13 C.F.R. §§ 121.1001–121.1009

9 sections in range

§121.1001. Who may initiate a size protest or request a formal size determination?

13 C.F.R. § 121.1001

(a)

Size Status Protests.

(1)

For SBA's Small Business Set-Aside Program, including the Property Sales Program, or any instance in which a procurement or order has been restricted to or reserved for small businesses or a particular group of small businesses (including a partial set-aside), the following entities may file a size protest in connection with a particular procurement, sale or order:

(i)

Any offeror that the contracting officer has not eliminated from consideration for any procurement-related reason, such as non-responsiveness, technical unacceptability or outside of the competitive range;

(ii)

The contracting officer;

(iii)

(iv)

Other interested parties. Other interested parties include large businesses where only one concern submitted an offer for the specific procurement in question. A concern found to be other than small in connection with the procurement is not an interested party unless there is only one remaining offeror after the concern is found to be other than small.

(2)

For competitive 8(a) contracts, the following entities may protest:

(i)

Any offeror that the contracting officer has not eliminated from consideration for any procurement related reason, such as non-responsiveness, technical unacceptability or outside of the competitive range;

(ii)

The contracting officer; or

(iii)

The SBA District Director, or designee, in either the district office serving the geographical area in which the procuring activity is located or the district office that services the apparent successful offeror, the Associate Administrator for Business Development, or the Associate General Counsel for Procurement Law.

(3)

For SBA's Subcontracting Program, the following entities may protest:

(i)

The prime contractor;

(ii)

The contracting officer;

(iii)

Other potential subcontractors;

(iv)

The responsible SBA Government Contracting Area Director or the Director, Office of Government Contracting, or the SBA's Associate General Counsel for Procurement Law; and

(v)

Other interested parties.

(4)

For SBA's Small Business Innovation Research (SBIR) program and Small Business Technology Transfer (STTR) program, the following entities may protest:

(i)

An offeror or applicant for that solicitation;

(ii)

The funding agreement officer; and

(iii)

The responsible SBA Government Contracting Area Director; the Director, Office of Government Contracting; the Associate Administrator, Investment Division, or the Associate General Counsel for Procurement Law.

(5)

For the Department of Defense's Small Disadvantaged Business (SDB) Program, and any other similar program of another Federal agency, the following entities may file a protest in connection with a particular SDB procurement:

(i)

Any offeror for the specific SDB requirement whom the contracting officer has not eliminated for reasons unrelated to size;

(ii)

The contracting officer; and

(iii)

The responsible SBA Area Director for Government Contracting, the SBA Director, Office of Government Contracting, or the SBA Associate Administrator for Business Development;

(6)

For SBA's HUBZone program, the following entities may protest in connection with a particular HUBZone procurement:

(i)

Any offeror for a specific HUBZone set-aside contract that the contracting officer has not eliminated from consideration for any procurement-related reason, such as non-responsiveness, technical unacceptability or outside of the competitive range;

(ii)

Any concern that submitted an offer in full and open competition and its opportunity for award will be affected by a price evaluation preference given acertified HUBZone small business concern;

(iii)

The contracting officer; and

(iv)

The SBA Director, Office of HUBZone, or designee, or the SBA Associate General Counsel for Procurement Law.

(7)

For any unrestricted Government procurement in which a business concern has represented itself as a small business concern, the following entities may protest in connection with a particular procurement:

(i)

Any offeror;

(ii)

The contracting officer; and

(iii)

The responsible SBA Government Contracting Area Director, the Director, Office of Government Contracting, the Associate Administrator for Business Development, or the Associate General Counsel for Procurement Law.

(8)

For SBA's Service Disabled Veteran-Owned Small Business Concern program, the following entities may protest in connection with a particular service-disabled veteran-owned procurement:

(i)

Any offeror for a specific service-disabled veteran-owned small business set-aside contract that the contracting officer has not eliminated from consideration for any procurement-related reason, such as non-responsiveness, technical unacceptability or outside of the competitive range;

(ii)

The contracting officer;

(iii)

The SBA Government Contracting Area Director; and

(iv)

The Director, Office of Government Contracting, or designee, or the Associate General Counsel for Procurement Law.

