[Federal Register Volume 78, Number 45 (Thursday, March 7, 2013)]
[Proposed Rules]
[Pages 14746-14755]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-04995]
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DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 4, 13, 14, 15, and 19
[FAR Case 2012-014; Docket 2012-0014; Sequence 1]
RIN 9000-AM46
Federal Acquisition Regulation; Small Business Protests and
Appeals
AGENCY: Department of Defense (DoD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Proposed rule.
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SUMMARY: DoD, GSA, and NASA are proposing to amend the Federal
Acquisition Regulation (FAR) to implement the Small Business
Administration's (SBA) revision of the small business size and small
business status protest and appeal procedures to ensure that contracts
set-aside for small businesses are awarded to eligible small business
concerns.
DATES: Interested parties should submit written comments to the
Regulatory Secretariat at one of the addressees shown below on or
before May 6, 2013 to be considered in the formation of the final rule.
ADDRESSES: Submit comments in response to FAR Case 2012-014 by any of
the following methods:
Regulations.gov: http://www.regulations.gov. Submit
comments via the Federal eRulemaking portal by searching for ``FAR Case
2012-014''. Select the link ``Submit a Comment'' that corresponds with
``FAR Case 2012-014.'' Follow the instructions provided at the ``Submit
a Comment'' screen. Please include your name, company name (if any),
and ``FAR Case 2012-014'' on your attached document.
Fax: 202-501-4067.
Mail: General Services Administration, Regulatory
Secretariat (MVCB), ATTN: Hada Flowers, 1275 First Street NE., 7th
Floor, Washington, DC 20417.
Instructions: Please submit comments only and cite FAR Case 2012-
014, in all correspondence related to this case. All comments received
will be posted without change to http://www.regulations.gov, including
any personal and/or business confidential information provided.
FOR FURTHER INFORMATION CONTACT: Mr. Karlos Morgan, Procurement
Analyst, at 202-501-2364, for clarification of content. For information
pertaining to status or publication schedules, contact the Regulatory
Secretariat at 202-501-4755. Please cite FAR Case 2012-014.
SUPPLEMENTARY INFORMATION:
I. Background
DoD, GSA, and NASA are proposing to amend the FAR to update the
small business size and small business status protest and appeal
procedures, protest and appeal timeframes, and to address the
application of the Small Business Administration's (SBA) decisions on a
protested concern's size and other small business status
determinations. These changes are consistent with SBA's final rule
published in the Federal Register at 76 FR 5680, dated February 2,
2011, that amended SBA's regulations to clarify the effect, across all
small business programs, of initial and appeal eligibility decisions;
SBA's interim final rule, published in the Federal Register at 77 FR
1857, dated January 12, 2012, that amended its regulations pertaining
to the Women-Owned Small Business Federal Contract Program so that its
protest and appeal procedures would be consistent with all other small
business programs; and SBA's final rule published in the Federal
Register at 76 FR 8222, dated February 11, 2011, that amended SBA's
regulations to address changes with regard to North American Industry
Classification System (NAICS) code determinations and the
nonmanufacturer rule.
In addition, this rule proposes to restructure sections of the FAR
that address small business status protest and appeal procedures. This
restructuring of the FAR text will provide uniformity to the protest
and appeals guidance provided at FAR 19.306, Protesting a firm's status
as a HUBZone small business concern, FAR 19.307, Protesting a firm's
status as a service-disabled veteran-owned small business concern, and
FAR 19.308, Protesting a firm's status as an economically disadvantaged
women-owned small business (EDWOSB) concern or women-owned small
business (WOSB) concern eligible under the WOSB Program. This rule also
updates the protest and appeals guidance found at FAR 19.302,
Protesting a small business representation or rerepresentation.
The initial restructuring of the protest and appeals process was
established under FAR case 2010-015, Women-Owned Small Business (WOSB)
Program, published in the Federal Register at 76 FR 18304 on April 1,
2011. This rule proposes to restructure FAR 19.306 and 19.307 to be
uniform
[[Page 14747]]
and consistent with the structure of the text provided in FAR 19.308,
which was established under FAR case 2010-015 and with SBA regulations.
This rule does not address revisions to FAR 19.305, protesting a
representation of disadvantaged business status. A separate proposed
rule, requesting public comments on revisions to FAR 19.305, was
published in the Federal Register at 76 FR 55849 on September 9, 2011.
II. Discussion and Analysis
The following is a summary of the proposed FAR amendments
associated with this rule:
A. Small Business Size Protests
Proposed revisions include amending FAR 19.302 to:
Increase the amount of time the SBA has, after receiving a
protest, to make a size determination of a protested concern, from 10
to 15 business days and to advise that an award may be made to a
protested concern after SBA has determined it to be an eligible small
business or has dismissed the protest.
Clarify that the contracting officer has the authority to
extend the amount of time needed by SBA to make a size determination.
Provide guidance on actions available to the contracting
officer in the event a size or status determination is not received
within the 15-day timeframe or within any extension granted by the
contracting officer.
Clarify that it is within the discretion of SBA's Office
of Hearing and Appeals (OHA) to accept an appeal from a size
determination, and, that SBA may, at its sole discretion, reopen a
formal size determination to correct an error or mistake, if it is
within the appeal period and no appeal has been filed with OHA.
Include the requirement that the contracting officer shall
consider whether contract performance can be suspended until an OHA
Judge renders a decision, when a post-award appeal is submitted to OHA
within the required timeframe. In addition, if OHA finds a protested
concern to be ineligible for award, the contracting officer may
terminate the contract, and shall not exercise the next option or issue
any further task or delivery orders.
B. Small Business Status Protest and Appeals
The proposed revisions include amending FAR 19.306, 19.307, and
19.308. Revisions to these sections of the FAR are necessary to provide
consistent guidance on the application of protest and appeal decisions
to Federal acquisitions. The proposed revisions address:
What information the protest must contain in order for it
to be considered and the timeframes for submittal of a protest by an
interested party;
What actions the contracting officer must take before and
after receipt of an eligibility decision;
What actions the contracting officer must take if a
protest has been denied or dismissed;
What actions to take if a protest has been sustained and
the concern was determined to be ineligible;
What actions to take if a concern has or has not filed a
timely appeal; and
If a protest has been sustained and the concern was
determined to be ineligible as an SDB, SDVOSB, HUBZone, or an EDWOSB or
WOSB eligible under the WOSB Program, what must happen before the
concern can represent itself under one of these small business
categories.
C. Reorganizing Status Protest and Appeal Regulations
As part of this proposed rule, FAR 19.306 and 19.307 will be
restructured to be consistent with the reconfiguration of FAR 19.308
that was accomplished under FAR Case 2010-015, Women-Owned Small
Business (WOSB) Program. Realignment of FAR 19.306 and 19.307 in an
arrangement similar to FAR 19.308 will enable speedier access to
protest and appeal information.
