[Federal Register Volume 61, Number 21 (Wednesday, January 31, 1996)]
[Rules and Regulations]
[Pages 3280-3304]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-1348]



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SMALL BUSINESS ADMINISTRATION
13 CFR Part 121

Small Business Size Standards
AGENCY: Small Business Administration.
ACTION: Final rule.

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SUMMARY: In response to President Clinton's government-wide regulatory 
reform initiative, the Small Business Administration (SBA) has 
completed a page-by-page, line-by-line review of all of its existing 
regulations. As a result, SBA is clarifying and streamlining its 
regulations. This final rule improves the Agency's size program by 
simplifying and clarifying language in the existing rules, conforming 
these rules to present SBA policies and practices, and providing some 
substantive modifications to streamline the delivery of services to the 
public. The revised regulations will be more understandable and much 
easier to use, and will reduce the number of sections comprising Part 
121 from eighteen to thirteen. The rule improves language, but does not 
change the existing size standards which apply to particular 
industries.

EFFECTIVE DATE: This rule is effective on March 1, 1996.
FOR FURTHER INFORMATION CONTACT: John W. Klein, Chief Counsel for 
Special Programs, Office of General Counsel, at (202) 205-6645.

SUPPLEMENTARY INFORMATION: On November 24, 1995, SBA published a 
proposed rule in the Federal Register (60 FR 57982) to completely 
revise its regulations governing the size determination program. SBA's 
intent in finalizing that rule is to streamline the size standards 
operation by simplifying and clarifying existing regulatory language 
and by eliminating unnecessary, irrelevant, or obsolete provisions. The 
final rule amends office titles to reflect a previous reorganization of 
functions within the structure of SBA. SBA has attempted to rewrite 
Part 121 in plain English in order to make the regulations more 
readable and less confusing.
    The proposed rule contained eligibility requirements for 
organizations for the handicapped to receive awards of contracts set 
aside for small business and procedures for filing protests regarding 
the status of handicapped organizations (proposed Secs. 121.1201-
121.1206). Those sections have been removed from this final rule 
because the authority for such eligibility has expired. As a 
consequence, Secs. 121.1301-121.1305 of the proposed rule have been 
renumbered as Secs. 121.1201-121.1205 in this final rule.
    SBA received and considered 25 timely comments in response to the 
proposed rule. The comments, as well as SBA's response to them, are 
discussed below. Other than the changes identified below in response to 
the comments and the elimination of proposed Secs. 121.1201-121.1206 
(as discussed above), the regulatory text of Part 121 has not been 
changed from the proposed rule. For a section by section analysis of 
the revised Part 121 and SBA's rationale for any changes from the pre-
existing regulations, see the supplementary information published as 
part of the proposed rule (60 FR 57982).
Analysis of Comments Received
    SBA received and considered eight comments to the proposed text for 
its affiliation regulation (proposed Sec. 121.103). Six of these 
comments responded to the proposed exclusion from affiliation coverage 
afforded certain private investors that are engaged in the business of 
providing equity and/or debt financing to third parties. In addition to 
the existing exclusion from affiliation for Small Business Investment 
Companies (SBICs) and Development Companies, the proposed rule added an 
exclusion, for purposes of SBIC assistance only, for concerns owned by 
certain venture capital firms, pension funds, and charitable entities 
exempt from federal taxation under Sec. 501(c) of the Internal Revenue 
Code. The proposed rule imposed the same control limitations on these 
investors as those imposed by SBA on SBICs under 13 CFR Part 107.
    While the commenters supported SBA's intent to add an exclusion 
from affiliation for the listed investors, they thought that the 
proposal did not go far enough. One commenter agreed with the proposal 
to include venture capital operating companies (VCOCs) in the list of 
investors which would not be affiliated with applicant concerns, but 
felt that limiting the exception to financial investors that 
technically qualify as VCOCs might not achieve the desired goal. The 
commenter pointed out that a fund which resembles a VCOC because it has 
at least 50% of its portfolio in ``qualified venture capital 
investments'' and it obtains and exercises certain ``management 
rights'' with respect to those investments may nevertheless fail to 
qualify as a VCOC if its first investment was a passive investment. The 
commenter suggested that the affiliation exemption should be made 
available to any investing company that (1) has 50% of its portfolio in 
``qualified venture capital investments'' at the time size is 
determined, or (2) would qualify as a VCOC but for its first 
investment.
    SBA has considered the suggestion but has decided to limit 
Sec. 121.103(b)(5)(i) to VCOCs, as proposed. SBA understands that other 
investors may exist whose investment goals, policies and activities are 


[[Page 3281]]

