To date, the Federal Government has never met the government-wide goal of having Women-Owned Small Businesses (WOSBs) receive 5% of the total value of Federal prime contracts and subcontracts. On March 2, 2010, the United States Small Business Administration (“SBA”) released a proposed rule that would permit Government agencies to set aside federal procurements for competition exclusively among WOSBs when six conditions are met.
- The bidder must be at least 51% owned by at least 1 woman and either
- the women are economically disadvantaged; or
- the Agency waives the economic disadvantage requirement, finding that WOSB’s are “substantially underrepresented in that industry.”
- All WOSB’s must be certified as a qualifying entity by a Federal agency, a State, or another SBA-approved organization.
- The subject-matter of the contract relates to an industry that the SBA has identified as having an underrepresentation of WOSB’s. The current proposed rule identifies 83 qualifying industries. There are 45 industries designated in which WOSBs are under represented and 38 industries in which WOSBs are considered substantially under represented. The list can be found at 75 Fed. Reg. 10036.
- The dollar amount estimated for the contract does not exceed $5 million for a manufacturing contract or $3 million for other contracts.
- The Agency has a reasonable expectation of receiving offers from two or more WOSB’s.
- The Agency anticipates that the prices obtained will be fair and reasonable.
It has been a battle to get this far. Congress first authorized the set-aside for WOSBs on December 21, 2000 but the SBA has been extremely slow to act and, when it did, its attempts to create the regulatory structure for this program have met with opposition at every step. While this is not the SBA’s first attempt to create opportunities for WOSBs, it is the first attempt during the Obama administration. This proposed rule is available at 75 Fed.Reg. 10030, and is open to public comment until May 3, 2010.