62258 Federal Register / Vol. 75, No. 194 / Thursday, October 7, 2010 / Rules and Regulations 

SMALL BUSINESS ADMINISTRATION 

13 CFR Parts 121, 124, 125, 126, 127, 

and 134 

RIN 3245–AG06 

Women-Owned Small Business 

Federal Contract Program 

AGENCY: Small Business Administration. 

ACTION: Final rule. 

SUMMARY: The U.S. Small Business 

Administration (SBA) is issuing this 

Final Rule to amend its regulations 

governing small business contracting 

procedures. This Final Rule amends 

part 127, entitled ‘‘The Women-Owned 

Small Business Federal Contract 

Assistance Procedures,’’ and implements 

procedures authorized by the Small 

Business Act (Pub. L. 85–536, as 

amended) to help ensure a level playing 

field on which Women-Owned Small 

Businesses can compete for Federal 

contracting opportunities. 

DATES: This rule is effective February 4, 

2011. 

FOR FURTHER INFORMATION CONTACT: 

Dean Koppel, Assistant Director, Office 

of Policy and Research, Office of 

Government Contracting, U.S. Small 

Business Administration, 409 Third 

Street, SW., Washington, DC 20416. 

SUPPLEMENTARY INFORMATION: 

I. Background 

On December 21, 2000, Congress 

enacted the Small Business 

Reauthorization Act of 2000, Public Law 

106–554. Section 811 of that Act added 

a new section 8(m), 15 U.S.C. 637(m), 

authorizing Federal contracting officers 

to restrict competition to eligible 

Women-Owned Small Businesses 

(WOSBs) or Economically 

Disadvantaged Women-Owned Small 

Business (EDWOSBs) for Federal 

contracts in certain industries. The 

purpose of this authority, referred to as 

the WOSB Program, is to enable 

contracting officers to identify and 

establish a sheltered market for 

competition among WOSBs or 

EDWOSBs for the provision of goods 

and services to the Federal Government. 

H.R. Rep. No. 106–879, at 2 (2000) 

(publicly available at http:// 

thomas.loc.gov/cgi-bin/cpquery/ 

T?&report=hr879&dbname=106&). 

Section 8(m) of the Small Business 

Act (Act) sets forth certain criteria for 

the WOSB Program. Specifically, the 

Act provides the following requirements 

in order for a contracting officer to 

restrict competition for EDWOSBs or 

WOSBS under this program: 

• An eligible concern must be not less 

than 51 percent owned by one or more 

women who are ‘‘economically 

disadvantaged’’ (i.e. an EDWOSB). 

However, SBA may waive this 

requirement of economic disadvantage 

for procurements in industries in which 

WOSBs are ‘‘substantially 

underrepresented.’’ 

• A WOSB is a small business 

concern owned and controlled by 

women, as defined in section 3(n) of the 

Act. Section 3(n) of the Act defines a 

women owned business as one that is at 

least 51 percent owned by one or more 

women and the management and daily 

business operations of the concern is 

controlled by one or more women. 15 

U.S.C. 632(n). 

• The contracting officer must have a 

reasonable expectation that, in 

industries in which WOSBs are 

underrepresented, two or more 

EDWOSBs will submit offers for the 

contract or, in industries where WOSBs 

are substantially underrepresented, two 

or more WOSBs will submit offers for 

the contract. 

• The anticipated award price of the 

contract must not exceed $5 million in 

the case of manufacturing contracts and 

$3 million in the case of all other 

contracts. 

• In the estimation of the contracting 

officer, the contract can be awarded at 

a fair and reasonable price. 

• Each competing concern must be 

duly certified by a Federal agency, a 

State government, or a national 

certifying entity approved by SBA, as an 

EDWOSB or WOSB, or must certify to 

the contracting officer and provide 

adequate documentation that it is an 

EDWOSB or WOSB. The statute imposes 

penalties for a concern’s 

misrepresentation of its status. 

• The contract must be for the 

procurement of goods or services with 

respect to an industry identified by SBA 

pursuant to a statutorily mandated 

study as one in which EDWOSBs are 

underrepresented or substantially 

underrepresented or WOSBs are 

substantially underrepresented with 

respect to Federal procurement 

contracting. 

The SBA has issued several 

rulemakings concerning this program. 

Most recently, SBA issued a proposed 

rule on March 4, 2010 (75 FR 10029) 

that proposed amending 13 CFR part 

127, which had been promulgated in a 

Final Rule on October 1, 2008 (entitled 

‘‘The Women-Owned Small Business 

Federal Contract Assistance 

Procedures,’’ RIN 3245–AF40). In 

particular, the proposed rule: Identified 

83 industries by four digit North 

American Industry Classification 

System (NAICS) codes in which WOSBs 

are underrepresented or substantially 

underrepresented; removed the 

requirement that each Federal agency 

must certify that it had engaged in 

discrimination against WOSBs in order 

for the program to apply to that agency; 

allowed WOSBs and EDWOSBs to selfcertify their status as long as adequate 

documents were provided to support 

the certification; allowed WOSBs or 

EDWOSBs to be certified by approved 

third-party certifiers, including Federal 

agencies; and expanded the eligibility 

examination process to ensure the 

eligibility of WOSBs or EDWOSBs for 

the program. The proposed rule also set 

forth the eligibility criteria for the 

program, as well as the protest and 

appeal process for WOSB and EDWOSB 

status protests. 

In the proposed rule, SBA stated 

several times that it was seeking 

comments on any and all aspects of the 

rule. In particular, though, SBA sought 

comments on the data used to identify 

the 83 industries, as well as the 

proposed new certification procedures. 

SBA stated that comments were due on 

May 3, 2010, which provided interested 

parties 60 days to submit these 

comments. SBA received a total of 998 

comments on the rule. Many of these 

comments contained the same or similar 

remarks and virtually all of the 

comments supported the rule, 

commended SBA for its efforts, and 

urged the agency to expeditiously 

promulgate final regulations since 

WOSBs have been waiting eleven years 

for the program. 

Many of the comments supported the 

proposed rule on the grounds that: 

Women are underrepresented in Federal 

contracting; the new program will level 

the playing field for WOSBs; the new 

program will help businesses to grow; 

and it will be beneficial to the economy. 

Few comments did not support the 

proposed rule on the grounds that the 

scope was too restrictive in its 

application to WOSBs, and that they 

opposed gender based set asides, 

believed that the program creates an 

artificial advantage for a certain group, 

or that the program was merely a token 

to WOSBs. All comments can be viewed 

on the Federal rulemaking portal at 

http://www.regulations.gov. 

The comments relating to specific 

sections of the rule are discussed in 

further detail below. 

In addition, the SBA notes that 

although this is a final rule, it is not 

effectively immediately. The SBA is in 

the process of working with the Federal 

Acquisition Regulatory Council to 

implement this program in the Federal 

Acquisition Regulations (FAR). In 

addition, the SBA is working with the 

Integrated Acquisition Environment to 


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make changes to the various Federal 

procurement data systems, which will 

be affected by this rule. As a result, the 

SBA believed it was necessary to 

publish the rule as final, but to also 

acknowledge that there are additional 

measures that need to be taken to fully 

implement the program. 

II. Summary of Comments and Agency 

Response to Comments 

A. Eligible industries 

a. General Comments on the Eligible 

Industries 

SBA’s proposed rule identified 83 

NAICS codes that would be eligible for 

Federal contract assistance under the 

WOSB Program. Most comments 

received on the proposed rule’s 

identification of the 83 NAICS codes 

were overwhelmingly supportive. In 

fact, SBA received hundreds of 

comments which supported the 

identification of 83 NAICS categories. 

For example, many comments stated 

they are ‘‘extremely pleased’’ that all 83 

NAICS categories have been selected. 

Other comments applauded SBA’s 

‘‘efforts to increase women-owned 

business participation in federal 

contracting.’’ Additional comments 

stated that the ‘‘rule is a significant 

improvement over the rule proposed in 

2007.’’ 

SBA also received dozens of 

comments that, while supporting the 83 

eligible NAICS codes, sought the 

inclusion of additional NAICS 

categories. Some of the comments stated 

that all NAICS categories should be 

eligible, while other comments 

identified specific additional NAICS 

categories for eligibility. 

The comments which requested 

eligibility of all NAICS codes asserted 

that SBA’s other programs are not 

limited to certain NAICS codes. In 

addition, some of these comments stated 

that no court has required a study prior 

to establishing a program that provided 

contracting assistance on the basis of 

gender and SBA’s requirement of such 

a study limits the eligibility of NAICS 

categories. 

The comments which requested the 

addition of specific NAICS categories 

based their requests on various 

viewpoints, including the belief that 

WOSBs in a NAICS code received few 

contracts or a small dollar amount of 

contracts, or that only a few WOSBs 

participate in a NAICS code, or that 

WOSBs sought contracts in a NAICS 

code, but did not receive the contract. 

While SBA acknowledges the 

concerns expressed in these comments 

relating to the need to increase WOSB 

participation in Federal contracting, 

section 8(m) of the Act sets forth certain 

statutory requirements for this program 

that specify the manner in which SBA 

is to identify included NAICS 

categories. In particular, section 8(m) 

instructs SBA to conduct a study to 

identify industries in which WOSBs are 

underrepresented with respect to 

Federal procurement contracting. See 15 

U.S.C. 637(m)(4). Therefore, SBA must 

identify the program’s eligible 

industries based on a study which 

analyzes WOSBs’ underrepresentation 

in a specific industry. 

Shortly after section 8(m) was 

enacted, and pursuant to the 

requirement of paragraph (4) of the law, 

SBA, using its own internal resources, 

conducted a study to identify the 

industries in which WOSBs are 

underrepresented with respect to 

Federal procurement contracting. SBA 

initially completed its study in 

September 2001, and contracted with 

the National Academy of Sciences 

(NAS) to review the study before 

publication. In March of 2005, the 

National Research Council, which 

functions under the auspices of the NAS 

and other National Academies, issued 

an independent evaluation concluding 

that SBA’s study was flawed and 

offering various recommendations for a 

revised study. 

In response to this evaluation, SBA 

issued a solicitation in October 2005 

seeking a contractor to perform a revised 

study in accordance with the NAS 

recommendations. In February 2006, 

SBA awarded a contract to the 

Kauffman-RAND Institute for 

Entrepreneurship Public Policy (RAND) 

to complete a revised study of the 

underrepresentation of WOSBs in 

Federal prime contracts by industry 

code. The resulting study—the RAND 

Report—was published in April 2007 

and is available to the public at 

http://www.RAND.org/pubs/ 

technical_reports/TR442. 

As the RAND Report explains more 

fully, underrepresentation is typically 

referred to as a disparity ratio. A 

‘‘disparity ratio’’ is a measure comparing 

the utilization of WOSBs in Federal 

contracting in a particular NAICS code 

to their availability for such contracts in 

a particular NAICS code. A disparity 

ratio of 1.0 suggests that firms of a 

particular type are awarded contracts in 

the same proportion as their 

representation in the industry—that is, 

there is no disparity. A disparity ratio of 

less than 1.0 suggests that the firms are 

underrepresented in Federal 

contracting, and a ratio greater than 1.0 

suggests that they are overrepresented. 

This disparity ratio provides an estimate 

of the extent to which WOSBs that are 

available for Federal contracts in 

specific industries are actually being 

utilized to perform such contracts. One 

of the recommendations made by the 

NAS Review was to create four disparity 

ratios of underrepresentation using a 

combination of different databases and 

different measures. The four disparity 

ratios recommended by the NAS Review 

were the following: (1) Use contract 

dollars with the Survey of Business 

Owners (SBO) database; (2) use contract 

dollars with the Central Contractor 

Registry (CCR) database; (3) use number 

of contracts with the SBO database; and 

(4) use the number of contracts with the 

CCR database. 

The RAND Report, in accordance with 

the NAS recommendations, created 

various disparity ratios to identify the 

NAICS codes which showed 

underrepresentation based on a 

disparity ratio. Using the RAND Report, 

SBA identified a viable and appropriate 

methodology of identifying industries in 

which WOSBs are underrepresented or 

substantially underrepresented. SBA 

did this in accordance with the statute. 

Accordingly, in view of the statute’s 

explicit requirements, SBA cannot 

simply deem a NAICS code eligible 

under the WOSB Program based solely 

on a request set forth in the public 

comments. 

b. Methodology: Dollars and Numbers 

In the proposed rule, SBA identified 

83 NAICS categories as eligible under 

the WOSB Program. The RAND Report 

found these 83 NAICS categories to be 

underrepresented or substantially 

underrepresented using the numbers 

and dollars approaches. That is, the 

industry was identified as eligible if the 

industry was underrepresented or 

substantially underrepresented using 

either the numbers or the dollars 

approach. SBA explained in the 

proposed rule that, for purposes of 

section 8(m), both the dollars and 

numbers approaches are viable and 

appropriate means of identifying 

industries in which WOSBs are 

underrepresented or substantially 

underrepresented. A previous version of 

the proposed regulations identified only 

4 NAICS as eligible because it used only 

the dollars approach and not the 

number approach to identify eligible 

industries. 

SBA received hundreds of comments 

which expressed general support for the 

identification of 83 NAICS codes, which 

relied upon the use of both the numbers 

and dollars approaches. In addition, 

SBA received hundreds of comments 

which agreed specifically with the use 

of both the dollars and numbers 

approaches identifying the eligible 


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industries under the WOSB Program. 

For example, one comment stated that 

the use of both the numbers and dollars 

approaches is a better mechanism ‘‘to 

measure underrepresentation and 

performance of WOSBs.’’ 

As explained in the proposed rule, the 

dollars approach compares the 

proportion of the dollar value of 

contracts in a particular NAICS code 

awarded to WOSBs with the proportion 

of gross receipts (revenues) in that 

NAICS code earned by WOSBs. The 

numbers approach compares the 

proportion of contracts (calculated in 

terms of number of contracts) awarded 

to WOSBs in a particular NAICS code 

with the number of WOSBs in that 

particular NAICS code. 

SBA determined that both approaches 

represent legitimate and complementary 

interpretations of the statutory term 

‘‘underrepresentation.’’ Specifically, 

underrepresentation can occur when 

WOSBs are not being awarded Federal 

contracting dollars in proportion to their 

economic representation (measured by 

their gross receipts) in an industry. But 

underrepresentation can also occur 

where there is disparity in the number 

of contracts being awarded to WOSBs, 

even if there is no measured disparity in 

contract dollars, due to a handful of 

WOSBs winning large-dollar contracts. 

SBA also stated in the proposed rule 

that applying the section 8(m) program 

in these industries would reduce the 

effects of the discrimination affecting 

women-owned small businesses, 

consistent with Congress’s goals, and 

that both numbers and dollars 

approaches are substantially related to 

the purpose of the WOSB Program. 

Based on the reasons set forth herein 

and in the proposed rule, as well as the 

support SBA received from the public 

comments on this issue, SBA has 

promulgated the proposed rule as final 

and will apply both the numbers and 

dollars approach to identify eligible 

industries. 

c. Methodology: Central Contractor 

Registry (CCR) and Survey of Business 

Owners (SBO) Databases 

For the availability component of the 

disparity ratio, RAND used two different 

databases: The 2002 Survey of Business 

Owners (SBO) from the five-year 

Economic Census, and the FY 2006 

Central Contractor Registration (CCR) 

registration database. The proposed rule 

used the CCR database rather than the 

SBO database to identify the 83 eligible 

industries under the WOSB Program. 

The proposed rule explained that SBA 

selected the CCR database for various 

reasons, including the fact that the CCR 

database, as compared with the SBO 

database as currently constituted, is 

more likely to capture those firms ready, 

willing and able to compete for Federal 

contracts. 

SBA received hundreds of comments 

which addressed the CCR and SBO 

databases used in the RAND Report. The 

overwhelming majority of these 

comments supported the proposed 

methodology used to identify eligible 

industries under the WOSB Program. 

Specifically, SBA received dozens of 

comments which supported the use of 

the CCR database to identify the eligible 

industries. Several of these comments 

supported the use of CCR because it is 

a more comprehensive and complete 

database. 

SBA also received several comments 

that not only supported the use of the 

CCR database, but urged SBA to use the 

SBO database from the RAND Report in 

addition to the CCR database to identify 

eligible industries. Specifically, these 

comments stated that SBA should deem 

as underrepresented those industries 

that appear underrepresented in two or 

more of the four approaches identified 

in the report issued by the National 

Academy of Sciences (NAS) 

recommendations. 

Additional comments received by 

SBA supported the use of only the SBO 

database (and not the CCR) from the 

RAND Report to identify the eligible 

industries. Some of these comments 

stated that the use of CCR undercuts 

utilization and perpetuates 

discrimination because not all WOSBs 

register in CCR due to their belief that 

there is no meaningful competition in 

Federal procurement for women-owned 

businesses. 

As explained in the proposed rule, 

SBA decided not to use the SBO 

database used in the RAND Report and 

concluded that the CCR database used 

in the RAND report is currently the best 

available database to use to determine 

the availability component of the 

disparity ratios because of certain 

limitations in the existing SBO dataset. 

SBA proposed not to use the 2002 SBO 

database used in the RAND Report for 

the following reasons: 

• The SBO data in the RAND Report 

do not disaggregate industry groupings 

beyond the two-digit NAICS level. In 

the NAS 2005 report examining SBA’s 

2002 internal study, NAS criticized 

SBA’s use of the two-digit Major Group 

Standard Industrial Classification (SIC) 

industry codes as inadequate. The twodigit Major Group SIC designation 

corresponds to the current three-digit 

Subsector NAICS designation. Thus, 

while NAS criticized SBA’s use of twodigit SIC information, the SBO two-digit 

NAICS data are even less precise than 

the two-digit SIC data. Both the CCR 

and the FPDS/NG, in contrast, provide 

the capability to use four-digit NAICS 

classifications. 

• The SBO database in the RAND 

Report generally considers all firms in 

the economy, and not simply the 

number of firms that have explicitly 

indicated that they are ready, willing, 

and able to perform Federal contracts. In 

contrast, because firms are generally 

required to register on the CCR database 

prior to bidding on a Federal contract, 

a firm’s presence in the CCR specifically 

reflects its willingness to bid on a 

Federal contract. SBA recognized, 

however, that its reliance on the CCR 

database could understate the 

availability of women-owned firms, 

since a firm’s inability to bid on Federal 

contracts, and therefore its reluctance to 

register on the CCR could itself result 

from gender discrimination. 

• The SBO database in the RAND 

Report does not distinguish between 

WOSBs and women-owned businesses 

in general, large and small. The CCR, in 

contrast, contains self-reported 

information on whether a business is 

small. And the procedures authorized 

by section 8(m) are specifically targeted 

towards only small businesses owned 

by women. 

• The SBO database in the RAND 

Report is generally not available for two 

years after the survey is completed. CCR 

data, in contrast, are updated 

continuously and made available 

immediately. Thus, in this instance, the 

SBO data available to RAND at the time 

of the study was less recent than the 

CCR data. SBA recognized, however, 

that the degree to which data regarding 

business ownership and economic size 

change from year to year is unclear, and 

therefore that it was not clear how much 

weight this distinction should carry. 

As detailed in the proposed rule, SBA 

notes that the Census Bureau provided 

SBA with a data set for the availability 

component of the disparity ratio which 

came from the 2002 Survey of Business 

Owners (SBO) collected through the 

5-year Economic Census for firms with 

employees (hereinafter referred to as 

‘‘Census SBO data’’). SBA elected not to 

use this dataset because that data 

addresses all firms across the economy 

as a whole, and does not select for firms 

which are ready, willing and able to 

engage in federal procurement 

contracting. For this reason, SBA is of 

the view that it is not a viable 

alternative data set for accurately 

measuring disparity. 

After a review of the comments, for 

these reasons, SBA continues to support 

the use of the CCR for the availability 

component of the disparity ratio to 


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identify the eligible industries. In so 

doing, however, SBA does not suggest 

that use of SBO data would never be 

appropriate to calculate availability. 

While the comments correctly stated 

that the NAS recommended in their 

report the designation of an industry as 

eligible under the WOSB Program if the 

industry appears underrepresented in 

two or more of the four approaches, the 

NAS also recommended estimating 

disparity ratios at a disaggregated level. 

In other words, the SBO database used 

in the RAND Report provides data only 

at the two-digit level. In contrast, both 

the CCR and the FPDS/NG provide the 

capability to use four-digit NAICS 

classifications. Thus, SBA had to 

reconcile these recommendations and, 

based on the above limitations of the 

SBO data set from the RAND Report, 

SBA elected to use the four-digit CCR 

dataset for the availability component. 

In response to the comments which 

stated that not all WOSBs register in 

CCR thus resulting in an undercounting 

of underutilization, SBA notes that 

courts have looked at the 

appropriateness of the ‘‘availability’’ 

component, also known as the ‘‘ready, 

willing, and able’’ component, in 

evaluating the accuracy of disparity 

studies. See e.g., Eng’g Contractors 

Ass’n of S. Fla., Inc. v. Metro. Dade 

County, 122 F.3d 895, 907 (11th Cir. 

1997); Concrete Works of Colorado, Inc. 

v. City and County of Denver, 321 F.3d 

950, 980 (10th Cir. 2003). The CCR and 

SBO databases are different means of 

measuring the ‘‘availability’’ component. 

Although not all firms or WOSBs have 

registered in CCR, the firms in the CCR 

database have at least indicated by 

registering to submit an offer on Federal 

prime contracts that they are ‘‘willing’’ 

to perform work on such contracts and 

have self-identified as firms that are 

ready and able to perform such work. 

Further, the SBO database used in the 

RAND Report generally considers all 

firms in the economy so it is possible 

that it may actually overestimate the 

number of firms that are ready, willing 

and able to perform Federal contracts, 

thus potentially overestimating 

underrepresentation. SBA recognizes 

that this is a conservative approach to 

calculating availability, but believes its 

use is appropriate in this instance, 

particularly in light of the other 

advantages of the CCR database. 

Other comments which SBA received 

supported the SBO database and 

addressed the fact that the CCR does not 

allow the disparity ratio to include 

specific amounts earned by that 

business in that NAICS code and thus 

may lead to over counting of earnings. 

As stated in the proposed rule, this 

concern does not render unreliable the 

disparity ratios calculated using the 

dollars component of the CCR database. 

