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FAC Number: 2023-01
Effective Date: 12/30/2022

19.1505 Set-aside procedures.

19.1505 Set-aside procedures.

      (a) The contracting officer-

           (1) Shall comply with 19.203 before deciding to set aside an acquisition under the WOSB Program;

           (2)

(i) May set aside acquisitions exceeding the micro-purchase threshold for competition restricted to EDWOSB concerns when the acquisition is assigned a NAICS code in which SBA has determined that WOSB concerns are underrepresented in Federal procurement; or

                (ii) Is assigned a NAICS code in which SBA has determined that WOSB concerns are substantially underrepresented in Federal procurement, as specified on SBA’s Web site at http://www.sba.gov/WOSB.

      (b) For requirements in NAICS codes designated by SBA as underrepresented, a contracting officer may restrict competition to EDWOSB concerns if the contracting officer has a reasonable expectation based on market research that-

           (1) Two or more EDWOSB concerns will submit offers for the contract and;

           (2) Contract award will be made at a fair and reasonable price.

      (c) A contracting officer may restrict competition to WOSB concerns eligible under the WOSB Program (including EDWOSB concerns), for requirements in NAICS codes designated by SBA as substantially underrepresented if there is a reasonable expectation based on market research that-

           (1) Two or more WOSB concerns eligible under the WOSB Program (including EDWOSB concerns), will submit offers and;

           (2) Contract award may be made at a fair and reasonable price.

      (d) An EDWOSB or WOSB concern may submit an offer under an EDWOSB or WOSB set-aside when the offeror

           (1) Qualifies as a small business concern under the size standard corresponding to the NAICS code assigned to the contract; and

           (2)

(i) For an EDWOSB set-aside, is certified pursuant to 13 CFR 127.300 as an EDWOSB or has a pending application for EDWOSB certification in the DSBS (see 13 CFR 127.504(a)); or

                (ii) For a WOSB set-aside, is certified pursuant to 13 CFR 127.300 as an EDWOSB or WOSB, or has a pending application for EDWOSB or WOSB certification in the DSBS (see 13 CFR 127.504(a)).

      (e) The contracting officer shall verify that offers received are eligible for consideration for award by checking SAM to see if the EDWOSB or WOSB concern is designated as a certified concern or checking DSBS for a pending application for certification.

           (1) If the offeror is designated as certified in SAM or has a pending application for certification in DSBS, proceed with the offer evaluation.

           (2) Unless the offeror is designated as certified in SAM or has a pending application for certification in DSBS, the offer is not eligible for award and shall be removed from consideration.

      (f) Prior to award, the contracting officer shall verify the apparently successful offeror is certified in SAM, or has a pending application for certification in DSBS. If the apparently successful offeror's EDWOSB or WOSB certification is pending in DSBS, the contracting officer shall notify SBA's Director/Government Contracting by email at WOSBpendingcertification@sba.gov, and request SBA's status determination. The contracting officer shall provide SBA with the offeror's name, unique entity identifier, type of set-aside, NAICS code, and solicitation number.

           (1) Within 15 calendar days from the date of the contracting officer's notification, SBA will make a determination regarding the offeror's status as an EDWOSB or WOSB eligible under the WOSB program.

           (2) If the contracting officer does not receive a determination from SBA within 15 calendar days, the contracting officer at their discretion, may provide SBA additional time to make a determination, or may proceed with award to the next highest evaluated offeror.

           (3) The contracting officer shall not make award to an offeror who is not a certified EDWOSB or WOSB concern eligible under the WOSB program.

      (g) The contracting officer may make an award, if only one acceptable offer is received from a qualified EDWOSB concern or WOSB concern eligible under the WOSB Program.

      (h) If no acceptable offers are received from an EDWOSB concern or WOSB concern eligible under the WOSB Program, the set-aside shall be withdrawn and the requirement, if still valid, must be considered for set aside in accordance with 19.203 and subpart 19.5.

      (i) The SBA procurement center representative (PCR) may recommend use of the WOSB Program. If the contracting officer rejects a recommendation by SBA's PCR—

           (1) The contracting officer shall notify the PCR as soon as practicable;

           (2) SBA shall notify the contracting officer of its intent to appeal the contracting officer’s decision no later than five business days after receiving notice of the contracting officer’s decision;

           (3) The contracting officer shall suspend further action regarding the procurement until the head of the agency issues a written decision on the appeal, unless the head of the agency makes a written determination that urgent and compelling circumstances which significantly affect the interests of the United States compel award of the contract;

           (4) Within 15 business days of SBA’s notification to the head of the contracting activity, SBA shall file a formal appeal to the head of the agency, or the appeal will be determined withdrawn; and

           (5) The head of the agency, or designee, shall specify in writing the reasons for a denial of an appeal brought under this section.

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