56940 Federal Register / Vol. 73, No. 191 / Wednesday, October 1, 2008 / Rules and Regulations 

§ 792.63 Collection of information from 

individuals: information forms. 

(a) The system manager for each 

system of records is responsible for 

reviewing all forms developed and used 

to collect information from or about 

individuals for incorporation into the 

system of records. 

(b) * * * 

(1) To ensure that no information 

concerning religion, political beliefs or 

activities, association memberships 

(other than those required for a 

professional license), or the exercise of 

other First Amendment rights is 

required to be disclosed unless such 

requirement of disclosure is expressly 

authorized by statute or by the 

individual about whom the record is 

maintained, or unless pertinent to and 

within the scope of any authorized law 

enforcement activity; 

* * * * * 

(4) To ensure that the form or 

accompanying statement clearly 

indicates to the individual the effects on 

him or her, if any, of refusing to provide 

some or all of the requested information; 

and 

* * * * * 

■ 24. In § 792.66, revise paragraphs (a) 

and (b)(2), add four new sentences to 

the end of paragraph (b)(3), and add four 

new sentences to the end of paragraph 

(b)(4) to read as follows: 

§ 792.66 Exemptions. 

(a) NCUA maintains several systems 

of records that are exempted from some 

provisions of the Privacy Act. The 

system number and name, description 

of records contained in the system, 

exempted provisions and reasons for 

exemption are as follows: 

(b) * * * 

(2) System NCUA–8, entitled, 

‘‘Investigative Reports Involving Any 

Crime or Suspicious Activity Against a 

Credit Union, NCUA,’’ consists of 

investigatory or enforcement records 

about individuals suspected of 

involvement in violations of laws or 

regulations, whether criminal or 

administrative. These records are 

maintained in an overall context of 

general investigative information 

concerning crimes against credit unions. 

To the extent that individually 

identifiable information is maintained 

for purposes of protecting the security of 

any investigations by appropriate law 

enforcement authorities and promoting 

the successful prosecution of all actual 

criminal activity, the records in this 

system are exempted, pursuant to 

section k(2) of the Privacy Act (5 U.S.C. 

552a (k)(2)), from sections (c)(3), (d), 

(e)(1), (e)(2), (e)(4)(G), (e)(4)(H), (f), and 

(g). The records in this system are also 

exempted pursuant to section (j)(2) of 

the Privacy Act, 5 U.S.C. 552a(j)(2), from 

sections (c)(3), (d), (e)(1), (e)(2), 

(e)(4)(G), (e)(4)(H), (f), and (g). Where 

possible, information that would 

identify a confidential source will be 

extracted or summarized in a manner 

that protects the source and the 

summary or extract will be provided to 

the requesting individual. 

(3) * * * NCUA need not make an 

accounting of previous disclosures of a 

record in this system of records 

available to its subject, and NCUA need 

not grant access to any records in this 

system of records by their subject. 

Further, whenever individuals request 

records about themselves and 

maintained in this system of records, 

the NCUA will advise the individuals 

only that no records available to them 

pursuant to the Privacy Act of 1974 

have been identified. However, if review 

of the record reveals that the 

information contained therein has been 

used or is being used to deny the 

individuals any right, privilege or 

benefit for which they are eligible or to 

which they would otherwise be entitled 

under federal law, the individuals will 

be advised of the existence of the 

information and will be provided the 

information, except to the extent 

disclosure would identify a confidential 

source. Where possible, information 

which would identify a confidential 

source will be extracted or summarized 

in a manner which protects the source 

and the summary or extract will be 

provided to the requesting individual. 

(4) * * * NCUA need not make an 

accounting of previous disclosures of a 

record in this system of records 

available to its subject, and NCUA need 

not grant access to any records in this 

system of records by their subject. 

Further, whenever individuals request 

records about themselves and 

maintained in this system of records, 

the NCUA will advise the individuals 

only that no records available to them 

pursuant to the Privacy Act of 1974 

have been identified. However, if review 

of the record reveals that the 

information contained therein has been 

used or is being used to deny the 

individuals any right, privilege or 

benefit for which they are eligible or to 

which they would otherwise be entitled 

under federal law, the individuals will 

be advised of the existence of the 

information and will be provided the 

information, except to the extent 

disclosure would identify a confidential 

source. Where possible, information that 

would identify a confidential source 

will be extracted or summarized in a 

manner which protects the source and 

the summary or extract will be provided 

to the requesting individual. 

* * * * * 

■ 25. In § 792.69, revise paragraph (a) to 

read as follows: 

§ 792.69 Training and employee standards 

of conduct with regard to privacy. 

(a) The Director of the Office of 

Human Resources, with advice from the 

Senior Privacy Act Officer, is 

responsible for training NCUA 

employees in the obligations imposed 

by the Privacy Act and this subpart. 

* * * * * 

[FR Doc. E8–23076 Filed 9–30–08; 8:45 am] 

BILLING CODE 7535–01–P 

SMALL BUSINESS ADMINISTRATION 

13 CFR Parts 121, 125, 127, and 134 

RIN 3245–AF40 

The Women-Owned Small Business 

Federal Contract Assistance 

Procedures 

AGENCY: Small Business Administration. 

ACTION: Final rule. 

SUMMARY: This final rule amends the 

U.S. Small Business Administration 

(SBA) regulations governing small 

business contracting programs to set 

forth procedures that will govern the 

new Women-Owned Small Business 

(WOSB) Federal Contract Assistance 

Procedures as authorized in the Small 

Business Act. 

DATES: Effective Date: This rule is 

effective October 31, 2008. 

Applicability Date: This final rule will 

be effective 30 days after publication. 

This final rule does not identify the 

industries in which WOSBs are 

underrepresented or substantially 

underrepresented in Federal 

procurement because SBA is awaiting 

comments on its proposed rule before 

concluding its eligibility 

determinations. SBA’s determination of 

the industries in which WOSBs are 

underrepresented or substantially 

underrepresented in Federal 

procurement will be effective not less 

than 30 days after its publication date. 

FOR FURTHER INFORMATION CONTACT: 

Linda Korbol, Assistant Administrator 

for Women’s Procurement, Office of 

Government Contracting, (202) 205– 

7341 or Linda.Korbol@sba.gov. 

SUPPLEMENTARY INFORMATION: On 

December 27, 2007, SBA proposed to 

amend its regulations in the Federal 

Register, 72 FR 73285, with a request for 

comments to implement the WOSB 

Federal Contract Assistance Procedures 


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Federal Register / Vol. 73, No. 191 / Wednesday, October 1, 2008 / Rules and Regulations 56941 

(Procedures). These Procedures are 

authorized under Section 811 of the 

Small Business Reauthorization Act of 

2000, Public Law 106–554, which is 

codified at Section 8(m) of the Small 

Business Act (Act), 15 U.S.C. 637(m). 

The proposed rule concerned 

procedures to increase Federal 

procurement opportunities for WOSBs. 

More specifically, the proposed rule 

contained provisions that would 

authorize contracting officers to restrict 

competition to eligible WOSBs for 

Federal contracts not exceeding $3 

million ($5 million for manufacturing) 

in those industries in which WOSBs are 

underrepresented or substantially 

underrepresented and in which the 

procuring agency has determined that 

the set-aside would satisfy 

constitutional requirements. The 

proposed rule also set forth the 

standards for determining the eligibility 

of a concern as a WOSB or EDWOSB 

and required any firm receiving a 

contract under these procedures to 

certify its status as a ‘‘small business 

concern owned and controlled by 

women’’ as defined in § 3(n) of the 

Small Business Act, 15 U.S.C. 632(n). In 

addition, the proposed rule identified 

the industries in which WOSBs were 

determined to be underrepresented and 

substantially underrepresented in 

Federal contracting. The proposed rule 

also established standards for eligibility 

examinations and protest procedures, as 

well as the penalties that can be 

imposed for a concern’s 

misrepresentation of its status as an 

EDWOSB or WOSB. Lastly, the rule 

proposed the relevant conforming 

amendments to SBA’s current 

procurement and appeal procedure 

regulations. 

Discussion of Comments on the 

Proposed Rule 

The comment period for the Proposed 

Rule closed on March 31, 2008. SBA 

received approximately 1,720 

comments. These comments are 

available to the public for viewing at 

http://www.regulations.gov. The large 

majority of comments were received 

from individuals. Of the 1,720 

comments, SBA received approximately 

1,610 comments from individuals, 

thirty-one comments from individuals 

using form letters from various 

associations or organizations, forty-five 

comments from associations or 

organizations, thirty-one comments 

from members of Congress, and three 

comments from other Federal agencies 

through the public comment process 

and posted online at 

www.regulations.gov. 

Of the 1,720 comments received, 

approximately twenty-seven of the 

comments were not applicable to the 

rule; four of the comments requested an 

extension of the public comment period; 

and 1,689 of the comments requested 

withdrawal of the proposed rule and/or 

stated opposition to some portion of the 

proposed rule. Of the comments that 

opposed the proposed rule, 1,591 

comments requested that the proposed 

rule be withdrawn; 828 comments 

stated that some aspect of the proposed 

rule frustrated Congressional intent; 173 

comments opposed the method by 

which the proposed rule requires a 

procuring agency to determine that the 

set-aside is consistent with 

constitutional standards; 104 comments 

were concerned with the methodology 

used by SBA to determine industries in 

which WOSBs were underrepresented 

or substantially underrepresented; 

thirty-six comments alleged that SBA 

and/or the Kauffman-RAND Institute for 

Entrepreneurship Public Policy (RAND) 

study applied the incorrect level of 

scrutiny to determine 

underrepresentation or otherwise 

addressed Constitutional concerns; 

seven comments addressed SBA’s use of 

the value of contract dollars to 

determine underrepresentation; and 

four comments opposed the proposed 

self-certification process. 

Extension of the Public Comment 

Period 

The SBA received several comments 

that requested an extension of the 

public comment period. In response to 

these comments and the general high 

level of interest that the proposed rule 

generated during the public comment 

period, SBA agreed with the 

recommendation in these comments and 

therefore reopened the comment period 

for an additional 30 days in order to 

allow the public more time to submit 

comments on the proposed rule. See 73 

FR 10697. As a result, the comment 

period closed on March 31, 2008 and 

SBA received approximately 1,720 

comments. 

General Comments on Implementation 

of the Procedures 

Of the comments that opposed the 

proposed rule, over 700 requested that 

SBA withdraw the proposed rule but 

did not provide a substantive reason 

why SBA should take such action. 

Accordingly, and for the reasons below, 

SBA will continue with this final rule 

setting forth the contracting procedures 

for WOSBs. In addition, SBA points out 

that Congress authorized the contracting 

assistance procedures for WOSBs 

contained in the final rule as a result of 

the Federal government’s inability to 

reach the government-wide WOSB 

contracting goal of 5% of the value of 

all contract awards. Congress enacted 

Section 8(m) to authorize creation of a 

targeted procurement mechanism for 

WOSBs and it charged SBA with the 

responsibility for establishing and 

implementing the governing standards 

and regulations for these Procedures. 

The Procedures in the final rule will not 

only benefit WOSBs, but should help 

Federal agencies achieve their WOSB 

participation goals under Section 15(g) 

of the Small Business Act, 15 U.S.C. 

644(g). For all of these reasons, SBA will 

not withdraw the proposed rule, but 

instead has decided to move forward 

with this final rule based on the 

authority in Section 8(m). 

Eligible Industries in Which WOSBs 

Are Underrepresented or Substantially 

Underrepresented 

The SBA received approximately 104 

comments expressing concern that the 

proposed rule limited WOSB eligibility 

for restricted-competition contracts to 

only four industry sectors. These 

comments stated that SBA should have 

used a broader methodology in the 

RAND study to identify the industries in 

which WOSBs are underrepresented or 

substantially underrepresented. The 

comments also state that SBA, without 

substantive justification, declined to 

adopt the approach in the RAND study 

that would have classified 87% of 

industries as underrepresented, and 

instead promulgated a rule based on the 

most restrictive approach proposed by 

the report. In addition, SBA received 

comments stating that it was the intent 

of Congress to increase federal contracts 

going to WOSBs and that the proposed 

rule will not accomplish increased 

participation by WOSBs. Lastly, SBA 

received a comment stating that the 

RAND report and therefore the proposed 

rule based its conclusions on the 

erroneous assumptions that the past 

contract opportunities analyzed by the 

RAND study are and will remain 

constant across all of the potentially 

affected industries. 

In response to these comments, SBA 

notes that Section 8(m) requires SBA to 

conduct a study to identify the 

industries in which WOSBs are 

underrepresented and substantially 

underrepresented in Federal 

procurement. SBA initially completed 

the legislatively mandated study in 

September 2001. However, in March 

2005, the National Academy of Sciences 

(NAS) issued an independent evaluation 

determining that SBA’s original study 

was ‘‘fatally flawed.’’ In response to the 

NAS findings, SBA issued a solicitation 


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in October 2005 seeking a contractor to 

perform a revised study in accordance 

with the NAS report. In February 2006, 

SBA awarded a contract to RAND to 

complete a revised study of the 

underrepresentation of WOSBs in 

Federal procurement in accordance with 

the NAS findings. The RAND report was 

published in April 2007. The report, 

along with the supporting back-up 

datasets used to identify 

underrepresentation, are available to the 

public at http://www.rand.org/pubs/ 

technical_reports/TR442/. 

The RAND study outlines twentyeight different approaches for measuring 

the underrepresentation of WOSBs by 

using a disparity ratio. Each approach 

uses a different data source or a 

different version of the same data 

source, and each of the data sources was 

recommended by the NAS findings. 