The dollars-based disparity ratios are 

themselves based on a comparison 

between two different ratios: The value 

of the government contracts awarded to 

WOSBs in a particular industry 

compared to the value of all government 

contracts awarded in that industry, on 

the one hand; and the gross receipts (in 

the economy at large) of WOSBs 

registered in the CCR database for that 

industry compared to the gross receipts 

for all businesses registered for that 

industry, on the other hand. The 

numerator of this ratio-the value of 

government contracts awarded to 

WOSBs and to industries in general 

within a given industry code-is not 

calculated using the CCR database. 

In addition, with respect to the 

denominator, SBA believes that it is 

reasonable to assume that WOSBs and 

non-WOSBs register in the CCR 

database and identify industries for 

which they are available in a similar 

manner. Thus, if a WOSB in a particular 

kind of business registers in (and 

effectively restates its total revenues in) 

three distinct NAICS codes, a nonWOSB in the same kind of business is 

likely to register in (and restate its total 

revenues in) each of the same three 

NAICS codes. And because the 

denominator of the dollars-based 

disparity ratio is calculated based on a 

comparison between gross receipts 

earned by WOSBs and non-WOSBs, 

rather than the absolute values of those 

receipts, the potential duplicative rereporting of revenue in each NAICS 

code does not raise serious concerns in 

SBA’s view, about the reliability of the 

dollars analysis of the RAND study. For 

these reasons, SBA disagrees with the 

comments that are concerned with the 

viability of the CCR data because the 

CCR does not allow the disparity ratio 

to include specific amounts earned by a 

business in a particular NAICS code. 

Lastly, SBA received comments 

which argued that since only 1.8 

percent of women-owned businesses 

have receipts larger than $1 million the 

fact that SBO doesn’t distinguish 

between large and small WOSBs should 

not be a determining factor. SBA notes 

that SBO’s failure to distinguish 

between large and small businesses is 

only one factor SBA considered in 

deciding to use the CCR data. In 

addition, the existence of a few large 

WOSBs or other businesses would 

potentially skew the SBO data, resulting 

in an unreliable disparity ratio using the 

SBO data. The effect is unknown but 

outliers on both the large and small 

ends of the spectrum may affect the 

reliability of the SBO data used in the 

RAND Report. 

Accordingly, for the reasons stated in 

the proposed rule, SBA will use the CCR 

database to identify eligible industries. 

d. Methodology: FPDS Database 

In the proposed rule, SBA explained 

that the RAND Report used the Fiscal 

Year (FY) 2005 Federal Procurement 

Data System/Next Generation (FPDS/ 

NG) for the utilization component of the 

disparity ratio that resulted in the 

identification of 83 eligible NAICS 

categories. 

SBA received hundreds of comments 

which supported the use of the FPDS 

database to identify the eligible 

industries; however, one comment 

expressed concern with this database, 

stating that contract revenues in the 

database (presumably FPDS) may not 

reflect actual money earned (e.g., multi 

award contracts) and contract award 

values do not equate to company 

revenues. 

SBA agrees with the comment that 

stated a company’s revenues do not 

equal contract award values. In the 

RAND Report, company revenues are 

obtained from the CCR database, while 

contract award values are obtained from 

the FPDS. 

In addition, while SBA understands 

the concern with the accuracy of the 

FPDS procurement database, SBA 

maintains that this database is a viable 

and appropriate means of identifying 

eligible industries. In addition, the 

FPDS is the best source of information 

on Federal contracts. See RAND Report 

at 7. Lastly, in some instances where 

relevant data was available, RAND made 

adjustments to deal with the limitations 

in the FPDS. See id. at 7–9. 

For example, RAND considered the 

fact that, in some cases, individual 

actions refer to multi-year contracts or 

are revisions to earlier contracts. RAND 

stated in the Report that this could lead 

to errors in summing to the contract 

level, such as negative dollar amounts 

or very large contract values. In order to 

examine the sensitivity of the disparity 

ratios to these outliers, RAND calculated 

‘‘trimmed’’ results. The trimmed results 

reflect calculations where RAND 

trimmed the top and bottom 0.5 percent 

of contract awards after rolling up the 

data to the contract level. However, 

RAND found that their ‘‘comparisons 

from FY02 through FY05 also indicate 

that very large contracts and larger 

negative values are awarded each year, 

suggesting that they are not outliers’’ 

and ‘‘without a compelling reason to 

delete these contracts, we are inclined 

to put more weight on the full-sample 


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results’’ as opposed to the trimmed 

results See id. at 8. 

For the reasons stated above, SBA’s 

Final Rule will use the FPDS database 

as proposed. 

e. The Eligible Industry Codes 

For the reasons stated here and in the 

proposed rule, this Final Rule 

designates 83 NAICS codes as eligible 

for Federal contracting under the WOSB 

Program. There are forty-five NAICS 

codes in which WOSBs are 

underrepresented and thirty-eight 

NAICS codes in which WOSBs are 

substantially underrepresented. 

The forty-five NAICS codes in which 

WOSBs are underrepresented are: 

1. 2213—Water, Sewage and Other 

systems; 

2. 2361—Residential Building 

Construction; 

3. 2371—Utility System Construction; 

4. 2381—Foundation, Structure, and 

Building Exterior Contractors; 

5. 2382—Building Equipment 

Contractors; 

6. 2383—Building Finishing 

Contractors; 

7. 2389—Other Specialty Trade 

Contractors; 

8. 3149—Other Textile Product Mills; 

9. 3159—Apparel Accessories and 

Other Apparel Manufacturing; 

10. 3219—Other Wood Product 

Manufacturing; 

11. 3222—Converted Paper Product 

Manufacturing; 

12. 3321;—Forging and Stamping; 

13. 3323—Architectural and 

Structural Metals Manufacturing; 

14. 3324—Boiler, Tank, and Shipping 

Container Manufacturing; 

15. 3333—Commercial and Service 

Industry Machinery Manufacturing; 

16. 3342—Communications 

Equipment Manufacturing; 

17. 3345—Navigational, Measuring, 

Electromedical, and Control Instruments 

Manufacturing; 

18. 3346—Manufacturing and 

Reproducing Magnetic and Optical 

Media; 

19. 3353—Electrical Equipment 

Manufacturing; 

20. 3359—Other Electrical Equipment 

and Component Manufacturing; 

21. 3369—Other Transportation 

Equipment Manufacturing; 

22. 4842—Specialized Freight 

Trucking; 

23. 4881—Support Activities for Air 

Transportation; 

24. 4884—Support Activities for Road 

Transportation; 

25. 4885—Freight Transportation 

Arrangement; 

26. 5121—Motion Picture and Video 

Industries; 

27. 5311—Lessors of Real Estate; 

28. 5413—Architectural, Engineering, 

and Related Services; 

29. 5414—Specialized Design 

Services; 

30. 5415—Computer Systems Design 

and Related Services; 

31. 5416—Management, Scientific, 

and Technical Consulting Services; 

32. 5419—Other Professional, 

Scientific, and Technical Services; 

33. 5611—Office Administrative 

Services; 

34. 5612—Facilities Support Services; 

35. 5614—Business Support Services; 

36. 5616—Investigation and Security 

Services; 

37. 5617—Services to Buildings and 

Dwellings; 

38. 6116—Other Schools and 

Instruction; 

39. 6214—Outpatient Care Centers; 

40. 6219—Other Ambulatory Health 

Care Services; 

41. 7115—Independent Artists, 

Writers, and Performers; 

42. 7223—Special Food Services; 

43. 8111—Automotive Repair and 

Maintenance; 

44. 8113—Commercial and Industrial 

Machinery and Equipment (except 

Automotive and Electronic) Repair and 

Maintenance; and 

45. 8114—Personal and Household 

Goods Repair and Maintenance. 

The thirty-eight NAICS codes in 

which WOSBs are substantially 

underrepresented are: 

1. 2372—Land Subdivision; 

2. 3152—Cut and Sew Apparel 

Manufacturing; 

3. 3231—Printing and Related 

Support Activities; 

4. 3259—Other Chemical Product and 

Preparation Manufacturing; 

5. 3328—Coating, Engraving, Heat 

Treating, and Allied Activities; 

6. 3329—Other Fabricated Metal 

Product Manufacturing; 

7. 3371—Household and Institutional 

Furniture and Kitchen Cabinet 

Manufacturing; 

8. 3372—Office Furniture (including 

Fixtures) Manufacturing; 

9. 3391—Medical Equipment and 

Supplies Manufacturing; 

10. 4841—General Freight Trucking; 

11. 4889—Other Support Activities 

for Transportation; 

12. 4931—Warehousing and Storage; 

13. 5111—Newspaper, Periodical, 

Book, and Directory Publishers; 

14. 5112—Software Publishers; 

15. 5171—Wired Telecommunications 

Carriers; 

16. 5172—Wireless 

Telecommunications Carriers (except 

Satellite); 

17. 5179—Other 

Telecommunications; 

18. 5182—Data Processing, Hosting, 

and Related Services; 

19. 5191—Other Information Services; 

20. 5312—Offices of Real Estate 

Agents and Brokers; 

21. 5324—Commercial and Industrial 

Machinery and Equipment Rental and 

Leasing; 

22. 5411—Legal Services; 

23. 5412—Accounting, Tax 

Preparation, Bookkeeping, and Payroll 

Services; 

24. 5417—Scientific Research and 

Development Services; 

25. 5418—Advertising, Public 

Relations, and Related Services; 

26. 5615—Travel Arrangement and 

Reservation Services; 

27. 5619—Other Support Services; 

28. 5621—Waste Collection; 

29. 5622—Waste Treatment and 

Disposal; 

30. 6114—Business Schools and 

Computer and Management Training; 

31. 6115—Technical and Trade 

Schools; 

32. 6117—Educational Support 

Services; 

33. 6242—Community Food and 

Housing, and Emergency and Other 

Relief Services; 

34. 6243—Vocational Rehabilitation 

Services; 

35. 7211—Traveler Accommodation; 

36. 8112—Electronic and Precision 

Equipment Repair and Maintenance; 

37. 8129—Other Personal Services; 

and 

38. 8139—Business, Professional, 

Labor, Political, and Similar 

Organizations. 

f. Examples of When Contracting 

Officers Can Use WOSB Program 

SBA received one comment which 

urged SBA to provide examples of when 

a contracting officer can apply the 

WOSB Program to a contract. In 

response to this request, SBA provides 

the following examples. 

• If the requirement is assigned a six 

digit NAICS code under NAICS 5313— 

Activities Related to Real Estate, the 

contracting officer may not set aside the 

procurement under the WOSB Program 

because the contract is not for the 

procurement of goods or services with 

respect to an industry as one in which 

EDWOSBs are underrepresented or 

substantially underrepresented or 

WOSBs are substantially 

underrepresented with respect to 

Federal procurement contracting. 

• If the requirement is assigned a six 

digit NAICS code under NAICS 8129— 

Other Personal Services, then, assuming 

all other requirements are met, the 

contracting officer may set aside the 

procurement under the WOSB Program 


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to all eligible WOSBs because the 

industry is one in which WOSBs are 

substantially underrepresented. 

• If the requirement is assigned a six 

digit NAICS code under NAICS 5614— 

Business Support Services, then, 

assuming all other requirements are 

met, the contracting officer may set 

aside the procurement under the WOSB 

Program to all eligible EDWOSBs 

because the industry is one in which 

WOSBs are underrepresented. 

Furthermore, as required by the Small 

Business Regulatory Enforcement Act 

(SBREFA) (Pub. L. 110–28, section 212), 

SBA will publish a small entity 

compliance guide to assist small 

businesses with the WOSB Contract 

Program. The guide will be posted, at 

the time the rule is published, on the 

SBA Web site (http://www.sba.gov) and 

distributed to known industry contacts. 

The guide will be in easily understood 

language as to what is required to 

participate in the new program. 

g. Updates to the RAND Report 

Hundreds of the comments SBA 

received that supported the 

identification of the 83 eligible NAICS 

categories also stated that the RAND 

Report data is outdated and should be 

updated. In particular, the comments 

suggested the creation of a regular 

timeline for updates to the RAND 

Report, with some comments 

specifically recommending updating the 

RAND Report every five years. 

Most of these comments also 

suggested that SBA find additional data 

sources for the disparity ratios 

calculated in the RAND Report and 

perform additional data analysis to the 

data. In particular, one comment stated 

that it ‘‘generally supports the 

methodology but SBA has not 

sufficiently examined the market where 

several large companies are dominant 

and controlling over 95 percent of the 

market share in NAICS codes 3119, 

3121 and 325412.’’ The comments also 

suggested that SBA gather bid data, all 

data on WOSBs in Federal contracting, 

data from state governments and thirdparty certifiers, as well as any other data 

sources that allow for a more complete 

picture of availability. 

Another comment suggested that SBA 

include in its calculation the potential 

availability of WOSBs had there been no 

discrimination. The comments also 

stated that additional data will provide 

a ‘‘‘gold standard’ by which to judge 

whether our companies or programs are 

successful.’’ Another comment 

suggested that a ‘‘special committee’’ 

should be appointed to review 

government purchases on an objective 

basis, without having knowledge of the 

demographics of the bidding companies’ 

ownership. 

The CCR data used in the RAND 

Report are from October 2006. One of 

the cited benefits of the CCR database is 

that it is updated continuously and 

made available promptly. Therefore, it 

provides SBA the flexibility needed to 

access this data and readily update the 

eligible industries. The SBO data from 

the five-year Economic Census is from 

2002. The next SBO was taken in 2007, 

and the results are not yet available. 

SBA understands the concerns 

presented in these comments. The data 

relied upon in the RAND Report is 

determinative of the resulting disparity 

ratios. Obtaining the most accurate and 

timely data possible is of paramount 

importance to SBA. SBA is committed 

to making an on-going effort to obtain 

accurate and timely data to use in the 

anticipated updates to the list of eligible 

industries. In addition, SBA is 

considering available options in 

obtaining new and better data sources 

that are viable and appropriate means of 

measuring disparity of WOSBs in 

Federal contracting. Rather than 

limiting itself to a particular timetable 

for updating the eligible industries, SBA 

believes it is more prudent to update the 

study and list of eligible industries as 

accurate and timely data become 

available to SBA for analysis and the 

analysis is completed. 

SBA also received comments which 

stated that, in examining data about 

underrepresentation, ‘‘fronts’’ may be 

skewing calculations, and therefore, 

SBA should dedicate resources to site 

visits to ensure accurate calculations. 

The SBA believes that its regulations, 

which permit protests and robust 

eligibility examinations, will not only 

aid in preventing fraud, waste and abuse 

in the WOSB program, but as ‘‘fronts’’ 

are weeded out of the WOSB Program 

and denied contract opportunities under 

the program through the protests and 

eligibility examinations, the accuracy of 

the WOSB data in CCR and FPDS will 

improve. In addition, under SBA’s 

eligibility examinations, SBA reserves 

the right to conduct a site visit without 

prior notification to the concern. SBA 

will conduct such examinations of 

WOSBs as a way to combat fraud and 

abuse of the WOSB Program. 

h. Appeal Right 

SBA received several comments 

which suggested that businesses should 

have the right to appeal if their NAICS 

code was not identified as an eligible 

industry for Federal contracting under 

the WOSB Program. 

Section 8(m) of the Act sets forth 

certain criteria for the WOSB Program. 

Specifically, the Act provides that the 

contract being set aside must be for the 

procurement of goods or services with 

respect to an industry identified by SBA 

pursuant to a study. Therefore, Congress 

expressly limited application of the 

WOSB Program to the industries 

identified by SBA pursuant to a study. 

SBA contracted with RAND to 

complete a study in order to fulfill this 

statutory obligation. As explained in the 

proposed rule, the RAND Report, using 

various combinations of data sources 

and methods, identified twenty-eight 

possible approaches to measuring the 

underrepresentation and substantial 

underrepresentation of WOSBs in 

Federal procurement contracting. SBA 

had to identify a reasonable means for 

evaluating, reconciling and applying 

these methodologies. As detailed in the 

proposed rule, SBA determined that the 

methodology using the CCR and FPDS 

databases, along with both the dollars 

and numbers approaches, is a viable and 

appropriate means of identifying 

industries in which WOSBs are 

underrepresented or substantially 

underrepresented. 

Because SBA is required to identify 

the industries pursuant to a study, SBA 

disagrees with the comments received 

on this issue and will not implement an 

appeal process for the NAICS categories 

found ineligible for Federal contracting 

under the WOSB Program. However, 

SBA is committed to reevaluating the 

list of eligible industries as viable and 

appropriate data become available to 

analyze and SBA will provide for the 

eligibility of additional or fewer 

industries in accordance with the 

requirements of the congressional 

mandate and where indicated by 

analysis of the viable and appropriate 

data. 

i. Agency-by-Agency Requirement 

In the proposed rule, SBA explained 

it was eliminating the requirement for 

an agency-by-agency determination of 

discrimination. SBA received dozens of 

comments which supported this 

proposal. SBA did receive a few 

comments that disagreed with the 

removal of this requirement because the 

commentators believed the RAND 

Report is flawed and therefore the 

agency-by-agency requirement is 

necessary. 

As stated in the proposed rule, SBA 

believes the methodology used to 

identify the 83 eligible industries is a 

viable and appropriate means of 

identifying industries in which WOSBs 

are underrepresented or substantially 

underrepresented. Based on this 

assessment, SBA believes that the 

RAND Report is sufficient to satisfy the 


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intermediate scrutiny standard that 

applies to the WOSB Program. 

The equal protection requirements of 

the Fifth Amendment to the United 

States Constitution establish that 

programs that use gender as a factor in 

distributing benefits to individuals must 

meet the intermediate scrutiny standard. 

This standard requires the program to 

further important governmental 

objectives and employ means that are 

substantially related to the achievement 

of those objectives. See United States v. 

Virginia, 518 U.S. 515, 533 (1996). In 

applying this standard to the WOSB 

Program, the government has a 

sufficiently important objective: To 

redress the effects of past discrimination 

against women in contracting and to 

ensure that the effects of that 

discrimination do not serve to limit 

WOSBs’ opportunities to participate in 

Federal contracting opportunities. See 

City of Richmond v. Croson Co., 488 

U.S. at 492; Califano v. Webster, 430 

U.S. 313, 318 (1977). More specifically, 

the Court has repeatedly upheld as an 

important government objective the 

reduction of disparities in condition or 

treatment between men and women 

caused by the long history of 

discrimination against women. See 

Califano, 430 U.S. at 317; Miss. Univ. for 

Women v. Hogan, 458 U.S. 718, 728 

(1982); Schlesinger v. Ballard, 419 U.S. 

498 (1975); Kahn v. Shevin, 416 U.S. 

351 (1974). 

Moreover, the means chosen by 

Congress to implement the WOSB 

Program ensure that the Program is 

substantially related to its goals. 

Congress expressly limited application 

of the WOSB Program only to industries 

in which women are substantially 

underrepresented or underrepresented 

in contracting. The RAND Report is a 

detailed analysis of WOSBs which 

identifies the disparity ratio of WOSBs 

in Federal prime contracting by 4-digit 

NAICS code and is a sufficient basis for 

implementing the rule. The Supreme 

Court has rejected the contention that 

government may adopt a race-conscious 

contracting program only ‘‘to eradicate 

the effects of its own prior 

discrimination,’’ and this conclusion 

also applies to gender-conscious 

contracting programs. Croson, 488 U.S. 

at 486. 

Accordingly, based on the comments 

that supported the proposed rule and for 

the reasons set forth in the proposed 

rule, SBA will not require the procuring 

agency to make a finding of 

discrimination prior to setting aside a 

contract in one of the eligible NAICS 

categories as currently required in 13 

CFR 127.501(b). 

B. Ownership and Control 

The SBA received several comments 

which were concerned with the 

ownership and control of an EDWOSB 

or WOSB. In the proposed rule, 

§ 127.201 addressed ownership and 

states that the EDWOSB/WOSB must be 

unconditionally and directly owned at 

least 51 percent by women. The 

ownership could not be subject to any 

conditions, executory agreements, 

voting trusts, or other arrangements that 

cause or potentially cause ownership 

benefits to go to another. Several 

comments supported the regulation, and 

one comment specifically agreed that a 

WOSB should not be 51 percent owned 

and controlled by another business 

entity even if that business entity is 

owned and controlled by women. 

However, one comment recommended 

that SBA increase ownership by women 

to 67 percent, or at least something 

higher than 51 percent, because this 

commenter has witnessed husbands 

running companies that are 51 percent 

owned by the wife. SBA notes that the 

51 percent ownership and control 

requirement is statutory and cannot be 

changed in the regulations. In addition, 

SBA believes that the regulations set 

forth sufficient requirements that the 

woman control the business, and also 

sufficient checks to ensure that only 

truly eligible businesses receive the 

benefits of the WOSB Program. 

Another comment agreed that there 

should be unconditional and direct 

ownership that is unencumbered by 

conditions or agreements and believed 

that if there are instances of a pledge or 

encumbrance of stock, SBA should 

ensure such pledges or encumbrances 

follow normal commercial practices. 

The final regulation specifically 

explains that the ownership must be 

direct (13 CFR 127.201). Further, the 

final regulation explains that the pledge 

or encumbrance of stock or other 

ownership interest as collateral does not 

affect the unconditional nature of the 

ownership if the terms of the agreement 

follow normal commercial practices and 

the owner retains control absent 

violations of the terms. SBA believes 

this Final Rule provides flexibility to 

the WOSB while at the same time 

ensuring that the business is owned and 

controlled by women. 

The proposed regulation also 

addressed unexercised stock options 

with respect to ownership of a 

corporation. One comment agreed with 

the proposed regulation that any 

unexercised stock options held by a 

woman will be disregarded while the 

unexercised stock options held by any 

other individual or entity will be treated 

as having been exercised. SBA notes 

that this final regulation is consistent 

with SBA’s other contracting program 

regulations addressing the treatment of 

unexercised stock options. 

One comment recommended that SBA 

establish a minimum amount of time 

that the business has to be owned by 

women in order to be eligible for the 

WOSB Program and another comment 

questioned why SBA does not require 

the WOSB to have a minimum amount 

of experience. SBA does not believe 

these requirements are necessary in 

light of the fact they are not required by 

statute and could be detrimental to 

start-up companies. In addition, 

imposing these requirements may only 

perpetuate discriminatory barriers. 

Further, there are many industries and 

contracts in which age and size are 

irrelevant to ability to perform. 

