219.3-DETERMINATION OF STATUS AS A SMALL BUSINESS CONCERN
by the offeror.
(a) A concern must qualify as a small
disadvantaged business (SDB) on the date of submission of its initial offer
including price to be eligible for-
(i) Award under a small disadvantaged
(b) The contracting officer shall protest
an offeror's representation that it is a small disadvantaged business concern
(ii) Preferential consideration as an
SDB under a partial set-aside; or
(iii) An evaluation preference for SDBs.
(i) There is conflicting evidence;
(ii) The offeror represents that the
Small Business Administration previously determined the concern to be non-disadvantaged;
(iii) The offeror represents its ownership
as other than Black American, Hispanic American, Native American (including
Indian tribes and Native Hawaiian organizations), Asian Pacific American,
or Subcontinent Asian American; unless the offeror represents that-
(A) It currently is in the Section
8(a) program; or
(B) Within the 6 months preceding submission
of its offer, the offeror was determined by the Small Business Administration
to be socially and economically disadvantaged, and no circumstances have
changed to vary that determination.
219.302 Protesting a small
a small disadvantaged business representation.
This section applies to protests of a small
business concern's status as socially and economically disadvantaged. Protests
of a concern's size are processed under FAR 19.302. Any offeror, the contracting
officer, or the Small Business Administration (SBA) may protest a concern's
representation of disadvantaged status.
(a) An offeror may protest a concern's
representation of disadvantaged status by filing a protest with the contracting
officer. The protest-
(b) The contracting officer or the SBA
may protest a concern's representation of disadvantaged status at any time.
The appeal must be filed with the SBA's
Associate Administrator for Minority Small Business and Capital Ownership
Development within five working days after receipt of the determination.
If the contracting officer receives the SBA's decision on the appeal before
award, the decision shall apply to the instant acquisition. If the decision
is received after award, it will apply to future acquisitions.
(1) If a contracting officer's protest
is based on information brought to his/her attention by a party ineligible
to protest directly or ineligible to protest under the timeliness standard,
the contracting officer must be persuaded by the evidence presented before
adopting the grounds for protest as his or her own.
(c) The contracting officer shall return
untimely protests to the protestor. This includes protests filed before
bid opening or notification of apparent successful offeror.
(2) The SBA protests a concern's representation
of disadvantaged status by filing directly with its Office of Program Eligibility
and notifying the contracting officer.
(d) Upon receipt of a timely protest,
the contracting officer shall withhold award and forward the protest to
the SBA Office of Program Eligibility, Office of Minority Small Business
and Capitol Ownership Development, 409 3rd Street, SW., Washington, DC
20416. Send SBA-
(1) The protest;
(e) Do not withhold award when-
(2) The date the protest was received
and a determination of timeliness; and
(3) The date of bid opening or date
on which notification of apparent successful offeror was sent to unsuccessful
(1) The contracting officer makes a
written determination that award must be made to protect the public interest;
(f) The SBA Director, Office of Program
Eligibility, will determine the disadvantaged status of the challenged
offeror and notify the contracting officer, the challenged offeror, and
the protestor. Award may be made on the basis of that determination. The
determination is final for purposes of the instant acquisition, unless-
(g) If the contracting officer does not
receive an SBA determination within 15 working days after the SBA's receipt
of the protest, the contracting officer shall presume that the challenged
offeror is socially and economically disadvantaged. Do not use the presumption
as a basis for award without first inquiring as to when a determination
can be expected and waiting for the determination, unless further delay
in award would be disadvantageous to the Government.
(2) The offeror represents that, within
the 6 months preceding submission of its offer, the SBA has determined
the concern to be socially and economically disadvantaged, and no circumstances
have changed to vary that determination.
(h) An SBA determination may be appealed
(1) The interested party whose protest
has been denied;
(2) The concern whose status was protested;
(3) The contracting officer.
219.304 Solicitation provisions.
(b) Use the provision at 252.219-7000,
Small Disadvantaged Business Concern Representation (DoD Contracts) instead
of the provision at FAR 52.219-2, Small Disadvantaged Business Concern