Depending on the approach used, the 

RAND study yielded different levels of 

WOSB representation in Federal 

procurement. For the reasons set forth 

in the proposed rule, SBA eliminated 

various non-justifiable approaches and 

selected the approach that it believed 

most appropriately conformed to the 

applicable statutory requirements, most 

accurately reflected the measure 

employed, and was legally justifiable. 

The selected approach compared the 

percentage of Federal contract dollars 

going to WOSBs to the percentage of 

total revenue from all sources going to 

WOSBs in 4-digit NAICS codes 

(‘‘disparity ratio’’). Using this approach, 

SBA issued a proposed rule that 

identified four industries in which 

WOSBs were underrepresented or 

substantially underrepresented. The 

comments that SBA received were 

opposed to the determination that 

WOSBs were eligible for contracts in 

only four industries. 

Although SBA did not receive any 

comments on the reliability of the data 

sources used for the selected approach, 

as indicated above, SBA did receive a 

large number of comments opposing the 

selected approach. As a result, SBA 

engaged in a further review and 

examination of the RAND study, 

including the data sources and in 

particular the CCR data set, which was 

relied upon to arrive at the four 

industries in which WOSBs were found 

to be underrepresented and 

substantially underrepresented. As a 

result of this further examination, SBA 

has now identified a limitation inherent 

in the CCR data set. Specifically, when 

RAND computed the disparity ratio to 

determine underrepresentation, each 

firm’s total revenue was counted in 

every NAICS code associated with the 

firm. This has resulted in firms’ total 

revenue being counted for multiple 

NAICS codes, overstating the aggregate 

revenue figures. Although the CCR data 

set was publicly available along with 

the RAND report at http:// 

www.rand.org/pubs/technical_reports/ 

TR442/, this CCR data set limitation was 

not specifically disclosed in the RAND 

study or to the public in the proposed 

rule. 

Therefore, concurrently with the 

issuance of this final rule, SBA is 

issuing a Proposed Rule; Request for 

Comment that seeks input from the 

public on what effect, if any, the CCR 

data has on the disparity ratio, and 

ultimately, the determination that 

WOSBs are underrepresented or 

substantially underrepresented in the 

various industries. This CCR data 

limitation is fully explained in the 

Proposed Rule; Request for Comment. 

The Proposed Rule; Request for 

Comment also seeks comment on an 

alternative data set not analyzed by 

RAND or included in the proposed rule. 

In light of the foregoing, this final rule 

does not identify the industries in 

which WOSBs are underrepresented or 

substantially underrepresented in 

Federal procurement. Therefore, SBA 

has determined that it is premature to 

address the public comments opposing 

SBA’s identification of the eligible 

industries. Once SBA has received and 

evaluated the public’s comments on the 

data limitation in response to the 

Proposed Rule; Request for Comments, 

SBA will publish a Notice in the 

Federal Register that contains the 

rationale for its final determination and 

a list of eligible industries. SBA will 

also post on its Internet Web site a list 

of 4-digit NAICS Industry Subsector 

industries it designates under 

§ 127.501(a). 

Use of Dollars as the Measure of WOSB 

Underrepresentation 

As indicated above, SBA determined 

that the most justifiable approach to 

determining WOSB representation 

compared the percentage of contract 

dollars going to WOSBs to the 

percentage of revenue dollars going to 

WOSBs. SBA received several 

comments on the decision to use 

contract dollars as the measure of 

underrepresentation. These comments 

stated that the use of the number of 

contracts as the measure of 

underrepresentation will more likely 

help to achieve the 5% goal and is 

therefore consistent with Congressional 

intent. 

SBA disagrees with these comments 

and believes that the use of contract 

dollars as the measure is more 

consistent with the relevant statutory 

requirements and Congressional intent. 

When considering whether to use the 

dollar value of contract awards or the 

number of contract awards as the 

measure of underrepresentation, SBA 

evaluated the benefits and limitations of 

either choice. As indicated in the 

proposed rule, after careful analysis, 

SBA decided to adopt an approach 

consistent with statutory measures, 

which use dollars. Most importantly, 

Congress, through the Small Business 

Act, has given relevant direction only in 

dollars. Section 15(g)(1) is the section in 

the Act that provides direction on 

counting small business goals. All of 

those goals are aimed at achieving a 

dollar amount (total value) relative to all 

dollars expended in Federal 

procurement. In particular, the goal for 

small business concerns owned and 

controlled by women states that: ‘‘The 

Government-wide goal for participation 

by small business concerns owned and 

controlled by women shall be 

established at not less than 5 percent of 

the total value of all prime contract and 

subcontract awards for each fiscal year.’’ 

15 U.S.C. 644(g)(1) (emphasis added). 

Congress authorized the contracting 

assistance procedures in Section 8(m) to 

assist Federal agencies in achieving this 

goal. 

In addition, Congress appropriates 

Federal funding in dollars, the Federal 

budget is divided in dollars, all Federal 

government contracts are awarded in 

dollars, and the accounting and auditing 

processes focus on how these dollars are 

spent. Dollar amounts can easily be 

compared across agencies, programs and 

NAICS codes. Tracking dollar amounts 

also avoids problems that arise from the 

contracting nuances of the individual 

agencies. Contract actions do not allow 

for an accurate accounting of the 

financial benefits and business 

development that occur when small 

businesses receive a Federal contract. 

Based on the above, a measure that 

determines underrepresentation based 

on the number of contract awards going 

to WOSBs would not align with the 

purpose behind Congress’s passage of 

the Section 8(m) legislation or with the 

other Congressional measures. On the 

other hand, a measure based on contract 

dollars is consistent with the 5% goal, 

which is also based on contract dollars, 

and therefore conforms more closely to 

the Congressional intent and purpose of 

Section 8(m). Based on this 

determination, the proposed rule 

defined ‘‘substantial 

underrepresentation’’ and 

‘‘underrepresentation’’ as a ratio 

representing the WOSB share of Federal 

prime contract dollars divided by the 

WOSB share of total business receipts. 


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For the reasons stated above, the final 

rule adopts the definitions of 

underrepresentation and substantial 

underrepresentation without 

modification. 

Agency-by-Agency Determination 

Commenters also voiced concerns 

over the requirement in proposed 

§ 127.501(b) that the procuring agency 

conduct its own, additional analysis of 

its procurement history, and make a 

determination whether the agency itself 

had discriminated against WOSBs in the 

relevant industry. The comments state 

that this requirement frustrates 

Congressional intent by applying a 

strict-scrutiny standard when genderbased preferences need only satisfy the 

standard of intermediate scrutiny. The 

comments also state that the disparity 

study analysis conducted by RAND is 

sufficient to satisfy the intermediate 

scrutiny standard and that the agency 

determination of discrimination 

requirement has no basis in law. The 

comments further state that the 

requirement would unduly limit the 

industries in which WOSBs were 

underrepresented or substantially 

underrepresented. Lastly, the comments 

state that this requirement would 

substantially burden the procuring 

agencies and that the procuring agencies 

will avoid set-asides to avoid selfincrimination and litigation. 

As reflected in both the proposed rule 

and in this final rule, SBA agrees that 

the intermediate scrutiny standard 

applies to gender-based set-asides. The 

equal protection requirements of the 

Fifth Amendment prohibit Federal 

agencies from discriminating on the 

basis of sex in awarding contracts unless 

the preference furthers important 

governmental objectives and the means 

employed are substantially related to 

the achievement of those objectives. See 

United States v. Virginia, 518 U.S. 515, 

533 (1996). This standard, which 

requires an ‘‘exceedingly persuasive 

justification,’’ id., is commonly referred 

to as ‘‘intermediate scrutiny’’ and 

sometimes as ‘‘heightened scrutiny.’’ 

See id. at 555. The RAND study and the 

final rule acknowledge the application 

of the intermediate scrutiny standard to 

gender-based preferences. 

In applying this standard, Federal 

courts have generally required that the 

government establish probative 

evidence of discrimination in the 

relevant economic sphere in order to 

justify sex-based contracting 

preferences. See, e.g., Engineering 

Contractors Ass’n of South Florida v. 

Metropolitan Dade County, 122 F.3d 

895, 910 (11th Cir. 1998); Contractors 

Ass’n of Eastern Penna. v. City of 

Philadelphia, 6 F.3d 990, 1010–11 (3d 

Cir. 1993); Hershell Gill Consulting 

Engineers, Inc. v. Miami-Dade County, 

333 F.Supp.2d 1305, 1317 (S.D. Fla. 

2004). Based on the Federal Court 

precedents, the U.S. Department of 

Justice has advised SBA that before a 

contracting officer may restrict 

competition to WOSBs under section 

8(m), it must be determined through 

appropriate analysis (which analysis 

may include examination of the 

concerned agency’s procurement 

history) that the set-aside will be 

consistent with the foregoing 

constitutional standards. In particular, it 

must be determined whether the setaside is substantially related to 

remedying sex discrimination in the 

affected industry. For the foregoing 

reasons, SBA cannot agree with the 

comments that section 127.501(b) of the 

proposed rule has no basis in the law 

and is inconsistent with intermediate 

scrutiny. As the cases above illustrate, 

intermediate scrutiny has been held to 

require evidence of discrimination in 

the relevant economic sphere in order to 

justify gender-based set asides in that 

sphere. The standard in section 

127.501(b) is fully consistent with this 

judicially recognized discrimination 

requirement, and in fact represents one 

of the soundest, most reliable means of 

ensuring compliance with it. In 

addition, because the RAND study 

correctly acknowledges that the 

unrefined disparity ratios it found are 

not in and of themselves measures of 

discrimination, SBA disagrees with the 

comments that contend the RAND study 

alone is sufficient to satisfy the 

intermediate scrutiny. 

As to the comments that the 

requirement of agency-specific findings 

of discrimination would be too 

burdensome for agencies, the SBA 

believes that individual contracting 

agencies are in a better position than the 

SBA to evaluate the connection between 

disparity and discrimination in certain 

contracting sectors because SBA does 

not have access to details of 

procurement history within other 

agencies. Accordingly, although 

requiring contracting agencies to 

identify evidence of discrimination in 

relevant contracting spheres would no 

doubt impose some burden, this 

allocation is less costly and burdensome 

than having SBA try to make 

discrimination findings based upon 

private sector or agency procurement 

data to which the agency does not have 

access. Furthermore, these additional 

agency findings will further augment 

the data upon which the RAND study is 

based and, in this way, more than 

compensate for any burden the 

procuring authorities might encounter. 

The SBA further disagrees with the 

concern that an agency finding of 

discrimination could be perceived as an 

admission of unlawful conduct. An 

agency-specific finding of past 

discrimination would not necessarily 

constitute an admission of liability for 

past unlawful conduct because courts 

have noted that agency discrimination 

may in some instances result from an 

agency’s passive participation in a 

discriminatory market. 

For the foregoing reasons, the final 

rule adopts § 127.501 without any 

change. 

Substantially Underrepresented 

Industries 

SBA received at least one comment 

that was concerned with SBA’s 

statement in the proposed rule that the 

provisions of Section 8(m) appear 

literally to authorize set-asides for 

Federal contracts only in industries in 

which WOSBs are determined to be 

substantially underrepresented. See 15 

U.S.C. 637(m)(2)(C), (3). The comment 

states that this provision is unclear and 

conflicting, resulting in a disingenuous 

partial implementation of the statute 

that is not aligned with Congressional 

intent. The comment recommends SBA 

to recognize that, in industries where 

women are substantially 

underrepresented, the requirement of 

being economically and socially 

disadvantaged should not apply at all 

because of the disparity between 

utilization and availability. 

As SBA accurately stated in the 

proposed rule, due to an apparent 

drafting error in the cross-reference and 

the inter-relationships between 

subparagraphs (2)(C), (3) and (4) of 15 

U.S.C. 637(m), subparagraph (2)(C)—by 

its express cross-reference to 

subparagraph (3) rather than to 

subparagraph (4)—literally appears to 

authorize set-asides for Federal 

contracts only in industries in which 

WOSBs are determined to be 

substantially underrepresented. 

However, if the statute were construed 

by SBA not to authorize set-asides in 

industries in which WOSBs were 

merely underrepresented, the provision 

in the statute requiring SBA to conduct 

a study to determine industries in 

which WOSBs are underrepresented, as 

well as the section’s waiver provision, 

would arguably be rendered inoperative 

or contradictory. 

Accordingly, based on the above 

reasoning, and as already stated in the 

proposed rule, SBA believes that the 

legislation is properly interpreted to 

authorize set-asides industries in which 


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WOSBs are determined to be 

underrepresented or substantially 

underrepresented. 

Effect of Status Protest 

SBA received two comments 

regarding the proposed protest 

procedures in § 127.600, et seq. These 

comments were concerned that the 

proposed rule did not address what 

would happen to a pending or already 

issued WOSB contract award when a 

status protest was filed with the 

contracting officer. 

SBA agrees that proposed § 127.604 

fails to provide any direction to 

contracting officers as to whether they 

are required to suspend the contract 

award or performance on the award 

until the status protest has been 

resolved. Therefore, SBA has amended 

§ 127.604(f) to allow a contracting 

officer to award a contract or begin 

performance after receipt of a protest, 

but only if the contracting officer has 

determined that the award must be 

made to protect the public interest. The 

proposed rule’s preamble did give some 

guidance for this decision, stating 

generally that a status protest ‘‘halts the 

procurement until SBA investigates the 

allegations and reaches a decision.’’ For 

the foregoing reasons, the following 

provision to § 127.604(d) will be added: 

The contracting officer may award the 

contract or begin performance after 

receipt of a protest if the contracting 

officer determines in writing that an 

award must be made to protect the 

public interest. 

