The U.S. Small Business Administration (SBA) recently published a proposed rule implementing a certification regime for certain business designations which have operated previously under a self-certification regime.
The business certifications in question are woman-owned small businesses (WOSBs) and economically-disadvantaged woman-owned small businesses (EDWOSBs). Holding the certifications is a requirement for receiving the benefits of a set-aside program for certain contracts that restricts competition to WOSBs and EDWOSBs. Additionally, the 8(a) certification program is changed by the proposed rule to bring its eligibility requirements in line with the eligibility requirements for EDWOSB certification. The proposed rule changes come after the United States Congress directed the SBA to make the changes in 2015 legislation.
The SBA's new WOSB/EDWOSB certification procedures specify that SBA will notify all applicants within 15 days of receipt of an application as to whether or not the application is complete and contains all necessary documents. Starting from the date of receiving a complete application, the SBA will then have 90 days to issue a determination. While there is no appeal process per se, applicants have a 30-day window to seek reconsideration if denied, giving the SBA a 60-day window following that application for reconsideration to issue a final written decision on the matter.
The SBA has taken the matter of processing a high volume of applications after the rule change is finalized into account, specifying procedures under which WOSBs and EDWOSBs, as long as they have submitted an application and not received a denial, to consider themselves as being certified when bidding under the set-aside programs, and, if the bidding process moves forward, the applications of those businesses would be prioritized for inspection. In addition, the SBA is proposing to accept certain third-party certifications as good for WOSB and EDWOSB certification, including those made by the Department of Veterans Affairs or the Disadvantaged Business Enterprise Program. In addition, the SBA's own certifications under the 8(a) program can stand for EDWOSB certification - hence the regularization of eligiblity requirements between the 8(a) and EDWOSB certifications, under which the 8(a) requirements would not distinguish (as they do under current rules) between initial and ongoing eligibility, making the ongoing eligiblity requirements the same as the initial ones.
The proposed rule may be read at https://www.federalregister.gov/documents/2019/05/14/2019-09684/women-owned-small-business-and-economically-disadvantaged-women-owned-small-business-certification. Comments must be received by the SBA on or before July 15th, 2019.