D. Other Changes
1. Updating Ineligibility Status
The proposed revisions to FAR 4.604 require contracting officers to
update the Federal Procurement Data System (FPDS) to reflect the final
decision of the SBA regarding the small business size determination.
2. Revisions to Nonmanufacturer Rule
The proposed revisions to FAR 19.102(f) clarify the requirements
for a small business concern to be considered a ``nonmanufacturer.''
The proposed revisions include adding in the FAR that a small business
concern must be primarily engaged in the retail or wholesale trade and
normally sells the type of item being supplied; take ownership or
possession of the item(s) with its personnel, equipment or facilities
in a manner consistent with industry practice; and will supply the end
item of a small business manufacturer, processor, or producer made in
the United States or its outlying areas, or is granted a waiver. This
change reflects current SBA regulations.
3. Clarifying the Use of Wholesale and Retail North American Industry
Classification System (NAICS) Codes
The proposed revisions to FAR 19.303 clarify that the contracting
officer shall select the NAICS code that best describes the principal
purpose of the product or service being acquired.
Other proposed revisions to FAR 19.303 include (1) Clarifying who
may appeal a contracting officer's NAICS code designations or
applicable size standard; (2) the adding of a new requirement for
contracting officers to advise the public, by amendment to the
solicitation, of the existence of a NAICS code appeal; and (3) adding a
notification that the SBA may file a NAICS code appeal at any time
before offers are due.
4. System for Award Management (SAM)
The text of this proposed rule uses the new FAR reference, System
for Award Management (SAM), for Central Contractor Registration (CCR)
and Online Representations and Certifications Application (ORCA). There
is a pending FAR rule (FAR Case 2012-023, System for Award Management
Name Change, Phase 1 Implementation), which will make a global update
to all of the existing references to CCR and ORCA throughout the FAR to
the SAM designation.
III. Executive Order 12866 and 13563
Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess
all costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). E.O.
13563 emphasizes the importance of quantifying both costs and benefits,
of reducing costs, of harmonizing rules, and of promoting flexibility.
The Office of Information and Regulatory Affairs (OIRA) has deemed that
this is not a significant regulatory action and, therefore, was not
subject to review under section 6(b) of E.O. 12866, Regulatory Planning
and Review, dated September 30, 1993, and that this rule is not a major
rule under 5 U.S.C. 804.
III. Regulatory Flexibility Act
The change may have a significant economic impact on a substantial
number of small entities within the meaning of the Regulatory
Flexibility Act 5 U.S.C. 601, et seq. The SBA's final rule that was
published in the Federal Register at 76 FR 5680, on February 2,
[[Page 14748]]
2011, provided a Final Regulatory Flexibility Analysis covering the
same subject matter as that presented in this proposed rule. For this
reason, the rationale and methodology used by the SBA in support of its
final rule was also used in the development of the Initial Regulatory
Flexibility Analysis (IRFA) performed for this rule. The IRFA is
summarized as follows:
The purpose of this proposed rule is to amend the FAR to provide
revised regulatory coverage for size or status protest and appeal
procedures, and to ensure that the FAR contains consistent and
coherent protest and appeal procedures that are congruent with SBA
regulations. The objective of these changes is to provide in the
FAR, procedures to assure that contracts set-aside for small
businesses are awarded to eligible small business concerns.
This rule will not have a direct negative impact on any small
business concern, since it is aimed at preventing businesses that
are not small or are ineligible in terms of their status as a
HUBZone, SDVOSB, or WOSB concern, from receiving or performing
contracts that have been set aside for small business concerns. This
rule may indirectly benefit small business concerns by preventing
awards to ineligible firms, or shortening the length of time
ineligible firms perform set-aside contracts.
SBA processes nearly 500 size protests each fiscal year,
resulting in 41 percent being determined to be small and 26 percent
determined to be other than small. The rest are dismissed on
procedural grounds. Thus, the number of concerns that could be
affected by this rule, regardless of size, is approximately 335 per
year, or approximately one tenth of one percent of the more than
341,000 small business concerns that are registered in the System
for Award Management. (The number of protests in other small
business programs is significantly less than the numbers of size
protests received).
This rule will not impose any new information collection
requirements on small businesses. This rule does not duplicate,
overlap, or conflict with any other Federal rules.
No alternatives were considered because there is no other means
to accomplish the stated objectives of this statute.
The Regulatory Secretariat has submitted a copy of the Initial
Regulatory Flexibility Analysis (IRFA) to the Chief Counsel for
Advocacy of the Small Business Administration. A copy of the IRFA may
be obtained from the Regulatory Secretariat. The Councils invite
comments from small business concerns and other interested parties on
the expected impact of this rule on small entities.
DoD, GSA, and NASA will also consider comments from small entities
concerning the existing regulations in subparts affected by this rule
in accordance with 5 U.S.C. 610. Interested parties must submit such
comments separately and should cite 5 U.S.C. 610 (FAR Case 2012-014) in
correspondence.
IV. Paperwork Reduction Act
The proposed rule does not contain any information collection
requirements that require the approval of the Office of Management and
Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35).
List of Subjects in 48 CFR Parts 4, 13, 14, 15, and 19
Government procurement.
Dated: February 22, 2013.
Laura Auletta,
Director, Office of Governmentwide Acquisition Policy, Office of
Acquisition Policy, Office of Governmentwide Policy.
Therefore, DoD, GSA, and NASA propose amending 48 CFR parts 4, 13,
14, 15, and 19 as set forth below:
0
1. The authority citation for 48 CFR parts 4, 13, 15, and 19 continues
to read as follows:
Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 51
U.S.C. 20113.
PART 4--ADMINISTRATIVE MATTERS
0
2. Amend section 4.604 by revising paragraph (b)(4) and adding
paragraph (b)(5) to read as follows:
4.604 Responsibilities.
* * * * *
(b) * * *
(4) When the contracting office receives written notification that
a contractor has changed its size status in accordance with the clause
at 52.219-28, Post-Award Small Business Program Rerepresentation, the
contracting officer must update the size status in FPDS.
(5) When the contracting office receives written notification of
SBA's final decision on a protest concerning a size determination, the
contracting officer shall update FPDS to reflect the final decision.
* * * * *
PART 13--SIMPLIFIED ACQUISITION PROCEDURES
13.102 [Amended]
0
3. Amend section 13.102 by removing from paragraph (a)(3) ``the Woman-
owned'' and adding ``the Women-Owned'' in its place.
PART 14--SEALED BIDDING
0
4a. The authority citation for 48 CFR part 14 is revised to read as
follows:
Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 51
U.S.C. 20113.
