principal office of the protested concern, not including its affiliates, is located. A protest by a contracting officer shall be timely for the purpose of the procurement in question, whether filed before or after award.

(c) Upon receipt of a protest, the SBA district director or his delegatee will immediately notify the contracting officer and the protestant of the date such protest was received and that the size of the concern being protested is being considered by SBA. The SBA district director or his delegatee shall also immediately advise the protested bidder or offeror of the receipt of the protest and shall forward to the protested bidder or offeror a copy of the protest and a blank SBA Form 355, Application for Small Business Determination, by certified mail with return receipt requested. Such bidder or offeror must, within 3 working days after receiving the copy of the protest and the SBA Form 355, file the completed form as directed by SBA, and must attach thereto a statement in answer to the allegations in the letter of protest, together with evidence to support its position. If such bidder or offeror does not submit the completed SBA Form 355 with the attached statement and supporting evidence within the filing period provided herein, or within any additional period of time granted by SBA for cause, the SBA will rule that the protested concern is other than a small concern.

(d) SBA will, within 10 working days, if possible, after receipt of a protest, investigate and determine the small business status of the protested bidder or offeror and, by certified mail with return receipt requested, notify the contracting officer, the protestant, and the protested bidder or offeror of its decision. Such decision shall be final unless appealed in accordance with paragraph (f) of this § 1-1.703-2 and the procuring activity is notified of the appeal prior to award. If an award has been made prior to the time the contracting officer receives notice of the appeal, the contract awarded shall be presumed to be valid and any determination rendered by SBA concerning the small business status of

the concern involved shall be considered in future procurements.

(e) Following receipt by the contracting officer of a protest as set forth in paragraphs (a) and (b) of this § 1-1.703-2, procurement action by the procuring activity shall be suspended pending SBA's determination of the status of the protested bidder or offeror or the expiration of the 10-day period prescribed in paragraph (d) of this § 1-1.703-2, unless unusual conditions make it necessary that an award be made. If SBA's determination is not received by the contracting officer within 10 working days after SBA's receipt of the protest, the contracting officer shall ascertain when such determination can be expected. In cases where further delay in awarding the contract would be disadvantageous to the Government, it shall be presumed that the protested bidder or offeror is a small business concern.

(f)(1) An appeal from a size determination made by an SBA Regional Director or his delegatee may be taken by: (i) Any concern or other interested party which has protested the small business status of another concern pursuant to paragraphs (a) and (b) of this § 1-1.703-2 and whose protest has been denied by the SBA Regional Director or his delegatee; (ii) any concern or other interested party which has been adversely affected by the decision of the SBA Regional Director or his delegatee; or (iii) the SBA Associate Administrator for the SBA program involved. Written notices of appeal shall be addressed to the Chairman, Size Appeals Board, Small Business Administration, Washington, DC 20416. An appeal from a decision concerning the small business status of a bidder or offeror involved in a pending procurement may be taken within 5 working days after receipt of a decision by an SBA Regional Director or his delegatee. Unless written notice of such an appeal is received by the SBA Size Appeals Board before the close of business on the fifth working day after receipt of the decision, the appellant will be deemed to have waived its rights of appeal insofar as the pending procurement is concerned.

(2) No particular form is prescribed for the notice of appeal. However, the appellant shall submit to the SBA Size Appeals Board an original and four legible copies of such notice and, to avoid time-consuming correspondence, the notice should include the following information: (i) Name and address of the concern on which the size determination was made; (ii) the character of the determination from which the appeal is taken and its date; (iii) if applicable, the IFB or contract number and date, and the name and address of the contracting officer; (iv) a concise and direct statement of the reasons why the decision of the SBA Regional Director or his delegatee is alleged to be erroneous; (v) documentary evidence in support of such allegations; and (vi) action sought by the appellant.

(3) The SBA Size Appeals Board shall promptly acknowledge receipt of the notice of appeal and shall send a copy of such notice to the appropriate SBA Regional Director or his delegatee and to the contracting officer (if a pending procurement is involved). If the appellant is not the concern whose size status is in question, the Size Appeals Board shall also send a copy of the notice of appeal to such concern. The Board shall also notify all known interested parties that the appeal has been filed. In its discretion, the Board may also provide any of such interested parties with copies of the appellant's notice of appeal, or parts thereof, when the Board determines that this would be in the interest of fairness or would assist in the performance of its functions. After an appeal has been filed, any other interested party may file with the Board a signed statement, together with four legible copies thereof, as to why the appeal should or should not be denied. Such statement and supporting evidence shall be mailed or delivered to the SBA Size Appeals Board within 5 days of receipt of appropriate notification of appeal or other action in the proceeding unless an extension is granted for cause by the Chairman of the Board. If the appellant is the concern whose size status is in question, the Board will provide copies of such

statements and appropriate evidence submitted in connection with the appeal (or reconsideration thereof) to such appellant.

