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(3) Invitations for bids or requests tors, should be referred to the nearest for proposals shall be sent to all firms SBA office for management assist. on the appropriate mailing list except ance, counseling, financial assistance, that where less than a complete list is and other programs of assistance 25 used pursuant to § 1-2.205-4, a pro may be appropriate. rata number of small business con (15) An offer submitted by a small cerns shall be solicited.

business concern that is otherwise (4) Proposed procurements and con qualified to perform a specific Governtract awards shall be publicized in the ment contract but is determined to be "Commerce Business Daily" in accord- ineligible under the provisions of the ance with Subpart 1-1.10.

Walsh-Healey Public Contracts Act (5) Procurement of property and shall be referred to SBA. The Adminservices shall be divided into reason istration may certify that the concern ably small lots (not less than economic is eligible to receive and perform the production runs) in order to permit contract (see § 1-1.708). bidding on quantities less than the (16) To the extent practicable, work total requirements.

to be performed which exceeds the (6) The maximum amount of time maximum amount of any contract for practicable (see $ 1.202-1) shall be al which a surety may be guaranteed lowed for preparation and submission against loss under 15 U.S.C. 694(b) of bids and proposals.

shall be placed so that more than one (7) Delivery schedules shall be estab small business concern may perform lished on a realistic basis which will the work. encourage small business participation (17) Public and private organizations to the extent consistent with the for the handicapped and handicapped actual requirements of the Govern individuals are eligible to participate ment.

in small business set-asides (see Small (8) Applicable specifications, plans, Business Act (15 U.S.C. 636(h)(1)). and drawings either shall be furnished (18) A small business concern that is with invitations for bids and requests qualified to receive and perform a spe for proposals or, when not so fur cific Government contract but is de nished, information as to locations termined by the contracting officer to where they may be obtained or exam be nonresponsible under the provi. ined shall be furnished.

sions of § 1-1.1203, may be certified to (9) Procurements shall be set aside be competent (as to any or all elefor exclusive participation by small ments of responsibility) by SBA (see business concerns which are also labor 8 1-1.708) under the provisions of the surplus area concerns or for small Small Business Act (15 U.S.C. business concerns in accordance with 637(b)(7)(A)). § 1-1.706.

(29 FR 10104, July 24, 1964, as amended at (10) In the event of equal low bids,

36 FR 3117. Feb. 18, 1971; 43 FR 26005, June awards shall be made in accordance 16, 1978) with the preferences in § 1-2.407-6.

(11) Subcontracting to small busi. $ 1-1.703 Determination of status as a ness concerns shall be encouraged in small business concern. accordance with § 1-1.710.

(12) Procurement agencies and SBA § 1-1.703-1 Representation by bidder or are responsible for consulting and co

offeror. operating in carrying out the purposes (a) A concern must be a small busiof the Small Business Act, as amended ness concern at the time of the open(15 U.S.C. 631-647), in accordance with ing of bids or the closing date for the § 1-1.705.

submission of initial offers and at the (13) Placement of small purchases time of award in order to be eligible with small business concerns shall be for a preference which requires status encouraged (see § 1-3.602).

as a small business concern. (14) Small business firms seeking (b) A representation by a bidder or Government contracts, but found to offeror that he is a small business conlack qualifications as prime contrac- cern shall be accepted as conclusive by

the contracting officer regarding the bidder or offeror on a particular prostatus of the concern with respect to a curement by sending or delivering a specific solicitation, except as provided protest, as defined in paragraph (b) of in paragraphs (c), (d), and (e) of this this § 1-1.703-2, to the contracting ofsection.

ficer responsible for the particular (c)(1) A bidder or offeror which procurement. Any contracting officer meets the criteria in § 1-1.701 and has who receives a timely protest, or who not been determined by the SBA to be wishes to question the small business ineligible may represent that he is a status of a bidder or offeror himself, small business concern in the submis- shall promptly forward such protest sion of a bid or offer in connection (or submit his protest) to the SBA diswith a specific solicitation.

trict office serving the geographical (2) A representation by a bidder or area in which the principal office of offeror that he is a small business con the protested concern, not including cern is not conclusive with respect to its affiliates, is located. SBA. If a representation is challenged,

