Subpart 19.3 - Determination of Small

Business Size and Status for Small Business

Programs

Parent topic: Part 19 - Small Business Programs

19.301 Representations and rerepresentations.

19.301-1 Representation by the offeror.

(a)

(1)To be eligible for award as a small business concern identified in 19.000(a)(3), an offeror is

required to represent in good faith—

(i)

(A)That it meets the small business size standard corresponding to the North American Industry

Classification System (NAICS) code identified in the solicitation; or

(B)For a multiple-award contract where there is more than one NAICS code assigned, that it meets

the small business size standard for each distinct portion or category ( e.g., line item numbers,

Special Item Numbers (SINs), sectors, functional areas, or the equivalent) for which it submits an

offer. If the small business concern submits an offer for the entire multiple-award contract, it must

meet the size standard for each distinct portion or category ( e.g., line item number, SIN, sector,

functional area, or equivalent); and

(ii)The Small Business Administration (SBA) has not issued a written determination stating otherwise

pursuant to 13 CFR 121.1009.

(2)

(i)A joint venture may qualify as a small business concern if the joint venture complies with the

requirements of 13 CFR 121.103(h) and 13 CFR 125.8(a) and (b) and if—

(A)Each party to the joint venture qualifies as small under the size standard for the solicitation; or

(B)The protégé is small under the size standard for the solicitation in a joint venture comprised of a

mentor and protégé with an approved mentor-protégé agreement under an SBA mentor-protégé

program.

(ii)A joint venture may qualify for an award under the socioeconomic programs as described in

subparts 19.8, 19.13, 19.14, and 19.15.

(b) An offeror is required to represent its size and socioeconomic status in writing to the contracting
officer at the time of initial offer, (whether or not the offer includes price or the price is evaluated),

including offers for—

(1) Basic ordering agreements (see 16.703); and

(2) Blanket purchase agreements (BPAs) issued pursuant to part 13.

(c) To be eligible for an award of an order under a basic ordering agreement or a BPA issued

pursuant to part 13 as a small business concern identified in 19.000(a)(3), the offeror must be a

small business concern identified in 19.000(a)(3) at the time of award of the order.

(d) To be eligible for an award under the HUBZone Program (see subpart 19.13), a HUBZone small

business concern must be a HUBZone small business concern at the time of initial offer.

(e) Multiple-award contract representations:

(1) A business that represents as a small business concern at the time of its initial offer for the

contract (whether or not the offer includes price or the price is evaluated (see 13 CFR

121.404(a)(1)(iv)), is considered a small business concern for each order issued under the contract

(but see 19.301-2 for rerepresentations).

(2) A business that represents as a small business concern at the time of its initial offer for a distinct

portion or category as set forth in paragraph (a)(1)(ii) is considered a small business concern for

each order issued under that distinct portion or category (but see 19.301-2 for rerepresentations).

(f) The contracting officer shall accept an offeror’s representation in a specific bid or proposal that it

is a small business unless (1) another offeror or interested party challenges the concern’s small

business representation or (2) the contracting officer has a reason to question the representation.

Challenges of and questions concerning a specific representation shall be referred to the SBA in

accordance with 19.302.

(g) An offeror’s representation that it is a small business is not binding on the SBA. If an offeror’s

small business status is challenged, the SBA will evaluate the status of the concern and make a

determination, which will be binding on the contracting officer, as to whether the offeror is a small

business. A concern cannot become eligible for a specific award by taking action to meet the

definition of a small business concern after the SBA has determined that it is not a small business.

(h) If the SBA determines that the status of a concern as a small business, veteran-owned small

business, service-disabled veteran-owned small business, HUBZone small business, small

disadvantaged business, or women-owned small business has been misrepresented in order to obtain

a set-aside contract, an 8(a) subcontract, a subcontract that is to be included as part or all of a goal

contained in a subcontracting plan, or a prime or subcontract to be awarded as a result, or in

furtherance of any other provision of Federal law that specifically references Section 8(d) of the

Small Business Act for a definition of program eligibility, the SBA may take action as specified in

Sections 16(a) or 16(d) of the Act. If the SBA declines to take action, the agency may initiate the

process. The SBA’s regulations on penalties for misrepresentations and false statements are

contained in 13 CFR 121.108 for small business, 13 CFR 124.501 for 8(a) small business, 13 CFR

128.600 for veteran or service-disabled veteran-owned small business, 13 CFR 126.900 for HUBZone

small business, and 13 CFR 127.700 for economically disadvantaged women-owned small business

concerns and women-owned small business (WOSB) concerns eligible under the WOSB Program.
19.301-2 Rerepresentation by a contractor that represented itself as a small

business concern.

