Regualations

yshivers on PROD1PC62 with CFR

Small Business Administration

§ 121.1008

(6) The date on which the protest was
received; and
(7) A complete address and point of
contact for the protested concern.

ceived Government contracts in excess of $5
million last year is sufficiently specific.

§ 121.1007 Must a protest of size status
relate to a particular procurement
and be specific?

§ 121.1008 What occurs after SBA receives a size protest or request for a
formal size determination?

(a) Particular procurement. A protest
challenging the size of a concern which
does not pertain to a particular procurement or sale will not be acted on
by SBA.
(b) A protest must include specific facts.
A protest must be sufficiently specific
to provide reasonable notice as to the
grounds upon which the protested concern’s size is questioned. Some basis
for the belief or allegation stated in
the protest must be given. A protest
merely alleging that the protested concern is not small or is affiliated with
unnamed other concerns does not
specify adequate grounds for the protest. No particular form is prescribed
for a protest. Where materials supporting the protest are available, they
should be submitted with the protest.
(c) Non-specific protests will be dismissed. Protests which do not contain
sufficient specificity will be dismissed
by SBA. The following are examples of
allegation specificity:

(a) When SBA receives a size protest,
the SBA Area Director for Government
Contracting, or designee, will notify
the contracting officer, the protested
concern, and the protestor that the
protest has been received. If the protest pertains to a requirement involving SBA’s HUBZone 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. If the 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) (see part
124, subpart B of this chapter) the Area
Director will notify SBA’s Director, Office of Business Development. If the
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. SBA will provide a copy of
the protest to the protested concern 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 and respond to the
allegations in the protest.
(b) When SBA receives a request for a
formal size determination in accord
with § 121.1001(b), SBA will provide a
blank copy of SBA Form 355 to the concern whose size is at issue.
(c) The protested concern or concern
whose size 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. SBA has

Example 1: An allegation that concern X is
large because it employs more than 500 employees (where 500 employees is the applicable size standard) without setting forth a
basis for the allegation is non-specific.
Example 2: An allegation that concern X is
large because it exceeds the 500 employee
size standard (where 500 employees is the applicable size standard) because a higher employment figure was published in publication
Y is sufficiently specific.
Example 3: An allegation that concern X is
affiliated with concern Y without setting
forth any basis for the allegation is non-specific.
Example 4: An allegation that concern X is
affiliated with concern Y because Mr. A is
the majority shareholder in both concerns is
sufficiently specific.
Example 5: An allegation that concern X
has revenues in excess of $5 million (where $5
million is the applicable size standard) without setting forth a basis for the allegation is
non-specific.
Example 6: An allegation that concern X
exceeds the size standard (where the applicable size standard is $5 million) because it re-

[61 FR 3286, Jan. 31, 1996, as amended at 69
FR 29206, May 21, 2004]

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§ 121.1009

13 CFR Ch. I (1–1–09 Edition)

discretion to grant 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.
(d) 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. 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 SBA will not disclose information obtained in the course of a size determination except as permitted by
Federal law.

yshivers on PROD1PC62 with CFR

[61 FR 3286, Jan. 31, 1996, as amended at 63
FR 31908, June 11, 1998; 69 FR 29207, May 21,
2004; 73 FR 56948, Oct. 1, 2008]

§ 121.1009 What are the procedures for
making the size determination?
(a) Time frame for making size determination. After receipt of a protest or a
request for a formal size determination, SBA will make a formal size determination within 10 working days, if
possible.
(b) Basis for determination. The size
determination will be based primarily
on the information supplied by the
protestor or the entity requesting the
size determination and that provided
by the concern whose size status is at
issue. The determination, however,
may also be based on grounds not
raised in the protest or request for size
determination. SBA may use other information and may make requests for
additional
information
to
the
protestor, the concern whose size status is at issue and any alleged affiliates, or other parties.
(c) Burden of persuasion. The concern
whose size is under consideration has
the burden of establishing its small
business size.
(d) Weight of evidence. SBA will give
greater weight to specific, signed, factual evidence than to general, unsup-

ported allegations or opinions. In the
case of refusal or failure to furnish requested information within a required
time period, SBA may assume that disclosure would be contrary to the interests of the party failing to make disclosure.
(e) Formal size determination. The SBA
will base its formal size determination
upon the record, including reasonable
inferences from the record, and will
state in writing the basis for its findings and conclusions.
(f) Notification of determination. SBA
will promptly notify the contracting
officer, the protestor, and the protested
offeror, as well as each affiliate or alleged affiliate, of the size determination. The notification will be by certified mail, return receipt requested, or
by any overnight delivery service that
provides proof of receipt.
(g) Results of an SBA Size Determination. (1) A formal size determination
becomes effective immediately and remains in full force and effect unless
and until reversed by OHA.
(2) A contracting officer may award a
contract based on SBA’s formal size determination.
(3) If the formal size determination is
appealed to OHA, the OHA decision on
appeal will apply to the pending procurement or sale if the decision is received before award. OHA decisions received after contract award will not
apply to that procurement or sale, but
will have future effect, unless the contracting officer agrees to apply the
OHA decision to the procurement or
sale.
(4) Once SBA has determined that a
concern is other than small for purposes of a particular procurement, the
concern cannot later become eligible
for the procurement by reducing its
size.
(5) A concern determined to be other
than small under a particular size
standard is ineligible for any procurement or any assistance authorized by
the Small Business Act or the Small
Business Investment Act of 1958 which
requires the same or a lower size standard, unless SBA recertifies the concern
to be small pursuant to § 121.1010 or
OHA reverses the adverse size determination. After an adverse size determination, a concern cannot self-certify

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