Proposed FAR Rule Addresses Small Business Protests and Appeals

The Department of Defense, General Services Administration, and National Aeronautics and Space Administration are proposing to amend the Federal Acquisition Regulation to update the small business size and small business status protest and appeal procedures, and protest and appeal timeframes, and to address the application of the Small Business Administration’s decisions on size and other small business status determinations. The proposed changes follow recent SBA rules clarifying the effect of initial and appeal eligibility decisions ( ¶70,425.420), making the protest and appeal procedures of SBA’s Women-Owned Small Business Federal Contract Program consistent with all other small business programs ( ¶70,425.450), and addressing changes with regard to North American Industry Classification System code determinations and the nonmanufacturer rule ( ¶70,425.461).


The rule would revise FAR 19.302 to increase the amount of time SBA has, after receiving a protest, to make a size determination 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 CO in the event a size or status determination is not received within the 15-day timeframe or any extension; clarify that SBA’s Office of Hearing and Appeals has the discretion to accept an appeal from a size determination and 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; and require the CO to consider whether contract performance can be suspended until an OHA judge renders a decision. FAR 19.306, FAR 19.307, and FAR 19.308 would be revised to provide consistent guidance on the application of protest and appeal decisions to federal acquisitions. The rule proposes to restructure FAR 19.306 and FAR 19.307 to make them consistent with the reconfiguration of FAR 19.308 that was accomplished under FAR Case 2010–015, Women-Owned Small Business (WOSB) Program ( FAC 2005-51). Comments referencing FAR Case 2012-014 are due May 6, 2013. A complete listing of the affected FAR provisions appears in the regulation table below. For the text of the proposed rule, see ¶70,006.276.