The SBA also received several 

comments which supported the portion 

of the proposed rule which addressed 

control of the EDWOSB/WOSB. 

Specifically, § 127.202 of the Final Rule 

explains that the management and daily 

business operations of the concern must 

be controlled by one or more women. At 

least two comments supported the 

requirement that one or more women 

must make the long term decisions and 

have the day-to-day management of the 

company to ensure that the spouse or 

another person is not really running the 

company. 

One comment also supported the 

proposed rule that the women owners 

cannot have outside employment if it 

prevents them from devoting sufficient 

time and attention to the daily 

operations and management of the 

company. However, one comment 

believed that the rule was too stringent 

concerning the limitation on outside 

employment. According to this 

comment, many small business owners 

have two jobs in the first few years of 

starting a company and it may take 

years for the business to grow. The 

comment stated that this requirement is 

not consistent with the Service-Disabled 

Veteran-Owned Small Business, 

HUBZone or 8(a) Business Development 

(BD) Programs. 

The final regulation states that the 

woman who holds the highest officer 

position of the concern must manage it 

on a full-time basis and devote full-time 

to the business concern during the 

normal working hours of business 

concerns in the same or similar line of 

business. The final regulation also states 

that the woman who holds the highest 

officer position may not engage in 

outside employment that prevents her 

from devoting sufficient time and 

attention to the daily affairs of the 


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concern to control its management and 

daily business operations. Therefore, the 

final regulation does not necessarily 

limit outside employment. It permits 

outside employment as long as it does 

not prevent the business owner from 

managing the EDWOSB or WOSB. 

Although such limitations may not be 

expressly set forth in the SDVO or 8(a) 

BD regulations, the same policy is 

applied to those programs because 

essentially, if an individual upon whom 

eligibility is based is devoting full-time 

to one business, it is difficult to prove 

that same individual is devoting fulltime to the SDVO or 8(a) business and 

meeting the eligibility criteria for those 

programs. 

One comment noted that it supported 

the rule that the women business 

owners do not necessarily have to have 

the technical expertise or possess the 

required license while another comment 

requested that SBA reconsider this 

regulation and preclude 

‘‘nonprofessionals’’ or unlicensed 

individuals from owning professional 

businesses. Another comment believed 

that SBA should have more stringent 

rules to ensure WOSBs are actually 51 

percent owned by women that are active 

in the daily management of the 

business. 

The Final Rule provides that although 

the women manager need not have the 

technical expertise or license required, 

she must nonetheless demonstrate that 

she has the ultimate managerial and 

supervisory control over those 

possessing the required licenses or 

technical expertise. This is consistent 

with the 8(a) BD regulations concerning 

control and SBA believes it provides 

flexibility to the company while still 

ensuring that the woman controls the 

company. In addition, SBA will be 

monitoring EDWOSBs and WOSBs via 

eligibility examinations and protests 

and appeals to ensure that the women 

owners are actively engaged in the daily 

management of the business. 

C. Economic Disadvantage 

As discussed above, the statute states 

that a contracting officer may set aside 

a requirement for EDWOSBs in 

industries that are underrepresented or 

substantially underrepresented. SBA 

may waive the requirement that the 

WOSB be economically disadvantaged 

and permit a contracting officer to set 

aside a requirement for WOSBs in 

industries that are substantially 

underrepresented. The Final Rule 

implements these statutory provisions 

and sets forth the criteria for 

determining economic disadvantage. 

One comment specifically supported 

the waiver of the economic 

disadvantage requirement if the 

industry is substantially 

underrepresented. However, SBA 

received several comments which 

opposed any economic disadvantage 

component to the WOSB Program and 

one comment specifically opposed any 

preference provided to EDWOSBs. Some 

comments noted that there were no 

similar economic disadvantage 

requirements for the HUBZone or SDVO 

Programs and one comment stated that 

if there are economic disadvantage 

requirements, then those meeting the 

requirements should receive the same 

benefits afforded to 8(a) BD Program 

Participants. SBA also received some 

comments which requested the removal 

of the distinction between substantially 

underrepresented and underrepresented 

industries. 

Although SBA understands the 

concerns expressed by these comments, 

the agency is bound by the requirements 

set forth in the statute for the WOSB 

Program. As such, SBA cannot eliminate 

the economic disadvantage component 

of the WOSB Program or afford WOSBs 

or EDWOSBs the same benefits afforded 

8(a) BD Program Participants since the 

statute provides different benefits for 

each program. For the same reason, it 

cannot eliminate the distinction 

between substantially underrepresented 

and underrepresented industries. 

However, upon further review, SBA 

agrees that there should not be a priority 

for EDWOSBs for contracts assigned a 

NAICS code in an industry that has SBA 

determined is substantially 

underrepresented. The Small Business 

Act provides the Administrator 

authority to waive the economic 

disadvantage requirement in industries 

where women are substantially 

underrepresented. 15 U.S.C. 637(m)(3). 

With these regulations, the 

Administrator is waiving this 

requirement in those industries. 

Therefore, in industries where WOSBs 

are substantially underrepresented, as 

identified in this rule, the contracting 

officer may set aside the requirement for 

WOSBs without first determining 

whether the rule of two for EDWOSBs 

can be met. The regulation has been 

amended accordingly. We note that 

because an EDWOSB is by definition a 

WOSB, EDWOSBs can obviously submit 

offers for a procurement set-aside for 

WOSBs. 

The SBA also received over 160 

comments addressing the specific 

economic disadvantage criteria set forth 

in the proposed rule in § 127.203. One 

comment believed that the proposed 

rule was inconsistent with the 

regulations concerning economic 

disadvantage in the 8(a) BD Program 

while another comment expressed 

concern with using the 8(a) BD criteria 

because they are two different programs 

and it is not clear there are sufficient 

WOSBs in the 8(a) BD Program to 

support use of the same economic 

disadvantage criteria. 

Along those same lines, one comment 

supported SBA’s efforts to simplify the 

economic disadvantage analysis while 

another comment recommended that 

SBA simplify the economic 

disadvantage criteria further by simply 

stating that a woman is economically 

disadvantaged if the fair market value of 

all her assets is less than $6 million, 

excluding her retirement, any loans to 

her company and any inheritance. Some 

comments opposed any requirements 

concerning total assets when 

determining economic disadvantage. 

In the proposed rule, SBA explained 

that when drafting the WOSB Program 

rule, it relied on certain interpretations 

and policies that have been followed by 

SBA with respect to the 8(a) BD Program 

that SBA believes should be applied to 

the WOSB Program as well. This 

included certain interpretations and 

policies SBA had set forth in a rule 

proposing to amend the 8(a) BD 

regulations, 74 FR 55694 (Oct. 28, 2009), 

that SBA withdrew on March 4, 2010. 

SBA believes that the 8(a) BD Program 

has decades of experience in reviewing 

cases based on economic disadvantage 

and has created a body of law and 

policy that encompasses this 

experience. SBA believes it would be 

fair and prudent to use this experience 

and body of law when determining 

economic disadvantage for the WOSB 

Program. 

The SBA’s experience with the 8(a) 

BD Program is that it must review 

income, personal net worth and the fair 

market value of the total assets of the 

woman because any other test would 

not demonstrate economic 

disadvantage. For example, it could be 

that a woman with low net worth has a 

large income or large assets, which 

should be pertinent to a claim of 

economic disadvantage. Therefore, SBA 

has not changed the proposed rule in 

this respect and continues to follow the 

policy and regulations for economic 

disadvantage for the 8(a) BD Program. 

One comment stated that failure to get 

a line of credit should be an indicator 

of economic disadvantage. SBA agrees 

and believes that the objective criteria 

set forth in the rule are indicators of 

economic disadvantage and demonstrate 

that a woman’s 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 


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business. This means that failure to get 

a line of credit because the business is 

owned by a woman, while male owned 

businesses can readily obtain such 

credit, is encompassed in the objective 

criteria set forth in the rule. 

Numerous comments stated that the 

overall economic disadvantage figures 

are too low and should be updated for 

inflation, adjusted per the Consumer 

Price Index, or adjusted for geographical 

reasons. Other comments noted that 

business owners must have a certain 

amount of assets to obtain bonding and 

show stability of the company. For these 

reasons, the comments stated that it 

would be difficult to meet the personal 

net worth or income requirements set 

forth in the proposed rule. 

SBA also received a few comments 

which stated that it should use specific 

guidelines based on median regional 

incomes like Internal Revenue Service 

Publication 1542 (publicly available at 

http://www.irs.gov/formspubs), which 

details per diem rates based on local 

expense averages, peg location and 

inflation. SBA received numerous 

comments which argued that it should 

not use a two year adjusted gross 

income when determining economic 

disadvantage because it is unfair to S 

corporations, sole proprietorships, and 

partnerships which are corporate 

structures used by a vast majority of 

small businesses and it would be more 

reliable to use the personal net worth 

guidelines set by the U.S. Department of 

Transportation, (publicly available at 

http://osdbuweb.dot.gov/DBEProgram), 

as long as the threshold was increased, 

and personal residences, retained 

earnings, and retirement assets are 

excluded. 

Similarly, several comments opposed 

the $200,000 income cap because it 

limits a woman’s ability to secure 

financing (line of credit) and bonding. 

Several comments believed that the 

salary should vary depending on the 

type of business and location of the 

firm. One comment noted that SBA 

should consider specifically what 

$200,000 means to other industries and 

consider other factors. Another 

comment recommended the income be 

raised to $400,000. 

SBA notes that when determining 

what dollar thresholds to propose, it 

sought to create an objective standard by 

which a woman may or may not qualify 

as economically disadvantaged and 

reviewed information available as it 

relates to the 8(a) BD Program. The SBA 

believed that a straight line numerical 

figure would be more understandable, 

easier to implement, and avoid any 

appearance of unfair treatment. 

When determining the threshold for 

fair market value of total assets, SBA 

reviewed SBA Office of Hearings and 

Appeals (OHA) decisions on the matter. 

For example, OHA upheld as reasonable 

a determination that an individual was 

not economically disadvantaged with 

total asset levels of $4.1 million and 

$4.6 million. See Matter of Pride 

Technologies, SBA No. 557 (1996), and 

SRS Technologies v. U.S., 843 F. Supp. 

740 (D.D.C. 1994). Alternatively, and 

again with respect to the 8(a) BD 

Program, SBA’s finding that an 

individual was not economically 

disadvantaged with total assets of $1.26 

million was overturned. See Matter of 

Tower Communications, SBA No. 587 

(1997). 

Upon further review, however, SBA 

agrees that the thresholds for fair market 

value of the total assets are too low and 

therefore in the Final Rule, states that an 

individual will not be considered 

economically disadvantaged if the fair 

market value of all her assets (with no 

reduction for the dollar amount of any 

liens or mortgages that may exist against 

such assets) exceeds $6 million. Unlike 

the net worth analysis, SBA does not 

exclude the value of the business 

concern in determining economic 

disadvantage in the total asset analysis, 

nor does SBA exclude the fair market 

value of the primary residence. 

Therefore, SBA believes it would be 

reasonable to increase that threshold. 

In addition, SBA agrees with the 

comments and believes that the 

threshold set forth in the proposed rule 

for income should be increased. SBA 

had proposed to provide that it would 

presume that a woman is not 

economically disadvantaged if her 

yearly income averaged over the past 

three years exceeds $200,000. SBA 

proposed an income level of $200,000 

because that figure closely approximates 

the income level corresponding to the 

top two percent of all wage earners, 

which has been upheld as a reasonable 

indicator of a lack of economic 

disadvantage. SBA believed that to 

some, the $200,000 income would seem 

unduly high as a benchmark, but noted 

that exceeding this amount is being 

used only to presume, without more 

information, that the woman is not 

economically disadvantaged. 

In all cases, SBA’s determination of 

economic disadvantage is based on the 

totality of the circumstances, not merely 

income. Nonetheless, income is a 

relevant factor, and those whose income 

is above a certain threshold should not, 

in most circumstances, be considered to 

be economically disadvantaged. 

Since the time SBA issued the 

proposed rule, the IRS has issued 

statistical data on U.S. wage earners that 

show that the vast majority of 

individuals have an adjusted gross 

income of less than $350,000 and that 

the top 2% of wage earners had an 

adjusted gross income of $261,000 or 

more. SBA believes it would be 

reasonable to raise the threshold to this 

$350,000 amount to align it with the 

new IRS statistical data. Further, 

increasing the personal income 

threshold to $350,000 will accomplish 

two important goals. First, it will allow 

the EDWOSB to attract and retain higher 

skilled employees, since the woman 

owners/manager must be the highest 

compensated individual in the business 

concern. Second, many EDWOSBs will 

be actual or potential participants in the 

SBA’s 8(a) Business Development 

Program as well as Department of 

Transportation’s Disadvantaged 

Business Entity Program; and SBA will 

accept the certification of economic 

disadvantage applicable to all 8(a) 

program participants as conclusive 

evidence of economic disadvantage for 

the WOSB program. 

Under this approach, income in 

excess of $350,000 would generally be 

used to presume that the individual is 

not economically disadvantaged. It 

would not, however, be presumed that 

those with income below $350,000 are 

economically disadvantaged. SBA will 

consider income in connection with 

other factors (such as overall assets, net 

worth, changes in income, and other 

indicia of access to credit and capital) 

when determining economic 

disadvantage. 

In addition, the Final Rule permits 

applicants to rebut the presumption of 

lack of economic disadvantage upon a 

showing that the income attributed to 

the individual that is in excess of the 

threshold amount is not indicative of 

lack of economic disadvantage. For 

example, the presumption could be 

rebutted by a showing that the income 

was unusual (inheritance) and is 

unlikely to occur again. At least one 

comment supported the ability of a 

business to be able to rebut the 

presumption of lack of economic 

disadvantage if the income was unusual 

or unlikely to occur again. Another 

comment thought it was confusing as to 

when inheritance is counted as income 

and when it is not. Yet another 

comment believed that if someone 

inherits over $5 million, that person 

should not be considered economically 

disadvantaged even if it is a one-time 

only event. 

The proposed and Final Rule explain 

that when considering a woman’s 

personal income, a presumption of a 

lack of economic disadvantage can be 


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rebutted by a showing that a certain 

income level was unusual and unlikely 

to occur again. However, that same 

money could be counted as part of an 

individual’s total assets. Thus, an 

inheritance of $6 million, for example, 

may be atypical income and excluded 

from SBA’s determination of economic 

disadvantage based on income, but it 

would not be excluded from SBA’s 

determination of economic disadvantage 

based on total assets. In such a case, a 

$6 million inheritance would render the 

woman not economically disadvantaged 

based on total assets. 

We note that although SBA has raised 

the thresholds for fair market value of 

total assets and income, it does not 

agree that the thresholds for personal 

net worth should be raised. The Final 

Rule specifically excludes the following 

from the personal net worth calculation: 

(1) The woman’s ownership interest in 

the business concern; (2) equity interest 

in her primary residence; (3) income 

received from an S corporation, limited 

liability company or partnership where 

the income was reinvested in the 

business or used to pay taxes arising in 

the normal course of operations of the 

business concern; and (4) funds 

invested in IRAs and retirement 

accounts that are unavailable until 

retirement age without a significant 

penalty for early withdrawal. As a result 

of these exclusions, SBA believes the 

personal net worth threshold of 

$750,000 should remain as proposed. 

SBA received numerous comments 

that supported the proposed regulation 

to exclude community property 

interests of the spouse when looking at 

personal net worth. In the preamble to 

the proposed rule, SBA explained that 

it proposed not taking community 

property laws into account when 

determining economic disadvantage if 

the woman has no ownership interest. 

This means that property that is legally 

in the name of the one spouse would be 

considered wholly that spouse’s, 

whether or not the couple lived in a 

community property state. Since 

community property laws are usually 

applied when a couple separates, and 

since spouses in community property 

states generally have the freedom to 

keep their property separate while they 

are married, SBA proposed to treat 

property owned solely by one spouse as 

that spouse’s property for economic 

disadvantage determinations. However, 

if both spouses own the property, SBA 

would attribute a half interest in such 

property to the woman claiming 

economic disadvantage, unless there is 

evidence to show that the interest in 

such property is greater or lesser. SBA 

believes that this policy results in equal 

treatment for applicants in community 

and non-community property states and 

therefore has not changed the rule as 

proposed. By statute, community 

property laws will also not be applied 

for purposes of determining ownership 

of an EDWOSB or WOSB. 

In addition, and along the same lines, 

SBA proposed to provide that it may 

consider a spouse’s financial situation 

in determining an individual’s access to 

capital and credit. One comment stated 

that it was unclear as to how a spouse’s 

salary and portfolio value would be 

treated with respect to economic 

disadvantage. Two comments argued 

that the spouse’s income and access to 

capital should not be counted if the 

spouse is not involved in the business. 

After careful review, SBA agrees and 

has determined that a spouse’s financial 

condition should not be attributed to the 

individual claiming disadvantaged 

status in every case. Instead, SBA will 

consider a spouse’s financial condition 

only when the spouse has a role in the 

business (e.g., an officer, employee or 

director) or has lent money to, provided 

credit support to, or guaranteed a loan 

of the business. In those cases, SBA 

must consider a spouse’s financial 

situation when determining a woman’s 

access to capital and credit because it is 

unfair to consider a woman 

economically disadvantaged when she 

can rely on her spouse to obtain capital 

and credit which other women business 

owners cannot obtain. In addition, the 

Final Rule explains that SBA may also 

consider the spouse’s financial 

condition if the spouse’s business is in 

the same or similar line of business as 

the EDWOSB or WOSB. SBA has seen 

instances in the past where the spouse 

and WOSB share similar names, Web 

sites, or employees. In those instances, 

it would be reasonable for SBA to look 

at the spouse’s financial condition since 

it is apparent that the spouse is 

providing support to the EDWOSB/ 

WOSB. 

The proposed rule also explained that 

SBA would exempt from the calculation 

of personal net worth and fair market 

value of total assets funds invested in an 

Individual Retirement Account (IRA) or 

other official retirement account that are 

unavailable until retirement age without 

a significant penalty. The basis for this 

proposal stems from SBA’s experience 

with the 8(a) BD Program, where it has 

found that including IRAs and other 

retirement accounts in the calculation of 

an individual’s net worth does not serve 

to disqualify wealthy individuals. 

Instead, such an exclusion has worked 

to make individuals ineligible to the 

extent they have invested prudently in 

accounts to ensure income at a time in 

their lives when they are no longer 

working. 

Several comments supported these 

exemptions; however, two comments 

opposed the provision that the 

retirement accounts be included once 

the woman can withdraw at retirement 

age because this prevents mature 

women who still want to work from 

being eligible for the WOSB Program. 

These two comments recommended that 

SBA merely count the withdrawals as 

income. SBA believes that retirement 

accounts are held for purposes of 

ensuring future income when an 

individual is no longer working and 

should not count the funds as current 

assets if they are not currently being 

enjoyed. However, if the individual has 

reached retirement age and has access to 

the retirement account, or has incurred 

a significant penalty and acquired 

access to the account, the funds are 

current assets and must be included as 

part of the individual’s personal net 

worth, total assets, and income. 

However, if the individual invests funds 

from the retirement account into the 

EDWOSB or WOSB, those funds would 

be excluded from the net worth analysis 

as part of the exclusion of business 

equity. The EDWOSB or WOSB may be 

required to submit evidence that the 

funds were invested into the business. 

SBA has issued the Final Rule as it had 

proposed. 

In addition, the proposed rule 

explained that in order for SBA to 

determine whether funds invested in a 

specific account labeled a ‘‘retirement 

account’’ may be excluded from a 

woman’s net worth calculation, the 

woman must provide to SBA 

information about the terms and 

conditions of the account. SBA asked 

for comments on what specific 

information might be helpful. One 

comment stated that SBA should use 

Internal Revenue Service (IRS) Form 

5498 to identify yearly contributions to 

such retirement accounts. SBA has 

determined that in order for it to 

determine whether funds invested in a 

specific account labeled a ‘‘retirement 

account’’ may be excluded from an 

individual’s net worth calculation, the 

individual must provide to SBA 

information about the terms and 

conditions of the account and certify in 

writing that the ‘‘retirement account’’ is 

legitimate. SBA notes that as part of its 

document collection to verify eligibility, 

it will obtain income tax information 

that can also be used to verify whether 

an account is a retirement account. 

SBA has also proposed exempting 

income from a corporation taxed under 

Subchapter S of Chapter 1 of the 

Internal Revenue Code (S corporation) 


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from the calculation of both income and 

net worth to the extent such income is 

reinvested in the firm or used to pay 

taxes arising from the normal course of 

operations of an S corporation. 

Although the income of an S 

corporation flows through and is taxed 

to individual shareholders in 

accordance with their interest in the S 

corporation for Federal tax purposes, 

SBA will take such income into account 

for economic disadvantage purposes 

only if it is not reinvested in the 

business or used to pay the taxes. This 

proposal would result in equal 

treatment of corporate income for 

corporations taxed under Subchapter C 

of Chapter 1 of the Internal Revenue 

Code (C corporations) and S 

corporations. In cases where that 

income is reinvested in the firm or used 

to pay taxes arising from the normal 

course of operations of the S corporation 

and not retained by the woman, SBA 

believes it should be treated the same as 

C corporation income for purposes of 

determining economic disadvantage. In 

order to be excluded, the owner of the 

S corporation would be required to 

clearly demonstrate that the S 

corporation distribution was used to pay 

taxes or was reinvested back into the S 

corporation within 12 months of the 

distribution of income. 

Three comments supported SBA’s 

proposal to exempt income received 

from an S corporation from the 

calculation of personal net worth and 

income and strongly agree that S 

corporations and C corporations should 

be treated similarly in this respect. One 

comment, however, stated that the 

requirement that the owner demonstrate 

that money was received and reinvested 

in the business is burdensome. SBA 

notes that the small business bears the 

burden to prove its eligibility for the 

WOSB Program and therefore, must be 

able to demonstrate in these cases that 

the S corporation distribution was used 

to pay taxes or was reinvested back into 

the S corporation within 12 months of 

the distribution of income. 

One comment agreed with this 

provision but recommended that SBA 

treat limited liability companies the 

same. SBA agrees and believes limited 

liability companies and partnerships are 

taxed similar to S corporations. With all 

of these entities, the income flows 

through and is taxed to individual 

partners, members, or shareholders in 

accordance with their interest in the 

company for Federal tax purposes. 

Therefore, SBA has amended the Final 

Rule from what it initially proposed. 

