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Size Protests, Size Determinations & Appeals
As you have learned in Small Business Size Regulation and Methodology and Use of Size Standards for Government Procurement, a contracting officer determines the size of the business according to the standards set forth in the Code of Federal Regulations. However, there are instances where a party involved in the procurement does not agree with the size standard set by the contracting officer for the small business concern.
With regard to procurement or sales of government property, a procuring (or selling) agency must accept as conclusive the SBA's determination as to which a firm is a “small business concern." Offerors on a procurement self-certify that they are small.
In the case of protest by another firm or interested party questioning the size status of the low offeror, the contracting officer will forward the size protest to the Office of Government Contracting where they will then be referred to the appropriate area office.
Who can make a size protest?
- Unsuccessful Offeror
- Contracting Officer
- SBA Government Contracting Area Office
- Other Interested Parties
- Other Government Officials
Do I need to have the protest in a certain format?
There is no format for a protest. If submitting a size protest, one must identify the business and its operators and provide additional information to supplement the claim. In addition, a protest should be filed as soon as possible and include the procurement and specific facts that relate to the size of the business.
The appropriate area office makes the initial size determination after a size protest. They are given a very tight time constraint (usually within 10 days of receiving a protest).
When SBA determines that a company is “other than small,” it annotates the company’s System for Award Management (SAM) profile. Interested parties can search the SAM database to verify a company’s eligibility as a small business.
Area office determinations may be appealed to the Office of Hearings and Appeals at SBA headquarters in Washington, D.C., by any of the interested parties.
An appeal for a size determination must begin by serving and filing an appeal petition in writing. The following lists the basic rules for appeals:
- If the appeal is for a size determination in a procurement or pending government property sale, then the appeal petition must be served and filed within 15 calendar days after the size determination was made.
- If the appeal is for a size determination other than one in a pending procurement or pending government property sale, then the appeal petition must be served and filed within 30 calendar days after the size determination was made.
- An untimely appeal will be dismissed.
The Office of Hearing and Appeals will do a standard review of the appeal, issue a decision containing the facts and the conclusion that was made based on the appeal, and notify in writing all parties involved. This is the final decision of the SBA.