14.502 [Amended]
0
4b. Amend section 14.502 by removing from paragraph (b)(7) ``woman-
owned small business concerns'' and ``Woman-Owned Small Business
Program'' and adding ``women-owned small business concerns'' and
``Women-Owned Small Business Program'' in their places, respectively.
PART 15--CONTRACTING BY NEGOTIATION
0
5. Amend section 15.503 by removing from paragraph (a)(2)(i)(E) ``the
Woman-Owned'' and adding ``the Women-Owned'' in its place.
PART 19--SMALL BUSINESS PROGRAMS
0
6. Amend section 19.001 by revising the definition ``Nonmanufacturer
rule'' to read as follows:
19.001 Definitions.
* * * * *
Nonmanufacturer rule means that a contractor under a small
business, service-disabled veteran-owned small business, economically
disadvantaged women-owned small business or women-owned small business
eligible under the women-owned small business program set-aside, or
8(a) contract shall be a small business under the applicable size
standard and shall provide either its own product or that of another
domestic small business manufacturing or processing concern (see 13 CFR
121.406). For non-manufacturer rules pertaining to HUBZone contracts,
see 19.1303(e).
0
7. Amend section 19.102 by revising paragraph (f) to read as follows:
19.102 Size standards.
* * * * *
(f)(1) To qualify to provide manufactured products as a small
business concern for acquisitions set aside for small business (subpart
19.5), the Service-Disabled Veteran-Owned Small Business (SDVOSB)
Procurement Program (subpart 19.14), the Women-Owned Small Business
(WOSB) Program (subpart 19.15), or awards under section 8(a) of the
Small Business Act (subpart 19.8), a concern must be the manufacturer
or producer of the end item being procured and the end item must be
manufactured or produced in the United States, or the concern must
satisfy the conditions of the nonmanufacturers rule.
(2) Any concern submitting a bid or offer in its own name, other
than on a construction or service contract, that proposes to furnish an
end product it
[[Page 14749]]
did not manufacture (a ``nonmanufacturer''), is a small business if
it--
(i) Has no more than 500 employees;
(ii) Is primarily engaged in the retail or wholesale trade and
normally sells the type of item being supplied;
(iii) Takes ownership or possession of the item(s) with its
personnel, equipment or facilities in a manner consistent with industry
practice; and
(iv) Will supply the end item of a small business manufacturer,
processor or producer made in the United States or its outlying areas;
except as provided in paragraphs (f)(6) through (f)(9) of this section,
(3) The term ``nonmanufacturer'' includes a concern that can, but
elects not to, manufacture or produce the end product for the specific
acquisition. For size determination purposes, there can be only one
manufacturer of the end product being acquired. The manufacturer of the
end product being acquired is the concern that, with its own facilities
performs the primary activities in transforming inorganic or organic
substances, including the assembly of parts and components, into the
end item being acquired (see 13 CFR 121.406(b)(2) for further
guidance). However, see 52.219-14 for the limitations on subcontracting
that apply to small business set-asides and 8(a) competitive or 8(a)
sole source awards, 52.219-3 for HUBZone set-asides and HUBZone sole
source awards, 52.219-27 for SDVOSB set-asides and SDVOSB sole source
awards, 52.219-29 for economically disadvantaged women-owned small
business (EDWOSB) set-asides, and 52.219-30 for set-asides to women-
owned small business concerns eligible under the WOSB Program.
(4) A concern which purchases items and packages them into a kit is
considered to be a nonmanufacturer small business and can qualify as
such for a given acquisition if it meets the size qualifications of a
small nonmanufacturer for the acquisition, and if more than 50 percent
of the total value of the kit and its contents is accounted for by
items manufactured by small business concerns in the United States that
are small under the size standards for the NAICS codes of the
components being assembled.
(5) For the purpose of receiving a Certificate of Competency on an
unrestricted acquisition, a small business nonmanufacturer may furnish
any domestically produced or manufactured product.
(6) In the case of acquisitions set aside for small businesses,
SDVOSB concerns, EDWOSB concerns or WOSB concerns eligible under the
WOSB Program, or awards under section 8(a) of the Small Business Act,
when the acquisition is for a specific product (or a product in a class
of products) for which the SBA has determined that there are no small
business manufacturers or processors in the Federal market, then the
SBA may grant an individual or class waiver so that a nonmanufacturer
does not have to furnish the product of a small business. For the most
current listing of classes for which SBA has granted a waiver, contact
an SBA Office of Government Contracting. A listing is also available on
SBA's Internet Homepage at http://www.sba.gov/content/class-waivers.
Contracting officers may request that the SBA waive the nonmanufacturer
rule for a particular class of products. For procedures in requesting a
waiver see 13 CFR 121.1204.
(7) For a specific solicitation, a contracting officer may request
a waiver of that part of the nonmanufacturer rule which requires that
the actual manufacturer or processor be a small business concern if the
contracting officer determines that no known domestic small business
manufacturers or processors can reasonably be expected to offer a
product meeting the requirements of the solicitation.
(8) Requests for waivers shall be sent to the Associate
Administrator for Government Contracting, United States Small Business
Administration, Mail Code 6250, 409 Third Street SW., Washington, DC
20416.
(9) The SBA provides for an exception to the nonmanufacturer rule
if--
(i) The procurement of a manufactured end product processed under
the procedures set forth in part 13--
(A) Is set aside for small business; and
(B) Is not anticipated to exceed $25,000; and
(ii) The offeror supplies an end product that is manufactured or
produced in the United States or its outlying areas.
(10) For non-manufacturer rules pertaining to HUBZone contracts,
see 19.1303(e).
0
8. Amend section 19.302 by--
0
a. Revising paragraph (c)(1);
0
b. Adding paragraph (c)(3);
0
c. Removing from paragraph (d)(1) ``the 5th'' and adding ``the fifth''
in its place;
0
d. Revising paragraphs (d)(1)(ii) and (d)(2);
0
e. Adding paragraph (d)(4);
0
f. Removing paragraph (f);
0
g. Redesignating paragraphs (g) through (k) as paragraphs (f) through
(j); and
0
h. Revising the newly designated paragraphs (f), (g), and (h).
The revised and added text reads as follows:
19.302 Protesting a small business representation or rerepresentation.
* * * * *
(c)(1) Any contracting officer who receives a protest, whether
timely or not, or who, as the contracting officer, wishes to protest
the small business representation of an offeror, or rerepresentation of
a contractor, shall promptly forward the protest to the SBA Government
Contracting Area Director located at the SBA Government Contracting
Area Office serving the area in which the headquarters of the offeror
is located.
(2) * * *
(3) The protest shall include a referral letter written by the
contracting officer with information pertaining to the solicitation.
The referral letter must include the following information to allow SBA
to determine timeliness and standing:
(i) The protest and any accompanying materials.