(9)

For SBA's WOSB Federal Contracting Program, the following entities may protest:

(i)

Any offeror for a specific contract set aside for WOSBs or WOSBs owned by one or more women who are economically disadvantaged (EDWOSB) that the contracting officer has not eliminated from consideration for any procurement-related reason, such as non-responsiveness, technical unacceptability or outside of the competitive range;

(ii)

The contracting officer;

(iii)

The SBA Government Contracting Area Director; and

(iv)

The Director, Office of Government Contracting, or designee, or the Associate General Counsel for Procurement Law.

(10)

For orders set-aside for small business, women-owned small business, service-disabled veteran-owned small business, or HUBZone small business under an unrestricted multiple award contract or such orders issued under any type of small business multiple award contract where a contracting officer has requested a size recertification, the following entities may file a size protest:

(i)

(ii)

The contracting officer;

(iii)

The SBA Government Contracting Area Director having responsibility for the area in which the headquarters of the protested offeror is located, regardless of the location of a parent company or affiliates, the SBA program manager relating to the order at issue (i.e., the Director of Government Contracting, the Associate Administrator for Business Development, or the Director of HUBZone, as appropriate), or the Associate General Counsel for Procurement Law.

(11)

In connection with a size recertification relating to a Set Aside or Reserved Award (as defined in § 125.1 of this chapter), that is required by § 125.12 of this chapter, the following entities may file a size protest challenging the recertification:

(i)

The contracting officer;

(ii)

The SBA program manager relating to the Set Aside or Reserved Award at issue (i.e., the Director of Government Contracting, the Associate Administrator for Business Development, or the Director of HUBZone, as appropriate), or the Associate General Counsel for Procurement Law; or

(iii)

Any other contract or agreement holder, if it is a multiple award contract or agreement.

(b)

Request for Size Determinations.

(1)

For SBA's Financial Assistance Programs, the following entities may request a formal size determination:

(i)

The applicant for assistance; and

(ii)

The SBA official with authority to take final action on the assistance requested. That official may also request the appropriate Government Contracting Area Office to determine whether affiliation exists between an applicant for financial assistance and one or more other entities for purposes of determining whether the applicant would exceed the loan limit amount imposed by § 120.151 of this chapter.

(iii)

The SBA Associate Administrator for Investment or designee may request a formal size determination for any purpose relating to the SBIC program (see part 107 of this chapter) or the NMVC program (see part 108 of this chapter). A formal size determination includes a request to determine whether or not affiliation exists between two or more entities for any purpose relating to the SBIC program.

(2)

For SBA's 8(a) BD program—

(i)

Concerning initial or continued 8(a) BD eligibility, the following entities may request a formal size determination:

(A)

The 8(a) BD applicant concern or Participant; or

(B)

The Director of the Division of Program Certification and Eligibility or the Associate Administrator for Business Development.

(ii)

Concerning individual sole source and competitive 8(a) contract awards where SBA cannot verify the eligibility of the apparent successful offeror because SBA finds the concern to be other than small, the following entities may request a formal size determination:

(A)

The Participant nominated for award of the particular sole source contract, or found to be ineligible for a competitive 8(a) contract due to its size;

(B)

The SBA program official with authority to execute the 8(a) contract or, where applicable, the procuring activity contracting officer who has been delegated SBA's 8(a) contract execution functions; or

(C)

The SBA District Director in the district office that services the Participant, the Associate Administrator for Business Development, or the Associate General Counsel for Procurement Law.

(iii)

Where SBA initially verified the eligibility of an 8(a) Participant for the award of an 8(a) contract but subsequently receives specific information that the Participant may be other than small and consequently ineligible for the award, the Associate Administrator for Business Development or the Associate General Counsel for Procurement Law may request a formal size determination at any point prior to award.

