracts at or
Below the Simplified Acquisition
Threshold (SAT) and for Commercial
Items, Including Commercially
Available Off-The-Shelf (COTS) Items
This proposed rule amends the
following provisions and clauses:
Provision 52.212–3, clause 52.212–5,
provision 52.219–1, clause 52.219–28,
clause 52.219–29, clause 52.219–30.
However, this proposed rule does not
impose any new requirements on
contracts at or below the SAT or for
commercial items, including COTS
items. The provisions and clauses
continue to apply to acquisitions at or
below the SAT and to acquisitions for
commercial items, including COTS
items.
A. Applicability to Contracts at or Below
the Simplified Acquisition Threshold
41 U.S.C. 1905 governs the
applicability of laws to acquisitions at
or below the SAT. Section 1905
generally limits the applicability of new
laws when agencies are making
acquisitions at or below the SAT, but
provides that such acquisitions will not
be exempt from a provision of law
under certain circumstances, including
when the FAR Council makes a written
determination and finding that it would
not be in the best interest of the Federal
Government to exempt contracts and
subcontracts in amounts not greater
than the SAT from the provision of law.
The FAR Council intends to make a
determination to apply this statute to
acquisitions at or below the SAT.
B. Applicability to Contracts for the
Acquisition of Commercial Items,
Including Commercially Available Off-
The-Shelf (COTS) Items
41 U.S.C. 1906 governs the
applicability of laws to contracts for the
acquisition of commercial items, and is
intended to limit the applicability of
laws to contracts for the acquisition of
commercial items. Section 1906
provides that if the FAR Council makes
a written determination that it is not in
the best interest of the Federal
Government to exempt commercial item
contracts, the provision of law will
apply to contracts for the acquisition of
commercial items.
41 U.S.C. 1907 states that acquisitions
of COTS items will be exempt from
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certain provisions of law unless the
Administrator for Federal Procurement
Policy makes a written determination
and finds that it would not be in the best
interest of the Federal Government to
exempt contracts for the procurement of
COTS items.
The FAR Council intends to make a
determination to apply this statute to
acquisitions for commercial items. The
Administrator for Federal Procurement
Policy intends to make a determination
to apply this statute to acquisitions for
COTS items.
C. Determinations
The purpose of this proposed rule is
to implement section 825(a)(1) of the
Carl Levin and Howard P. ‘‘Buck’’
McKeon National Defense Authorization
Act for Fiscal Year 2015 and SBA’s
implementing regulation. Section 825
requires women-owned small business
concerns and economically
disadvantaged women-owned small
business concerns to be certified to be
eligible under the WOSB Program for
set-aside or sole-source awards (see 13
CFR 127.300).
Section 825 is silent on the
applicability of these requirements for
acquisitions at or below the SAT and
does not independently provide for
criminal or civil penalties; nor does it
include terms making express reference
to 41 U.S.C. 1905 and its application to
acquisitions at or below the SAT.
Therefore, it does not apply to
acquisitions at or below the SAT unless
the FAR Council makes a written
determination as provided at 41 U.S.C.
1905. Additionally, the law is silent on
the applicability of this requirement to
acquisitions of COTS items and does not
independently provide for criminal or
civil penalties; nor does it include terms
making express reference to 41 U.S.C.
1907 and its application to acquisitions
of COTS items. Therefore, it does not
apply to acquisition of COTS items
unless the Administrator for Federal
Procurement Policy makes a written
determination as provided at 41 U.S.C.
1907.
The law furthers the Administration’s
goal of simplifying the acquisition
process and facilitating easier access to
the Federal marketplace, in this case for
women-owned small businesses and
economically disadvantaged women-
owned small businesses who make up
an important component of the
Government’s industrial base. Exclusion
of a large segment of Federal
contracting, such as acquisitions at or
below the SAT, and for acquisitions of
COTS items, will limit the full
implementation of these objectives.