(a) Definition. As used in this subsectionLong-term contract means a contract of more than five years in duration, including options.

However, the term does not include contracts that exceed five years in duration because the period

of performance has been extended for a cumulative period not to exceed six months under the clause

at 52.217-8, Option to Extend Services, or other appropriate authority.

(b) A contractor that represented itself as any of the small business concerns identified in

19.000(a)(3) before contract award is required to rerepresent its size and socioeconomic status—

(1) For the NAICS code(s) in the contract–

(i) Within 30 days after execution of a novation agreement or within 30 days after modification of the

contract to include the clause at 52.219-28, Post-Award Small Business Program Rerepresentation, if

the novation agreement was executed prior to inclusion of this clause in the contract;

(ii) Within 30 days after a merger or acquisition (whether the contractor acquires or is acquired by

another company) of the contractor that does not require novation or within 30 days after

modification of the contract to include the clause at 52.219-28, Post-Award Small Business Program

Rerepresentation, if the merger or acquisition occurred prior to inclusion of this clause in the

contract;

(iii) For long-term contracts–

(A) Within 60 to 120 days prior to the end of the fifth year of the contract; and

(B) Within 60 to 120 days prior to the date specified in the contract for exercising any option

thereafter; or

(2) For the NAICS code assigned to an order under a multiple-award contract, if the contracting

officer requires contractors to rerepresent their size and socioeconomic status for that order.

(c) A contractor is required to rerepresent its size status in accordance with the size standard in

effect at the time of its rerepresentation that corresponds to the NAICS code that was initially

assigned to the contract. For multiple-award contracts where there is more than one NAICS code

assigned, the contractor is required to rerepresent its size status for each NAICS code assigned to

the contract.

(d)

(1) Contract rerepresentation. After a contractor rerepresents for a contract that it no longer

qualifies as a small business concern identified in 19.000(a)(3) in accordance with 52.219-28, the

agency may no longer include the value of options exercised, modifications issued, orders issued, or

purchases made under BPAs on that contract in its small business prime contracting goal

achievements. When a contractor's rerepresentation for a contract qualifies it as a different small

business concern identified in 19.000(a)(3) than what it represented for award, the agency may

include the value of options exercised, modifications issued, orders issued, or purchases made under

BPAs on that contract in its small business prime contracting goal achievements, consistent with the
rerepresentation. Agencies should issue a modification to the contract capturing the

rerepresentation and report it to FPDS within 30 days after notification of the rerepresentation.

(2) Rerepresentation for a task or delivery order.

(i) When a contractor rerepresents for an order that it no longer qualifies as a small business

concern identified in 19.000(a)(3), the agency cannot include the value of the order in its small

business prime contracting goal achievements. When a contractor's rerepresentation for an order

qualifies it as a different small business concern identified in 19.000(a)(3) than what it represented

for contract award, the agency can include the value of the order in its small business prime

contracting goal achievement, consistent with the rerepresentation.

(ii) A rerepresentation for an order does not change the size or socioeconomic status representation

for the contract.

(e) A change in size status does not change the terms and conditions of the contract. However, the

contracting officer may require a subcontracting plan for a contract containing 52.219-9, Small

Business Subcontracting Plan, if a prime contractor's size status changes from small to other than

small as a result of a size rerepresentation (see 19.705-2(b)(3)).

19.301-3 Rerepresentation by a contractor that represented itself as other

than a small business concern.

A contractor that represented itself as other than small before contract award may, but is not

required to, rerepresent its size status when-

(a) The conditions in 19.301-2(b) apply; and

(b) The contractor qualifies as a small business concern under the applicable size standard in effect

at the time of its rerepresentation.