identical to those of a VCOC, but who for one reason or another are not 
considered VCOCs. However, to properly administer a regulation that 
refers to the type of investments of a private entity would demand 
resources far in excess of those available to SBA. If, on the other 
hand, the private investor's status as a VCOC is the criteria for 
exemption from affiliation, SBA examiners need look no farther than a 
statement from the entity that it is a VCOC. SBA believes a statement 
of this type is likely to be reliable, since any company that is a VCOC 
is subject to certain requirements under Department of Labor 
regulations.
    Another commenter recommended that the exclusion from affiliation 
be broadened to include any non-registered investment company 
beneficially owned by less than 100 persons if such company's sales 
literature or organization documents indicate that its principal 
purpose is investment in securities rather than the operation of 
commercial enterprises. The commenter felt that a concern that meets 
the definition of an ``investment company'' under the Investment 
Company Act of 1940, as amended (the 1940 Act), has the necessary 
investment characteristics even though it is not registered under the 
1940 Act due to the number of its beneficial owners. SBA agrees and has 
added a new paragraph (vi) to Sec. 121.103(b)(5).
    Three commenters argued that lack of control over the small concern 
should not be a requirement for an investor to benefit from the 
exclusion from affiliation. SBA disagrees. A small concern must be 
independently owned and operated, in addition to being small, in order 
to be eligible for SBIC assistance. See 15 USC 632 and 15 USC 662. 
Generally, a business that is controlled by its large investors does 
not satisfy this statutory requirement. In Part 107, however, SBA has 
identified certain special circumstances under which SBICs are 
permitted to assume control over a small concern. See 13 CFR 
Sec. 107.865(c) and (d). In the proposed rule covering Part 121, SBA 
proposed to extend those exceptions to the private firms listed in 
Sec. 121.103(b)(5). SBA is finalizing that proposal, but would like to 
clarify two points regarding the application of the control test to 
those private investors:
    First, ``control'' will be determined under Sec. 107.865, which 
incorporates the definition of Control under Sec. 107.50. Second, the 
requirement in Sec. 107.865(e) for an SBIC assuming temporary control 
over a concern to file a control certification with SBA would not apply 
to non-SBIC investors in the concern.
    SBA is also taking this opportunity to correct a drafting error in 
current Sec. 121.401(b), which was repeated in proposed 
Sec. 121.103(b)(1). Both sections provide an unconditional exclusion 
from the affiliation rules for the entities listed therein, and both 
sections mention investment companies registered under the 1940 Act. 
However, it was never SBA's intent to provide an exclusion from 
affiliation for all investment companies registered under the 1940 Act. 
The regulation was intended to cover only those registered investment 
companies that are also SBICs. See 54 FR 52634 (December 21, 1989). In 
the final rule adopted today, registered investment companies are 
treated the same as non-registered investment companies--they will not 
be considered affiliated with the applicant concern if they satisfy the 
control test under Sec. 107.865. Registered investment companies are 
listed under new Sec. 121.103(b)(5)(v) in the final rule.
    Finally, one commenter recommended expanding the exclusion from 
affiliation in Sec. 121.103(b)(5) to include all investors primarily 
engaged in the business of providing equity and/or debt financing to 
third parties. SBA believes that such an exclusion is too broad, and 
does not adopt it in this final rule.
    One commenter expressed concern that ``common facilities'' had been 
eliminated as a separate basis for finding affiliation in the proposed 
rule, and recommended that it be reinserted in the final rule. Although 
the proposed rule eliminated ``common facilities'' as a separate basis 
for finding affiliation, it was not SBA's intent to prohibit SBA from 
considering all appropriate factors, including ``common facilities,'' 
in determining whether affiliation exists. Section 121.103(a)(2) lists 
certain factors that may be considered by SBA in determining whether 
affiliation exists. It states that SBA considers factors such as 
ownership, management, and contractual relationships, but does not 
intend that list to be exhaustive. SBA believes that the flexibility to 
make an appropriate affiliation determination was in the proposed 
regulation, and does not add another separate basis for finding 
affiliation in this rule.
    Another commenter objected to the language of proposed 
Sec. 121.103(c)(1) that eliminated the ``presumption'' of control for 
persons that own, control, or have the power to control 50 percent or 
more of a concern's voting stock contained in the predecessor 
regulation at Sec. 121.401(e)(1). The commenter felt that the 
regulation should provide only for a presumption of control which can 
be negated by specific facts in a particular case (e.g., person may own 
over 50% of voting stock, but through voting agreements or proxies may 
have divested control of the company). SBA disagrees. SBA believes that 
a person owning 50 percent of a concern should be deemed to control 
that concern regardless of any voting agreements. A person that has 
voting control of 50 percent of a concern, even if he or she does not 
own the stock associated with the voting rights, would also be deemed 
to control the concern, but that does not do away with the interests 
attendant to a 50 percent owner.
    SBA received 12 comments to its proposed revision to the definition 
of ``annual receipts'' (proposed Sec. 121.104). Ten commenters 
enthusiastically supported the revision of annual receipts that 
eliminated the requirement that businesses operating on a cash basis 
maintain a separate set of accrual basis books. They noted that such a 
change will reduce paper work and expense. No change in the final rule 
is made to that provision.
    One commenter strongly supported the exclusion from annual receipts 
for amounts collected by another by a conference management services 
provider. Again, SBA concurs, and no change is made in this final rule.
    One commenter recommended that custom brokers (businesses that 
collect customs duties and federal revenues) should be able to exclude 
``pass-through'' amounts from their annual receipts in determining 
their size. The commenter felt that this added income distorts their 
status as a small business. Pass-through amounts for custom brokers was 
not an issue before the public in SBA's November 24, 1995 proposed 
rule. As such, SBA cannot add such an exclusion in this final rule. In 
addition, SBA has not performed an analysis of this industry to 
determine whether such an exclusion is warranted. In order for such a 
review to be done, interested parties must submit a request to the 
Assistant Administrator of SBA's Size Standards Staff in Washington, 
DC.
    Finally, SBA has clarified what the term ``receipts'' encompasses 
in this final rule. There was some internal confusion that the proposed 
rule would have required a double counting of certain amounts by 
requiring the inclusion of ``gross or total income'' plus ``cost of 
goods sold.'' No double counting was intended, nor will it occur under 
this regulation. The terms ``total income,'' ``gross income,'' and 
``cost of goods sold'' come directly from the definitions of those 
terms as set forth in applicable Internal Revenue Service (IRS) Federal 
tax return forms. For a corporation (IRS Form 1120, line 11), a 

