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Rules and Regulations Federal Register

7533 

Vol. 80, No. 28 

Wednesday, February 11, 2015 

SMALL BUSINESS ADMINISTRATION 

13 CFR Part 121 

RIN 3245–AG59 

Advisory Small Business Size 

Decisions 

AGENCY: Small Business Administration. 

ACTION: Final rule. 

SUMMARY: This rule implements 

provisions of the National Defense 

Authorization Act of 2013 (NDAA) 

pertaining to small business size. This 

rule amends the U.S. Small Business 

Administration’s (SBA or Agency) 

program regulations to implement 

statutory provisions establishing 

limitations of liability from fraud 

penalties for individuals or firms that 

misrepresent business concerns as being 

small for purposes of Federal 

procurement opportunities if they acted 

in good faith reliance upon small 

business status advisory opinions 

received from Small Business 

Development Centers (SBDCs) or 

Procurement Technical Assistance 

Centers (PTACs). The rule also amends 

SBA’s regulations to establish the 

criteria small business status advisory 

opinions must meet in order to be 

deemed adequate and specify the review 

process for such opinions. Finally, the 

rule further amends SBA’s regulations 

to update the circumstances under 

which SBA may initiate a formal size 

determination. 

DATES: This rule is effective August 10, 

2015. 

FOR FURTHER INFORMATION CONTACT: 

Brenda Fernandez, U.S. Small Business 

Administration, Office of Policy, 

Planning & Liaison, 409 Third Street 

SW., 8th Floor, Washington, DC 20416, 

(202) 205–7337, brenda.fernandez@

sba.gov. 

SUPPLEMENTARY INFORMATION: On 

January 2, 2013, Congress amended the 

Small Business Act to provide that the 

penalties created under 15 U.S.C. 645(d) 

for misrepresentation of a firm as a 

small business concern do not apply to 

individuals or firms that act in good 

faith reliance upon small business status 

advisory opinions they receive from 

SBDCs or PTACs. Additionally, the 

Small Business Act was amended to 

give responsibility for reviewing, 

accepting, or rejecting these small 

business status advisory opinions to 

SBA’s Office of General Counsel. 

Finally, the Small Business Act was 

further amended to require that SBA 

promulgate regulations to implement 

this provision no later than 270 days 

after the date of passage of the statutory 

amendment. 

SBA published a proposed rule 

regarding these statutory provisions in 

the Federal Register on June 25, 2014 

(79 FR 35963), inviting the public to 

submit comments on or before August 

25, 2014. 

Summary of Comments and SBA’s 

Responses 

SBA received and considered sixteen 

comments on the proposed rule. Twelve 

commenters opposed the creation of the 

limitation on liability in general and 

urged SBA not to adopt the proposed 

rule. As noted in the preamble to the 

proposed rule, Congress has mandated 

via legislation that SBA establish this 

limitation on liability protection via 

regulation. With this rule, SBA is 

implementing that legislative mandate. 

The remaining comments, as well as 

SBA’s responses to them, are discussed 

below. 

Requiring SBDCs/PTACs To Provide 

Advisory Opinions 

Two comments urged SBA to change 

the approach taken under the proposed 

rule and require SBDCs and PTACs to 

provide small business status advisory 

opinions to interested parties rather 

than giving them the authority to do so. 

SBA notes that the statutory provision 

does not mandate that SBDCs and 

PTACs perform such services. As such, 

SBA believes that the approach taken in 

the proposed rule is consistent with the 

authorizing legislation. Moreover, SBA 

notes that the PTAC program is 

administered by the Department of 

Defense, not SBA. Absent express 

statutory authority, SBA believes it 

lacks the power to impose performance 

mandates on a program administered by 

another agency. 

Additionally, with regard to SBDCs, 

15 U.S.C. 648(a)(3)(A) requires SBA to 

consult with the association 

representing SBDC grant recipients prior 

to defining the scope of activities 

conducted under the SBDC program. 

That provision further obligates SBA to 

develop, in conjunction with that 

association, the rules governing the 

general operations and administration of 

the SBDC program. Therefore, there are 

statutory obstacles to SBA unilaterally 

requiring SBDCs to provide these new 

advisory opinion services. Such new 

performance requirements may only be 

established following the consultation 

required by 15 U.S.C. 648(a)(3)(A), 

which the Agency conducts with the 

association on an annual basis. It is 

SBA’s intention to address the topic of 

small business status advisory opinions 

during the next annual consultation. 