(b)(1) As used in this section, "proSBA will determine whether the

test” means a statement by telephone bidder or offeror is a small business

or in writing from any bidder or ofconcern.

feror on a particular procurement (or (3) A bidder or offeror shall not be

from any other interested party) allegeligible for an award as a small busi

ing that another bidder or offeror on ness concern unless he represented in

such procurement is not a small busigood faith that he was a small busi

ness concern. The statement shall conness concern at the time of the open

tain the basis for the protest, together ing of bids or the closing date for the

with specific detailed evidence in supsubmission of initial offers (see § 1

port of the protestant's claim. In order 2.405(b) regarding minor informalities

to apply to the procurement in quesand irregularities in bids).

tion, such protest must be filed prior (4) If a contracting officer has cause

to the close of business on the fifth to question the veracity of a self-certi

day (exclusive of Saturdays, Sundays, fication, he shall refer the eligibility

and legal holidays) after the bid openissue to the SBA by filing a formal

ing or the date for submission of proprotest pursuant to § 1-1.703-2.

posals, except that in the case of nego(d) The small business status of a

tiated procurements, a protest may be bidder or offeror may be challenged

filed within 5 days (exclusive of Saturprior to award even though SBA previ

days, Sundays and legal holidays) ously has ruled that the concern is a

after receipt from the contracting offismall business concern at the time of

cer of notification of the identity of the opening of bids or the closing date

the offeror being protested. Such for the submission of initial offers. In

filing must be delivered to the conthe event of such a challenge, SBA

tracting officer by hand, telegram, or will make a further determination re

mail within the 5-day period allotted. garding the status of the concern.

A protest shall be considered timely if (e) A concern cannot become eligible

made by telephone to the contracting for an award with respect to a specific

officer within the 5-day period allotcontract by taking action to constitute

ted, and the contracting officer thereitself a small business after SBA has determined that the concern was not a

after receives a confirming letter (i)

within such 5-day period, or (ii) postsmall business concern at the time of

marked no later than 1 day after the opening of bids or the closing date for

date of such telephone protest. the submission of initial offers.

(2) The contracting officer may at (43 FR 26005, June 16, 1978)

any time after the bid opening or the

date for the submission of proposals § 1-1.703-2 Protest regarding small busi

question the small business status of ness status.

any bidder or offeror for the purpose (a) Any bidder or offeror or other in- of a particular procurement by filing a terested party may challenge the written protest with the SBA district small business status of any other office serving the area in which the principal office of the protested con- the concern involved shall be considcern, not including its affiliates, is lo- ered in future procurements. cated. A protest by a contracting offi (e) Following receipt by the concer shall be timely for the purpose of tracting officer of a protest as set the procurement in question, whether forth in paragraphs (a) and (b) of this filed before or after award.

§ 1-1.703-2, procurement action by the (c) Upon receipt of a protest, the procuring activity shall be suspended SBA district director or his delegatee pending SBA's determination of the will immediately notify the contract status of the protested bidder or ofing officer and the protestant of the feror or the expiration of the 10-day date such protest was received and period prescribed in paragraph (d) of that the size of the concern being pro- this § 1-1.703-2, unless unusual conditested is being considered by SBA. The tions make it necessary that an award SBA district director or his delegatee be made. If SBA's determination is not shall also immediately advise the pro received by the contracting officer tested bidder or offeror of the receipt within 10 working days after SBA's reof the protest and shall forward to the ceipt of the pro-est, the contracting protested bidder or offeror a copy of officer shall ascertain when such dethe protest and a blank SBA Form termination can be expected. In cases 355, Application for Small Business where further delay in awarding the Determination, by certified mail with contract would be disadvantageous to return receipt requested. Such bidder the Government, it shall be presumed or offeror must, within 3 working days that the protested bidder or offeror is after receiving the copy of the protest a small business concern. and the SBA Form 355, file the com- (f)(1) An appeal from a size determi. pleted form as directed by SBA, and nation made by an SBA Regional Dimust attach thereto a statement in rector or his delegatee may be taken answer to the allegations in the letter by: (i) Any concern or other interested of protest, together with evidence to party which has protested the small support its position. If such bidder or business status of another concern offeror does not submit the completed pursuant to paragraphs (a) and (b) of SBA Form 355 with the attached this § 1-1.703-2 and whose protest has statement and supporting evidence been denied by the SBA Regional Diwithin the filing period provided rector or his delegatee; (ii) any conherein, or within any additional period cern or other interested party which of time granted by SBA for cause, the has been adversely affected by the deSBA will rule that the protested con- cision of the SBA Regional Director or cern is other than a small concern. his delegatee; or (iii) the SBA Asso

