Overview
FAR 19.810 establishes the formal administrative process and timelines for the Small Business Administration (SBA) to appeal specific adverse decisions made by a contracting officer regarding the 8(a) Program to the head of the procuring agency.
Key Rules
- Appealable Matters: The SBA Administrator may appeal disagreements regarding:
- The decision not to set aside a specific acquisition for the 8(a) Program.
- The rejection of a specific 8(a) participant for an award after the requirement was already accepted into the program.
- Contract terms and conditions, specifically including NAICS code designations and fair market price estimates.
- Determinations that a requirement previously in the 8(a) program is "new" (to circumvent SBA release requirements).
- Notification Timelines: SBA must provide notice of intent to appeal within 5 working days of the contracting officer's decision. This notice must also be sent to the agency’s OSDBU (or OSBP for the DoD).
- Filing Deadline: The formal written appeal must be submitted to the agency head within 15 working days of the initial notice of intent; failure to meet this deadline results in the appeal being considered withdrawn.
- Suspension of Award: Upon notification of an intent to appeal, the contracting officer must suspend action on the acquisition unless a written determination is made that "urgent and compelling circumstances" require proceeding.
- Documentation: If the appeal is denied, the agency head must provide a written explanation of the reasons for denial (such as participant incapability), which becomes a permanent part of the contract file.
Practical Implications
- Regulatory Oversight: This section serves as a critical check on a contracting officer’s discretion, ensuring that agencies cannot easily remove requirements from the 8(a) program or use arbitrary NAICS codes without potential intervention from the SBA.
- Procurement Delays: Agencies must factor in the 20-day total appeal window (5 days for intent plus 15 days for filing) when planning 8(a) acquisitions, as a formal SBA appeal can effectively freeze a procurement unless high-threshold "urgent and compelling" justifications are documented.