(3)

For SBA's Certificate of Competency Program, the following entities may request a formal size determination:

(i)

The offeror who has applied for a COC; and

(ii)

The responsible SBA Government Contracting Area Director or the Director, Office of Government Contracting.

(4)

For SBA's sale or lease of government property, the following entities may request a formal size determination:

(i)

The responsible SBA Government Contracting Area Director or the Director, Office of Government Contracting; and

(ii)

Authorized officials of other Federal agencies administering a property sales program.

(5)

For eligibility to pay reduced patent fees, the following entities may request a formal size determination:

(i)

The applicant for the reduced patent fees; and

(ii)

The Patent and Trademark Office.

(6)

For purposes of determining compliance with small business requirements of another Government agency program not otherwise specified in this section, an official with authority to administer the program involved may request a formal size determination.

(7)

In connection with initial or continued eligibility for the WOSB program, the following may request a formal size determination:

(i)

The applicant or WOSB/EDWOSB; or

(ii)

The Director of Government Contracting or the Deputy Director, Program and Resource Management, for the Office of Government Contracting.

(8)

In connection with initial or continued eligibility for the HUBZone program, the following may request a formal size determination:

(i)

The applicant or certified HUBZone small business concern; or

(ii)

The Director, Office of HUBZone, or designee.

(9)

For other purposes related to protecting the integrity of the Federal procurement process, including validating that firms listed in the System for Award Management database are small, the Government Contracting Area Director or the Director, Office of Government Contracting may initiate a formal size determination when sufficient information exists that calls into question a firm's small business status. The current date will be used to determine size, and SBA will initiate the process to remove from the database the small business designation of any firm found to be other than small.

(10)

For purposes of the small business mentor-protégé program authorized pursuant to § 125.9 of this chapter (based on its status as a small business for its primary or identified secondary NAICS code), the business concern seeking to be a protégé or SBA may request a formal size determination.

(11)

For purposes of determining compliance with small business requirements for firms relying upon small business status advisory opinions, the Associate General Counsel, Office of Procurement Law may request a formal size determination. Additionally, any firm that is the subject of a small business status advisory opinion holding that it is other than small may request a formal size determination.

(12)

In connection with eligibility for the SDVO program, the following may request a formal size determination:

(i)

The SDVO business concern; or

(ii)

The Director of Government Contracting or designee.

(13)

The SBA Inspector General may request a formal size determination with respect to any of the programs identified in paragraph (b) of this section.

Notes, amendments, and revision history

Amendments

[61 FR 3286, Jan. 31, 1996, as amended at 63 FR 31907, June 11, 1998; 63 FR 35739, June 30, 1998; 69 FR 25266, May 5, 2004; 69 FR 29206, May 21, 2004; 69 FR 29420, May 24, 2004; 69 FR 44461, July 26, 2004; 73 FR 56947, Oct. 1, 2008; 74 FR 45753, Sept. 4, 2009; 75 FR 62280, Oct. 7, 2010; 76 FR 8253, Feb. 11, 2011; 77 FR 76227, Dec. 27, 2012; 78 FR 61132, Oct. 2, 2013; 80 FR 7536, Feb. 11, 2015; 81 FR 34259, May 31, 2016; 81 FR 48579, July 25, 2016; 84 FR 65239, Nov. 26, 2019; 85 FR 66182, Oct. 16, 2020; 88 FR 26202, Apr. 27, 2023; 89 FR 102486, Dec. 17, 2024; 90 FR 9674, Feb. 18, 2025]

Authority

Authority: 15 U.S.C. 632, 634(b)(6), 636(a)(36), 662, and 694a(9).

Source

Source: 61 FR 3286, Jan. 31, 1996, unless otherwise noted.

Amendments

§121.1002. Who makes a formal size determination?