[[Page 3282]]
sub-chapter S corporation (IRS Form 1120S, line 6), or a partnership 
(IRS Form 1065, line 8), the applicable term is ``total income.'' For a 
sole proprietorship (Schedule C, IRS Form 1040, line 7), the applicable 
term is ``gross income.'' To this amount, the ``cost of goods sold'' 
(IRS Form 1120, line 2; IRS Form 1120S, line 2; IRS Form 1065, line 2; 
IRS Form 1040, Schedule C, line 4) is added to determine ``receipts'' 
for SBA purposes. SBA never intended to add ``cost of goods sold'' to 
the ``gross receipts or sales'' figures identified in these IRS forms, 
which would have resulted in some double counting.
    One commenter believed that proposed Sec. 121.105(c) needed to be 
clarified in the final rule. The proposed rule added that provision to 
make it clear that if one entity is replaced by another having the same 
assets and liabilities, the successor firm would not be treated as a 
new entity for purposes of calculating annual receipts or employees. 
SBA's regulations have historically required a concern that has 
acquired or been acquired as an affiliate during the applicable 
averaging period to include the receipts of both concerns in 
determining size. See 13 CFR 121.402(e)(1) (1995). That provision is 
retained in this final rule at Sec. 121.104(d). This new provision is 
not intended to repeat that rule. It is intended to apply to the 
situation where a business entity ceases and a ``new'' business entity 
emerges with basically the same assets and liabilities as the previous 
entity. In such a case, instead of treating the successor business 
entity as a ``new'' concern, with Sec. 121.104((b)(2) or 
Sec. 121.106(b)(3) applying as appropriate, the revenues or employees 
of the predecessor concern will be counted for the full averaging 
period. A business entity cannot reorganize and be able to avoid the 
full application of SBA's size requirements.
    One commenter recommended that the $6 million net worth and $2 
million net income size standards for the Development Company program 
should be increased for inflation because they have not changed since 
their inception in 1980. The numerical value of specific size standards 
was not an item proposed for change in the November 24, 1995 proposed 
rule. As such, any change at this time would be contrary to the 
requirements of the Administrative Procedures Act and inappropriate. 
Anyone believing that specific size standards should be altered should 
write to the Assistant Administrator of SBA's Size Standards Staff at 
SBA's Headquarters, giving detailed reasons for the desired change.
    Two commenters recommended that the reference to ``net worth'' in 
proposed Sec. 121.301(b)(1) should be to ``tangible net worth,'' 
because items such as goodwill have no tangible value and should not be 
taken into account during calculation of net worth for loan approval 
purposes. SBA concurs and makes that revision in this final rule.
    Four commenters opposed the elimination of a size standard 
differential for Redevelopment Areas in the context of SBA financial 
assistance (proposed Sec. 121.301(e)). They supported keeping the 
differential for Redevelopment Areas for concerns seeking such 
financial assistance. Alternatively, if the differential is eliminated, 
they proposed increasing all receipt-based size standards by 25%. SBA 
disagrees. The reason for the differential was to assist distressed 
geographical areas needing development, not to increase all size 
standards by 25% for purposes of SBA financial assistance. Because 
Redevelopment Areas have become so common, however, that is effectively 
what has occurred. In addition, unlike Labor Surplus Areas, which are 
reviewed on a regular basis, a Redevelopment Area remains so designated 
once it receives the designation. Thus, areas that are no longer 
distressed remain eligible for the increased size standards. Given 
these circumstances, SBA continues to believe that the Redevelopment 
Area differential should be eliminated and the final rule reflects 
that.
    One commenter disagreed with the provision of Sec. 121.302 
establishing size for financial assistance at the time the application 
for assistance is received by SBA, stating that concerns do not make 
applications directly to SBA. The commenter recommended that size 
should be determined as of the date of the funding or commitment to 
fund. SBA believes that the date of funding or commitment to fund is 
too far along in the process to determine a concern's size. SBA should 
not use its limited resources to determine loan-worthiness of a concern 
that is ineligible to receive the financial assistance because of its 
size. Thus, SBA believes that size must be determined when SBA starts 
its analysis. That, however, may not occur when the application is 
first received by SBA. Sometimes an application is not acted on 
immediately because it is not complete. In response to this comment and 
SBA's re-evaluation of its position, the final rule makes the date that 
an application is accepted for processing by SBA as the date that a 
concern's size is determined.
    One commenter objected to the provision of proposed Sec. 121.304 
which permits a business concern with an existing SBA loan to be 
considered small for purposes of refinancing that loan even though it 
exceeds the applicable size standard at the time of the refinancing. 
This is a pre-existing SBA policy that was not changed by the November 
24, 1995 proposed rule. That policy has existed for many years in order 
to protect the Government's investment. SBA has added a sentence to 
this section in this final rule to clarify that such refinancing would 
occur only where SBA determines that it is necessary to protect the 
Government's financial interest.
    SBA received three comments regarding waivers to its 
nonmanufacturer rule (Sec. 121.406(b)). One comment recommended that 
the local SBA district office be empowered with the authority to 
approve or disapprove requests for waivers of the non-manufacturer 
rule. SBA disagrees. The statutory authority for such waivers is given 
to SBA's Administrator. This authority has been delegated to SBA's 
Associate Administrator for Government Contracting. While SBA has moved 
more and more authority to local district offices wherever possible, 
SBA believes that the authority to waive the nonmanufacturer rule needs 
to remain at this level to ensure consistency and fairness in all SBA 
offices.
    Two commenters responded to SBA's proposed implementation of the 
nonmanufacturer rule under Simplified Acquisition Procedures (SAP) 
(proposed Sec. 121.406(d)). One commenter supported the provision as 
written and applauded SBA's effort to consider the dilemma of regular 
dealers, suppliers and distributors under SAP. The other commenter 
recommended that the $25,000 ceiling below which a nonmanufacturer need 
not supply the product of a small business (provided that the product 
is manufactured or produced in the United States) should be increased 
to $100,000. That commenter reasoned that the ceiling was $25,000 when 
the Small Purchase amount was $25,000. Since SAP have replaced Small 
Purchase Procedures and the threshold for SAP is $100,000, the 
commenter believed that the nonmanufacturer ceiling should similarly be 
raised to $100,000.
    Existing SBA regulations (13 CFR 121.906 and 121.1106) implement 
amendments made in 1988 to the Small Business Act (15 U.S.C. 
637(a)(17)). Those regulations specify that to qualify for a small 
business set-aside or section 8(a) procurement of a manufactured or 
processed product, a small 

