FAR Council removes dollar limits for women-owned set-asides

Friday - 6/21/2013, 2:42pm EDT

Agencies are no longer limited in the size of a set-aside contract they can award to a disadvantaged women-owned business.

A new interim rule by the Federal Acquisition Regulations Council in Friday's Federal Register implements a provision in the fiscal 2013 Defense Authorization bill to remove the limits initially set by Congress.

Previously, agencies could award set-aside contracts to disadvantaged women-owned businesses that were worth $6.5 million for manufacturing and $4 million for other products and services.

"Analysis of the Federal Procurement Data System from April 1, 2011 (the implementation date of the WOSB Program) through Jan. 1, 2013, reveals there are approximately 26,712 WOSB concerns, including 131 EDWOSB concerns and 388 women-owned small business concerns eligible under the WOSB Program, that received obligated funds from Federal contract awards, task or delivery orders, and modifications to existing contracts," the interim rule stated. "This interim rule may have a significant positive economic impact on EDWOSB concerns competing for contracting opportunities in industries determined by SBA to be underrepresented by women-owned small business concerns and may positively affect WOSB concerns eligible under the WOSB Program competing in industries determined by SBA to be substantially underrepresented by women- owned small business concerns, since removing the dollar threshold for set-asides under the WOSB Program will provide greater access to Federal contracting opportunities."

SBA had initially announced this change in May, but the interim rule in the FAR makes it official for contracting officers.

In that interim rule, SBA said women-owned firms target="_blank">received 3.97 percent of all federal contracts in fiscal 2011 — the most recent data available — which was well short of the 5 percent statutory goal.

"By removing the limitations on the dollar amount of a contract award that can be set-aside for WOSBs or EDWOSBs in the regulations, the SBA will be clarifying that there are more contracting opportunities for WOSBs, which should result in more contracts being awarded to this group of small businesses," SBA wrote in May.

"Consequently, the SBA believes it is necessary to implement this rule as quickly as possible."

The FAR Council is accepting comments on this interim rule through Aug. 20.

The women-owned business program interim rule was one of 13 proposed, interim or final rules published by the FAR Council Friday.

The council issued a final rule clarifying the roles of contracting officer representatives (COR).

The final rule revises the FAR to detail the responsibilities of CORs, including being a government employee, certified under federal acquisition certification guidance and has no authority to make any commitments or changes that affect price, quality, quantity, delivery, or other terms and conditions of the contract nor in any way direct the contractor or its subcontractors to operate in conflict with the contract terms and conditions.

OFPP initially set new certification requirements for CORs in January 2012.

The FAR Council also officially changed the regulations to reference the System for Award Management (SAM), and no longer reference the Central Contractor Registration (CCR), Online Representations and Certification Application (ORCA), and Excluded Parties List System-all of which have been merged into the new system.

A fourth final rule clarifies various price-analysis techniques and procedures that the government may use to ensure a fair and reasonable price.

And finally, the council issued an interim rule addressing concerns about the use of unrestricted, open-ended indemnification clauses in acquisitions for social media applications.

The Justice Department ruled in March 2012 that if an agency enters into an agreement that has no termination date and no unrestricted indemnification clause, it's a violation of the Anti-Deficiency Act. These types of clauses usually are in the "terms and conditions" to use social media sites.

The Office of Management and Budget issued guidance to agencies in April for how to avoid Anti-Deficiency Act violations.

The interim rule addresses the issue from the acquisition perspective.

"This interim rule focuses only on open-ended indemnification clauses to address the concern raised in [DoJ's] opinion," the council stated. "However, there are also other clauses in commercial End User License Agreement (EULA) and Terms of Service (TOS) that could result in a violation of the Anti-Deficiency Act if executed by a contracting officer. For instance, a clause that automatically renews a contract, such as for subscription services, at its expiration would violate the Anti-Deficiency Act if it obligated the government to pay for supplies or services in advance of the agency's appropriation."

The FAR Councils wrote that any EULA, TOS or similar clauses are not binding on the government unless expressly authorized by statute and specifically authorized under applicable agency regulations and procedures, and shall be deemed to be stricken from any agreement.

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