13 C.F.R. § 121.1002

The responsible Government Contracting Area Director or designee makes all formal size determinations in response to either a size protest or a request for a formal size determination, with the exception of size determinations for purposes of the Disaster Loan Program, which will be made by the Disaster Area Office Director or designee responsible for the area in which the disaster occurred.

Notes, amendments, and revision history

Authority

Authority: 15 U.S.C. 632, 634(b)(6), 636(a)(36), 662, and 694a(9).

Source

Source: 61 FR 3286, Jan. 31, 1996, unless otherwise noted.

§121.1003. Where should a size protest be filed?

13 C.F.R. § 121.1003

A protest involving a government procurement or sale must be filed with the contracting officer for the procurement or sale, who must forward the protest to the SBA Government Contracting Area Office serving the area in which the headquarters of the protested concern is located, regardless of the location of any parent company or affiliates.

Notes, amendments, and revision history

Authority

Authority: 15 U.S.C. 632, 634(b)(6), 636(a)(36), 662, and 694a(9).

Source

Source: 61 FR 3286, Jan. 31, 1996, unless otherwise noted.

§121.1004. What time limits apply to size protests?

13 C.F.R. § 121.1004

(a)

Protests by entities other than contracting officers or SBA—

(1)

Sealed bids or sales (including protests on partial set-asides and reserves of Multiple Award Contracts and set-asides of orders against Multiple Award Contracts).

(i)

A protest must be received by the contracting officer prior to the close of business on the 5th day, exclusive of Saturdays, Sundays, and legal holidays, after bid opening for

(A)

The contract;

(B)

An order issued against a Multiple Award Contract if the contracting officer requested a new size certification in connection with that order; or

(C)

Except for orders or Blanket Purchase Agreements issued under any Federal Supply Schedule contract, an order or Blanket Purchase Agreement set aside for small business (i.e., small business set-aside, 8(a) small business, service-disabled veteran-owned small business, HUBZone small business, or women-owned small business) where the underlying Multiple Award Contract was awarded on an unrestricted basis.

(ii)

Where the identified low bidder is determined to be ineligible for award, a protest of any other identified low bidder must be received prior to the close of business on the 5th day, exclusive of Saturdays, Sundays, and legal holidays, after the contracting officer has notified interested parties of the identity of that low bidder.

(2)

Negotiated procurement (including protests on partial set-asides and reserves of Multiple Award Contracts and set-asides of orders against Multiple Award Contracts). A protest must be received by the contracting officer prior to the close of business on the 5th day, exclusive of Saturdays, Sundays, and legal holidays, after the contracting officer has notified the protestor of the identity of the prospective awardee for

(i)

The contract; or

(ii)

An order issued against a Multiple Award Contract if the contracting officer requested a size recertification in connection with that order; or

(iii)

Except for orders or Blanket Purchase Agreements issued under any Federal Supply Schedule contract, an order or Blanket Purchase Agreement set-aside for small business (i.e., small business set-aside, 8(a) small business, service-disabled veteran-owned small business, HUBZone small business, or women-owned small business) where the underlying Multiple Award Contract was awarded on an unrestricted basis without a reserve.

(3)

Long-Term Contracts. For contracts with durations greater than five years (including options), including all existing long-term contracts, Multi-agency contracts, Governmentwide Acquisition Contracts and Multiple Award Contracts:

(i)

Protests regarding size certifications made for contracts must be received by the contracting officer prior to the close of business on the 5th day, exclusive of Saturdays, Sundays, and legal holidays, after receipt of notice (including notice received in writing, orally, or via electronic posting) of the identity of the prospective awardee or award.

(ii)

Protests regarding size certifications made for an option period must be received by the contracting officer prior to the close of business on the 5th day, exclusive of Saturdays, Sundays, and legal holidays, after receipt of notice (including notice received in writing, orally, or via electronic posting) of the size certification made by the protested concern.

(A)

A contracting officer is not required to terminate a contract where a concern is found to be other than small pursuant to a size protest concerning a size certification made for an option period.

