Government Contracts Monitor

Better Late Than Never! Proposed Rule Amends FAR to Finally Implement New SBA Protest Procedures

April 2, 2013

The FAR Council recently issued a proposed rule to amend the Federal Acquisition Regulation (FAR) to implement the Small Business Administration’s (SBA) revisions to its small business size and status protest and appeal procedures.  Although SBA’s revisions to its protest and appeals procedures are not new – they were issued over 2 years ago – the amendments to the FAR are necessary to eliminate conflicting regulations.

The proposed rule will amend FAR 19.302 to increase -- from 10 to 15 business days -- the amount of time SBA has to make a size determination after receiving a protest.  Additionally, FAR 19.302 will be amended to (i) clarify that the contracting officer (CO) has the authority to extend the amount of time needed by the SBA to make a size determination; and (ii) provide the CO with guidance on actions he or she can take in the event the size or status determination is not received within 15 days.  FAR 19.302 will also explain that SBA’s Office of Hearings and Appeals (OHA) may, within its discretion, accept an appeal from a size determination and that SBA may reopen a formal size determination to correct an error or mistake if it is within the appeal period and no appeal has been filed with OHA.  The proposed rule would also require the CO to consider whether, when a post-award appeal is filed, contract performance can be suspended until an OHA judge renders a decision.  The proposed rule will allow the CO to terminate the contract if OHA finds a protested concern to be ineligible.  And in the event the CO does not terminate the contract, the CO may not exercise the next option or issue any further task or delivery orders.

The proposed rule also includes revisions to FAR 19.306, 19.307, and 19.308 – the sections regarding protesting a concern’s status as a historically underutilized business zone (HUBZone) small business concern, a service-disabled veteran-owned small business concern (SDVOSB), and an economically disadvantaged women-owned small business concern (EDWOSB), and a women-owned small business concern (WOSB).  These revisions detail the type of information that must be included in a protest, the timeframe for submitting a protest, the actions the CO must take during the process, and, in the event that a concern is found ineligible, what must happen before it can represent itself as falling within the relevant category in the future.

Finally, the proposed rule will amend FAR 19.303 to clarify that the CO must select the appropriate North American Industry Classification System (NAICS) code; explain who may appeal a CO’s NAICS code decision; require the CO to notify the public of the existence of a NAICS code appeal; and provide that SBA may file a NAICS code appeal at any time before offers are due.

Comments are due May 6, 2013.  Instructions for submitting comments can be found in the proposed rule. 

 

Katie Calogero is the attorney responsible for the content of this article.