Self-Certification Process 

SBA received several comments on 

the self-certification process. These 

comments criticize SBA for creating a 

new certification process for these 

Procedures by requiring WOSBs to selfcertify. The comments urge SBA to 

instead accept WOSB certifications from 

other organizations as the sole method 

for certification. In addition, a comment 

recommended that the certification 

rules be rewritten to prevent large 

corporate influence over the 

certification process. This comment fails 

to include any suggestion on how the 

recommendation can be accomplished. 

SBA believes that the self-certification 

process set forth in this final rule is 

consistent with the statutory framework 

of Section 8(m) and with prevailing 

Supreme Court precedent. Section 

127.300 requires WOSBs to be registered 

in the Central Contractor Registration 

(CCR) and have a current selfcertification posted on Online 

Representations and Certifications 

Application (ORCA) that it qualifies as 

an EDWOSB or WOSB. Specifically, 

§ 127.300 provides that at the time a 

concern submits an offer on a specific 

contract reserved for competition under 

these procedures, it must be registered 

in the CCR and have a current selfcertification posted on the ORCA 

affirming that it qualifies as an 

EDWOSB or WOSB. That section further 

details the specific representations that 

concerns must include as part of their 

self-certification, including that: (1) The 

firm is a small business concern under 

the size standard assigned to the 

particular procurement; (2) it is at least 

51 percent owned and controlled by one 

or more women who are United States 

citizens or it is at least 51 percent 

owned and controlled by one or more 

women who are United States citizens 

and are economically disadvantaged; 

and (3) neither SBA nor an SBAapproved certifier has determined that 

the concern does not currently qualify 

as an EDWOSB or WOSB. 

Because ORCA is the Federal 

Government’s generally accepted 

representations and certifications 

process that concerns currently utilize 

to self-certify other forms of small 

business status in Federal 

procurements, using that system for the 

WOSB self-certification process for 

Federal procurement would be the 

logical choice and would minimize 

interference with the procurement 

process and the burden on contracting 

officers and WOSBs. In addition, 

because certifying entities may not all 

use the same eligibility criteria 

applicable to EDWOSBs and WOSBs as 

provided under this rule, SBA does not 

intend automatically to accept 

additional third-party certifications for 

purposes of these Procedures. Rather, 

once SBA has determined that a certifier 

uses the same criteria and follows 

appropriate procedures and standards, 

SBA may designate that entity as an 

approved certifier. The SBA will 

maintain a list of all approved certifiers 

on its Web site. 

SBA also believes the self-certification 

process in this rule will minimize 

delays and disruption to the contracting 

process by utilizing the existing system 

of representations and certifications in 

Federal procurement and by not 

requiring contracting officers to review 

voluminous documents supporting a 

concern’s self-certification. It also puts a 

minimum burden on the EDWOSB and 

WOSB desiring to do business with the 

Federal government. At the same time, 

the self-certification in the CCR and 

ORCA will help minimize the 

likelihood of fraud and 

misrepresentation of WOSB and 

EDWOSB status through the use of 

robust protest procedures coupled with 

the provisions for appropriate 

examinations to monitor the eligibility 

of firms that self-certify their status and 

existing fraud statutes and procedures. 

These procedures are also consistent 

with other contracting preferences 

procedures. 

Other SBA Contracting Preferences 

SBA received one comment stating 

that the proposed rule wrongly creates 

procedures that must compete with 

other set-aside incentives, such as the 

8(a) Business Development Program, for 

the attention of agency contracting 

officers. 

In response to this comment, SBA 

assumes that the commenter was 

referring to § 127.503(c) of the proposed 

rule, which made clear that a 

contracting officer may not restrict 

competition to eligible EDWOSBs or 

WOSBs if an 8(a) BD Participant is 

currently performing the requirement 

under the 8(a) BD Program or SBA has 

accepted the requirement for 

performance under the authority of the 

8(a) BD Program, unless SBA consented 

to release the requirement from the 8(a) 

BD Program. Because this limitation on 

the restriction of competition serves to 

reconcile the goal requirements of 15 

U.S.C. 644(g) with the requirements of 

section 8(m), it is authorized by the 

Administrator’s general authority to 

’’make such rules and regulations as he 

deems necessary to carry out the 

authority vested in him by or pursuant 

to this chapter.’’ 15 U.S.C. 634(b)(6). 

This final rule does not create an order 

of preference among SBA’s contracting 

programs and is intended to be 

consistent with SBA’s policy of parity 

among its contracting programs. 

In addition, SBA notes that the 

Federal government spends billions of 

dollars each year in Federal 

procurement. Lastly, § 127.502 is 

necessary to ensure the integrity of the 

business development aspects of the 

8(a) BD Program. Generally, the 

requirement will be retained for 8(a) 

participation, but may be released by 

SBA as indicated in the regulation. 

Thus, SBA has not amended the final 

rule to adopt this comment. 

Compliance With Executive Orders 

12866, 12988, and 13132, the 

Paperwork Reduction Act (44 U.S.C. 

Ch. 35), and the Regulatory Flexibility 

Act (5 U.S.C. 601–612) Executive Order 

12866 

Regulatory Impact Analysis 

The Office of Management and Budget 

(OMB) has determined that this rule 

constitutes a ‘‘significant regulatory 

action’’ under Executive Order 12866, 


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thereby necessitating a regulatory 

impact analysis. OMB has also 

determined that this rule is not a major 

rule as defined by the Congressional 

Review Act. 

The SBA received one comment on 

the regulatory impact analysis. That 

comment questioned SBA’s rationale 

that the Procedures will result in 

increased costs to the taxpayer. The 

comment cites a Department of Defense 

study which showed that price 

preference did not increase costs in 

contracts won by small disadvantaged 

businesses. 

Although SBA did state in its 

regulatory impact analysis that the rule 

directs benefits to EDWOSBs and 

WOSBs at some cost to the taxpayer 

through restrictions on competition, the 

SBA also noted that, generally, the cost 

of transferring a contract from one 

business to another has minimal cost to 

society as a whole. In addition, the 

analysis stated that the loss of efficiency 

through restrictions in contracting has 

broader impacts that depend highly on 

the use of these Procedures by 

contracting officers and the availability 

of competition among EDWOSBs and 

WOSBs. SBA further analyzed that the 

most significant effect of this rule will 

be the transfer of contract dollars to 

EDWOSBs and WOSBs through the 

contracting officers’ ability to restrict 

competition to EDWOSBs or WOSBs in 

industries in which SBA has 

determined that WOSBs are 

underrepresented and substantially 

underrepresented and where certain 

threshold determinations are made by 

an agency. 

As to the remainder of SBA’s 

Regulatory Impact Analysis, SBA did 

not receive any comments and is not 

aware of any additional information that 

would require revision of its initial 

conclusions. Therefore, SBA continues 

to believe that the initial analysis was 

accurate. 

Executive Order 12988 

This action meets applicable 

standards set forth in §§ 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 

This rule does not have federalism 

implications as defined in Executive 

Order 13132. It 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, as specified in 

Executive Order 13132. 

In the event of a protest, this final rule 

will allow a WOSB concern to 

substantiate its self-certifications by 

submitting an existing certification from 

an SBA approved State Government 

certifier. In order for SBA to accept a 

State’s certification, the State must show 

that its certification process meets 

certain standards, including a showing 

that its process is based on the same 

criteria for WOSB or EDWOSB 

eligibility, as set forth in this regulation. 

However, this final rule will not 

mandate how the States conduct their 

certification processes, and as such the 

rule will not have a direct effect on the 

States. Therefore, for the purposes of 

Executive Order 13132, SBA determines 

that this final rule has no federalism 

implications warranting preparation of a 

federalism assessment. 

Paperwork Reduction Act (PRA) 

For purposes of the Paperwork 

Reduction Act, 44 U.S.C. chapter 35, 

SBA has determined that this proposed 

rule does not impose any new reporting 

or recordkeeping requirements. The 

certification process described in 

Subpart C, §§ 127.300 to 127.305, is not 

an information collection. In general, 

certifications are not subject to the PRA 

notice and review requirements unless 

such certifications are used as a 

substitute for collecting information. 

The proposed self-certification process 

does not require any concern seeking to 

benefit from Federal contracting 

opportunities designated for WOSBs or 

EDWOSBs to submit or maintain any 

information. Rather, the concern will 

use the existing electronic contracting 

system (i.e., ORCA) to confirm the 

following statements, under penalty of 

perjury: 

(1) The concern is certified as a 

EDWOSB or WOSB by a certifying 

entity approved by SBA and there have 

been no changes in its circumstances 

affecting its eligibility since 

certification; or 

(2) The concern meets each of the 

applicable individual eligibility 

requirements described in subpart B, 

including that: 

(i) It is a small business concern 

under the size standard assigned to the 

particular procurement; 

(ii) It is at least 51 percent owned and 

controlled by one or more women who 

are United States citizens, or it is at least 

51 percent owned and controlled by one 

or more women who are United States 

citizens and are economically 

disadvantaged; and 

(iii) Neither SBA, in connection with 

an examination or protest, nor an SBAapproved certifier has issued a decision 

currently in effect finding that it does 

not qualify as a EDWOSB or WOSB. The 

process for the annual recertification is 

similar in nature and as such also does 

not require any reporting or 

recordkeeping. 

The only occasion on which concerns 

would have to submit information to 

SBA would be in the context of a protest 

or examination, when SBA might 

request that a particular WOSB submit 

documentation to substantiate its claim; 

however, this rule does not require the 

WOSBs to maintain any specific 

information for this purpose. Further, 

any request for substantiation would not 

be standardized but rather would be 

specific to a WOSB’s particular status, 

and as such are also not subject to the 

PRA. 

Regulatory Flexibility Act 

SBA has determined that this rule 

establishing a set-aside mechanism for 

WOSBs may have a significant 

economic impact on a substantial 

number of small entities within the 

meaning of the Regulatory Flexibility 

Act (RFA), 5 U.S.C. 601, et seq. 

Accordingly, SBA prepared an Initial 

Regulatory Flexibility Analysis (IRFA) 

addressing the impact of the proposed 

rule in accordance with section 603, 

title 5, of the United States Code. The 

IRFA examined the objectives and legal 

basis for the proposed rule; the kind and 

number of small entities that may be 

affected; the projected recordkeeping, 

reporting, and other requirements; 

whether there were any Federal rules 

that may duplicate, overlap, or conflict 

with the proposed rule; and whether 

there were any significant alternatives to 

the proposed rule. The Agency’s final 

regulatory flexibility analysis (FRFA) is 

set forth below. 

1.What are the reasons for, and 

objectives of, this final rule? 

SBA is establishing procedures 

pursuant to the SBA Reauthorization 

Act, Public Law 106–554, enacted 

December 21, 2000, codified at Section 

8(m) of the Small Business Act, which 

authorizes the creation and 

implementation of a new mechanism for 

Federal contracting with WOSBs. The 

purpose of the final rule is to create a 

framework and infrastructure for 

implementing these Procedures, thereby 

providing a tool for Federal agencies to 

increase Federal procurement 

opportunities to WOSBs. SBA is 

finalizing this regulation pursuant to 

section 8(m) of the Small Business Act, 

15 U.S.C. 637(m). 

These Procedures will assist Federal 

agencies in achieving the Federal 


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1RAND eliminated firms with less than $1,000 in 

annual revenue; counted a firm only once if they 

were registered more than once for multiple 

locations; eliminated other apparent duplications; 

and eliminated vendors that were only interested in 

competing for grants (as opposed to contracts). 

Government’s goal of awarding five 

percent of Federal contract dollars to 

WOSBs, as provided in the Federal 

Acquisition Streamlining Act of 1994. 

Federal procurement was just over $340 

billion in FY 2006, the most recent 

fiscal year for which procurement data 

are available, and only $11.6 billion, or 

barely more than 3.4 percent, was 

awarded to WOSBs. 

2. Summary of the Significant Issues 

Raised by the Public Comments in 

Response to the Initial Regulatory 

Flexibility Analysis, a Summary of the 

Assessment of the Agency of Such 

Issues, and a Statement of any Changes 

Made as a Result of Such Comments 

SBA has set forth an analysis of the 

public comments on the Proposed Rule 

near the beginning of this final rule. 

However, the Agency did not receive 

any comments in response to the IRFA 

and is not aware of any additional 

information that would require revision 

of its initial conclusions. Therefore, 

SBA continues to believe that the initial 

analysis was accurate. 

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 will 

ultimately establish in the Federal 

Acquisition Regulation (FAR) a new 

procurement mechanism to benefit 

WOSBs. Therefore, WOSBs that 

compete for Federal contracts are the 

specific group of small business 

concerns most directly affected by this 

rule. More specifically, when the 

required procuring agency 

determination is made, this rule may 

affect EDWOSBs that participate in 

Federal procurement in industries 

where SBA determines that WOSBs are 

underrepresented or substantially 

underrepresented and may affect 

WOSBs that participate in Federal 

procurement in industries where SBA 

determines that WOSBs are 

substantially underrepresented. In 

addition, the rule may affect other small 

businesses, as described below, to the 

extent that small businesses not owned 

and controlled by women or noneligible WOSBs may be excluded from 

competing for certain Federal 

contracting opportunities. 

The 2002 Survey of Business Owners 

published by the U.S. Bureau of the 

Census reported 6,489,493 womenowned businesses in the United States. 