Liability of SBDCs/PTACs 

SBA received two comments 

regarding the potential liability of 

SBDCs or PTACs that issue small 

business status advisory opinions to 

firms that subsequently turn out to be 

other than small. SBA notes that § 1681 

of the enabling legislation expressly 

provides that an SBDC or PTAC that 

issues a positive advisory opinion will 

not be liable to that business concern in 

the event SBA subsequently declines to 

accept the opinion. In cases where an 

SBDC or PTAC issues a negative 

advisory opinion for a business concern 

that is subsequently determined to be 

small, the issue of whether section 

1681’s grant of immunity from liability 

would apply in those circumstances is 

one that SBA must leave to the courts 

to determine. 

With regard to the potential liability 

of an SBDC or PTAC to third parties for 

advisory opinion it issued, while one 

commenter suggested that section 1681 

of the enabling legislation might also 

immunize an SBDC or PTAC from 

liability in those circumstances, SBA 

must similarly defer to the courts to 

determine the scope of the shield 

afforded under section 1681. 

Inherently Governmental Function 

Two commenters objected to the use 

of SBDCs and PTACs as issuers of small 

business status advisory opinions on the 

grounds that this approach will result in 

the impermissible delegation of an 


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7534 Federal Register / Vol. 80, No. 28 / Wednesday, February 11, 2015 / Rules and Regulations 

inherently governmental function. SBA 

notes that the legislation requires the 

use of SBDCs and PTACs in this role 

and the Agency is merely implementing 

that scheme. Moreover, SBA has 

historically permitted outside 

organizations to act as private certifiers 

for its contracting programs. Where 

private or outside certifiers are utilized, 

ultimate decisionmaking authority as to 

whether a firm qualifies for 

participation in its contracting 

programs, including small business setasides, still rests with SBA. In the case 

of small business status advisory 

opinions, the regulations provide that 

SBA will review and either accept or 

reject. As such, SBA does not believe 

the issuance of small business status 

advisory opinions by SBDCs and PTACs 

will lead to the delegation of an 

inherently governmental function. In 

addition, the firm’s size may always be 

challenged through a size protest in 

connection with an actual procurement. 

Evidence of Business Size 

One commenter requested that SBA 

provide more detailed guidance and 

specific examples regarding the type of 

evidence a firm could provide to an 

SBDC or PTAC to adequately document 

its compliance with the size standards. 

SBA concurs with this suggestion and 

has amended § 121.109(b)(4) 

accordingly. 

Qualifications of SBDC or PTAC 

Employees Issuing Advisory Opinions 

One commenter alleged that the 

phrase ‘‘counselor or similarly qualified 

employee’’ as used in § 121.109(b)(3) 

may create uncertainty or confusion on 

the part of SBDCs or PTACs. However, 

there was insufficient information 

provided for SBA to create an 

alternative term to describe these 

individuals. SBA does agree with the 

suggestion that it would be beneficial to 

provide periodic training on SBA’s size 

rules to SBDCs and PTACs to enable 

them to better carry out their roles 

under this rule. SBA is currently 

exploring the most effective method of 

accomplishing that objective. 

Timeframe for Issuing Advisory 

Opinions 

One commenter suggested that SBA 

impose a deadline on the length of time 

SBDCs and PTACs are allowed to take 

when preparing small business status 

advisory opinions. SBA has no reason to 

doubt the capability or responsiveness 

of SBDCs and PTACs in this area. SBA 

notes that the performance of SBDCs 

and PTACs in carrying out their duties 

is already being monitored and policed 

by the program offices charged with 

administering their grant agreements. As 

such, the responsiveness and timeliness 

of SBDCs and PTACs will be taken into 

account during the regular grant 

recipient performance review process 

and any shortcomings on their parts will 

be addressed during that process. 

However, SBA does reserve the right to 

impose such a deadline if circumstances 

subsequently demonstrate a need for it. 