(d) SBA will, within 10 working days, ciate Administrator for the SBA proif possible, after receipt of a protest, gram involved. Written notices of investigate and determine the small appeal shall be addressed to the Chairbusiness status of the protested bidder man, Size Appeals Board, Small Busior offeror and, by certified mail with ness Administration, Washington, DC return receipt requested, notify the 20416. An appeal from a decision concontracting officer, the protestant, cerning the small business status of a and the protested bidder or offeror of bidder or offeror involved in a pending its decision. Such decision shall be procurement may be taken within 5 final unless appealed in accordance working days after receipt of a deciwith paragraph (f) of this § 1-1.703-2 sion by an SBA Regional Director or and the procuring activity is notified his delegatee. Unless written notice of of the appeal prior to award. If an such an appeal is received by the SBA award has been made prior to the time Size Appeals Board before the close of the contracting officer receives notice business on the fifth working day of the appeal, the contract awarded after receipt of the decision, the appelshall be presumed to be valid and any lant will be deemed to have waived its determination rendered by SBA con rights of appeal insofar as the pending cerning the small business status of procurement is concerned.

(2) No particular form is prescribed statements and appropriate evidence for the notice of appeal. However, the submitted in connection with the appellant shall submit to the SBA Size appeal (or reconsideration thereof) to Appeals Board an original and four such appellant. legible copies of such notice and, to (4) The SBA Size Appeals Board will avoid time-consuming correspondence, consider the appeal on the written the notice should include the follow submission of the parties. The Board, ing information: (i) Name and address in its discretion, may also conduct an of the concern on which the size deter- oral inquiry to assist it in arriving at mination was made; (ii) the character the facts necessary for deciding the of the determination from which the appeal. After consideration of all releappeal is taken and its date; (iii) if ap- vant information, the Board will plicable, the IFB or contract number promptly render a decision which will and date, and the name and address of state the reason for such decision. The the contracting officer; (iv) a concise decision of the SBA Size Appeals and direct statement of the reasons Board will be predicated upon the why the decision of the SBA Regional entire record and the Board will state Director or his delegatee is alleged to in writing the bas.'s for its findings and be erroneous; (v) documentary evi. conclusions. The Chairman of the dence in support of such allegations; Board will promptly notify, in writing, and (vi) action sought by the appel the appellant and other interested lant.

parties (including the contracting offi(3) The SBA Size Appeals Board cer if a pending procurement is inshall promptly acknowledge receipt of volved) of the Board's decision, togeththe notice of appeal and shall send a er with the reasons therefor. copy of such notice to the appropriate (5) Within no more than 5 working SBA Regional Director or his delega- days following a decision in a size tee and to the contracting officer (if a appeal case, any interested party may pending procurement is involved). If petition the SBA Size Appeals Board the appellant is not the concern whose for reconsideration upon presentation size status is in question, the Size Ap- of appropriate justification therefor. peals Board shall also send a copy of The request for reconsideration may the notice of appeal to such concern. be in any form, with an original and The Board shall also notify all known four legible copies. Grounds for reconinterested parties that the appeal has sideration will be (i) a material error been filed. In its discretion, the Board of fact in the original decision, or (ii) may also provide any of such interest relevant information not previously ed parties with copies of the appel- considered by the Board or relevant lant's notice of appeal, or parts there. information not previously available of, when the Board determines that to any of the parties involved. When a this would be in the interest of fair request for reconsideration is made by ness or would assist in the perform any of the interested parties, such reance of its functions. After an appeal questing party must demonstrate to has been filed, any other interested the Board that the grounds for reconparty may file with the Board a signed sideration involve facts or information statement, together with four legible which were not previously presented copies thereof, as to why the appeal to the Board through no fault or omisshould or should not be denied. Such sion of such party. The Board will statement and supporting evidence notify all interested parties that a reshall be mailed or delivered to the quest for reconsideration has been reSBA Size Appeals Board within 5 days ceived. of receipt of appropriate notification (6) The SBA Size Appeals Board will of appeal or other action in the pro consider the request for reconsiderceeding unless an extension is granted ation upon the statement and other for cause by the Chairman of the evidence submitted by the petitioners Board. If the appellant is the concern and any other evidence which the whose size status is in question, the Board, in its discretion, deems necesBoard will provide copies of such sary. If the Board denies the request

