Handling protests

Any interested party may claim that a winning businesses doesn’t meet size standards, and therefore isn’t eligible for the contract under set-aside rules.

The procedure for filing a size protest is fully explained in Title 13 Part 121.1001-1008 of the Code of Federal Regulations (CFR).

A contracting officer, an unsuccessful bidder, SBA, or other interested parties can file a size protest.

As a contracting officer, if you receive a size protest, you must forward it to the SBA Government Contracting Area office serving the area in which the protested business’ headquarters is located.

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

There’s no time limit for when a contracting officer can file a size protest, and you may file one before or after an award. However, SBA may dismiss a protest as premature if it’s made before you announce the identity of the business that won the contract.

Anyone other than the contracting officer who wants to file a size protest has five business days after unsuccessful bidders are notified. They must deliver the written protest to you in person, by mail, email, or fax.

The SBA area office will make a size determination — usually within 15 business days of receiving the protest — and notify you, the protester, and the protested business.

If SBA determines that the protested business is small, or dismisses the protest, you may award the contract. If 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 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.

Someone also may protest a winning business’ socio-economic status under one of SBA’s contracting programs.

The process for filing a status protest is similar to filing a size protest. However, there are some key differences for each program.

The general process for a status protest is:

• In a negotiated acquisition, the contracting officer must receive the protest prior to the close of business on the fifth business day after notification by the contracting officer of the apparent successful offeror. In a sealed bid acquisition, the contracting officer must receive the protest prior to the close of business on the fifth business day after bid opening.
   
• The contracting officer must forward all protests to the corresponding SBA program office, regardless of the timeliness or specificity. These program offices are within the Office of Government Contracting and Business Development.
   
• Include in your referral letter:
  • Solicitation number
  • NAICS code assigned to the procurement
  • Contact information of the contracting officer
  • Protested business and the protester
  • Date of notification on the apparent successful offeror
  • Received date of the protest
     
• The SBA will determine the status of the protested business within 15 business days after the receipt of the protest, or within any extension of that time that the contracting officer may grant the SBA. If the SBA doesn’t issue the decision within 15 business days, the contracting officer may award the contract if you determine in writing that there’s an immediate need to award the contract. The contracting officer must include the determination in the contract file and send a written copy to the SBA Director for Government Contracting.
   
• The SBA will notify the contracting officer, the protestor, and the protested business in writing of its determination. The determination is in full effect unless an appeal is filed with the SBA Office of Hearings and Appeals and OHA overturns it.

The status protest process for each program is explained in the CFR:

• Small disadvantaged business
• HUBZone business
• Service-disabled veteran-owned business
• Women-owned small business