(ii) A copy of the size self-certification.
(iii) Identification of the applicable size standard.
(iv) The solicitation number.
(v) The name, address, telephone number and fax number of the
contracting officer.
(vi) The bid opening date, or notification provided to unsuccessful
offerors.
(vii) The date the contracting officer received the protest.
(viii) A complete address and point of contact for the protested
concern.
(d) * * *
(1) * * *
(ii) A protest may be made in writing if it is delivered to the
contracting officer by hand, telegram, facsimile, email, express and
overnight delivery service, or letter postmarked within the 5-day
period.
(2) Except as provided in paragraph (d)(4) of this section, the
contracting officer or SBA may file a protest before or after award.
(3) * * *
(4) A protest filed by any party, including the contracting
officer, before bid opening or notification to offerors of the
selection of the apparent successful offer, will be dismissed as
premature by SBA.
* * * * *
(f)(1) Within 15 business days or within any extension of time
granted by the contracting officer, after receiving a protest, the
challenged concern's response, and other pertinent information, the SBA
Area Office will
[[Page 14750]]
determine the size status of the challenged concern. The SBA Area
Office will notify the contracting officer, the protester, and the
challenged concern of its decision by certified mail, return receipt
requested.
(2) Award may be made to a protested concern after the SBA Area
Office has determined that either the protested concern is an eligible
small business or has dismissed all protests against it.
(3) This determination is final unless it is appealed in accordance
with paragraph (h) of this section, and the contracting officer is
notified of the appeal before award. If an award was made before the
time the contracting officer received notice of the appeal, the
contract shall be presumed to be valid.
(4) If SBA's Office of Hearings and Appeals (OHA) subsequently
overturns the Area Office's determination or dismissal, and contract
award has not been made, the contracting officer may apply the OHA
decision to the procurement in question.
(g)(1) After receiving a protest involving an offeror being
considered for award, the contracting officer shall not award the
contract until the SBA has made a size determination or 15 business
days have expired since SBA's receipt of a protest, whichever occurs
first; however, award shall not be withheld when the contracting
officer determines in writing that an award must be made to protect the
public interest.
(2) If SBA has not made a determination within 15 business days, or
within any extension of time granted by the contracting officer, the
contracting officer may award the contract after determining in writing
that there is an immediate need to award the contract and that waiting
until SBA makes its determination will be disadvantageous to the
Government.
(3) Whenever an award is made before the receipt of SBA's size
determination, the contracting officer shall notify SBA that the award
has been made.
(4) SBA may, at its sole discretion, reopen a formal size
determination to correct an error or mistake, if it is within the
appeal period and no appeal has been filed with OHA.
(5) If a protest is received that challenges the small business
status of an offeror not being considered for award, the contracting
officer is not required to suspend contract action. The contracting
officer shall forward the protest to the SBA (see paragraph (c)(1) of
this section) with a notation that the concern is not being considered
for award, and shall notify the protester of this action.
(h) An appeal from an SBA size determination may be filed by any
concern or other interested party whose protest of the small business
representation of another concern has been denied by an SBA Government
Contracting Area Director, any concern or other interested party that
has been adversely affected by an SBA Government Contracting Area
Director's decision, or the SBA Associate Administrator for the SBA
program involved. The appeal must be filed with the Office of Hearings
and Appeals, Small Business Administration, Suite 5900, 409 3rd Street
SW., Washington, DC 20416, within the time limits and in strict
accordance with the procedures contained in subpart C of 13 CFR part
134. It is within the discretion of the SBA Judge whether to accept an
appeal from a size determination. If a post-award appeal is submitted
to OHA within the time limits specified in subpart C of 13 CFR part
134, the contracting officer shall consider suspending contract
performance until an SBA Judge decides the appeal. If the Judge decides
not to consider such an appeal, the Judge will issue an order denying
review and specifying the reasons for the decision. SBA will inform the
contracting officer of its ruling on the appeal. SBA's decision, if
received before award, will apply to the pending acquisition. If the
contracting officer has made a written determination in accordance with
(g)(1) or (2) of this section, the contract has been awarded, and the
SBA rulings is received after award, and OHA finds the protested
concern to be ineligible for award, the contracting officer shall
terminate the contract unless termination is not in the best interests
of the Government, in keeping with the circumstances described in the
written determination. However, the contracting officer shall not
exercise any options or award further task or delivery orders.
* * * * *
0
9. Amend section 19.303 by revising paragraphs (a) and (c) to read as
follows:
19.303 Determining North American Industry Classification System codes
and size standards.
(a)(1) The contracting officer shall determine the appropriate
North American Industry Classification System (NAICS) code and related
small business size standard and include them in solicitations above
the micro-purchase threshold.
(2) The contracting officer shall select the NAICS code which best
describes the principal purpose of the product or service being
acquired. Generally, the principal purpose of the procurement is
classified according to the product or service which account for the
greatest percentage of contract value.
(3) A concern that submits an offer or quote for a contract where
the NAICS code assigned to the contract is one for supplies, and
furnishes a product it did not itself manufacture or produce, is
categorized as a nonmanufacturer and deemed small if it meets the
requirements of FAR 19.102(f).
* * * * *
(c) The contracting officer's determination is final unless
appealed as follows:
(1) An appeal from a contracting officer's NAICS code designation
and the applicable size standard must be served and filed within 10
calendar days after the issuance of the initial solicitation or any
amendment affecting the NAICS code or size standard.
(2) Appeals from a contracting officer's NAICS code designation or
applicable size standard may be filed with SBA's Office of Hearings and
Appeals by--
(i) Any person adversely affected by a NAICS code designation or
applicable size standard. However, with respect to a particular sole
source 8(a) contract, only the Director, Office of Business Development
may appeal a NAICS code designation; or
(ii) The Associate or Assistant Administrator for the SBA program
involved, through SBA's Office of General Counsel.
(3) Contracting officers shall advise the public, by amendment to
the solicitation, of the existence of a NAICS code appeal (see
5.102(a)(2)). Such notices shall include the procedures and the
deadline for interested parties to file and serve arguments concerning
the appeal.
(4) SBA may file a NAICS code appeal at any time before offers are
due.
(5) SBA's Office of Hearings and Appeals (OHA) will dismiss
summarily an untimely NAICS code appeal.
(6)(i) The appeal petition must be in writing and must be addressed
to the Office of Hearings and Appeals, Small Business Administration,
Suite 5900, 409 3rd Street, SW., Washington, DC 20416.
(ii) There is no required format for the appeal; however, the
appeal must include--
(A) The solicitation or contract number and the name, address, and
telephone number of the contracting officer;
(B) A full and specific statement as to why the NAICS code
designation is allegedly erroneous and argument supporting the
allegation; and
[[Page 14751]]
(C) The name, address, telephone number, and signature of the
appellant or its attorney.