More than 900,000 of these businesses 

have one or more paid employees. Most 

women-owned businesses, however, do 

not participate in the Federal 

contracting market. In addition, the SBO 

number represents all women-owned 

business (large and small) and only 

WOSBs are eligible under the 

regulations. As of January 21, 2007, 

approximately 93,000 businesses 

represented themselves as WOSBs in 

the Federal Government’s CCR as actual 

or potential Federal contractors. The 

study conducted by the RAND 

Corporation for SBA narrowed the pool 

of WOSBs in the CCR to approximately 

56,000 to more closely approximate the 

universe of firms who are ready, willing, 

and able to do business with the 

Government.1 However, far fewer than 

56,000 WOSBs are likely to be affected 

by this final rule because the number of 

entities to which the rule will apply will 

greatly depend on SBA’s determination 

of the industries in which WOSBs are 

underrepresented or substantially 

underrepresented. 

In addition, WOSBs who are not 

economically disadvantaged could be 

affected only to the extent that they 

compete for Federal contracts in 

industries in which WOSBs are 

determined to be substantially 

underrepresented. For industries in 

which WOSBs are determined to be 

substantially underrepresented, the 

potential number of WOSBs that could 

be direct beneficiaries of these 

Procedures restricting certain Federal 

contracts to WOSBs is also likely to be 

much fewer than the number of WOSBs 

registered in CCR, since not all WOSBs 

will satisfy the eligibility requirements 

for EDWOSB status. The CCR currently 

lists only 4,210 SDBs owned and 

controlled by one or more women. This 

is a useful statistic because the $750,000 

net worth requirement is the same for 

SDBs and for WOSBs. While SBA 

acknowledges that there may be other 

WOSBs in existence besides those listed 

in the CCR as being certified by SBA as 

SDBs, it is difficult to envision more 

than 6,000 WOSBs that could meet 

SBA’s eligibility criteria and that are 

also ready, willing, and able to bid on 

Government contracts. 

Moreover, the anticipated benefits of 

these Procedures may be less attractive 

to many WOSBs than a number of other 

preferences designed to assist small 

businesses, such as HUBZone, 8(a)BD, 

and others. Not all areas of Federal 

procurement are likely to be designated 

as underrepresented or substantially 

underrepresented, and opportunities in 

some of the qualified industries may be 

limited. Consequently, many otherwisequalified EDWOSBs and WOSBs may 

not find it advantageous to pursue 

contract opportunities under these 

Procedures. 

This final rule will also affect nonWOSBs (small businesses not 51 percent 

owned and controlled by women) 

seeking Federal contracts for which 

competition has been restricted to 

participants in these Procedures. This 

would be particularly harmful for those 

businesses that derive a significant 

portion of their business from Federal 

contracting. As of January 2007, the CCR 

lists approximately 376,000 small 

businesses that are not WOSBs. To the 

extent that contracting officers use these 

Procedures, non-WOSBs may be 

excluded from competing for certain 

Federal contracting opportunities. 

However, this would occur only in 

industries in which WOSBs have been 

found to be underrepresented or 

substantially underrepresented and 

where the anticipated dollar value of the 

procurement does not exceed $3 million 

or $5 million, in the case of 

manufacturing contracts. The number of 

small businesses that would be 

excluded from eligibility for a set-aside 

under these procurements or from 

future such determinations is not 

known at this time, but it could be a 

substantial number. 

Additional contracting opportunities 

identified by Federal agencies as 

candidates to be set aside for WOSBs 

will come from new contracting 

requirements and contracts currently 

performed by small and large 

businesses. At this time, SBA cannot 

accurately predict how the existing 

distribution of contracts by business 

type may change with this rule. 

However, SBA does not expect a great 

many of the contracts awarded through 

the 8(a), HUBZone, or SDVOSB 

Programs ($22.6 billion in FY 2006) to 

be re-competed as WOSB or EDWOSB 

set-aside contracts because those 

programs also support other 

socioeconomic goals that agencies strive 

to achieve through their contracting 

activities. It is acknowledged, however, 

that some redistribution of contracts 

among the various socioeconomic 

groups is likely to occur as a result of 

these Procedures. 

4. What Are the Projected Reporting, 

Recordkeeping, Paperwork Reduction 

Act and Other Compliance 

Requirements? 

As explained above, WOSBs and 

EDWOSBs will not be required to 

undergo any formal certification process 


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to participate in these Procedures. 

Accordingly, there are no reporting or 

recordkeeping requirements on the 

affected industry. There will be some 

recordkeeping requirements for the 

Government; but since the Government 

already tracks procurement awards to 

WOSBs, the additional reporting 

requirements will require minimal 

changes to existing systems. SBA is 

working with the Integrated Acquisition 

Environment, which is managed by 

GSA, to ensure that CCR, ORCA, and the 

Federal Procurement Data System-Next 

Generation (FPDS-NG) contain the fields 

needed to capture the new socioeconomic data. EDWOSB will be a new 

classification that the Government has 

not previously used. 

5. Description of the Steps the Agency 

Has Taken To Minimize the Significant 

Economic Impact on Small Entities 

Consistent With the Stated Objectives of 

Applicable Statutes, Including a 

Statement of the Factual, Policy, and 

Legal Reasons for Selecting the 

Alternative Adopted in the Final Rule 

and Why Each One of the Other 

Significant Alternatives to the Rule 

Considered by the Agency Which Affect 

the Impact on Small Entities Was 

Rejected 

SBA has minimized the significant 

economic impact on small entities. As 

discussed in the previous section, 

WOSBs and EDWOSBs will not be 

required to undergo any formal 

certification process to participate in 

these Procedures. Section 8(m) of the 

Small Business Act, which is the 

authorizing statutory provision for these 

Procedures, allows SBA to decide on the 

type of certification needed to 

implement these Procedures. 

Specifically, a WOSB may be certified 

by a Federal agency, a State government, 

or a national certifying entity approved 

by the Administrator; or a WOSB may 

self-certify to the contracting officer that 

it is a small business concern owned 

and controlled by women, along with 

adequate documentation in accordance 

with standards established by the 

Administration. As discussed earlier, 

SBA will allow EDWOSBs and WOSBs 

to self-certify their status in the existing 

CCR and ORCA databases. 

An alternative approach would have 

been to require EDWOSBs and WOSBs 

to apply to SBA for formal certification. 

SBA has ruled out this approach as 

unnecessary and too costly. The SBA 

believes that eligibility examinations 

and protest procedures incorporated 

into the final rule will minimize the 

likelihood of fraud and 

misrepresentation of WOSB and 

EDWOSB status. SBA has decided that 

allowing self-certification and the 

option for firms to apply for certification 

from SBA-approved certifiers, when 

combined with random eligibility 

examinations and a formal protest 

procedure, is a more viable approach 

than formal certification by SBA and 

greatly reduces the burden on small 

entities. 

In addition, SBA estimates that 

implementation of this regulation will 

require no additional proposal costs for 

WOSBs, as compared to submitting 

proposals under any other small 

business set-aside preferences. 

Moreover, WOSBs currently represent 

their status for purposes of data 

collection that is needed to implement 

15 U.S.C. 644(g); therefore, the selfcertification process of this final rule 

imposes no additional requirement on 

WOSBs. 

Pursuant to Executive Order 13272 

dated August 16, 2002, agencies issuing 

final rules are required to discuss any 

comments received from SBA’s Office of 

Advocacy in response to the proposed 

rule. In this case, SBA’s Office of 

Advocacy submitted formal comments 

on February 20, 2008, which 

recommended that the Final Regulatory 

Flexibility Analysis provide cost data on 

the effort required by WOSBs and 

EDWOSBs to play a role in compelling 

agencies to make a finding of 

discrimination prior to using a set-aside 

process for WOSB contract. With 

respect to this recommendation, SBA 

notes that each agency is responsible for 

conducting an analysis and making a 

determination of whether there has been 

past discrimination in a particular 

industry by that agency. Advocacy’s 

position rests on the assumption that 

there is an expectation that WOSBs 

should play a role in the determination 

process. WOSBs are not required, nor 

are they expected, to participate in this 

process. The Small Business Act has set 

the Government-wide goals for contracts 

awarded to WOSBs at not less than 5% 

of the total value of all prime contract 

and subcontract awards for each fiscal 

year. SBA believes that the procuring 

agencies which have not achieved their 

agency goals for WOSB awards are 

likely to move forward to determine if 

there is discrimination in order to 

achieve the agency’s individual goals for 

WOSB awards. Thus, SBA does not 

anticipate any cost to WOSBs and 

EDWOSBs to compel an agency to make 

a determination of discrimination. 

Furthermore, the procuring agencies 

are best-suited to make a determination 

of whether there is discrimination 

within a certain industry because they 

have the necessary agency procurement 

data and history more readily available 

than the SBA. Therefore, while the SBA 

can conduct government-wide disparity 

studies identifying the industries that 

have been underrepresented by women, 

the individual procuring agencies have 

the necessary information to justify 

individual WOSB awards. This does not 

translate into an additional cost for 

WOSBs or EDWOSBs as they are not 

required or expected to participate in 

the process of determining evidence of 

discrimination. 

List of Subjects 

13 CFR Part 121 

Government procurement, 

Government property, Grant programsbusiness, Individuals with disabilities, 

Loan programs—business, Small 

businesses. 

13 CFR Part 125 

Government contracts, Government 

procurement, Reporting and 

recordkeeping requirements, Small 

businesses, Technical assistance. 

13 CFR Part 127 

Government procurement, Reporting 

and recordkeeping requirements, Small 

businesses. 

13 CFR Part 134 

Administrative practice and 

procedure, Claims, Equal access to 

justice, Lawyers, Organization and 

functions, Rules of practice for appeals, 

Appeals of size determinations, Appeals 

of NAICS code designations, Appeals 

under the 8(a) Program, Appeals from 

service-disabled veteran-owned small 

business concerns protests. 

■ For the reasons stated in the preamble, 

SBA amends 13 CFR parts 121, 125, 127 

and 134 as follows: 

PART 121—SMALL BUSINESS SIZE 

REGULATIONS 

■ 1. The authority citation for 13 CFR 

part 121 is revised to read as follows: 

Authority: 15 U.S.C. 632, 634(b)(6), 636(b), 

637, 644, and 662(5); and Public Law 105– 

135, sec. 401 et seq., 111 Stat. 2592. 

§ 121.401 [Amended] 

■ 2. Amend § 121.401 by adding the 

phrase ‘‘the Women-Owned Small 

Business (WOSB) Federal Contract 

Assistance Procedures,’’ after the phrase 

‘‘SBA’s HUBZone Program’’. 

■ 3. Amend § 121.1001 by adding a new 

paragraph (a)(9) to read as follows: 

§ 121.1001 Who may initiate a size protest 

or request a formal size determination? 

(a) * * * 


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(9) For SBA’s WOSB Federal 

Contracting Assistance Procedures, the 

following entities may protest: 

(i) Any concern that submits an offer 

for a specific requirement set aside for 

WOSBs or WOSBs owned by one or 

more women who are economically 

disadvantaged (EDWOSB) pursuant to 

part 127; 

(ii) The contracting officer; 

(iii) The SBA Government Contracting 

Area Director; and 

(iv) The Director for Government 

Contracting, or designee. 

* * * * * 

■ 4. Amend § 121.1008 (a) by adding a 

new sentence after the second sentence 

to read as follows: 

§ 121.1008 What occurs after SBA receives 

a size protest or a request for a formal size 

determination? 

(a) * * * If the protest pertains to a 

requirement set aside for WOSBs or 

EDWOSBs, the Area Director will also 

notify SBA’s Director for Government 

Contracting of the protest. * * * 

PART 125—GOVERNMENT 

CONTRACTING PROGRAMS 

■ 5. 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. 

■ 6. Amend § 125.6 by revising 

paragraph (a) introductory text to read 

as follows: 

§ 125.6 Prime contractor performance 

requirements (limitations on 

subcontracting). 

(a) In order to be awarded a full or 

partial small business set-aside contract, 

an 8(a) contract, a WOSB or EDWOSB 

contract pursuant to part 127 of this 

chapter, or an unrestricted procurement 

where a concern has claimed a 10 

percent small disadvantaged business 

(SDB) price evaluation preference, a 

small business concern must agree that: 

* * * * * 

■ 7. Add a new part 127 to read as 

follows: 

PART 127—WOMEN–OWNED SMALL 

BUSINESS FEDERAL CONTRACT 

ASSISTANCE PROCEDURES 

Subpart A—General Provisions 

Sec. 

127.100 What is the purpose of this part? 

127.101 What type of assistance is available 

under this part? 

127.102 What are the definitions of the 

terms used in this part? 

Subpart B—Eligibility Requirements To 

Qualify as an EDWOSB or WOSB 

127.200 What are the requirements a 

concern must meet to qualify as an 

EDWOSB or WOSB? 

127.201 What are the requirements for 

ownership of an EDWOSB and WOSB? 

127.202 What are the requirements for 

control of an EDWOSB or WOSB? 

127.203 What are the rules governing the 

requirement that economically 

disadvantaged women must own 

EDWOSBs? 

Subpart C—Certification of EDWOSB or 

WOSB Status 

127.300 How is a concern certified as an 

EDWOSB or WOSB? 

127.301 When may a contracting officer 

accept a concern’s self-certification? 

127.302 What third-party certifications may 

a concern use as evidence of its status as 

a qualified EDWOSB or WOSB? 

127.303 How will SBA select and identify 

approved certifiers? 

127.304 How does a concern obtain 

certification from an approved certifier? 

127.305 May a concern determined not to 

qualify as an EDWOSB or WOSB submit 

a self-certification for a particular 

EDWOSB or WOSB requirement? 

Subpart D—Eligibility Examinations 

127.400 What is an eligibility examination? 

127.401 What is the difference between an 

eligibility examination and an EDOWSB 

or WOSB status protest pursuant to 

subpart F of this part? 

127.402 How will SBA conduct an 

eligibility examination? 

127.403 What happens if SBA verifies the 

concern’s eligibility? 

127.404 What happens if SBA is unable to 

verify a concern’s eligibility? 