Review of Advisory Opinions 

SBA concurs with one commenter’s 

request that firms which receive small 

business status advisory opinions 

holding that they are other than small be 

permitted to seek review of those 

determinations. Therefore, SBA is 

amending 13 CFR 121.1001 to permit a 

firm that receives a negative advisory 

opinion (i.e., an opinion concluding that 

it is other than small) from an SBDC or 

PTAC to request that SBA conduct a 

formal size determination of it. 

Furthermore, with regard to the 

review of advisory opinions rejected by 

SBA, it is SBA’s intention to 

immediately initiate a formal size 

determination for each firm that is the 

subject of an advisory opinion that is 

rejected by the Agency. Affected firms 

will thus be able to avail themselves of 

the standard appeals process set forth in 

13 CFR 121.1101. 

Expiration of Advisory Opinions 

One commenter suggested that small 

business status advisory opinions issued 

by SBDCs and PTACs should expire, or 

that the remoteness in time from when 

they were issued should be taken into 

account when determining whether they 

are entitled to avail themselves of the 

safe harbor provision. SBA rejects this 

suggestion. The enabling statute does 

not include a provision calling for the 

expiration of advisory opinions and 

does not envision that the safe harbor 

protection is something that should be 

switched on or off. As the statute makes 

clear, firms that receive positive 

advisory opinions are automatically 

entitled to protection from liability. Of 

course, a firm’s size status can be 

protested in connection with an actual 

procurement. 

Moreover, such an approach would be 

inconsistent with the treatment given 

formal size determinations, which do 

not expire absent a material change in 

circumstances. See 13 CFR 121.1009. 

However, SBA does believe that 

§ 121.109 of the new rule should make 

clear that a firm is no longer justified in 

relying upon a positive advisory 

opinion where it has experienced a 

material change in circumstances with 

regard to its average annual receipts or 

its number of employees. SBA has 

therefore amended § 121.109 

accordingly. 

Other Comments 

In addition to the comments received 

from the public, SBA also received 

comments during its internal review 

cycle which recommended that the 

Agency simplify and streamline the 

process of issuing small business status 

advisory opinions by requiring SBDCs 

and PTACs to utilize the same form SBA 

relies upon when making size 

determinations. These internal 

commenters also suggested that SBA 

clarify that SBDCs and PTACs must take 

into account the principles of affiliation 

established under 13 CFR 121.103 when 

issuing advisory opinions. SBA concurs 

with these recommendations and has 

therefore amended § 121.109 

accordingly. 

Compliance With Executive Orders 

12866, 12988, 13132, 13175, 13563, the 

Regulatory Flexibility Act (5 U.S.C. 

601–612), and the Paperwork 

Reduction Act (44 U.S.C., Chapter 35) 

Executive Order 12866 

The Office of Management and Budget 

(OMB) has determined that this final 

rule is not a significant regulatory action 

under Executive Order 12866. This is 

also not a ‘‘major’’ rule under the 

Congressional Review Act, 5 U.S.C. 801, 

et seq. 

Executive Order 12988 

This action meets applicable 

standards set forth in Sections 3(a) and 

3(b)(2) of Executive Order 12988, Civil 

Justice Reform, to minimize litigation, 

eliminate ambiguity, and reduce 

burden. The action does not have 

retroactive or preemptive effect. 

Executive Order 13132 

For purposes of Executive Order 

13132, SBA has determined that this 

final rule will not have substantial 

direct effects on the States, on the 

relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government. Therefore, for the 

purpose of Executive Order 13132, 

Federalism, SBA determines that this 

final rule has no federalism implications 

warranting preparation of federal 

assessment. 

Executive Order 13175 

For purposes of Executive Order 

12175, SBA has determined that this 

final rule will not will not have 

substantial direct effects on one or more 

Indian Tribes, on the relationship 

between the Federal Government and 


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Indian Tribes, or on the distribution of 

power and responsibilities between the 

Federal Government and Indian Tribes. 

Therefore, for the purpose of Executive 

Order 13175, Consultation and 

Coordination with Indian Tribal 

Governments, SBA determines that this 

final rule does not require consultations 

with tribal officials or warrant the 

publication of a Tribal Summary Impact 

Statement. 

Executive Order 13563 

As part of its ongoing efforts to engage 

stakeholders in the development of its 

regulations, SBA consulted with 

representatives from the contracting 

community regarding the intent of this 

rule and the various components related 

to it. No concerns or comments were 

raised that needed to be addressed in 

this rule. 