(7) The appellant must serve the appeal petition upon--
(i) The contracting officer who assigned the NAICS code to the
acquisition;
(ii) SBA's Office of General Counsel, Associate General Counsel for
Procurement Law, 409 Third Street SW., Washington, DC 20416, facsimile
202-205-6873, or email at OPLService@sba.gov.
(8) Upon receipt of a NAICS code appeal, OHA will notify the
contracting officer by a notice and order of the date OHA received the
appeal, the docket number, and Judge assigned to the case. The
contracting officer's response to the appeal, if any, must include
argument and evidence (see 13 CFR part 134), and must be received by
OHA within 15 calendar days from the date of the docketing notice and
order, unless otherwise specified by the Administrative Judge. Upon
receipt of OHA's docketing notice and order, the contracting officer
must withhold award and immediately send to OHA an electronic link to
or a paper copy of both the original solicitation and all amendments
relating to the NAICS code appeal. The contracting officer will inform
OHA of any amendments, actions, or developments concerning the
procurement in question.
(9) After close of record, OHA will issue a decision and inform the
contracting officer. If OHA's decision is received by the contracting
officer before the date the offers are due, the decision shall be final
and the solicitation must be amended to reflect the decision, if
appropriate. OHA's decision received after the due date of the initial
offers shall not apply to the pending solicitation but shall apply to
future solicitations of the same products or services.
0
10. Amend section 19.306 by revising paragraphs (b) through (j), and
paragraphs (l) and (m) to reads as follows:
19.306 Protesting a firm's status as a HUBZone small business concern.
* * * * *
(b)(1) An offeror that is an interested party, the contracting
officer, or the SBA may protest the apparently successful offeror's
status as a qualified HUBZone small business concern (see 13 CFR
126.800).
(2) SBA's protest regulations are found in subpart H ``Protests''
at 13 CFR 126.800 through 126.805.
(c) Protests relating to small business size status are subject to
the procedures of 19.302. An interested party seeking to protest both
the small business size and HUBZone status of an apparent successful
offeror shall file two separate protests.
(d) All protests must be in writing and must state all specific
grounds for the protest.
(1) SBA will consider protests challenging the status of a concern
if--
(i) The protest presents evidence that the concern is not a
qualified HUBZone small business concern as described at 13 CFR 126.103
and 13 CFR 126.200;
(ii) The principal office is not located in a HUBZone; or
(iii) At least 35 percent of the employees do not reside in a
HUBZone.
(2) Assertions that a protested concern is not a qualified HUBZone
small business concern, without setting forth specific facts or
allegations, will not be considered by SBA (see 13 CFR 126.801(b)).
(e) Protest by an interested party.
(1) An offeror shall submit its protest to the contracting
officer--
(i) For sealed bids--
(A) By the close of business on the fifth business day after bid
opening; or
(B) By the close of business on the fifth business day from the
date of identification of the apparent successful offeror, if the price
evaluation preference was not applied at the time of bid opening.
(ii) For negotiated acquisitions, by the close of business on the
fifth business day after notification by the contracting officer of the
apparently successful offeror.
(2) Any protest received after the designated time limits is
untimely, unless it is from the contracting officer or SBA.
(f)(1) The contracting officer shall forward all protests to SBA.
The protests are to be submitted to the
SBA's Director, HUBZone Program, U.S. Small Business
Administration, 409 Third Street SW., Washington, DC 20416 or by fax to
202-205-7167, Attn: HUBZone Small Business Status Protest.
(2) The protest shall include a referral letter written by the
contracting officer with information pertaining to the solicitation.
The referral letter must include the following information to allow SBA
to determine timeliness and standing:
(i) The solicitation number.
(ii) The name, address, telephone number and fax number of the
contracting officer.
(iii) The type of HUBZone contract.
(iv) Whether the procurement was conducted using full and open
competition with a HUBZone price evaluation preference, and whether the
protester's opportunity for award was affected by the preference.
(v) If a HUBZone set-aside, whether the protester submitted an
offer.
(vi) Whether the protested concern was the apparent successful
offeror.
(vii) Whether the procurement was conducted using sealed bid or
negotiated procedures.
(viii) The bid opening date, if applicable. If a price evaluation
preference was applied after the bid opening date, also provide the
date of identification of the apparent successful offeror.
(ix) The date the contracting officer received the protest.
(x) Whether a contract has been awarded.
(g) SBA will notify the protester and the contracting officer of
the date SBA received the protest.
(h) Before SBA decision. (1) After receiving a protest involving
the apparent successful offeror's status as a HUBZone small business
concern, the contracting officer shall either--
(i) Withhold award of the contract until SBA determines the status
of the protested concern; or
(ii) Award the contract after receipt of the protest but before SBA
issues its decision if the contracting officer determines in writing
that an award must be made to protect the public interest.
(2) SBA will determine the merits of the status protest within 15
business days after receipt of a protest, or within any extension of
time granted by the contracting officer.
(3) If SBA does not issue its determination within 15 business
days, or within any extension of time granted, the contracting officer
may award the contract after determining in writing that there is an
immediate need to award the contract and that waiting until SBA makes
its determination will be disadvantageous to the Government. This
determination shall be provided to the SBA's Director, HUBZone Program
and a copy shall be included in the contract file.
(i) After SBA decision. SBA will notify the contracting officer,
the protester, and the protested concern of its determination. The
determination is effective immediately and is final unless overturned
on appeal by SBA's Associate Administrator for Government Contracting
and Administrator for Government Contracting and 8(a) Business
Development (AA/GCBD).
(1) If the contracting officer has withheld contract award and SBA
has denied or dismissed the protest, the contracting officer may award
the contract to the protested concern. If AA/
[[Page 14752]]
GCBD subsequently overturns the decision of the Director, HUBZone
Program, the contracting officer may apply the AA/GCBD decision to the
procurement in question.
(2) If the contracting officer has withheld award and SBA has
sustained the protest and determined that the concern is not a HUBZone
small business, and no AA/GCBD appeal has been filed, then the
contracting officer shall not award the contract to the protested
concern.
(3) If the contracting officer has made a written determination in
accordance with (h)(1)(ii) or (h)(3) of this section, awarded the
contract, and SBA's ruling sustaining the protest is received after
award--
(i) The contracting officer shall terminate the contract, unless
termination is not in the best interests of the Government. However,
the contracting officer shall not exercise any options or award further
task or delivery orders.
(ii) The contracting officer shall update the Federal Procurement
Data System to reflect the final SBA decision.
