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are restricted to small business concerns.
§ 1-1.701-10 Base maintenance.
"Base maintenance” means furnishing at an installation within the several States, Puerto Rico, Virgin Islands, or the District of Columbia three or more of the following services: Janitorial and custodial services, protective guard services, commissary services, fire prevention services, refuse collection services, safety engineering services, messenger services, grounds main tenance and landscaping services, and air-conditioning and refrigeration maintenance: Provided, however, That whenever the contracting officer determines prior to the issuance of bids that the estimated value of one of the foregoing services constitutes more than 50 percent of the estimated value of the entire contract, the contract shall not be classified as base mainte. nance but in the industry in which such service is classified. [32 FR 2626, Feb. 8, 1967) 8 1-1.701-11 Differentials.
When a concern which has 50 percent or more of its annual sales or receipts attributable to business activity within one of the States or nonforeign areas set forth herein, then, whenever the term “annual sales or annual receipts" is used in any size definition contained in this subpart, such annual receipts, average annual receipts, assets, net worth, or average net income of the concern (not including its affiliates), shall be reduced by the percentage prescribed for that State or area as follows:
order to preserve free competitive enterprise; and to place with small business concerns a fair proportion of the total Government purchases and contracts for property and services (including contracts for maintenance, repair, construction, and research and development).
(b) Specific policies. The following specific small business policies shall be followed by procurement agencies in order to further the general policy stated in (a) of this § 1-1.702:
(1) Small business concerns shall be afforded an equitable opportunity to compete for prime contracts and subcontracts.
(2) Bidders mailing lists (see $ 12.205) shall include: (i) All established and potential small business concerns, and (ii) potential small business concerns that are also potential labor surplus area concerns. In either case, concerns shall have made acceptable applications for inclusion or appear from other information, including recommendations by SBA representatives, to be qualified for inclusion. Prior to the issuance of invitations for bids and within the framework of the time available, contracting officers should make every reasonable effort to find additional small business concerns. This effort should include contacts with SBA where there is no local SBA representative. The requirement to locate additional concerns may be omitted where bidders lists are excessively long and only a portion of the concerns on the list will be solicited (see subparagraph (3) of this para. graph (b) and § 1-2.205-4).
(3) Invitations for bids or requests for proposals shall be sent to all firms on the appropriate mailing list except that where less than a complete list is used pursuant to § 1-2.205-4, a pro rata number of small business concerns shall be solicited.
(4) Proposed procurements and contract awards shall be publicized in the “Commerce Business Daily” in accordance with Subpart 1-1.10.
(5) Procurement of property and services shall be divided into reasonably small lots (not less than economic production runs) in order to permit bidding on quantities less than the total requirements.
(6) The maximum amount of time against loss under 15 U.S.C. 694(b) practicable (see $ 1.202-1) shall be al- shall be placed so that more than one lowed for preparation and submission small business concern may perform of bids and proposals.
the work. (7) Delivery schedules shall be estab (17) Public and private organizations lished on a realistic basis which will for the handicapped and handicapped encourage small business participation individuals are eligible to participate to the extent consistent with the
in small business set-asides (see Small actual requirements of the Govern Business Act (15 U.S.C. 636(h)(1)). ment.
(18) A small business concern that is (8) Applicable specifications, plans,
qualified to receive and perform a speand drawings either shall be furnished cific Govern
cific Government contract but is dewith invitations for bids and requests
termined by the contracting officer to for proposals or, when not so fur
be nonresponsible under the provinished, information as to locations
sions of § 1-1.1203, may be certified to where they may be obtained or exam
be competent (as to any or all eleined shall be furnished.
ments of responsibility) by SBA (see (9) Procurements shall be set aside
§ 1-1.708) under the provisions of the for exclusive participation by small
Small Business Act (15 U.S.C. business concerns which are also labor
637(b)(7)(A)). surplus area concerns or for small business concerns in accordance with
(29 FR 10104, July 24, 1964, as amended at § 1-1.706.