[[Page 3283]]
nonmanufacturer must provide the product of a domestic small 
manufacturer. Specifically, an offeror that is not the manufacturer of 
the product (1) must itself be a small business concern, and (2) must 
also supply a product manufactured by a domestic small business 
concern. This requirement is commonly referred to as the 
``nonmanufacturer rule.'' SBA may waive the nonmanufacturer rule if one 
of the following conditions exists: (1) SBA determines that no small 
business manufacturer can reasonably be expected to offer a product 
meeting the specifications required by a solicitation (individual 
waiver); or (2) SBA determines that no small business manufacturer of 
an item is available to participate in the federal market generally 
(class waiver).
    On May 26, 1995 SBA published in the Federal Register (60 FR 27924) 
a proposed rule that would require a small business dealer or 
nonmanufacturer to provide the product of a small manufacturer on all 
small business set-aside or section 8(a) supply contracts over $2,500, 
including those processed under SAP. This proposed rule was not 
finalized, and the comments received by SBA and further study of the 
issue persuaded SBA that the May 26th proposed rule should not be 
adopted as final. As indicated above, the section in the November 24th 
proposed rule dealing with this issue resulted in only two comments. 
SBA has decided to finalize the rule as proposed on November 24th. In 
order to set forth its reasoning on this matter, SBA discusses below 
the comments earlier received in response to its May 26th proposed 
rule.
    SBA's May 26th proposed rule would have extended the 
nonmanufacturer rule to all procurements processed under the SAP 
established by the Federal Acquisition Streamlining Act (FASA) of 1994. 
SBA offered two alternatives to this proposal, and invited comments on 
both along with the proposal. SBA's first alternative was to exempt 
from the nonmanufacturer rule contracts of $100,000 or less. The second 
alternative was to exempt contracts of $25,000 or less. (Contracts 
below the micro-purchases level of $2,500 would be exempt regardless of 
the approach in the proposed rule or either alternative.) This second 
alternative was the one proposed as part of SBA's November 24, 1995 
proposed revision to the entire Part 121.
    After considering the forty comments received in response to the 
May 26th proposed rule, as well as the two received in response to the 
November 24th proposed rule, SBA has concluded that applying the 
nonmanufacturer rule to all procurements reserved for small business, 
including those handled under SAP, would place inappropriate and 
substantial administrative burdens on a great number of small-dollar 
value contracts. Given the large volume of contracts of $25,000 or less 
(98 percent of procurement actions), contracting officers would likely 
experience burdensome delays in order to identify small manufacturer 
sources and to verify that small dealers were supplying the product of 
domestic small manufacturers. The likely significant increase in 
requests for waivers of the nonmanufacturer rule would overly burden 
contracting agencies and the SBA, creating further delays in the 
procurement process. SBA also has concluded that adoption of the 
proposed rule could have an undesirable effect of diminishing 
opportunities for small dealers in the federal market. For many 
products purchased in small-dollar quantities, there often appears to 
be few or no small business manufacturers participating in the federal 
market. Consequently, many dealers who have been supplying the federal 
government with products on contracts of $25,000 or less would, under 
the May 26th proposed rule, not be eligible for an award of a set-aside 
contract since they do not have or could not obtain products of a small 
manufacturer.
    At the same time, SBA strongly believes that an exemption from the 
nonmanufacturer rule for contracts greater than $25,000 would have a 
substantial damaging effect on domestic small manufacturers. In fiscal 
years 1991 through 1993, small manufacturers averaged over $500 million 
in set-aside and 8(a) contracts ranging between $25,000 and $100,000. 
An exemption from the nonmanufacturer rule for these procurements would 
potentially shift much of this contracting from small to large 
manufacturers, and would defeat the very purpose of the nonmanufacturer 
rule.
    The selection of the $25,000 level for applying the nonmanufacturer 
rule to contracts reserved for small business is consistent with the 
threshold formerly established for small purchase procedures 
(discontinued under FASA) and balances the important objectives of 
simplifying the procurement process with continuing to ensure that most 
of the benefits of procurements reserved for small business actually 
flow to small business. Utilizing this threshold of $25,000 will 
continue the level of competition between small and large manufacturers 
that existed under small purchase procedures. A higher threshold would 
introduce a new level of competition that would adversely affect small 
manufacturing enterprises. At the same time, small business dealers 
will continue to have the same level of contract opportunities at 
$25,000 and below that they formerly had under small purchase 
procedures. That is, they will continue to be able to provide the 
products of large manufacturers on procurements of $25,000 or less. 
Selecting this threshold will add no new requirements to the vast 
majority of smaller-sized procurements.
    SBA received 40 comments in response to the May 26th proposed rule. 
Of the 40 comments, ten were from federal contracting activities, one 
from a State University Economic Development Institute (EDI), 28 from 
businesses (27 dealers and 1 manufacturer), and one was from a trade 
association. All but one of the commenters opposed applying the 
nonmanufacturer rule as the May 26th rule proposed to do. The one, a 
federal contracting activity, indicated its commitment to supporting 
the rule however implemented. Thirty-six commenters supported the first 
alternative of the proposed rule (a $100,000 threshold), and three 
indicated some support for the second alternative (a $25,000 
threshold).
    The ten federal contracting activities and one EDI that commented 
on the proposed rule favored exempting procurements of $100,000 or less 
from the nonmanufacturer rule. They believe that applying the rule to 
all procurements reserved for small business will place additional 
administrative burdens on contracting personnel, which is contrary to 
the intent of FASA. They pointed out that the proposed policy could 
result in a reluctance on the part of some contracting personnel to set 
aside procurements for small business, thus actually reducing small 
business participation and increasing government costs because of 
lessened cost competitiveness. They also anticipated a need to request 
more waivers, causing administrative burdens and processing delays at 
the SBA. Two of the federal contracting activities indicated that they 
would support retaining the $25,000 threshold as a practical 
alternative to requiring the application of the nonmanufacturer rule to 
all contracts over $2,500. The EDI's comments, while supporting some of 
the above, more fully describe the effects of the proposed rule upon 
small dealers and distributors. (SBA addresses the effects upon dealers 
later in this discussion.)
    SBA recognizes that these points are legitimate concerns of federal 
procurement personnel with regard to 

[[Page 3284]]
the proposed rule. Therefore, SBA has decided that the nonmanufacturer 
rule shall apply only to those contracts set aside for small business 
that are above $25,000. The exemption from the nonmanufacturer rule for 
contracts processed under small purchase procedures of $25,000 and 
below had proven quite workable in the past. SBA agrees that 
establishing a $100,000 threshold for the nonmanufacturer rule would 
certainly further simplify the procurement process and reduce the 
administrative burden on contracting officers. However, this 
administrative relief would come at significant expense to domestic 
small manufacturers who have traditionally provided products in 
response to procurements set aside for small business. With this final 
rule, administrative burdens will be no more and no less than they had 
been under small purchase procedures. Also, small business set-aside 
opportunities would not be diminished as a result of extending the 
nonmanufacturer rule to previously exempted procurements. SBA has 
concluded that the adverse effect of a $100,000 threshold upon such a 
significant part of the market for small manufacturers is not 
appropriate, and that the $25,000 threshold strikes a proper balance 
with the FASA goal of reducing administrative matters associated with 
federal procurement.
    To alleviate the potential delays in the procurement process by 
applying the nonmanufacturer rule to procurements reserved for small 
business, two federal contracting activities recommended that SBA 
delegate waiver authority to contracting officers for these 
procurements. The SBA does not agree with this recommendation. 
Delegating this decision to literally thousands of contracting offices 
would likely lead to an inconsistent application of the nonmanufacturer 
rule. However, to address concerns regarding delays in the procurement 
process, SBA will attempt to complete the processing of individual 
waiver requests in connection with procurements processed under 
simplified acquisition procedures within five (5) business days of the 
receipt of a complete waiver request instead of the normal fifteen (15) 
business days. Generally, a contracting office submits, and SBA 
processes, a waiver request before it issues its solicitation. The 
markedly reduced time involved should lessen significantly any direct 
negative impact on small manufacturers or dealers or on the procurement 
process.
    All but one of the 28 business commenters and the sole trade 
association commenting are associated with one affected industry, 
namely military surplus aircraft parts, and all supported the adoption 
of the $100,000 threshold. Firms in this industry purchase at auction 
military surplus aircraft parts from the Department of Defense (DoD), 
inventory them, and resell them to U.S. and friendly foreign military 
services. Items they purchase are generally new and unused, and are 
products almost exclusively of large manufacturers. As suppliers of 
products they do not manufacture, they would be unable to compete on 
small business set-aside and section 8(a) procurements if the 
nonmanufacturer rule were applicable.
    Uniformly these commenters favored adoption of the alternative that 
would establish a $100,000 threshold instead of the proposed rule. They 
stated that the May 26, 1995 proposal to apply the nonmanufacturer rule 
to all procurements reserved for small business would harm small 
dealers of military surplus aircraft parts by effectively rendering 
them unable to compete on most procurements reserved for small 
business. This diminished opportunity to compete would result because 
there are few DoD approved small manufacturers of military aircraft 
parts, and most procurements are below the $100,000 simplified 
acquisition threshold. With few or no small manufacturers to supply 
products for these dealers, more federal solicitations would likely 
become open and unrestricted. On unrestricted procurements, these 
dealers believe they are at a competitive disadvantage when placed into 
direct competition with the same large manufacturers whose products 
they would propose to supply. Therefore, they believe such an 
application of the nonmanufacturer rule would in fact harm small 
businesses, and benefit large defense contractors.
    SBA shares the concern about the impact of the proposed rule on the 
opportunities for small dealers in the federal market. As these 
comments point out, as well as comments received from several of the 
federal contracting activities, small dealers find it difficult to 
comply with the nonmanufacturer rule on small-dollar contracts due to 
the limited number of small manufacturer sources. To address this 
concern, the final rule re-establishes an exemption of the 
nonmanufacturer rule on contracts of $25,000 or less. The SBA, however, 
does not believe that a higher threshold is in the best interests of 
all small businesses.
    As stated in this final rule as well as the May 26th proposed rule, 
SBA is particularly concerned about the impact on small business 
manufacturers of an exemption to the nonmanufacturer rule. 
Participation of small business in the federal procurement of aircraft 
parts offers an excellent example of the reasons for the SBA's 
concerns. In fiscal year 1993, small manufacturers of aircraft parts 
received direct awards of over $20 million in set-aside and 8(a) 
contracts that ranged between $25,000 and $100,000. (This figure does 
not include set-aside and 8(a) contracts for products that small 
manufacturers provided through small dealers.) An exemption of the 
nonmanufacturer rule to small business set-aside procurements between 
$25,000 and $100,000 could significantly reduce the opportunities for 
small business manufacturers. The SBA has found that a number of other 
industries would be affected in a similar manner if the $100,000 
threshold were adopted. In recognition of the business practices of 
small dealers in the federal market, while at the same time protecting 
opportunities for small manufacturers and ensuring that the substantial 
value of small business set-asides flow to small business, the SBA 
believes that this final rule is in the overall best interest of small 
business.
    The commenting membership of the association of dealers in military 
surplus aircraft parts also emphasized the unique character of their 
commodity, and they requested that it be treated as such. As a minimum 
alternative to the proposed rule, they requested that SBA grant a class 
waiver for military aircraft spare parts. As a response to this 
alternative, the Agency notes that Secs. 121.1201-121.1205 of this 
final rule provide the policies and procedures that apply to all class 
waivers of the nonmanufacturer rule. SBA will consider a request for a 
class waiver for military surplus aircraft parts that is submitted with 
adequate support in accordance with the procedures laid out in the 
preceding reference.
    The only business commenter not associated with the military 
surplus aircraft parts industry believes that the proposed rule would 
be inconsistent with U.S. policy regarding free trade barriers with its 
global trading partners. SBA disagrees. In accordance with the General 
Agreement on Tariffs and Trade, the North American Free Trade Agreement 
and the Canadian Free Trade Agreement, governments may establish 
procurement preference programs to assist small business, and this rule 
pertains to policies concerning the eligibility of business concerns 
who may participate in U.S. small business procurement programs.
    SBA received three comments to Sec. 121.603 of the November 24th 
proposed rule. The first comment 