Further, the primary FAR provisions
and clauses implementing the
certification of women-owned small
businesses and economically
disadvantaged women-owned small
businesses in the WOSB Program are
currently prescribed for use in COTS
items.
Exclusion of acquisitions for COTS
items would create confusion among
contractors and the Federal contracting
workforce.
For these reasons, it is in the best
interest of the Federal Government to
apply the requirements of the proposed
rule to acquisitions at or below the SAT
and to acquisitions of COTS items.
IV. Expected Impact of the Rule
As a result of this proposed rule,
contracting officers will be required to
check SAM or DSBS to determine if an
EDWOSB or WOSB concern is certified
or has a pending application for
certification in DSBS instead of
checking that all required
documentation has been submitted to
the now defunct WOSB Repository.
Additionally, for set-aside procurements
contracting officers will have to contact
SBA should the apparently successful
offeror have a pending application for
certification. Within 15 days from the
date of the contracting officer’s
notification, SBA will make a
determination regarding the offeror’s
status as an EDWOSB or WOSB eligible
under the WOSB program. If the
contracting officer does not receive a
determination from SBA within 15 days,
the contracting officer at their
discretion, may provide SBA additional
time to make a determination, or may
proceed with award to the next highest
evaluated offeror. For EDWOSB or
WOSB set-asides and sole-source
awards, award can only be made to an
EDWOSB or WOSB certified concern.
The changes in this proposed rule
will affect internal Government
operations, but not contractor
operations. The required documentation
(articles of incorporation, bylaws, stock
ledgers or certificates, tax records, etc.)
already exists. In addition, this
information is already required to be
provided either to third-party certifiers,
governmental certifying entities, or to
SBA through certify.SBA.gov. SBA
expects WOSBs to see a reduction in
burden because, under the prior WOSB
Program Repository, SBA determined
that the average time required to
complete the process required by the
WOSB Program Repository was two
hours, whereas the use of the new
certification process requires only one
hour due to technological
improvements.
The public cost associated with
obtaining the WOSB or EDWOSB
certification from SBA or a third-party
certifier is accounted for under the SBA
final rule implementing the Program
certification requirements (85 FR
27660). In addition, the SBA final rule
advises concerns that only a certified
WOSB or EDWOSB may seek a specific
sole-source requirement under the
Program and that only a certified WOSB
or EDWOSB or a concern that has a
pending application for certification
under the Program may submit an offer
on a specific EDWOSB or WOSB set-
aside requirement.
Given SBA’s notice to small business
concerns, the cost to the public
associated with the FAR
implementation of the SBA final rule is
de minimis and is limited to the cost of
regulatory familiarization, or the cost
associated with reading this rule and
understanding the new solicitation
provision.
V. 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 not a significant
regulatory action and, therefore, was not
subject to review under section 6(b) of
E.O. 12866, Regulatory Planning and
Review, dated September 30, 1993.
VI. Congressional Review Act
As required by the Congressional
Review Act (5 U.S.C. 801–808) before an
interim or final rule takes effect, DoD,
GSA, and NASA will send the rule and
the ‘‘Submission of Federal Rules Under
the Congressional Review Act’’ form to
each House of the Congress and to the
Comptroller General of the United
States. A major rule cannot take effect
until 60 days after it is published in the
Federal Register. This proposed rule is
not anticipated to be a major rule under
5 U.S.C. 804.
VII. Regulatory Flexibility Act
DoD, GSA, and NASA do not expect
this proposed rule to have a significant
economic impact on a substantial
number of small entities within the
meaning of the Regulatory Flexibility
Act, 5 U.S.C. 601–612. However, an
initial regulatory flexibility analysis has
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been performed and is summarized as
follows:
DoD, GSA, and NASA are proposing to
amend the Federal Acquisition Regulation
(FAR) to implement a statutory requirement
to certify Women-Owned Small Business
Concerns (WOSBs) and Economically
Disadvantaged Women-Owned Small
Business Concerns (EDWOSBs) participating
in the Procurement Program for Women-
Owned Small Business Concerns (the
Program). The certification requirement
applies only to participants wishing to
compete for set-aside or sole-source contracts
under the Program. Once this rulemaking is
effective, WOSBs and EDWOSBs that are not
certified will not be eligible for contracts
under the Program. Other WOSBs that do not
participate in the Program may continue to
self-certify their status, receive contract
awards outside the Program, and count
toward an agency’s goal for awards to
WOSBs.