Paperwork Reduction Act, 44 U.S.C. 

Ch. 35 

At the proposed rule stage SBA 

concluded this rule imposed no 

reporting or recordkeeping 

requirements. However, during review 

of this final rule, SBA realized it erred 

in its conclusion. Specifically, as 

outlined in section 121.109(b), in order 

to obtain an advisory opinion on their 

size status, concerns must submit to 

SBDCs and PTACs information to 

support their claims, including payroll 

records, time sheets, federal income tax 

returns, or other documentation that 

would show concerns annual receipts or 

number of employees. SBDCs and 

PTACS will use submit this information 

to SBA as basis for their opinions. The 

information to concerns will submit to 

SBDCs and PTACs is the same 

information that concerns currently 

submit to SBA for a size determination 

using SBA Form 355, Information for 

Small Business Size Determination. 

Therefore, SBA will amend this 

information collection to include this 

additional use and submit same to OMB 

for approval. 

Regulatory Flexibility Analysis, 5 U.S.C. 

601–612 

SBA has determined that this rule 

may have a significant impact on a 

substantial number of small entities 

within the meaning of the Regulatory 

Flexibility Act, 5 U.S.C. 601–612. In 

accordance with 5 U.S.C. 603(b), SBA 

sets forth a regulatory flexibility 

analysis (RFA) of this final rule 

addressing the following topics: (1) The 

legal basis, need for, and objective of the 

rule; (2) a description and estimate of 

the number of small entities to which 

the rule will apply; (3) the projected 

reporting, record keeping, and other 

compliance requirements of the rule; (4) 

the relevant Federal rules which may 

duplicate, overlap or conflict with the 

rule; and (5) any significant alternatives 

that would allow the Agency to 

accomplish its regulatory objectives 

while minimizing the impact on small 

entities. 

1. What is the legal basis, need for, 

and objective of the rule? Pursuant to 

section 1681 of Public Law 112–239, 

SBA is statutorily required to publish a 

regulation granting an exemption from 

the misrepresentation penalties imposed 

under 15 U.S.C. 645(d) in cases where 

a party’s erroneous claim to small 

business status stems from its good faith 

reliance upon an advisory opinion 

issued by an SBDC or PTAC. SBA is also 

obligated under § 1681 to define via 

regulation what constitutes an adequate 

advisory opinion and to review and 

accept or reject all advisory opinions 

issued by SBDCs and PTACs. In 

addition to giving effect to these 

statutory mandates, the final rule also 

establishes the procedures and timeline 

by which SBA will review advisory 

opinions. 

2. What is SBA’s description and 

estimate of the number of small entities 

to which the rule will apply? Because 

SBA’s programs do not apply to small 

governmental jurisdictions or small 

organizations, only small businesses 

will be affected by this final rule. 

Additionally, the final rule will not 

apply to all small businesses generally, 

but only to those firms that represent 

themselves as being small for purposes 

of federal procurement opportunities. 

The limitation on liability provision 

of the final rule will only affect those 

firms that incorrectly claim status as 

small business concerns after obtaining 

small business status advisory opinions 

from SBDCs or PTACs. In Fiscal Year 

2014, SBA determined that 

approximately 137 firms that had 

represented themselves as being small 

for purposes of federal procurement 

opportunities were not small. Most of 

these cases did not involve fraud, but 

instead were the result of errors or 

misunderstandings of the size 

regulations. To date, SBA is unaware of 

any firms being penalized under 15 

U.S.C. 645(d) for fraudulently 

misrepresenting themselves as small 

business concerns. Therefore, SBA 

anticipates that the limitation on 

liability provision of the final rule will 

impact very few concerns. 

With regard to the small business 

status advisory opinion provision of the 

final rule, SBA notes that neither SBDCs 

nor PTACs are required to provide such 

opinions under the language of the 

statute. It is currently unknown how 

many SBDCs and PTACs will elect to 

provide such services, particularly given 

that no additional funding will be 

awarded to them to cover the cost of 

these services. Moreover, it is unclear 

how much demand there will be for 

such services from those SBDCs and 

PTACs that offer them. While it is thus 

impossible to gauge the number of small 

businesses that will obtain these 

services, SBA anticipates that very few 

concerns will be affected by the small 

business status advisory opinion 

provision of the final rule. 