[[Page 3285]]
recommended that the section be revised to include the time at which 
size is determined for specific 8(a) subcontracts, believing that SBA 
must have inadvertently omitted this requirement from the November 24th 
proposed rule. That requirement was not omitted from the proposed rule, 
but, rather, appeared in proposed Sec. 121.404. Proposed Sec. 121.401 
stated that the requirements set forth in Secs. 121.401-121.412 applied 
to procurement programs including SBA's Minority Enterprise Development 
(i.e., the 8(a)) program. Proposed Sec. 121.404 set forth the time at 
which size is determined for these procurement programs. While the time 
at which size is determined for 8(a) subcontracts continues to be 
contained in Sec. 121.404, the final rule adds a cross reference in 
Sec. 121.603 to Sec. 121.404 for clarification.
    The second comment believed that notification of size verification 
by SBA (proposed Sec. 121.603(b)) is an unnecessary burden on SBA. SBA 
believes that such notification is needed to ensure fairness and the 
integrity of the program, and that any self-imposed burden is 
outweighed by this benefit.
    The last comment suggested that Sec. 121.603(c) be eliminated as 
unnecessary and redundant. This provision does not appear elsewhere in 
Part 121, and SBA believes that it is needed within the size provisions 
specifically relating to the 8(a) program.
    As part of the supplementary information to the November 24, 1995 
proposed rule, SBA published a table of statutory and regulatory size 
standards established by agencies other than SBA. That table is not 
repeated in this final rule. Anyone with an interest in size standards 
established by other agencies for specific programs within their 
authority should consult the table published with the proposed rule. 60 
FR 57982, 57988.

Compliance With Executive Orders 12612, 12778, and 12866, the 
Regulatory Flexibility Act (5 U.S.C. 601, et seq.), and the Paperwork 
Reduction Act (44 U.S.C. Ch. 35)

    SBA believes that this final rule will have a significant impact on 
a substantial number of small entities within the meaning of the 
Regulatory Flexibility Act, 5 U.S.C. 601, et seq. In addition, this 
rule constitutes a significant regulatory action for the purpose of 
Executive Order 12866. A regulatory assessment and a regulatory 
flexibility analysis follow:

(1) Description of Entities to Which This Rule Applies

    This rule will primarily apply to small business nonmanufacturers 
(wholesale trade and retail trade firms) and will allow them to furnish 
the product of any manufacturer on procurements of $25,000 or less. 
Also, small business manufacturers will have to compete on certain 
procurements with small nonmanufacturers supplying products of large 
manufacturers. The lack of detailed data on contracts of $25,000 or 
less precludes an estimate of the number of small nonmanufacturers and 
small manufacturers this rule will affect. However, comments on the 
proposed rule suggest that a significantly greater number of small 
nonmanufacturers will be impacted by this rule than small 
manufacturers.

(2) Description of Potential Benefits of This Rule

    The benefits of this rule are threefold. First, small business 
nonmanufacturers will maintain the same procurement opportunities for 
contracts of $25,000 and below as they had under small purchase 
procedures. Although the amount of contracting cannot be estimated, it 
does represent a significant proportion of the $7.9 billion awarded to 
small businesses under small purchase procedures in FY 1993. Second, 
small manufacturers will have the same or greater level of procurement 
opportunities under the simplified acquisition threshold as they had 
under small business set-aside and 8(a) procurements of $25,000 to 
$100,000. As discussed in the proposed rule, small manufacturers have 
received over $500 million annually in set-aside and 8(a) contracts 
within this dollar range. Finally, administrative burdens to small 
nonmanufacturers and contracting officers will be reduced since there 
will be no need to determine the size status of a manufacturing source 
on thousands of small-dollar contracts.

(3) Description of Potential Costs of This Rule

    SBA believes there will be minimal costs to the federal government 
by reserving procurements of $25,000 or less to small nonmanufacturers. 
All small business set-aside and section 8(a) contracts are expected to 
be awarded at no more than fair-market value. Contracting officers, who 
determine that on a given procurement there will not be two or more 
small businesses competitive in market price, quality and delivery, may 
issue an unrestricted procurement. Therefore, there should be no 
significant increased costs to the government.