In addition, SBA has decided it would 

be best to set forth the clarification 

contained in the supplementary 

information—that corporation/ 

partnership/limited liability losses are 

losses only to the company, and not 

losses to the individual—specifically in 

the regulatory text to clear up any 

confusion on this issue. In addition, the 

Final Rule has clarified that the 

treatment of corporation/partnership/ 

limited liability income applies to both 

determinations of an individual’s net 

worth and personal income. 

One comment recommended that SBA 

eliminate any regulation permitting the 

transfer of assets to an immediate family 

member while another comment 

supported the careful examination of 

asset transfer to immediate family 

members within 2 years of the transfer 

because the women may be transferring 

the assets to family members for their 

support. SBA agrees that there are valid 

reasons for transferring assets to an 

immediate family member as identified 

in the rule (e.g. medical expenses, 

education and birthdays) and a woman 

should not be penalized for this when 

determining economic disadvantage. As 

such, SBA has adopted the proposed 

provision in the Final Rule. 

One comment expressed confusion as 

to when a personal residence would be 

excluded and questioned if the 

residence could be excluded if it were 

used to guarantee a company line of 

credit. The Final Rule explain that when 

determining personal net worth, SBA 

will exclude the woman’s equity 

interest in the primary personal 

residence. In addition, when 

determining the fair market value of the 

assets, SBA will include the value of the 

primary residence in the calculation 

(without deduction for any liens on the 

assets). SBA is not excluding the 

residence as an asset even if it is used 

to guarantee the company line of credit 

because the residence is still an asset to 

that individual, as evidenced by the fact 

it can be used to secure a line of credit. 

In sum, based upon the comments 

received, SBA has amended some of the 

proposed regulations in this Final Rule. 

Specifically, SBA has increased the 

dollar thresholds for income and fair 

market value of assets for purposes of 

determining economic disadvantage, 

and has clarified certain issues as they 

relate to S corporations, limited liability 

companies and partnerships. 

D. Certification 

In the proposed rule, SBA proposed 

permitting EDWOSBs and WOSBs to 

either self-certify their status or provide 

evidence of certification from an 

approved third-party certifier. Of the 

almost 1,000 comments received overall 

on the rule, most of them commented on 

the certification procedures for a total of 

almost 1,900 specific comments 

concerning the certification 

requirements. 

We note that many of the comments 

confused the CCR and Online 

Representations and Certifications 

Application (ORCA) databases and 

believed that ORCA or CCR would serve 

as the document repository for the 

WOSB Program or supported the use of 

the CCR ‘‘questionnaire’’. Some 

comments stated that WOSBs should be 

required to register in CCR. A few 

comments acknowledged some 

confusion and suggested clarification or 

a guide on how this process would 

work. There seems to be some public 

confusion concerning the different 

Federal databases and SBA would like 

to provide some clarification on that as 

well as the WOSB Program certification 

process. 

CCR is an online governmentmaintained database of companies 

wanting to do business with the Federal 

government available at ccr.gov. The 

Federal Acquisition Regulation (FAR) at 

48 CFR 4.1102(a) requires that most 

prospective contractors be registered in 

the CCR database prior to award of a 

contract or agreement, with certain 

exceptions. Agencies search the 

database for prospective vendors. After 

registering, you may enter your small 

business profile information on the 

Dynamic Small Business Search page. 

Creating a profile in CCR and the 

Dynamic Small Business Search, and 

keeping it current, helps provide access 

to Federal contracting opportunities. 

Thus, the EDWOSB or WOSB must 

register in CCR first. Next, it must 

provide documents supporting its 

EDWOSB or WOSB status to an online 

document repository, called that the 

WOSB Program Repository, that SBA is 

planning to establish. The documents 

submitted would include those 

verifying that the concern has received 

a third-party certification. The business 

concern will be placing these 

documents in a secure, Web-based 

environment that would be accessible to 

the individual WOSBs and EDWOSBs, 

the contracting officer community and 

SBA. The contracting officer would be 

able to access the documents prior to 

contract award to review the submitted 

documents. SBA proposed this 

approach so that the WOSBs and 

EDWOSBs would not have to submit 

documents each time they receive a 

WOSB or EDWOSB contract. 

In addition, the WOSB or EDWOSB 

will have to provide a certification to 

the repository that will serve as a 

verification that the concern meets the 

eligibility requirements and is signed by 

an authorized officer of the WOSB. In 


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the proposed rule, SBA had proposed 

that this certification be part of ORCA. 

However, upon further reflection, the 

SBA believes that it would be best if this 

document were signed and submitted 

directly to the repository. A copy of the 

certification is set forth in Tables 1 

and 2. 

Until the repository is completed, or 

if the system is otherwise unavailable, 

then SBA explained that the WOSB or 

EDWOSBs must submit the documents 

directly to the contracting officer prior 

to each WOSB or EDWOSB award. 

Although one comment thought this 

was burdensome, SBA notes that the 

statute requires the submission of 

supporting documents to the contracting 

officer and until or unless the repository 

is established, this appears to be the sole 

alternative that meets this statutory 

requirement. The contracting officer 

must retain these documents in the 

contract file so that SBA may later 

review the file for purposes of a status 

protest or eligibility examination. 

However, the WOSB or EDWOSB will 

also be required to post the documents 

to the WOSB Program Repository within 

thirty (30) days of the repository 

becoming available. 

Finally, after registering in CCR and 

submitting the required document to the 

repository, the EDWOSB or WOSB must 

represent its status in the ORCA at 

https://orca.bpn.gov. The FAR at 48 CFR 

2.101 explains that ORCA is the primary 

Government repository for contractorsubmitted representations and 

certifications required for the conduct of 

business with the Government. This 

database does not collect documents, 

but collects the representations and 

certifications required for Federal 

contracts. As stated above, the SBA had 

proposed a specific and detailed ORCA 

representation. That detailed 

representation will now be a 

certification, signed by an officer of the 

company, which will be submitted to 

the WOSB Program Repository. The 

representation contained in ORCA, as 

drafted by the FAR Councils, will be set 

forth in the FAR. 

Of the hundreds of comments 

received concerning this certification 

process, several stated that SBA should 

not accept self-certifications for the 

WOSB Program. The comments stated 

that this would increase the risk of 

fraud. However, other comments stated 

that self-certification would be 

reasonable as long as documents were 

provided to verify eligibility and there 

were no protests or credible information 

calling into question the eligibility of a 

business. At least one comment stated 

that it was good that SBA recognized the 

cost of certification and provided 

alternative compliance requirements, 

such as the self-certification. Another 

comment stated that it supported the 

stringent certification requirements to 

ensure the credibility of the WOSB 

Program and its ultimate success. Some 

comments expressed concern with the 

burden of the process and additional 

paperwork and forms required, 

believing it will discourage WOSBs 

from using the WOSB Program and 

required additional costs that are not 

minimal, while numerous comments 

supported the innovative approach and 

believed the repository would minimize 

paperwork burden and increase 

oversight and program monitoring 

capabilities. One comment believed that 

self-certification would not be fair to 

those that paid already for a third-party 

certification. 

Many comments also stated that SBA 

should not have a certification program, 

similar to 8(a) or HUBZone, but should 

use its resources instead for 

enforcement and monitoring. Two 

comments recommended that SBA 

create a stringent certification process or 

program similar to the one it has for 

8(a). 

The SBA explained in the proposed 

rule that the Small Business Act sets 

forth the certification criteria for the 

WOSB Program. Specifically, the Act 

states that a WOSB or EDWOSB must: 

(1) Be certified by a Federal agency, a 

State government, or a national 

certifying entity approved by the 

Administrator, as a small business 

concern owned and controlled by 

women; or, (2) certify to the contracting 

officer that it is a small business 

concern owned and controlled by 

women and provide adequate 

documentation, in accordance with 

standards established by SBA, to 

support such certification. The 

supporting legislative history stated that 

there was no intent that SBA create a 

certification program similar to the one 

it has for the 8(a) BD Program. As a 

result of the statutory provision, and the 

supporting legislative history, the Final 

Rule permits both self-certification and 

third-party certification and requires 

supporting documents to verify 

eligibility. The supporting documents 

will be provided to a repository (which 

is not necessarily part of ORCA) or, if 

the repository is unavailable, to the 

contracting officer. In addition, SBA 

believes that although the certification 

document and document requirement 

may seem burdensome to some small 

businesses, this is required to meet the 

statutory provisions, reduce fraud in the 

WOSB Program, and ensure that only 

eligible concerns receive the benefits of 

the WOSB Program. 

In addition to the comments on selfcertification, SBA received over 600 

comments which supported the use of 

third-party certifications, although 

many of these comments supported the 

use of both third-party certifications and 

self-certification. In general, the 

comments stated the following: SBA 

should accept all third-party certifiers to 

ensure a wide range of options for 

WOSBs; SBA should document the 

process for approving third-party 

certifiers; the guidelines for third-party 

certifiers must comply with the 

regulations; and the third-party 

certifications should require yearly 

recertifications and site visits. In 

addition, a large number of comments 

stated that there should be an abridged 

process or no requirement for the 

representations for those with a thirdparty certification because it is 

counterproductive and redundant and 

WOSBs that have a third-party 

certification should not have to submit 

any additional documents. 

The SBA agrees that it should approve 

all qualified third-party certifiers to 

ensure a wide range of options for 

EDWOSBs and WOSBs. However, that 

does not necessarily mean that every 

entity interested in being a third-party 

certifier will meet SBA’s requirements. 

SBA also agrees that it must document 

the process for approving third-party 

certifiers. SBA plans to post online to 

the public the documented process at 

http://www.sba.gov/. In addition, SBA 

agrees that the guidelines for third-party 

certifiers must comply with the 

regulations. The final regulations set 

forth the eligibility requirements for this 

Federal program. There cannot be 

exceptions regarding the eligibility for 

the WOSB Program to these regulations, 

and there is no reason to create 

exceptions for third-party certifications 

as compared to self-certifications. 

Because the final regulations do not 

require site visits in every instance and 

yearly recertifications, it is not clear at 

this time that SBA can make those 

requirements for third-party certifiers, 

although we agree it would reduce fraud 

in the WOSB Program. 

We understand the concern expressed 

by the comments that support an 

abridged process or no requirement for 

the representations for those with a 

third-party certification. Many of these 

individuals believe that because they 

have undergone a rigorous third-party 

certification, it would be redundant and 

burdensome for the EDWOSB or WOSB 

to submit additional documents or 

further represent its status. 

However, the SBA believes that such 

a certification is necessary to ensure the 

integrity of the WOSB Program and that 


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only those eligible small businesses 

receive the WOSB Program’s benefits. 

Therefore, all EDWOSBs and WOSBs 

will be required to complete the 

certification and submit it to the WOSB 

Program Repository. In addition, each 

EDWOSB and WOSB will be required to 

provide a representation in ORCA. As 

noted above, ORCA is the primary 

Government repository for contractor 

submitted representations and 

certifications required for the conduct of 

business with the Government. 

Therefore, it will be necessary for the 

EDWOSB or WOSB, even if they have a 

third-party certification, to make ORCA 

representations to the Federal 

Government. 

We also disagree that EDWOSBs or 

WOSBs that have received a third-party 

certification should not be required to 

submit documents to SBA or the 

contracting to verify eligibility. The 

Final Rule requires that those 

businesses with a third-party 

certification submit only a limited 

number of documents—specifically, a 

copy of the third-party certification, the 

certification, the joint venture 

agreement if applicable, and in some 

cases, other documents to verify they 

meet the requirements of the WOSB 

Program. If there is a status protest or 

eligibility examination, then SBA will 

have to collect all documents necessary 

to verify eligibility since it is SBA, and 

not a third-party certifier, which would 

make this decision concerning 

eligibility. 

The SBA also received several 

comments which were concerned with 

identifying specific third-party 

certifiers. For example, we received 

comments which stated that all 

certifications issued by the 50 States 

should be accepted by SBA, as well as 

all current other third-party 

certifications. As discussed above, SBA 

cannot accept all current third-party 

certifications, including a certification 

issued by a State, without first 

determining whether the third-party 

certifier’s eligibility criteria are the same 

as those of SBA’s for the WOSB 

program. 

The SBA received one comment 

which recommended that we provide a 

list of agencies whose certifications will 

be accepted and two comments stating 

that we should immediately accept U.S. 

Department of Transportation (DOT) 

certifications and not require that 

agency to enter into a third-party 

agreement. 

Under DOT’s Disadvantage Business 

Enterprise (DBE) Program, recipients, 

which are state or local entities as 

defined by DOT regulations at 49 CFR 

26.5, perform the certifications for 

DOT’s DBE Program. Recipients are the 

DOT’s DBE Program certifiers. Pursuant 

to DOT regulations, these certifiers must 

submit to DOT for approval an 

agreement establishing a Unified 

Certification Program (UCP), which 

identifies a plan for certification as a 

certifier for the DOT DBE Program. Once 

the UCP is approved by DOT, the 

certifier can certify participants for the 

DBE Program. In other words, the 

certification for the DOT DBE Program 

is not done by a central office, but rather 

various state and local certifiers perform 

the certifications. 

DOT requires every UCP to meet all 

of the requirements of the DOT DBE 

Program, but every UCP for the DOT 

DBE Program is not required to have all 

of the same requirements. Therefore, 

without examining the state or local 

entity’s UCP, it is unknown if it will 

satisfy all the requirements of the WOSB 

Program regulations. For example, 

SBA’s WOSB Program regulation at 13 

CFR 127.201(f) states that in 

determining unconditional ownership 

of the concern, any unexercised stock 

options or similar agreements held by a 

woman will be disregarded. The 

regulations also states that 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. DOT DBE 

regulations do not discuss how 

unexercised stock options or similar 

agreements will be treated under the 

DBE Program. As a result, state and 

local entities that have an approved 

UCP for DOT DBE Program certification 

may or may not be consistent with this 

requirement. There are additional areas 

in which it is uncertain whether SBA 

requirements would be met with a DOT 

DBE Program certification. 

The Final Rule sets forth the 

eligibility requirements for this Federal 

program. SBA has determined that there 

cannot be exceptions regarding the 

eligibility for the WOSB Program to 

these regulations, and there is no reason 

to create exceptions for DOT DBE 

certifications as compared to selfcertifications. Every WOSB or EDWOSB 

must satisfy the regulatory requirements 

in 13 CFR part 127, whether through 

private third party certification, 8(a) 

certification, DOT DBE certification, or 

any other certification. As a result and 

as SBA does with all other third party 

certifiers, SBA has determined that it 

will evaluate a DOT DBE certifier on an 

individual basis. SBA will review the 

state and local entity’s UCP to 

determine if the WOSB Program 

requirements can be met with the UCP. 

Therefore, the Final Rule will not 

accept all DOT DBE certifications for the 

WOSB Program at this time. Once SBA 

approves a DOT DBE Program certifier, 

SBA will maintain a list of approved 

state and local entities from which it 

will accept DOT DBE certifications on 

SBA’s Internet Web site at http:// 

www.sba.gov. Any interested person 

may also obtain a copy of the list from 

the local SBA district office or SBA Area 

Office for Government Contracting. 

Several comments recommended that 

SBA and DOT work together to create a 

list of businesses indicating the woman 

owned status of all certified businesses 

or requiring DOT to provide 

certifications showing that the business 

is owned and controlled by women. We 

agree that the two agencies can continue 

to work together in furtherance of this 

program. However, as explained above, 

SBA must examine a specific UCP prior 

to accepting the certification from that 

certifier as a certification of WOSB or 

EDWOSB status. 

One comment stated that third-party 

certifications sometimes list NAICS 

codes on the certifications. The 

comment believed that SBA must 

therefore make it clear that such a 

listing does not limit the business’ 

ability to submit an offer for a contract 

outside that NAICS code. The comment 

suggested that SBA clarify the 

regulations or ORCA. SBA does not 

believe it must clarify the regulations on 

this point. The Final Rule is clear that 

a contracting officer must assign a 

NAICS code to a contract and that a 

business concern must be small for the 

size standard corresponding to that 

NAICS code. In addition, the 

contracting officer can only reserve the 

contract opportunity for EDWOSBs if 

the NAICS code is in an 

underrepresented industry and for 

WOSBs if the NAICS code is in a 

substantially underrepresented 

industry. 

The SBA received a few comments 

which addressed the specific 

representations we had set forth in the 

preamble to the proposed rule, and 

which will now be a separate 

certification that must be submitted to 

the WOSB Program Repository, and the 

responsibilities of contracting officers. 

One comment stated that it believed the 

representations are clearly worded but 

that the contracting officer needs to 

know what should be checked for 

award. Two comments stated that 

contracting officers need more guidance 

on what specific documents must be 

provided. Similarly, SBA received one 

comment which suggested the agency 

establish a defined method of signoff by 

a contracting officer that they have 


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certified the EDWOSB or WOSB meets 

the eligibility criteria and provide a 

contracting guide that would include a 

checklist for the contracting officer that 

includes all items to be completed or 

verified. SBA agrees that this would be 

helpful to contracting officers and plans 

to work on a guide for contracting 

officers that contains a checklist. 

In addition, two comments believed 

that contracting officers may not be in 

the best position to review the 

submitted documents and make an 

accurate determination. In addition, one 

comment stated that self-certification 

places an undue burden on contracting 

officers and opens the door for different 

levels of application of the rules. We 

note that the rule does not require the 

contracting officer to necessarily 

determine eligibility of the EDWOSB or 

WOSB. Rather, the contracting officer is 

to check to ensure that the requisite 

documents, as set forth in the 

regulations, are provided and that the 

ORCA representations have been made. 

If any of the documents are missing 

from the repository (including the 

certification), or if the contracting 

officer believes the concern is not 

eligible, he/she must file a status protest 

with SBA. SBA, not the contracting 

officer, will make the final 

determination regarding eligibility. 

One comment recommended that SBA 

eliminate the representation concerning 

the ability of an EDWOSB to obtain 

capital and credit because it only 

complicates the process. The same 

comment questioned why there should 

be a representation that ‘‘no males or 

other entity exercise actual control or 

have the power to control the concern’’ 

when there appear to be other questions 

in the representation that already 

address this. 

The SBA agrees that the 

representation concerning the ability to 

obtain capital and credit is not 

necessary because that issue is 

addressed with the other questions, 

especially those concerning the specific 

objective criteria for economic 

disadvantage. SBA has deleted this 

representation from the Final Rule. 

However, SBA disagrees with the 

comment concerning whether males 

exercise control over the business 

concern. There is a specific requirement 

for an EDWOSB or WOSB in the 

regulations that no male or other entity 

exercises control or the power to control 

the concern. Therefore, this 

representation is required. 

The SBA received one comment that 

recommended having a place in CCR to 

acknowledge current certifications and 

transferring this information to ORCA. 

SBA agrees that CCR should be 

amended and will work with the 

appropriate agency to implement these 

changes to the extent practicable. 

One comment recommended that SBA 

share information common to other 

certification processes when a person is 

a member of more than one group. In 

other words, if a WOSB is also a SDVO 

SBC, the comment recommended that 

the processes be streamlined. 

Unfortunately, this is not possible. The 

SDVO SBC Program is a selfcertification program with different 

statutory and regulatory requirements 

than the WOSB Program. When creating 

the WOSB Program, SBA sought to align 

this program with others as much as 

possible. For example, SBA has stated 

that it will accept 8(a) BD certifications, 

if the business was certified into the 8(a) 

BD Program as a women owned 

business, as evidence that the business 

is a WOSB. 

Some comments recommended that 

SBA conduct site visits and check 

financial information on all WOSBs. 

Two comments supported the use of an 

outside company to manage the 

certification and perform site visits. 

SBA explained in the proposed rule that 

it does intend to conduct site visits on 

those certifying as EDWOSBs or WOSBs 

and believes that its regulations, which 

permit protests and robust eligibility 

examinations, will aid in preventing 

fraud, waste and abuse in the WOSB 

program. 

The SBA has reviewed all of these 

comments thoroughly and believes that 

it is not necessary to change the 

proposed regulations concerning 

certifications except to amend the 

ORCA representations to address 

changes made to the criteria for 

economic disadvantage. SBA therefore 

has implemented the proposed rule as 

final, with respect to the certification 

requirements. SBA is setting forth a 

final copy of the certification that each 

WOSB or EDWOSB must submit to 

verify status (Table 1, Women-Owned 

Small Business Program Certification— 

WOSB; Table 2, Women-Owned Small 

Business Program Certification— 

EDWOSB). 

Table 1—Women-Owned Small 

Business Program Certification— 

WOSB. 

(i) It is certified as a WOSB by a 

certifying entity approved by SBA, the 

certifying entity has not issued a 

decision currently in effect finding that 

the concern does not qualify as a WOSB, 

and there have been no changes in its 

circumstances affecting its eligibility 

since its certification. 

b Yes b No b N/A 

(ii) It is certified by the U.S. Small 

Business Administration as an 8(a) BD 

Program Participant and the 51% owner 

is a woman (or women). 

b Yes b No b N/A 

(iii) If a corporation, the stock ledger 

and stock certificates evidence that at 

least 51% of each class of voting stock 

outstanding and 51% of the aggregate of 

all stock outstanding is unconditionally 

and directly 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 nonvoting stock or debentures into voting 

stock, held by any other individual or 

entity will be treated as having been 

exercised. 

b Yes b No b N/A 

(v) If a partnership, the partnership 

agreement evidences that at least 51% of 

each class of partnership interest is 

unconditionally and directly owned by 

one or more women. 

b Yes b No b N/A 

(iv) If a limited liability company, the 

articles of organization and any 

amendments, and operating agreement 

and amendments, evidence that at least 

51% of each class of member interest is 

unconditionally and directly owned by 

one or more women. 

b Yes b No b N/A 

(v) The birth certificates, 

naturalization papers, or passports for 

owners who are women show that the 

business concern is at least 51% owned 

and controlled by women who are U.S. 

citizens. 

b Yes b No 

(vi) The ownership by women is not 

subject to any conditions, executory 

agreements, voting trusts, or other 

arrangements that cause or potentially 

cause ownership benefits to go to 

another. 

b Yes b No 

(vii) The 51% ownership by women is 

not through another business entity 

(including employee stock ownership 

plan) that is, in turn, owned and 

controlled by one or more women. 

b Yes b No 

(viii) The 51% ownership by women 

is held through a trust, the trust is 

revocable, and the woman is the grantor, 

a trustee, and the sole current 

beneficiary of the trust. 

b Yes b No b N/A 

(ix) The management and daily 

business operations of the concern are 


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controlled by one or more women. 

