Federal Acquisition Regulation; Small Business Protests and Appeals, 43580-43588 [2014-17499]

Agencies

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

[Federal Register Volume 79, Number 143 (Friday, July 25, 2014)]
[Rules and Regulations]
[Pages 43580-43588]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-17499]



[[Page 43580]]

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DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Parts 4, 13, 14, 15, and 19

[FAC 2005-76; FAR Case 2012-014; Item II; 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: Final rule.

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SUMMARY: DoD, GSA, and NASA are issuing a final rule amending the 
Federal Acquisition Regulation (FAR) to implement the Small Business 
Administration's revision of the small business size and small business 
status protest and appeal procedures.

DATES: Effective: August 25, 2014.

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 FAC 2005-76, FAR Case 2012-
014.

SUPPLEMENTARY INFORMATION: 

I. Background

    DoD, GSA, and NASA published a proposed rule in the Federal 
Register at 78 FR 14746 on March 7, 2013, 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 on February 2, 2011, that amended SBA's regulations to 
clarify the effect, across all small business programs, of initial and 
appeal eligibility decisions; and SBA's interim final rule, published 
in the Federal Register at 77 FR 1857 on 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.
    In addition, this rule restructures sections of the FAR that 
address small business status protest and appeal procedures. This 
restructuring of the FAR text provides 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.

II. Discussion and Analysis

    The Civilian Agency Acquisition Council and the Defense Acquisition 
Regulations Council (the Councils) reviewed the comments in the 
development of the final rule. Two respondents submitted comments. A 
discussion of the comments and the changes made to the rule as a result 
of those comments are provided as follows:

A. Summary of Significant Changes

    The revisions made at FAR 19.001 and FAR 19.102(f) pertaining to 
the nonmanufacturer rule as identified in the proposed rule published 
in the Federal Register at 78 FR 14746 on March 7, 2013, have been 
removed. Based on the public comments received, it was determined that 
greater clarification regarding changes to the nonmanufacturer rule is 
warranted. However, a non-manufacturer must still meet the requirements 
of 13 CFR 121.406.

B. Analysis of Public Comments

1. Clarity in the Definition and Application of the Nonmanufacturer 
Rule
    Comment: Two respondents expressed concern with the definition and 
application of the nonmanufacturer rule. One respondent suggested the 
need for greater clarity in the application of the nonmanufacturer 
rule. A second respondent suggested that the language pertaining to the 
nonmanufacturing rule be republished to allow the entire range of 
interested parties to review and submit comments.
    Response: Based on the public comments received, it was determined 
that greater clarification regarding changes to the nonmanufacturer 
rule is warranted. Therefore, the proposed changes to the 
nonmanufacturer rule definition at FAR 19.001 and the nonmanufacturer 
rule at FAR 19.102(f) have not been incorporated into this final rule.
2. Wholesale Trade or Retail Trade North American Industry 
Classification System (NAICS) Codes
    Comment: One respondent commented that changes to FAR 19.303, 
Determining North American Industry Classification System codes and 
size standards, more specifically the wholesale trade or retail trade 
NAICS code revision, should have been prominently highlighted in the 
proposed rule.
    Response: SBA's regulations provide that acquisitions for supplies 
must be classified under the appropriate manufacturing NAICS code, not 
under a wholesale trade NAICS code. SBA size regulations provide that 
acquisitions for supplies also cannot be classified under a retail 
trade NAICS code. SBA provided further clarification in its final rule, 
published in the Federal Register at 76 FR 8222 on February 11, 2011, 
that retail trade NAICS codes are appropriate for financial assistance 
(e.g., loans), but not for the procurement of specified supply items. 
Although this has been long standing in SBA regulations, based on the 
public comments received, and data from the Federal Procurement Data 
System regarding the use of Wholesale Trade or Retail Trade NAICS for 
the procurement of specified supply items, it was determined that 
further analysis is needed to determine the impact this change will 
have on small businesses. Therefore, the respondent's proposed changes 
to FAR 19.303(a)(2) have not been incorporated into this final rule.
3. Recommend SBA Change Its Certification Process From ``Self'' to SBA 
Certification
    Comment: One respondent recommended SBA change its certification 
process from ``self'' to SBA certification. The respondent commented 
that increasing the amount of time for the SBA to work a size status 
protest does not fix the cause of a protest. According to the 
respondent, if the SBA would change the certification process from self 
to SBA-certification, we could eliminate the majority, if not all, of 
the ``nearly 500 size protests each fiscal year.''
    Response: This comment is outside the scope of this case. The 
authority to change the certification process is within the purview of 
SBA, not the FAR Council.