(4) Description of the Potential Net Benefits of the Rule

    SBA believes that the benefits to small business exceed any costs 
to federal procurement as a result of this final rule. In the May 26th 
proposed rule, SBA expressed its belief that small business 
opportunities would be greater if small nonmanufacturers were required 
to supply the product of a domestic small business manufacturer. In 
light of the comments received, SBA has concluded that small 
nonmanufacturers participate much more significantly in small-dollar 
procurements than do small manufacturers. Thus, the net benefits of 
this final rule to small dealers, in terms of federal contracting 
opportunities for small business, would be substantially greater than 
the net benefits to small manufacturers from the proposed rule.

(5) Legal Basis for This Rule

    The legal basis for this rule is sections 3(a), 5(a), 8(a) and 
15(a) of the Small Business Act, 15 U.S.C. 632(a), 634(b)(6), 637(a) 
and 644(a).

(6) Federal Rules

    There are no federal rules that duplicate, overlap or conflict with 
this final rule. SBA has exclusive statutory jurisdiction in 
establishing size standards. In establishing the $100,000 threshold for 
simplified acquisition procedures under which all procurements are 
reserved exclusively for small business, FASA did not address the 
application of the nonmanufacturer rule.

(7) Significant Alternatives to This Rule

    In compliance with the Regulatory Flexibility Act, SBA considered 
two alternatives in its proposed rule of May 26, 1995. One alternative 
is the proposed rule itself, which would have the nonmanufacturer rule 
apply to all small business set-aside and section 8(a) procurements 
over $2,500. In proposing that rule, SBA offered and requested comments 
on two alternatives. The proposed rule, together with the alternatives, 
are discussed in the ``Supplementary Information,'' above. SBA has 
concluded for the reasons more fully presented above to adopt the 
second alternative.
    For purposes of the Paperwork Reduction Act, 44 U.S.C. Ch. 35, SBA 
certifies that this final rule contains no new reporting or 
recordkeeping requirements.
    For purposes of Executive Order 12612, SBA certifies that this rule 
does 

[[Page 3286]]
not have any federalism implications warranting the preparation of a 
Federalism Assessment.
    For purposes of Executive Order 12778, SBA certifies that this rule 
is drafted, to the extent practicable, in accordance with the standards 
set forth in Section 2 of that Order.

List of Subjects in 13 CFR Part 121

    Government procurement, Government property, Grant programs--
business, Individuals with disabilities, Loan programs--business, Small 
businesses.

    Accordingly, pursuant to the authority set forth in sections 3(a) 
and 5(b)(6) of the Small Business Act, 15 U.S.C. 632(a) and 634(b)(6), 
SBA hereby revises part 121 of Title 13, Code of Federal Regulations 
(CFR), to read as follows:

PART 121--SMALL BUSINESS SIZE REGULATIONS

Subpart A--Size Eligibility Provisions and Standards

Provisions of General Applicability

Sec.
121.101  What are SBA size standards?
121.102  How does SBA establish size standards?
121.103  What is affiliation?
121.104  How does SBA calculate annual receipts?
121.105  How does SBA define ``business concern or concern''?
121.106  How does SBA calculate number of employees?
121.107  How does SBA determine a concern's ``primary industry''?
121.108  What are the penalties for misrepresentation of size 
status?

Size Standards Used to Define Small Business Concerns

121.201  What size standards has SBA identified by Standard 
Industrial Classification codes?

Size Eligibility Requirements for SBA Financial Assistance

121.301  What size standards are applicable to financial assistance 
programs?
121.302  When does SBA determine the size status of an applicant?
121.303  What size procedures are used by SBA before it makes a 
formal size determination?
121.304  What are the size requirements for refinancing an existing 
SBA loan?
121.305  What size eligibility requirements exist for obtaining 
business loans relating to particular procurements?

Size Eligibility Requirements for Government Procurement

121.401  What procurement programs are subject to size 
determinations?
121.402  What size standards are applicable to procurement 
assistance programs?
121.403  Are SBA size determinations and SIC code designations 
binding on parties?
121.404  When does SBA determine the size status of a business 
concern?
121.405  May a business concern self-certify its small business size 
status?
121.406  How does a small business concern qualify to provide 
manufactured products under small business set-aside or MED 
procurements?
121.407  What are the size procedures for multiple item 
procurements?
121.408  What are the size procedures for SBA's Certificate of 
Competency Program?
121.409  What size standard applies in an unrestricted procurement 
for Certificate of Competency purposes?
121.410  What are the size standards for SBA's Section 8(d) 
Subcontracting Program?
121.411  What are the size procedures for SBA's Section 8(d) 
Subcontracting Program?
121.412  What are the size procedures for partial small business 
set-asides?

Size Eligibility Requirements for Sales or Lease of Government Property

121.501  What programs for sales or leases of Government property 
are subject to size determinations?
121.502  What size standards are applicable to programs for sales or 
leases of Government property?
121.503  Are SBA size determinations binding on parties?
121.504  When does SBA determine the size status of a business 
concern?
121.505  What is the effect of a self-certification?
121.506  What definitions are important for sales or leases of 
Government-owned timber?
121.507  What are the size standards and other requirements for the 
purchase of Government-owned timber (other than Special Salvage 
timber)?
121.508  What are the size standards and other requirements for the 
purchase of Government-owned Special Salvage Timber?
121.509  What is the size standard for leasing of Government land 
for coal mining?
121.510  What is the size standard for leasing of Government land 
for uranium mining?
121.511  What is the size standard for buying Government-owned 
petroleum?
121.512   What is the size standard for stockpile purchases?

Size Eligibility Requirements for the Minority Enterprise Development 
(MED) Program

121.601  What is a small business for purposes of admission to SBA's 
Minority Enterprise Development (MED) Program?
121.602  At what point in time must a MED applicant be small?
121.603  How does SBA determine whether a Participant is small for a 
particular MED subcontract?
121.604  Are MED Participants considered small for purposes of other 
SBA assistance?

Size Eligibility Requirements for the Small Business Innovation 
Research (SBIR) Program

121.701  What SBIR programs are subject to size determinations?
121.702  What size standards are applicable to the SBIR programs?
121.703  Are formal size determinations binding on parties?
121.704  When does SBA determine the size status of a business 
concern?
121.705  Must a business concern self-certify its size status?

Size Eligibility Requirements for Paying Reduced Patent Fees

121.801  May patent fees be reduced if a concern is small?
121.802  What size standards are applicable to the reduced patent 
fees program?
121.803  Are formal size determinations binding on parties?
121.804  When does SBA determine the size status of a business 
concern?
121.805  May a business concern self-certify its size status?

Size Eligibility Requirements for Compliance With Programs of Other 
Agencies

121.901  Can other Government agencies obtain SBA size 
determinations?
121.902  What size standards are applicable to programs of other 
agencies?
121.903  When does SBA determine the size status of a business 
concern?

