Size Appeals

FAQs

DISCLAIMER: WE PROVIDE THIS INFORMATION ON OUR HOME PAGE TO FACILITATE THE PREPARATION OF AN APPEAL. THE INFORMATION IS NOT INTENDED TO PROVIDE ALL AVAILABLE INFORMATION REGARDING APPEALS.

For the most up-to-date versions of the regulations cited here, please visit http://ecfr.gpoaccess.gov/

1. What is a size appeal?

A size appeal is an appeal from a formal size determination made by an SBA Government Contracting Area Office, or by an SBA Disaster Area Office.  A size determination may result from the protest of a firm’s size status in connection with a small-business set-aside contract or from a request to determine eligibility for programs benefiting small businesses.

2. What is the time limit for filing a size appeal?

Size appeals must be filed within 15 days of receipt of the size determination.  13 C.F.R. § 134.304(a).

3. To whom must I send a copy of the appeal petition?

In addition to filing your appeal at OHA, you must send a copy of the appeal petition and all attachments to: (1) the SBA official who issued the determination; (2) the contracting officer for the procurement at issue; (3) the business whose size is at issue; (4) all persons who filed protests; and (5) SBA’s Office of Procurement Law.  13 C.F.R. § 134.305(b).

4. What are the other important rules regulating a size appeal?

The regulations governing size appeals are found at 13 C.F.R. part 121 (size regulations) and part 134 (OHA regulations).  To search OHA’s past decisions to help you formulate your argument on appeal, click here.

In addition to the information listed in the FAQs for all OHA appeals, 13 C.F.R. § 134.305(a) requires you to include specific information with a size appeal, most importantly: (1) a copy of the size determination being appealed, and (2) the solicitation number and the name, address, and telephone number of the contracting officer.

13 C.F.R. § 134.308 regulates the submission of new evidence (evidence not previously presented to the Area Office).  Generally, you must file a motion (a written request) if you want the judge to consider such evidence.  The filing of all motions is governed by 13 C.F.R. § 134.211.

5. What happens after the OHA judge has issued the decision?
A party may file a request for reconsideration with OHA within 20 days after service of the written decision on a size appeal.  13 C.F.R. § 134.227(c).

Program Regulations and Rules of Procedure

Please visit http://ecfr.gpoaccess.gov to find the most up-to-date regulations. The size program regulations are found at Title 13 of the Code of Federal Regulations, Part 121. OHA’s procedural rules are found at Title 13 of the Code of Federal Regulations, Part 134.

Sample Certificate of Service

To view a sample size appeals certificate of service, click here.

Guidelines for Size Determination

This outline contains a selection of the most frequent size determination issues, and lists the case number of pertinent Size Appeal Decisions issued by the Small Business Administration’s (SBA) Office of Hearings and Appeals (OHA). The list include only those decisions issued between Sept. 19, 1995 and Aug. 11, 2005.

You should note that the SBA has revised its size regulations at 13 C.F.R. Part 121 during the covered time period, therefore, some legal principles set out in OHA decisions may have been superseded. Among the most significant recent changes are those made on July 18, 2002 (67 Fed. Reg. 47244); May 21, 2004 (69 Fed. Reg. 29192) and Dec. 3, 2004 (69 Fed. Reg. 70180). To access these Federal Register articles, please visit: http://www.gpoaccess.gov/fr/index.html.

DISCLAIMER: The SBA's OHA has published these Guidelines for Size Determinations on the Internet only as a convenience to the public. They, along with the SBA's regulations are only a starting point for legal research on issues relating to size determinations. These Guidelines are not legal authority, and you should not rely on them as such. SBA's regulations (13 C.F.R. Parts 121 and 134) and OHA's size appeal decisions are the applicable legal authorities on which you must rely for all issues pertaining to size determinations and size appeals.

OHA Guidelines for Size Determinations

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