Changes Proposed for Size Determination Appeals

The SBA processes about 500 size protests each fiscal year. These protests are usually filed by firms against their competitors who are suspicious that the competitor is too big to bid on a particular solicitation. Of those filed, 41 percent are determined to be small, 26 percent are determined to be other than small, and the rest are dismissed on procedural grounds. This is a very small percentage of the 341 thousand small business firms registered in the System for Award Management (SAM).

Although small in number, the process of filing and adjudicating a size protest is cumbersome, time consuming and often does not allow the Government sufficient time to complete their investigation. Everyone recognizes that the process needs to be improved.

Earlier this week, DoD, GSA, and NASA (i.e. the FAR Councils) published a proposal to amend the FAR (Federal Acquisition Regulation) to revise the small business size and small business status protest and appeal procedures to ensure that contracts set-aside for small businesses are awarded to eligible small business concerns. These proposed regulations also apply to various degrees to appeals of  HUBZone small business concerns, service-disabled veteran-owned small business concerns, economically disadvantaged women-owned small business (EDWOSB) and women-owned small businesses (WSOB).

The proposed revisions to FAR will

• Increase the amount of time the SBA has, after receiving a protest, to make a size determination of a protested concern from 10 to 15 business days.
• Clarify that the contracting officer has the authority to extend the amount of time needed by SBA to make a size determination.
• Provide guidance on actions available to the contracting officer in the event a size or status determination is not received within the 15-day timeframe or within any extension granted by the contracting officer
• Clarify that it is within the discretion of SBA's Office of Hearing and Appeals to accept an appeal from a size determination, and, that SBA may at its sole discretion, reopen a formal size determination to correct an error or mistake, if it is within the appeal period an no appeal has been filed with OHA.
• Allow the contracting officer to consider whether contract performance can be suspended until an OHA Judge renders a decision, when a post-award appeal is submitted to OHA within the required timeframe.

Anyone protesting a size determination should become familiar with FAR 19.306, 307, and 308. The proposed revision to these sections address:

• What information the protest must contain in order for it to be considered and the timeframes for submittal of a protest by an interest party
• What actions the contracting officer must take before and after receipt of an eligibility decision
• What actions the contracting officer must take if a protest has been denied or dismissed
• What actions to take if a protest has been sustained and the concern was determined to be ineligible
• What actions to take of a concern has or has not filed a timely appeal and
• If a protest has been sustained and the concern was determined to be ineligible as an SBD, SDVOSB, HUBZone, EDWOSB or WOSB, what must happen before the concern can represent itself under one of these small business categories.

Some government contracting specialists expect the number of appeals to increase as more and more firms chase a dwindling pot of contracting/grant dollars.