The objective of this rulemaking is to
implement section 825(a)(1) of the NDAA for
Fiscal Year (FY) 2015, Public Law 113–291,
which amended the Small Business Act to
create a requirement that a concern be
certified as a WOSB or EDWOSB by a Federal
agency, a State government, the Small
Business Administration (SBA), or a national
certifying entity approved by SBA, in order
to be awarded a set-aside or sole-source
contract under the authority of section 8(m)
of the Small Business Act. The legal basis for
this rule is 15 U.S.C. 637(m)(2)(E).
This rulemaking will impact
approximately 9,000–12,000 WOSBs. These
businesses will have to apply to be certified
as WOSBs or EDWOSBs to SBA or third-
party certifiers in order to be eligible to be
awarded any WOSB or EDWOSB set-aside
contracts or sole-source awards under the
WOSB program. However, SBA has
minimized the impact on WOSBs by
accepting certifications already conferred by
SBA.
Data taken from FPDS–NG as of September
20, 2020, revealed that 7,198 awards were
made to WOSB and EDWOSB contractors
between FY 2017–2019. Of the 7,198 awards
made, 553 or approximately 8% were WOSB
and EDWOSB sole-source awards.
A further breakdown reveals that during
FY 2017, a total of 3,150 awards were made
to WOSB and EDWOSB contractors, with
approximately 9 percent of these awards
being sole-sourced. Of the 3,150 awards
made, 244 were sole-sourced to WOSBs and
36 were sole-sourced to EDWOSBs.
During FY 2018, a total of 1,460 awards
were made to WOSB and EDWOSB
contractors, with approximately 17 percent of
these awards being sole-sourced. Of the 1,460
awards made, 207 were sole-sourced to
WOSBs and 42 were sole-sourced to
EDWOSBs.
During FY 2019, a total of 2,588 awards
were made to WOSB and EDWOSB, with
approximately 9 percent of these awards
being sole-sourced. Of the 2,588 awards
made, 204 were sole-sourced to WOSBs and
20 were sole-sourced to EDWOSBs.
The costs to WOSBs for certification
should be de minimis, because the required
documentation (articles of incorporation,
bylaws, stock ledgers or certificates, tax
records, etc.) already exists. In addition, this
information is already required to be
provided either to third-party certifiers,
governmental certifying entities, or to SBA
through certify.gov. SBA expects WOSBs to
see a reduction in burden because under the
prior WOSB Program Repository, SBA
determined that the average time required to
complete the process required by the WOSB
Program Repository was two hours, whereas
the use of the new certification program
requires only one hour due to technological
improvements.
This proposed rule does not include any
new reporting, recordkeeping, or other
compliance requirements for small entities.
The Small Business Administration
currently collects information to carry out its
statutory mandate to provide oversight of
certification related to SBA’s WOSB Federal
Contract Program. (OMB Control Number
3245–0374, Certification for the Women-
Owned Small Business Federal Contract
Program). Additionally, third-party certifiers
are required to provide SBA with quarterly
reports that include the number of
applications received, number of
applications approved and denied, and other
information that SBA determines may be
helpful for ensuring that third-party certifiers
are meeting their obligations or information
or data that may be useful for improving the
program.
The proposed rule does not duplicate,
overlap, or conflict with any other Federal
rules.
There are no known significant alternative
approaches that would accomplish the stated
objectives of the applicable statute.
Although this proposed rule may have a
positive impact on small businesses, we do
not expect it to have a significant economic
impact on a substantial number of small
entities.
The Regulatory Secretariat has
submitted a copy of the IRFA to the
Chief Counsel for Advocacy of the SBA.
