[Federal Register Volume 77, Number 8 (Thursday, January 12, 2012)]
[Rules and Regulations]
[Pages 1857-1861]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-467]



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Rules and Regulations
                                                Federal Register
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Federal Register / Vol. 77, No. 8 / Thursday, January 12, 2012 / 
Rules and Regulations

[[Page 1857]]



SMALL BUSINESS ADMINISTRATION

13 CFR Parts 124, 125, 126, and 127

RIN 3245-AG34


Women-Owned Small Business Federal Contract Program

AGENCY: U.S. Small Business Administration.

ACTION: Interim final rule; request for comments.

-----------------------------------------------------------------------

SUMMARY: The U.S. Small Business Administration (SBA) is amending its 
regulations to make them consistent with the inflationary adjustments 
that are already codified in the Federal Acquisition Regulation (FAR) 
as they relate to the Women-Owned Small Business (WOSB) Program and the 
Simplified Acquisition Threshold. In addition, the SBA is amending its 
regulations pertaining to the WOSB Program protest procedures so that 
they are consistent with the protest procedures for SBA's other 
government contracting programs.

DATES: Effective Date: This rule is effective on January 12, 2012.
    Comment Date: Comments must be received on or before February 13, 
2012.

ADDRESSES: You may submit comments, identified by RIN 3245-AG06 by any 
of the following methods:
    <bullet> Federal Rulemaking Portal: http://www.regulations.gov and 
follow the instructions for submitting comments.
    <bullet> Mail, for paper, disk, or CD-ROM submissions: Dean Koppel, 
Assistant Director for Policy and Research, 409 Third Street SW., 
Washington, DC 20416.
    <bullet> Hand Delivery/Courier: Dean Koppel, Assistant Director for 
Policy and Research, 409 Third Street SW., Washington, DC 20416.
    SBA will post all comments on http://www.Regulations.gov. If you 
wish to submit confidential business information (CBI) as defined in 
the User Notice at http://www.Regulations.gov, please submit the 
information to Dean Koppel and highlight the information that you 
consider to be CBI and explain why you believe this information should 
be held confidential. SBA will review the information and make a final 
determination of whether the information will be published or not.

FOR FURTHER INFORMATION CONTACT: Dean Koppel, Assistant Director for 
Policy, and Research, at (202) 205-7322 or by email at 
<a href="/cdn-cgi/l/email-protection#157170747b3b7e7a65657079556677743b727a63"><span class="__cf_email__" data-cfemail="513534303f7f3a3e2121343d112233307f363e27">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION:

I. Background

    Section 811 of the Small Business Reauthorization Act of 2000, 
Public Law 106-554, added section 8(m) to the Small Business Act, 15 
U.S.C. 637(m), authorizing Federal contracting officers to restrict 
competition to eligible Women-Owned Small Businesses (WOSBs) or 
Economically Disadvantaged Women-Owned Small Business (EDWOSBs) for 
Federal contracts in certain industries. Section 8(m) of the Small 
Business Act (Act) sets forth certain criteria for the WOSB Program. 
Specifically, the Act provides the following requirements in order for 
a contracting officer to restrict competition for EDWOSBs or WOSBS 
under this program:
    <bullet> An eligible concern must be not less than 51 percent owned 
by one or more women who are ``economically disadvantaged'' (i.e. an 
EDWOSB). However, SBA may waive this requirement of economic 
disadvantage for procurements in industries in which WOSBs are 
``substantially underrepresented.''
    <bullet> A WOSB is a small business concern owned and controlled by 
women, as defined in section 3(n) of the Act. Section 3(n) of the Act 
defines a women owned business as one that is at least 51 percent owned 
by one or more women and the management and daily business operations 
of the concern is controlled by one or more women. 15 U.S.C. 632(n).
    <bullet> The contracting officer must have a reasonable expectation 
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 under represented, two or more WOSBs will 
submit offers for the contract.
    <bullet> 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.
    <bullet> In the estimation of the contracting officer, the contract 
can be awarded at a fair and reasonable price.
    <bullet> Each competing concern must be duly certified by a 
national certifying entity approved by SBA, as an EDWOSB or WOSB, or 
must self-certify to the contracting officer and provide adequate 
documentation that it is an EDWOSB or WOSB. The statute imposes 
penalties for a concern's misrepresentation of its status.
    <bullet> The contract must be for the procurement of goods or 
services with respect to an industry identified by SBA pursuant to a 
statutorily mandated study as one in which EDWOSBs are underrepresented 
or substantially underrepresented or WOSBs are substantially 
underrepresented with respect to Federal procurement.
Thus, the Small Business Act sets forth statutory thresholds of $5 
million and $3 million for contracts awarded under this program. 15 
U.S.C. 637(m)(2)(D). These thresholds have been in statute since 2000.
    Recently, the SBA implemented the WOSB program by publishing a 
final rule in the Federal Register on October 7, 2010, (75 FR 62258). 
That final rule sets forth the procedures for the WOSB Program and 
included the above-referenced statutory thresholds of $5 million and $3 
million.
    Subsequent to SBA's publication of the final rule in the Federal 
Register, the Federal Acquisition Regulatory (FAR) Council published an 
interim final rule in the Federal Register on April 1, 2011 (76 FR 
18304) that incorporated provisions of the WOSB Program into the FAR. 
The FAR Council is authorized by 41 U.S.C 431a to review all statutes 
with dollar based acquisition-related thresholds and adjust for 
inflation where appropriate. Accordingly, in this interim final rule, 
the FAR Council adjusted the statutory thresholds of $5 million and $3 
million for contracts awarded under the WOSB Program. The FAR Council 
amended the thresholds so that the anticipated award price of the 
contract awarded under the WOSB Program must not exceed $6.5 million in 
the case of manufacturing contracts and $4 million in the case of

