Federal Acquisition Regulation; Small Business Protests and Appeals, 14746-14755 [2013-04995]

Agencies

• DEPARTMENT OF DEFENSE
• General Services Administration
• National Aeronautics and Space Administration

[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: https://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 https://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 https://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