A copy of the IRFA may be obtained
from the Regulatory Secretariat. DoD,
GSA, and NASA invite comments from
small business concerns and other
interested parties on the expected
impact of this rule on small entities.
DoD, GSA, and NASA will also
consider comments from small entities
concerning the existing regulations in
subparts affected by this rule in
accordance with 5 U.S.C. 610. Interested
parties must submit comments
separately and should cite 5 U.S.C. 610
(FAR case 2020–013) in
correspondence.
VIII. Paperwork Reduction Act
The proposed rule does not contain
any information collection requirements
that require the approval of the Office of
Management and Budget under the
Paperwork Reduction Act (44 U.S.C.
3501–3521).
List of Subjects in 48 CFR Parts 2, 19,
and 52
Government procurement.
William F. Clark,
Director, Office of Government-wide
Acquisition Policy, Office of Acquisition
Policy, Office of Government-wide Policy.
Therefore, DoD, GSA, and NASA
propose amending 48 CFR parts 2, 19,
and 52 as set forth below:
■1. The authority citation for 48 CFR
parts 2, 19, and 52 continues to read as
follows:
AUTHORITY
: 40 U.S.C. 121(c); 10 U.S.C.
chapter 137; and 51 U.S.C. 20113.
PART 2—DEFINITIONS OF WORDS
AND TERMS
■2. In section 2.101, in paragraph (b)(2)
amend the definition of ‘‘Women-
Owned Small Business (WOSB)
Program’’ by:
■a. In paragraph (1), remove the phrase
‘‘sole source’’ and add the phrase ‘‘sole-
source’’ in its place;
■b. In paragraph (2), remove the phrase
‘‘13 CFR part 127’’ and add the phrase
‘‘13 CFR part 127, and the concern is
certified by SBA or an approved third-
party certifier in accordance with 13
CFR 127.300’’ in its place; and
■c. In paragraph (3), remove the phrase
‘‘(13 CFR part 127)’’ and add the phrase
‘‘, and the concern is certified by SBA
or an approved third-party certifier in
accordance with 13 CFR 127.300’’ in its
place.
PART 19—SMALL BUSINESS
PROGRAMS
■3. Amend section 19.308 by:
■a. Removing from paragraph (d)(1)(ii)
‘‘women, when’’ and adding ‘‘women
who are United States citizens, when’’
in its place;
■b. Removing paragraph (d)(2);
■c. Redesignating paragraph (d)(3) as
(d)(2);
■d. Removing from the newly
designated paragraph (d)(2) ‘‘not a’’ and
adding ‘‘not an’’ in its place;
■e. Revising paragraph (f)(1);
■f. Revising paragraphs (i)(3)(iii) and
(i)(5)(iii);
■g. Removing from paragraph (1)(2)
‘‘409 Third Street SW, Washington, DC
20416, or facsimile 202–205–6390’’ and
adding ‘‘by email at wosbprotest@
sba.gov’’ in its place; and
■h. Removing from paragraph (1)(4)
‘‘facsimile 202–205–6873,’’.
The revisions read as follows:
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19.308 Protesting a firm’s status as an
economically disadvantaged women-owned
small business concern or women-owned
small business concern eligible under the
Women-Owned Small Business Program.
* * * * *
(f)(1) The contracting officer shall
forward all protests to SBA. The protests
are to be submitted to SBA’s Director for
Government Contracting by email at
wosbprotest@sba.gov.
* * * * *
(i) * * *
(3) * * *
(iii) SBA will remove the concern’s
designation in the Dynamic Small
Business Search (DSBS) as an EDWOSB
or WOSB concern eligible under the
WOSB Program. The concern shall not
submit an offer as an EDWOSB concern
or WOSB concern eligible under the
WOSB Program, until SBA issues a
decision that the ineligibility is
resolved.