127.405 What is the process for requesting 

an eligibility examination? 

Subpart E—Federal Contract Assistance 

127.500 In what industries is a contracting 

officer authorized to restrict competition 

under this part? 

127.501 How will SBA and the agencies 

determine the industries that are eligible 

for EDWOSB or WOSB requirements. 

127.502 How will SBA identify and provide 

notice of the designated industries? 

127.503 When is a contracting officer 

authorized to restrict competition under 

this part? 

127.504 What additional requirements must 

a concern satisfy to submit an offer on 

an EDWOSB or WOSB requirement? 

127.505 May a non-manufacturer submit an 

offer on an EDWOSB or WOSB 

requirement for supplies? 

127.506 May a joint venture submit an offer 

on an EDWOSB or WOSB requirement? 

Subpart F—Protests 

127.600 Who may protest the status of a 

concern as an EDWOSB or WOSB? 

127.601 May a protest challenging the size 

and status of a concern as an EDWOSB 

or WOSB be filed together? 

127.602 What are the grounds for filing an 

EDWOSB or WOSB status protest? 

127.603 What are the requirements for 

filing an EDWOSB or WOSB protest? 

127.604 How will SBA process an EDWOSB 

or WOSB status protest? 

127.605 What are the procedures for 

appealing an EDWOSB or WOSB status 

protest decision? 

Subpart G—Penalties 

127.700 What penalties may be imposed 

under this part? 

Authority: 15 U.S.C. 632, 634(b)(6), 

637(m), and 644. 

Subpart A—General Provisions 

§ 127.100 What is the purpose of this part? 

Section 8(m) of the Small Business 

Act authorizes certain procurement 

mechanisms to increase Federal 

contracting opportunities for womenowned small businesses (WOSBs) and to 

assist agencies in achieving their WOSB 

participation goals established under 

Section 15(g) of the Small Business Act. 

§ 127.101 What type of assistance is 

available under this part? 

This part authorizes contracting 

officers to restrict competition to 

eligible WOSBs for certain Federal 

contracts in industries in which the 

Small Business Administration (SBA) 

determines that WOSBs are 

underrepresented or substantially 

underrepresented in Federal 

procurement and in which the 

procuring agency has satisfied itself 

through appropriate analysis (including 

analysis of its own procurement 

history), that the set-aside would meet 

all applicable legal requirements, 

including the equal protection 

requirements of the Due Process Clause 

of the Fifth Amendment of the 

Constitution. 

§ 127.102 What are the definitions of the 

terms used in this part? 

For purposes of this part: 

8(a) Business Development (8(a) BD) 

concern means a concern that SBA has 

certified as an 8(a) BD program 

participant. 

AA/GC&BD means SBA’s Associate 

Administrator for Government 

Contracting and Business Development. 

Central Contractor Registration (CCR) 

means the system that functions as the 

central registration and repository of 

contractor data for the Federal 

government. CCR also serves as the 

single portal for conducting searches of 

small business contractors. Prospective 

Federal contractors must be registered 

in CCR prior to award of a contract or 

purchase agreement, unless the award 

results from a solicitation issued on or 

before May 31, 1998. 

Citizen means a person born or 

naturalized in the United States. 


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Resident aliens and holders of 

permanent visas are not considered to 

be citizens. 

Concern means a firm that satisfies 

the requirements in § 121.105 this 

chapter. 

Contracting officer has the meaning 

given to that term in Section 27(f)(5) of 

the Office of Federal Procurement 

Policy Act (codified at 41 U.S.C. 

423(f)(5)). 

D/GC means SBA’s Director for 

Government Contracting. 

Economically disadvantaged WOSB 

(EDWOSB) means a concern that is 

small pursuant to part 121 of this title 

and that is at least 51% owned and 

controlled by one or more women who 

are U.S. citizens and who are 

economically disadvantaged in 

accordance with §§ 127.200, 127.201, 

127.202 and 127.203. An EDWOSB 

automatically qualifies as a WOSB. 

EDWOSB requirement means a 

Federal requirement for services or 

supplies for which a contracting officer 

has restricted competition to EDWOSBs. 

Immediate family member means 

father, mother, husband, wife, son, 

daughter, brother, sister, grandfather, 

grandmother, grandson, granddaughter, 

father-in-law, mother-in-law, son-inlaw, and daughter-in-law. 

Interested party means any concern 

that submits an offer for a specific 

EDWOSB or WOSB requirement, the 

contracting activity’s contracting officer, 

or SBA. 

ORCA means the Online 

Representations and Certifications 

Application at https://orca.bpn.gov, a 

required registration for contractors 

interested in bidding on most Federal 

contracts. 

Primary industry classification means 

the six-digit North American Industry 

Classification System (NAICS) code 

designation that best describes the 

primary business activity of the 

concern. The NAICS code designations 

are described in the NAICS manual 

available via the Internet at http:// 

www.census.gov/NAICS. In determining 

the primary industry in which a concern 

is engaged, SBA will consider the 

factors set forth in § 121.107 of this 

chapter. 

Small disadvantaged business (SDB) 

means a concern that SBA has certified 

in accordance with subpart B of part 124 

of this chapter, and is designated on 

CCR as an SDB. 

Substantial underrepresentation 

means a disparity ratio between 0.0 and 

0.5; i.e., the ratio representing the 

WOSB share of Federal prime contract 

dollars divided by the WOSB share of 

total business receipts. 

Underrepresentation means a 

disparity ratio between 0.5 and 0.8; i.e., 

the ratio representing the WOSB share 

of Federal prime contract dollars 

divided by the WOSB share of total 

business receipts. 

WOSB means a concern that is small 

pursuant to part 121 of this chapter, and 

that is at least 51% owned and 

controlled by one or more women in 

accordance with §§ 127.200, 127.201 

and 127.202. 

WOSB requirement means a Federal 

requirement for services or supplies for 

which a contracting officer has 

restricted competition to eligible 

WOSBs. 

Subpart B—Eligibility Requirements To 

Qualify as an EDWOSB or WOSB 

§ 127.200 What are the requirements a 

concern must meet to qualify as an 

EDWOSB or WOSB? 

(a) Qualification as an EDWOSB. To 

qualify as an EDWOSB, a concern must 

be: 

(1) A small business as defined in part 

121 of this chapter; and 

(2) Not less than 51 percent 

unconditionally and directly owned and 

controlled by one or more women who 

are United States citizens and are 

economically disadvantaged. 

(b) Qualification as a WOSB. To 

qualify as a WOSB, a concern must be: 

(1) A small business as defined in part 

121 of this chapter; and 

(2) Not less than 51 percent 

unconditionally and directly owned and 

controlled by one or more women who 

are United States citizens. 

§ 127.201 What are the requirements for 

ownership of an EDWOSB and WOSB? 

(a) General. To qualify as an EDWOSB 

or WOSB, one or more women must 

unconditionally and directly own at 

least 51 percent of the concern. 

Ownership will be determined without 

regard to community property laws. 

(b) Requirement for unconditional 

ownership. To be considered 

unconditional, the ownership must not 

be subject to any conditions, executory 

agreements, voting trusts, or other 

arrangements that cause or potentially 

cause ownership benefits to go to 

another. The pledge or encumbrance of 

stock or other ownership interest as 

collateral, including seller-financed 

transactions, does not affect the 

unconditional nature of ownership if 

the terms follow normal commercial 

practices and the owner retains control 

absent violations of the terms. 

(c) Requirement for direct ownership. 

To be considered direct, the qualifying 

women must own 51 percent of the 

concern directly. The 51 percent 

ownership may not be through another 

business entity or a trust (including 

employee stock ownership trusts) that 

is, in turn, owned and controlled by one 

or more women or economically 

disadvantaged women. However, 

ownership by a trust, such as a living 

trust, may be treated as the functional 

equivalent of ownership by a woman or 

economically disadvantaged woman 

where the trust is revocable, and the 

woman is the grantor, a trustee, and the 

sole current beneficiary of the trust. 

(d) Ownership of a partnership. In the 

case of a concern that is a partnership, 

at least 51 percent of each class of 

partnership interest must be 

unconditionally owned by one or more 

women. The ownership must be 

reflected in the concern’s partnership 

agreement. For purposes of this 

requirement, general and limited 

partnership interests are considered 

different classes of partnership interest. 

(e) Ownership of a limited liability 

company. In the case of a concern that 

is a limited liability company, at least 

51 percent of each class of member 

interest must be unconditionally owned 

by one or more women. 

(f) Ownership of a corporation. In the 

case of a concern that is a corporation, 

at least 51 percent of each class of 

voting stock outstanding and 51 percent 

of the aggregate of all stock outstanding 

must be unconditionally owned by one 

or more women. In determining 

unconditional ownership of the 

concern, any unexercised stock options 

or similar agreements held by a woman 

will be disregarded. However, any 

unexercised stock option or other 

agreement, including the right to 

convert non-voting stock or debentures 

into voting stock, held by any other 

individual or entity will be treated as 

having been exercised. 

§ 127.202 What are the requirements for 

control of an EDWOSB or WOSB? 

(a) General. To qualify as an EDWOSB 

or WOSB, the management and daily 

business operations of the concern must 

be controlled by one or more women. 

Control by one or more women means 

that both the long-term decision making 

and the day-to-day management and 

administration of the business 

operations must be conducted by one or 

more women. 

(b) Managerial position and 

experience. A woman must hold the 

highest officer position in the concern 

(usually President or Chief Executive 

Officer) and must have managerial 

experience of the extent and complexity 

needed to run the concern. The woman 

manager need not have the technical 

expertise or possess the required license 


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to be found to control the concern if she 

can demonstrate that she has ultimate 

managerial and supervisory control over 

those who possess the required licenses 

or technical expertise. However, if a 

man possesses the required license and 

has an equity interest in the concern, he 

may be found to control the concern. 

(c) Limitation on outside employment. 

The woman who holds the highest 

officer position of the concern may not 

engage in outside employment that 

prevents her from devoting sufficient 

time and attention to the daily affairs of 

the concern to control its management 

and daily business operations. 

(d) Control over a partnership. In the 

case of a partnership, one or more 

women must serve as general partners, 

with control over all partnership 

decisions. 

(e) Control over a limited liability 

company. In the case of a limited 

liability company, one or more women 

must serve as management members, 

with control over all decisions of the 

limited liability company. 

(f) Control over a corporation. One or 

more women must control the Board of 

Directors of the concern. Women are 

considered to control the Board of 

Directors when either: 

(1) One or more women own at least 

51 percent of all voting stock of the 

concern, are on the Board of Directors 

and have the percentage of voting stock 

necessary to overcome any super 

majority voting requirements; or 

(2) Women comprise the majority of 

voting directors through actual numbers 

or, where permitted by state law, 

through weighted voting. 

(g) Involvement in the concern by 

other individuals or entities. Men or 

other entities may be involved in the 

management of the concern and may be 

stockholders, partners or limited 

liability members of the concern. 

However, no males or other entity may 

exercise actual control or have the 

power to control the concern. 

§ 127.203 What are the rules governing the 

requirement that economically 

disadvantaged women must own 

EDWOSBs? 

(a) General. To qualify as an 

EDWOSB, the concern must be at least 

51% owned by one or more women who 

are economically disadvantaged. A 

woman is economically disadvantaged 

if she can demonstrate that her ability 

to compete in the free enterprise system 

has been impaired due to diminished 

capital and credit opportunities as 

compared to others in the same or 

similar line of business. 

(b) Limitation on personal net worth. 

In order to be considered economically 

disadvantaged, the woman’s personal 

net worth must be less than $750,000, 

excluding her ownership interest in the 

concern and equity in her primary 

personal residence. 

(c) Factors that may be considered. 

The personal financial condition of the 

woman claiming economic 

disadvantage, including her personal 

income for the past two years (including 

bonuses, and the value of company 

stock given in lieu of cash), her personal 

net worth and the fair market value of 

all of her assets, whether encumbered or 

not, may be considered in determining 

whether she is economically 

disadvantaged. 

(d) Transfers within two years. Assets 

that a woman claiming economic 

disadvantage transferred within two 

years of the date of the concern’s 

certification will be attributed to the 

woman claiming economic disadvantage 

if the assets were transferred to an 

immediate family member, or to a trust 

that has as a beneficiary an immediate 

family member. The transferred assets 

within the two-year period will not be 

attributed to the woman if the transfer 

was: 

(1) To or on behalf of an immediate 

family member for that individual’s 

education, medical expenses, or some 

other form of essential support; or 

(2) To an immediate family member 

in recognition of a special occasion, 

such as a birthday, graduation, 

anniversary, or retirement. 

Subpart C—Certification of EDWOSB 

or WOSB Status 

§ 127.300 How is a concern certified as an 

EDWOSB or WOSB? 

(a) General. At the time a concern 

submits an offer on a specific contract 

reserved for competition under this Part, 

it must be registered in the Central 

Contractor Registration (CCR) and have 

a current self-certification posted on the 

Online Representations and 

Certifications Application (ORCA) that 

it qualifies as an EDWOSB or WOSB. 

(b) Form of certification. In 

conjunction with its required 

registration in the CCR database, the 

concern must submit a self-certification 

to the electronic annual representations 

and certifications at http://orca.bpn.gov, 

that it is a qualified EDWOSB or WOSB. 

