frigeration maintenance: Provided, however, That whenever the contracting officer determines prior to the issuance of bids that the estimated value of one of the foregoing services constitutes more than 50 percent of the estimated value of the entire contract, the contract shall not be classified as base maintenance but in the industry in which such service is classified.

[32 F.R. 2626, Feb. 8, 1967]

§ 1-1.702 Small business policies.

(a) General policy. It is the policy of the Government to aid, counsel, assist, and protect, insofar as possible, the interests of small business concerns in order to preserve free competitive enterprise; and to place with small business concerns a fair proportion of the total Government purchases and contracts for property and services (including contracts for maintenance, repair, construction, and research and development).

(b) Specific policies. The following specific small business policies shall be followed by procurement agencies in order to further the general policy stated in (a) of this § 1-1.702:

(1) Small business concerns shall be afforded an equitable opportunity to compete for prime contracts and subcontracts.

(2) Bidders mailing lists (see § 1-2.205 of this chapter) shall include all established and potential small business suppliers who have made acceptable application for inclusion or who appear from other information (including recommendations by the SBA representative) to be qualified for inclusion therein. Prior to the issuance of invitations for bids and within the framework of the time available, contracting officers should make every reasonable effort to find additional small business sources (including notification to SBA where there is no local SBA representative), except where bidders lists are already excessively long and not all bidders thereon will be solicited as provided in subparagraph (3) of this paragraph and § 1-2.205-4 of this chapter.

(3) Invitations for bids or requests for proposals shall be sent to all firms on the appropriate mailing list except that where less than a complete list is used pursuant to § 1-2.205-4, a pro rata number of small business concerns shall be solicited.

(4) Proposed procurements and contract awards shall be publicized in the

"Commerce Business Daily" in accordance with Subpart 1-1.10.

(5) Procurement of property and services shall be divided into reasonably small lots (not less than economic production runs) in order to permit bidding on quantities less than the total requirements.

(6) The maximum amount of time practicable (see § 1.202-1) shall be allowed for preparation and submission of bids and proposals.

(7) Delivery schedules shall be established on a realistic basis which will encourage small business participation to the extent consistent with the actual requirements of the Government.

(8) Applicable specifications, plans, and drawings either shall be furnished with invitations for bids and requests for proposals or, when not so furnished, information as to locations where they may be obtained or examined shall be fur nished.

(9) Procurements shall be set aside for exclusive participation by small business concerns in accordance with § 1-1.706.

(10) In the event of equal low bids, preference shall be given to small business concerns in accordance with § 1-2.407-6.

(11) Subcontracting to small business concerns shall be encouraged in accordance with § 1-1.710.

(12) Procurement agencies and SBA are responsible for consulting and cooperating in carrying out the purposes of the Small Business Act, as amended (15 U.S.C. 631-647), in accordance with § 1-1.705.

(13) Placement of small purchases with small business concerns shall be encouraged (see § 1-3.602).

(14) Small business firms seeking Government contracts, but found to lack qualifications as prime contractors, should be referred to the nearest SBA office for management assistance, counseling, financial assistance, and other programs of assistance as may be appropriate.

[29 F.R. 10104, July 24, 1964, as amended at 36 F.R. 3117, Feb. 18, 1971]

§ 1-1.703 Determination of status as a small business concern.

§ 1-1.703-1 Representation by bidder or offeror.

(a) Except as provided in paragraph (b) of this § 1-1.703-1, the contracting officer shall accept as conclusive for the

purpose of a specific procurement a representation by a bidder or offeror that it is a small business concern as defined by SBA.

(b) In the submission of a bid or offer in connection with a specific procurement, a concern which meets the criteria in § 1-1.701 and which either has not been determined by the SBA to be ineligible, or has been determined to be ineligible but has subsequently been certified by the SBA as being a small business, may represent that it is a small business. A representation by a bidder or offeror that it is a small business concern shall be effective, even though questioned in accordance with the terms of § 1-1.703-2, unless the SBA, in response to such question and pursuant to the procedures set forth in § 1-1.703-2, determines that the bidder or offeror in question is not a small business concern. The controlling point in time for a determination concerning the size status of a questioned bidder or offeror shall be the date of award, except that no bidder or offeror shall be eligible for award as a small business concern unless it has in good faith represented itself as a small business prior to the opening of bids or the closing date for the submission of offers (see § 1-2.405 (b) regarding minor informalities and irregularities in bids). In the absence of a written protest or other information which would cause him to question the veracity of the self-certification of the bidder or offeror, the contracting officer shall accept the self-certification at face value for the particular procurement involved. If the contracting officer has cause to question the veracity of a self-certification and elects to do so, he shall refer the eligibility issue to the SBA by filing a formal protest pursuant to § 1-1.703–2. If SBA determines that a concern is ineligible as a small business concern for the purpose of a particular procurement, that concern cannot thereafter become eligible for the purpose of such procurement by taking affirmative acts to constitute itself a small business.