* * * * *
(5) * * *
(iii) SBA will remove the concern’s
designation in DSBS as an EDWOSB or
WOSB concern eligible under the
WOSB Program. The concern shall not
submit an offer as an EDWOSB concern
or WOSB concern eligible under the
WOSB Program, until SBA issues a
decision that the ineligibility is resolved
or OHA finds the concern is eligible on
appeal.
* * * * *
■4. Amend section 19.1500 by revising
paragraph (c) to read as follows:
19.1500 General.
* * * * *
(c) An economically disadvantaged
women-owned small business
(EDWOSB) concern and a WOSB
concern eligible under the WOSB
Program are subcategories of ‘‘women-
owned small business concern’’ as
defined in section 2.101.
19.1501 [Removed and Reserved]
■5. Remove and reserve section
19.1501.
■6. 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 by the
Small Business Administration in
accordance with 13 CFR part 127.
(b) For a WOSB that seeks a WOSB or
EDWOSB set-aside or sole-source
contract, the contracting officer shall
verify that the offeror—
(1) Is registered in the System for
Award Management (SAM); and
(2) Is designated as a certified
EDWOSB or WOSB concern in the
Dynamic Small Business Search (DSBS)
at https://web.sba.gov/pro-net/search/
dsp_dsbs.cfm (see 19.1505(d) for set
aside procedures). DSBS will provide
SBA’s certification status to SAM.
(c) 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, or award
further task or delivery orders. Agencies
shall not count or include the award
toward the small business goals for an
EDWOSB concern or WOSB concern
eligible under the WOSB Program and
must update FPDS from the date of
award to reflect the final SBA decision.
(d) A joint venture may be considered
an EDWOSB concern or WOSB concern
eligible under the WOSB Program if the
EDWOSB or WOSB participant is
certified in DSBS (see section
19.1505(d) for set aside procedures) and
the joint venture meets the requirements
of 13 CFR 127.506.
■7. Amend section 19.1504 by revising
paragraph (b) to read as follows:
19.1504 Exclusions.
* * * * *
(b) Requirements that can be satisfied
through award to mandatory
Government sources (see section 8.002);
* * * * *
■8. Amend section 19.1505 by:
■a. Revising paragraph (a)(2);
■b. Redesignating paragraphs (f) and (g)
as paragraphs (h) and (i);
■c. Redesignating paragraph (d) as
paragraph (g);
■d. Adding paragraph (d);
■e. Revising paragraph (e);
■f. Adding paragraph (f); and
■g. Revising newly redesignated
paragraph (i) introductory text and
(i)(1).
The revisions read as follows:
19.1505 Set-aside procedures.
(a) * * *
(2)(i) May set aside acquisitions
exceeding the micro-purchase threshold
for competition restricted to EDWOSB
concerns when the acquisition is
assigned a NAICS code in which SBA
has determined that WOSB concerns are
underrepresented in Federal
procurement; or
(ii) May set aside acquisitions
exceeding the micro-purchase threshold
for competition restricted to WOSB
concerns eligible under the WOSB
Program when the acquisition is
assigned a NAICS code in which SBA
has determined that WOSB concerns are
substantially underrepresented in
Federal procurement, as specified on
SBA’s website at http://www.sba.gov/
WOSB.
* * * * *
(d) An offer is eligible for
consideration under an EDWOSB or
WOSB set-aside when the offeror—
(1) Qualifies as a small business
concern under the size standard
corresponding to the NAICS code
assigned to the contract, and
(2)(i) For an EDWOSB set-aside, is
certified pursuant to 13 CFR 127.300 as
an EDWOSB or has a pending
application for EDWOSB certification in
the DSBS (see 13 CFR 127.504(a)), or
(ii) For a WOSB set-aside, is certified
pursuant to 13 CFR 127.300 as an
EDWOSB or WOSB, or has a pending
application for EDWOSB or WOSB
certification in the DSBS (see 13 CFR
127.504(a)).
(e) The contracting officer shall verify
that offers received are eligible for
consideration for award by checking to
see if the EDWOSB or WOSB concern is
designated as a certified concern or has
a pending application for certification in
DSBS.