(iii) The concern's designation as a certified HUBZone small
business concern will be removed by SBA from the Dynamic Small Business
Database. The concern shall not submit an offer as a HUBZone small
business concern, until SBA issues a decision that the ineligibility is
resolved; and
(4) If the contracting officer has made a written determination in
accordance with (h)(1)(ii) or (h)(3) of this section, awarded the
contract, SBA has sustained the protest and determined that the concern
is not a HUBZone small business, and a timely AA/GCBD appeal has been
filed, then the contracting officer shall consider whether performance
can be suspended until an AA/GCBD decision is rendered.
(5) If AA/GCBD affirms the decision of the Director of the HUBZone
Program, finding the protested concern is ineligible, and contract
award has occurred--
(i) The contracting officer shall terminate the contract, unless
termination is not in the best interest of the Government. However, the
contracting officer shall not exercise any options or award further
task or delivery orders.
(ii) The contracting officer shall update the FPDS to reflect the
AA/GCBD decision; and
(iii) The concern's designation as a certified HUBZone small
business concern will be removed by SBA from the Dynamic Small Business
Database. The concern shall not submit an offer as a HUBZone small
business concern until SBA issues a decision that the ineligibility is
resolved or AA/GCBD finds the concern is eligible on appeal.
(6) A concern found to be ineligible during a HUBZone status
protest is precluded from applying for HUBZone certification for 90
calendar days from the date of the SBA final decision.
(j) Appeals of HUBZone status determinations. The protested HUBZone
small business concern, the protester, or the contracting officer may
file appeals of protest determinations with SBA's AA/GCBD. The AA/GCBD
must receive the appeal no later than 5 business days after the date of
receipt of the protest determination. SBA will dismiss any untimely
appeal.
* * * * *
(l)(1) The party appealing the decision must provide notice of the
appeal to--
(i) The contracting officer;
(ii) Director, HUBZone Program, U.S. Small Business Administration,
409 Third Street SW., Washington, DC 20416 or by fax to 202-205-7167;
and
(iii) The protested HUBZone small business concern or the original
protester, as appropriate.
(2) SBA will not consider additional information or changed
circumstances that were not disclosed at the time of the Director/HUB's
decision or that are based on disagreement with the findings and
conclusions contained in the determination.
(m) The AA/GCBD will make its decision within 5 business days of
the receipt of the appeal, if practicable, and will base its decision
only on the information and documentation in the protest record as
supplemented by the appeal. SBA will provide a copy of the decision to
the contracting officer, the protester, and the protested HUBZone small
business concern. The SBA decision, if received before award, will
apply to the pending acquisition. The AA/GCBD's decision is the final
decision.
0
11. Revise section 19.307 to read as follows:
19.307 Protesting a firm's status as a service-disabled veteran-owned
small business concern.
(a) Definition. Interested party, as used in this section, has the
meaning given in 13 CFR 125.8(b).
(b)(1) An offeror that is an interested party, the contracting
officer, or the SBA may protest the apparently successful offeror's
status as a service-disabled veteran-owned small business (SDVOSB)
concern (see 13 CFR 125.24).
(2) SBA's protest regulations are found in subpart D ``Protests''
at 13 CFR 125.24 through 125.28.
(c) Protests relating to small business size status are subject to
the procedures of 19.302. An interested party seeking to protest both
the small business size and service-disabled veteran-owned small
business status of an apparent successful offeror shall file two
separate protests.
(d) All protests must be in writing and must state all specific
grounds for the protest.
(1) SBA will consider protests challenging the service disabled
veteran-owned status or the ownership and control of a concern if--
(i) For status protests, the protester presents evidence supporting
the contention that the owner(s) cannot provide documentation from the
Department of Veterans Affairs, Department of Defense determinations,
or the U.S. National Archives and Records Administration to show that
they meet the definition of ``service-disabled veteran'' or ``service
disabled veteran with a permanent and severe disability'' as set forth
in 13 CFR 125.8; or
(ii) For ownership and control protests, the protester presents
evidence that the concern is not 51 percent owned and controlled by one
or more service-disabled veterans. In the case of veteran with a
permanent and severe disability, the protester presents evidence that
the concern is not controlled by the veteran, spouse, or permanent
caregiver of such veteran.
(2) Assertions that a protested concern is not a service-disabled
veteran-owned small business concern, without setting forth specific
facts or allegations, will not be considered by SBA (see 13 CFR
125.25(b)).
(e) Protest by an interested party. (1) An offeror shall submit its
protest to the contracting officer--
(i) To be received by close of business on the fifth business day
after bid opening (in sealed bid acquisitions); or
(ii) To be received by close of business on the fifth business day
after notification by the contracting officer of the apparently
successful offeror (for negotiated acquisitions).
(2) Any protest received after the designated time limits is
untimely, unless it is from the contracting officer or SBA.
(f)(1) The contracting officer shall forward all protests to SBA.
The protests are to be submitted to SBA's Director, Office of
Government Contracting, U.S. Small Business Administration, 409 Third
Street SW., Washington, DC 20416 or by fax to 202-205-6390, Attn:
Service-Disabled Veteran Status Protest.
(2) The protest shall include a referral letter written by the
contracting officer with information pertaining to the solicitation.
The referral letter must
[[Page 14753]]
include the following information to allow SBA to determine timeliness
and standing:
(i) The solicitation number.
(ii) The name, address, telephone number and facsimile number of
the contracting officer.
(iii) Whether the contract was sole-source or set-aside.
(iv) Whether the protestor submitted an offer.
(v) Whether the protested concern was the apparent successful
offeror.
(vi) When the protested concern submitted its offer.
(vii) Whether the acquisition was conducted using sealed bid or
negotiated procedures.
(viii) The bid opening date, if applicable.
(ix) The date the contracting officer received the protest.
(x) The date the protestor received notification about the apparent
successful offeror, if applicable.
(xi) Whether a contract has been awarded.
(g) SBA will notify the protester and the contracting officer of
the date SBA received the protest.
(h) Before SBA decision. (1) After receiving a protest involving
the apparent successful offeror's status as a service-disabled veteran-
owned small business concern, the contracting officer shall either--
(i) Withhold award of the contract until SBA determines the status
of the protested concern; or
(ii) Award the contract after receipt of the protest but before SBA
issues its decision if the contracting officer determines in writing
that an award must be made to protect the public interest.
(2) SBA will determine the merits of the status protest within 15
business days after receipt of a protest, or within any extension of
time granted by the contracting officer.
(3) If SBA does not issue its determination within 15 business
days, or within any extension of time that is granted, the contracting
officer may award the contract after determining in writing that there
is an immediate need to award the contract and that waiting until SBA
makes its determination will be disadvantageous to the government. This
determination shall be provided to the SBA's Director, Office of
Government Contracting and a copy shall be included in the contract
file.