[[Page 43581]]

4. Addition of the Phrase ``Whether Timely or Not'' at FAR 19.302(c)(1)
    Comment: One respondent wrote approvingly of the addition of the 
phrase ``whether timely or not'' to FAR 19.302(c)(1) and suggested the 
text of FAR 19.302(j) be appended to the end of FAR 19.302(c)(1) to 
make it clear that untimely protests will not be considered on the 
instant acquisition.
    Response: The phrase ``whether timely or not'' in FAR 19.302(c)(1) 
predates this proposed rule. Furthermore, FAR 19.302(j) already clearly 
and effectively provides that an untimely protest cannot be considered 
on the instant acquisition. It is unnecessary to reiterate this in the 
text of FAR 19.302(c)(1).
5. Limitations on SBA's Ability To File a Protest Before or After Award
    Comment: One respondent suggested that SBA does not have the entire 
facts of an acquisition, and is not in a position to file a bona fide 
protest before or after award (unlike the PCO). The respondent further 
commented that, as written, any SBA employee could file a protest 
throughout the entire program performance period.
    Response: This comment is outside the scope of this case. The 
regulatory authority for SBA to file a protest ``before or after'' 
award is found at 13 CFR 121.1004(b).
6. Clarify How a Contracting Officer Determines the Principal Purpose 
of an Acquisition
    Comment: One respondent commented that the addition of new language 
in FAR 19.303(a)(2) too narrowly describes how the procuring 
contracting officer determines the ``principal purpose of the 
acquisition.'' The respondent further commented that 13 CFR 121.402 
includes other considerations given to the industry descriptions in the 
NAICS United States Manual, the product or service description in the 
solicitation and any attachments to it, the relative value and 
importance of the components of the procurement making up the end item 
being produced, and the function of the goods or services being 
purchased.
    Response: Additional language has been added to FAR 19.303 to 
further clarify how to select a NAICS code that best describes the 
principal purpose of the product or service being acquired.
7. Delete the Word ``Affecting'' and Use ``Changing'' in Its Place at 
FAR 19.303
    Comment: One respondent recommended that FAR 19.303 be revised to 
remove the word ``affecting'' and in its place add the word 
``changing''. The respondent stated that affecting is too difficult a 
term to define whereas changing is a known term.
    Response: The language as written is consistent with SBA 
regulations at 13 CFR 134.302.
8. Delete the Words ``Any Person'' and Use ``Any Offeror'' at 
19.303(c)(2)(i)
    Comment: One respondent recommended that the FAR Council remove the 
phrase ``Any person'' and replace with the term ``Any offeror''. The 
respondent commented that the use of any person was too broad.
    Response: The language as written is consistent with SBA 
regulations at 13 CFR 134.302.
9. SBA Authority To File a NAICS Appeal at Any Time Before Offers Are 
Due
    Comment: One respondent commented that the language at FAR 19.303 
regarding SBA's authority to file a NAICS appeal at any time before 
offers are due should be deleted as 13 CFR 134.302 does not give the 
SBA broad authority to file a NAICS appeal at any time before offers 
are due.
    Response: The language as written is consistent with SBA 
regulations at 13 CFR 134.304.
10. Notice of NAICS Code Appeals
    Comment: One respondent suggested that the instruction to withhold 
contract award upon receipt of notification of a NAICS code challenge 
be removed from FAR 19.303(c)(8) as the respondent believes SBA has no 
authority to require a contracting officer to withhold a contract award 
under these circumstances.
    Response: SBA regulations at 13 CFR 121.1103(c)(1)(i) require a 
contracting officer to stay contract award when notice of a NAICS code 
appeal is received. However, language was added to provide contracting 
officers some flexibility to address situations where withholding award 
is not in the best interests of the Government.