The self-certification must include a 

representation, subject to penalties for 

mispresentation, that: 

(1) The concern is certified as a 

EDWOSB or WOSB by a certifying 

entity approved by SBA and there have 

been no changes in its circumstances 

affecting its eligibility since 

certification; or 

(2) The concern meets each of the 

applicable individual eligibility 

requirements described in subpart B of 

this part, including that: 

(i) It is a small business concern 

under the size standard assigned to the 

particular procurement; 

(ii) It is at least 51 percent owned and 

controlled by one or more women who 

are United States citizens, or it is at least 

51 percent owned and controlled by one 

or more women who are United States 

citizens and are economically 

disadvantaged; and 

(iii) Neither SBA, in connection with 

an examination or protest, nor an SBAapproved certifier has issued a decision 

currently in effect finding that it does 

not qualify as a EDWOSB or WOSB. 

(c) Update of certification. The 

concern must update its EDWOSB and 

WOSB representations and selfcertification on ORCA as necessary, but 

at least annually, to ensure they are kept 

current, accurate, and complete. The 

representations and self-certification are 

effective for a period of one year from 

the date of submission or update to 

ORCA. 

§ 127.301 When may a contracting officer 

accept a concern’s self-certification? 

(a) General. A contracting officer may 

accept a concern’s self-certification on 

ORCA as accurate for a specific 

procurement reserved for award under 

this Part in the absence of a protest or 

other credible information that calls into 

question the concern’s eligibility as a 

EDWOSB or WOSB. An example of such 

credible evidence includes information 

that the concern was determined by 

SBA or an SBA-approved certifier not to 

qualify as an EDWOSB or WOSB. 

(b) Referral to SBA. When the 

contracting officer has information that 

calls into question the eligibility of a 

concern as an EDWOSB or WOSB, the 

contracting officer must refer the 

concern’s self-certification to SBA for 

verification of the concern’s eligibility 

by filing an EDWOSB or WOSB status 

protest pursuant to subpart F of this 

Part. 

§ 127.302 What third-party certifications 

may a concern use as evidence of its status 

as a qualified EDWOSB or WOSB? 

(a) General. In order for a concern to 

use a certification by another entity as 

evidence of its status as a qualified 

EDWOSB or WOSB in support of its 

representations in ORCA pursuant to 

§ 127.300(b), the concern must have a 

current, valid certification from: 

(1) SBA as an 8(a) BD or SDB womenowned concern in good standing; 

(2) The Department of Transportation 

as a disadvantaged business enterprise 


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(DBE) that is at least 51 percent owned 

and controlled by one or more women; 

or 

(3) An entity designated as an SBAapproved certifier on SBA’s Web site 

located at http://www.sba.gov/GC. 

(b) [Reserved] 

§ 127.303 How will SBA select and identify 

approved certifiers? 

(a) General. SBA may enter into 

written agreements to accept the 

EDWOSB or WOSB certification of a 

Federal agency or national certifying 

entity if SBA determines that the 

entity’s certification process complies 

with SBA-approved certification 

standards and is based upon the same 

EDWOSB or WOSB eligibility 

requirements set forth in subpart B of 

this part. The written agreement will 

include a provision authorizing SBA to 

terminate the agreement if SBA 

subsequently determines that the 

entity’s certification process does not 

comply with SBA-approved certification 

standards or is not based on the same 

EDWOSB or WOSB eligibility 

requirements as set forth in subpart B of 

this part. 

(b) Required certification standards. 

In order for SBA to enter into an 

agreement to accept the EDWOSB or 

WOSB certification of a Federal agency, 

state government, or national certifying 

entity, the entity must establish the 

following: 

(1) It will render fair and impartial 

EDWOSB or WOSB eligibility 

determinations. 

(2) Its certification process will 

require applicant concerns to preregister on CCR and submit sufficient 

information to enable it to determine 

whether the concern qualifies as an 

EDWOSB or WOSB. This information 

must include documentation 

demonstrating whether the concern is: 

(i) A small business concern under 

SBA’s size standards for its primary 

industry classification; 

(ii) At least 51 percent owned and 

controlled by one or more women who 

are United States citizens; and 

(iii) In the case of a concern applying 

for EDWOSB certification, at least 51 

percent owned and controlled by one or 

more women who are United States 

citizens and economically 

disadvantaged. 

(3) It will not decline to accept a 

concern’s application for EDWOSB or 

WOSB certification on the basis of race, 

color, national origin, religion, age, 

disability, sexual orientation, or marital 

or family status. 

(c) List of SBA-approved certifiers. 

SBA will maintain a list of approved 

certifiers on SBA’s Internet Web site at 

http://www.sba.gov/GC. Any interested 

person may also obtain a copy of the list 

from the local SBA district office. 

§ 127.304 How does a concern obtain 

certification from an approved certifier? 

A concern that seeks EDWOSB or 

WOSB certification from an SBAapproved certifier must submit its 

application directly to the approved 

certifier in accordance with the specific 

application procedures of the particular 

certifier. Any interested party may 

obtain such certification information 

and application by contacting the 

approved certifier at the address 

provided on SBA’s list of approved 

certifiers. 

§ 127.305 May a concern determined not to 

qualify as an EDWOSB or WOSB submit a 

self-certification for a particular EDWOSB 

or WOSB requirement? 

A concern that SBA or an SBAapproved certifier determines does not 

qualify as an EDWOSB or WOSB may 

not represent itself to be an EDWOSB or 

WOSB, as applicable, unless SBA 

subsequently determines that it is an 

eligible EDWOSB or WOSB pursuant to 

the examination procedures under 

§ 127.405 of subpart D, and there have 

been no material changes in its 

circumstances affecting its eligibility 

since SBA’s eligibility determination. 

Any concern determined not to be a 

qualified EDWOSB or WOSB may 

request that SBA conduct an 

examination to determine its EDWOSB 

or WOSB eligibility at any time once it 

believes in good faith that it satisfies all 

of the eligibility requirements to qualify 

as an EDWOSB or WOSB. 

Subpart D—Eligibility Examinations 

§ 127.400 What is an eligibility 

examination? 

An eligibility examination is an 

investigation by SBA to verify that a 

concern meets the EDWOSB or WOSB 

eligibility requirements at the time of 

the examination. SBA may, in its sole 

discretion, perform an examination at 

any time after a concern self-certifies in 

CCR or ORCA that it is an EDWOSB or 

WOSB. 

§ 127.401 What is the difference between 

an eligibility examination and an EDWOSB 

or WOSB status protest pursuant to subpart 

F of this part? 

(a) Eligibility examination. An 

eligibility examination is the formal 

process through which SBA verifies and 

monitors the continuing eligibility of a 

concern that is designated on CCR or 

ORCA as an EDWOSB or WOSB. For 

purposes of an examination, the D/GC 

will determine the eligibility of a 

concern as of the date SBA notifies the 

concern that it will conduct the 

examination. The D/GC’s eligibility 

decision constitutes the final agency 

decision and will be effective and apply 

to all solicitations issued on or after the 

date of the decision issued pursuant to 

§§ 127.403, 127.404(b), or 127.405(e). If 

SBA is conducting an eligibility 

examination on a concern that has 

submitted an offer on a pending 

EDWOSB or WOSB procurement and 

SBA has credible information that the 

concern may not qualify as an EDWOSB 

or WOSB, then SBA may initiate a 

protest pursuant to § 127.600, to 

suspend award of the contract for 15 

business days pending SBA’s 

determination of the concern’s 

eligibility. 

(b) EDWOSB or WOSB protests. An 

EDWOSB or WOSB status protest 

provides a mechanism for challenging 

or verifying the EDWOSB or WOSB 

eligibility of a concern in connection 

with a specific EDWOSB or WOSB 

requirement. SBA will process 

EDWOSB or WOSB protests in 

accordance with the procedures and 

timeframe set forth in subpart F, and 

will determine the EDWOSB or WOSB 

eligibility of the protested concern as of 

the date the concern represented its 

EDWOSB or WOSB status as part of its 

initial offer including price. SBA’s 

protest determination will apply to the 

specific procurement to which the 

protest relates and to future 

procurements. 

§ 127.402 How will SBA conduct an 

examination? 

(a) Notification. No less than 5 

business days before commencing an 

examination, SBA will notify the 

concern in writing that it will conduct 

an examination to determine the status 

of the concern as an EDWOSB or WOSB. 

The notification also will advise the 

concern that its EDWOSB or WOSB 

eligibility will be determined based on 

the status of the concern on the date of 

the notification. 

(b) Request for information. SBA may 

request that the concern provide 

documentation and information related 

to the concern’s EDWOSB or WOSB 

eligibility. SBA may draw an adverse 

inference where a concern fails to 

cooperate in providing the requested 

information. 

§ 127.403 What happens if SBA verifies the 

concern’s eligibility? 

If SBA verifies that the concern 

satisfies the applicable EDWOSB or 

WOSB eligibility requirements at the 

time of the eligibility examination, then 

the D/GC will send the concern a 


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written decision to that effect and will 

allow the concern’s EDWOSB or WOSB 

designation in CCR and ORCA to stand. 

§ 127.404 What happens if SBA is unable 

to verify a concern’s eligibility? 

(a) Notice of proposed determination 

of ineligibility. If SBA is unable to verify 

that the concern qualifies as an 

EDWOSB or WOSB at the time of the 

examination, then the D/GC will send 

the concern a written notice explaining 

the reasons SBA believes the concern 

does not qualify as an EDWOSB or 

WOSB. The notice will advise the 

concern that it has 15 calendar days 

from the date it receives the notice to 

respond. 

(b) SBA determination. Following the 

15-day response period, the D/GC or 

designee will consider the reasons of 

proposed ineligibility and any 

information the concern submitted in 

response, and will send the concern a 

written decision finding that it either 

qualifies or does not qualify as an 

EDWOSB or WOSB. 

(1) If SBA verifies that the concern 

qualifies as an EDWOSB or WOSB at the 

time of the examination, then the D/GC 

will send the concern a decision to that 

effect and will allow the concern to 

continue to self-certify its EDWOSB or 

WOSB status. 

(2) If SBA determines that the concern 

does not qualify as an EDWOSB or 

WOSB, then the D/GC will send the 

concern a written decision explaining 

the basis of ineligibility, and will 

require that the concern remove its 

EDWOSB or WOSB designation in the 

CCR and ORCA within five business 

days after the date of the decision. 

§ 127.405 What is the process for 

requesting an eligibility examination? 

(a) General. A concern may request 

that SBA conduct an examination to 

verify its eligibility as an EDWOSB or 

WOSB at any time after it is determined 

by SBA or an SBA-approved certifier 

not to qualify as an EDWOSB or WOSB, 

if the concern believes in good faith that 

it satisfies all of the EDWOSB or WOSB 

eligibility requirements under subpart B 

of this part. 

(b) Format. The request for an 

examination must be in writing and 

must specify the particular reasons the 

concern was determined not to qualify 

as an EDWOSB or WOSB. 

(c) Submission of request. The 

concern must submit its request directly 

to the Director for Government 

Contracting, U.S. Small Business 

Administration, 409 Third Street, SW., 

Washington, DC 20416, or by fax to 

(202) 205–6390, marked ‘‘Attn: Request 

for Women-Owned Small Business 

Procedures Examination.’’ 

(d) Notice of receipt of request. SBA 

will immediately notify the concern in 

writing once SBA receives its request for 

an examination. The notification will 

advise the concern that its eligibility 

will be determined based on the status 

of the concern on the date of the 

notification. SBA may request that the 

concern provide documentation and 

information related to the concern’s 

EDWOSB or WOSB eligibility and may 

draw an adverse inference if the concern 

fails to cooperate in providing the 

requested information. 

(e) Determination of eligibility. The 

D/GC will send the concern a written 

decision finding that it either qualifies 

or does not qualify as an EDWOSB or 

WOSB. 

(1) If the D/GC determines that the 

concern does not qualify as an EDWOSB 

or WOSB, the decision will explain the 

specific reasons for the adverse 

determination and advise the concern 

that it is prohibited from self-certifying 

as an EDWOSB or WOSB. If the concern 

self-certifies as an EDWOSB or WOSB 

notwithstanding SBA’s adverse 

determination, the concern will be 

subject to the penalties under subpart F 

of this part. 

(2) If the D/GC determines that the 

concern qualifies as an EDWOSB or 

WOSB, then the D/GC will send the 

concern a written decision to that effect 

and will advise the concern that it may 

self-certify as an EDWOSB or WOSB, as 

applicable. 

(f) Effect of decision. The D/GC’s 

decision is effective as of the date of the 

decision and applies to all solicitations 

issued on or after the effective date. 

Subpart E—Federal Contract 

Assistance 

§ 127.500 In what industries is a 

contracting officer authorized to restrict 

competition under this part? 

A contracting officer may restrict 

competition 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 

§ 127.501(a), and the procuring agency 

finds, pursuant to the method specified 

in § 127.501(b), that a set-aside in that 

industry would be consistent with the 

equal protection requirements of the 

Due Process Clause of the Fifth 

Amendment of the Constitution. 

§ 127.501 How will SBA and the agencies 

determine the industries that are eligible for 

EDWOSB or WOSB requirements? 

(a) SBA determination of 

underrepresented or substantially 

underrepresented industries. 

(1) Approximately every five years, 

SBA will conduct a study to identify the 

industries in which WOSBs are 

underrepresented or substantially 

underrepresented in Federal 

contracting. The study will include an 

analysis of the extent of disparity of 

WOSBs in Federal contracting. 

(2) Data collection. In determining the 

extent of disparity of WOSBs in Federal 

contracting, SBA may request that the 

head of any Federal department or 

agency provide SBA, or other 

designated entity, data or information 

necessary to analyze the extent of 

disparity of WOSBs in Federal 

contracting. 

(3) Based upon its analysis, SBA will 

designate by 4-digit NAICS Industry 

Subsector industries in which WOSBs 

are underrepresented or substantially 

underrepresented. 