[36 F.R. 16656, Sept. 25, 1971]
§ 1-1.703-2 Protest regarding

business status.

small

(a) Any bidder or offeror or other interested party may challenge the small business status of any other bidder or offeror on a particular procurement by sending or delivering a written protest, as defined in paragraph (b) of this § 11.703-2, to the contracting officer respon

sible for the particular procurement. Any contracting officer who receives a timely protest, or who wishes to question the small business status of a bidder or offeror himself, shall promptly forward such protest (or submit his protest) to the SBA district office serving the geographical area in which the principal office of the protested concern, not including its affiliates, is located.

(b) As used in this section, "protest" means a statement in writing from any bidder or offeror on a particular procurement (or from any other party interested therein) alleging that another bidder or offeror on such procurement is not a small business concern. The statement shall contain the basis for the protest, together with specific detailed evidence in support of the protestant's claim. Such protest must be received by the contracting officer prior to the close of business on the 5th working day after bid opening date or closing date for receipt of proposals, except that in the case of negotiated procurements, a protest may be filed with the contracting officer by any other offeror or other interested party within 5 working days after receipt from the contracting officer of notification of the identity of the offeror being protested. A protest received after such time limits shall be timely for the purpose of the procurement in question if, in the case of a mailed protest, such protest is sent by registered or certified mail and the postmark thereon indicates that the protest would have been delivered within the time limit but for delays beyond the control of the protestant or, in the case of a telegraphed protest, the telegram date and time line indicates that the protest would have been delivered within the time limit but for delays beyond the control of the protestant. An untimely protest or one received after award of a contract, even though timely, shall be forwarded to the SBA district office serving the geographical area in which the principal office of the protested concern, not including its affiliates, is located. The SBA will make a determination on the protest but such determination shall not apply to the procurement in question. The contracting officer may at any time after bid or proposal opening question the small business status of any bidder or offeror for the purpose of a particular procurement by filing a written protest with the SBA district office in which the principal office of the protested concern,

not including its affiliates, is located. A protest by a contracting officer shall be timely for the purpose of the procurement in question whether filed before or after award.

(c) Upon receipt of a protest, the SBA district director or his delegatee will immediately notify the contracting officer and the protestant of the date such protest was received and that the size of the concern being protested is being considered by SBA. The SBA district director or his delegatee shall also immediately advise the protested bidder or offeror of the receipt of the protest and shall forward to the protested bidder or offeror a copy of the protest and a blank SBA Form 355, Application for Small Business Determination, by certified mail with return receipt requested. Such bidder or offeror must, within 3 working days after receiving the copy of the protest and the SBA Form 355, file the completed form as directed by SBA, and must attach thereto a statement in answer to the allegations in the letter of protest, together with evidence to support its position. If such bidder or offeror does not submit the completed SBA Form 355 with the attached statement and supporting evidence within the filing period provided herein, or within any additional period of time granted by SBA for cause, the SBA will rule that the protested concern is other than a small concern.

(d) SBA will, within 10 working days, if possible, after receipt of a protest, investigate and determine the small business status of the protested bidder or offeror and, by certified mail with return receipt requested, notify the contracting officer, the protestant, and the protested bidder or offeror of its decision. Such decision shall be final unless appealed in accordance with paragraph (f) of this § 1-1.703-2 and the procuring activity is notified of the appeal prior to award. If an award has been made prior to the time the contracting officer receives notice of the appeal, the contract awarded shall be presumed to be valid and any determination rendered by SBA concerning the small business status of the concern involved shall be considered in future procurements.