Control means that both the long-term 

decision making and the day-to-day 

management and administration of the 

business operations are conducted by 

one or more women. 

b Yes b No 

(x) A woman holds the highest officer 

position in the concern and her resume 

evidences that she has the managerial 

experience of the extent and complexity 

needed to run the concern. 

b Yes b No 

(xi) The woman manager does not 

have the technical expertise or possess 

the required license for the business but 

has ultimate managerial and supervisory 

control over those who possess the 

required licenses or technical expertise. 

b Yes b No b N/A 

(xii) The woman who holds the 

highest officer position of the concern 

manages it on a full-time basis and 

devotes full-time to the business 

concern during the normal working 

hours of business concerns in the same 

or similar line of business. 

b Yes b No 

(xiii) The woman who holds the 

highest officer position does 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. 

b Yes b No 

(xiv) If a corporation, the articles of 

incorporation and any amendments, 

articles of conversion, by-laws and 

amendments, shareholder meeting 

minutes showing director elections, 

shareholder meeting minutes showing 

officer elections, organizational meeting 

minutes, all issued stock certificates, 

stock ledger, buy-sell agreements, stock 

transfer agreements, voting agreements, 

and documents relating to stock options, 

including the right to convert nonvoting stock or debentures into voting 

stock evidence that one or more women 

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% 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. 

b Yes b No b N/A 

(xv) If a partnership, the partnership 

agreement evidences that one or more 

women serve as general partners, with 

control over all partnership decisions. 

b Yes b No b N/A 

(xvii) If a limited liability company, 

the articles of organization and any 

amendments, and operating agreement 

and amendments evidence that one or 

more women serve as management 

members, with control over all 

decisions of the limited liability 

company. 

b Yes b No b N/A 

(xviii) No males or other entity 

exercise actual control or have the 

power to control the concern. 

b Yes b No 

(xix) SBA, in connection with an 

examination or protest, has not issued a 

decision currently in effect finding that 

this business concern does not qualify 

as a WOSB. 

b Yes b No 

(xx) All required documents verifying 

eligibility for a WOSB requirement have 

been submitted to the WOSB Program 

Repository, including any supplemental 

documents if there have been changes 

since the last representation, or will be 

submitted to the contracting officer if 

the repository is unavailable and then 

posted to the WOSB Program Repository 

within thirty (30) days of the repository 

becoming available. 

b Yes b No 

b All the statements and information 

provided in this form and any 

documents submitted are true, accurate 

and complete. If assistance was obtained 

in completing this form and the 

supporting documentation, I have 

personally reviewed the information 

and it is true and accurate. I understand 

that these statements are made for the 

purpose of determining eligibility for a 

WOSB Program contract. 

b I understand that the information 

submitted may be given to Federal, State 

and local agencies for determining 

violations of law and other purposes. 

The certifications in this document are 

continuing in nature. Each WOSB prime 

contract for which the WOSB submits 

an offer/quote or receives an award 

constitutes a restatement and 

reaffirmation of these certifications. I 

understand that the WOSB may not 

misrepresent its status as a WOSB to: (1) 

Obtain a contract under the Small 

Business Act; or (2) obtain any benefit 

under a provision of Federal law that 

references the WOSB Program for a 

definition of program eligibility. 

b I am an officer of the WOSB 

authorized to represent it and sign this 

certification on its behalf. 

Table 2—Women-Owned Small 

Business Program Certification— 

EDWOSB 

(i) It is certified as an EDWOSB by a 

certifying entity approved by SBA, the 

certifying entity has not issued a 

decision currently in effect finding that 

the concern does not qualify as a 

EDWOSB, and there have been no 

changes in its circumstances affecting 

its eligibility since its certification. 

b Yes b No b N/A 

(ii) It is certified by the U.S. Small 

Business Administration as an 8(a) BD 

Program Participant and the 51% owner 

is an economically disadvantaged 

woman (or women). 

b Yes b No b N/A 

(iii) If a corporation, the stock ledger 

and stock certificates evidence that at 

least 51% of each class of voting stock 

outstanding and 51% of the aggregate of 

all stock outstanding is unconditionally 

and directly owned by one or more 

women who are economically 

disadvantaged. In determining 

unconditional ownership of the 

concern, any unexercised stock options 

or similar agreements held by an 

economically disadvantaged 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. 

b Yes b No b N/A 

(iv) If a partnership, the partnership 

agreement evidences that at least 51% of 

each class of partnership interest is 

unconditionally and directly owned by 

one or more economically 

disadvantaged women. 

b Yes b No b N/A 

(v) If a limited liability company, the 

articles of organization and any 

amendments, and operating agreement 

and amendments, evidence that at least 

51% of each class of member interest is 

unconditionally and directly owned by 

one or more economically 

disadvantaged women. 

b Yes b No b N/A 

(vi) The birth certificates, 

naturalization papers, or passports show 

that the business concern is at least 51% 

owned and controlled by economically 

disadvantaged women who are U.S. 

citizens. 

b Yes b No

(vii) The ownership by economically 

disadvantaged women is not subject to 

any conditions, executory agreements, 

voting trusts, or other arrangements that 


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cause or potentially cause ownership 

benefits to go to another. 

b Yes b No 

(viii) The 51% ownership by 

economically disadvantaged women is 

not through another business entity 

(including employee stock ownership 

plan) that is, in turn, owned and 

controlled by one or more economically 

disadvantaged women. 

b Yes b No 

(ix) The 51% ownership by 

economically disadvantaged women is 

held through a trust, the trust is 

revocable, and the economically 

disadvantaged woman is the grantor, a 

trustee, and the sole current beneficiary 

of the trust. 

b Yes b No b N/A 

(x) The management and daily 

business operations of the concern are 

controlled by one or more economically 

disadvantaged women. Control means 

that both the long-term decision making 

and the day-to-day management and 

administration of the business 

operations are conducted by one or 

more economically disadvantaged 

women. 

b Yes b No 

(xi) An economically disadvantaged 

woman holds the highest officer 

position in the concern and her resume 

evidences that she has the managerial 

experience of the extent and complexity 

needed to run the concern. 

b Yes b No 

(xi) The economically disadvantaged 

woman manager does not have the 

technical expertise or possess the 

required license for the business but has 

ultimate managerial and supervisory 

control over those who possess the 

required licenses or technical expertise. 

b Yes b No b N/A 

(xiii) The economically disadvantaged 

woman who holds the highest officer 

position of the concern manages it on a 

full-time basis and devotes full-time to 

the business concern during the normal 

working hours of business concerns in 

the same or similar line of business. 

b Yes b No 

(xiv) The economically disadvantaged 

woman who holds the highest officer 

position does 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. 

b Yes b No 

(xv) If a corporation, the articles of 

incorporation and any amendments, 

articles of conversion, by-laws and 

amendments, shareholder meeting 

minutes showing director elections, 

shareholder meeting minutes showing 

officer elections, organizational meeting 

minutes, all issued stock certificates, 

stock ledger, buy-sell agreements, stock 

transfer agreements, voting agreements, 

and documents relating to stock options, 

including the right to convert nonvoting stock or debentures into voting 

stock evidence that one or more 

economically disadvantaged women 

control the Board of Directors of the 

concern. Economically disadvantaged 

women are considered to control the 

Board of Directors when either: (1) One 

or more economically disadvantaged 

women own at least 51% 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) economically disadvantaged women 

comprise the majority of voting 

directors through actual numbers or, 

where permitted by state law, through 

weighted voting. 

b Yes b No b N/A 

(xvi) If a partnership, the partnership 

agreement evidences that one or more 

economically disadvantaged women 

serve as general partners, with control 

over all partnership decisions. 

b Yes b No b N/A 

(xvii) If a limited liability company, 

the articles of organization and any 

amendments, and operating agreement 

and amendments evidence that one or 

more economically disadvantaged 

women serve as management members, 

with control over all decisions of the 

limited liability company. 

b Yes b No b N/A 

(xviii) No males or other entity 

exercise actual control or have the 

power to control the concern. 

b Yes b No 

(xix) The economically disadvantaged 

woman upon whom eligibility is based 

has read the SBA’s regulations defining 

economic disadvantage and can 

demonstrate that her personal net worth 

is less than $750,000, excluding her 

ownership interest in the concern and 

her equity interest in her primary 

personal residence. 

b Yes b No 

(xx) The personal financial condition 

of the woman claiming economic 

disadvantage, including her personal 

income for the past three 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, evidences 

that she is economically disadvantaged. 

b Yes b No 

(xxi) The adjusted gross income of the 

woman claiming economic disadvantage 

averaged over the three years preceding 

the certification does not exceed 

$350,000. 

b Yes b No 

(xxii) The adjusted gross income of 

the woman claiming economic 

disadvantage averaged over the three 

years preceding the certification exceeds 

$350,000; however, the woman can 

show that this income level was 

unusual and not likely to occur in the 

future, that losses commensurate with 

and directly related to the earnings were 

suffered, or that the income is not 

indicative of lack of economic 

disadvantage. 

b Yes b No

(xxiii) The fair market value of all the 

assets (including her primary residence 

and the value of the business concern 

but excluding funds invested in an 

Individual Retirement Account or other 

official retirement account that are 

unavailable until retirement age without 

a significant penalty) of the woman 

claiming economic disadvantage does 

not exceed $6 million. 

b Yes b No 

(xxiv) The woman claiming economic 

disadvantage has not transferred any 

assets within two years of the date of the 

certification. 

b Yes b No 

(xxv) The woman claiming economic 

disadvantage has transferred assets 

within two years of the date of the 

certification. However, the transferred 

assets were: (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. 

b Yes b No b N/A 

(xxvi) SBA, in connection with an 

examination or protest, has not issued a 

decision currently in effect finding that 

this business concern does not qualify 

as a EDWOSB. 

b Yes b No 

(xxvii) All required documents 

verifying eligibility for the EDWOSB 

requirement have been submitted to the 

WOSB Program Repository, including 

any supplemental documents if there 

have been changes since the last 

representation, or will be submitted to 

the contracting officer if the repository 

is unavailable and then posted to the 

WOSB Program Repository within thirty 

(30) days of the repository becoming 

available. 


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b Yes b No 

b All the statements and 

information provided in this form and 

any documents submitted are true, 

accurate and complete. If assistance was 

obtained in completing this form and 

the supporting documentation, I have 

personally reviewed the information 

and it is true and accurate. I understand 

that these statements are made for the 

purpose of determining eligibility for a 

WOSB Program contract. 

b I understand that the information 

submitted may be given to Federal, State 

and local agencies for determining 

violations of law and other purposes. 

The certifications in this document are 

continuing in nature. Each EDWOSB or 

WOSB prime contract for which the 

EDWOSB submits an offer/quote or 

receives an award constitutes a 

restatement and reaffirmation of these 

certifications. I understand that the 

EDWOSB may not misrepresent its 

status as a EDWOSB or WOSB to: (1) 

Obtain a contract under the Small 

Business Act; or (2) obtain any benefit 

under a provision of Federal law that 

references the WOSB Program for a 

definition of program eligibility. 

b I am an officer of the EDWOSB 

authorized to represent it and sign this 

certification on its behalf. 

E. Contract File 

The SBA received one comment 

which recommended that the 

contracting officer document the file to 

include ‘‘underrepresented industries.’’ 

We note that the proposed rule did 

require the contracting officer to 

document the contract file with the 

results of the market research and the 

fact that the NAICS code assigned to the 

contract is for an industry that SBA has 

designated as either underrepresented 

or substantially underrepresented 

industry with respect to WOSBs. 

In addition, in the proposed rule, we 

sought comments on whether SBA 

should add the following additional 

language to proposed § 127.503(e): 

In addition, the contracting officer must 

document the contract file showing that the 

apparent successful offeror’s ORCA 

certifications and associated representations 

were reviewed. 

The SBA received two comments 

which supported this requirement for 

contracting officers to document the 

contract file. SBA has amended the 

proposed rule to add this requirement. 

F. Federal Contract Assistance 

Subpart E of the Final Rule addresses 

the contracting assistance provided to 

EDWOSBs and WOSBs. For example, 

this part of the Final Rule states that a 

contracting officer may restrict 

competition to EDWOSBs if the contract 

is an industry that SBA has designated 

as underrepresented and the contracting 

officer has a reasonable expectation 

based on market research that two or 

more EDWOSBs will submit offers, the 

anticipated award price (including 

options) does not exceed $5 million for 

a contract assigned a NAICS code for 

manufacturing or $3 million for a 

contract assigned any other NAICS 

code, and the contract may be awarded 

at a fair and reasonable price. The 

contracting officer may restrict 

competition for WOSBs in an industry 

that SBA has designated as substantially 

underrepresented if the contracting 

officer has a reasonable expectation 

based on market research that two or 

more WOSBs will submit offers, the 

anticipated award price (including 

options) does not exceed $5 million for 

a contract assigned a NAICS code for 

manufacturing or $3 million for a 

contract assigned any other NAICS 

code, and the contract may be awarded 

at a fair and reasonable price. 

The SBA received over 700 comments 

which stated that the dollar value of the 

contracts available to this program was 

too low and a few comments that 

recommended SBA apply the $5 million 

contract threshold to contracts with a 

NAICS code for construction. SBA notes 

that the contract dollar value threshold 

is specifically set forth in statute, and 

therefore, the regulations cannot be 

changed to reflect different thresholds. 

Other comments that addressed the 

dollar value of the contract available to 

this program recommended that SBA 

exclude the cost of construction 

materials from the contract value since 

the cost of such materials generally has 

nothing to do with the work being 

performed by the WOSB. In addition, 

two comments recommended that SBA 

not include option years when 

determining the cost of the contract. We 

note that the Small Business Act 

specifically states the WOSB Program is 

limited to certain contracts with an 

‘‘anticipated award price of the contract 

(including options)’’ of $5 million in the 

case of a contract assigned a NAICS 

code for manufacturing or $3 million for 

all other contracts. We do not believe, 

at this time, that the cost of materials 

from the anticipated award price and 

SBA does not make this exclusion for 

any of the contract dollar value 

limitations for its other procurement 

programs. In addition, the statute clearly 

includes options, and therefore, SBA 

cannot exclude options from the 

anticipated award price of the contract. 

The SBA also received some 

comments that recommended that the 

WOSB Program permit sole source 

awards similar to those available in the 

8(a) BD, HUBZone and SDVO SBC 

Programs. Likewise, SBA received a few 

comments which questioned why the 

‘‘rule of two’’ as explained in the FAR at 

48 CFR 19.502–2(b) was set forth in the 

regulations. In response to these 

comments, SBA notes that the statutory 

provision creating the WOSB Program 

does not authorize sole source awards 

while the statutory provisions creating 

the other programs do. In addition, the 

statutory provisions creating the WOSB 

Program specifically state that a 

contracting officer may use this program 

only if the ‘‘rule of two’’ is met. 

Therefore, SBA is not amending the 

regulations as proposed. 

The SBA received one comment 

which recommended that we cap or 

limit how many awards a particular 

WOSB can receive in order to ensure 

that the contracts are going to more than 

a handful of WOSBs. SBA does not 

agree with this recommendation 

primarily because the statute does not 

provide for such a cap or limitation. In 

addition, it would not serve the purpose 

of the WOSB Program to prevent 

qualified EDWOSBs or WOSBs from 

receiving further Federal contracts. 

The SBA also received several 

comments which supported the parity 

of the WOSB Program with the other 

small business programs. Specifically, 

in proposed § 127.503 SBA addressed 

contracting among the various SBA 

small business programs for acquisitions 

valued above and below the simplified 

acquisition threshold. The regulation 

proposed to provide contracting officers 

with the discretion to utilize either the 

8(a) BD, SDVO SBC, HUBZone, small 

business or WOSB Programs, depending 

on the acquisition history, dollar value 

of the contract, results of the market 

research, programmatic needs specific 

to the procuring agency, and the need to 

meet the agency’s goals. 

SBA understands that GAO has issued 

several decisions over the last two years 

stating that agencies must set aside any 

acquisition for HUBZone SBCs if the 

contracting officer has a reasonable 

expectation that at least two qualified 

HUBZone SBCs will submit offers and 

that the award can be made at a fair 

market price (the ‘‘rule of two’’ for 

HUBZone small businesses). Thus, 

under GAO rulings, the contracting 

officer has no discretion to utilize either 

the 8(a) BD, SDVO SBC, small business 

or the WOSB Program if the HUBZone 

rule of two is met. 

However, on July 10, 2009, the 

Director of the Office of Management 

and Budget (OMB) issued a 

memorandum stating that GAO’s 


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decisions are not binding on Federal 

agencies and are contrary to regulations 

promulgated by SBA that provide for 

‘‘parity’’ among the three small business 

programs (8(a) BD, HUBZone and SDVO 

SBC Programs). See OMB Memorandum 

M–09–23, publicly available at http:// 

www.whitehouse.gov/omb/assets/ 

memoranda_fy2009/m09-23.pdf. In 

addition, on August 21, 2009, the U.S. 

Department of Justice’s Office of Legal 

Counsel (OLC) concluded its review of 

the legal basis underlying GAO’s 

decisions. OLC issued an opinion 

stating that SBA’s regulations governing 

the interplay among the HUBZone, 8(a) 

BD and SDVO SBC Programs are a 

permissible construction of the Act and 

are binding on all Executive Branch 

agencies. See ‘‘Permissibility of Small 

Business Administration Regulations 

Implementing the Historically 

Underutilized Business Zone, 8(a) 

Business Development, and ServiceDisabled Veteran-Owned Small 

Business Concern Programs,’’ April 21, 

2009, publicly available at http:// 

www.usdoj.gov/olc/2009/sba-hubzoneopinion082109.pdf. 

In addition, the Court of Federal 

Claims issued decisions in Mission 

Critical v. U.S., 91 Fed.Cl. 386 (2010), 

and DGR Associates, Inc. v. U.S., No. 

10–396C (Fed. Cl.), stating that 

HUBZone small business set asides have 

priority over 8(a) sole source and set 

aside awards. The U.S. Department of 

Justice has appealed the Mission Critical 

decision to the Court of Appeals for the 

Federal Circuit. 

Recently, however, the President 

enacted Public Law 111–240, known as 

the Small Business Jobs and Credit Act 

of 2010. In this law, the Small Business 

Act was amended to delete language 

stating that a contracting opportunity 

‘‘shall’’ be awarded as a HUBZone setaside if the HUBZone ‘‘rule of two’’ is 

met. The new statutory language 

explains that a contracting opportunity 

‘‘may’’ be awarded as a HUBZone setaside if the HUBZone ‘‘rule of two’’ is 

met. Consequently, the HUBZone 

provisions do not unambiguously direct 

contracting officers to reserve every 

available contract opportunity for 

HUBZone small businesses whenever 

the rule of two is met. This statutory 

change further supports the SBA’s 

position on parity. 

As a result of the foregoing, the final 

regulation explains that there is parity 

among the 8(a) BD, SDVO, HUBZone, 

small business and WOSB programs and 

has implemented the proposed rule as 

final. 

G. Joint Venture Requirements 

In the proposed rule, SBA had 

proposed amending the current joint 

venture regulation, permitting EDWOSB 

or WOSB joint ventures for EDWOSB or 

WOSB contracts. The current rule had 

provided that the EDWOSB or WOSB 

must perform a significant portion of the 

contract and SBA proposed clarifying 

this requirement. 

SBA received one comment which 

supported the joint venture provisions 

and five comments suggesting that the 

language for joint ventures should be 

strengthened to ensure that women are 

the primary beneficiaries of the contract. 

SBA also received one comment which 

stated that SBA should review all joint 

ventures to ensure that the percentage of 

work and the distribution of profits are 

fair because it is not possible to assign 

a fixed percentage of profits to the one 

WOSB joint venturer, such as the stated 

minimum of 51 percent. 

First, SBA believes that the regulation 

has been strengthened because it 

requires that not less than 51 percent of 

the net profits earned by the joint 

venture must be distributed to the 

EDWOSB or WOSB while the former 

regulation only required that the WOSB 

joint venturer perform a significant 

portion of the contract, without setting 

forth a specific and objective percentage 

of work to be performed. Second, SBA 

also clarified that the joint venture 

agreement must be in writing and must 

set forth the following provisions: The 

purpose of the joint venture, that an 

EDWOSB or WOSB must be the 

managing venturer, that an employee of 

the managing venturer must be the 

project manager responsible for the 

performance of the contract, and the 

responsibilities of the parties with 

regard to contract performance, sources 

of labor, and negotiation of the 

EDWOSB or WOSB contract. 

In light of these guidelines, SBA does 

not believe it is necessary to review 

each joint venture agreement, which can 

slow down the contracting process. In 

addition, these same guidelines are in 

place for the SDVO SBC Program and 

there have not been any issues 

concerning the ability of the SDVO SBC 

joint venture partner to meet the 51 

percent net profit requirement. 

Therefore, SBA does not believe any 

changes to the proposed rule or other 

clarification is necessary and adopts the 

provision in the Final Rule as proposed. 

H. Protests 

In the proposed rule, SBA set forth 

the procedures by which an interested 

party may protest the status of an 

EDWOSB or WOSB apparent successful 

offeror. SBA received a few comments 

which suggested that the regulations 

should state that the contracting officer 

must file a status protest if all the 

required documents are not received. 

SBA also received one comment which 

stated that interested parties should 

only be permitted to file a protest if it 

has credible information calling into 

question the apparent successful 

offeror’s eligibility and one comment 

recommending that SBA ensure that the 

protest process is not abused. 

The SBA notes that the requirement 

that a contracting officer file a status 

protest if all documents are not 

received, or if the contracting officer has 

information that calls into question the 

eligibility of the business, is set forth in 

§ 127.301, titled ‘‘When may a 

contracting officer accept a concern’s 

self-certification?’’. In addition, this 

protest process is the same or similar to 

those for SBA’s other contracting 

programs, such as the HUBZone and 

SDVO SBC Programs. The process 

provides that interested parties must file 

a protest specifying all grounds for the 

protest and cannot merely assert that the 

protested concern is ineligible without 

setting forth specific facts. This protects 

the protest process from abuse. 