[[Page 1858]]

all other contracts. Consequently, SBA is amending these thresholds in 
its regulations, as well.
    In addition, the WOSB Program final rule addresses application of 
the program for certain dollar value acquisitions. Specifically, in 
several sections of its regulations, SBA addresses contracting among 
the various SBA small business programs for acquisitions valued above 
and below the Simplified Acquisition Threshold. The FAR Council 
published a rule in the Federal Register on August 30, 2010, effective 
October 1, 2010, at 75 FR 53129, that has adjusted the Simplified 
Acquisition Threshold for inflation. The WOSB rule is not consistent 
with these changes. For example, the WOSB rule states that the 
Simplified Acquisition Threshold is $100,000, but the FAR has adjusted 
that threshold to $150,000. Consequently, SBA is amending these 
thresholds in its regulations, as well.
    SBA is also amending its protest procedures for the WOSB Program. 
The SBA published a final rule in the Federal Register on February 2, 
2011, at 76 FR 5680, amending its protest and appeal procedures for all 
of its government contracting programs (HUBZone, Service-Disabled 
Veteran-Owned (SDVO), and size programs). That final rule varies 
slightly from the protest procedures set forth in the WOSB Program 
final rule. Therefore, the SBA intends to amend the regulations so that 
all of its procurement program protest procedures are consistent.
    Further, SBA has noticed one error in the regulations that it would 
like to correct. Each of these amendments is discussed below.