36 FR 3117, Feb. 18, 1971; 43 FR 26005, June (10) In the event of equal low bids,
16, 1978; 45 FR 55722, Aug. 21, 1980) awards shall be made in accordance
8 1-1.703 Determination of status as a with the preferences in § 1-2.407-6.
small business concern. (11) Subcontracting to small business concerns shall be encouraged in
§ 1-1.703-1 Representation by bidder or accordance with § 1-1.710.
offeror. (12) Procurement agencies and SBA are responsible for consulting and co
(a) A concern must be a small busioperating in carrying out the purposes
ness concern at the time of the openof the Small Business Act, as amended
ing of bids or the closing date for the (15 U.S.C. 631-647), in accordance with
submission of initial offers and at the § 1-1.705.
time of award in order to be eligible (13) Small purchases shall be set
for a preference which requires status aside for small business concerns.
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 tors, should be referred to the nearest the contracting officer regarding the SBA office for management assist status of the concern with respect to a ance, counseling, financial assistance, specific solicitation, except as provided and other programs of assistance as in paragraphs (c), (d), and (e) of this may be appropriate.
section. (15) An offer submitted by a small (c)(1) Abidder or offeror which business concern that is otherwise meets the criteria in § 1-1.701 and has qualified to perform a specific Govern not been determined by the SBA to be ment contract but is determined to be ineligible may represent that he is a ineligible under the provisions of the small business concern in the submisWalsh-Healey Public Contracts Act sion of a bid or offer in connection shall be referred to SBA. The Admin with a specific solicitation. istration may certify that the concern (2) A representation by a bidder or is eligible to receive and perform the offeror that he is a small business concontract (see § 1-1.708).
cern is not conclusive with respect to (16) To the extent practicable, work SBA. If a representation is challenged, to be performed which exceeds the SBA will determine whether the maximum amount of any contract for bidder or offeror is a small business which a surety may be guaranteed concern.
(3) A bidder or offeror shall not be eligible for an award as a small busi. ness concern unless he represented in good faith that he was a small business concern at the time of the open ing of bids or the closing date for the submission of initial offers (see 12.405(b) regarding minor informalities and irregularities in bids).
(4) If a contracting officer has cause to question the veracity of a self-certification, he shall refer the eligibility issue to the SBA by filing a formal protest pursuant to g 1-1.703-2.
(d) The small business status of a bidder or offeror may be challenged prior to award even though SBA previ. ously has ruled that the concern is a small business concern at the time of the opening of bids or the closing date for the submission of initial offers. In the event of such a challenge, SBA will make a further determination regarding the status of the concern.
(e) A concern cannot become eligible for an award with respect to a specific contract by taking action to constitute itself a small business after SBA has determined that the concern was not a small business concern at the time of opening of bids or the closing date for the submission of initial offers. [43 FR 26005, June 16, 1978) § 1-1.703-2 Protest regarding small busi
ness status. (a) Any bidder or offeror or other in terested party may challenge the small business status of any other bidder or offeror on a particular procurement by sending or delivering a protest, as defined in paragraph (b) of this § 1-1.703-2, to the contracting of ficer responsible for the particular procurement. Any contracting officer who receives a timely protest, or who wishes to question the small business status of a bidder or offeror himself, shall promptly forward such protest (or submit his protest) to the SBA district office serving the geographical area in which the principal office of the protested concern, not including its affiliates, is located.
(b)(1) As used in this section, "protest” means a statement by telephone or in writing from any bidder or of feror on a particular procurement (or from any other interested party) alleg.
ing that another bidder or offeror on such procurement is not a small business concern. The statement shall contain the basis for the protest, together with specific detailed evidence in support of the protestant's claim. In order to apply to the procurement in question, such protest must be filed prior to the close of business on the fifth day (exclusive of Saturdays, Sundays, and legal holidays) after the bid opening or the date for submission of proposals, except that in the case of negotiated procurements, a protest may be filed within 5 days (exclusive of Saturdays, Sundays and legal holidays) after receipt from the contracting offi. cer of notification of the identity of the offeror being protested. Such filing must be delivered to the contracting officer by hand, telegram, or mail within the 5-day period allotted. A protest shall be considered timely if made by telephone to the contracting officer within the 5-day period allotted, and the contracting officer thereafter receives a confirming letter: (i) within such 5-day period, or (ii) postmarked no later than 1 day after the date of such telephone protest.
