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 § 11.703-2, 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 § 11.703-2, 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 § 11.703-2 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 infor

mation: (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 appel

lant.

(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 Ap

peals 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 subparagraph (4) of this paragraph. Thereafter, the Board will notify all interested parties of its decision.

(g) The determination of the appropriate classification of a product or serv

ice establishing the small business definition to be used in a specific procurement shall be made by the contracting officer. The contracting officer's determination of the appropriate classification of a product or service shall be final unless appealed in the manner prescribed in paragraph (h) of this § 1-1.703-2.

(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 § 1-1.703-2.

[36 F.R. 16656, Sept. 25, 1971] § 1-1.704 Agency

program direction and operation. [Reserved for us by individual agencies]

It is a requirement of the Small Business Act that SBA and procurement agencies consult and cooperate in carrying out the policies of that Act. Such consultation and cooperation is particularly significant in the areas and programs described in §§ 1-1.705-2 through 1-1.705-7.

§ 1-1.705-2 SBA representatives.

SBA may assign one or more representatives (hereinafter referred to as "SBA representatives") on a full- or 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 con

cerns.

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

20-126 0-74——5

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 § 1-1.706, 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.

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, as may be agreed upon between SBA and the contracting officer. The policies and procedures governing the award of such contracts are set forth in § 1-1.713. [37 FR 1037, Jan. 22, 1972]

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

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

(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. Subject to any applicable preference for labor surplus area set-asides as provided in § 1-1.802, any individual procurement or class of procurements, or an appropriate part thereof, shall be set aside for the exclusive participation of small business concerns when such action (1) is unilaterally determined by a contracting officer, or (2) is jointly determined by an SBA representative and a contracting officer, upon initiation by either party, 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.

(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.

[29 F.R. 10104, July 24, 1964, as amended at 33 F.R. 10393, July 20, 1968]

§ 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, 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 two working days to appeal any such disapproval to the head of the procuring activity or his designee for decision. During consideration of such

appeal there shall be full and free interchange of all pertinent facts between the SBA representative and the procuring activity concerned. Within one working day after receipt of a decision from the head of the procuring activity or his designee disapproving a recommended set-aside, the SBA representative may request the contracting officer to suspend procurement actions affected by the recommended set-aside pending a further appeal by the Administrator of SBA to the head of the agency concerned for determination, SBA shall be allowed seven working days after making any such request within which (i) the Administrator of SBA may appeal the decision of the head of the procuring activity (or his designee) to the head of the agency concerned, and (ii) to notify the contracting officer whether such an appeal has in fact been taken. If such notification is not received by the contracting officer within the seven-day period, it shall be deemed that the SBA request to suspend procurement action has been withdrawn and that no appeal to the head of the agency was taken. Where an appeal to the head of the agency concerned has been taken and the contracting officer has been notified of that fact within the seven-day period, the head of the procuring activity will, in accordance with agency procedures, forward through appropriate channels to the head of the agency a full justification of his decision.

(2) Any procurement action affected by a set-aside recommendation which has been disapproved by the contracting officer and appealed by the SBA representative shall be suspended pending the decision of the head of the procuring activity or his designee. If the decision sustains the disapproval and if the SBA representative requests further suspension in accordance with (1) of this § 11.706-2(a), the suspension shall continue until (i) the SBA appeal is deemed to have been withdrawn (as provided in (1) of this § 1-1.706-2(a), or (ii) the matter is determined by the head of the agency concerned. Such suspension shall not apply, however, to any particular procurement action which, as determined by the contracting officer, must, in order to protect the public interest, be initiated without delay and as to which he inserts in the contract file a statement signed by him setting forth the facts and circumstances justifying the determination. The contracting officer shall promptly

notify the SBA representative of any procurement action initiated pursuant to the preceding sentence by supplying him with a copy of the justification.

(b) None of the following is, in itself, sufficient cause for not making a setaside:

(1) A large percentage of previous procurements of the item in question has been placed with small business

concerns.

(2) The item to be purchased is on an established planning list under the Industrial Readiness Planning Program, except that a total set-aside shall not be authorized when one or more large business Planned Emergency Producers of the item desire to participate in the procurement.

(3) The item to be purchased is on a Qualified Products List, except that a total set-aside shall not be authorized when the products of one or more large businesses are on the Qualified Products List unless it has been confirmed that none of such large businesses desires to participate in the procurement.

(4) A period of less than 30 days from date of issuance of invitations for bids or requests for proposals is prescribed for the submission of the bids or proposals.

(5) The procurement is classified.

(6) Small business concerns are receiving a fair proportion of the total contracts for property or services.

(7) A class set-aside of the item or service concerned has been made at some other procuring activity.

(8) The item will be described by "brand name or equal."

(c) In approving a proposed class setaside, the contracting officer shall make sure that the set-aside determination (1) specifically identifies the items or services subject thereto; (2) provides that it will, at least once each year, be reviewed jointly by an SBA representative and the procuring activity to determine whether it should be withdrawn (see § 1-1.706-3 for withdrawal procedures); (3) provides that it does not apply to any individual procurement for which small purchase procedures are to be used; and (4) provides that such class set-aside applies only to the procuring activity making or participating in the set-aside determination. Any class of procurements proposed to be totally set aside shall satisfy the requirements of § 1-1.706-5 (a). With respect to any class of procurements proposed to be

(a) Each individual procurement governed by a class set-aside shall be carefully reviewed to insure that any changes in the magnitude of anticipated requirements, specifications for the items or services, delivery requirements, or competitive market conditions, since the initial approval of the class set-aside, are not of such material nature as to result in the probable payment of an unreasonable price by the Government or in a change in small business capability.

(b) If, prior to the award of a contract involving an individual or class set-aside for small business, the contracting officer considers the procurement of the setaside portion from a small business concern would be detrimental to the public interest (e.g., because of unreasonable price), the contracting officer may withdraw either a joint or a unilateral setaside determination. In the case of (1) a joint set-aside determination, or (2) a unilateral set-aside determination where SBA has designated either a resident or a liaison representative for the agency, the contracting officer shall initiate the withdrawal thereof by giving notice, containing the reason therefor, to the SBA representative (by telephone where liaison representatives are involved). Similarly, a class set-aside may be modified so as to withdraw one or more individual procurements therefrom. If the SBA representative does not agree to a withdrawal or modification, the action may be appealed in accordance with the procedures set forth in § 1-1.706-2(a). This procedure is not applicable to automatic dissolutions of set-asides as provided in § 1-1.706-7. In all cases where SBA has not designated either resident or liaison representatives for the agency, the contracting officer shall withdraw a unilateral set-aside determination where he considers that procurement of the setaside from a small business concern would be detrimental to the public interest (e.g., because of unreasonable price).

(c) A statement supporting any withdrawal or modification of a set-aside