II. Section-By-Section Analysis

    SBA is amending Sec. Sec.  124.503(j), 125.2(f), 125.19(b), 
126.607(b), 127.503(d), by deleting the prior Simplified Acquisition 
Thresholds and Micro-purchase Thresholds referenced and replacing those 
threshold values in all cases with the phrase ``Simplified Acquisition 
Threshold'' or ``Micro-purchase Threshold.'' Because these thresholds 
are subject to change for inflation and are commonly known in the 
procurement community, the SBA believes it would be best to simply 
refer to the terms.
    The SBA is also clarifying Sec.  127.301(a)(2), which addresses 
when a contracting officer may accept a business concern's self-
certification in the Online Representations and Certifications 
Application (ORCA). The regulation explains that a contracting officer 
may accept a concern's self certification in ORCA if the apparent 
successful offeror WOSB or EDWOSB has provided the required documents. 
The SBA is amending the regulation to clarify that the contracting 
officer can accept the self-certification if, in addition to providing 
the required documents, there has been no protest or other credible 
information that calls into question the concern's eligibility as an 
EDWOSB or WOSB. The SBA has received some inquiries about this issue 
and believes it would be best to clarify it in the regulations. If 
there is a protest or information that calls into question an apparent 
awardee's eligibility, the contracting officer should not be making an 
award to that business concern until its status has been verified.
    SBA is also amending Sec.  127.503(a)(2) and Sec.  127.503(b)(2) to 
revise the acquisition-related dollar thresholds the Federal agencies 
use for determining when the procuring activities can set aside a 
requirement for WOSBs or EDWOSBs. As discussed above, the FAR Council 
has adjusted these thresholds for inflation. The regulation now 
explains that the anticipated award price of the contract must not 
exceed $6.5 million in the case of manufacturing contracts and $4 
million in the case of all other contracts for a WOSB or EDWOSB set 
aside. With this amendment, the FAR and SBA's regulations will be 
consistent.
    SBA is also amending Sec.  127.503 by adding a new paragraph (f) to 
inform the users about the FAR Council's authority to make inflationary 
adjustments for the WOSB Program's competitive thresholds. This 
information is set forth in SBA's regulations for its other contracting 
programs (see e.g. 13 CFR 126.601(a)), and SBA believes it should be in 
the WOSB Program rule, as well.
    The SBA is also amending Sec.  127.604, which addresses WOSB and 
EDWOSB protest procedures. According to the current WOSB rule, a 
contracting officer may award a contract after receipt of a protest if 
he/she determines in writing that an award must be made to prevent 
significant harm to the public interest. However, the final protest 
rule SBA issued with respect to the other government contracting 
programs permits a contracting officer to proceed with an award after 
receipt of a protest if necessary to protect the public interest. The 
SBA has changed the WOSB Program rule to state the same for 
consistency.
    The SBA has also amended Sec.  127.604(a) to clarify that even if a 
contracting officer determines that award must be made to protect the 
public interest, then notwithstanding such a determination, the 
provisions of paragraph (f) of that section apply to the procurement in 
question. Paragraph (f) addresses the effect of a WOSB or EDWOSB status 
determination. Again, this clarification is to ensure that the WOSB 
protest regulations are consistent with SBA's final protest rule issued 
with respect to the other government contracting programs.
    In addition, the SBA is deleting the second and third sentences of 
current Sec.  127.604(d), which requires the contracting officer to 
contact SBA if SBA has not yet issued a status determination by the 15 
day deadline. The SBA's final rule on protests for its other government 
contracting programs did not have such a requirement, but rather 
explained that if SBA does not issue its determination within the 15 
day period, the contracting officer may award the contract if he or she 
determines in writing that there is an immediate need to award the 
contract and that waiting until SBA makes its determination will be 
disadvantageous to the Government. However, notwithstanding such a 
determination, the contracting officer must follow the procedures 
outlined regarding the effect of SBA's status determination. The SBA 
has amended the WOSB program protest procedures to be consistent with 
SBA's protest procedures for its other contracting programs.
    The SBA has also amended Sec.  127.604(f)(2)(i) to explain that if 
a contracting officer receives an SBA determination that the apparent 
successful WOSB or EDWOSB is not eligible after contract award, and no 
Office of Hearings and Appeals appeal has been filed, the contracting 
officer shall terminate the award. Again, this is consistent with SBA's 
protest procedures for its other contracting programs.
    Finally, the SBA is correcting an error in the third sentence of 
Sec.  127.604(c)(1), which addresses how SBA processes a WOSB or EDWOSB 
status protest. Specifically, SBA is replacing the requirement that the 
EDWOSB submit ``the two most recent personal income tax returns'' with 
``the three most recent personal income tax returns''. In Sec.  
127.402, the SBA discusses the documents to be collected for 
eligibility examinations and states that the agency requires the three 
most recent personal income tax returns. SBA intended to collect the 
three most recent personal income tax returns with respect to protests, 
as well, and so the two regulation sections need to be consistent.

III. Justification for Publication as an Interim Final Rule

    In general, SBA publishes a rule for public comment before issuing 
a final

[[Page 1859]]