(B)

[Reserved]

(iii)

Protests relating to size certifications made in response to a contracting officer's request for size certifications in connection with an individual order must be received by the contracting officer prior to the close of business on the 5th day, exclusive of Saturdays, Sundays, and legal holidays, after receipt of notice (including notice received in writing, orally, or via electronic posting) of the identity of the prospective awardee or award.

(4)

Protests relating to size recertifications. Protests from another contract or agreement holder relating to a size recertification required by § 125.12 of this chapter must be received by the contracting officer prior to the close of business on the 5th business day after bid opening or notice (including notice received in writing, orally, or via electronic posting) of the identity of the prospective awardee of an order issued under a multiple award contract or agreement.

(5)

Electronic notification of award. Where notification of award is made electronically, such as posting on the Internet under Simplified Acquisition Procedures, a protest must be received by the contracting officer before close of business on the fifth day, exclusive of Saturdays, Sundays, and legal holidays, after the electronic posting.

(6)

No notice of award. Where there is no requirement for written pre-award notice or notice of award, or where the contracting officer has failed to provide written notification of award, the 5-day protest period will commence upon oral notification by the contracting officer or authorized representative or another means (such as public announcements or other oral communications) of the identity of the apparent successful offeror.

(b)

Protests by contracting officers, funding agreement officers or SBA. The time limitations in paragraph (a) of this section do not apply to contracting officers, funding agreement officers or SBA, and they may file protests before or after awards, except to the extent set forth in paragraph (e) of this section, including for purposes of the SBIR and STTR programs. Notwithstanding paragraph (e), for purposes of the SBIR and STTR programs the funding agreement officer or SBA may file a protest in anticipation of an award.

(c)

Effect of contract award. A timely filed protest applies to the procurement in question even though a contracting officer awarded the contract prior to receipt of the protest.

(d)

Untimely protests. A protest received after the allotted time limits must still be forwarded to SBA. SBA will dismiss untimely protests.

(e)

Premature protests. A protest filed by any party, including the contracting officer, before bid opening or notification to offerors of the selection of the apparent successful offer will be dismissed as premature.

(f)

Apparent successful offeror. A party with standing, as set forth in § 121.1001(a), may file a protest only against an apparent successful offeror or an offeror in line to receive an award.

(g)

Bid protest corrective action. SBA will generally dismiss any size protest relating to an initial apparent successful offeror where an agency decides to reevaluate offers as a corrective action in response to a FAR subpart 33.1 bid protest.

(1)

SBA will complete the size determination where the procuring agency makes a written request to SBA within two business days of the agency informing SBA of the corrective action and demonstrates that the corrective action will not result in a change of the apparent successful offeror, unless the protest involves size issues determined as of the date of final proposal revision per § 121.404(d).

(2)

When the apparent successful offeror is announced after reevaluation, interested parties will again have the opportunity to protest the size of the new or same apparent successful offeror within five business days after such notification.

Notes, amendments, and revision history

Amendments

[61 FR 3286, Jan. 31, 1996, as amended at 69 FR 29206, May 21, 2004; 71 FR 66444, Nov. 15, 2006; 77 FR 76227, Dec. 27, 2012; 78 FR 61132, Oct. 2, 2013; 85 FR 66182, Oct. 16, 2020; 88 FR 26202, Apr. 27, 2023; 90 FR 9674, Feb. 18, 2025]

Authority

Authority: 15 U.S.C. 632, 634(b)(6), 636(a)(36), 662, and 694a(9).

Source

Source: 61 FR 3286, Jan. 31, 1996, unless otherwise noted.

Amendments

§121.1005. How must a protest be filed with the contracting officer?

13 C.F.R. § 121.1005

A protest must be delivered to the contracting officer by hand, telegram, mail, facsimile, Federal Express or other overnight delivery service, e-mail, or telephone. If a protest is made by telephone, the contracting officer must later receive a confirming letter either within the 5-day period in § 121.1004(a)(1) or postmarked no later than one day after the date of the telephone protest.