19.302 Protesting a small business representation or

rerepresentation.

(a)

(1) The SBA regulations on small business size and size protests are found at 13 CFR part 121 .

(2) An offeror, the contracting officer, SBA, or another interested party may protest the small

business representation of an offeror in a specific offer for a contract. However, for competitive 8(a)

contracts, the filing of a protest is limited to an offeror, the contracting officer, or the SBA.

(b) Any time after offers are received by the contracting officer, or in the case of bids, opened, the

contracting officer may question the small business representation of any offeror in a specific offer

by filing a contracting officer's protest (see paragraph (c) of this section).
(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 at

the Government Contracting Area Office serving the area in which the headquarters of the offeror is

located.

(2) The protest, or confirmation if the protest was initiated orally, shall be in writing and shall

contain the basis for the protest with specific, detailed evidence to support the allegation that the

offeror is not small. The SBA will dismiss any protest that does not contain specific grounds for the

protest.

(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) A copy or an electronic link to the solicitation and any amendments.

(v) The name, address, telephone number, email address, and fax number of the contracting officer.

(vi) Identification of the bid opening date or the date of 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) In order to affect a specific solicitation, a protest must be timely. SBA’s regulations on timeliness

are contained in 13 CFR121.1004. SBA’s regulations on timeliness related to protests of

disadvantaged status are contained in 13 CFR124, Subpart B.

(1) To be timely, a protest by any concern or other interested party must be received by the

contracting officer (see paragraphs (d)(1)(i) and (ii) of this section) by the close of business of the

fifth business day after bid opening (in sealed bid acquisitions) or receipt of the special notification

from the contracting officer that identifies the apparently successful offeror (in negotiated

acquisitions) (see 15.503(a)(2)).

(i) A protest may be made orally if it is confirmed in writing and received by the contracting officer

within the 5-day period or by letter postmarked no later than 1 business day after the oral protest.

(ii) A protest may be made in writing if it is delivered to the contracting officer by hand, mail,

facsimile, e-mail, express or overnight delivery service.

(2) Except as provided in paragraph (d)(4) of this section, a protest filed by the contracting officer or

SBA is always considered timely whether filed before or after award.

(3) A protest under a Multiple Award Schedule will be timely if received by SBA at any time prior to
the expiration of the contract period, including renewals.

(4) A protest filed before bid opening, or notification to offerors of the selection of the apparent

successful offeror, will be dismissed as premature by SBA.

(e) Upon receipt of a protest from or forwarded by the Contracting Office, the SBA will-

(1) Notify the contracting officer and the protester of the date it was received, and that the size of

the concern being challenged is under consideration by the SBA; and

(2) Furnish to the concern whose representation is being protested a copy of the protest and a blank

SBA Form355, Application for Small Business Determination, by certified mail, return receipt

requested.

(f)

(1) Within 15 business days after receipt of a protest or request for a formal size determination or

within any extension of time granted by the contracting officer the SBA Area Office will 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 a verifiable means, which may include

facsimile, electronic mail, or overnight delivery service.

(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) If SBA’s Office of Hearings and Appeals (OHA) subsequently overturns the Area Office's

determination of eligibility 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) 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 or, a final decision has not

been rendered by the SBA Area Office or OHA.

(4) 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 3 rd Street, SW., Washington,

DC 20416, within the time limits and in strict accordance with the procedures contained in Subpart

C of 13 CFR 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 134, the contracting officer shall consider suspending contract performance until an

SBA Judge decides the appeal. 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, 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.

(i) SBA will dismiss untimely protests. A protest that is not timely, even though received before

award, shall be forwarded to the SBA Government Contracting Area Office (see paragraph (c)(1) of

this section), with a notation on it that the protest is not timely. A protest received by a contracting

officer after award of a contract shall be forwarded to the SBA Government Contracting Area Office

with a notation that award has been made.

(j) When a concern is found to be other than small under a protest concerning a size status

rerepresentation made in accordance with the clause at 52.219-28, Post-Award Small Business

Program Rerepresentation, a contracting officer may permit contract performance to continue, issue

orders, or exercise option(s), because the contract remains a valid contract.

19.303 [Reserved].