rule in accordance with the Administrative Procedures Act (APA) and SBA 
regulations. 5 U.S.C. 553 and 13 CFR 101.108. The APA provides an 
exception to this standard rulemaking process where an agency finds 
good cause to adopt a rule without prior public participation. 5 U.S.C. 
553(b)(3)(B). The good cause requirement is satisfied when prior public 
participation is impracticable, unnecessary, or contrary to the public 
interest. Under such circumstances, an agency may publish an interim 
final rule without soliciting public comment.
    In the present case, the SBA notes that Public Law 108-375, 41 
U.S.C. 431a requires the FAR Council to take responsibility for 
adjusting each acquisition-related dollar threshold provided by law and 
publish a notice of the adjusted dollar thresholds in the Federal 
Register. These actions have been completed and a final rule with an 
immediate effective date was published in the Federal Register on April 
1, 2011, 76 FR 18304, which affects the WOSB Program. Another such 
action was taken and a final rule with an immediate effective date was 
published in the Federal Register on August 30, 2010 at 75 FR 53129, 
which affects the Simplified Acquisition Threshold. The WOSB Program 
final rule contained acquisition-related dollar thresholds subject to 
inflationary adjustments that are currently codified in the FAR. This 
interim final rule is amending SBA's regulations to acknowledge and 
implement the adjustments that are codified in the FAR. The SBA is not 
establishing new or differing acquisition-related dollar thresholds 
with this interim final rule. Rather, SBA is merely amending its 
regulations to conform to the FAR and advise the users of SBA's 
regulations of the inflationary adjustments to SBA's small business 
programs every five years. Immediate implementation of the interim 
final rule is needed to ensure a consistency between the SBA's 
regulations and the FAR for the acquisition-related dollar thresholds 
governing small business contracting opportunities. Consequently, SBA 
believes it is unnecessary to publish this rule as a proposed rule 
because it is beneficial to the public and acquisition communities that 
the regulations governing the SBA's small business programs are made 
consistent through implementing this rule promptly.
    Likewise, SBA believes it is important that the protest procedures 
for all of its government contracting programs be consistent. The rule 
governing the other programs was subject to public notice and comment; 
therefore, it would not be contrary to the public interest to proceed 
with these conforming changes to the WOSB protest procedures in an 
interim final rule. At this time, there have been only a few protests 
and no appeals such that amending these procedures will not affect many 
parties.
    Finally, we note that the public will still have the opportunity to 
offer comments on this, which will be reviewed by the SBA. Accordingly, 
SBA finds that good cause exists to publish this rule as an interim 
final rule as quickly as possible.

IV. Justification for Immediate Effective Date of Interim Final Rule

    The APA requires that ``publication or service of a substantive 
rule shall be made not less than 30 days before its effective date, 
except * * * as otherwise provided by the agency for good cause found 
and published with the rule.'' 5 U.S.C. 553(d)(3) SBA finds that good 
cause exists to make this final rule effective the same day it is 
published in the Federal Register.
    The purpose of the APA provision is to provide interested and 
affected members of the public sufficient time to adjust their behavior 
before the rule takes effect. For the reasons set forth above in 
Section III, ``Justification for Publication as Interim Final Rule,'' 
SBA finds that good cause exists for making this interim final rule 
effective immediately, instead of observing the 30-day period between 
publication and effective date. Nonetheless, the public may provide 
comments to SBA by the deadline for comments. SBA will review any 
comments received.

V. Compliance With Executive Orders 12866, 12988, and 13132, and 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 constitute a significant regulatory action under E.O. 12866. 
Accordingly, the next section contains SBA's Regulatory Impact 
Analysis. This is not a major rule, however, under the Congressional 
Review Act, 5 U.S.C. 800.

Regulatory Impact Analysis

1. Is there a need for the regulatory action?
    This regulatory action amends regulations that implement section 
8(m) of the Act, which was enacted as part of section 811 of the Small 
Business Reauthorization Act of 2000, Public Law 106-554. These 
amendments are necessary because without such amendments, the SBA's 
WOSB Program rules conflict with parts of the FAR and SBA's rules 
concerning protest procedures for its other government contract 
programs. Such conflict and inconsistency causes confusion to members 
of the procurement community, including small businesses.
2. What are the potential benefits and costs of this regulatory action?
    The benefits of this rule are that there will not be a conflict 
between the SBA's rules and the FAR rule, or other parts of SBA's 
rules. Such conflicts result in confusion amongst members of the 
contracting community and small businesses.
3. What are the alternatives to this final rule?
    The SBA considered as an alternative referencing the FAR 
acquisition thresholds in all cases, since those thresholds are subject 
to change every five years as a result of inflation, and that would 
mean SBA could need to amend its regulations every five years. However, 
the SBA believed that while it would be beneficial to reference the FAR 
Simplified Acquisition Thresholds and Micro-Purchase Thresholds, since 
those dollar values are commonly used, referred to and known in the 
acquisition community, the SBA did not believe it should reference the 
FAR with respect to the acquisition threshold relating to when a 
contracting officer may set aside a requirement for WOSBs or EDWOSBs. 
Those thresholds are new and not as well known, and should be 
specifically set forth in SBA's regulations, similar to how the 
thresholds for the 8(a), HUBZone and SDVO SBC programs are set forth in 
the SBA's regulations.