(i) After SBA decision. SBA will notify the contracting officer,
the protester, and the protested concern of its determination. The
determination is effective immediately and is final unless overturned
on appeal by SBA's Office of Hearings and Appeals (OHA) pursuant to 13
CFR part 134.
(1) If the contracting officer has withheld contract award and SBA
has denied or dismissed the protest, the contracting officer may award
the contract to the protested concern. If OHA subsequently overturns
the SBA Director for Government Contracting's determination or
dismissal, the contracting officer may apply the OHA decision to the
procurement in question.
(2) If the contracting officer has withheld contract award, SBA has
sustained the protest and determined that the concern is not an SDVOSB,
and no OHA appeal has been filed, then the contracting officer shall
not award the contract to the protested concern.
(3) If the contracting officer has made a written determination in
accordance with (h)(1)(ii) or (h)(3) of this section, the contract has
been awarded, and SBA's ruling sustaining the protest is received after
award--
(i) The contracting officer shall terminate the contract, unless
termination is not in the best interests of the Government. However,
the contracting officer shall not exercise any options or award further
task or delivery orders;
(ii) The contracting officer shall update the FPDS to reflect the
final SBA decision; and
(iii) The concern must remove its designation in the System for
Award Management (SAM) as a SDVOSB concern, and shall not submit an
offer as a SDVOSB concern, until SBA issues a decision that the
ineligibility is resolved.
(4) If the contracting officer has made a written determination in
accordance with (h)(1)(ii) or (h)(3) of this section and awarded the
contract to the protested firm, SBA has sustained the protest and
determined that the concern is not a SDVOSB, and a timely OHA appeal
has been filed, then the contracting officer shall consider whether
performance can be suspended until an OHA decision is rendered.
(5) If OHA affirms the SBA Director for Government Contracting's
determination finding the protested concern is ineligible--
(i) The contracting officer shall terminate the contract unless it
is not in the best interest of the Government. However, the contracting
officer shall not exercise any options or award further task or
delivery orders;
(ii) The contracting officer shall update the FPDS to reflect OHA's
decision; and
(iii) The concern shall remove its designation in SAM as a SDVOSB
concern, until SBA issues a decision that the ineligibility is resolved
or OHA finds the concern is eligible on appeal.
(6) A concern found to be ineligible may not submit future offer's
as an SDVOSB concern until the concern demonstrates to SBA's
satisfaction that it has overcome the reason for the protest and SBA
issues a decision to this effect.
(j) Appeals of SDVOSB status determinations. The protested SDVOSB
small business concern, the protester, or the contracting officer may
file appeals of protest determinations to OHA. OHA must receive the
appeal no later than 10 business days after the date of receipt of the
protest determination. SBA will dismiss an untimely appeal. See Subpart
E ``Rules of Practice for Appeals From Service-Disabled Veteran Owned
Small Business Concerns Protests'' at 13 CFR 134.501 through 134.515
for SBA's appeals regulations.
(k) The appeal must be in writing. The appeal must identify the
protest determination being appealed and must set forth a full and
specific statement as to why the SDVOSB protest determination is
alleged to be based on a clear error of fact or law, together with an
argument supporting such allegation.
(l) The party appealing the decision must provide notice of the
appeal to--
(1) The contracting officer;
(2) Director, Office of Government Contracting, U.S. Small Business
Administration, 409 Third Street, SW., Washington, DC 20416, facsimile
202-205-6390;
(3) The protested SDVOSB concern or the original protester, as
appropriate; and
(4) Associate General Counsel for Procurement Law, U.S. Small
Business Administration, 409 Third Street SW., Washington, DC 20416,
facsimile 202-205-6873, or email at OPLService@sba.gov.
(m) OHA will make its decision within 15 business days of the
receipt of the appeal, if practicable. SBA will provide a copy of the
decision to the contracting officer, the protester, and the protested
SDVOSB small business concern. The OHA decision is the final agency
decision and is binding on the parties.
0
12. Revise section 19.308 to read as follows:
19.308 Protesting a firm's status as an economically disadvantaged
women-owned small business concern or women-owned small business
concern eligible under the WOSB Program.
(a) Definition. Interested party, as used in this section, has the
meaning given in 13 CFR 127.102.
(b)(1) An offeror that is an interested party, the contracting
officer, or the SBA
[[Page 14754]]
may protest the apparent successful offeror's status as an economically
disadvantaged women-owned small business (EDWOSB) concern or women-
owned small business (WOSB) concern eligible under the WOSB Program.
(2) SBA's protest regulations are found in subpart F ``Protests''
at 13 CFR 127.600 through 127.605.
(c) Protests relating to small business size status are subject to
the procedures of 19.302. An interested party seeking to protest both
the small business size and WOSB or EDWOSB status of an apparent
successful offeror shall file two separate protests.
(d) All protests shall be in writing and must state all specific
grounds for the protest.
(1) SBA will consider protests challenging the status of a concern
if--
(i) The protest presents evidence that the concern is not at least
51 percent owned and controlled by one or more women who are United
States citizens; or
(ii) The protest presents evidence that the concern is not at least
51 percent owned and controlled by one or more economically
disadvantaged women, when it is in connection with an EDWOSB contract.
(2) SBA shall consider protests by a contracting officer when the
apparent successful offeror has failed to provide all of the required
documents, as set forth in FAR 19.1503(c).
(3) Assertions that a protested concern is not a EDWOSB or WOSB
concern eligible under the WOSB Program, without setting forth specific
facts or allegations, will not be considered by SBA (see 13 CFR
127.603(a)).
(e) Protest by an interested party offeror.
(1) An offeror shall submit its protest to the contracting
officer--
(i) To be received by the close of business by the fifth business
day after bid opening (in sealed bid acquisitions); or
(ii) To be received by the close of business by the fifth business
day after notification by the contracting officer of the apparent
successful offeror (in negotiated acquisitions).
(2) Any protest received after the designated time limit is
untimely, unless it is from the contracting officer or SBA.
(f)(1) The contracting officer shall forward all protests to SBA.
The protests are to be submitted to SBA's Director for Government
Contracting, U.S. Small Business Administration, 409 Third Street SW.,
Washington, DC 20416 or by fax to 202-205-6390, Attn: Women-owned Small
Business Status Protest.
(2) The protest shall include a referral letter written by the
contracting officer with information pertaining to the solicitation.
The referral letter must include the following information to allow SBA
to determine timeliness and standing:
(i) The solicitation number.
(ii) The name, address, telephone number and facsimile number of
the contracting officer.
(iii) Whether the protestor submitted an offer.
(iv) Whether the protested concern was the apparent successful
offeror.
(v) When the protested concern submitted its offer.
(vi) Whether the acquisition was conducted using sealed bid or
negotiated procedures.
(vii) The bid opening date, if applicable.
(viii) The date the contracting officer received the protest.