3. What are the projected reporting, 

record keeping, and other compliance 

requirements of the rule and an estimate 

of the classes of small entities which 

will be subject to the requirements? 

There would be no additional reporting 

or recordkeeping requirements imposed 

by the rule, but there would be certain 

minor compliance requirements. 

Businesses that believe they are small 

and that wish to receive advisory 

opinions to that effect from SBDCs or 

PTACs would be required to provide 

information documenting the basis for 

that belief to SBDCs or PTACs and attest 

to its accuracy. 

4. What are the relevant Federal rules 

which may duplicate, overlap or conflict 

with the rule? The Federal Acquisition 

Regulation (FAR) defers to and 

incorporates the substance of the 

provisions set forth in SBA’s regulations 

for issues pertaining to business size. To 

the extent the FAR is inconsistent with 

size rules implemented by SBA, the 

FAR would need to be changed to be 

consistent. 

5. Are there any significant 

alternatives that would allow the 

Agency to accomplish its regulatory 

objectives while minimizing the impact 

on small entities? SBA has considered a 

number of alternatives to the final rule. 

One alternative SBA has considered 

would have permitted firms to simply 

self-certify to SBDCs or PTACs that they 

are small. Another alternative SBA 

considered would have had the General 

Counsel review the SBDC or PTAC 

advisory opinions rather than the 

Associate General Counsel, Office of 

Procurement Law. SBA has not 

incorporated the first alternative in the 

final rule because it would render any 

advisory opinion pro forma and would 

not provide the Agency with any basis 

for accepting or rejecting the opinion. 

With regard to the second alternative, 

SBA did not propose it given the 

substantial time demands already 

placed upon the General Counsel. SBA 

believes that delegating this 

responsibility to the Associate General 

Counsel, Office of Procurement Law 

would permit the Agency to provide a 


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7536 Federal Register / Vol. 80, No. 28 / Wednesday, February 11, 2015 / Rules and Regulations 

quicker turnaround time for reviewing 

advisory opinions and would take 

advantage of the established subject 

matter expertise of that official. 

List of Subjects in 13 CFR Part 121 

Administrative practice and 

procedure, Reporting and recordkeeping 

requirements, and Small Businesses. 

For the reasons stated in the 

preamble, SBA amends 13 CFR part 121 

as follows: 

PART 121—SMALL BUSINESS SIZE 

REGULATIONS 

■ 1. The authority citation for part 121 

continues to read as follows: 

Authority: 15 U.S.C. 632, 634(b)(6), 662, 

and 694a(9). 

■ 2. Amend 121.108 by revising the 

section heading and adding paragraph 

(e)(4) to read as follows: 

§ 121.108 What are the penalties for 

misrepresentation of size status? 

* * * * * 

(e) * * * 

(4) Limitation on Liability. An 

individual or business concern will not 

be subject to the penalties imposed 

under 15 U.S.C. 645(a) where it acted in 

good faith reliance on a small business 

status advisory opinion accepted by 

SBA under § 121.109. 

§ 121.109 [Redesignated as § 121.110] 

■ 3. Redesignate § 121.109 as § 121.110. 

■ 4. Add new § 121.109 to read as 

follows: 

§ 121.109 What is a small business status 

advisory opinion? 

(a) Defined. A small business status 

advisory opinion is a written opinion 

issued by either a Small Business 

Development Center (SBDC) operating 

under part 130 of this chapter or a 

Procurement Technical Assistance 

Center (PTAC) operating under 10 

U.S.C. chapter 142 which concludes 

that a firm is entitled to represent itself 

as a small business concern for purposes 

of federal government procurement 

opportunities. 

(b) Submission. An SBDC or PTAC 

must submit a copy of each small 

business status advisory opinion it 

issues to the following Agency official 

for review: Associate General Counsel, 

Office of Procurement Law, U.S. Small 

Business Administration, 409 Third 

Street SW., Washington, DC 20416 or by 

fax to (202) 205–6390 marked Attn: 

Small Business Status Advisory 

Opinion. A small business status 

advisory opinion must: 

(1) Provide a written analysis 

explaining the reasoning underlying the 

SBDC or PTAC’s determination that the 

covered concern, along with its 

affiliates, either does or does not exceed 

the size standard(s). This analysis must 

be dated and signed by an SBDC or 

PTAC business counselor or similarly 

qualified individual. 