19.304 Small disadvantaged business status.

(a) The contracting officer may accept an offeror’s representation that it is a small disadvantaged

business concern (SDB) concern.

(b) The provision at 52.219-1, Small Business Program Representations, or 52.212-3(c)(5), Offeror

Representations and Certifications-Commercial Products and Commercial Services, is used to collect

SDB data.

(c) A representation of SDB status on a Federal prime contract will be deemed a misrepresentation

of SDB status if the firm does not meet the requirements of 13 CFR 124.1001.

(d)Any person or entity that misrepresents a firm's status as an SDB concern in order to obtain a

contracting opportunity in accordance with section 8(d) of the Small Business Act, ( 15 U.S.C.

637(d)) will be subject to the penalties imposed by section 16(d) of the Small Business Act, (15

U.S.C. 645(d)), as well as any other penalty authorized by law.
19.305 Reviews of SDB status.

This section applies to reviews of a small business concern's SDB status as a prime contractor or

subcontractor.

(a) SBA may initiate the review of SDB status on any firm that has represented itself to be an SDB on

a prime contract or subcontract to a Federal prime contract whenever it receives credible

information calling into question the SDB status of the firm.

(b) Requests for an SBA review of SDB status may be forwarded to the Small Business

Administration, Assistant Administrator for SDBCE, 409 Third Street, SW, Washington, DC 20416.

(c) An SBA review of a subcontractor's SDB status differs from a formal protest. Protests of a

concern's size as a prime contractor are processed under 19.302. Protests of a concern's size as a

subcontractor are processed under 19.703(b).

19.306 Protesting a firm’s status as a HUBZone small

business concern.

(a) Definition. As used in this sectionInterested party has the meaning given in 13 CFR 126.103.

(b)

(1) For sole-source procurements, SBA or the contracting officer may protest the prospective

contractor's certified HUBZone status; for all other procurements, SBA, the contracting officer, or

any other interested party may protest the apparent successful offeror's certified HUBZone status

(see 13 CFR 126.800).

(2) The Director of SBA's Office of the HUBZone Program will determine whether the concern has

certified HUBZone status. If SBA upholds the protest, SBA will remove the concern's HUBZone

status in the Dynamic Small Business Search (DSBS). 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. Protests relating to small business size status for

the acquisition and the HUBZone eligibility requirements will be processed concurrently by SBA.

(d)

(1) All protests must be in writing and must state all specific grounds for the protest ( i.e., why the

protested concern did not meet the eligibility requirements at 13 CFR 126.200 at the time of the

concern's application to SBA for certification as a HUBZone small business concern or at the time

SBA certified or last recertified the concern as a HUBZone small business concern). Assertions that

a protested concern is not a HUBZone small business concern, without setting forth specific facts or
allegations, will not be considered by SBA (see 13 CFR 126.801(b)).

(2) Protests filed against a HUBZone joint venture must state one or, if applicable, both of the

following:

(i) Why the HUBZone small business party to the joint venture did not meet the eligibility

requirements at 13 CFR 126.200 at the time of its application to SBA for certification or at the time

SBA certified or last recertified the concern as a HUBZone small business concern.

(ii) Why the joint venture did not meet the requirements at 13 CFR 126.616 at the time of

submission of its offer for a HUBZone contract.

(e) Submission of a protest.

(1) An interested party shall submit its written 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; or

(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.

(3) SBA will consider protests for HUBZone set-aside or sole-source service contracts or orders, if a

HUBZone prime contractor is unduly reliant on a small entity subcontractor that is not a similarlysituated entity as defined in 13 CFR 125.1, or if such subcontractor performs the primary and vital

requirements of the contract. For allegations that the prime contractor is unduly reliant on an otherthan-small subcontractor, see size protests at 19.302, and 13 CFR 121.103(h)(2), which treats the

pair as joint venturers for size determination purposes (the “ostensible subcontractor rule”).

