[Federal Register Volume 78, Number 88 (Tuesday, May 7, 2013)]
[Rules and Regulations]
[Pages 26504-26506]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-10841]
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SMALL BUSINESS ADMINISTRATION
13 CFR Part 127
RIN 3245-AG55
Women-Owned Small Business Federal Contract Program
AGENCY: U.S. Small Business Administration.
ACTION: Interim final rule.
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SUMMARY: The U.S. Small Business Administration (SBA) is amending its
regulations to implement Section 1697 of the National Defense
Authorization Act for Fiscal Year 2013 (NDAA). Section 1697 of the NDAA
removed the statutory limitation on the dollar amount of a contract
that women-owned small businesses can compete for under the Women-Owned
Small Business (WOSB) Program. As a result, contracting officers may
now set-aside contracts under the WOSB Program at any dollar level, as
long as the other requirements for a set-aside under the program are
met.
DATES: Effective Date: This rule is effective on May 7, 2013.
Applicability Date: This rule applies to all solicitations issued
on or after the effective date.
Comment Date: Comments must be received on or before June 6, 2013.
ADDRESSES: You may submit comments, identified by RIN 3245-AG55 by any
of the following methods:
Federal Rulemaking Portal: http://www.regulations.gov and
follow the instructions for submitting comments.
Mail, for paper, disk, or CD-ROM submissions: LeAnn
Delaney, Assistant Director, Office of Contract Assistance, 409 Third
Street SW., Washington, DC 20416.
Hand Delivery/Courier: LeAnn Delaney, Assistant Director,
Office of Contract Assistance.
SBA will post all comments on http://www.Regulations.gov. If you
wish to submit confidential business information (CBI) as defined in
the User Notice at http://www.Regulations.gov, please submit the
information to LeAnn Delaney and highlight the information that you
consider to be CBI and explain why you believe this information should
be held confidential. SBA will review the information and make a final
determination of whether the information will be published or not.
FOR FURTHER INFORMATION CONTACT: LeAnn Delaney, Assistant Director,
Office of Contract Assistance, at (202) 205-6460 or by email at
[email protected].
SUPPLEMENTARY INFORMATION:
I. Background
The Women-Owned Small Business (WOSB) Program, set forth in section
8(m) of the Small Business Act, 15 U.S.C. 637(m), authorizes Federal
contracting officers to restrict competition to eligible Women-Owned
Small Businesses (WOSBs) or Economically Disadvantaged Women-Owned
Small Business (EDWOSBs) for Federal contracts in certain industries.
Section 8(m) of the Small Business Act (Act) sets forth certain
criteria for the WOSB Program, including the eligibility and contract
requirements for the program. For example, the Act had stated that
contracting officers could only set-aside a requirement under the
program if the anticipated award price of the contract did not exceed
$5 million in the case of manufacturing contracts and $3 million in the
case of all other contracts. Recently, SBA had amended its regulations
to adjust these statutory thresholds for inflation so that the
anticipated award price of the contract awarded under the WOSB Program
must not exceed $6.5 million in the case of manufacturing contracts and
$4 million in the case of all other contracts. See 77 FR 1861 (Jan. 12,
2012).
Even with this adjustment for inflation, these dollar value
restrictions on awards under the program limited a contracting
officer's ability to set-aside contracts for WOSBs or EDWOSBs. As a
result, Section 1697 of the National Defense Authorization Act for
Fiscal Year 2013, Public Law 112-239, amended the Small Business Act
and
[[Page 26505]]
removed these dollar value limitations. As a result, contracting
officers may now set-aside any contract for EDWOSBs or WOSBS under the
program if: (1) There is 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; and (2) in the estimation of the contracting officer, the
contract can be awarded at a fair and reasonable price. The anticipated
contract can be for any dollar amount.
II. Section-by-Section Analysis
In order to implement this statutory change, SBA is amending Sec.
127.503(a)(2) and Sec. 127.503(b)(2) by removing the anticipated
contract dollar thresholds for determining when the contracting officer
may set-aside a requirement for WOSBs or EDWOSBs. Therefore, the
regulation now contains no limitation on the anticipated award price
for a WOSB or EDWOSB set-aside.
III. Justification for Publication as an Interim Final Rule
In general, SBA publishes a rule for public comment before issuing
a final rule in accordance with the Administrative Procedures Act (APA)
and SBA regulations. 5 U.S.C. 553 and 13 CFR 101.108. The APA provides
an exception to this standard rulemaking process where an agency finds
good cause to adopt a rule without prior public participation. 5 U.S.C.
553(b)(3)(B). The good cause requirement is satisfied when prior public
participation is impracticable, unnecessary, or contrary to the public
interest. Under such circumstances, an agency may publish an interim
final rule without soliciting public comment.
First, SBA believes that Section 1697 of the NDAA is effective
immediately; the section does not require SBA to issue regulations in
order to implement the provisions. However, SBA must remove the
limitations in its regulations or they would be inconsistent with the
statute, and lead to confusion among the public and other federal
agencies. Since SBA is merely conforming its regulations to the statute
without interpretation or policy changes, the Agency does not believe
that it is necessary to issue the rule as a proposed rule.
