WOSB Regulations on the February Horizon

In October of 2010 the SBA issued amended regulations that may finally put into place the Women-Owned Small Business (WOSB) program established under Section 8(m) of the Small Business Reauthorization Act of 2000. Absent change, the Final Rule for this program will be effective February 4, 2011, and the SBA is in the process of working with the Federal Acquisition Regulatory Council to implement this program in the Federal Acquisition Regulations.

The assistance program is called the Women-Owned Small Business Federal Contract Assistance Procedure, or WOSBFAP, and is in 13 CFR Part 127. The program is self-certifying; however, there will also be an opportunity to certify through some third-party approved entities, including some Federal agencies. The program will provide contracting opportunities for Women-Owned Small Businesses, or WOSBs, and Ecumenically Disadvantaged Women-Owned Small Businesses, or EDWPSBs, under certain circumstances and in certain industries.

The NAICS codes have been extended and now include 84 industries as provided in Fed. Reg./Vol. 75 No. 194 (October 7, 2010). Also, the requirement that each Federal agency certify that it had engaged in discrimination against WOSBs in order for the program to apply to that agency has been removed, and thus expands the ability to use the program. Eligible concerns must be not less than 51 percent owned by one or more economically disadvantaged women, although the SBA may waive economic disadvantage for industries that are substantially underrepresented by WOSBs. In either instance, the women owner must actually control the WOSB (ownership does not always equal control, similar control questions applicable to other small business programs).

Contracting officers must have reasonable expectations that, in industries in which WOSBs are underrepresented, two or more EDWOSBs will submit offers for the contract or, in industries where WOSBs are substantially underrepresented, two or more WOSBs will submit offers for the contract. The anticipated award price of the contract must not exceed $5 million in the case of manufacturing contracts and $3 million in the case of all other contracts. Award prices must be estimated as being fair and reasonable before usage.

Competing concerns must be duly certified by a Federal agency, a State government, or a national certifying entity approved by SBA as an EDWOSB or WOSB, or must certify to the contracting officer and provide adequate documentation that it is an EDWOSB or WOSB. As with other similar programs, the statute imposes penalties status misrepresentation. In a statutorily mandated study, SBA determined the industries that have been identified as being industries in which EDWOSBs are underrepresented or substantially underrepresented or WOSBs are substantially underrepresented with respect to Federal procurement contracting.

Time will tell how this program progresses and is used, but for now it clearly looms on the very near horizon for next month.