The SBA received another comment 

which stated that anyone should be 

allowed to file a status protest and not 

just those businesses competing in the 

procurement. SBA disagrees with this 

comment. First, generally only those 

businesses competing in the acquisition 

would know who the apparent 

successful offeror is because they have 

been notified of this fact by the 

contracting officer. Second, although a 

business that is not competing in the 

requirement cannot file a status protest, 

the business concern should notify SBA, 

who can then conduct an eligibility 

examination. Specifically, § 127.400 

explains that SBA may consider 

information provided to it by a third 

party that questions the eligibility of an 

EDWOSB or WOSB that has certified its 

status in ORCA or CCR in determining 

whether to conduct an eligibility 

examination. 

The SBA received one comment 

which stated that it disagrees with the 

ability of the contracting officer to 

continue a contract with a business if 

that business has been found ineligible. 

The comment suggested that the 

contract should be terminated as soon as 

possible. According to § 127.604(f)(2)(i), 

if a contracting officer receives a protest 

determination stating that a concern is 

ineligible after contract award, and there 

has been no appeal filed with OHA, the 

contracting officer shall terminate the 

contract. If an appeal has been filed, 


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since the appeal process can be lengthy, 

the rule explains that the contracting 

officer must consider whether 

performance can be suspended until an 

appellate decision has been rendered. If 

OHA affirms that the concern is not 

eligible, then the contracting officer 

must either terminate the contract or not 

exercise the next option. Therefore, we 

believe this rule sufficiently limits a 

contracting officer’s ability to continue 

a contract with a business found 

ineligible. SBA has implemented the 

rule as it proposed. 

I. Other Comments 

Several comments stated that the 

overall size standards for WOSB/ 

EDWOSBs are too low. SBA notes that 

this proposed rule did not address the 

size standards for EDWOSBs or WOSBs 

and therefore, those comments are 

beyond the scope of the rulemaking. 

The SBA also received several 

comments which suggested that only 

those WOSBs certified by third-party 

certifiers or with completed ORCA 

certifications should be counted for 

goaling purposes. SBA also received one 

comment which suggested that the 5 

percent goal should be increased year by 

year until the percentage of women 

owned businesses funded are in 

proportion to the number of women in 

the population. One comment stated 

that agencies should not be allowed to 

multiple count small business programs 

in meeting their goals because it limits 

the effectiveness of the small business 

programs. SBA notes that the proposed 

rule did not specifically address SBA’s 

goaling program and therefore these 

comments are outside the scope of the 

rulemaking, as well. 

In addition, at least one comment 

suggested that the WOSB Program have 

a Mentor Prote ́ge ́ Program similar to the 

one in the 8(a) BD Program. As 

discussed above, the President recently 

enacted Public Law 111–240, which 

authorizes a Mentor-Prote ́ge ́ Program for 

SBA’s small business programs. Because 

the SBA did not propose guidance for 

such a program in the WOSB proposed 

rule, and is in the process of reviewing 

the statutory language and determining 

guidance on this for its programs, this 

final rule does not establish a MentorProte ́ge ́ Program for the WOSB Program. 

The SBA received one comment 

which stated that there should be a 

similar program for non-profits. Because 

SBA’s government contracting programs 

require that the small business concern 

be for profit, and SBA did not propose 

changing this requirement for the WOSB 

Program, we believe this comment is 

outside the scope of the rulemaking. 

The SBA also received one comment 

which recommended that SBA audit 

prime contractors to ensure that they 

utilize WOSBs for subcontracts. This 

Final Rule addresses prime contracts 

only because the WOSB Program is a 

prime contracting program. However, 

we note that SBA employs commercial 

market representatives to assist small 

businesses in obtaining subcontracts 

and to help other than small businesses 

meet their subcontracting goals. In 

addition, these SBA employees perform 

compliance reviews on other than small 

businesses to determine whether such 

contractors are identifying opportunities 

for small business as subcontractors and 

to ensure that the subcontracting plan 

requirements are met. 

Compliance With Executive Orders 

12866, 12988, 13132, the Paperwork 

Reduction Act (44 U.S.C., Chapter 35) 

and the Regulatory Flexibility Act (5 

U.S.C. 601–612) 

Executive Order 12866 

OMB has determined that this rule is 

a ‘‘significant’’ regulatory action under 

Executive Order 12866. In the proposed 

rule, SBA set forth its initial regulatory 

impact analysis, which addressed the 

following: Necessity of the regulation; 

alternative approaches to the proposed 

rule; and the potential benefits and costs 

of the regulation. SBA did not receive 

any comment which specifically 

addressed its regulatory impact analysis. 

However, numerous comments agreed 

that the rule was necessary to assist 

WOSB in obtaining Federal contracts. In 

addition, SBA received numerous 

comments which supported its 

proposed approaches, especially 

concerning the use of self-certification, 

third-party certifiers, and the document 

repository. The specific comments on 

these approaches are discussed above. 

At least one comment noted that 

SBA’s proposed certification approach 

was innovative. Another comment 

stated that by 2018, small businesses 

will create 9.7 million new jobs with 5 

million being created by WOSBs. This 

comment stated that substantial new 

contract opportunities must be found to 

support this growth in employment and 

the Federal Government must be one of 

the accessible markets. Therefore, it 

appears this comment believed that the 

rule will potentially benefit not just 

WOSBs and the Federal Government, 

but will have a beneficial impact on 

employment. 

For these reasons, and those set forth 

in the preamble, SBA adopts as final its 

initial regulatory impact analysis. 

Executive Order 12988 

This action meets applicable 

standards set forth in Sections 3(a) and 

3(b)(2) of Executive Order 12988, Civil 

Justice Reform, to minimize litigation, 

eliminate ambiguity, and reduce 

burden. This action does not have 

retroactive or preemptive effect. 

Executive Order 13132 

This rule does not have federalism 

implications as defined in the Executive 

Order. 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. 

Paperwork Reduction Act (PRA) 

For purposes of the Paperwork 

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

SBA has determined that the rule 

imposes new reporting and 

recordkeeping requirements. The 

certification process described in 

Subpart C, §§ 127.300 to 127.302, is an 

information collection. The certification 

process requires a concern seeking to 

benefit from Federal contracting 

opportunities designated for WOSBs or 

EDWOSBs to verify its status by 

submitting a certification to the WOSB 

Program Repository, submitting other 

supporting documents to the WOSB 

Program Repository, and by 

representing its status in an existing 

electronic contracting system (i.e., 

ORCA). 

Specifically, the WOSB or EDWOSB 

will be required to submit certain 

documents verifying eligibility at the 

time of certification in ORCA (and every 

year after). These documents will be 

submitted to a document repository, or 

until the repository is established, the 

contracting office upon notice of a 

proposed award. Further, the protest 

and eligibility examination procedures 

will require the submission of 

documents from those parties subject to 

a protest and eligibility examination. To 

reduce the burden on the WOSBs or 

EDWOSBs, the same documents 

submitted at the time of certification 

will be used for the protests and 

eligibility examinations, except that for 

protests and eligibility examinations, 

SBA will also request copies of 

proposals submitted in response to a 

WOSB or EDWOSB solicitation and 

certain other documents and 

information to verify the status of an 

EDWOSB. 

Finally, the Final Rule also requires 

the WOSBs or EDWOSBs to retain 

copies of the documents submitted for 


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a period of six (6) years. SBA stated in 

the proposed rule that it believes that 

any additional burden imposed by this 

recordkeeping requirement would be 

minimal since the firms would maintain 

the information in their general course 

of business. 

SBA submitted this information 

collection to OMB for review and it was 

approved. 

Title and Description of Information 

Collection: Women-Owned Small 

Business Federal Contract Assistance 

Program Purpose: The information 

collected is modeled on two currently 

approved information collections: SBA 

Form 1010, OMB Control 3245–0331, 

SBA’s Application for 8(a) Business 

Development, and SBA Form 413, OMB 

Control 3245–0188, SBA’s Application 

for Personal Financial Statement, which 

are used to collect personal and 

business information on the businesses 

and owners applying to this program. 

The information requested for this 

program includes information verifying 

the WOSB/EDWOSB status of the 

business concern, including tax returns, 

personal statements, and business 

documents. 

OMB Control Number: 

Description of and Estimated Number 

of Respondents: Information will be 

collected from the small business 

concerns that are not already certified 

by an approved third-party certifier and 

therefore must self-certify and verify 

their status by submitting certain 

required documents to a document 

repository at the time of ORCA 

certification. This same information 

must also be collected by the third-party 

certifier when making its certification 

determination. In addition, those with 

third-party certifications will also be 

required to submit certain documents to 

the document repository verifying 

eligibility, such as a copy of the thirdparty certification and the SBA 

certification form. 

Utilizing the RAND FPDS data set for 

the total number of WOSBs (identified 

by Dun and Bradstreet DUNS number) 

that received obligated funds from 

awards, contracts, orders and 

modifications to existing contracts for 

FY 2005, SBA identified approximately 

12,000 WOSBs as recipients of Federal 

contracts in the 83 NAICS codes that 

would be eligible under the WOSB 

Program. SBA did not receive specific 

comments on the estimated number of 

responses or response times. 

Estimated Number of Responses: In 

FY 2005, there were 12,000 WOSBs that 

were identified as recipients of Federal 

contracts in the 83 NAICS codes that 

would be eligible under the WOSB 

Program. Thus, SBA still believes there 

could be an estimated 12,000 responses. 

In addition, SBA will conduct eligibility 

examinations and protests and appeals. 

SBA still believes that the total 

estimated number of responses is 

12,200. 

Estimated Response Time: 2 hours. 

Total Estimated Annual Hour Burden: 

24,400 hours. 

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 set forth 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? 

The Small Business Administration 

(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 

ensure equal opportunity, and thereby 

increased Federal procurement 

opportunities to WOSBs. SBA is 

finalizing the Final Rule pursuant to 

section 8(m) of the Small Business Act, 

15 U.S.C. 637(m). These Procedures will 

assist Federal agencies in eliminating 

barriers to the participation by WOSBs 

in Federal contracting, thereby 

achieving the Federal Government’s 

goal of awarding five percent of Federal 

contract dollars to WOSBs, as provided 

in the Federal Acquisition Streamlining 

Act of 1994. 

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 

The SBA received a few comments 

that addressed the IRFA or the subjects 

discussed in the IRFA. Several 

comments stated that SBA should 

consider the costs and burdens of the 

reporting and recordkeeping 

requirements for WOSBs because they 

could inadvertently discourage WOSBs 

from taking advantage of the program. 

These reporting and recordkeeping 

requirements include the 

representations and the submission of 

documents relating to WOSB status to 

the contracting officer if a repository for 

documents is unavailable. 

The SBA notes that WOSBs have the 

burden of proving eligibility for the 

program. Although the reporting and 

recordkeeping requirements may seem 

onerous, they are necessary to reduce 

fraud in the program and to ensure that 

the benefit of the program—an 

opportunity to obtain a contract through 

restricted competition—is available to 

only eligible WOSBs. The SBA’s rule 

adopts methods and processes aimed at 

meeting these objectives, while also 

minimizing, as much as possible, the 

burden on small businesses. 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 eligible Federal contracts 

are the specific group of small business 

concerns most directly affected by this 

rule. More specifically, this rule may 

affect EDWOSBs that participate in 

Federal procurement in industries 

where SBA determines that WOSBs are 

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 


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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). 

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 

database used in the RAND Report 

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 

Central Contractor Registration (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 only those 

eligible WOSBs competing for contracts 

in the eligible industries could possibly 

receive contracts under the program. 

Utilizing the RAND FPDS data set for 

the total number of WOSBs (identified 

by Dun and Bradstreet DUNS number) 

that received obligated funds from 

awards, contracts, orders and 

modifications to existing contracts for 

FY 2005, SBA identified approximately 

12,000 WOSBs as recipients of Federal 

contracts in the 83 NAICS codes that 

would be eligible under the WOSB 

Program. Thus, this rule may affect 

approximately 12,000 WOSBs. 

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 approximately 3,800 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 

could affect the number of future 

contracts 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, thus 

receiving fewer contracts than would be 

expected absent discrimination in the 

marketplace, and where the anticipated 

dollar value of the procurement does 

not exceed $3 million or $5 million, in 

the case of manufacturing contracts. In 

addition, we note that industries in 

which WOSBS are underrepresented are 

ones in which they have gotten less than 

their fair share of contracts and this 

suggests, at least implicitly, that nonWOSBs have therefore been getting 

more than the share they would receive 

in the absence of discrimination. The 

number of small businesses that would 

be excluded from eligibility for 

competing for contracts designated for 

the program under these procurements 

or from future such determinations is 

not known at this time. 

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 statutory 

goals that agencies strive to achieve 

through their contracting activities. It is 

acknowledged, however, that some 

redistribution of contracts among the 

various programs may occur as a result 

of these Procedures. 

4. What are the projected reporting, 

recordkeeping, Paperwork Reduction 

Act and other compliance 

Requirements? 

For purposes of the Paperwork 

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

SBA has determined that the rule 

imposes new reporting and 

recordkeeping requirements. The 

certification process described in 

Subpart C, §§ 127.300 to 127.302, is an 

information collection. The certification 

process requires a concern seeking to 

benefit from Federal contracting 

opportunities designated for WOSBs or 

EDWOSBs to verify its status by 

providing documents to the WOSB 

Program Repository, submitting a 

certification to the WOSB Program 

Repository, and representing its status 

in an existing electronic contracting 

system (i.e., ORCA). The WOSB or 

EDWOSB will have to represent in 

ORCA that it meets each eligibility 

requirement of the program. 

Specifically, the WOSB or EDWOSB 

will be required to submit certain 

documents verifying eligibility at the 

time of certification in ORCA (and every 

year thereafter). These documents will 

be submitted to a document repository 

established by SBA, or until the 

repository is established, the contracting 

office upon notice of a proposed award. 

Further, the protest and eligibility 

examination procedures will require the 

submission of documents from those 

parties subject to a protest and 

eligibility examination. To reduce the 

burden on the WOSBs or EDWOSBs, the 

same documents submitted at the time 

of certification will be used for the 

protests and eligibility examinations, 

except that for protests and eligibility 

examinations, SBA will also request 

copies of proposals submitted in 

response to a WOSB or EDWOSB 


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solicitation and certain other documents 

and information to verify the status of 

an EDWOSB. 

Finally, the rule also requires the 

WOSBs or EDWOSBs to retain copies of 

the documents submitted for a period of 

six (6) years. The SBA stated in the 

proposed rule that it believes that any 

additional burden imposed by this 

recordkeeping requirement would be 

minimal since the firms would maintain 

the information in their general course 

of business. 

As stated above, SBA submitted this 

information collection to OMB for 

review and it was approved. 

There will also 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. The 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 

The SBA has minimized the 

significant economic impact on small 

entities. Pursuant to section 8(m) of the 

Small Business Act, 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 or provide 

evidence of certification from an 

approved third-party certifier. 

An alternative approach would have 

been to require EDWOSBs and WOSBs 

to apply to SBA for formal certification. 

The SBA has ruled out this approach as 

unnecessary, not required by statute, 

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. The 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 Final Rule 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 two formal 

comments on May 3, 2010. The first 

comment recommended that SBA 

address new market opportunities for 

women-owned small businesses that 

may not yet be incorporated in the 

NAICS System. While SBA understands 

and appreciates the concern expressed 

by the comment to consider emerging 

areas for WOSBs, SBA is limited by the 

data available, particularly the FPDS– 

NG and CCR databases, to construct the 

disparity ratios which determine 

underrepresentation. The FPDS–NG and 

CCR databases contain data which relate 

to well-defined NAICS codes in which 

WOSBs have participated in Federal 

procurement. To the extent that there 

are new areas in which WOSBs are 

participating, SBA is committed to 

making an on-going effort to obtain 

accurate and timely data to use in the 

anticipated updates to the list of eligible 

industries. 

The second comment received from 

the SBA Office of Advocacy expressed 

concern with the submission of 

documents that WOSBs are required to 

make prior to award. Particularly, the 

comment was concerned that ‘‘until the 

repository is operational, the womenowned business that decides to selfcertify must not only submit documents 

to the Online Representations and 

Certifications Application system 

(ORCA) but must provide each 

contracting officer with eligibility 

documents.’’ The SBA Office of 

Advocacy was concerned with what it 

viewed as a duplicative submission and 

sought to have SBA seek a less 

burdensome alternative. 

As stated in the portion of the 

preamble which discussed the public 

comments, many of the public 

comments confused the CCR and ORCA 

databases. However, neither CCR nor 

ORCA collects documents; rather CCR is 

an online government-maintained 

database on which companies who want 

to do business with the Federal 

Government can register and supply 

limited information relative to their size 

and type of business, and ORCA collects 

the representations and certifications 

required for Federal contracts. 

As a requirement for participation in 

this Program, an EDWOSB or WOSB 

must register in CCR first. Next, it must 

provide documents supporting its 

EDWOSB or WOSB status to an online 

document repository, called that the 

WOSB Program Repository, that the 

SBA is planning to establish. The 

business concern will be placing these 

documents in a secure, Web-based 

environment that would only be 

accessible to the individual WOSBs and 

EDWOSBs, Federal contracting officers 

and SBA. The contracting officer would 

be required to access the documents 

prior to contract award to review the 

submitted documents. The SBA 

proposed this approach so that the 

WOSBs and EDWOSBs would not have 

to submit documents each time they are 

being considered for the award of a 

WOSB or EDWOSB contract. 

Until the repository is completed, or 

if the system is otherwise unavailable, 

then SBA explained that the WOSB or 

EDWOSBs must submit the documents 

directly to the contracting officer prior 

to each WOSB or EDWOSB award. The 

contracting officer must retain these 

documents in the contract file so that 

SBA may later review the file for 

purposes of a status protest or eligibility 

examination. However, the WOSB or 

EDWOSB will also be required to post 

the documents to the WOSB Program 

Repository within thirty (30) days of the 

repository becoming available. 

Finally, after registering in CCR and 

submitting the required document to the 

repository, the EDWOSB or WOSB must 

represent its status in ORCA at 

https://orca.bpn.gov. 

Thus, the supporting documents will 

be provided to a repository (which is 

not necessarily part of ORCA) or, if the 

repository is unavailable, to the 

contracting officer. The SBA notes that 


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the statute requires the submission of 

supporting documents to the contracting 

officer and, until or unless the 

repository is established, this appears to 

be the sole alternative that meets this 

statutory requirement. In addition, SBA 

believes that although the 

representations and document 

requirement may seem burdensome to 

some small businesses, this is required 

to meet the statutory provisions, reduce 

fraud in the program, and ensure that 

only eligible concerns receive the 

benefits of the program. 

List of Subjects 

13 CFR Part 121 

Administrative practice and 

procedure, Government procurement, 

Government property, Reporting and 

recordkeeping requirements, Small 

businesses. 

13 CFR Part 124 

Administrative practice and 

procedure, Government procurement, 

Hawaiian natives, Indians—business 

and finance, Minority businesses, 

Reporting and recordkeeping 

requirements, Technical assistance. 

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 (Government agencies). 

■ Accordingly, for the reasons stated in 

the preamble, SBA amends 13 CFR parts 

121, 124, 125, 126, 127 and 134 as 

follows: 

PART 121—SMALL BUSINESS SIZE 

REGULATIONS 

■ 1. The authority citation for 13 CFR 

part 121 continues to read as follows: 

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

637, 644, 662(5) and 694a; and Pub. L. 105– 

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

■ 2. Revise § 121.401 to read as follows: 

§ 121.401 What procurement programs are 

subject to size determinations? 

The rules set forth in §§ 121.401 

through 121.413 apply to all Federal 

procurement programs for which status 

as a small business is required or 

advantageous, including the small 

business set-aside program, SBA’s 

Certificate of Competency program, 

SBA’s 8(a) Business Development 

program, SBA’s HUBZone program, the 

Women Owned Small Business (WOSB) 

Federal Contract Program, SBA’s 

Service-Disabled Veteran-Owned Small 

Business program, the Small Business 

Subcontracting program, and the 

Federal Small Disadvantaged Business 

(SDB) program. 

■ 3. Amend § 121.1001 by revising 

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

§ 121.1001 Who may initiate a size protest 

or request a formal size determination? 

(a) * * * 

(9) For SBA’s WOSB Federal 

Contracting Program, 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 of this chapter; 

(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 

sentence after the third sentence to read 

as follows: 

§ 121.1008 What occurs after SBA receives 

a size protest or 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 124—8(a) BUSINESS 

DEVELOPMENT/SMALL 

DISADVANTAGED BUSINESS STATUS 

DETERMINATIONS 

■ 5. The authority citation for 13 CFR 

part 124 continues to read as follows: 

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

637(a), 637(d) and Pub. L. 99–661, sec. 1207, 

Pub. L. 100–656, Pub. L. 101–37, Pub. L. 

101–574, and 42 U.S.C. 9815. 

■ 6. Amend § 124.503 by revising 

paragraph (j) to read as follows: 

§ 124.503 How does SBA accept a 

procurement for award through the 8(a) BD 

program? 

* * * * * 

(j) Contracting Among Small Business 

Programs. 

(1) Acquisitions Valued At or Below 

$100,000/Simplified Acquisition 

Threshold. The contracting officer shall 

set aside any acquisition with an 

anticipated dollar value exceeding 

$3,000 ($15,000 for acquisitions as 

described in the Federal Acquisition 

Regulation (FAR) at 48 CFR 

13.201(g)(1)) but valued below $100,000 

($250,000 for acquisitions described in 

paragraph (1) of the Simplified 

Acquisition Threshold definition in the 

FAR at 48 CFR 2.101) for small business 

concerns when there is a reasonable 

expectation that offers will be obtained 

from at least two small business 

concerns that are competitive in terms 

of quality and delivery and award will 

be made at fair market prices. This 

requirement does not preclude a 

contracting officer from setting aside a 

contract under the 8(a) BD, HUBZone, 

Service Disabled Veteran Owned 

(SDVO), or WOSB programs. 

(2) Acquisitions Valued Above 

$100,000/Simplified Acquisition 

Threshold. 