(2) Include, as an attachment, a 

completed copy of an SBA Form 355 for 

the covered concern and its affiliates. 

(3) Include, as an attachment, copies 

of the evidence (such as payroll records, 

time sheets, federal income tax returns, 

etc.) provided by the covered concern to 

the SBDC or PTAC clearly documenting 

its annual receipts and/or number of 

employees as those terms are defined by 

§§ 121.104 and 121.106. 

(c) Review. Unless a referral is made 

under paragraph (e) of this section, SBA 

will decide within 10 business days of 

receiving a small business status 

advisory opinion to accept or reject it 

based on its consistency with part 121. 

SBA will provide written notification of 

that decision to the SBDC or PTAC that 

issued the small business status 

advisory opinion as well as to the 

covered concern. 

(d) Reliance. A concern that receives 

a small business status advisory opinion 

holding that it does not exceed the 

applicable size standard(s) may rely 

upon that determination for purposes of 

responding to Federal procurement 

opportunities from the date it is issued 

unless and until that advisory opinion 

is rejected by SBA in accordance with 

paragraph (c) of this section or the 

concern undergoes a significant change 

in its ownership, management, or other 

factors bearing on its status as a small 

business concern. However, the firm’s 

size may be protested by interested 

parties in connection with a specific 

procurement. 

(e) Referral for size determination. 

Nothing in this section precludes the 

Associate General Counsel, Office of 

Procurement Law from requesting a 

formal size determination for a concern 

that is the subject of a small business 

status advisory opinion pursuant to 

§ 121.1001(b)(9). 

(f) Penalties for misrepresentation— 

(1) Suspension or debarment. The SBA 

suspension and debarment official may 

suspend or debar a person or concern 

for misrepresenting a concern’s size for 

purposes of obtaining a small business 

size status advisory opinion pursuant to 

the procedures set forth in 48 CFR 

subpart 9.4. 

(2) Civil penalties. Persons or 

concerns are subject to severe penalties 

under the False Claims Act, 31 U.S.C. 

3729–3733, and under the Program 

Fraud Civil Remedies Act, 331 U.S.C. 

3801–3812, and any other applicable 

laws. 

(3) Criminal Penalties. Persons or 

concerns are subject to severe criminal 

penalties for knowingly misrepresenting 

the small business size status of a 

concern in connection with 

procurement programs pursuant to 

section 16(d) of the Small Business Act, 

15 U.S.C. 645(d), as amended, 18 U.S.C. 

1001, 18 U.S.C. 287, and any other 

applicable laws. Persons or concerns are 

subject to criminal penalties for 

knowingly making false statements or 

misrepresentations for the purpose of 

influencing any actions of SBA pursuant 

to section 16(a) of the Small Business 

Act, 15 U.S.C. 645(a), as amended, 

including failure to correct ‘‘continuing 

representations’’ that are no longer true. 

■ 4. Amend § 121.1001 by revising 

paragraph (b)(9), redesignating 

paragraph (b)(10) as paragraph (b)(11), 

and adding new paragraph (b)(10) to 

read as follows: 

§ 121.1001 Who may initiate a size protest 

or request a formal size determination? 

* * * * * 

(b) * * * 

(9) For other purposes related to 

protecting the integrity of the Federal 

procurement process, including 

validating that firms listed in the 

System for Award Management database 

are small, the Government Contracting 

Area Director or the Director, Office of 

Government Contracting may initiate a 

formal size determination when 

sufficient information exists that calls 

into question a firm’s small business 

status. The current date will be used to 

determine size, and SBA will initiate 

the process to remove from the database 

the small business designation of any 

firm found to be other than small. 

(10) For purposes of determining 

compliance with small business 

requirements for firms relying upon 

small business status advisory opinions, 

the Associate General Counsel, Office of 

Procurement Law may request a formal 

size determination. Additionally, any 

firm that is the subject of a small 

business status advisory opinion 

holding that it is other than small may 

request a formal size determination. 

* * * * * 

Dated: January 28, 2015. 

Maria Contreras-Sweet, 

Administrator. 

[FR Doc. 2015–02746 Filed 2–10–15; 8:45 am] 

BILLING CODE 8025–01–P 


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