C. Other Changes

    The final rule provides additional guidance in FAR 19.306, 19.307, 
and 19.308 regarding protests of small business program status. This 
guidance further clarifies that the contracting officer is required to 
prepare a written determination(s) documenting the decision to (1) 
proceed with a contract award when the apparent successful offeror's 
program eligibility has been protested; and (2) not terminate a 
contract when award has been made to the protested contractor and SBA 
subsequently issues a negative program eligibility decision, or SBA's 
decision of negative program eligibility is upheld on appeal.
    This final rule also includes a revision to FAR 4.604 requiring 
contracting officers to update the Federal Procurement Data System 
(FPDS) to reflect the final decision of the SBA regarding a small 
business size determination in accordance with SBA regulations at 13 
CFR 121.1009.

III. Executive Orders 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. 
This is not a significant regulatory action and, therefore, was not 
subject to review under section 6(b) of Executive Order 12866, 
Regulatory Planning and Review, dated September 30, 1993. This rule is 
not a major rule under 5 U.S.C. 804.

IV. 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.
    DoD, GSA, and NASA have prepared a Final Regulatory Flexibility 
Analysis (FRFA) consistent with the Regulatory Flexibility Act, 5 
U.S.C. 601, et seq. The FRFA is summarized as follows:

    This final rule amends the FAR to provide revised regulatory 
coverage for small business size and small business 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 this final rule is to provide FAR procedures to 
ensure that contracts set aside for small businesses are awarded to 
eligible small business concerns. Under the Small Business Act, the 
SBA is authorized to establish the size of a business entity (15 
U.S.C. 632), make small business size and status determinations, and 
rule on small business size and status appeals. Revisions to the FAR 
are necessary to be harmonious with SBA regulations on formal size 
determinations and small business status protest and appeals 
procedures. There were no significant issues raised by the public in 
response to the Initial Regulatory Flexibility Analysis.
    This final rule will have no direct negative impact on any small 
business concern, since it is aimed at preventing other than small

[[Page 43582]]

business concerns from receiving or performing contracts set aside 
for small business concerns. This rule will indirectly benefit small 
business concerns by preventing awards to ineligible concerns, or 
shortening the length of time other than small business concerns 
perform small business 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 (67 percent of 500).
    This final rule will not impose any new information collection 
requirement on small businesses. This rule will require contracting 
officers to update Federal procurement databases to reflect final 
agency status decisions. Contracting officers should currently be 
updating these databases. This rule clarifies that this must be 
accomplished.
    The rule does not duplicate, overlap, or conflict with any other 
Federal rules.
    There were no alternatives considered because there is no other 
means to accomplish the stated objectives of the rule.

    Interested parties may obtain a copy of the FRFA from the 
Regulatory Secretariat. The Regulatory Secretariat has submitted a copy 
of the FRFA to the Chief Counsel for Advocacy of the Small Business 
Administration.

V. Paperwork Reduction Act

    The final 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: July 18, 2014.
William F. Clark,
Acting Director, Office of Government-Wide Acquisition Policy, Office 
of Acquisition Policy, Office of Government-Wide Policy.

    Therefore, DoD, GSA, and NASA amend 48 CFR parts 4, 13, 14, 15, and 
19 as set forth below:

0
1. The authority citation for 48 CFR parts 4, 13, 14, 15, and 19 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.

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 shall update the size status in FPDS within 30 days 
after receipt of contractor's notification of rerepresentation.
    (5) If after award of a contract, the contracting officer 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 the end of paragraph (a)(3) 
``Woman-owned'' and adding ``Women-owned'' in its place.