(f) The contracting officer shall forward all protests with a referral letter to the Director of SBA's

Office of the HUBZone Program, by email to hzprotests@sba.gov. The referral letter shall include

the following—

(1) The solicitation number;

(2) The contracting officer's name and contact information;

(3) The type of HUBZone contract ( i.e., sole-source, set-aside, full and open competition with a

HUBZone price evaluation preference, or reserve for HUBZone small business concerns under a

multiple-award contract);

(4) For a procurement conducted using full and open competition with a HUBZone price evaluation

preference, whether the protester's opportunity for award was affected by the preference;

(5) For a HUBZone set-aside, whether the protester submitted an offer;
(6) Whether the protested concern was the apparent successful offeror;

(7) Whether the procurement was conducted using sealed bid or negotiated procedures;

(8) The bid opening date, if applicable;

(9) The date the protester was notified of the apparent successful offeror;

(10) The date the contracting officer received the protest;

(11) The date the protested concern submitted its initial offer or quote to the contracting officer; and

(12) Whether a contract has been awarded, and if so, the date of award and contract number.

(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 if—

(A) SBA does not issue its decision within 15 business days after receipt of the protest; and

(B) The contracting officer determines in writing that there is an immediate need to award the

contract and that waiting for SBA's determination will be disadvantageous to the Government.

(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.

(i) After SBA decision. The SBA will notify the contracting officer, the protester, and the protested

concern of the SBA determination. The determination is effective immediately and is final unless

overturned on appeal by SBA’s Associate Administrator, Office of Government Contracting and

Business Development (AA/GC&BD).

(1) If the contracting officer has withheld contract award and SBA has determined that the protested

concern is an eligible HUBZone or dismissed all protests against the protested concern, the

contracting officer may award the contract to the protested concern. If the AA/GC&BD subsequently

overturns the initial determination or dismissal, the contracting officer may apply the AA/GC&BD

decision to the procurement in question.

(2) If the contracting officer has withheld award and the HUBZone Program Director has determined

that the protested concern is ineligible, and a timely AA/GC&BD appeal has not 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)(B) of this

section, awarded the contract, and the Director of SBA's Office of the HUBZone Program's ruling

sustaining the protest is received after award—

(i) The contracting officer shall either—
(A) Terminate the contract; or

(B)

(1) Make a written determination that termination is not in the best interests of the Government; and

(2) Not exercise any options or award further task or delivery orders under the contract.

(ii) SBA will remove the concern's designation as a certified HUBZone small business concern in the

Dynamic Small Business Search (DSBS). The concern is not permitted to submit an offer as a

HUBZone small business concern until SBA issues a decision that the ineligibility is resolved; and

(iii) After SBA updates the concern's designation as a HUBZone small business in DSBS, the

contracting officer shall update the Federal Procurement Data System (FPDS) to reflect the final

decision of the HUBZone Program Director if no appeal is filed.

(4) If the contracting officer has made a written determination in accordance with (h)(1)(ii)(B) 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/GC&BD appeal has been filed, then the contracting

officer shall consider whether performance can be suspended until an AA/GC&BD decision is

rendered.

(5) If the AA/GC&BD affirms the decision of the HUBZone Program Director, finding the protested

concern is ineligible, and contract award has occurred—

(i) The contracting officer shall either—

(A) Terminate the contract; or

(B)

(1) Make a written determination that termination is not in the best interests of the Government; and

(2) Not exercise any options or award further task or delivery orders under the contract;

(ii) SBA will remove the concern's designation as a certified HUBZone small business concern in

DSBS. The concern is not permitted to submit an offer as a HUBZone small business concern until

SBA issues a decision that the ineligibility is resolved or the AA/GC&BD finds the concern is eligible

on appeal; and

(iii) After SBA updates the concern's designation as a HUBZone small business in DSBS, the

contracting officer shall update FPDS to reflect the AA/GC&BD decision.

(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/GC&BD. The AA/GC&BD 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.

(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 decision is erroneous or what

significant fact the HUBZone Program Director failed to consider.

(l)

(1) The party appealing the decision must provide notice of the appeal to-

(i) The contracting officer; and

(ii) 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 HUBZone Program Director's determination or that are based on disagreement with

the findings and conclusions contained in the determination.

(m) The AA/GC&BD 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/GC&BD's decision is the final

decision.

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 134.1002(b).