Procedures for Size Protests and Requests for Formal Size 
Determinations

121.1001  Who may initiate a size protest or a request for formal 
size determination?
121.1002  Who makes a formal size determination?
121.1003  Where should a size protest be filed?
121.1004  What time limits apply to size protests?
121.1005  How must a protest be filed with the contracting officer?
121.1006  When will a size protest be referred to an SBA Government 
Contracting Area Office?
121.1007  Must a protest of size status relate to a particular 
procurement and be specific?
121.1008  What happens after SBA receives a size protest or a 
request for a formal size determination?
121.1009  What are the procedures for making the size determination?
121.1010  How does a concern become recertified as a small business?

Appeals of Size Determinations and SIC Code Designations

121.1101  Are formal size determinations subject to appeal?
121.1102  Are SIC code designations subject to appeal?
121.1103  What are the procedures for appealing a SIC code 
designation? 

[[Page 3287]]


Subpart B--Other Applicable Provisions

Waivers of the Nonmanufacturer Rule for Classes of Products and 
Individual Contracts

121.1201  What is the Nonmanufacturer Rule?
121.1202  When will a waiver of the Nonmanufacturer Rule be granted 
for a class of products?
121.1203  When will a waiver of the Nonmanufacturer Rule be granted 
for an individual contract?
121.1204  What are the procedures for requesting and granting 
waivers?
121.1205  How is a list of previously granted class waivers 
obtained?

    Authority: 15 U.S.C. 632(a), 634(b)(6), 637(a) and 644(c); and 
Pub. L. 102-486, 106 Stat. 2776, 3133.

Subpart A--Size Eligibility Provisions and Standards

Provisions of General Applicability


Sec. 121.101  What are SBA size standards?

    SBA's size standards define whether a business entity is small and, 
thus, eligible for Government programs and preferences reserved for 
``small business'' concerns. Size standards have been established for 
types of economic activity, or industry, generally under the Standard 
Industrial Classification (SIC) System. The SIC System is described in 
the ``Standard Industrial Classification Manual'' published by the 
Office of Management and Budget, Executive Office of the President, and 
sold by the U.S. Government Printing Office, Superintendent of 
Documents, P.O. Box 371954, Pittsburgh, PA 15250-7954. The SIC System 
assigns four-digit SIC codes to all economic activity within ten major 
divisions. Section 121.201 describes the size standards now 
established. A full table matching a size standard with each four-digit 
SIC code is also published annually by SBA in the Federal Register.


Sec. 121.102  How does SBA establish size standards?

    (a) SBA considers economic characteristics comprising the structure 
of an industry, including degree of competition, average firm size, 
start-up costs and entry barriers, and distribution of firms by size. 
It also considers technological changes, competition from other 
industries, growth trends, historical activity within an industry, 
unique factors occurring in the industry which may distinguish small 
firms from other firms, and the objectives of its programs and the 
impact on those programs of different size standard levels.
    (b) As part of its review of a size standard, SBA will investigate 
if any concern at or below a particular standard would be dominant in 
the industry. SBA will take into consideration market share of a 
concern and other appropriate factors which may allow a concern to 
exercise a major controlling influence on a national basis in which a 
number of business concerns are engaged. Size standards seek to ensure 
that a concern that meets a specific size standard is not dominant in 
its field of operation.
    (c) Please address any requests to change existing size standards 
or establish new ones for emerging industries to the Assistant 
Administrator for Size Standards, Small Business Administration, 409 
3rd Street, S.W., Washington, D.C. 20416.


Sec. 121.103  What is affiliation?

    (a) General Principles of Affiliation. (1) Concerns are affiliates 
of each other when one concern controls or has the power to control the 
other, or a third party or parties controls or has the power to control 
both.
    (2) SBA considers factors such as ownership, management, previous 
relationships with or ties to another concern, and contractual 
relationships, in determining whether affiliation exists.
    (3) Individuals or firms that have identical or substantially 
identical business or economic interests, such as family members, 
persons with common investments, or firms that are economically 
dependent through contractual or other relationships, may be treated as 
one party with such interests aggregated.
    (4) SBA counts the receipts or employees of the concern whose size 
is at issue and those of all its domestic and foreign affiliates, 
regardless of whether the affiliates are organized for profit, in 
determining the concern's size.
    (b) Exclusion from affiliation coverage. (1) Business concerns 
owned in whole or substantial part by investment companies licensed, or 
development companies qualifying, under the Small Business Investment 
Act of 1958, as amended, are not considered affiliates of such 
investment companies or development companies.
    (2) Business concerns owned and controlled by Indian Tribes, Alaska 
Regional or Village Corporations organized pursuant to the Alaska 
Native Claims Settlement Act (43 U.S.C. 1601), Native Hawaiian 
Organizations, or Community Development Corporations authorized by 42 
U.S.C. 9805 are not considered affiliates of such entities, or with 
other concerns owned by these entities solely because of their common 
ownership.
    (3) Business concerns which are part of an SBA approved pool of 
concerns for a joint program of research and development as authorized 
by the Small Business Act are not affiliates of one another because of 
the pool.
    (4) Business concerns which lease employees from concerns primarily 
engaged in leasing employees to other businesses are not affiliated 
with the leasing company solely on the basis of a leasing agreement.
    (5) For financial, management or technical assistance under the 
Small Business Investment Company program, an applicant concern is not 
affiliated with the investors listed in paragraphs (b)(5)(i) through 
(vi) of this section if the investors do not control the concern except 
under those circumstances set forth in Sec. 107.865(c) or (d) of this 
chapter. For purposes of this paragraph (b)(5), ``control'' is 
determined under Sec. 107.865 of this chapter.
    (i) Venture capital operating companies, as defined in the U.S. 
Department of Labor regulations found at 29 CFR 2510.3-101(d);
    (ii) Employee benefit or pension plans established and maintained 
by the Federal government or any state, or their political 
subdivisions, or any agency or instrumentality thereof, for the benefit 
of employees;
    (iii) Employee benefit or pension plans within the meaning of the 
Employee Retirement Income Security Act of 1974, as amended (29 U.S.C. 
1001, et seq.);
    (iv) Charitable trusts, foundations, endowments, or similar 
organizations exempt from Federal income taxation under section 501(c) 
of the Internal Revenue Code of 1986, as amended (26 U.S.C. 501(c));
    (v) Investment companies registered under the Investment Company 
Act of 1940, as amended (1940 Act) (15 U.S.C. 80a-1, et seq.); and
    (vi) Investment companies, as defined under the 1940 Act, which are 
not registered under the 1940 Act because they are beneficially owned 
by less than 100 persons, if the company's sales literature or 
organizational documents indicate that its principal purpose is 
investment in securities rather than the operation of commercial 
enterprises.
    (6) A protege firm is not an affiliate of a mentor firm solely 
because the protege firm receives assistance from the mentor firm under 
Federal Mentor-Protege programs.
    (c) Affiliation based on stock ownership. (1) A person is an 
affiliate of a concern if the person owns or controls, or has the power 
to control 50 percent or more of its voting stock, or a block of stock 
which affords control because it is large compared to other outstanding 
blocks of stock.