Notes, amendments, and revision history

Amendments

[61 FR 3286, Jan. 31, 1996, as amended at 69 FR 29206, May 21, 2004]

Authority

Authority: 15 U.S.C. 632, 634(b)(6), 636(a)(36), 662, and 694a(9).

Source

Source: 61 FR 3286, Jan. 31, 1996, unless otherwise noted.

Amendments

[61 FR 3286, Jan. 31, 1996, as amended at 69 FR 29206, May 21, 2004]

§121.1006. When will a size protest be referred to an SBA Government Contracting Area Office?

13 C.F.R. § 121.1006

(a)

A contracting officer who receives a protest (other than from SBA) must forward the protest promptly to the SBA Government Contracting Area Office serving the area in which the headquarters of the offeror is located.

(b)

A contracting officer's referral must contain the following information:

(1)

The protest and any accompanying materials;

(2)

A copy of the self-certification as to size;

(3)

Identification of the applicable size standard;

(4)

A copy of the solicitation;

(5)

Identification of the date of bid opening or notification provided to unsuccessful offerors;

(6)

The date on which the protest was received; and

(7)

A complete address and point of contact for the protested concern.

Notes, amendments, and revision history

Authority

Authority: 15 U.S.C. 632, 634(b)(6), 636(a)(36), 662, and 694a(9).

Source

Source: 61 FR 3286, Jan. 31, 1996, unless otherwise noted.

§121.1007. Must a protest of size status relate to a particular procurement and be specific?

13 C.F.R. § 121.1007

(a)

Particular procurement. A protest challenging the size of a concern which does not pertain to a particular procurement or sale will not be acted on by SBA.

(b)

A protest must include specific facts. A protest must be sufficiently specific to provide reasonable notice as to the grounds upon which the protested concern's size is questioned. Some basis for the belief or allegation stated in the protest must be given. A protest merely alleging that the protested concern is not small or is affiliated with unnamed other concerns does not specify adequate grounds for the protest. No particular form is prescribed for a protest. Where materials supporting the protest are available, they should be submitted with the protest.

(c)

Non-specific protests will be dismissed. Protests which do not contain sufficient specificity will be dismissed by SBA. The following are examples of allegation specificity:

Notes, amendments, and revision history

Amendments

[61 FR 3286, Jan. 31, 1996, as amended at 69 FR 29206, May 21, 2004]

Authority

Authority: 15 U.S.C. 632, 634(b)(6), 636(a)(36), 662, and 694a(9).

Source

Source: 61 FR 3286, Jan. 31, 1996, unless otherwise noted.

Amendments

[61 FR 3286, Jan. 31, 1996, as amended at 69 FR 29206, May 21, 2004]

§121.1008. What occurs after SBA receives a size protest or request for a formal size determination?

13 C.F.R. § 121.1008

(a)

When SBA receives a size protest, the SBA Area Director for Government Contracting, or designee, will notify the contracting officer, the protested concern, and the protestor that the protest has been received. If the protest pertains to a requirement involving SBA's HUBZone program, the Area Director will also notify the D/HUB of the protest. If the protest pertains to a requirement set aside for WOSBs or EDWOSBs, the Area Director will also notify SBA's Director for Government Contracting of the protest. If the protest pertains to a requirement involving SBA's SBIR or STTR programs, the Area Director will also notify the Associate Administrator, Investment Division. If the protest involves the size status of an SDB concern (see part 124, subpart B of this chapter) the Area Director will notify SBA's Associate Administrator for Business Development. If the protest pertains to a requirement that has been reserved for competition among eligible 8(a) BD program participants, the Area Director will notify the SBA district office servicing the 8(a) concern whose size status has been protested. SBA will provide a copy of the protest to the protested concern together with SBA Form 355, Application for Small Business Size Determination, by certified mail, return receipt requested, or by any overnight delivery service that provides proof of receipt. SBA will ask the protested concern to complete the form and respond to the allegations in the protest.