(b)

(1) General. For sole source acquisitions, the contracting officer, the Department of Veterans Affairs

(VA), or SBA may protest the apparently successful offeror’s service-disabled veteran-owned small

business (SDVOSB) status. For all other acquisitions, any interested party may protest the

apparently successful offeror’s service-disabled veteran-owned small business status.

(2) SBA’s protest regulations are found in 13 CFR 128.500 and 13 CFR part 134.

(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) OHA will consider protests challenging the SDVOSB 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 VA 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

128.102; 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 a 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; or

(iii) For set-aside or sole-source service contract or order ostensible subcontractor protests, the

protester presents credible evidence of the alleged undue reliance on a small entity subcontractor

that is not a similarly-situated entity as defined in 13 CFR 125.1, or credible evidence that the small

non-similarly situated entity is performing the primary and vital requirements of the contract. For

allegations that the prime contractor is unduly reliant on an other-than-small subcontractor, see size

protests at 19.302, and 13 CFR 121.103(h)(2), which treats the pair as joint venturers for size

determination purposes (the “ostensible subcontractor rule”); or

(iv) For joint venture protests, the protester presents evidence that the managing SDVOSB joint

venture partner does not meet the requirements at 13 CFR 128.402.

(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 OHA (see 13

CFR 134.1005).

(e) Protest by an interested party.

(1) An interested party (except contracting officers should see paragraph (f)(1) of this section) 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);

(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);

(iii) To be received by close of business on the fifth business day after notification by the contracting

officer of the intended awardee for an order that is set aside for SDVOSBs under a multiple-award

contract that was not totally or partially set aside or reserved for SDVOSB concerns. This paragraph

(e)(1)(iii) does not apply to an order issued under a Federal Supply Schedule (FSS) contract; or

(iv) To be received by the close of the fifth business day after notification by the contracting officer

of the intended awardee for a blanket purchase agreement that is set aside for SDVOSBs under a

multiple-award contract that was not totally or partially set aside or reserved for SDVOSB concerns.

This paragraph (e)(1)(iv) does not apply to a blanket purchase agreement issued under a FSS

contract.

(2) Any protest received after the designated time limits is untimely, except—

(i) The VA or SBA may file an SDVOSB status protest at any time; and

(ii) The contracting officer, SBA, or VA may file an SDVOSB status protest at any time after the

apparent awardee has been identified or after bid opening, whichever applies.
(f) Forwarding protests to SBA.

(1) The contracting officer shall forward all protests to the U.S. Small Business Administration,

Office of Hearings and Appeals, 409 Third Street, SW, Washington, DC 20416, or by email at

OHAfilings@sba.gov, marked “Attn: SDVOSB 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 OHA

to determine timeliness and standing:

(i) The solicitation number (or an electronic link to or a paper copy of the solicitation).

(ii) The name, address, telephone number, and email address 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 initial offer that included price.

(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) Notification by OHA. OHA will notify the protester, the protested concern, SBA’s Director of

Government Contracting (D/GC), SBA Counsel, and the contracting officer of the date OHA received

the protest.

(h) Before OHA decision.

(1) After receiving a protest involving the apparent successful offeror's status as an SDVOSB

concern, the contracting officer shall either-

(i) Withhold award of the contract until OHA determines the status of the protested concern; or

(ii) Award the contract after receipt of the protest but before OHA issues its decision if the

contracting officer determines in writing that an award must be made to protect the public interest.

The contracting officer shall notify OHA and SBA D/GC in writing of the determination and a copy

shall be included in the contract file.

(2) OHA will determine the merits of the status protest.

(3) OHA does not have a standard timeline for issuing decisions.

(i) After OHA decision. OHA will notify the contracting officer, the protester, and the protested
concern of its decision. The decision is effective immediately and is final.

(1) If the contracting officer has withheld contract award and OHA has determined that the

protested concern is an eligible SDVOSB or dismissed all protests against the protested concern,

then the contracting officer may award the contract to the protested concern.