(1) If the offeror is designated as
certified or has a pending application
for certification, proceed with the offer
evaluation.
(2) Unless the offeror is designated as
certified or has a pending application
for certification, the offer is not eligible
for award and shall be removed from
consideration.
(f) Prior to award, the contracting
officer shall verify the apparently
successful offeror is certified in DSBS.
If the apparently successful offeror’s
EDWOSB or WOSB certification is
pending, the contracting officer shall
notify SBA’s Director/Government
Contracting by email at
WOSBpendingcertification@sba.gov,
and request SBA’s status determination.
The contracting officer shall provide
SBA with the offeror’s name, unique
entity identifier, type of set-aside,
NAICS code, and solicitation number.
(1) Within 15 calendar days from the
date of the contracting officer’s
notification, SBA will make a
determination regarding the offeror’s
status as an EDWOSB or WOSB eligible
under the WOSB program.
(2) If the contracting officer does not
receive a determination from SBA
within 15 calendar days, the contracting
officer at their discretion, may provide
SBA additional time to make a
determination, or may proceed with
award to the next highest evaluated
offeror.
(3) The contracting officer shall not
make award to an offeror who is not a
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certified EDWOSB or WOSB concern
eligible under the WOSB program.
* * * * *
(i) The SBA procurement center
representative (PCR) may recommend
use of the WOSB Program. If the
contracting officer rejects a
recommendation by SBA’s PCR—
(1) The contracting officer shall notify
the PCR as soon as practicable;
* * * * *
■9. Amend section 19.1506 by:
■a. Revising the section heading;
■b. In paragraphs (a) and (b) remove the
phrase ‘‘sole source’’ and add the phrase
‘‘sole-source’’ in its place;
■c. Redesignating paragraph (d) as
paragraph (e);
■d. Adding a new paragraph (d); and
■e. In newly redesignated paragraph
(e), remove the phrase ‘‘sole source’’ and
add the phrase ‘‘sole-source’’ in its
place.
The revisions and addition read as
follows:
19.1506 Women-Owned Small Business
Program sole-source awards.
* * * * *
(d) A contracting officer shall only
award a sole-source contract to a
concern that has been certified pursuant
to 13 CFR 127.300 as an EDWOSB or
WOSB eligible under the WOSB
program. Contracting officers shall not
request a status determination from SBA
on pending certification applications for
EDWOSB or WOSB sole-source awards.
* * * * *
PART 52—SOLICITATION PROVISIONS
AND CONTRACT CLAUSES
■10. Amend section 52.212–3 by:
■a. Revising the date of the provision;
■b. In paragraph (a), revise the
definition ‘‘Women-owned small
business (WOSB) concern eligible under
the WOSB Program’’; and
■c. Revising paragraphs (c)(6) and (7);
The revisions read as follows:
52.212–3 Offeror Representations and
Certifications—Commercial Items.
* * * * *
Offeror Representations and
Certifications—Commercial Items
(DATE)
* * * * *
(a) * * *
Women-owned small business
(WOSB) concern eligible under the
WOSB Program (in accordance with 13
CFR part 127), 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, and the concern is
certified by SBA or an approved third-
party certifier in accordance with 13
CFR 127.300.
* * * * *
(c) * * *
(6) WOSB joint venture eligible under
the WOSB Program. The offeror
represents that it b is, b is not a joint
venture that complies with the
requirements of 13 CFR part 127. [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: llll.]
(7) Economically disadvantaged
women-owned small business
(EDWOSB) joint venture. The offeror
represents that it b is, b is not a joint
venture that complies with the
requirements of 13 CFR part 127. [The
offeror shall enter the name or names of
the EDWOSB concern and other small
businesses that are participating in the
joint venture: llll.]