PART 14--SEALED BIDDING


14.502  [Amended]

0
4. Amend section 14.502 by removing from paragraph (b)(7) ``woman-
owned'' and ``Woman-Owned'' and adding ``women-owned'' and ``Women-
Owned'' in their places, respectively.

PART 15--CONTRACTING BY NEGOTIATION


15.503  [Amended]

0
5. Amend section 15.503 by removing from paragraph (a)(2)(i)(E) 
``Woman-Owned'' and adding ``Women-Owned'' in its place.

PART 19--SMALL BUSINESS PROGRAMS

0
6. Amend section 19.102 by--
0
a. Revising the last sentence in paragraph (f)(1);
0
b. Removing from paragraph (f)(2) ``is accounted'' and adding ``are 
accounted'' in its place; and
0
c. Revising paragraph (f)(4) to read as follows:


19.102  Size standards.

* * * * *
    (f) * * *
    (1) * * * However, see the limitations on subcontracting at 52.219-
14 that apply to any small business offeror other than a 
nonmanufacturer for purposes of set-asides and 8(a) 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 set-asides, and 
52.219-30 for set-asides for women-owned small business concerns 
eligible under the women-owned small business program.
* * * * *
    (4) In the case of acquisitions set aside for small business or 
awarded 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 a 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.
* * * * *

0
7. Amend section 19.302 by--
0
a. Revising paragraphs (a) and (c)(1);
0
b. Adding paragraph (c)(3);
0
c. Removing from the introductory text of paragraph (d)(1) introductory 
text ``the 5th'' and adding ``the fifth'' in its place;
0
d. Revising paragraphs (d)(1)(i), (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), respectively; and
0
h. Revising the newly designated paragraphs (f) through (i).
    The revisions and additions read as follows:


19.302  Protesting a small business representation or rerepresentation.

    (a)(1) The Small Business Administration (SBA) regulations on small 
business size and size protests are found at 13 CFR part 121.
    (2) An offeror, the SBA, or another interested party may protest 
the small business representation of an offeror in a specific offer. 
However, for competitive 8(a) contracts, the filing of a protest is 
limited to an offeror, the contracting officer, or the SBA.
* * * * *
    (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

[[Page 43583]]

