Overview
FAR 19.302 outlines the formal process and mandatory timelines for challenging an offeror's claim to small business status during a federal procurement. It establishes the roles of the Contracting Officer and the Small Business Administration (SBA) in adjudicating these disputes to ensure only eligible firms receive set-aside benefits.
Key Rules
- Standing: Protests can be filed by any offeror, the Contracting Officer (CO), the SBA, or other interested parties, though competitive 8(a) protests are limited to offerors, the CO, or the SBA.
- Timeliness for Offerors: For negotiated acquisitions, an offeror must file a protest within five business days after receiving notice of the apparently successful offeror; for sealed bids, it is five business days after bid opening.
- Timeliness for CO/SBA: Protests filed by the CO or the SBA are generally considered timely at any time, whether before or after an award is made.
- Specificity Requirement: Protests must be in writing and contain specific, detailed evidence supporting the allegation that the firm is not small; "fishing expeditions" or unsupported allegations are dismissed by the SBA.
- The 15-Day Stay: Upon receipt of a timely protest, the CO must generally withhold award for at least 15 business days while the SBA makes a determination, unless the CO determines in writing that an urgent award is necessary to protect the public interest.
- Appeals: SBA Area Office decisions can be appealed to the SBA Office of Hearings and Appeals (OHA), which can lead to contract termination if a firm is found ineligible after award.
Practical Implications
- Procurement Delays: Contracting Officers must build "protest windows" into their acquisition schedules, as a timely size protest can automatically stall an award for three weeks or more.
- Post-Award Rerepresentation: If a contractor is found to be "other than small" following a rerepresentation protest (per FAR 52.219-28), the government can continue the contract but can no longer count the funding toward its small business goals.