What is an SBA Size Protest? small business lawyersAn SBA size protest is a legal challenge to the agency’s decision to award a government contract because of the awardee’s alleged small business size violation. Specifically,  the protestor challenges the awardee size status by asserting and providing a legal and factual basis for the size protest.

13 CFR 121.1001 – Who Can File an SBA Size Protest Or Request a Formal Size Determination?

An interested party to the awarded contract has legal standing to file an SBA size protest. For example, if your company was an actual bidder in a procurement set aside for small businesses, you would most likely be an interested party. However, if your company has been eliminated from consideration of the award for any other reason besides the company’s size, you would not be an interested party. An example would include you being eliminated from consideration for award for being non-responsiveness, technical unacceptability of your proposal or outside of the competitive range.

On the other hand, a large business would arguably have no legal standing to file this type of bid protest since the company would not be qualified to receive an award.

The contracting officer and the SBA can also file an SBA size protest without having to meet the normal filing deadline. See 13 CFR 121.1001 for more information about interested parties and who can file a small business size protest.

Bid Protest Filing Deadlines 13 CFR 121.1004

 If you are contemplating filing an SBA size protest on a government contract award, you must file the challenge and it must be received by the contracting officer prior to the close of business on the 5th day, exclusive of Saturdays, Sundays, and legal holidays, after the contracting officer has notified the protesting party of the identity of the prospective awardee.

What happens when the protestor receives notification after business hours?

This problem occurs sometimes where the contracting officer sends an email to the protestor (unsuccessful offeror) after business hours. The question is whether it is the contracting officer’s business hours or the recipient’s business hours that count.

SBA Office of Hearings and Appeals has addressed this issue on the case of Size Appeal of Fed. Maint. Hawaii, Inc., SBA No.SIZ-5887, at 1 (2018). In that case, the contracting agency sent a notice to the awardee’s office after business hours. After business hours is usually considered as after 5PM. Therefore, the date of notification would be the next business day.

What if there is no notice of award?

According to  13 CFR 121.1004, if there is no requirement for written pre-award notice or notice of award, or where the contracting officer did not provide written notification of award, the 5-day size protest filing deadline period will commence upon oral notification by the contracting officer or authorized representative or another means (such as public announcements or other oral communications) of the identity of the apparent successful offeror.

What happens if the contracting officer receives a late size protest?

The contracting officer must still forward the size protest to the SBA. The SBA will dismiss an untimely protest. See SBA Office of Hearings and Appeals Reverses Totality of the Circumstances Test & Affiliation Analysis

SBA Size Protest Requirements.

According to 13 CFR 121.1007(b) of the SBA regulation, a small business size protest must be sufficiently specific to be considered reasonable notice as to the grounds upon which you are questioning the awardee’s small business status. In other words, you cannot simply give indications, or make general statements without some level of detail as to how you reach your conclusion. When filing your SBA size protest, you should also attach what supporting evidence you have.  See 13 CFR 121.1007(b).

Small Business Size Protest Process

When the SBA receives a small business bid protest, it will investigate the awardee’s size status. It will notify the challenged contractor and requests a response to the size protest. The awardee firm will also have to fill out SBA Form 355 and provide additional information as requested by the SBA.

The SBA area office will make a small business size determination within 15 business days of receiving the bid protest. It will then notify the protestor and the challenged company. See information about Avoiding Costly SDVOSB Joint Venture Mistakes – CFR 125.18

Note: Failure to provide the requested information to the SBA, may trigger an adverse size determination to the company defending the size protest. This is called the Adverse Inference Rule.

What is a Small Business Size Standard?

To analyze whether a company is small or other than small, the SBA will have to first apply the correct small business size standard. The measurement tool is usually by number of employees or average annual receipts. The measurement also reflects the largest size that a business (including its subsidiaries and affiliates) must be to remain certified as a small business under SBA regulation and federal government contracting programs.

Each code under the North American Industry Classification System (NAICS) drives whether your company is small or not. Your company could be small under one NAICS code and yet be large under another. This is very important when you are defending an SBA size protest. See also Consequences of Procurement Fraud Schemes & Avoiding Criminal Liability

What is the Adverse Inference Rule?

When another contractor files a small business size protest against your firm, it is your company that has to intervene and defend against the allegations. In other words, your company has the burden of proof to establish that your status meets the legal definition of being a small business. See 13 CFR121.1009(c).

When the SBA requests information during its investigation, you must provide answers to the protestor’s allegations or findings of the SBA. See also 13 CFR121.1008(c).

If you do not submit the required information or responses to the allegations in the bid protest, or even if you provide  “incomplete information,” the SBA  may draw an adverse inference that the missing information “would demonstrate that the concern is other than a small business.” See 13 CFR 121.1008(d); see also 13 CFR 121.1009(d).See also Size Appeal of Perry Johnson & Assocs., Inc., SBA No. SIZ-5943, at 12 (2018). See information about the Runway Extension Act.

Impact of Adverse SBA Size Determination

The process and regulations that govern small business size protests can be very tricky.  It is very important to understand that once the Area Office issues an adverse SBA size determination, you cannot represent your company as being small under that NAICS code for future procurements unless the SBA issues a new size determination or SBA OHA reverses the SBA’ decision.

How Do Federal Government Contractors Deal With COVID-19 Problems

If you need help with the SBA size protest process, or with a size appeal to OHA, call the government small business size standard protest attorneys at Watson & Associates, LLC at 1-866-6015518.