(i) The contracting officer shall set 

aside any acquisition with an 

anticipated dollar value exceeding 

$100,000 ($250,000 for acquisitions 

described in paragraph (1) of the 

Simplified Acquisition Threshold 

definition in the FAR at 48 CFR 2.101) 

for small business concerns when there 

is a reasonable expectation that offers 

will be obtained from at least two small 

business concerns that are competitive 

in terms of quality and delivery and 

award will be made at fair market 

prices. However, after conducting 

market research, the contracting officer 

shall first consider a set-aside or sole 

source award (if the sole source award 

is permitted by statute or regulation) 

under the 8(a) BD, HUBZone, SDVO 

SBC or WOSB programs before setting 

aside the requirement as a small 

business set-aside. There is no order of 

precedence among the 8(a) BD, 

HUBZone, SDVO SBC or WOSB 

programs. The contracting officer must 

document the contract file with the 

rationale used to support the specific 

set-aside, including the type and extent 

of market research conducted. In 

addition, the contracting officer must 

document the contract file showing that 

the apparent successful offeror’s ORCA 

certifications and associated 

representations were reviewed. 

(ii) SBA believes that Progress in 

fulfilling the various small business 

goals, as well as other factors such as 

the results of market research, 

programmatic needs specific to the 

procuring agency, anticipated award 

price, and the acquisition history, will 

be considered in making a decision as 

to which program to use for the 

acquisition. 


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PART 125—GOVERNMENT 

CONTRACTING PROGRAMS 

■ 7. 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. 

■ 8. Add new paragraph (f) to § 125.2 to 

read as follows: 

§ 125.2 Prime contracting assistance. 

* * * * * 

(f) Contracting Among Small Business 

Programs. 

(1) Acquisitions Valued At or Below 

$100,000/Simplified Acquisition 

Threshold. The contracting officer shall 

set aside any acquisition with an 

anticipated dollar value exceeding 

$3,000 ($15,000 for acquisitions as 

described in the Federal Acquisition 

Regulation (FAR) at 48 CFR 

13.201(g)(1)) but valued below $100,000 

($250,000 for acquisitions described in 

paragraph (1) of the Simplified 

Acquisition Threshold definition in the 

FAR at 48 CFR 2.101) for small business 

concerns when there is a reasonable 

expectation that offers will be obtained 

from at least two small business 

concerns that are competitive in terms 

of quality and delivery and award will 

be made at fair market prices. This 

requirement does not preclude a 

contracting officer from setting aside a 

contract under the 8(a) BD, HUBZone, 

Service Disabled Veteran Owned 

(SDVO), or WOSB programs. 

(2) Acquisitions Valued Above 

$100,000/Simplified Acquisition 

Threshold. 

(i) The contracting officer shall set 

aside any acquisition with an 

anticipated dollar value exceeding 

$100,000 ($250,000 for acquisitions 

described in paragraph (1) of the 

Simplified Acquisition Threshold 

definition in the FAR at 48 CFR 2.101) 

for small business concerns when there 

is a reasonable expectation that offers 

will be obtained from at least two small 

business concerns that are competitive 

in terms of quality and delivery and 

award will be made at fair market 

prices. However, after conducting 

market research, the contracting officer 

shall first consider a set-aside or sole 

source award (if the sole source award 

is permitted by statute or regulation) 

under the 8(a) BD, HUBZone, SDVO 

SBC or WOSB programs before setting 

aside the requirement as a small 

business set-aside. There is no order of 

precedence among the 8(a) BD, 

HUBZone, SDVO SBC or WOSB 

programs. The contracting officer must 

document the contract file with the 

rationale used to support the specific 

set-aside, including the type and extent 

of market research conducted. In 

addition, the contracting officer must 

document the contract file showing that 

the apparent successful offeror’s ORCA 

certifications and associated 

representations were reviewed. 

(ii) SBA believes that Progress in 

fulfilling the various small business 

goals, as well as other factors such as 

the results of market research, 

programmatic needs specific to the 

procuring agency, anticipated award 

price, and the acquisition history, will 

be considered in making a decision as 

to which program to use for the 

acquisition. 

■ 9. Amend § 125.19 by revising 

paragraph (b) to read as follows: 

§ 125.19 When may a contracting officer 

set-aside a procurement for SDVO SBCs? 

* * * * * 

(b) Contracting Among Small 

Business Programs. 

(1) Acquisitions Valued At or Below 

$100,000/Simplified Acquisition 

Threshold. The contracting officer shall 

set aside any acquisition with an 

anticipated dollar value exceeding 

$3,000 ($15,000 for acquisitions as 

described in the Federal Acquisition 

Regulation (FAR) at 48 CFR 

13.201(g)(1)) but valued below $100,000 

($250,000 for acquisitions described in 

paragraph (1) of the Simplified 

Acquisition Threshold definition in the 

FAR at 48 CFR 2.101) for small business 

concerns when there is a reasonable 

expectation that offers will be obtained 

from at least two small business 

concerns that are competitive in terms 

of quality and delivery and award will 

be made at fair market prices. This 

requirement does not preclude a 

contracting officer from setting aside a 

contract under the 8(a) BD, HUBZone, 

Service Disabled Veteran Owned 

(SDVO), or WOSB programs. 

(2) Acquisitions Valued Above 

$100,000/Simplified Acquisition 

Threshold. 

(i) The contracting officer shall set 

aside any acquisition with an 

anticipated dollar value exceeding 

$100,000 ($250,000 for acquisitions 

described in paragraph (1) of the 

Simplified Acquisition Threshold 

definition in the FAR at 48 CFR 2.101) 

for small business concerns when there 

is a reasonable expectation that offers 

will be obtained from at least two small 

business concerns that are competitive 

in terms of quality and delivery and 

award will be made at fair market 

prices. However, after conducting 

market research, the contracting officer 

shall first consider a set-aside or sole 

source award (if the sole source award 

is permitted by statute or regulation) 

under the 8(a) BD, HUBZone, SDVO 

SBC or WOSB programs before setting 

aside the requirement as a small 

business set-aside. There is no order of 

precedence among the 8(a) BD, 

HUBZone, SDVO SBC or WOSB 

programs. The contracting officer must 

document the contract file with the 

rationale used to support the specific 

set-aside, including the type and extent 

of market research conducted. In 

addition, the contracting officer must 

document the contract file showing that 

the apparent successful offeror’s ORCA 

certifications and associated 

representations were reviewed. 

(ii) SBA believes that Progress in 

fulfilling the various small business 

goals, as well as other factors such as 

the results of market research, 

programmatic needs specific to the 

procuring agency, anticipated award 

price, and the acquisition history, will 

be considered in making a decision as 

to which program to use for the 

acquisition. 

* * * * * 

PART 126—HUBZONE PROGRAM 

■ 10. The authority citation for part 126 

continues to read as follows: 

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

and 657a. 

■ 11. Amend § 126.607 by revising 

paragraph (b) to read as follows: 

§ 126.607 When must a contracting officer 

set aside a requirement for qualified 

HUBZone SBCs? 

* * * * * 

(b) Contracting Among Small 

Business Programs. 

(1) Acquisitions Valued At or Below 

$100,000/Simplified Acquisition 

Threshold. The contracting officer shall 

set aside any acquisition with an 

anticipated dollar value exceeding 

$3,000 ($15,000 for acquisitions as 

described in the Federal Acquisition 

Regulation (FAR) at 48 CFR 

13.201(g)(1)) but valued below $100,000 

($250,000 for acquisitions described in 

paragraph (1) of the Simplified 

Acquisition Threshold definition in the 

FAR at 48 CFR 2.101) for small business 

concerns when there is a reasonable 

expectation that offers will be obtained 

from at least two small business 

concerns that are competitive in terms 

of quality and delivery and award will 

be made at fair market prices. This 

requirement does not preclude a 

contracting officer from setting aside a 

contract under the 8(a) BD, HUBZone, 

Service Disabled Veteran Owned 

(SDVO), or WOSB programs. 


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(2) Acquisitions Valued Above 

$100,000/Simplified Acquisition 

Threshold. 

(i) The contracting officer shall set 

aside any acquisition with an 

anticipated dollar value exceeding 

$100,000 ($250,000 for acquisitions 

described in paragraph (1) of the 

Simplified Acquisition Threshold 

definition in the FAR at 48 CFR 2.101) 

for small business concerns when there 

is a reasonable expectation that offers 

will be obtained from at least two small 

business concerns that are competitive 

in terms of quality and delivery and 

award will be made at fair market 

prices. However, after conducting 

market research, the contracting officer 

shall first consider a set-aside or sole 

source award (if the sole source award 

is permitted by statute or regulation) 

under the 8(a) BD, HUBZone, SDVO 

SBC or WOSB programs before setting 

aside the requirement as a small 

business set-aside. There is no order of 

precedence among the 8(a) BD, 

HUBZone, SDVO SBC or WOSB 

programs. The contracting officer must 

document the contract file with the 

rationale used to support the specific 

set-aside, including the type and extent 

of market research conducted. In 

addition, the contracting officer must 

document the contract file showing that 

the apparent successful offeror’s ORCA 

certifications and associated 

representations were reviewed. 

(ii) SBA believes that Progress in 

fulfilling the various small business 

goals, as well as other factors such as 

the results of market research, 

programmatic needs specific to the 

procuring agency, anticipated award 

price, and the acquisition history, will 

be considered in making a decision as 

to which program to use for the 

acquisition. 

* * * * * 

§ 126.609 [Removed and Reserved] 

■ 12. Remove and reserve § 126.609. 

■ 13. Revise part 127 to read as follows: 

PART 127—WOMEN-OWNED SMALL 

BUSINESS FEDERAL CONTRACT 

PROGRAM 

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 EDWOSB 

or WOSB status protest pursuant to 

subpart F of this part? 

127.402 How will SBA conduct an 

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 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? 

127.507 Are there EDWOSB and WOSB 

contracting opportunities at or below the 

Simplified Acquisition Threshold? 

127.508 May SBA appeal a contracting 

officer’s decision not to reserve a 

procurement for award as a WOSB 

Program Contract? 

127.509 What is the process for such an 

appeal? 

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 ensure that WomenOwned Small Businesses (WOSBs) have 

an equal opportunity to participate in 

Federal contracting. This part 

implements these mechanisms and 

ensures that the program created, 

referred to as the WOSB Program, is 

substantially related to this important 

Congressional goal in accordance with 

applicable law. 

§ 127.101 What type of assistance is 

available under this part? 

This part authorizes contracting 

officers to restrict competition to 

eligible Economically Disadvantaged 

Women-Owned Small Businesses 

(EDWOSBs) for certain Federal contracts 

in industries in which the Small 

Business Administration (SBA) 

determines that WOSBs are 

underrepresented or substantially 

underrepresented in Federal 

procurement. It also authorizes 

contracting officers to restrict 

competition to eligible WOSBs for 

certain Federal contracts in industries in 

which SBA determines that WOSBs are 

substantially underrepresented in 

Federal procurement and has waived 

the economically disadvantaged 

requirement. 

§ 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 and whose term has not 

expired or otherwise left the 8(a) BD 

program early. 

AA/GC&BD means SBA’s Associate 

Administrator for Government 

Contracting and Business Development. 

Central Contractor Registration (CCR) 

Database means the primary 


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Government repository for contractor 

information required for the conduct of 

business with the Government. It is also 

a means for conducting searches for 

small business contractors. In general, 

prospective Federal contractors must be 

registered in CCR prior to award of a 

contract or purchase agreement. CCR is 

located at https://www.bpn.gov/ccr/. 

Citizen means a person born or 

naturalized in the United States. 

Resident aliens and holders of 

permanent visas are not considered to 

be citizens. 

Concern means a firm that satisfies 

the requirements in § 121.105 of 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 

chapter and that is at least 51 percent 

owned and controlled by one or more 

women who are 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, stepchild, brother, sister, 

grandfather, grandmother, grandson, 

granddaughter, father-in-law, mother-inlaw, son-in-law, 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 (the Online Representations 

and Certifications Application) means 

the primary Government repository for 

contractor submitted representations 

and certifications required for the 

conduct of business with the 

Government. ORCA is located at 

https://orca.bpn.gov. 

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. 

Same or similar line of business 

means business activities within the 

same four-digit ‘‘Industry Group’’ of the 

NAICS Manual as the primary industry 

classification of the WOSB or EDWOSB. 

Substantial underrepresentation 

means a disparity ratio which is less 

than 0.5. 

Underrepresentation means a 

disparity ratio between 0.5 and 0.8. 

WOSB means a concern that is small 

pursuant to part 121 of this chapter, and 

that is at least 51 percent owned and 

controlled by one or more women who 

are citizens in accordance with 

§§ 127.200, 127.201 and 127.202. 

WOSB Program Repository means a 

secure, Web-based application that 

collects, stores and disseminates 

documents to the contracting 

community and SBA, which verify the 

eligibility of a business concern for a 

contract to be awarded under a WOSB 

or EDWOSB requirement. 

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 for its primary 

industry classification; 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 

one or more economically 

disadvantaged women must 

unconditionally and directly own at 

least 51 percent of the concern. To 

qualify as a 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 plan) 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, the 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 or in the case of an EDWOSB, 

economically disadvantaged 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 or in the case of 

an EDWOSB, economically 

disadvantaged 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, or in the case of an 

EDWOSB, economically disadvantaged 

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 nonvoting stock or debentures into voting 


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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 a WOSB, the 

management and daily business 

operations of the concern must be 

controlled by one or more women. To 

qualify as an EDWOSB, the management 

and daily business operations of the 

concern must be controlled by one or 

more women who are economically 

disadvantaged. Control by one or more 

women or economically disadvantaged 

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 or economically 

disadvantaged women. 

(b) Managerial position and 

experience. A woman, or in the case of 

an EDWOSB an economically 

disadvantaged woman, must hold the 

highest officer position in the concern 

and must have managerial experience of 

the extent and complexity needed to run 

the concern. The woman or 

economically disadvantaged woman 

manager need not have the technical 

expertise or possess the required license 

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 or economically 

disadvantaged woman who holds the 

highest officer position of the concern 

must manage it on a full-time basis and 

devote full-time to the business concern 

during the normal working hours of 

business concerns in the same or similar 

line of business. The woman or 

economically disadvantaged woman 

who holds the highest officer position 

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, or in the case of an EDWOSB, 

economically disadvantaged 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, 

or in the case of an EDWOSB, 

economically disadvantaged 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, or in the case of an 

EDWOSB, economically disadvantaged 

women, must control the Board of 

Directors of the concern. Women or 

economically disadvantaged women are 

considered to control the Board of 

Directors when either: 

(1) One or more women or 

economically disadvantaged 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 or economically 

disadvantaged 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 percent 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. SBA does not take into 

consideration community property laws 

when determining economic 

disadvantage when the woman has no 

direct, individual or separate ownership 

interest in the property. 

(b) Limitation on personal net worth. 

(1) 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 

her equity interest in her primary 

personal residence. 

(2) Income received from an EDWOSB 

that is an S corporation, LLC or 

partnership will be excluded from net 

worth where the EDWOSB provides 

documentary evidence demonstrating 

that the income was reinvested in the 

business concern or the distribution was 

solely for the purposes of paying taxes 

arising in the normal course of 

operations of the business concern. 

Losses from the S corporation, LLC or 

partnership, however, are losses to the 

EDWOSB only, not losses to the 

individual, and cannot be used to 

reduce an individual’s net worth. 

(3) Funds invested in an Individual 

Retirement Account (IRA) or other 

official retirement account that are 

unavailable until retirement age without 

a significant penalty will not be 

considered in determining a woman’s 

net worth. In order to properly assess 

whether funds invested in a retirement 

account may be excluded from a 

woman’s net worth, she must provide 

information about the terms and 

restrictions of the account to SBA and 

certify that the retirement account is 

legitimate. 

(c) Factors to be considered. 

(1) General. The personal financial 

condition of the woman claiming 

economic disadvantage, including her 

personal income for the past three 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, will be 

considered in determining whether she 

is economically disadvantaged. 

(2) Spouse’s financial situation. SBA 

may consider a spouse’s financial 

situation in determining a woman’s 

access to credit and capital. When 

married, an individual claiming 

economic disadvantage must submit 

separate financial information for her 

spouse, unless the individual and the 

spouse are legally separated. SBA will 

consider a spouse’s financial situation 

in determining an individual’s access to 

credit and capital where the spouse has 

a role in the business (e.g., an officer, 

employee or director) or has lent money 

to, provided credit or financial support 

to, or guaranteed a loan of the business. 

SBA may also consider the spouse’s 

financial condition if the spouse’s 

business is in the same or similar line 

of business as the EDWOSB or WOSB 

and the spouse’s business and WOSB 

share similar names, Web sites, 

equipment or employees. In addition, 

all transfers to a spouse within two 

years of a certification will be attributed 

to a woman claiming economic 

disadvantage as set forth in paragraph 

(d) of this section. 

(3) Income. 

(i) When considering a woman’s 

personal income, if the adjusted gross 

yearly income averaged over the three 

years preceding the certification exceeds 

$350,000, SBA will presume that she is 

not economically disadvantaged. The 


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presumption may be rebutted by a 

showing that this income level was 

unusual and not likely to occur in the 

future, that losses commensurate with 

and directly related to the earnings were 

suffered, or by evidence that the income 

is not indicative of lack of economic 

disadvantage. 

(ii) Income received by an EDWOSB 

that is an S corporation, LLC, or 

partnership will be excluded from an 

individual’s income where the 

EDWOSB provides documentary 

evidence demonstrating that the income 

was reinvested in the EDWOSB or the 

distribution was solely for the purposes 

of paying taxes arising in the normal 

course of operations of the business 

concern. Losses from the S corporation, 

LLC or partnership, however, are losses 

to the EDWOSB only, not losses to the 

individual, and cannot be used to 

reduce a woman’s personal income. 

(4) Fair market value of all assets. A 

woman will generally not be considered 

economically disadvantaged if the fair 

market value of all her assets (including 

her primary residence and the value of 

the business concern) exceeds $6 

million. The only assets excluded from 

this determination are funds excluded 

under paragraph (b)(3) of this section as 

being invested in a qualified IRA 

account or other official retirement 

account. 

(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), have a 

current representation posted on the 

Online Representations and 

Certifications Application (ORCA) that 

it qualifies as an EDWOSB or WOSB 

and have provided the required 

documents to the WOSB Program 

Repository, or if the repository is 

unavailable, be prepared to submit the 

documents to the contracting officer if 

selected as the apparent successful 

offeror. 

(b) Form of certification. In 

conjunction with its required 

registration in the CCR database, the 

concern must submit a copy of the 

Women-Owned Small Business Program 

Certification (WOSB or EDWOSB) to the 

WOSB Program Repository and 

representations to the electronic annual 

representations and certifications at 

http://orca.bpn.gov, that it is a qualified 

EDWOSB or WOSB. The WomenOwned Small Business Program 

Certification (WOSB or EDWOSB) and 

representation must state, subject to 

penalties for misrepresentation, that: 

(1) The concern is an EDWOSB or 

WOSB or is certified as an EDWOSB or 

WOSB by a certifying entity approved 

by SBA, and there have been no changes 

in its circumstances affecting its 

eligibility since certification; 

(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 an EDWOSB or WOSB. 

(c) Documents provided to contracting 

officer. All of the documents set forth in 

paragraphs (d) and (e) of this section 

must be provided to the contracting 

officer to verify eligibility at the time of 

initial offer. The documents will be 

provided via the WOSB Program 

Repository or, if the repository is 

unavailable, directly to the contracting 

officer. The documents must be retained 

for a minimum of six (6) years. 

(d) Third-Party Certification. 

(1) Prior to certification in ORCA, the 

WOSB or EDWOSB that has been 

certified as a WOSB or EDWOSB by a 

certifying entity approved by SBA, 

including those certifiers from which 

SBA will accept certifications from the 

U.S. Department of Transportation’s 

(DOT) Disadvantaged Business 

Enterprise (DBE) Program, or by SBA as 

an 8(a) BD Participant, must provide a 

copy of the third-party Certification to 

the WOSB Program Repository. If the 

WOSB Program Repository is 

unavailable, then prior to the award of 

a WOSB or EDWOSB contract, the 

apparent successful offeror WOSB or 

EDWOSB that has been certified as a 

EDWOSB or WOSB by a certifying 

entity approved by SBA must provide a 

copy of the third-party Certification to 

the contracting officer verifying that it 

was a WOSB or EDWOSB at the time of 

initial offer. 

(2) The EDWOSB or WOSB must also 

provide a copy of the joint venture 

agreement, if applicable. 

(3) The EDWOSB or WOSB must also 

provide a signed copy of the WomenOwned Small Business Program 

Certification (WOSB or EDWOSB). 

(4) The EDWOSB or WOSB must also 

provide any additional documents as 

requested by SBA in writing that are 

necessary to satisfy the WOSB Program 

requirements. 

(5) Within thirty (30) days of the 

WOSB Program Repository becoming 

available, the WOSB or EDWOSB must 

provide the same documents to the 

repository. 

(e) Non-Third Party Certification. A 

concern that has not been certified as a 

WOSB or EDWOSB by a third-party 

certifier approved by SBA or as a DBE 

or by SBA as an 8(a) BD Participant 

must also provide documents to the 

WOSB Program Repository. If the WOSB 

Program Repository is unavailable, then 

prior to award of a WOSB or EDWOSB 

contract, the apparent successful offeror 

must provide a copy of the documents 

to the contracting officer verifying that 

it was a WOSB or EDWOSB at the time 

of initial offer. Within thirty (30) days 

of the WOSB Program Repository 

becoming available, the WOSB or 

EDWOSB must provide the same 

documents to the WOSB Program 

Repository. These documents must be 

signed and include the following: 

(1) Birth certificates, Naturalization 

papers, or unexpired passports for 

owners who are women; 

(2) Copy of the joint venture 

agreement, if applicable; 

(3) For limited liability companies: 

(i) Articles of organization (also 

referred to as certificate of organization 

or articles of formation) and any 

amendments; and 

(ii) Operating agreement, and any 

amendments; 

(4) For corporations: 

(i) Articles of incorporation and any 

amendments; 

(ii) By-laws and any amendments; 


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(iii) All issued stock certificates, 

including the front and back copies, 

signed in accord with the by-laws; 

(iv) Stock ledger; and 

(v) Voting agreements, if any; 

(5) For partnerships, the partnership 

agreement and any amendments; 

(6) For sole proprietorships (and 

corporations, limited liability 

companies and partnerships if 

applicable), the assumed/fictitious name 

certificate(s); 

(7) A signed copy of the WomenOwned Small Business Program 

Certification-WOSBs; and 

(8) For EDWOSBs, in addition to the 

above: 

(i) SBA Form 413, Personal Financial 

Statement, available to the public at 

http://www.sba.gov/tools/Forms/index.

html, for each woman claiming 

economic disadvantage; and 

(ii) A signed copy of the WomenOwned Small Business Program 

Certification–EDWOSBs. 