for reconsideration, it will notify all quotations is 30 calendar days or less parties. If the request for reconsider after the issuance of the invitation for ation is granted, the Board will so bids or request for proposals or quotanotify all interested parties and will tions. The appeal shall be addressed to set forth a reasonable time within the Chairman, Size Appeals Board, which the interested parties, if appro- Small Business Administration, Washpriate, may submit additional informa- ington, DC 20416. No particular form tion. The Board may, in its discretion, is prescribed for the notice of appeal. provide interested parties with copies However, the appellant shall submit to of appropriate information submitted the SBA Size Appeals Board an origiby other parties where it determines nal and four legible copies of such that this is necessary in the interest of notice of appeal and, to avoid timefairness or to better assist the Board consuming correspondence, the notice in its factfinding functions. Following of appeal should include the following its reconsideration of the matter, the information: (i) The character of the Board will promptly render its deci- determination from which the appeal sion in the same manner as provided is taken and its date; (ii) the number in paragraph (f)(4) of this section. and date of the invitation for bids or Thereafter, the Board will notify all request for proposals or quotations, interested parties of its decision.

and the name and address of the con(g) The contracting officer shall de

tracting officer; (iii) a concise and termine the appropriate classification

direct statement of the reasons why of a product or service establishing the

the determination of the contracting small business definition to be used in

officer is alleged to be erroneous; (iv) a specific procurement. If different documentary evidence to support such products or services are being pro

allegations; and (v) the action sought cured on the same solicitation, an ap

by the appellant. Following receipt of propriate small business size standard

the appeal by the SBA Size Appeals shall be established for each product

Board, the appeal will be handled and or service. Both the classification and

the decision thereon will be rendered the applicable size standard (number

in accordance with the procedures set of employees, average annual receipts,

forth in paragraph (f) of this $ 1etc.), pursuant to § 1-1.701, shall be set

1.703-2. forth in each solicitation in excess of (36 FR 16656, Sept. 25, 1971, as amended at $10,000 and in each solicitation of

39 FR 35658, Oct. 3, 1974; 43 FR 26005, June $10,000 or less which is a small busi. 16, 1978) ness set-aside. The contracting officer's determination shall be final § 1-1.704 Agency program direction and unless appealed in the manner pre

operation. (Reserved for use by individ. scribed in paragraph (h) of this sec ual agencies) tion. (h) A written appeal from a product 81

$ 1-1.705 Cooperation with the Small or service classification determination

Business Administration. made by a contracting officer may be

$ 1-1.705-1 General. taken (1) not less than 10 working days before the bid opening date or It is a requirement of the Small closing date for submitting proposals Business Act that SBA and procureor quotations when the bid opening ment agencies consult and cooperate date or closing date for the submission in carrying out the policies of that of proposals or quotations is more Act. Such consultation and cooperathan 30 calendar days after the issu- tion is particularly significant in the ance of the invitation for bids or re- areas and programs described in $$ 1quests for proposals or quotations, or 1.705-2 through 1-1.705-7. (2) not less than 5 working days before the bid opening date or closing date

§ 1-1.705-2 SBA representatives. for submitting proposals or quotations SBA may assign one or more reprewhen the bid opening date or closing sentatives (hereinafter referred to as date for the submission of proposals or “SBA representatives") on a full- or

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