(4) The SBA Size Appeals Board will consider the appeal on the written submission of the parties. The Board, in its discretion, may also conduct an oral inquiry to assist it in arriving at the facts necessary for deciding the appeal. After consideration of all relevant information, the Board will promptly render a decision which will state the reason for such decision. The decision of the SBA Size Appeals Board will be predicated upon the entire record and the Board will state in writing the basis for its findings and conclusions. The Chairman of the Board will promptly notify, in writing, the appellant and other interested parties (including the contracting officer if a pending procurement is involved) of the Board's decision, together with the reasons therefor.

(5) Within no more than 5 working days following a decision in a size appeal case, any interested party may petition the SBA Size Appeals Board for reconsideration upon presentation of appropriate justification therefor. The request for reconsideration may be in any form, with an original and four legible copies. Grounds for reconsideration will be (i) a material error of fact in the original decision, or (ii) relevant information not previously considered by the Board or relevant information not previously available to any of the parties involved. When a request for reconsideration is made by any of the interested parties, such requesting party must demonstrate to the Board that the grounds for reconsideration involve facts or information which were not previously presented to the Board through no fault or omission of such party. The Board will notify all interested parties that a request for reconsideration has been received.

(6) The SBA Size Appeals Board will consider the request for reconsideration upon the statement and other evidence submitted by the petitioners and any other evidence which the Board, in its discretion, deems necessary. If the Board denies the request

for reconsideration, it will notify all parties. If the request for reconsideration is granted, the Board will so notify all interested parties and will set forth a reasonable time within which the interested parties, if appropriate, may submit additional information. The Board may, in its discretion, provide interested parties with copies of appropriate information submitted by other parties where it determines that this is necessary in the interest of fairness or to better assist the Board in its factfinding functions. Following its reconsideration of the matter, the Board will promptly render its decision in the same manner as provided in paragraph (f)(4) of this section. Thereafter, the Board will notify all interested parties of its decision.

(g) The contracting officer shall determine the appropriate classification of a product or service establishing the small business definition to be used in a specific procurement. If different products or services are being procured on the same solicitation, an appropriate small business size standard shall be established for each product or service. Both the classification and the applicable size standard (number of employees, average annual receipts, etc.), pursuant to § 1-1.701, shall be set forth in each solicitation in excess of $10,000 and in each solicitation of $10,000 or less which is a small business set-aside. The contracting officer's determination shall be final unless appealed in the manner prescribed in paragraph (h) of this section.

(h) A written appeal from a product or service classification determination made by a contracting officer may be taken (1) not less than 10 working days before the bid opening date or closing date for submitting proposals or quotations when the bid opening date or closing date for the submission of proposals or quotations is more than 30 calendar days after the issuance of the invitation for bids or requests for proposals or quotations, or (2) not less than 5 working days before the bid opening date or closing date for submitting proposals or quotations when the bid opening date or closing date for the submission of proposals or

quotations is 30 calendar days or less after the issuance of the invitation for bids or request for proposals or quotations. The appeal shall be addressed to the Chairman, Size Appeals Board, Small Business Administration, Washington, DC 20416. No particular form is prescribed for the notice of appeal. However, the appellant shall submit to the SBA Size Appeals Board an original and four legible copies of such notice of appeal and, to avoid timeconsuming correspondence, the notice of appeal should include the following information: (i) The character of the determination from which the appeal is taken and its date; (ii) the number and date of the invitation for bids or request for proposals or quotations, and the name and address of the contracting officer; (iii) a concise and direct statement of the reasons why the determination of the contracting officer is alleged to be erroneous; (iv) documentary evidence to support such allegations; and (v) the action sought by the appellant. Following receipt of the appeal by the SBA Size Appeals Board, the appeal will be handled and the decision thereon will be rendered in accordance with the procedures set forth in paragraph (f) of this § 11.703-2.

[36 FR 16656, Sept. 25, 1971, as amended at 39 FR 35658, Oct. 3, 1974; 43 FR 26005, June 16, 1978]

part-time basis to any procuring activity for the purpose of carrying out SBA responsibilities under the Small Business Act. SBA representatives will comply with agency directives concerning the conduct of procurement personnel and instructions concerning release of procurement information.

§ 1-1.705-3 Screening of procurements.

(a) Individual set-asides. SBA representatives (cleared for security where classified procurements are to be screened) shall, upon request, promptly be afforded an opportunity at the procuring activity to review all proposed procurements if it is anticipated that the resulting contract or contracts will exceed $2,500 unless in the case of procurements which are not expected to exceed $10,000, the head of the procuring activity determines that such review would unduly delay the procurement process. A copy of the determination and the justification therefor shall be furnished to the SBA representative. Where it is anticipated that the resulting contract or contracts will exceed $2,500, such SBA representatives shall, upon request, promptly be afforded an opportunity to make recommendations concerning proposed procurements, including that they be exclusively or partially set aside for small business concerns.

The contracting officer shall afford the SBA representative an opportunity to recommend appropriate names of small business concerns for inclusion in lists of bidders for firms to be solicited in connection with current and future procurements.