(f) Update of certification and 

documents. 

(1) The concern must update its 

Women-Owned Small Business Program 

Certification (WOSB or EDWOSB) and 

EDWOSB and WOSB representations 

and self-certification on ORCA as 

necessary, but at least annually, to 

ensure they are kept current, accurate, 

and complete. The certification and 

representations are effective for a period 

of one year from the date of submission 

or update. 

(2) The WOSB or EDWOSB must 

update the documents submitted to the 

contracting officer via the WOSB 

Program Repository as necessary to 

ensure they are kept current, accurate 

and complete. If the WOSB Program 

Repository is not available, the WOSB 

or EDWOSB must provide current, 

accurate and complete documents to the 

contracting officer for each contract 

award. Within thirty (30) days of the 

WOSB Program Repository becoming 

available, the WOSB or EDWOSB must 

provide the same documents to the 

WOSB Program Repository. 

§ 127.301 When may a contracting officer 

accept a concern’s self-certification? 

(a) General. 

(1) Third-Party Certifications. A 

contracting officer may accept a 

concern’s self-certification on ORCA as 

accurate for a specific procurement 

reserved for award under this Part if the 

apparent successful offeror WOSB or 

EDWOSB provided the required 

documents, which are set forth in 

§ 127.300(d), and there has been no 

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 SBAapproved certifier not to qualify as an 

EDWOSB or WOSB. 

(2) Non-Third Party Certification. A 

contracting officer may accept a 

concern’s self-certification in ORCA if 

the apparent successful offeror WOSB or 

EDWOSB has provided the required 

documents, which are set forth in 

§ 127.300(e). 

(b) Referral to SBA. When the 

contracting officer has information that 

calls into question the eligibility of a 

concern as an EDWOSB or WOSB or the 

concern fails to provide all of the 

required documents to verify its 

eligibility, the contracting officer shall 

refer the concern to SBA for verification 

of the concern’s eligibility by filing an 

EDWOSB or WOSB status protest 

pursuant to subpart F of this part. If the 

apparent successful offeror WOSB or 

EDWOSB fails to submit any of the 

required documents, the contracting 

officer cannot award a WOSB or 

EDWOSB contract to that business 

concern. 

§ 127.302 What third-party certifications 

may a concern use as evidence of its status 

as a qualified EDWOSB or WOSB? 

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: 

(a) SBA as an 8(a) BD Program 

participant; or 

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

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

§ 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, State government, or 

national certifying entity if SBA 

determines that the entity’s certification 

process complies with SBA-approved 

certification standards and tracks the 

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) It will retain the documents 

submitted by the approved WOSB or 

EDWOSB for a period of six (6) years 

from the date of certification (initial and 

any recertification) and provide any 

such documents to SBA in response to 

a status protest or eligibility 

examination or agency investigation or 

audit. 

(3) Its certification process will 

require applicant concerns to preregister on CCR and submit sufficient 

information as determined by SBA 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. 

(4) 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, including certifiers from 

which SBA will accept DOT DBE 

certifications, 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 or SBA Area Office for 

Government Contracting. 

§ 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. 


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§ 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, 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? 

(a) Purpose of examination. Eligibility 

examinations are investigations that 

verify the accuracy of any certification 

made or information provided as part of 

the certification process (including 

third-party certifications) or in 

connection with an EDWOSB or WOSB 

contract. In addition, eligibility 

examinations may verify that a concern 

meets the EDWOSB or WOSB eligibility 

requirements at the time of the 

examination. SBA will, in its sole 

discretion, perform eligibility 

examinations at any time after a concern 

self-certifies in CCR or ORCA that it is 

an EDWOSB or WOSB. SBA may 

conduct the examination, or parts of the 

examination, at one or all of the 

concern’s offices. 

(b) Determination on conduct of an 

examination. SBA may consider protest 

allegations set forth in a protest in 

determining whether to conduct an 

examination of a concern pursuant to 

subpart D of this part, notwithstanding 

a dismissal or denial of a protest 

pursuant to § 127.604. SBA may also 

consider information provided to the D/ 

GC by a third-party that questions the 

eligibility of a WOSB or EDWOSB that 

has certified its status in ORCA or CCR 

in determining whether to conduct an 

eligibility examination. 

§ 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 accuracy of any 

certification made or information 

provided as part of the certification 

process or in connection with an 

EDWOSB or WOSB contract. 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 fifteen (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 five (5) 

business days before commencing an 

examination, SBA will notify the 

concern in writing that it will conduct 

an examination to verify the status of 

the concern as an EDWOSB or WOSB. 

However, SBA reserves the right to 

conduct a site visit without prior 

notification to the concern. 

(b) Request for information. SBA will 

request that the concern or contracting 

officer provide documentation and 

information related to the concern’s 

EDWOSB or WOSB eligibility. These 

documents will include those submitted 

under § 127.300 and any other pertinent 

documents requested by SBA at the time 

of eligibility examination to verify 

eligibility, including but not limited to, 

documents submitted by a concern in 

connection with any WOSB or EDWOSB 

certification. SBA may also request 

copies of proposals or bids submitted in 

response to an EDWOSB or WOSB 

solicitation. In addition, EDWOSBs will 

be required to submit signed copies of 

SBA Form 413, Personal Financial 

Statement, the three most recent 

personal income tax returns (including 

all schedules and W–2 forms) for the 

women claiming economic disadvantage 

and their spouses, unless the 

individuals and their spouses are legally 

separated, and SBA Form 4506–T, 

Request for Tax Transcript Form, 

available to the public at http://www.

sba.gov/tools/Forms/index.html. SBA 

may draw an adverse inference where a 

concern fails to cooperate in providing 

the requested information. The WOSB 

or EDWOSB must retain documentation 

demonstrating satisfaction of the 

eligibility requirements for six (6) years 

from date of self-certification. 

§ 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, then the 

D/GC will send the concern a written 

decision to that effect and will allow the 

concern’s EDWOSB or WOSB 

designation in CCR and ORCA to stand 

and the concern may continue to selfcertify its EDWOSB or WOSB status. 

§ 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, then the D/GC will 

send the concern a written notice 

explaining the reasons SBA believes the 

concern did not qualify at the time of 

certification or does not qualify as an 

EDWOSB or WOSB. The notice will 

advise the concern that it has fifteen 

(15) calendar days from the date of the 

notice to respond. 

(b) SBA determination. Following the 

fifteen (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 with its findings. The 

D/GC’s decision is effective immediately 

and remains in full force and effect 

unless a new examination verifies the 

concern is an eligible EDWOSB or 

WOSB or the concern is certified by a 

third-party certifier. 

(1) 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 (5) calendar 

days after the date of the decision. 

(2) If the concern has already certified 

itself as a WOSB or EDWOSB on a 

pending procurement the concern must 

immediately inform the officials 

responsible for the procurement of the 

adverse determination. 


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(3) If SBA determines that the concern 

did not qualify as an EDWOSB or WOSB 

at the time it submitted its initial offer 

for an EDWOSB or WOSB requirement, 

the contracting officer may terminate 

the contract, not exercise any option, or 

not award further task or delivery 

orders. 

(4) Whether or not a contracting 

officer decides to allow or not allow an 

ineligible concern to fully perform a 

contract under paragraph (b)(2) of this 

section, 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. 

(c) A concern that has been found to 

be ineligible may not represent itself as 

a WOSB or EDWOSB until it cures the 

reason for its ineligibility and SBA 

determines that the concern qualifies as 

a WOSB or EDWOSB. 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 this section. 

§ 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 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 

Eligibility Examination.’’ 

(d) Notice of receipt of request. SBA 

will immediately notify the concern in 

writing once SBA receives its request for 

an examination. SBA will 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 G 

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 immediately and 

remains in full force and effect unless a 

new examination verifies the concern is 

an eligible EDWOSB or WOSB or the 

concern is certified by a third-party 

certifier. If the concern has already 

certified itself as a WOSB or EDWOSB 

on a pending procurement the concern 

must immediately inform the officials 

responsible for the procurement of the 

adverse determination. 

(g) Determinations of Ineligibility. A 

concern that has been found to be 

ineligible shall not represent itself as a 

WOSB or EDWOSB until it cures the 

reason for its ineligibility and SBA 

determines that the concern qualifies as 

a WOSB or EDWOSB. 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 this section. 

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. 

§ 127.501 How will SBA determine the 

industries that are eligible for EDWOSB or 

WOSB requirements? 

(a) Based upon its analysis, SBA will 

designate by NAICS Industry Subsector 

Code those industries in which WOSBs 

are underrepresented and substantially 

underrepresented. 

(b) In determining the extent of 

disparity of WOSBs, SBA may request 

that the head of any Federal department 

or agency provide SBA, data or 

information necessary to analyze the 

extent of disparity of WOSBs. 

§ 127.502 How will SBA identify and 

provide notice of the designated 

industries? 

SBA will post on its Internet Web site 

at http://www.sba.gov a list of NAICS 

Industry Subsector industries it 

designates under § 127.501. 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 as underrepresented pursuant to 

§ 127.501, a contracting officer may 

restrict competition to EDWOSBs if the 

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. For 

requirements in industries designated 

by SBA as substantially 

underrepresented pursuant to § 127.501, 

a contracting officer may restrict 

competition to WOSBs if the contracting 

officer has a reasonable expectation 

based on market research that: 

(1) Two or more WOSBs will submit 

offers (this includes EDWOSBs, which 

are also WOSBs); 

(2) 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 

(3) 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) Contracting Among Small 

Business Programs. 


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(1) Acquisitions Valued At or Below 

$100,000/Simplified Acquisition 

Threshold. The contracting officer shall 

set aside any acquisition with an 

anticipated dollar value exceeding 

$3,000 ($15,000 for acquisitions as 

described in the Federal Acquisition 

Regulation (FAR) at 48 CFR 

13.201(g)(1)) but valued below $100,000 

($250,000 for acquisitions described in 

paragraph (1) of the Simplified 

Acquisition Threshold definition in the 

FAR at 48 CFR 2.101) for small business 

concerns when there is a reasonable 

expectation that offers will be obtained 

from at least two small business 

concerns that are competitive in terms 

of quality and delivery and award will 

be made at fair market prices. This 

requirement does not preclude a 

contracting officer from setting aside a 

contract under the 8(a) BD, HUBZone, 

Service Disabled Veteran Owned 

(SDVO), or WOSB programs. 

(2) Acquisitions Valued Above 

$100,000/Simplified Acquisition 

Threshold. 

(i) The contracting officer shall set 

aside any acquisition with an 

anticipated dollar value exceeding 

$100,000 ($250,000 for acquisitions 

described in paragraph (1) of the 

Simplified Acquisition Threshold 

definition in the FAR at 48 CFR 2.101) 

for small business concerns when there 

is a reasonable expectation that offers 

will be obtained from at least two small 

business concerns that are competitive 

in terms of quality and delivery and 

award will be made at fair market 

prices. However, after conducting 

market research, the contracting officer 

shall first consider a set-aside or sole 

source award (if the sole source award 

is permitted by statute or regulation) 

under the 8(a) BD, HUBZone, SDVO 

SBC or WOSB programs before setting 

aside the requirement as a small 

business set-aside. There is no order of 

precedence among the 8(a) BD, 

HUBZone, SDVO SBC or WOSB 

programs. The contracting officer must 

document the contract file with the 

rationale used to support the specific 

set-aside, including the type and extent 

of market research conducted. In 

addition, the contracting officer must 

document the contract file showing that 

the apparent successful offeror’s ORCA 

certifications and associated 

representations were reviewed. 

(ii) SBA believes that Progress in 

fulfilling the various small business 

goals, as well as other factors such as 

the results of market research, 

programmatic needs specific to the 

procuring agency, anticipated award 

price, and the acquisition history, will 

be considered in making a decision as 

to which program to use for the 

acquisition. 

(e) Contract file. When restricting 

competition to WOSBs or EDWOSBs in 

accordance with § 127.503, 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 an underrepresented 

or, with respect to WOSBs, substantially 

underrepresented, industry. In addition, 

the contracting officer must document 

the contract file showing that the 

apparent successful offeror’s documents 

and ORCA certifications and associated 

representations were reviewed. 

§ 127.504 What additional requirements 

must a concern satisfy to submit an offer 

on an EDWOSB or WOSB requirement? 

(a) 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: 

(1) It is small under the size standard 

corresponding to the NAICS code 

assigned to the contract; 

(2) It is listed on CCR and ORCA as 

an EDWOSB or WOSB; and 

(3) There has been no material change 

in any of its circumstances affecting its 

EDWOSB or WOSB eligibility. 

(b) The concern must also 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) of this chapter. 

§ 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 parties to the joint venture 

must enter into a written joint venture 

agreement. The joint venture agreement 

must contain a provision: 

(1) Setting forth the purpose of the 

joint venture. 

(2) Designating an EDWOSB or WOSB 

as the managing venturer of the joint 

venture, and an employee of the 

managing venturer as the project 

manager responsible for the 

performance of the contract; 

(3) Stating that not less than 51 

percent of the net profits earned by the 

joint venture will be distributed to the 

EDWOSB or WOSB; 

(4) Specifying the responsibilities of 

the parties with regard to contract 

performance, sources of labor, and 

negotiation of the EDWOSB or WOSB 

contract; and 

(5) Requiring the final original records 

be retained by the managing venturer 

upon completion of the EDWOSB or 

WOSB contract performed by the joint 

venture. 

(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); 

(e) The procuring activity will execute 

the contract in the name of the 

EDWOSB or WOSB or joint venture. 

(f) The WOSB or EDWOSB must 

provide a copy of the joint venture 

agreement to the contracting officer. 

§ 127.507 Are there EDWOSB and WOSB 

contracting opportunities at or below the 

simplified acquisition threshold? 

If the requirement is at or below the 

simplified acquisition threshold, the 

contracting officer may set-aside the 

requirement as set forth in § 127.503. 

§ 127.508 May SBA appeal a contracting 

officer’s decision not to reserve a 

procurement for award as a WOSB Program 

contract? 

The Administrator may appeal a 

contracting officer’s decision not to 

make a particular requirement available 

for award under the WOSB Program. 

§ 127.509 What is the process for such an 

appeal? 

(a) Notice of appeal. When the 

contacting officer rejects a 

recommendation by SBA’s Procurement 

Center Representative to make a 

requirement available for the WOSB 

Program, he or she must notify the 

Procurement Center Representative as 

soon as practicable. If the Administrator 


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intends to appeal the decision, SBA 

must notify the contracting officer no 

later than five (5) business days after 

receiving notice of the contracting 

officer’s decision. 

(b) Suspension of action. Upon receipt 

of notice of SBA’s intent to appeal, the 

contracting officer must suspend further 

action regarding the procurement until 

the Secretary of the department or head 

of the agency issues a written decision 

on the appeal, unless the Secretary of 

the department or head of the agency 

makes a written determination that 

urgent and compelling circumstances 

which significantly affect the interests 

of the United States compel award of 

the contract. 

(c) Deadline for appeal. Within fifteen 

(15) business days of SBA’s notification 

to the CO, SBA must file its formal 

appeal with the Secretary of the 

department or head of the agency, or the 

appeal will be deemed withdrawn. 

(d) Decision. The Secretary of the 

department or head of the agency must 

specify in writing the reasons for a 

denial of an appeal brought under this 

section. 

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 sufficient credible evidence to 

show that the concern may not be 

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 percent owned and 

controlled by one or more women who 

are economically disadvantaged. In 

addition, SBA will consider a protest 

challenging the status of a concern as an 

EDWOSB or WOSB if the contracting 

officer has protested because the WOSB 

or EDWOSB apparent successful offeror 

has failed to provide all of the required 

documents, as set forth in § 127.300. 

§ 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, e-mail, or 

by U.S. mail (received by the applicable 

date) 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. IF SBA initiates a protest, the D/ 

GC will notify the contracting officer of 

such protest. 

(c) Timeliness. 

(1) For negotiated acquisitions, a 

protest from an interested party must be 

received by the contracting officer prior 

to 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, a 

protest from an interested party must be 

received by close of business on the fifth 

business day after bid opening. 

(3) Any protest received after the time 

limit is untimely, unless it is from SBA 

or the contracting officer. A 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 and documents, 

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. In 

addition, the contracting officer must 

send copies of any documents provided 

to the contracting officer pursuant to 

§ 127.300 (if the repository is 

unavailable). 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. The contracting officer may 

award the contract after receipt of a 

protest if the contracting officer 

determines in writing that an award 

must be made to prevent significant 

harm to the public interest. 

(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 or submit a protest 

itself. 

(c) Notice to protested concern. If SBA 

determines that the protest is timely, 

sufficiently specific and is based upon 

protestable allegations, SBA will: 


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(1) Notify the protested concern of the 

protest and request information and 

documents responding to the protest 

within five (5) business days from the 

date of the notice. These documents will 

include those that verify the eligibility 

of the concern, respond to the protest 

allegations, and copies of proposals or 

bids submitted in response to an 

EDWOSB or WOSB requirement. In 

addition, EDWOSBs will be required to 

submit signed copies of SBA Form 413, 

Personal Financial Statement, the two 

most recent personal income tax returns 

(including all schedules and W–2 forms) 

for the women claiming economic 

disadvantage and their spouses, unless 

the individuals and their spouses are 

legally separated, and SBA Form 4506– 

T, Request for Tax Transcript Form. 

SBA may draw an adverse inference 

where a concern fails to cooperate in 

providing the requested information and 

documents; 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 fifteen (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 fifteen (15) day period, the 

contracting officer must contact SBA to 

ascertain when SBA estimates that it 

will issue its decision. After contacting 

SBA, the contracting officer may award 

the contract if he or she determines in 

writing that there is an immediate need 

to award the contract and that waiting 

until SBA makes it determination will 

harm the public interest. The 

determination must be included in the 

contract file and a written copy sent to 

the D/GC. 

(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. Regardless of a 

decision not to sustain 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. 

(f) Effect of determination. SBA’s 

determination is effective immediately 

and is final unless overturned by SBA’s 

Office of Hearings and Appeals (OHA) 

on appeal pursuant to § 127.605. 

(1) A contracting officer may award 

the contract to a protested concern after 

the D/GC either has determined that the 

protested concern is an eligible WOSB 

or EDWOSB or has dismissed all 

protests against it. If OHA subsequently 

overturns the D/GC’s determination or 

dismissal, the contracting officer may 

apply the OHA decision to the 

procurement in question. 

(2) A contracting officer shall not 

award the contract to a protested 

concern that the D/GC has determined 

is not an EDWOSB or WOSB for the 

procurement in question. 

(i) Where the contracting officer has 

made a written determination under 

paragraph (d) of this section that there 

is an immediate need to award the 

contract and waiting until SBA makes 

its determination will harm the public 

interest, the contracting officer receives 

the D/GC’s determination after contract 

award finding the business concern 

does not qualify as EDWOSB or WOSB, 

and no OHA appeal has been filed, the 

contracting officer may terminate the 

award, and shall not exercise any 

options, or not award further task or 

delivery orders. If no such written 

determination by the contracting officer 

has been made, the contracting officer 

receives the D/GC’s determination after 

contract award finding the business 

concern does not qualify as an EDWOSB 

or WOSB, and no OHA appeal has been 

filed, the contracting officer shall 

terminate the award. 

(ii) If a timely OHA appeal has been 

filed after contract award, the 

contracting officer must consider 

whether performance can be suspended 

until an appellate decision is rendered. 

(iii) If OHA affirms the D/GC’s 

determination finding that the protested 

concern is ineligible, the contracting 

officer shall either terminate the 

contract, not exercise the next option or 

not award further task or delivery 

orders. 

(3) The contracting officer must 

update the Federal Procurement Data 

System and other procurement reporting 

databases to reflect the final agency 

decision (the D/GC’s decision if no 

appeal is filed or OHA’s decision). 

(4) A concern that has been found to 

be ineligible may not submit an offer as 

a WOSB or EDWOSB on another 

procurement until it cures the reason(s) 

for its ineligibility and SBA issues a 

decision to this effect. 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 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, provide false information to the 

Government, 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, 48 

CFR 9.4; 

(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 

■ 14. The authority citation for part 134 

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 

■ 15. In § 134.102, paragraph (s) is 

revised to read as follows: 

§ 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; 

* * * * * 


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62292 Federal Register / Vol. 75, No. 194 / Thursday, October 7, 2010 / Rules and Regulations 

Subpart E—Rules of Practice for 

Appeals from Service-Disabled Veteran 

Owned Small Business Concern 

Protests 

■ 16. In § 134.515, paragraph (b) is 

revised to read as follows: 

§ 134.515 What are the effects of the 

Judge’s decision? 

* * * * * 

(b) The Judge may reconsider an 

appeal decision within twenty (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 twenty (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. 

* * * * * 

■ 17. Revise 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 

Sec. 

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 Concern 

(WOSB) or Economically Disadvantaged 

WOSB Concern (EDWOSB) protest. 

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 percent 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 subparts 

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 ten (10) business 

days after the appellant receives the 

WOSB or EDWOSB protest 

determination (see § 134.204 for filing 

and service requirements). An untimely 

appeal must 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 a timely 

OHA appeal has been filed after contract 

award, the contracting officer must 

consider whether performance can be 

suspended until an appellate decision is 

rendered. If OHA affirms the D/GC’s 

determination finding that the protested 

concern is ineligible, the contracting 

officer shall either terminate the 

contract, not exercise the next option or 

not award further task or delivery 

orders. If OHA overturns the D/GC’s 

dismissal or determination that the 

concern is an eligible EDWOSB or 

WOSB, the contracting officer may 

apply the OHA decision to the 

procurement in question. 

§ 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. 


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Federal Register / Vol. 75, No. 194 / Thursday, October 7, 2010 / Rules and Regulations 62293 

§ 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 

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 must 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 seven (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 § 134.710. 

§ 134.714 When must the Judge issue his 

or her decision? 

The Judge shall issue a decision, 

insofar as practicable, within fifteen (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 twenty (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 twenty (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. 

Dated: October 1, 2010. 

Karen Gordon Mills, 

Administrator. 

[FR Doc. 2010–25179 Filed 10–4–10; 11:15 am] 

BILLING CODE 8025–01–P 


jlentini on DSKJ8SOYB1PROD with RULES3