(ix) The date the protestor received notification about the
apparent successful offeror, if applicable.
(x) Whether a contract has been awarded.
(g) SBA will notify the protester and the contracting officer of
the date SBA received the protest.
(h) Before SBA decision. (1) After receiving a protest involving
the apparent successful offeror's status as an EDWOSB or WOSB concern
eligible under the WOSB Program, the contracting officer shall either--
(i) Withhold award of the contract until SBA determines the status
of the protested concern; or
(ii) Award the contract after receipt of the protest but before SBA
issues its decision if the contracting officer determines in writing
that an award must be made to protect the public interest.
(2) SBA will determine the merits of the status protest within 15
business days after receipt of a protest, or within any extension of
time granted by the contracting officer.
(3) If SBA does not issue its determination within 15 business
days, or within any extension of time granted, the contracting officer
may award the contract after determining in writing that there is an
immediate need to award the contract and that waiting until SBA makes
its determination will be disadvantageous to the Government. This
determination shall be provided to the SBA's Director, Office of
Government Contracting and a copy shall be included in the contract
file.
(i) After SBA decision. SBA will notify the contracting officer,
the protester, and the protested concern of its determination. The
determination is effective immediately and is final unless overturned
on appeal by SBA's Office of Hearings and Appeals (OHA) pursuant to 13
CFR part 134.
(1) If the contracting officer has withheld contract award and SBA
has denied or dismissed the protest, the contracting officer may award
the contract to the protested concern. If OHA subsequently overturns
the SBA Director for Government Contracting's determination or
dismissal, the contracting officer may apply the OHA decision to the
procurement in question.
(2) If the contracting officer has withheld contract award, SBA has
sustained the protest and determined that the concern is not eligible
under the WOSB Program, and no OHA appeal has been filed, then the
contracting officer shall not award the contract to the protested
concern.
(3) If the contracting officer has made a written determination in
accordance with (h)(1)(ii) or (h)(3) of this section, awarded the
contract, and SBA's ruling is received after award, and no OHA appeal
has been filed, then--
(i) The contracting officer shall terminate the contract, unless
termination is not in the best interests of the Government. However,
the contracting officer shall not exercise any options or award further
task or delivery orders;
(ii) The contracting officer shall update the FPDS to reflect the
final SBA decision; and
(iii) The concern must remove its designation in the System for
Award Management (SAM) as an EDWOSB or WOSB concern eligible under the
WOSB Program, and shall not submit an offer as an EDWOSB concern or
WOSB concern eligible under the WOSB Program, until SBA issues a
decision that the ineligibility is resolved.
(4) If the contracting officer has made a written determination in
accordance with (h)(1)(ii) or (h)(3) of this section, contract award
has occurred, SBA has sustained the protest and determined that the
concern is not eligible under the WOSB Program, and a timely OHA appeal
has been filed, then the contracting officer shall consider whether
performance can be suspended until an OHA decision is rendered.
(5) If OHA affirms the SBA Director for Government Contracting's
determination finding the protested concern is ineligible, then--
(i) The contracting officer shall terminate the contract, unless
termination is not in the best interests of the Government. However,
the contracting officer shall not exercise any options or award further
task or delivery orders;
[[Page 14755]]
(ii) The contracting officer shall update the Federal Data
Procurement System (FPDS) to reflect OHA's decision; and
(iii) The concern must remove its designation in SAM as an EDWOSB
or WOSB concern eligible under the WOSB Program, and shall not submit
an offer as an EDWOSB concern or WOSB concern eligible under the WOSB
Program, until SBA issues a decision that the ineligibility is resolved
or OHA finds the concern is eligible on appeal.
(j) Appeals of EDWOSB or WOSB concerns eligible under the WOSB
Program status determinations. (1) The protested EDWOSB concern or WOSB
concern eligible under the WOSB program, the protester, or the
contracting officer may file an appeal of a WOSB or EDWOSB status
protest determination with OHA.
(2) OHA must receive the appeal no later than 10 business days
after the date of receipt of the protest determination. SBA will
dismiss an untimely appeal.
(3) See subpart G ``Rules of Practice for Appeals From Women-Owned
Small Business Concerns (WOSB) and Economically Disadvantaged WOSB
Concern (EDWOSB) Protests'' at 13 CFR 134.701 through 134.715 for SBA's
appeals regulations.
(k) The appeal must be in writing. The appeal must identify the
protest determination being appealed and must set forth a full and
specific statement as to why the EDWOSB concern or WOSB concern
eligible under the WOSB program protest determination is alleged to be
based on a clear error of fact or law, together with an argument
supporting such allegation.
(l) The party appealing the decision must provide notice of the
appeal to--
(1) The contracting officer;
(2) Director, Office of Government Contracting, U.S. Small Business
Administration, 409 Third Street SW., Washington, DC 20416, facsimile
202-205-6390;
(3) The protested EDWOSB concern or WOSB concern eligible under the
WOSB program, or the original protester, as appropriate; and
(4) SBA's Office of General Counsel, Associate General Counsel for
Procurement Law, U.S. Small Business Administration, 409 Third Street
SW., Washington, DC 20416, facsimile 202-205-6873, or email at
OPLService@sba.gov.
(m) OHA will make its decision within 15 business days of the
receipt of the appeal, if practicable. SBA will provide a copy of the
decision to the contracting officer, the protester, and the protested
EDWOSB concern or WOSB concern eligible under the WOSB program. The OHA
decision is the final agency decision and is binding on the parties.
19.402 [Amended]
0
13. Amend section 19.402 by removing from paragraph (c)(1)(ii) ``the
Woman-Owned'' and adding ``the Women-Owned'' in its place.
19.502-2 [Amended]
0
14. Amend section 19.502-2 by removing from paragraph (c) ``(see
19.102(f)(4) and (5))'' and adding ``(see 19.102(f)(6) and (7))'' in
its place.
19.508 [Amended]
0
15. Amend section 19.508 by removing from paragraph (c) and paragraph
(d) ``(see 19.102(f)(4) and (5))'' and adding ``(see 19.102(f)(6) and
(7))'' in its place.
19.703 [Amended]
0
16. Amend section 19.703 by removing from paragraph (a) introductory
text and paragraph (a)(1) ``woman-owned small business concern'' and
adding ``women-owned small business concern'' in its place; and
removing from paragraph (b) ``a woman-owned'' and adding ``a women-
owned'' in its place.
19.811-3 [Amended]
0
12. Amend section 19.811-3 by removing from paragraph (d)(2) ``(see
19.102(f)(4) and (5))'' and adding ``(see 19.102(f)(6) and (7))'' in
its place.
[FR Doc. 2013-04995 Filed 3-6-13; 8:45 am]
BILLING CODE 6820-EP-P