(a) This section applies to protests of a small business concern’s disadvantaged status as a prime contractor. Protests of a small business concern’s disadvantaged status as a subcontractor are processed under 19.703(a)(2). Protests of a concern’s size as a prime contractor are processed under 19.302. Protests of a concern’s size as a subcontractor are processed under 19.703(b). An offeror, the contracting officer, or the SBA may protest the apparently successful offeror’s representation of disadvantaged status if the concern is eligible to receive a benefit based on its disadvantaged status (see Subpart 19.11 and 19.1202).
(b) An offeror, excluding an offeror determined by the contracting officer to be non-responsive or outside the competitive range, or an offeror that SBA has previously found to be ineligible for the requirement at issue, may protest the apparently successful offeror’s representation of disadvantaged status by filing a protest in writing with the contracting officer. SBA regulations concerning protests are contained in 13 CFR 124, Subpart B. The protest-
(1) Must be filed within the times specified in 19.302(d)(1); and
(2) Must contain specific facts or allegations supporting the basis of protest.
(c) The contracting officer or the SBA may protest in writing a concern’s representation of disadvantaged status at any time following bid opening or notification of intended award.
(1) If a contracting officer’s protest is based on information provided by a party ineligible to protest directly or ineligible to protest under the timeliness standard, the contracting officer must be persuaded by the evidence presented before adopting the grounds for protest as his or her own.
(2) The SBA may protest a concern’s representation of disadvantaged status by filing directly with its Assistant Administrator for Small Disadvantaged Business Certification and Eligibility and notifying the contracting officer.
(d) The contracting officer shall return premature protests to the protestor. A protest is considered to be premature if it is submitted before bid opening or notification of intended award. SBA normally will not consider a postaward protest. SBA may consider a postaward protest in its discretion where it determines that an SDB determination after award is meaningful (e.g., where the contracting officer agrees to terminate the contract if the protest is sustained).
(e) Upon receipt of a protest that is not premature, the contracting officer shall withhold award and forward the protest to-
Small Business Administration
Assistant Administrator for SDBCE
409 Third Street, SW
Washington, DC 20416.
The contracting officer shall send to SBA-
(1) The written protest and any accompanying materials;
(2) The date the protest was received;
(3) A copy of the protested concern’s representation as a small disadvantaged business, and the date of such representation; and
(4) The date of bid opening or date on which notification of the apparently successful offeror was sent to unsuccessful offerors.
(f) When the contracting officer makes a written determination that award must be made to protect the public interest, award may be made notwithstanding the protest.
(g) The SBA Assistant Administrator for Small Disadvantaged Business Certification and Eligibility will notify the protestor and the contracting officer of the date the protest was received and whether it will be processed or dismissed for lack of timeliness or specificity. For protests that are not dismissed, the SBA will within 15 working days after receipt of the protest, determine the disadvantaged status of the challenged offeror and will notify the contracting officer, the challenged offeror, and the protestor. Award may be made on the basis of that determination. The determination is final for the purposes of the instant acquisition, unless it is appealed and-
(1) The contracting officer receives the SBA’s decision on the appeal before award; or
(2) The contracting officer has agreed to terminate the contract, as appropriate, based on the outcome of the appeal (see 13 CFR 124, Subpart B).
(h) If the contracting officer does not receive an SBA determination within 15 working days after the SBA’s receipt of the protest, the contracting officer shall presume that the challenged offeror is disadvantaged and may award the contract, unless the SBA requests and the contracting officer grants an extension to the 15-day response period.
(i) An SBA determination may be appealed by-
(1) The party whose protest has been denied;
(2) The concern whose status was protested; or
(3) The contracting officer.
(j) The appeal must be filed with the SBA’s Administrator or designee within five working days after receipt of the determination. If the contracting officer receives the SBA’s decision on the appeal before award, the decision shall apply to the instant acquisition. If the decision is received after award, it will not apply to the instant acquisition (but see paragraph (g)(2) of this section).