(2) If the contracting officer has withheld contract award, and OHA has sustained the protest and

determined that the concern is not an SDVOSB, 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 paragraph

(h)(1)(ii) of this section, the contract has been awarded, and the OHA decision to sustain the protest

is received after award-

(i) The contracting officer shall terminate the contract, unless the contracting officer has made a

written determination that 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 FPDS to reflect the final OHA decision; and

(iii) The concern must remove its designation in the System for Award Management (SAM) as an

SDVOSB concern within 2 days of the OHA decision. SBA will update the concern’s SDVOSB status

in SAM if the concern fails to do so. The concern shall not submit an offer as a SDVOSB concern or

an SDVOSB concern eligible under the SDVOSB Program, until the concern is designated as an

SDVOSB by SBA in the SBA Veteran Small Business Certification Program database at

https://veterans.certify.sba.gov.

(4) A concern found to be ineligible may not submit future offers as an SDVOSB concern until the

concern is designated as an SDVOSB by SBA in the SBA Veteran Small Business Certification

Program database at https://veterans.certify.sba.gov.

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

Women-Owned Small Business Program.

(a) Definition. Interested party, as used in this section, has the meaning given in 13 CFR 127.102.

(b)

(1) For sole source acquisitions, the contracting officer or SBA may protest the offeror’s status as an

economically disadvantaged women-owned small business (EDWOSB) concern or as a WOSB

concern eligible under the WOSB Program. For all other acquisitions, an interested party (see 13

CFR 127.102) may protest the apparent successful offeror’s EDWOSB or WOSB status.

(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;

(ii) The protest presents evidence that the concern is not at least 51 percent owned and controlled

by one or more economically disadvantaged women who are United States citizens, when it is in

connection with an EDWOSB contract; or

(iii) For WOSB or EDWOSB set-aside or sole-source service contracts or orders, the protest presents

evidence that the prime contractor is unduly reliant on a small entity subcontractor that is not a

similarly-situated entity as defined in 13 CFR 125.1, or a protest alleging that such subcontractor is

performing the primary and vital requirements of a set-aside or sole-source WOSB or EDWOSB

contract. For allegations that the prime contractor is unduly reliant on an other-than-small

subcontractor, see size protests at 19.302, and 13 CFR 121.103(h)(2), which treats the pair as joint

venturers for size determination purposes (the “ostensible subcontractor rule”).

(2) Assertions that a protested concern is not an 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.

(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 by email at wosbprotest@sba.gov .

(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 or electronic link to or a paper copy of the solicitation.

(ii) The name, address, telephone number, email address, 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 that 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 Director for

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 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 the contracting officer has made a

written determination that 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) SBA will remove the concern's designation in the Dynamic Small Business Search (DSBS) as an

EDWOSB or WOSB concern eligible under the WOSB Program. The concern 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 the contracting officer has made a

written determination that 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 OHA’s decision; and

(iii) SBA will remove the concern's designation in DSBS as an EDWOSB or WOSB concern eligible

under the WOSB Program. The concern 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, by email at

wosbprotest@sba.gov ;

(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, or e-mail 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.

19.309 Solicitation provisions and contract clauses.

(a)

(1) Insert the provision at 52.219-1, Small Business Program Representations, in solicitations

exceeding the micro-purchase threshold when the contract is for supplies to be delivered or services

to be performed in the United States or its outlying areas, or when the contracting officer has

applied this part in accordance with 19.000(b)(1)(ii).

(2) Use the provision with its Alternate I in solicitations issued by DoD, NASA, or the Coast Guard.

(3) Use the provision with its Alternate II in solicitations that will result in a multiple-award contract

with more than one NAICS code assigned. This is authorized for solicitations issued after October 1,

2025 (see 19.102(b)).

(b) When contracting by sealed bidding, insert the provision at 52.219-2, Equal Low Bids, in

solicitations when the contract is for supplies to be delivered or services to be performed in the

United States or its outlying areas, or when the contracting officer has applied this part in

accordance with 19.000(b)(1)(ii).

(c)

(1) Insert the clause at 52.219-28, Post-Award Small Business Program Rerepresentation, in

solicitations and contracts exceeding the micro-purchase threshold when the contract is for supplies

to be delivered or services to be performed in the United States or its outlying areas, or when the

contracting officer has applied this part in accordance with 19.000(b)(1)(ii).

(2) Use the clause with its Alternate I in solicitations and the resulting multiple-award contracts with

more than one NAICS code. This is authorized for solicitations issued after October 1, 2025 (see

19.102(b)).