(b) Agency determination of 

discrimination. Each agency that is 

considering restricting competition with 

respect to a contract in an industry 

pursuant to this rule is responsible for 

carrying out a relevant analysis that 

would justify a restriction on 

competition under the equal protection 

requirements of the Due Process Clause 

of the Fifth Amendment of the 

Constitution. Where an agency seeks to 

reserve a procurement for competition 

exclusively among WOSBs or EDWOSBs 

within an industry designated by SBA 

in paragraph (a)(3) of this section, the 

agency must conduct an appropriate 

analysis of the agency’s procurement 

history and make a determination of 

whether there is evidence of relevant 

discrimination in that industry by that 

agency. 

§ 127.502 How will SBA identify and 

provide notice of the designated 

industries? 

SBA will post on its Internet Web site 

a list of 4-digit NAICS Industry 

Subsector industries it designates under 

§ 127.501(a). The list of designated 

industries also may be obtained from 

the local SBA district office and may be 

posted on the General Services 

Administration Internet Web site. 

§ 127.503 When is a contracting officer 

authorized to restrict competition under this 

part? 

(a) EDWOSB requirements. For 

requirements in industries designated 

by SBA pursuant to § 127.501, a 

contracting officer may restrict 

competition to EDWOSBs if the 


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contracting officer has a reasonable 

expectation based on market research 

that: 

(1) Two or more EDWOSBs will 

submit offers for the contract; 

(2) The anticipated award price of the 

contract (including options) does not 

exceed $5,000,000, in the case of a 

contract assigned an NAICS code for 

manufacturing; or $3,000,000, in the 

case of all other contracts; and 

(3) Contract award may be made at a 

fair and reasonable price. 

(b) WOSB requirements. If market 

research indicates that the criteria in 

paragraph (a) are not met for restricting 

competition to EDWOSBs, then the 

contracting officer may restrict 

competition to WOSBs if: 

(1) The requirement is in an industry 

that SBA has designated as substantially 

underrepresented with respect to 

WOSBs; and 

(2) The contracting officer has a 

reasonable expectation based on market 

research that— 

(i) Two or more WOSBs will submit 

offers; 

(ii) The anticipated award price of the 

contract (including options) will not 

exceed $5,000,000, in the case of a 

contract assigned an NAICS code for 

manufacturing, or $3,000,000 in the case 

of all other contracts; and 

(iii) Contract award may be made at 

a fair and reasonable price. 

(c) 8(a) BD requirements. A 

contracting officer may not restrict 

competition to eligible EDWOSBs or 

WOSBs if an 8(a) BD Participant is 

currently performing the requirement 

under the 8(a) BD Program or SBA has 

accepted the requirement for 

performance under the authority of the 

8(a) BD program, unless SBA consented 

to release the requirement from the 8(a) 

BD program. 

(d) Contract file. When restricting 

competition to WOSBs in accordance 

with § 127.503(b), the contracting officer 

must document the contract file 

accordingly, including the type and 

extent of market research and the fact 

that the NAICS code assigned to the 

contract is for an industry that SBA has 

designated as a substantially 

underrepresented industry with respect 

to WOSBs. 

§ 127.504 What additional requirements 

must a concern satisfy to submit an offer 

on an EDWOSB or WOSB requirement? 

In order for a concern to submit an 

offer on a specific EDWOSB or WOSB 

requirement, the concern must ensure 

that the appropriate representations and 

certifications on ORCA are accurate and 

complete at the time it submits its offer 

to the contracting officer, including, but 

not limited to, the fact that: 

(a) It is small under the size standard 

corresponding to the NAICS code 

assigned to the contract; 

(b) It is listed on CCR and ORCA as 

an EDWOSB or WOSB; 

(c) There has been no material change 

in any of its circumstances affecting its 

EDWOSB or WOSB eligibility; and 

(d) It will meet the applicable 

percentages of work requirement as set 

forth in § 125.6 of this chapter 

(limitations on subcontracting rule). 

§ 127.505 May a non-manufacturer submit 

an offer on an EDWOSB or WOSB 

requirement for supplies? 

An EDWOSB or WOSB that is a nonmanufacturer, as defined in § 121.406(b) 

of this chapter, may submit an offer on 

an EDWOSB or WOSB contract for 

supplies, if it meets the requirements 

under the non-manufacturer rule set 

forth in § 121.406(b). 

§ 127.506 May a joint venture submit an 

offer on an EDWOSB or WOSB 

requirement? 

A joint venture may submit an offer 

on an EDWOSB or WOSB contract if the 

joint venture meets all of the following 

requirements: 

(a) Except as provided in 

§ 121.103(h)(3) of this chapter, the 

combined annual receipts or employees 

of the concerns entering into the joint 

venture must meet the applicable size 

standard corresponding to the NAICS 

code assigned to the contract; 

(b) The EDWOSB or WOSB 

participant of the joint venture must be 

designated on the CCR and the ORCA as 

an EDWOSB or WOSB; 

(c) The EDWOSB or WOSB must be 

the managing venturer of the joint 

venture, and an employee of the 

managing venturer must be the project 

manager responsible for the 

performance of the contract; 

(d) The joint venture must perform 

the applicable percentage of work 

required of the EDWOSB or WOSB 

offerors in accordance with § 125.6 of 

this chapter (limitations on 

subcontracting rule); and 

(e) The EDWOSB or WOSB venturer 

must perform a significant portion of the 

contract. 

Subpart F—Protests 

§ 127.600 Who may protest the status of a 

concern as an EDWOSB or WOSB? 

An interested party may protest the 

EDWOSB or WOSB status of an 

apparent successful offeror on an 

EDWOSB or WOSB contract. Any other 

party or individual may submit 

information to the contracting officer or 

SBA in an effort to persuade them to 

initiate a protest or to persuade SBA to 

conduct an examination pursuant to 

subpart D of this part. 

§ 127.601 May a protest challenging the 

size and status of a concern as an EDWOSB 

or WOSB be filed together? 

An interested party seeking to protest 

both the size and the EDWOSB or 

WOSB status of an apparent successful 

offeror on an EDWOSB or WOSB 

requirement must file two separate 

protests, one size protest pursuant to 

part 121 of this chapter and one 

EDWOSB or WOSB status protest 

pursuant to this subpart. An interested 

party seeking to protest only the size of 

an apparent successful EDWOSB or 

WOSB offeror must file a size protest to 

the contracting officer pursuant to part 

121 of this chapter. 

§ 127.602 What are the grounds for filing 

an EDWOSB or WOSB status protest? 

SBA will consider a protest 

challenging the status of a concern as an 

EDWOSB or WOSB if the protest 

presents credible evidence that the 

concern is not owned and controlled by 

one or more women who are United 

States citizens and, if the protest is in 

connection with an EDWOSB contract, 

that the concern is not at least 51% 

owned and controlled by one or more 

women who are economically 

disadvantaged. 

§ 127.603 What are the requirements for 

filing an EDWOSB or WOSB protest? 

(a) Format. Protests must be in writing 

and must specify all the grounds upon 

which the protest is based. A protest 

merely asserting that the protested 

concern is not an eligible EDWOSB or 

WOSB, without setting forth specific 

facts or allegations, is insufficient. 

(b) Filing. Protestors may deliver their 

written protests in person, by facsimile, 

by express delivery service, or by U.S. 

mail (postmarked within the applicable 

time period) to the following: 

(1) To the contracting officer, if the 

protestor is an offeror for the specific 

contract; or 

(2) To the D/GC, if the protest is 

initiated by the contracting officer or 

SBA. 

(c) Timeliness. (1) For negotiated 

acquisitions, an interested party must 

submit its protest by the close of 

business on the fifth business day after 

notification by the contracting officer of 

the apparent successful offeror or 

notification of award. 

(2) For sealed bid acquisitions, an 

interested party must submit its protest 

by close of business on the fifth 

business day after bid opening. 

(3) Any protest submitted after the 

time limits is untimely, unless it is from 

SBA or the contracting officer. A 


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contracting officer or SBA may file an 

EDWOSB or WOSB protest at any time 

after bid opening or notification of 

intended awardee, whichever applies. 

(4) Any protest received prior to bid 

opening or notification of intended 

awardee, whichever applies, is 

premature. 

(5) A timely filed protest applies to 

the procurement in question even if 

filed after award. 

(d) Referral to SBA. The contracting 

officer must forward to SBA any protest 

received, notwithstanding whether he or 

she believes it is premature, sufficiently 

specific, or timely. The contracting 

officer must send all protests, along 

with a referral letter, directly to the 

Director for Government Contracting, 

U.S. Small Business Administration, 

409 Third Street, SW., Washington, DC 

20416, or by fax to (202) 205–6390, 

Attn: Women-Owned Small Business 

Status Protest. The contracting officer’s 

referral letter must include information 

pertaining to the solicitation that may be 

necessary for SBA to determine 

timeliness and standing, including: The 

solicitation number; the name, address, 

telephone number and facsimile number 

of the contracting officer; whether the 

protestor submitted an offer; whether 

the protested concern was the apparent 

successful offeror; when the protested 

concern submitted its offer; whether the 

procurement was conducted using 

sealed bid or negotiated procedures; the 

bid opening date, if applicable; when 

the protest was submitted to the 

contracting officer; when the protestor 

received notification about the apparent 

successful offeror, if applicable; and 

whether a contract has been awarded. 

The D/GC or designee will decide the 

merits of EDWOSB or WOSB status 

protests. 

§ 127.604 How will SBA process an 

EDWOSB or WOSB status protest? 

(a) Notice of receipt of protest. Upon 

receipt of the protest, SBA will notify 

the contracting officer and the protestor 

of the date SBA received the protest and 

whether SBA will process the protest or 

dismiss it under paragraph (b) of this 

section. 

(b) Dismissal of protest. If SBA 

determines that the protest is premature, 

untimely, nonspecific, or is based on 

nonprotestable allegations, SBA will 

dismiss the protest and will send the 

contracting officer and the protestor a 

notice of dismissal, citing the reason(s) 

for the dismissal. Notwithstanding 

SBA’s dismissal of the protest, SBA 

may, in its sole discretion, consider the 

protest allegations in determining 

whether to conduct an examination of 

the protested concern pursuant to 

subpart D of this part. 

(c) Notice to protested concern. If SBA 

determines that the protest is timely, 

sufficiently specific and is based upon 

protestable allegations, SBA will: 

(1) Notify the protested concern of the 

protest and of its right to submit 

information responding to the protest 

within five business days from the date 

of the notice; and 

(2) Forward a copy of the protest to 

the protested concern. 

(d) Time period for determination. 

SBA will determine the EDWOSB or 

WOSB status of the protested concern 

within 15 business days after receipt of 

the protest, or within any extension of 

that time that the contracting officer 

may grant SBA. If SBA does not issue 

its determination within the 15-day 

period, the contracting officer may 

award the contract, unless the 

contracting officer has granted SBA an 

extension. The contracting officer may 

award the contract or begin performance 

after receipt of a protest if the 

contracting officer determines in writing 

that an award must be made to protect 

the public interest. 

(e) Notification of determination. SBA 

will notify the contracting officer, the 

protestor, and the protested concern in 

writing of its determination. If SBA 

sustains the protest, SBA will issue a 

decision explaining the basis of its 

determination and requiring that the 

concern remove its designation on the 

CCR and ORCA as an EDWOSB or 

WOSB, as appropriate. 

(f) Effect of determination. SBA’s 

determination is effective immediately 

and is final unless overturned by OHA 

on appeal pursuant to § 127.605 of this 

part. 

(1) The purpose of the protest process 

is to ensure that contracts are awarded 

to, and performed by, eligible WOSB 

and EDWOSB concerns. A contracting 

officer shall not award a contract to an 

ineligible concern, and shall not 

authorize an ineligible concern to begin 

performance. 

(2) Where award was made and 

performance commenced before receipt 

of a negative final agency decision, the 

contracting officer may terminate the 

contract, not exercise any option, or not 

award further task or delivery orders. 

(3) Whether or not a contracting 

officer decides to not allow an ineligible 

concern to fully perform a contract 

under paragraph (f)(2) of this section or 

under § 134.704 of this title, the 

contracting officer cannot count the 

award as one to an EDWOSB or WOSB 

and must update the Federal 

Procurement Data System–Next 

Generation (FPDS–NG) and other 

databases from the date of award 

accordingly. 

(4) A concern that has been found to 

be ineligible may not represent itself as 

a WOSB or EDWOSB on another 

procurement until it cures the reason for 

its ineligibility. A concern that believes 

in good faith that it has cured the 

reason(s) for its ineligibility may request 

an examination under the procedures 

set forth in § 127.405. 

§ 127.605 What are the procedures for 

appealing an EDWOSB or WOSB status 

protest decision? 

The protested concern, the protestor, 

or the contracting officer may file an 

appeal of a WOSB or EDWOSB status 

protest determination with the SBA’s 

Office of Hearings and Appeals (OHA) 

in accordance with part 134 of this 

chapter. 

Subpart G—Penalties 

§ 127.700 What penalties may be imposed 

under this part? 

Persons or concerns that falsely selfcertify or otherwise misrepresent a 

concern’s status as an EDWOSB or 

WOSB for purposes of receiving Federal 

contract assistance under this part are 

subject to: 

(a) Suspension and Debarment 

pursuant to the procedures set forth in 

the Federal Acquisition Regulations, 

subpart 9.4 of title 48 of the Code of 

Federal Regulations; 

(b) Administrative and civil remedies 

prescribed by the False Claims Act, 31 

U.S.C. 3729–3733 and under the 

Program Fraud Civil Remedies Act, 31 

U.S.C. 3801–3812; 

(c) Administrative and criminal 

remedies as described at Sections 16(a) 

and (d) of the Small Business Act, 15 

U.S.C. 645(a) and (d), as amended; 

(d) Criminal penalties under 18 U.S.C. 