(e) Following receipt by the contracting officer of a protest as set forth in paragraphs (a) and (b) of this § 11.703-2, procurement action by the procuring activity shall be suspended pend

ing SBA's determination of the status of the protested bidder or offeror or the expiration of the 10-day period prescribed in paragraph (d) of this § 11.703-2, unless unusual conditions make it necessary that an award be made. If SBA's determination is not received by the contracting officer within 10 working days after SBA's receipt of the protest, the contracting officer shall ascertain when such determination can be expected. In cases where further delay in awarding the contract would be disadvantageous to the Government, it shall be presumed that the protested bidder or offeror is a small business concern.

(f) (1) An appeal from a size determination made by an SBA Regional Director or his delegatee may be taken by: (i) Any concern or other interested party which has protested the small business status of another concern pursuant to paragraphs (a) and (b) of this § 11.703-2 and whose protest has been denied by the SBA Regional Director or his delegatee; (ii) any concern or other interested party which has been adversely affected by the decision of the SBA Regional Director or his delegatee; or (iii) the SBA Associate Administrator for the SBA program involved. Written notices of appeal shall be addressed to the Chairman, Size Appeals Board, Small Business Administration, Washington, DC 20416. An appeal from a decision concerning the small business status of a bidder or offeror involved in a pending procurement may be taken within 5 working days after receipt of a decision by an SBA Regional Director or his delegatee. Unless written notice of such an appeal is received by the SBA Size Appeals Board before the close of business on the fifth working day after receipt of the decision, the appellant will be deemed to have waived its rights of appeal insofar as the pending procurement is concerned.

(2) No particular form is prescribed for the notice of appeal. However, the appellant shall submit to the SBA Size Appeals Board an original and four legible copies of such notice and, to avoid time-consuming correspondence, the notice should include the following information: (i) Name and address of the concern on which the size determination was made; (ii) the character of the determination from which the appeal is taken and its date; (iii) if applicable, the IFB or contract number and date, and

the name and address of the contracting officer; (iv) a concise and direct statement of the reasons why the decision of the SBA Regional Director or his delegatee is alleged to be erroneous; (v) documentary evidence in support of such allegations; and (vi) action sought by the appellant.

(3) The SBA Size Appeals Board shall promptly acknowledge receipt of the notice of appeal and shall send a copy of such notice to the appropriate SBA Regional Director or his delegatee and to the contracting officer (if a pending procurement is involved). If the appellant is not the concern whose size status is in question, the Size Appeals Board shall also send a copy of the notice of appeal to such concern. The Board shall also notify all known interested parties that the appeal has been filed. In its discretion, the Board may also provide any of such interested parties with copies of the appellant's notice of appeal, or parts thereof, when the Board determines that this would be in the interest of fairness or would assist in the performance of its functions. After an appeal has been filed, any other interested party may file with the Board a signed statement, together with four legible copies thereof, as to why the appeal should or should not be denied. Such statement and supporting evidence shall be mailed or delivered to the SBA Size Appeals Board within 5 days of receipt of appropriate notification of appeal or other action in the proceeding unless an extension is granted for cause by the Chairman of the Board. If the appellant is the concern whose size status is in question, the Board will provide copies of such statements and appropriate evidence submitted in connection with the appeal (or reconsideration thereof) to such appel

lant.

(4) The SBA Size Appeals Board will consider the appeal on the written submission of the parties. The Board, in its discretion, may also conduct an oral inquiry to assist it in arriving at the facts necessary for deciding the appeal. After consideration of all relevant information, the Board will promptly render a decision which will state the reason for such decision. The decision of the SBA Size Appeals Board will be predicated upon the entire record and the Board will state in writing the basis for its findings and conclusions. The Chairman of the Board will promptly notify, in writing, the appellant and other interested parties (in

cluding the contracting officer if a pending procurement is involved) of the Board's decision, together with the reasons therefor.

(5) Within no more than 5 working days following a decision in a size appeal case, any interested party may petition the SBA Size Appeals Board for reconsideration upon presentation of appropriate justification therefor. The request for reconsideration may be in any form, with an original and four legible copies. Grounds for reconsideration will be (i) a material error of fact in the original decision, or (ii) relevant information not previously considered by the Board or relevant information not previously available to any of the parties involved. When a request for reconsideration is made by any of the interested parties, such requesting party must demonstrate to the Board that the grounds for reconsideration involve facts or information which were not previously presented to the Board through no fault or omission of such party. The Board will notify all interested parties that a request for reconsideration has been received.

