With little fanfare, Congress just passed legislation eliminating the ability of WOSBs to self-certify for purposes of WOSB set-aside contracts.
The 2015 National Defense Authorization Act rewrites the portion of the Small Business Act governing WOSB set-asides, deleting what I have called the “trust but verify” option: the ability for putative WOSBs to self-certify as such, then back up their self-certifications by submitting supporting documentation to the WOSB Document Repository. Instead, the 2015 NDAA would appear to require a formal certification in order for a small business to be awarded a WOSB set-aside contract.
Section 825 of the 2015 NDAA is entitled “sole source contracts for small business concerns owned and controlled by women.” As the title suggests, the 2015 NDAA authorizes sole source awards for WOSBs and EDWOSBs–more on that soon in a separate blog post. But the NDAA also amends the portion of the Small Business Act dealing with WOSB set-asides generally. 15 U.S.C. § 637(m)(2) currently states, in relevant part:
(2)Authority to restrict competition
In accordance with this subsection, a contracting officer may restrict competition for any contract for the procurement of goods or services by the Federal Government to small business concerns owned and controlled by women, if—
***
(E) each of the concerns–
(i) is certified by a Federal agency, a State government, or a national certifying entity approved by the Administrator, as a small business concern owned and controlled by women; or
(ii)certifies to the contracting officer that it is a small business concern owned and controlled by women and provides adequate documentation, in accordance with standards established by the Administration, to support such certification.
In this way, the Small Business Act currently provides that a company can qualify for a WOSB set-aside contract in two ways: either by formal certification, or by self-certification accompanied by the submission of documents backing that certification.
The 2015 NDAA amends 15 U.S.C. § 637(m)(2)(E) to delete the self-certification option. After the amendment, the statute will read, in relevant part, as follows:
(2)Authority to restrict competition
In accordance with this subsection, a contracting officer may restrict competition for any contract for the procurement of goods or services by the Federal Government to small business concerns owned and controlled by women, if—
***
(E) each of the concerns is certified by a Federal agency, a State government, the Administrator, or a national certifying entity approved by the Administrator as a small business concern owned and controlled by women.
Interestingly, this amendment was not included in the original House bill passed in May, nor was it included in the Senate’s original version of the NDAA. It appears to have been added late in the process, perhaps in response to a recent GAO report suggesting that Contracting Officers dislike the “trust but verify” option–and that their dislike may be partly to blame for the underwhelming number of WOSB set-aside contracts that have been awarded since 2011.
The NDAA has passed both the House and Senate, and is expected to be signed into law soon. For better or for worse, 15 U.S.C. § 637(m) is about to be amended, and I don’t see any room for self-certification in this revised text. Unless the SBA reads it differently, WOSB self-certification–and the WOSB Document Repository–may soon go the way of the dinosaurs.