* * * * *
■11. Amend section 52.212–5 by:
■a. Revising the date of the clause;
■b. In paragraph (b), remove
‘‘[Contracting Officer check as
appropriate.]’’ and add ‘‘[Contracting
Officer check as appropriate.]’’ in its
place;
■c. In paragraph (b)(23), remove ‘‘(SEP
2021)’’ and add ‘‘(DATE)’’ in its place;
and
■d. In paragraph (b)(24), remove ‘‘(SEP
2021)’’ and add ‘‘(DATE)’’ in its place.
The revision reads 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
(DATE)
* * * * *
■12. Amend section 52.219–1 by:
■a. Revising the date of the provision;
■b. In paragraph (a), revise the
definitions ‘‘Economically
disadvantaged women-owned small
business (EDWOSB) concern’’ and
‘‘Women-owned small business (WOSB)
concern eligible under the WOSB
Program’’; and
■c. Revising paragraphs (c)(4) and (5).
The revisions read as follows:
52.219–1 Small Business Program
Representations.
* * * * *
Small Business Program
Representations (DATE)
(a) * * *
Economically disadvantaged women-
owned small business (EDWOSB)
concern 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 and who are
economically disadvantaged in
accordance with 13 CFR part 127, and
the concern is certified by SBA or an
approved third-party certifier in
accordance with 13 CFR 127.300. It
automatically qualifies as a women-
owned small business concern eligible
under the WOSB Program.
* * * * *
Women-owned small business
(WOSB) concern eligible under the
WOSB Program (in accordance with 13
CFR part 127) 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, and the concern is
certified by SBA or an approved third-
party certifier in accordance with 13
CFR 127.300.
* * * * *
(c) * * *
(4) Women-owned small business
(WOSB) joint venture concern eligible
under the WOSB Program. The offeror
represents as part of its offer that it b
is, b is not a joint venture that complies
with the requirements of 13 CFR part
127. [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: llll.]
(5) Economically disadvantaged
women-owned small business
(EDWOSB) joint venture. The offeror
represents as part of its offer that it b
is, b is not a joint venture that complies
with the requirements of 13 CFR part
127. [The offeror shall enter the name or
names of the EDWOSB concern and
other small businesses that are
participating in the joint venture:
llll.]
* * * * *
■13. Amend section 52.219–28 by
revising the date of the clause and
paragraphs (h)(4) and (5) to read as
follows:
52.219–28 Post-Award Small Business
Program Rerepresentation.
* * * * *
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Post-Award Small Business Program
Rerepresentation (DATE)
* * * * *
(h) * * *
(4) Women-owned small business
(WOSB) joint venture eligible under the
WOSB Program. The Contractor
represents that it b is, b is not a joint
venture that complies with the
requirements of 13 CFR part 127. [The
Contractor 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: llll.]
(5) Economically disadvantaged
women-owned small business
(EDWOSB) joint venture. The Contractor
represents that it b is, b is not a joint
venture that complies with the
requirements of 13 CFR part 127. [The
Contractor shall enter the name or
names of the EDWOSB concern and
other small businesses that are
participating in the joint venture:
llll.]
* * * * *
■14. Amend section 52.219–29 by:
■a. Revising the date of the clause;
■b. Revising paragraphs (a) and (c);
■d. In paragraph (d), remove ‘‘Joint
Venture’’ and add ‘‘Joint venture’’ in its
place.
The revisions read as follows:
52.219–29 Notice of Set-Aside for, or Sole-
Source Award to, Economically
Disadvantaged Women-Owned Small
Business Concerns.
* * * * *
Notice of Set-Aside for, or Sole-Source
Award to, Economically Disadvantaged
Women-Owned Small Business
Concerns (DATE)
(a) Definition. Economically
disadvantaged women-owned small
business (EDWOSB) concern, as used in
this clause, 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 and who are
economically disadvantaged in
accordance with 13 CFR part 127, and
is certified pursuant to 13 CFR 127.300
as an EDWOSB. It automatically
qualifies as a women-owned small
business (WOSB) concern eligible under
the WOSB Program.
* * * * *
(c) General. (1) For EDWOSB set-aside
procurements, offers are solicited only
from certified EDWOSB concerns or
EDWOSB concerns with a pending
certification application in the Dynamic
Small Business Search (DSBS).