(b) Class set-asides. SBA representatives shall be afforded an opportunity to make recommendations that current and future procurements, or portions thereof, of selected items or services, or groups of like items or services, shall be set aside as provided in § 11.706, for exclusive small business participation. Such set-asides, when approved by the contracting officer, shall be known as class set-asides. Concurrence in a class set-aside shall not be dependent upon the existence of a current procurement if future procurements can be clearly foreseen.

§ 1-1.705-4 Access to information.

Upon request, and subject to applicable security regulations, SBA representatives shall be given access to available or reasonably obtainable information, including technical data (including drawings and specifications), procurement history, bidders lists, and planned requirements immediately upon receipt by the procuring activity. The SBA representative will be furnished such other available or reasonably obtainable information as may be required for the SBA referral program.

§ 1-1.705-5 Joint small business set-asides.

The policies and procedures for joint small business set-asides, set forth in § 1-1.706, were developed cooperatively with the SBA and Government procurement agencies.

§ 1-1.705-6 Certificates of competency.

Section 1-1.708 prescribes policies and procedures governing cooperative action with SBA concerning certificates of competency.

§ 1-1.705-7 Performance of contract by SBA.

In accordance with the Small Business Act (15 U.S.C. 637(a)), in any case in which the Administrator of SBA certifies to the head of the procuring agency concerned that SBA is competent to perform any specific contract, the contracting officer is authorized, in his discretion, to award the contract to SBA upon such terms and conditions, consistent with applicable procurement regulations, may be agreed upon between SBA and the contracting officer. The policies and procedures governing the award of such contracts are set forth in § 11.713.

[37 FR 1037, Jan. 22, 1972]

as

§ 1-1.706 Procurement set-asides for small business.

§ 1-1.706-1 General.

(a) Purpose. The purpose of small business set-asides is to increase small business participation in Government procurement. The order in which the

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various kinds of set-asides are to be made is provided by the priorities set forth in the Small Business Act (15 U.S.C. 644(e));

(1) Concerns which are located in labor surplus areas, and which are also small business concerns, on the basis of a total setaside.

(2) Concerns which are small business concerns on the basis of a total set-aside.

(3) Concerns which are small business concerns, on the basis of a partial set-aside.

(4) Concerns which are located in labor surplus area concerns on the basis of a total set-aside. (See § 1-1.804-1.)

(b) Applicability. This section is applicable to small business set-aside programs of executive agencies in connection with all procurement of property and services, maintenance, repair and construction, and research and development.

(c) Implementation. Any individual procurement or class of procurements shall be set aside entirely for small business-labor surplus area concerns, for small business concerns, and (during fiscal year 1978) for public and private organizations for the handicapped and handicapped individuals eligible for assistance, as provided in the Small Business Act (15 U.S.C. 636(h)(1)). In the alternative, an appropriate part of the procurement shall be set aside for the exclusive participation of the referenced concerns, organizations, and individuals. Setasides shall be effected when it is determined to be in the interest of maintaining or mobilizing the Nation's full productive capacity, or to be in the interest of war or national defense programs, or to be in the interest of assuring that a fair proportion of Government procurement is placed with small business concerns. Determinations shall be made (1) unilaterally by a contracting officer, or (2) jointly by an SBA representative and a contracting officer, upon initiation by either party.

(d) Initiation of set-asides. Insofar as practicable, unilateral determinations initiated by a contracting officer of a procuring agency shall be used as the basis for small business set-asides rather than joint determinations by an SBA representative and a contracting officer. This, however, does not

preclude SBA from initiating with an agency a proposal for a joint determination set-aside.

(e) Set-aside priorities. (1) The setaside priorities in paragraph (a) of this section shall be followed in determining the type of set-aside to be employed. Individual procurements shall be reviewed by the contracting officer to determine if they can be set aside:

(i) Totally for small business-labor surplus area concerns (see § 1-1.7065(a)).

(ii) Totally for small business concerns where a total set-aside for small business-labor surplus area concerns cannot be made (see § 1-1.706-5(a)).

(iii) Partially for small business concerns where a total set-aside for small business concerns cannot be made (see § 1-1.706-6).

(iv) Totally for labor surplus area concerns where a partial set-aside for small business concerns cannot be made (see § 1-1.804).

(2) If it is determined that the procurement cannot be set aside in accordance with any of the set-aside priorities in paragraph (e)(1) of this section, the procurement may be made without regard to those priorities.

(f) Record of contract actions. The record of contract actions (see § 11.313) shall set forth the factual basis for the contracting officer's decision regarding the type of set-aside selected or the decision not to make a set-aside.

[29 FR 10104, July 24, 1964, as amended at 33 FR 10393, July 20, 1968; 43 FR 26006, June 16, 1978]

§ 1-1.706-2 Review of SBA set-aside proposals.

(a)(1) When an SBA representative has recommended that all, or a portion, of an individual procurement or class of procurements be set aside for small business-labor surplus area concerns or for small business concerns, the contracting officer (or other designated representative of the procurement agency) shall promptly either (i) concur in the recommendation or (ii) disapprove the recommendation, stating in writing his reasons for disapproval. The SBA representative shall be allowed 2 workdays to appeal any such disapproval to the head of the