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Status Determination after a Size Protest

If a size protest is made, what do you need to do? This article discusses the steps that take place and the things you have to do as a contracting officer.

Steps to Size Determination after a Protest

  1. 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 AA/HUB of the protest.

    • If the protest pertains to a requirement involving SBA’s SBIR Program, the Area Director will also notify the Assistant Administrator for Technology.

    • If the protest involves the size status of a concern that SBA has certified as a small disadvantaged business (SDB), the Area Director will notify SBA’s AA/8(a) BD.

    • 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.

  2. SBA has 10 working days after a protest has been submitted to make a formal size determination if possible.

  3. The size determination will be primarily based on the evidence presented in the protest, but SBA may use outside information in their determination.

  4. SBA will give greater weight to supported factual information than unsupported allegations.

  5. 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.

Notification of the Size Determination after a Protest

  • SBA will promptly notify you, the contracting officer, the protestor, and the protested offeror, as well as each affiliate or alleged affiliate, of the size determination. The notification will be by certified mail, return receipt requested, or by any overnight delivery service that provides proof of receipt.

  • The size determination is in full effect unless an appeal is made and the decision is brought to the Office of Hearings and Appeals.

  • As the contracting officer, you can award the contract based on the size status determined by SBA.

  • If the SBA determines the business is other than small, the business is no longer eligible for the procurement and you cannot award the contract. In addition, the business cannot reduce its size and then become eligible again for this procurement.