Second, according to the Small Business Goaling Report for Fiscal
Year 2011, the Federal government awarded only 3.97% of its contracts
to WOSBs. See http://www.fpdsng.com/fpdsng_cms/index.php/reports. This
is short of the statutory 5% goal for WOSBs. The purpose of the WOSB
Program is to assist agencies in achieving the statutorily mandated 5%
government-wide goal for procurement from women-owned small businesses.
By removing the limitations on the dollar amount of a contract award
that can be set-aside for WOSBs or EDWOSBs in the regulations, the SBA
will be clarifying that there are more contracting opportunities for
WOSBs, which should result in more contracts being awarded to this
group of small businesses. Consequently, the SBA believes it is
necessary to implement this rule as quickly as possible.
Finally, we note that the public will still have the opportunity to
offer comments on this rule, which will be reviewed by the SBA.
Accordingly, SBA finds that good cause exists to publish this rule as
an interim final rule as quickly as possible.
IV. Justification for Immediate Effective Date of Interim Final Rule
The APA requires that ``publication or service of a substantive
rule shall be made not less than 30 days before its effective date,
except * * * as otherwise provided by the agency for good cause found
and published with the rule.'' 5 U.S.C. 553(d)(3). SBA finds that good
cause exists to make this final rule effective the same day it is
published in the Federal Register.
The purpose of the APA provision is to provide interested and
affected members of the public sufficient time to adjust their behavior
before the rule takes effect. For the reasons set forth above in
Section III, ``Justification for Publication as Interim Final Rule'',
SBA finds that good cause exists for making this interim final rule
effective immediately, instead of observing the 30-day period between
publication and effective date. Nonetheless, the public may provide
comments to SBA by the deadline for comments. SBA will review any
comments received.
V. Compliance With Executive Orders 12866, 12988, 13132, and the
Paperwork Reduction Act (44 U.S.C. Ch. 35), and the Regulatory
Flexibility Act (5 U.S.C. 601-612)
Executive Order 12866
The Office of Management and Budget (OMB) has determined that this
rule does constitute a significant regulatory action under E.O. 12866;
however this is not a major rule under the Congressional Review Act
(CRA), 5 U.S.C. 800. Accordingly, the next section contains SBA's
Regulatory Impact Analysis.
Regulatory Impact Analysis
1. Is there a need for the regulatory action?
This regulatory action amends regulations that implement Section
1697 of the NDAA. These amendments are necessary because without such
amendments the SBA's WOSB Program rule will conflict with the statute.
Such conflict and inconsistency causes confusion to members of the
procurement community, including small businesses, and could limit the
number of contracts available to WOSBs and EDWOSBs under the program.
2. What are the potential benefits and costs of this regulatory action?
The benefits of this rule are that there will not be a conflict
between the SBA's rules and the statute, and more contracts should be
available for WOSBs and EDWOSBs under the program.
3. What are the alternatives to this final rule?
SBA does not believe there are any alternatives other than to
implement the statute, as enacted.
Executive Order 12988
This action meets applicable standards set forth in Sections 3(a)
and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize
litigation, eliminate ambiguity, and reduce burden. The action does not
have retroactive or preemptive effect.
Executive Order 13132
For the purpose of Executive Order 13132, SBA has determined that
the interim final rule will not have substantial direct effects on the
States, on the relationship between the national government and the
States, or on the distribution of power and responsibilities among the
various levels of government. Therefore SBA has determined that this
interim final rule has no federalism implications warranting the
preparation of a federalism assessment.
Paperwork Reduction Act, 44 U.S.C., Ch. 35
For the purpose of the Paperwork Reduction Act, 44 U.S.C., Chapter
35, SBA has determined that this rule does not impose additional
reporting or recordkeeping requirements.
Regulatory Flexibility Act (RFA), 5 U.S.C., 601-612
Because this rule is an interim final rule, there is no requirement
for SBA to
[[Page 26506]]
prepare an Initial Regulatory Flexibility Act analysis. The RFA
requires administrative agencies to consider the effect of their
actions on small entities, small non-profit businesses, and small local
governments. Pursuant to the RFA, when an agency issues a rule the
agency must prepare analysis that describes whether the impact of the
rule will have a significant economic impact on a substantial number of
small entities. However, the RFA requires such analysis only where
notice and comment rulemaking is required but as discussed above, SBA
has determined that there is good cause to publish this interim final
rule without the need for public notice and comment.
List of Subjects in 13 CFR Part 127
Administrative practice and procedure, Government procurement,
Reporting and recordkeeping requirements, Small businesses.
For the reasons stated in the preamble, SBA amends 13 CFR Part 127
as follows:
PART 127--WOMEN-OWNED SMALL BUSINESS FEDERAL CONTRACT PROGRAM
0
1. The authority citation for part 127 continues to read as follows:
Authority: 15 U.S.C. 632, 634(b)(6), 637(m), and 644.
0
2. Amend Sec. 127.503 by revising paragraphs (a)(1), (a)(2), (b)(1)
and (b)(2) to read as follows:
Sec. 127.503 When is a contracting officer authorized to restrict
competition under this part?
(a) * * *
(1) Two or more EDWOSBs will submit offers for the contract; and
(2) Contract award may be made at a fair and reasonable price.
(b) * * *
(1) Two or more WOSBs will submit offers (this includes EDWOSBs,
which are also WOSBs); and
(2) Contract award may be made at a fair and reasonable price.
* * * * *
Karen G. Mills,
Administrator.
[FR Doc. 2013-10841 Filed 5-3-13; 4:15 pm]
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