The final rule revises 13 C.F.R. § 127.300 to establish the following options for small business concerns seeking certification as WOSBs or EDWOSBs: (1) apply via SBA's free online application, (2) submit evidence of certification from another approved Government entity, or (3) submit evidence of certification from an approved third-party certifier. Although entities other than SBA may certify WOSBs and EDWOSBs, SBA clarified that it retains the final authority for all certification processes to ensure that certification requirements are fair and consistently applied. The final rule also adds new requirements for third-party certifiers (§§ 127.350-127.356).
The final rule requires all concerns, whether certified directly by SBA, another Government entity or a third-party certifier, attest to SBA annually that they remain eligible for the Program and undergo a full program examination every three years. Once certified, a WOSB or EDWOSB must notify SBA of any material changes that could affect its eligibility within 30 calendar days of any such change.
The final rule “does not affect contracts previously awarded through the Program, so a concern that was previously awarded a WOSB or EDWOSB contract may continue to perform that contract and the procuring agency may continue to count the contract towards its WOSB goal.” Concerns performing long-term WOSB or EDWOSB contracts (i.e., one in excess of five years), however, “must represent that it is a certified WOSB or EDWOSB in order for the award to continue to count towards an agency's WOSB goal.” For new set-aside and sole source contracts awarded under the Program, “the concern must be certified prior to award.”
This alert only addresses the most significant of the final rule’s changes in the SBA’s WOSB and EDWOSB regulations. We recommend that government contractors review the revised regulations to assess how these changes could impact your company.