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The Case for Expediting Sole Source for Women

Monday, February 2, 2015  
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WIPP WORKS IN WASHINGTON 

February 2015

 

The Case for Expediting Sole Source for Women

by Ann Sullivan, WIPP Government Relations

 

With much excitement, the women's community celebrated the passage of sole source authority for the Women's (WOSB) Procurement Program.  There are two reasons why this is a big deal.  One, after 15 years of effort, this program finally has parity with other small business contracting programs.  That is a polite way of saying that women-owned businesses are now on equal footing with everyone else.  Second, women-owned companies are only awarded around 4 percent of all federal contracts—an unacceptable number, given that women-owned businesses make up a full third of the American economy. This change should help drive that percentage up.  

But what happens when a law is passed?  Does it go into effect immediately? Who addresses details that the law may not have addressed?  The answer, as you might guess, is that the federal government has a system of processes in place to put laws into effect, change or start programs, and incorporate changes to existing law. This is called the regulatory process and, in the case of the new sole source law, there is a regulatory procedure to be followed. 

Here's how it usually works:  federal agencies take draft up "rules" to implement a law, including more details about how it will work.  In this case, the Small Business Administration (SBA) is in charge of drawing up a rule to incorporate sole source and certification changes into the existing WOSB procurement program.  The agency proposes a rule and allows for public comment for up to 90 days.  During this comment period, anyone can weigh in on the proposal electronically at regulations.gov.  After the comment period closes, the agency reviews the comments. It then proceeds to issuing a final rule or, if it has additional questions, it can issue an interim rule and gather additional comments from the public.

Before you come to the conclusion that, based on the above description, sole source for women will not happen for years, there is a strategy that will work—that is, provided women's organizations, women's business owners and SBA work together.  Federal agencies can expedite regulations, if they need to.  An expedited regulation looks like this:  the agency forgoes the proposed rule step and instead issues an interim final rule. That cuts the public comment period and one whole step from the process. There is a still a comment period, and another final rule is released, but the process can take as little as six months, rather than years.

And that is exactly what we want for sole source. Twenty-four organizations asked SBA to expedite the sole source portion of the new law.  They did it once before - when the dollar caps were removed from the program in 2013, SBA implemented it within six months. 

One additional requirement on procurement changes is that the Federal Acquisition Regulation Council has to adopt the changes to the federal code finalized by the SBA.  This council, consisting of NASA, DOD and GSA goes over every comma, before adopting the change.  Again, a hurdle but not an impossible one.

I would be remiss if I did not mention a complication in moving the sole source forward. That is, the Congress passed new changes to how women will certify for the program going forward in the same law they included sole source. Although we did not seek these changes, Congress acted. The change in the new law will eventually do a way with self-certification and instead women will need to be certified through other federal agencies, the SBA, state governments or third party certifiers approved by SBA. These changes will need to go through the regulatory process I described above before going into effect.  So, don't panic, your existing certifications are valid until the entire regulatory process is completed.

With respect to changing the certification requirements, this program has had enough setbacks since its passage in 2000 that we cannot let the changes in certification drag down the sole source portion of the law. This can be accomplished if SBA can implement the law in two parts—expedite the sole source portion of the law and consider the certification changes separately. The last thing this program needs is a complicated certification requirement that will set back women rather than propel them forward.  So, let's make sure the SBA gets it right. The sole source portion of the new law is already in two other programs, and the law was very clear on its parameters.  There is really no ambiguity with respect to sole source, and the debate on whether the program should have it is over. 

Separating the sole source regulatory process from the certification requirements is a strategy the SBA should adopt.  Women should not have to wait for the program to award sole source awards—the numbers show they need it now.  New certification requirements may, at some point, improve the program, but they won't result in a single federal contract to a women business owner.  Conversely, sole source awards have, in other programs, boosted the dollars and contracts awarded. We have no reason to believe that the outcome for the WOSB program will be any different.

Our message is simple - expedite sole source and let the certification portions of the new law go the regular regulatory route.  Women business owners should expect this from the government that purports to be interested in buying from them.

 


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