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, this final rule has no federalism implications 
warranting the preparation of a federalism assessment.

[[Page 1860]]

Paperwork Reduction Act

    For the purpose of the Paperwork Reduction Act, 44 U.S.C., Chapter 
35, SBA has determined that this rule does not impose additional 
reporting or recordkeeping requirements.

Regulatory Flexibility Act (RFA)

    Because this rule is an interim final rule, there is no requirement 
for SBA to prepare an Initial Regulatory Flexibility Act analysis. The 
RFA requires administrative agencies to consider the effect of their 
actions on small entities, small non-profit businesses, and small local 
governments. Pursuant to the RFA, when an agency issues a rule the 
agency must prepare analysis that describes whether the impact of the 
rule will have a significant economic impact on a substantial number of 
small entities. However, the RFA requires such analysis only where 
notice and comment rulemaking is required but as discussed above, SBA 
has determined that there is good cause to publish this rule without 
the need for public notice and comment.

List of Subjects in 13 CFR Parts 124, 125, 126, and 127

    Administrative practice and procedure, Government procurement, 
Government property, Grant programs--business, Loan programs--business, 
Individuals with disabilities, Reporting and recordkeeping 
requirements, Small businesses.

    For the reasons stated in the preamble, the Small Business 
Administration amends 13 CFR parts 124, 125, 126, and 127 as follows:

PART 124--8(a) BUSINESS DEVELOPMENT/SMALL DISADVANTAGED BUSINESS 
STATUS DETERMINATIONS

0
1. The authority citation for 13 CFR part 124 continues to read as 
follows:

    Authority: 15 U.S.C. 634(b)(6), 636(j), 637(a), 637(d) and Pub. 
L. 99-661, Pub. L. 100-656, sec. 1207, Pub. L. 101-37, Pub. L. 101-
574, section 8021, Pub. L. 108-87, and 42 U.S.C. 9815.


0
2. Amend Sec.  124.503 as follows:
0
a. Revise paragraph (j)(1); and
0
b. Revise the paragraph (j)(2) heading and the first sentence of 
paragraph (j)(2)(i).
    The revisions read as follows:


Sec.  124.503  How does SBA accept a procurement for award through the 
8(a) BD program?

* * * * *
    (j) * * *
    (1) Acquisitions Valued At or Below the Simplified Acquisition 
Threshold. The contracting officer shall set aside any acquisition with 
an anticipated dollar value exceeding the Micro-purchase Threshold but 
not exceeding the Simplified Acquisition Threshold (defined in the FAR 
at 48 CFR 2.101) for small business concerns when there is a reasonable 
expectation that offers will be obtained from at least two small 
business concerns that are competitive in terms of quality and delivery 
and award will be made at fair market prices. This requirement does not 
preclude a contracting officer from making an award to a small business 
under the 8(a) BD, HUBZone, SDVO SBC or WOSB Programs.
    (2) Acquisitions Valued Above the Simplified Acquisition Threshold. 
(i) The contracting officer shall set aside any acquisition with an 
anticipated dollar value exceeding the Simplified Acquisition Threshold 
(defined in the FAR at 48 CFR 2.101) for small business concerns when 
there is a reasonable expectation that offers will be obtained from at 
least two small business concerns that are competitive in terms of 
quality and delivery and award will be made at fair market prices. * * 
*
* * * * *

PART 125--GOVERNMENT CONTRACTING PROGRAMS

0
3. The authority citation for 13 CFR part 125 continues to read as 
follows:

    Authority:  15 U.S.C. 632(p), (q); 634(b)(6); 637; 644 and 657f.


0
4. Amend Sec.  125.2 as follows:
0
a. Revise paragraph (f)(1); and
0
b. Revise the paragraph (f)(2) heading and first sentence of paragraph 
(f)(2)(i).
    The revisions read as follows:


Sec.  125.2  Prime contracting assistance.