(2) The contracting officer may at any time after the bid opening or the date for the submission of proposals question the small business status of any bidder or offeror for the purpose of a particular procurement by filing a written protest with the SBA district office serving the area in which the 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 protesi:, the SBA district director or his delegatee will immediately notify the contract. ing 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 co the protested bidder or offeror a copy of the protest and a blank SBA Form 355, Application for Small Business Determination, by certified mai. 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 (5) Within no more than 5 working copy of such notice to the appropriate days following a decision in a size SBA Regional Director or his delega- appeal case, any interested party may tee and to the contracting officer (if a petition the SBA Size Appeals Board pending procurement is involved). If for reconsideration upon presentation the appellant is not the concern whose of appropriate justification therefor. size status is in question, the Size Ap The request for reconsideration may peals Board shall also send a copy of be in any form, with an original and the notice of appeal to such concern. four legible copies. Grounds for reconThe Board shall also notify all known sideration will be: (i) A material error interested parties that the appeal has of fact in the original decision, or (ii) been filed. In its discretion, the Board relevant information not previously may also provide any of such interest considered by the Board or relevant ed parties with copies of the appel information not previously available lant's notice of appeal, or parts there to any of the parties involved. When a of, when the Board determines that request for reconsideration is made by this would be in the interest of fair any of the interested parties, such reness or would assist in the perform questing party must demonstrate to ance of its functions. After an appeal the Board that the grounds for reconhas been filed, any other interested sideration involve facts or information party may file with the Board a signed which were not previously presented statement, together with four legible to the Board through no fault or omiscopies thereof, as to why the appeal sion of such party. The Board will should or should not be denied. Such notify all interested parties that a restatement and supporting evidence quest for reconsideration has been reshall be mailed or delivered to the ceived. SBA Size Appeals Board within 5 days (6) The SBA Size Appeals Board will of receipt of appropriate notification consider the request for reconsiderof appeal or other action in the pro- ation upon the statement and other ceeding unless an extension is granted evidence submitted by the petitioners for cause by the Chairman of the and any other evidence which the Board. If the appellant is the concern Board, in its discretion, deems neceswhose size status is in question, the sary. If the Board denies the request Board will provide copies of such for reconsideration, it will notify all statements and appropriate evidence parties. If the request for reconsidersubmitted in connection with the ation is granted, the Board will so appeal (or reconsideration thereof) to notify all interested parties and will such appellant.
set forth a reasonable time within (4) The SBA Size Appeals Board will which the interested parties, if approconsider the appeal on the written priate, may submit additional informa. submission of the parties. The Board, tion. The Board may, in its discretion, in its discretion, may also conduct an provide interested parties with copies oral inquiry to assist it in arriving at of appropriate information submitted the facts necessary for deciding the by other parties where it determines appeal. After consideration of all rele- that this is necessary in the interest of vant information, the Board will fairness or to better assist the Board promptly render a decision which will in its factfinding functions. Following state the reason for such decision. The its reconsideration of the matter, the decision of the SBA Size Appeals Board will promptly render its deci. Board will be predicated upon the sion in the same manner as provided entire record and the Board will state in paragraph (f)(4) of this section. in writing the basis for its findings and Thereafter, the Board will notify all conclusions. The Chairman of the interested parties of its decision. Board will promptly notify, in writing, (g) The contracting officer shall dethe appellant and other interested termine the appropriate classification parties (including the contracting offi- of a product or service establishing the cer if a pending procurement is in small business definition to be used in volved) of the Board's decision, togeth- a specific procurement. If different er with the reasons therefor.
products or services are being pro