(6) The SBA Size Appeals Board will consider the request for reconsideration upon the statement and other evidence submitted by the petitioners and any other evidence which the Board, in its discretion, deems necessary. If the Board denies the request for reconsideration, it will notify all parties. If the request for reconsideration is granted, the Board will so notify all interested parties and I will set forth a reasonable time within which the interested parties, if appropriate, may submit additional information. The Board may, in its discretion, provide interested parties with copies of appropriate information submitted by other parties where it determines that this is necessary in the interest of fairness or to better assist the Board in its factfinding functions. Following its reconsideration of the matter, the Board will promptly render its decision in the same manner as provided in subparagraph (4) of this paragraph. Thereafter, the Board will notify all interested parties of its decision.

(g) The determination of the appropriate classification of a product or service establishing the small business definition to be used in a specific procurement shall be made by the contracting officer. The contracting officer's determination of the appropriate classification of a product or service shall be final unless

appealed in the manner prescribed in paragraph (h) of this § 1-1.703-2.

(h) A written appeal from a product or service classification determination made by a contracting officer may be taken (1) not less than 10 working days before the bid opening date or closing date for submitting proposals or quotations when the bid opening date or closing date for the submission of proposals or quotations is more than 30 calendar days after the issuance of the invitation for bids or requests for proposals or quotations, or (2) not less than 5 working days before the bid opening date or closing date for submitting proposals or quotations when the bid opening date or closing date for the submission of proposals or quotations is 30 calendar days or less after the issuance of the invitation for bids or request for proposals or quotations. The appeal shall be addressed to the Chairman, Size Appeals Board, Small Business Administration, Washington, DC 20416. No particular form is prescribed for the notice of appeal. However, the appellant shall submit to the SBA Size Appeals Board an original and four legible copies of such notice of appeal and, to avoid timeconsuming correspondence, the notice of appeal should include the following information: (i) The character of the determination from which the appeal is taken and its date; (ii) the number and date of the invitation for bids or request for proposals or quotations, and the name and address of the contracting officer; (iii) a concise and direct statement of the reasons why the determination of the contracting officer is alleged to be erroneous; (iv) documentary evidence to support such allegations; and (v) the action sought by the appellant. Following receipt of the appeal by the SBA Size Appeals Board, the appeal will be handled and the decision thereon will be rendered in accordance with the procedures set forth in paragraph (f) of this § 1-1.703-2.

[36 F.R. 16656, Sept. 25, 1971]

§ 1-1.704 Agency program

direction

and operation. [Reserved for us by individual agencies]

§ 1-1.705 Cooperation with the Small Business Administration.

ing out the policies of that Act. Such consultation and cooperation is particularly significant in the areas and programs described in §§ 1-1.705-2 through 1-1.705-7.

§ 1-1.705-2 SBA representatives.

SBA may assign one or more representatives (hereinafter referred to as "SBA representatives") on a full- or part-time basis to any procuring activity for the purpose of carrying out SBA responsibilities under the Small Business Act. SBA representatives will comply with agency directives concerning the conduct of procurement personnel and instructions concerning release of procurement information.

§ 1-1.705-3

be

Screening of procurements. (a) Individual set-asides. SBA representatives (cleared for security where classified procurements are to screened) shall, upon request, promptly be afforded an opportunity at the procuring activity to review all proposed procurements if it is anticipated that the resulting contract or contracts will exceed $2,500 unless in the case of procurements which are not expected to exceed $10,000, the head of the procuring activity determines that such review would unduly delay the procurement process. A copy of the determination and the justification therefor shall be furnished to the SBA representative. Where it is anticipated that the resulting contract or contracts will exceed $2,500, such SBA representatives shall, upon request, promptly be afforded an opportunity to make recommendations concerning proposed procurements, inIcluding that they be exclusively or partially set aside for small business con

cerns.

The contracting officer shall afford the SBA representative an opportunity to recommend appropriate names of small business concerns for inclusion in lists of bidders for firms to be solicited in connection with current and future procurements.

(b) Class set-asides. SBA representatives shall be afforded an opportunity to make recommendations that current and future procurements, or portions thereof, of selected items or services, or groups of like items or services, shall be set aside as provided in § 1-1.706, for exclusive small business participation. Such set-asides, when approved by the contracting officer, shall be known as