(b)

When SBA receives a request for a formal size determination in accord with § 121.1001(b), SBA will provide a blank copy of SBA Form 355 to the concern whose size is at issue.

(c)

The protested concern or concern whose size is at issue must return the completed SBA Form 355 and all other requested information to SBA within 3 working days from the date of receipt of the blank form from SBA. SBA has discretion to grant an extension of time to file the form. The firm must attach to the completed SBA Form 355 its answers to the allegations contained in the protest, where applicable, together with any supporting material.

(d)

If a concern whose size status is at issue fails to submit a completed SBA Form 355, responses to the allegations of the protest, or other requested information within the time allowed by SBA, or if it submits incomplete information, SBA may presume that disclosure of the information required by the form or other missing information would demonstrate that the concern is other than a small business. A concern whose size status is at issue must furnish information about its alleged affiliates to SBA, despite any third party claims of privacy or confidentiality, because SBA will not disclose information obtained in the course of a size determination except as permitted by Federal law.

Notes, amendments, and revision history

Amendments

[61 FR 3286, Jan. 31, 1996, as amended at 63 FR 31908, June 11, 1998; 69 FR 29207, May 21, 2004; 73 FR 56948, Oct. 1, 2008; 74 FR 45753, Sept. 4, 2009; 75 FR 62280, Oct. 7, 2010; 77 FR 76227, Dec. 27, 2012]

Authority

Authority: 15 U.S.C. 632, 634(b)(6), 636(a)(36), 662, and 694a(9).

Source

Source: 61 FR 3286, Jan. 31, 1996, unless otherwise noted.

Amendments

§121.1009. What are the procedures for making the size determination?

13 C.F.R. § 121.1009

(a)

Time frame for making size determination.

(1)

After receipt of a protest or a request for a formal size determination, if no protest is pending under FAR subpart 33.1, the SBA Area Office will issue a formal size determination within 15 business days, if possible;

(2)

If a protest is pending under FAR subpart 33.1, the SBA Area Office will suspend processing a valid, timely and specific size protest. Once the procuring agency, GAO or the Court of Federal Claims issues a decision under FAR subpart 33.1, the SBA Area Office will recommence the size determination process.

(i)

If the FAR subpart 33.1 decision denies the protest, SBA will issue a formal size determination within 15 business days of the decision, if possible.

(ii)

If the decision results in a cancellation of the award or change of the apparent successful offeror, SBA will dismiss the size protest as moot.

(iii)

If the decision requires re-evaluation of offers or other corrective action but the award is not cancelled, SBA will continue to suspend processing the protest.

(A)

If after re-evaluation or other corrective action occurs the protested concern remains the apparent successful offeror, SBA will issue a formal size determination within 15 business days after notification of the apparent successful offeror, if possible.

(B)

If after re-evaluation or other corrective action occurs a different apparent successful offeror is identified, SBA will dismiss the size protest as moot. Interested parties may file a timely size protest with respect to the newly identified apparent successful offeror after the notification of award.

(3)

The contracting officer may award a contract after receipt of a protest if the contracting officer determines in writing that an award must be made to protect the public interest. Notwithstanding such a determination, the provisions of paragraph (g) of this section apply to the procurement in question.

(4)

If SBA does not issue its determination in accordance with paragraph (a)(1) of this section (or request an extension that is granted), the contracting officer may award the contract if he or she determines in writing that there is an immediate need to award the contract and that waiting until SBA makes its determination will be disadvantageous to the Government. Notwithstanding such a determination, the provisions of paragraph (g) of this section apply to the procurement in question.

(b)

Basis for determination. The size determination will be based primarily on the information supplied by the protestor or the entity requesting the size determination and that provided by the concern whose size status is at issue. The determination, however, may also be based on grounds not raised in the protest or request for size determination. SBA may use other information and may make requests for additional information to the protestor, the concern whose size status is at issue and any alleged affiliates, or other parties.

(c)

Burden of persuasion. The concern whose size is under consideration has the burden of establishing its small business size.

