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SBA to publish rules removing self-certification for WOSBs and EDWOSBs

DC News - Published May 26, 2020

(UPDATE 5/26/20 - The SBA has published the rules as expected, making them applicable to "those businesses wishing to compete for set-aside or sole source contracts under the Program". There is an effective date of July 15, 2020, with certain provisions going into effect on October 15, 2020. For more information, see https://www.jdsupra.com/legalnews/sba-issues-final-rule-on-women-owned-40560/.)

The U.S. Small Business Administration (SBA) announced that it expects to publish regulations which will bring its statutes relating to Women-Owned Small Businesses (WOSBs) and Economically Disadvantaged WOSBs (EDWOSBs) in line with the 2015 National Defense Authorization Act (NDAA) by June 30th, 2020. The regulations will become effective 30 days after publication.

The changes relate to the criteria for WOSB and EDWOSB certification. Under prior procedures, business owners could go online on the SBA's website and self-certify as WOSBs or EDWOSBs. This procedure, following the 2015 NDAA, is being done away with. After the publication of the upcoming regulations, WOSBs and EDWOSBs will need to be either certified with the SBA directly (that is, through a defined process with the SBA issuing or not issuing the certification proper) or certified by an approved third-party entity.

According to a FAQ provided by the SBA relating to the WOSB and EDWOSB certification changes, any self-certified WOSB or EDWOSB with current contracts will be considered to be eligible to be considered as such for the purposes of a given contract if they were eligible as WOSBs or EDWOSBs at the time of offer for the contract in question (excepting contracts which have a duration of more than five years). Going forward, then, any WOSB or EDWOSB which wishes to be eligible for future contracts after the regulations take effect will need to go through SBA's certification process or receive third-party certification (third-party certified firms are required to re-certify with the entity providing the certification, or with another eligible entity, within three years of the date of their most recent certification). There are additional provisions made for currently self-certified WOSBs and EDWOSBs with no ongoing contracts who have been protested or examined in the two years prior to the regulations becoming effective and who have received a positive final decision.

For the SBA's page on the WOSB and EDWOSB program (including a link to the certification website those wishing to be certified with the SBA directly will need to use, as well as a list of valid third-party certifiers), see https://www.sba.gov/federal-contracting/contracting-assistance-programs/women-owned-small-business-federal-contracting-program.

For the above-mentioned FAQ, see https://www.sba.gov/sites/default/files/2020-01/SBA_WOSB_FAQ.pdf.