On June 30, 2016, a major new SBA regulation took effect, overhauling the limitations on subcontracting. The SBA’s new regulation, codified at 13 C.F.R. 125.6, replaced the “old” formulas for calculating compliance–like “cost of the contract incurred for personnel,” for service contracts, with new, easier-to-use formulas based on the amount paid by the government. And, in a major boon for small businesses, the SBA’s new regulation allowed small primes to count work performed by “similarly situated entities” toward the prime’s own self-performance.
But more than five years after the SBA regulation took effect, the FAR’s provisions governing the limitations on subcontracting still resemble Marty McFly: stuck in the past. The FAR Council still has not updated the FAR to conform with the SBA’s regulations and the underlying Congressional mandate, causing considerable confusion for contractors trying to figure out which rule to follow.
Now, though, we may finally (hopefully!) be nearing the finish line for this important and long-delayed FAR change.
Flash forward almost four years, and the SBA has not yet implemented a WOSB certification program. In fact, the SBA hasn’t even proposed rules to implement such a program. Instead, although the SBA continues to license a few third-party certifiers, the SBA also continues to say that WOSBs “can self-certify directly at certify.sba.gov by answering questions and uploading documents.”
So where the heck is the mysteriously missing SBA WOSB certification program? And is it even legal for the SBA to continue allowing WOSB self-certification?