* * * * *
    (f) * * *
    (1) Acquisitions Valued At or Below the Simplified Acquisition 
Threshold. The contracting officer shall set aside any acquisition with 
an anticipated dollar value exceeding the Micro-purchase Threshold but 
not exceeding the Simplified Acquisition Threshold (defined in the FAR 
at 48 CFR 2.101) for small business concerns when there is a reasonable 
expectation that offers will be obtained from at least two small 
business concerns that are competitive in terms of quality and delivery 
and award will be made at fair market prices. This requirement does not 
preclude a contracting officer from making an award to a small business 
under the 8(a) BD, HUBZone, SDVO SBC or WOSB Programs.
    (2) Acquisitions Valued Above the Simplified Acquisition Threshold. 
(i) The contracting officer shall set aside any acquisition with an 
anticipated dollar value exceeding the Simplified Acquisition Threshold 
(defined in the FAR at 48 CFR 2.101) for small business concerns when 
there is a reasonable expectation that offers will be obtained from at 
least two small business concerns that are competitive in terms of 
quality and delivery and award will be made at fair market prices. * * 
*
* * * * *

0
5. Amend Sec.  125.19 by:
0
a. Revising paragraph (b)(1); and
0
b. Revising the paragraph (b)(2) heading and first sentence of 
paragraph (b)(2)(i).
    The revisions read as follows:


Sec.  125.19  When may a contracting officer set aside a procurement 
for SDVO SBCs?

* * * * *
    (b) * * *
    (1) Acquisitions Valued At or Below the Simplified Acquisition 
Threshold. The contracting officer shall set aside any acquisition with 
an anticipated dollar value exceeding the Micro-purchase Threshold but 
not exceeding the Simplified Acquisition Threshold (defined in the FAR 
at 48 CFR 2.101) for small business concerns when there is a reasonable 
expectation that offers will be obtained from at least two small 
business concerns that are competitive in terms of quality and delivery 
and award will be made at fair market prices. This requirement does not 
preclude a contracting officer from making an award to a small business 
under the 8(a) BD, HUBZone, SDVO SBC or WOSB Programs.
    (2) Acquisitions Valued Above the Simplified Acquisition Threshold. 
(i) The contracting officer shall set aside any acquisition with an 
anticipated dollar value exceeding the Simplified Acquisition Threshold 
(defined in the FAR at 48 CFR 2.101) for small business concerns when 
there is a reasonable expectation that offers will be obtained from at 
least two small business concerns that are competitive in terms of 
quality and delivery and award will be made at fair market prices. * * 
*
* * * * *

PART 126--HUBZONE PROGRAM

0
6. The authority citation for part 126 continues to read as follows:

    Authority:  15 U.S.C. 632(a), 632(j), 632(p) and 657a.

0
7. Amend Sec.  126.607 as follows:
0
a. Revise paragraph (b)(1); and
0
b. Revise the paragraph (b)(2) heading and first sentence of paragraph 
(b)(2)(i).
    The revsions read as follows:

[[Page 1861]]

Sec.  126.607  When must a contracting officer set aside a requirement 
for qualified HUBZone SBCs?

* * * * *
    (b) * * *
    (1) Acquisitions Valued At or Below the Simplified Acquisition 
Threshold. The contracting officer shall set aside any acquisition with 
an anticipated dollar value exceeding the Micro-purchase Threshold but 
not exceeding the Simplified Acquisition Threshold (defined in the FAR 
at 48 CFR 2.101) for small business concerns when there is a reasonable 
expectation that offers will be obtained from at least two small 
business concerns that are competitive in terms of quality and delivery 
and award will be made at fair market prices. This requirement does not 
preclude a contracting officer from making an award to a small business 
under the 8(a) BD, HUBZone, SDVO SBC or WOSB Programs.
    (2) Acquisitions Valued Above the Simplified Acquisition Threshold. 
(i) The contracting officer shall set aside any acquisition with an 
anticipated dollar value exceeding the Simplified Acquisition Threshold 
(defined in the FAR at 48 CFR 2.101) for small business concerns when 
there is a reasonable expectation that offers will be obtained from at 
least two small business concerns that are competitive in terms of 
quality and delivery and award will be made at fair market prices. * * 
*
* * * * *

PART 127--WOMEN-OWNED SMALL BUSINESS FEDERAL CONTRACT PROGRAM

0
8. The authority citation for part 127 continues to read as follows:

    Authority:  15 U.S.C. 632, 634(b)(6), 637(m), and 644.


0
9. Amend Sec.  127.301 by revising paragraph (a)(2) to read as follows:


Sec.  127.301  When may a contracting officer accept a concern's self-
certification?