1001; and 

(e) Any other penalties as may be 

available under law. 

PART 134—RULES OF PROCEDURE 

GOVERNING CASES BEFORE THE 

OFFICE OF HEARINGS AND APPEALS 

■ 8. The Authority citation for 13 CFR 

continues to read as follows: 

Authority: 5 U.S.C. 504, 15 U.S.C. 632, 

634(b)(6), 637(a), 637(m), 648(l), 656(i) and 

687(c); E.O. 12549, 51 FR 6370, 3 CFR, 1986 

Comp., p. 189. 

Subpart A—General Rules 

■ 9. Amend § 134.102 by redesignating 

paragraph (s) as paragraph (t) and 

adding new paragraph (s) to read as 

follows: 


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§ 134.102 Jurisdiction of OHA 

* * * * * 

(s) Appeals from Women-Owned 

Small Business or EconomicallyDisadvantaged Women-Owned Small 

Business protest determinations under 

Part 127 of this chapter; 

* * * * * 

Subpart E—Rules of Practice for 

Appeals from Service-Disabled Veteran 

Owned Small Business Concern 

Protests 

■ 10. Amend § 134.515 by revising 

paragraph (b) to read as follows: 

§ 134.515 What are the effects of the 

Judge’s decision? 

* * * * * 

(b) The Judge may reconsider an 

appeal decision within 20 calendar days 

after issuance of the written decision. 

Any party who has appeared in the 

proceeding, or SBA, may request 

reconsideration by filing with the Judge 

and serving a petition for 

reconsideration on all the parties to the 

appeal within 20 calendar days after 

service of the written decision. The 

request for reconsideration must clearly 

show an error of fact or law material to 

the decision. The Judge may also 

reconsider a decision on his or her own 

initiative. 

* * * * * 

■ 11. Add new subpart G to read as 

follows: 

Subpart G—Rules of Practice for Appeals 

From Women-Owned Small Business 

Concern (WOSB) and Economically 

Disadvantaged WOSB Concern (EDWOSB) 

Protests 

134.701 What is the scope of the rules in 

this subpart G? 

134.702 Who may appeal? 

134.703 When must a person file an appeal 

from an WOSB or EDWOSB protest 

determination? 

134.704 What are the effects of the appeal 

on the procurement at issue? 

134.705 What are the requirements for an 

appeal petition? 

134.706 What are the service and filing 

requirements? 

134.707 When does the D/GC transmit the 

protest file and to whom? 

134.708 What is the standard of review? 

134.709 When will a Judge dismiss an 

appeal? 

134.710 Who can file a response to an 

appeal petition and when must such a 

response be filed? 

134.711 Will the Judge permit discovery 

and oral hearings? 

134.712 What are the limitations on new 

evidence? 

134.713 When is the record closed? 

134.714 When must the Judge issue his or 

her decision? 

134.715 Can a Judge reconsider his 

decision? 

Subpart G—Rules of Practice for 

Appeals From Women-Owned Small 

Business Concern (WOSB) and 

Economically Disadvantaged WOSB 

Concern (EDWOSB) Protests 

§ 134.701 What is the scope of the rules in 

this subpart G? 

(a) The rules of practice in this 

subpart G apply to all appeals to OHA 

from formal protest determinations 

made by the Director for Government 

Contracting (D/GC) in connection with a 

Women-Owned Small Business (WOSB) 

or Economically Disadvantaged WOSB 

(EDWOSB) status protest issued 

pursuant to part 127 of this chapter. 

Appeals under this subpart include 

issues related to whether the concern is 

owned and controlled by one or more 

women who are United States citizens 

and, if the appeal is in connection with 

an EDWOSB contract, that the concern 

is at least 51% owned and controlled by 

one or more women who are 

economically disadvantaged. This 

includes appeals from determinations 

by the D/GC that the protest was 

premature, untimely, nonspecific, or not 

based upon protestable allegations. 

(b) Except where inconsistent with 

this subpart, the provisions of Subpart 

A and B of this part apply to appeals 

listed in paragraph (a) of this section. 

(c) Appeals relating to formal size 

determinations and NAICS Code 

designations are governed by subpart C 

of this part. 

§ 134.702 Who may appeal? 

Appeals from WOSB or EDWOSB 

protest determinations may be filed 

with OHA by the protested concern, the 

protestor, or the contracting officer 

responsible for the procurement affected 

by the protest determination. 

§ 134.703 When must a person file an 

appeal from an WOSB or EDWOSB protest 

determination? 

Appeals from a WOSB or EDWOSB 

protest determination must be 

commenced by filing and serving an 

appeal petition within 10 business days 

after the appellant receives the WOSB or 

EDWOSB protest determination (see 

§ 134.204 for filing and service 

requirements). An untimely appeal will 

be dismissed. 

§ 134.704 What are the effects of the 

appeal on the procurement at issue? 

Appellate decisions apply to the 

procurement in question. If the 

contracting officer awarded the contract 

to a concern that OHA finds to be 

ineligible, then the contracting officer 

may terminate the contract, not exercise 

any options, or not award further task or 

delivery orders. 

§ 134.705 What are the requirements for an 

appeal petition? 

(a) Format. There is no required 

format for an appeal petition. However, 

it must include the following 

information: 

(1) The solicitation or contract 

number, and the name, address, and 

telephone number of the contracting 

officer; 

(2) A statement that the petitioner is 

appealing a WOSB or EDWOSB protest 

determination issued by the D/GC and 

the date that the petitioner received it; 

(3) A full and specific statement as to 

why the WOSB or EDWOSB protest 

determination is alleged to be based on 

a clear error of fact or law, together with 

an argument supporting such allegation; 

and 

(4) The name, address, telephone 

number, facsimile number, and 

signature of the appellant or its attorney. 

(b) Service of appeal. The appellant 

must serve the appeal petition upon 

each of the following: 

(1) The D/GC at U.S. Small Business 

Administration, 409 3rd Street, SW., 

Washington, DC 20416, facsimile (202) 

205–6390; 

(2) The contracting officer responsible 

for the procurement affected by a WOSB 

or EDWOSB determination; 

(3) The protested concern (the 

business concern whose WOSB or 

EDWOSB status is at issue) or the 

protester; and 

(4) SBA’s Office of General Counsel, 

Associate General Counsel for 

Procurement Law, U.S. Small Business 

Administration, 409 3rd Street, SW., 

Washington, DC 20416, facsimile 

number (202) 205–6873. 

(c) Certificate of Service. The 

appellant must attach to the appeal 

petition a signed certificate of service 

meeting the requirements of 

§ 134.204(d). 

§ 134.706 What are the service and filing 

requirements? 

The provisions of § 134.204 apply to 

the service and filing of all pleadings 

and other submissions permitted under 

this subpart unless otherwise indicated 

in this subpart. 

§ 134.707 When does the D/GC transmit 

the protest file and to whom? 

Upon receipt of an appeal petition, 

the D/GC will send to OHA a copy of 

the protest file relating to that 

determination. The D/GC will certify 

and authenticate that the protest file, to 

the best of his or her knowledge, is a 

true and correct copy of the protest file. 

§ 134.708 What is the standard of review? 

The standard of review for an appeal 

of a WOSB or EDWOSB protest 


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determination is whether the D/GC’s 

determination was based on clear error 

of fact or law. 

§ 134.709 When will a Judge dismiss an 

appeal? 

(a) The presiding Judge will dismiss 

the appeal if the appeal is untimely filed 

under § 134.703. 

(b) The matter has been decided or is 

the subject of adjudication before a 

court of competent jurisdiction over 

such matters. However, once an appeal 

has been filed, initiation of litigation of 

the matter in a court of competent 

jurisdiction will not preclude the Judge 

from rendering a final decision on the 

matter. 

§ 134.710 Who can file a response to an 

appeal petition and when must such a 

response be filed? 

Although not required, any person 

served with an appeal petition may file 

and serve a response supporting or 

opposing the appeal if he or she wishes 

to do so. If a person decides to file a 

response, the response must be filed 

within 7 business days after service of 

the appeal petition. The response 

should present argument. 

§ 134.711 Will the Judge permit discovery 

and oral hearings? 

Discovery will not be permitted, and 

oral hearings will not be held. 

§ 134.712 What are the limitations on new 

evidence? 

The Judge may not admit evidence 

beyond the written protest file nor 

permit any form of discovery. All 

appeals under this subpart will be 

decided solely on a review of the 

evidence in the written protest file, 

arguments made in the appeal petition, 

and response(s) filed thereto. 

§ 134.713 When is the record closed? 

The record will close when the time 

to file a response to an appeal petition 

expires pursuant to 13 CFR 134.710. 

§ 134.714 When must the Judge issue his 

or her decision? 

The Judge shall issue a decision, 

insofar as practicable, within 15 

business days after close of the record. 

§ 134.715 Can a Judge reconsider his 

decision? 

(a) The Judge may reconsider an 

appeal decision within 20 calendar days 

after issuance of the written decision. 

Any party who has appeared in the 

proceeding, or SBA, may request 

reconsideration by filing with the Judge 

and serving a petition for 

reconsideration on all the parties to the 

appeal within 20 calendar days after 

service of the written decision. The 

request for reconsideration must clearly 

show an error of fact or law material to 

the decision. The Judge may also 

reconsider a decision on his or her own 

initiative. 

(b) The Judge may remand a 

proceeding to the D/GC for a new WOSB 

or EDWOSB determination if the D/GC 

fails to address issues of decisional 

significance sufficiently, does not 

address all the relevant evidence, or 

does not identify specifically the 

evidence upon which it relied. Once 

remanded, OHA no longer has 

jurisdiction over the matter, unless a 

new appeal is filed as a result of the new 

WOSB or EDWOSB determination. 

Sandy Baruah, 

Acting Administrator. 

[FR Doc. E8–23138 Filed 9–26–08; 4:15 pm] 

BILLING CODE 8025–01–P 

DEPARTMENT OF TRANSPORTATION 

Federal Aviation Administration 

14 CFR Part 39 

[Docket No. FAA–2008–0149; Directorate 

Identifier 2007–NM–319–AD; Amendment 

39–15651; AD 2008–17–13] 

RIN 2120–AA64 

Airworthiness Directives; Boeing 

Model 737–100, –200, –200C, –300, 

–400, and –500 Series Airplanes 

AGENCY: Federal Aviation 

Administration (FAA), DOT. 

ACTION: Final rule. 

SUMMARY: We are adopting a new 

airworthiness directive (AD) for certain 

Boeing Model 737–100, –200, –200C, 

–300, –400, and –500 series airplanes. 

This AD requires replacing the existing 

straight-to-90-degree hose assembly for 

the Lavatory ‘‘A’’ water supply. The 

replacement is a new straight hose 

assembly and a separate 90-degree 

elbow fitting. This AD results from a 

report of a separated hose assembly for 

the passenger water system. We are 

issuing this AD to prevent a water leak 

into the flight deck ceiling, which could 

result in an electrical short and possible 

loss of several functions essential to safe 

flight. 

DATES: This AD is effective November 5, 

2008. 

The Director of the Federal Register 

approved the incorporation by reference 

of a certain publication listed in this AD 

as of November 5, 2008. 

ADDRESSES: For service information 

identified in this AD, contact Boeing 

Commercial Airplanes, P.O. Box 3707, 

Seattle, Washington 98124–2207. 

Examining the AD Docket 

You may examine the AD docket on 

the Internet at http:// 

www.regulations.gov; or in person at the 

Docket Management Facility between 9 

a.m. and 5 p.m., Monday through 

Friday, except Federal holidays. The AD 

docket contains this AD, the regulatory 

evaluation, any comments received, and 

other information. The address for the 

Docket Office (telephone 800–647–5527) 

is the Document Management Facility, 

U.S. Department of Transportation, 

Docket Operations, M–30, West 

Building Ground Floor, Room W12–140, 

1200 New Jersey Avenue, SE., 

Washington, DC 20590. 

FOR FURTHER INFORMATION CONTACT: 

Marcia Smith, Aerospace Engineer, 

Cabin Safety and Environmental 

Systems Branch, ANM–150S, FAA, 

Seattle Aircraft Certification Office, 

1601 Lind Avenue, SW., Renton, 

Washington 98057–3356; telephone 

(425) 917–6484; fax (425) 917–6590. 

SUPPLEMENTARY INFORMATION: 

Discussion 

We issued a notice of proposed 

rulemaking (NPRM) to amend 14 CFR 

part 39 to include an airworthiness 

directive (AD) that would apply to 

certain Boeing Model 737–100, –200, 

–200C, –300, –400, and –500 series 

airplanes. That NPRM was published in 

the Federal Register on February 8, 

2008 (73 FR 7488). That NPRM 

proposed to require replacing the 

existing straight-to-90-degree hose 

assembly for the Lavatory ‘‘A’’ water 

supply. The replacement is a new 

straight hose assembly and a separate 

90-degree elbow fitting. 

Comments 

We gave the public the opportunity to 

participate in developing this AD. We 

considered the comments received from 

the four commenters. 

Support for the NPRM 

Boeing concurs with the contents of 

the proposed rule. Air Transport 

Association, on behalf of its member, 

United Airlines (UA), states that UA 

supports the proposed rule as drafted. 

Margie Tillotson, a private citizen, has 

no objections to the NPRM. 

Requests To Address Parts 

Manufacturer Approval (PMA) Parts 

Aviation Data Research (ADR) and 

Modification and Replacement Parts 

Association (MARPA), make several 

comments related to PMA parts. ADR 

and MARPA state that the NPRM should 

be modified to embrace PMA 

alternatives to the original equipment 


ebenthall on PROD1PC60 with RULES