(2) For EDWOSB sole-source awards,
offers are solicited only from certified
EDWOSB concerns.
(3) Offers received from other
concerns will not be considered.
(4) Any award resulting from this
solicitation will be made to a certified
EDWOSB concern.
* * * * *
■15. Amend section 52.219–30 by:
■a. Revising the date of the clause;
■b. Revising paragraphs (a) and (c);
■d. In paragraph (d), remove ‘‘Joint
Venture’’ and add ‘‘Joint venture’’ in its
place.
The revisions read as follows:
52.219–30 Notice of Set-Aside for, or Sole-
Source Award to, Women-Owned Small
Business Concerns Eligible Under the
Women-Owned Small Business Program.
* * * * *
Notice of Set-Aside for, or Sole-Source
Award to, Women-Owned Small
Business Concerns Eligible Under the
Women-Owned Small Business Program
(DATE)
(a) Definition. Women-owned small
business (WOSB) concern eligible under
the WOSB Program (in accordance with
13 CFR part 127), as used in this clause,
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, and the concern is
certified by SBA or an approved third-
party certifier in accordance with 13
CFR 127.300 as a WOSB. A certified
EDWOSB is automatically eligible as a
certified WOSB.
* * * * *
(c) General. (1) For WOSB set-aside
procurements, offers are solicited only
from certified WOSB concerns eligible
under the WOSB Program or WOSB
concerns with a pending certification
application status in the Dynamic Small
Business Search (DSBS).
(2) For WOSB sole-source awards,
offers are solicited only from certified
WOSB concerns.
(3) Offers received from other
concerns shall not be considered.
(4) Any award resulting from this
solicitation will be made to a certified
WOSB concern eligible under the
WOSB Program.
* * * * *
[FR Doc. 2021–21343 Filed 10–6–21; 8:45 am]
BILLING CODE 6820–EP–P
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS–R8–ES–2020–0017;
FF08E00000 FXES11110800000 212]
RIN 1018–BF94
Endangered and Threatened Wildlife
and Plants; Endangered Species
Status for Tiehm’s Buckwheat
AGENCY
: Fish and Wildlife Service,
Interior.
ACTION
: Proposed rule.
SUMMARY
: We, the U.S. Fish and
Wildlife Service (Service), propose to
list Eriogonum tiehmii (hereafter
Tiehm’s buckwheat), a plant species
native to Nevada in the United States,
as endangered under the Endangered
Species Act of 1973, as amended (Act).
If we finalize this rule as proposed, it
would add this species to the List of
Endangered and Threatened Plants and
extend the Act’s protections to the
species.
DATES
: We will accept any additional
data, information, or comments received
or postmarked on or before December 6,
2021. Comments submitted
electronically using the Federal
eRulemaking Portal (see
ADDRESSES
,
below) must be received by 11:59 p.m.
Eastern Time on the closing date. We
must receive requests for a public
hearing, in writing, at the address
shown in
FOR FURTHER INFORMATION
CONTACT
by November 22, 2021.
ADDRESSES
: You may submit comments
by one of the following methods:
(1) Electronically: Go to the Federal
eRulemaking Portal: https://
www.regulations.gov. In the Search box,
enter the docket number or RIN for this
rulemaking (presented above in the
document headings). For best results, do
not copy and paste either number;
instead, type the docket number or RIN
into the Search box using hyphens.
Then, click on the Search button. On the
resulting page, in the panel on the left
side of the screen, under the Document
Type heading, check the Proposed Rule
box to locate this document. You may
submit a comment by clicking on
‘‘Comment.’’
(2) By hard copy: Submit by U.S. mail
to: Public Comments Processing, Attn:
FWS–R8–ES–2020–0017, U.S. Fish and
Wildlife Service, MS: PRB/3W, 5275
Leesburg Pike, Falls Church, VA 22041–
3803.
We request that you send any
additional data, information, or
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