SBA Finalizes Women-Owned Small Business Federal Contracting Program

With the publication October 4, 2010, of a final rule in the Federal Register (amending 13 CFR Part 127), the U.S. Small Business Administration (SBA) will begin implementation of its women-owned small business (WOSB) contracting program. This long-awaited procurement program, first authorized by Congress ten years ago, focuses on 83 industries in which women are under-represented in the federal contracting marketplace. In addition to creating more opportunities for WOSBs, the rule is also another tool to help achieve the statutory goal that five percent of federal contracting dollars go to women-owned small businesses.

The SBA, in conjunction with the Federal Acquisition Regulatory Council, will begin a 120-day implementation of the WOSB contracting program, including building the technology and program infrastructure to support the certification process and ongoing oversight. With implementation expected to take several months, the agency expects that federal agencies’ contracting officers will be able to start making contracts available to WOSBs under the program in early 2011.

Some of the components of the WOSB rule include the following:

• To be eligible for the program, a firm must be 51-percent owned and controlled by one or more women, and be primarily managed by one or more women. The women must be U.S. citizens. The firm must be “small” in its primary industry in accordance with SBA’s size standards for that industry.
• The final rule identifies 83 industries in which women-owned small businesses are under-represented or substantially under-represented in federal procurements.
• The final rule authorizes a set-aside of federal contracts for WOSBs where the anticipated contract price does not exceed $5 million in the case of manufacturing and $3 million in the case of other contracts. Contracts with values in excess of these limits are not subject to set-aside under this program.
• The final rule requires WOSBs that self-certify to submit a certification verification, to complete the certifications at the federal Online Representation and Certification Application (ORCA) website, and to submit a core set of eligibility-related documents to an online document repository to be maintained by the SBA. Each agency’s contracting officers will have full access to this repository.
• The SBA intends to engage in a significant number of program examinations to confirm eligibility of individual WOSBs.
• In the event of a contract protest or program review, the SBA has the authority to request substantial additional documentation from the WOSB to establish eligibility.
• The SBA intends to pursue vigorously punitive action against ineligible firms that seek to take advantage of this program and thereby deny its benefits to legitimate WOSBs.

Bond producer professionals should educate themselves about this new federal contracting program and be prepared to assist WOSBs competing for federal contracting opportunities.

Martha L. Perkins, Esq. is a Partner in the Washington, DC office of Whiteford, Taylor & Preston, LLP. She can be reached at mperkins@wtplaw.com.

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