rerepresentation of a contractor, shall promptly forward the protest to 
the SBA Government Contracting Area Director at the Government 
Contracting Area Office serving the area in which the headquarters of 
the offeror is located.
* * * * *
    (3) The protest shall include a referral letter written by the 
contracting officer with information pertaining to the solicitation. 
The referral letter must include the following information to allow SBA 
to determine timeliness and standing:
    (i) The protest and any accompanying materials.
    (ii) A copy of the size self-certification.
    (iii) Identification of the applicable size standard.
    (iv) A copy or an electronic link to the solicitation and any 
amendments.
    (v) The name, address, telephone number, email address, and fax 
number of the contracting officer.
    (vi) Identification of the bid opening date or the date of 
notification provided to unsuccessful offerors.
    (vii) The date the contracting officer received the protest.
    (viii) A complete address and point of contact for the protested 
concern.
    (d) * * *
    (1) * * *
    (i) A protest may be made orally if it is confirmed in writing and 
received by the contracting officer within the 5-day period or by 
letter postmarked no later than 1 business day after the oral protest.
    (ii) A protest may be made in writing if it is delivered to the 
contracting officer by hand, telegram, mail, facsimile, email, express 
or overnight delivery service.
    (2) Except as provided in paragraph (d)(4) of this section, a 
protest filed by the contracting officer or SBA is always considered 
timely whether filed before or after award.
* * * * *
    (4) A protest filed before bid opening, or notification to offerors 
of the selection of the apparent successful offeror, will be dismissed 
as premature by SBA.
* * * * *
    (f)(1) Within 15 business days after receipt of a protest or 
request for a formal size determination or within any extension of time 
granted by the contracting officer the SBA Area Office will determine 
the size status of the challenged concern. The SBA Area Office will 
notify the contracting officer, the protester, and the challenged 
concern of its decision by a verifiable means, which may include 
facsimile, electronic mail, or overnight delivery service.
    (2) Award may be made to a protested concern after the SBA Area 
Office has determined that either the protested concern is an eligible 
small business or has dismissed all protests against it.
    (3) If SBA's Office of Hearings and Appeals (OHA) subsequently 
overturns the Area Office's determination of eligibility or dismissal, 
and contract award has not been made, the contracting officer may apply 
the OHA decision to the procurement in question.
    (g)(1) After receiving a protest involving an offeror being 
considered for award, the contracting officer shall not award the 
contract until the SBA has made a size determination or 15 business 
days have expired since SBA's receipt of a protest, whichever occurs 
first; however, award shall not be withheld when the contracting 
officer determines in writing that an award must be made to protect the 
public interest.
    (2) If SBA has not made a determination within 15 business days, or 
within any extension of time granted by the contracting officer, the 
contracting officer may award the contract after determining in writing 
that there is an immediate need to award the contract and that waiting 
until SBA makes its determination will be disadvantageous to the 
Government.
    (3) SBA may, at its sole discretion, reopen a formal size 
determination to correct an error or mistake, if it is within the 
appeal period and no appeal has been filed with OHA or, a final 
decision has not been rendered by the SBA Area Office or OHA.
    (4) If a protest is received that challenges the small business 
status of an offeror not being considered for award, the contracting 
officer is not required to suspend contract action. The contracting 
officer shall forward the protest to the SBA (see paragraph (c)(1) of 
this section) with a notation that the concern is not being considered 
for award, and shall notify the protester of this action.
    (h) An appeal from an SBA size determination may be filed by any 
concern or other interested party whose protest of the small business 
representation of another concern has been denied by an SBA Government 
Contracting Area Director, any concern or other interested party that 
has been adversely affected by an SBA Government Contracting Area 
Director's decision, or the SBA Associate Administrator for the SBA 
program involved. The appeal must be filed with the Office of Hearings 
and Appeals, Small Business Administration, Suite 5900, 409 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. SBA will inform the 
contracting officer of its ruling on the appeal. SBA's decision, if 
received before award, will apply to the pending acquisition. If the 
contracting officer has made a written determination in accordance with 
(g)(1) or (2) of this section, the contract has been awarded, the SBA 
rulings is received after award, and OHA finds the protested concern to 
be ineligible for award, the contracting officer shall terminate the 
contract unless termination is not in the best interests of the 
Government, in keeping with the circumstances described in the written 
determination. However, the contracting officer shall not exercise any 
options or award further task or delivery orders.
    (i) SBA will dismiss untimely protests. A protest that is not 
timely, even though received before award, shall be forwarded to the 
SBA Government Contracting Area Office (see paragraph (c)(1) of this 
section), with a notation on it that the protest is not timely. A 
protest received by a contracting officer after award of a contract 
shall be forwarded to the SBA Government Contracting Area Office with a 
notation that award has been made.
* * * * *

0
8. Amend section 19.303 by revising the section heading and paragraphs 
(a) and (c) and adding paragraph (d) 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. For information on size standards matched 
to industry NAICS codes, including the use of new NAICS codes, see also 
19.102(a).
    (2) The contracting officer shall select the NAICS code which best 
describes the principal purpose of the product or service being 
acquired. Primary consideration is given to the industry descriptions 
in the U.S. NAICS Manual,

[[Page 43584]]

the product or service description in the solicitation and any 
attachments to it, the relative value and importance of the components 
of the procurement making up the end item being procured, and the 
function of the goods or services being purchased. A procurement is 
usually classified according to the component which accounts for the 
greatest percentage of contract value. 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 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. However, SBA may 
file a NAICS code appeal at any time before offers are due.
    (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 SBA Associate Administrator for Business 
Development may appeal a NAICS code designation; or
    (ii) The Associate or Assistant Director 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)(1)). Such notices shall include the procedures and the 
deadline for interested parties to file and serve arguments concerning 
the appeal.
    (4) SBA's Office of Hearings and Appeals (OHA) will dismiss 
summarily an untimely NAICS code appeal.
    (5)(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, 
email 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
    (C) The name, address, telephone number, and signature of the 
appellant or its attorney.
    (6) The appellant must serve the appeal petition upon--
    (i) The contracting officer who assigned the NAICS code to the 
acquisition; and
    (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.
    (7) 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, unless withholding award is not in the best 
interests of the Government, 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.
    (8) 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.
    (d) SBA's regulations concerning appeals of NAICS code designations 
are found at 13 CFR 121.1101 to 121.1103 and 13 CFR part 134.

