Socio-economic Policies: Size Protests/Size Appeals

Posted on August 25, 2020 Socio-economic Policies

When a small business is awarded a set-aside contract, someone may claim that the small business didn’t actually qualify for the set-aside contract, and therefore shouldn’t be awarded the contract. Protests take place within the Small Business Administration (SBA).

Size Protests

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: a) 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; b) the contracting officer; c) the Small Business Administration 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, or the Director, Office of Government Contracting; and d) 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.

For competitive 8(a) contracts, the following entities may protest: a) 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; b) the contracting officer; or c) 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, or the Associate Administrator for Business Development.

There’s no standard format for a size protest. However, it must be in writing and contain specific evidence to support the claim that the protested business is not small. The protest must include a referral letter, written by the contracting officer, containing the following information:

  • A copy of the protested business’ size self-certification
  • Identification of the applicable size standard
  • A copy or an electronic link to the solicitation and any amendments (if requested)
  • The name, address, telephone number, email address, and fax number of the contracting officer
  • Identification of the bid opening date or the date of notification provided to unsuccessful offerors
  • The date the contracting officer received the protest
  • A complete address and point of contact for the protested business

Protestors have five days after the awarding of a contract to file a size protest. The SBA area office will make a size determination — usually within 15 business days of receiving the protest — and notify the protester and the protested business.

If the SBA determines that the protested business is small, or dismisses the protest, the contracting officer may award the contract. If the SBA determines that the winning business is not small, the business is not eligible for that contract. The ineligible business can’t become eligible for the contract by reducing its size after the SBA’s determination.

Any interested party may appeal an area office’s determination. That appeal is heard by the Office of Hearings and Appeals, which will issue a final ruling.

Size Appeals

The Office of Hearings and Appeals (OHA) is an independent office of the Small Business Administration (SBA) established in 1983 to provide an independent, quasi-judicial appeal of certain SBA program decisions.

OHA hears the following appeals:

  • Size determinations,
  • Contracting officer designations of North American Industry Classification System (NAICS) codes on federal contracts,
  • Eligibility determinations for Service-Disabled Veteran-Owned Small Business Concerns (SDVO SBC),
  • Eligibility of Women-Owned Small Businesses (WOSB),
  • Eligibility of Economically Disadvantaged WOSB (EDWOSB), and
  • 8(a)BD eligibility determinations, suspensions and terminations.

More information regarding OHA’s jurisdiction can be found at 13 C.F.R. § 134.102.

OHA will publish all final decisions with respect to appeals, and the data base is available to search. A size appeal must be filed with OHA within 15 calendar days of receiving the size determination. 13 C.F.R. § 134.304(a). OHA must receive an appeal by 5 p.m. EST on the 15th day. Size appeals can be filed here.

An appeal must contain:

  • A certificate of service. 13 C.F.R. § 134.204(d).
  • A copy of the size determination being appealed.
  • The solicitation number.
  • The contracting officer’s name and contact information.
  • Protestors name and contact information.
  • The factual basis of the case, legal argument as to why the size determination is in error, and requested relief (how the protestor wants OHA to decide the case), 13 C.F.R. §§ 134.203 and 305(a).

OHA provides a list of their most frequently cited cases to aid a protestor in their appeal. If practicable, the judge will decide the case and issue a written decision within 60 days of the close of record.