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 maintenance 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 maintenance but in the industry in which such service is classified.

[32 FR 2626, Feb. 8, 1967]

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 paragraph (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.

S

(6) The maximum amount of time practicable (see § 1.202-1) shall be allowed for preparation and submission of bids and proposals.

(7) Delivery schedules shall be estabIlished on a realistic basis which will encourage small business participation to the extent consistent with the actual requirements of the Government.

(8) Applicable specifications, plans, and drawings either shall be furnished with invitations for bids and requests for proposals or, when not so furnished, information as to locations where they may be obtained or examined shall be furnished.

(9) Procurements shall be set aside for exclusive participation by small business concerns which are also labor surplus area concerns or for small business concerns in accordance with § 1-1.706.

(10) In the event of equal low bids, awards shall be made in accordance with the preferences in § 1-2.407-6.

(11) Subcontracting to small business concerns shall be encouraged in accordance with § 1-1.710.

(12) Procurement agencies and SBA are responsible for consulting and cooperating in carrying out the purposes of the Small Business Act, as amended (15 U.S.C. 631-647), in accordance with § 1-1.705.

(13) Small purchases shall be setaside for small business concerns.

(14) Small business firms seeking Government contracts, but found to lack qualifications as prime contractors, should be referred to the nearest SBA office for management assistance, counseling, financial assistance, and other programs of assistance as may be appropriate.

(15) An offer submitted by a small business concern that is otherwise qualified to perform a specific Government contract but is determined to be ineligible under the provisions of the Walsh-Healey Public Contracts Act shall be referred to SBA. The Administration may certify that the concern is eligible to receive and perform the contract (see § 1-1.708).

(16) To the extent practicable, work to be performed which exceeds the maximum amount of any contract for which a surety may be guaranteed

against loss under 15 U.S.C. 694(b) shall be placed so that more than one small business concern may perform the work.

(17) Public and private organizations for the handicapped and handicapped individuals are eligible to participate in small business set-asides (see Small Business Act (15 U.S.C. 636(h)(1)).

(18) A small business concern that is qualified to receive and perform a specific Government contract but is determined by the contracting officer to be nonresponsible under the provisions of § 1-1.1203, may be certified to be competent (as to any or all elements of responsibility) by SBA (see § 1-1.708) under the provisions of the Small Business Act (15 U.S.C. 637(b)(7)(A)).

[29 FR 10104, July 24, 1964, as amended at 36 FR 3117, Feb. 18, 1971; 43 FR 26005, June 16, 1978; 45 FR 55722, Aug. 21, 1980]

§ 1-1.703-1 Representation by bidder or offeror.

(a) A concern must be a small business concern at the time of the opening of bids or the closing date for the submission of initial offers and at the time of award in order to be eligible for a preference which requires status as a small business concern.

(b) A representation by a bidder or offeror that he is a small business concern shall be accepted as conclusive by the contracting officer regarding the status of the concern with respect to a specific solicitation, except as provided in paragraphs (c), (d), and (e) of this section.

(c)(1) A bidder or offeror which meets the criteria in § 1-1.701 and has not been determined by the SBA to be ineligible may represent that he is a small business concern in the submission of a bid or offer in connection with a specific solicitation.

(2) A representation by a bidder or offeror that he is a small business concern is not conclusive with respect to SBA. If a representation is challenged, SBA will determine whether the bidder or offeror is a small business concern.

(3) A bidder or offeror shall not be eligible for an award as a small business concern unless he represented in good faith that he was a small business concern at the time of the opening 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 § 1-1.703-2.

(d) The small business status of a bidder or offeror may be challenged prior to award even though SBA previously 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 business status.

(a) Any bidder or offeror or other interested 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 officer 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 offeror 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 officer 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 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 pro