0
9. Amend section 19.306 by revising paragraphs (b) through (m) to read 
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 historically underutilized business zone 
(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. Protests relating to small 
business size status for the acquisition and the HUBZone qualifying 
requirements will be processed concurrently by SBA.
    (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 the protest presents evidence that--
    (i) 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 interested party 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; or
    (ii) For negotiated acquisitions, by the close of business on the 
fifth business day after notification by the contracting officer of the 
apparently successful offeror.
    (2) Any protest received after the designated time limits is 
untimely, unless it is from the contracting officer or SBA.
    (f)(1) The contracting officer shall forward all protests to SBA. 
The protests are to be submitted to the Director, HUBZone Program, U.S. 
Small Business Administration, 409 Third Street SW., Washington, DC 
20416 or by fax to 202-

[[Page 43585]]

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 (or an electronic link to or a paper 
copy of the solicitation).
    (ii) The name, address, telephone number, fax number, and email 
address, 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 HUBZone Program Director.
    (i) After SBA decision. The HUBZone Program Director will notify 
the contracting officer, the protester, and the protested concern of 
the SBA determination. The determination is effective immediately and 
is final unless overturned on appeal by SBA's Associate Administrator, 
Office of Government Contracting and Business Development (AA/GCBD).
    (1) If the contracting officer has withheld contract award and SBA 
has determined that the protested concern is an eligible HUBZone or 
dismissed all protests against the protested concern, the contracting 
officer may award the contract to the protested concern. If AA/GCBD 
subsequently overturns the decision of the HUBZone Program Director, 
the contracting officer may apply the AA/GCBD decision to the 
procurement in question.
    (2) If the contracting officer has withheld award and the HUBZone 
Program Director has determined that the protested concern is 
ineligible, and a timely AA/GCBD appeal has not been filed, then the 
contracting officer shall not award the contract to the protested 
concern.
    (3) If the contracting officer has made a written determination in 
accordance with (h)(1)(ii) or (h)(3) of this section, awarded the 
contract, and the HUBZone Program Director's ruling sustaining the 
protest is received after award--
    (i) The contracting officer shall terminate the contract, unless 
the contracting officer has made a written determination that 
termination is not in the best interests of the Government. However, 
the contracting officer shall not exercise any options or award further 
task or delivery orders under the contract;
    (ii) The contracting officer shall update the Federal Procurement 
Data System to reflect the final decision of the HUBZone Program 
Director if no appeal is filed; 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.
    (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 HUBZone Program 
Director, finding the protested concern is ineligible, and contract 
award has occurred--
    (i) The contracting officer shall terminate the contract, unless 
the contracting officer has made a written determination that 
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 SBA will remove the concern's designation as a certified 
HUBZone small business concern. 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/GC&BD. The AA/
GC&BD must receive the appeal no later than 5 business days after the 
date of receipt of the protest determination. SBA will dismiss any 
untimely appeal.
    (k) The appeal must be in writing. The appeal must identify the 
protest determination being appealed and must set forth a full and 
specific statement as to why the decision is erroneous or what 
significant fact the HUBZone Program Director failed to consider.
    (l)(1) The party appealing the decision must provide notice of the 
appeal to--
    (i) The contracting officer;
    (ii) HUBZone Program Director, 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

[[Page 43586]]

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
10. Revise section 19.307 to read as follows:


