What happens after Small Business Administration (SBA) receives a small business size standard protest or request for a formal size determination?

SBA Small Business Size Protest Process SBA Form 355Knowing the key points of a size protest can help a company to be responsive and not lose out on a possible victory by failing to adequately complete the SBA Form 355 or failing to submit a timely response. When you are required to submit information on the SBA Form 355, you must fully complete the document before sending it to the SBA.

  • You must provide all information requested by the SBA. If not, you run the risk of getting an adverse decision against you.
  • You are responsible to make sure that your teaming partners or alleged affiliates provide requested SBA information. Failure of them to provide information does not exonerate you.

When you are required to submit information on the SBA Form 355 in response to a size protest, you must fully complete the document and all supporting material within three working days of receiving the notice of size protest. The Area Office can grant extensions but it must issue a size determination within fifteen days of receipt of protest unless the contracting agency grants an extension. There are cases where the protested company failed to provide the necessary information and the Small Business Administration ruled against it. The result was the company lost the contract and lost on appeal. When SBA receives a size protest, the SBA Area Director for Government Contracting will notify the contracting officer, the protested small business, and the protestor that the size protest has been filed.

If the protest pertains to a requirement involving SBA’s HUBZone Certification Program, the Area Director will also notify the D/HUB of the protest. If the protest pertains to a requirement set aside for WOSBs or EDWOSBs, the Area Director will also notify SBA’s Director for Government Contracting of the protest.

Timelines for Filing an SBA Size Protest

SBA size protest rules do not have a time limit for when a contracting officer can file a size protest. However, unsuccessful offerors on interested parties must file a size protest within five business days after unsuccessful bidders are notified. They must deliver the written protest to the contracting officer in person, by mail, email, or fax.

WOSB Companies

If the small business size standard protest pertains to a requirement set aside for WOSBs or EDWOSBs, the Area Director will also notify SBA’s Director for Government Contracting of the protest.

If the size protest pertains to a requirement involving SBA’s SBIR Program, the Area Director will also notify the Division Chief, Office of Technology. If the protest involves the size status of a concern that SBA has certified as a small disadvantaged business (SDB).

The Area Director will notify SBA’s Associate Administrator for Business Development. If SBA small business size standard protest pertains to a requirement that has been reserved for competition among eligible 8(a) BD program participants, the Area Director will notify the SBA district office servicing the 8(a) concern whose size status has been protested.

Notification to Protested Business & SBA Form 355

SBA will provide a copy of the protest to the protested small business together with SBA Form 355, Application for Small Business Size Determination, by certified mail, return receipt requested, or by any overnight delivery service that provides proof of receipt.

SBA will ask the protested concern to complete the form 355  and respond to the allegations in the protest. This is where the help of an SBA NAICS or small business size protest lawyer can be beneficial. When SBA receives a request for a formal size determination SBA will provide a blank copy of SBA Form 355 to the concern whose size is at issue.

The protested small business concern or concern whose small business NAICS size standard is at issue must return the completed SBA Form 355 and all other requested information to SBA within 3 working days from the date of receipt of the blank form from SBA.

If your company’s size status is at issue it must furnish information about its alleged affiliates to SBA, despite any third-party claims of privacy or confidentiality, because SBA will not disclose information obtained in the course of a size determination except as permitted by Federal law.

Extension to respond: SBA has the discretion to grant you an extension of time to file the form. The firm must attach to the completed SBA Form 355 its answers to the allegations contained in the protest, where applicable, together with any supporting material.

Severe Penalty for Late Submission of SBA Form 355

If a concern whose size status is at issue fails to submit a completed SBA Form 355, responses to the allegations of the protest, or other requested information within the time allowed by SBA, or if it submits incomplete information, SBA may presume that disclosure of the information required by the form or other missing information would demonstrate that the concern is other than a small business.

Obtaining Sensitive Information About Third-Party Affiliates

A concern whose size status is at issue must furnish information about its alleged affiliates to SBA, despite any third-party claims of privacy or confidentiality, because Small Business Administration will not disclose information obtained in the course of a size determination except as permitted by Federal law.

Timing of  SBA Small Business Size Determination

The SBA determines that your small business size status  “as of the date the concern submits a written self-certification that it is small to the procuring activity as part of its initial offer (or other formal response to a solicitation) which includes price.” 13 CFR 121.404(a). In the case of a procurement using the two-phase design-build selection procedures authorized by FAR 36.3, small business size status is determined as of the date the concern submits its Phase II priced offer. Size Appeal of Cox Construction Co., SBA No. SIZ-5070, at 6 (2009). See also SDVOSB Set Aside Contracts for Service-Disabled Veterans.

The SBA will determine the size status of the protested small 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 requested. If there is no size status issued within 15 business days, the contracting officer may award the contract if he or she determines 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 Area Office will also notify the contracting officer, the bid 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.

For additional information or help with a Small Business Administration size protest and SBA Form 355, call toll-free 1-866-601-5518 and speak to an SBA size protest lawyers

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