(d)

Weight of evidence. SBA will give greater weight to specific, signed, factual evidence than to general, unsupported allegations or opinions. In the case of refusal or failure to furnish requested information within a required time period, SBA may assume that disclosure would be contrary to the interests of the party failing to make disclosure.

(e)

Formal size determination. The SBA will base its formal size determination upon the record, including reasonable inferences from the record, and will state in writing the basis for its findings and conclusions.

(f)

Notification of determination. SBA will promptly notify the contracting officer, the protester, and the protested concern. SBA will send the notification by verifiable means, which may include facsimile, electronic mail, or overnight delivery service.

(g)

Results of an SBA Size Determination.

(1)

A contracting officer may award a contract to a protested concern after the SBA Area Office has determined either that the protested concern is an eligible small business or has dismissed all protests against it. If OHA subsequently overturns the Area Office's determination or dismissal, the contracting officer may apply the OHA decision to the procurement in question.

(2)

A contracting officer shall not award a contract to a protested concern that the Area Office has determined is not an eligible small business for the procurement in question.

(i)

If a contracting officer receives such a determination after contract award, and no OHA appeal has been filed, the contracting officer shall terminate the award.

(ii)

If a timely OHA appeal is filed after contract award, the contracting officer must consider whether performance can be suspended until an appellate decision is rendered.

(iii)

If OHA affirms the size determination finding the protested concern ineligible, the contracting officer shall either terminate the contract or not exercise the next option.

(3)

The contracting officer must update the Federal Procurement Data System and other procurement reporting databases to reflect the final agency size decision (the formal size determination if no appeal is filed or the appellate decision).

(4)

Once SBA has determined that a concern is other than small for purposes of a particular procurement, the concern cannot later become eligible for the procurement by reducing its size.

(5)

A concern determined to be other than small under a particular size standard is ineligible for any procurement or any assistance authorized by the Small Business Act or the Small Business Investment Act of 1958 which requires the same or a lower size standard, unless SBA recertifies the concern to be small pursuant to § 121.1010 or OHA reverses the adverse size determination. After an adverse size determination, a concern cannot self-certify as small under the same or lower size standard unless it is first recertified as small by SBA. If a concern does so, it may be in violation of criminal laws, including section 16(d) of the Small Business Act, 15 U.S.C. 645(d). If the concern has already certified itself as small under the same or a smaller size standard on a pending procurement or on an application for SBA assistance, the concern must immediately inform the contracting officer or responsible official of the adverse size determination.

(i)

Not later than two days after the date on which SBA issues a final size determination finding a business concern to be other than small, such concern must update its size status in the System for Award Management (or any successor system).

(ii)

If a business concern fails to update its size status in the System for Award Management (or any successor system) in response to an adverse size determination, SBA will make such update within two days of the business's failure to do so.

(h)

Limited reopening of size determinations. SBA may, in its sole discretion, reopen a formal size determination to correct an error or mistake, provided it is within the appeal period and no appeal has been filed with OHA. Once the agency has issued a final decision (either a formal size determination that is not timely appealed or an appellate decision), SBA cannot re-open the size determination.

Notes, amendments, and revision history

Amendments

[61 FR 3286, Jan. 31, 1996, as amended at 67 FR 47245, July 18, 2002; 69 FR 29207, May 21, 2004; 76 FR 5683, Feb. 2, 2011; 78 FR 38818, June 28, 2013; 88 FR 26202, Apr. 27, 2023]

Authority

Authority: 15 U.S.C. 632, 634(b)(6), 636(a)(36), 662, and 694a(9).

Source

Source: 61 FR 3286, Jan. 31, 1996, unless otherwise noted.

Amendments

[61 FR 3286, Jan. 31, 1996, as amended at 67 FR 47245, July 18, 2002; 69 FR 29207, May 21, 2004; 76 FR 5683, Feb. 2, 2011; 78 FR 38818, June 28, 2013; 88 FR 26202, Apr. 27, 2023]