    (a) * * *
    (2) Non-Third Party Certification. A contracting officer may accept 
a concern's self-certification in ORCA if the apparent successful 
offeror WOSB or EDWOSB has provided the required documents, which are 
set forth in Sec.  127.300(e), and there has been no protest or other 
credible information that calls into question the concern's eligibility 
as an EDWOSB or WOSB.
* * * * *
0
10. Amend Sec.  127.503 as follows:
0
a. In paragraph (a)(2), remove ``$5,000,000'' and add in its place 
``$6,500,000'' and remove ``$3,000,000'' and add in its place 
``$4,000,000'';
0
b. In paragraph (b)(2), remove `$5,000,000'' and add in its place 
``$6,500,000'' and remove ``$3,000,000'' and add in its place 
``$4,000,000'';
0
c. Revise paragraph (d)(1);
0
d. Revise the paragraph (d)(2) heading and the first sentence of 
paragraph (d)(2)(i); and
0
e. Add paragraph (f).
    The revisions and addition read as follows:


Sec.  127.503  When is a contracting officer authorized to restrict 
competition under this part?

* * * * *
    (d) * * *
    (1) Acquisitions Valued At or Below the Simplified Acquisition 
Threshold. The contracting officer shall set aside any acquisition with 
an anticipated dollar value exceeding the Micro-purchase Threshold but 
not exceeding the Simplified Acquisition Threshold (defined in the FAR 
at 48 CFR 2.101) for small business concerns when there is a reasonable 
expectation that offers will be obtained from at least two small 
business concerns that are competitive in terms of quality and delivery 
and award will be made at fair market prices. This requirement does not 
preclude a contracting officer from making an award to a small business 
under the 8(a) BD, HUBZone, SDVO SBC or WOSB Programs.
    (2) Acquisitions Valued Above the Simplified Acquisition Threshold. 
(i) The contracting officer shall set aside any acquisition with an 
anticipated dollar value exceeding the Simplified Acquisition Threshold 
(defined in the FAR at 48 CFR 2.101) for small business concerns when 
there is a reasonable expectation that offers will be obtained from at 
least two small business concerns that are competitive in terms of 
quality and delivery and award will be made at fair market prices. * * 
*
* * * * *
    (f) Acquisition-Related Dollar Thresholds. The Federal Acquisition 
Regulatory Council (FAR Council) has the responsibility of adjusting 
each acquisition-related dollar threshold on October 1, of each year 
that is evenly divisible by five. Acquisition-related dollar thresholds 
are defined as dollar thresholds that are specified in law as a factor 
in defining the scope of the applicability of a policy, procedure, 
requirement, or restriction provided in that law to the procurement of 
property or services by an executive agency as determined by the FAR 
Council. 41 U.S.C. 431a(c). Part 127, Women-Owned Small Business 
Federal Contract Program, contains acquisition-related dollar 
thresholds subject to inflationary adjustments. The FAR Council shall 
publish a notice of the adjusted dollar thresholds in the Federal 
Register. The adjusted dollar thresholds shall take effect on the date 
of publication.

0
11. Amend Sec.  127.604 as follows:
0
a. In paragraph (a), revise the second sentence and add a third 
sentence;
0
b. In the third sentence of paragraph (c)(1) remove the word ``two'' 
and add in its place the word ``three'';
0
c. Revise the second and third sentences of paragraph (d); and
0
d. Revise paragraph (f)(2)(i).
    The revsions and addition read as follows:


Sec.  127.604  How will SBA process an EDWOSB or WOSB status protest?

    (a) Notice of receipt of protest. * * * The contracting officer may 
award the contract after receipt of a protest if the contracting 
officer determines in writing that an award must be made to protect the 
public interest. Notwithstanding such a determination, the provisions 
of paragraph (f) of this section apply to the procurement in question.
* * * * *
    (d) Time period for determination. * * * If SBA does not issue its 
determination within the fifteen (15) business day period (or within 
any extension of that time the contracting officer has granted), the 
contracting officer may award the contract if he or she determines in 
writing that there is an immediate need to award the contract and that 
waiting until SBA makes its determination will be disadvantageous to 
the Government. Notwithstanding such a determination, the provisions of 
paragraph (f) of this section apply to the procurement in question. * * 
*
* * * * *
    (f) * * *
    (2) * * *
    (i) If a contracting officer receives such a determination after 
contract award, and no OHA appeal has been filed, the contracting 
officer shall terminate the award.
* * * * *

    Dated: October 10, 2011.
Karen G. Mills,
Administrator.
[FR Doc. 2012-467 Filed 1-11-12; 8:45 am]
BILLING CODE 8025-01-P


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