19.307  Protecting 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 a veteran with a 
permanent and severe disability, the protester presents evidence that 
the concern is not controlled by the veteran, spouse, or permanent 
caregiver of such veteran.
    (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 include the following information to allow SBA 
to determine timeliness and standing:
    (i) The solicitation number (or an electronic link to or a paper 
copy of the solicitation).
    (ii) The name, address, telephone number, fax number, and email 
address of the contracting officer.
    (iii) Whether the contract was sole-source or set-aside.
    (iv) Whether the protestor submitted an offer.
    (v) Whether the protested concern was the apparent successful 
offeror.
    (vi) When the protested concern submitted its 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 determined that the protested concern is an eligible SDVOSB or 
dismissed all protests against the protested concern, 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 
the contracting officer has made a written determination that 
termination is not in the best interests of the Government. However, 
the contracting officer shall not exercise any options or award further 
task or delivery orders;

[[Page 43587]]

    (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 the 
contracting officer has made a written determination that 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 offers 
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 regarding the status of 
the concern is final and is binding on the parties.

0
11. 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 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 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. (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 or electronic link to or a paper copy 
of the solicitation.
    (ii) The name, address, telephone number, email address, and 
facsimile number of the contracting officer.
    (iii) Whether the protestor submitted an offer.
    (iv) Whether the protested concern was the apparent successful 
offeror.
    (v) When the protested concern submitted its offer.
    (vi) Whether the acquisition was conducted using sealed bid or 
negotiated procedures.
    (vii) The bid opening date, if applicable.
    (viii) The date the contracting officer received the protest.
    (ix) The date the protestor received notification about the 
apparent successful offeror, if applicable.
    (x) Whether a contract has been awarded.

[[Page 43588]]

    (g) SBA will notify the protester and the contracting officer of 
the date SBA received the protest.
    (h) Before SBA decision. (1) After receiving a protest involving 
the apparent successful offeror's status as an EDWOSB or WOSB concern 
eligible under the WOSB Program, the contracting officer shall either--
    (i) Withhold award of the contract until SBA determines the status 
of the protested concern; or
    (ii) Award the contract after receipt of the protest but before SBA 
issues its decision if the contracting officer determines in writing 
that an award must be made to protect the public interest.
    (2) SBA will determine the merits of the status protest within 15 
business days after receipt of a protest, or within any extension of 
that time granted by the contracting officer.
    (3) If SBA does not issue its determination within 15 business 
days, or within any extension of time granted, the contracting officer 
may award the contract after determining in writing that there is an 
immediate need to award the contract and that waiting until SBA makes 
its determination will be disadvantageous to the Government. This 
determination shall be provided to the SBA Director for Government 
Contracting and a copy shall be included in the contract file.
    (i) After SBA decision. SBA will notify the contracting officer, 
the protester, and the protested concern of its determination. The 
determination is effective immediately and is final unless overturned 
on appeal by 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 
the contracting officer has made a written determination that 
termination is not in the best interests of the Government. However, 
the contracting officer shall not exercise any options or award further 
task or delivery orders;
    (ii) The contracting officer shall update the FPDS to reflect the 
final SBA decision; and
    (iii) 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 
the contracting officer has made a written determination that 
termination is not in the best interests of the Government. However, 
the contracting officer shall not exercise any options or award further 
task or delivery orders;
    (ii) The contracting officer shall update the FPDS to reflect OHA's 
decision; and
    (iii) 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
12. Amend section 19.402 by removing from paragraph (c)(1)(ii) ``Woman-
Owned'' and adding ``Women-Owned'' in its place.


19.703  [Amended]

0
13. Amend section 19.703 by--
0
a. Removing from the introductory text of paragraph (a) ``of this 
section'' and ``woman-owned'' and adding ``of this section,'' and 
``women-owned'' in its place, respectively;
0
b. Removing from paragraph (a)(1) ``woman-owned'' and adding ``women-
owned'' in its place; and
0
c. Removing from paragraph (b) ``woman-owned'' and adding ``women-
owned'' in its place.

[FR Doc. 2014-17499 Filed 7-24-14; 8:45 am]
BILLING CODE 6820-EP-P