[[Page 3288]]

    (2) If two or more persons each owns, controls or has the power to 
control less than 50 percent of the voting stock of a concern, with 
minority holdings that are equal or approximately equal in size, but 
the aggregate of these minority holdings is large as compared with any 
other stock holding, each such person is presumed to be an affiliate of 
the concern.
    (d) Affiliation arising under stock options, convertible 
debentures, and agreements to merge. Since stock options, convertible 
debentures, and agreements to merge (including agreements in principle) 
affect the power to control a concern, SBA treats them as though the 
rights granted have been exercised (except that an affiliate cannot use 
them to appear to terminate control over another concern before it 
actually does so). SBA gives present effect to an agreement to merge or 
sell stock whether such agreement is unconditional, conditional, or 
finalized but unexecuted. Agreements to open or continue negotiations 
towards the possibility of a merger or a sale of stock at some later 
date are not considered ``agreements in principle'' and, thus, are not 
given present effect.
    (e) Affiliation based on common management. Affiliation arises 
where one or more officers, directors or general partners controls the 
board of directors and/or the management of another concern.
    (f) Affiliation based on joint venture arrangements. (1) Parties to 
a joint venture are affiliates if any one of them seeks SBA financial 
assistance for use in connection with the joint venture.
    (2) Concerns bidding on a particular procurement or property sale 
as joint venturers are affiliated with each other with regard to 
performance of that contract.
    (3) A contractor and subcontractor are treated as joint venturers 
if the ostensible subcontractor will perform primary and vital 
requirements of a contract or if the prime contractor is unusually 
reliant upon the ostensible subcontractor. All requirements of the 
contract are considered in reviewing such relationship, including 
contract management, technical responsibilities, and the percentage of 
subcontracted work.
    (4) For size purposes, a concern must include in its revenues its 
proportionate share of joint venture receipts.
    (g) Affiliation based on franchise and license agreements. The 
restraints imposed on a franchisee or licensee by its franchise or 
license agreement relating to standardized quality, advertising, 
accounting format and other similar provisions, generally will not be 
considered in determining whether the franchisor or licensor is 
affiliated with the franchisee or licensee provided the franchisee or 
licensee has the right to profit from its efforts and bears the risk of 
loss commensurate with ownership. Affiliation may arise, however, 
through other means, such as common ownership, common management or 
excessive restrictions upon the sale of the franchise interest.


Sec. 121.104  How does SBA calculate annual receipts?

    (a) Definitions. In determining annual receipts of a concern:
    (1) Receipts means ``total income'' (or in the case of a sole 
proprietorship, ``gross income'') plus the ``cost of goods sold'' as 
these terms are defined or reported on Internal Revenue Service (IRS) 
Federal tax return forms (Form 1120 for corporations; Form 1120S for 
Subchapter S corporations; Form 1065 for partnerships; and Form 1040, 
Schedule F for farm or Schedule C for other sole proprietorships). 
However, the term receipts excludes net capital gains or losses, taxes 
collected for and remitted to a taxing authority if included in gross 
or total income, proceeds from the transactions between a concern and 
its domestic or foreign affiliates (if also excluded from gross or 
total income on a consolidated return filed with the IRS), and amounts 
collected for another by a travel agent, real estate agent, advertising 
agent, or conference management service provider.
    (2) Completed fiscal year means a taxable year including any short 
period. Taxable year and short period have the meaning attributed to 
them by the IRS.
    (3) Unless otherwise defined in this section, all terms shall have 
the meaning attributed to them by the IRS.
    (b) Period of measurement. (1) Annual receipts of a concern which 
has been in business for 3 or more completed fiscal years means the 
receipts of the concern over its last 3 completed fiscal years divided 
by three.
    (2) Annual receipts of a concern which has been in business for 
less than 3 complete fiscal years means the receipts for the period the 
concern has been in business divided by the number of weeks in 
business, multiplied by 52.
    (3) Annual receipts of a concern which has been in business 3 or 
more complete fiscal years but has a short year as one of those years 
means the receipts for the short year and the two full fiscal years 
divided by the number of weeks in the short year and the two full 
fiscal years, multiplied by 52.
    (c) Use of information other than the Federal tax return. Where 
other information gives SBA reason to regard Federal Income Tax returns 
as false, SBA may base its size determination on such other 
information.
    (d) Annual receipts of affiliates. (1) If a concern has acquired an 
affiliate or been acquired as an affiliate during the applicable 
averaging period or before small business self-certification, the 
annual receipts in determining size status include the receipts of both 
firms. Furthermore, this aggregation applies for the entire applicable 
period used in computing size rather than only for the period after the 
affiliation arose. Receipts are determined for the concern and its 
affiliates in accordance with paragraph (b) of this section even though 
this may result in different periods being used to calculate annual 
receipts.
    (2) The annual receipts of a former affiliate are not included as 
annual receipts if affiliation ceased before the date used for 
determining size. This exclusion of annual receipts of a former 
affiliate applies during the entire period used in computing size, 
rather than only for the period after which the affiliation ceased .


Sec. 121.105  How does SBA define ``business concern or concern''?

    (a) A business concern eligible for assistance from SBA as a small 
business is a business entity organized for profit, with a place of 
business located in the United States, and which operates primarily 
within the United States or which makes a significant contribution to 
the U.S. economy through payment of taxes or use of American products, 
materials or labor.
    (b) A business concern may be in the legal form of an individual 
proprietorship, partnership, limited liability company, corporation, 
joint venture, association, trust or cooperative, except that where the 
form is a joint venture there can be no more than 49 percent 
participation by foreign business entities in the joint venture.
    (c) A firm will not be treated as a separate business concern if a 
substantial portion of its assets and/or liabilities are the same as 
those of a predecessor entity. In such a case, the annual receipts and 
employees of the predecessor will be taken into account in determining 
size.


Sec. 121.106  How does SBA calculate number of employees?

    (a) Employees counted in determining size include all individuals 
employed on a full-time, part-time, temporary, or other basis. SBA will 
consider the totality of the circumstances, including factors relevant 
for tax purposes, in 

[[Page 3289]]
determining whether individuals are employees of the concern in 
question.
    (b) Where the size standard is number of employees, the method for 
determining a concern's size includes the following principles:
    (1) The average number of employees of the concern is used 
(including the employees of its domestic and foreign affiliates) based 
upon numbers of employees for each of the pay periods for the preceding 
completed 12 calendar months.
    (2) Part-time and temporary employees are counted the same as full-
time employees.
    (3) If a concern has not been in business for 12 months, the 
average number of employees is used for each of the pay periods during 
which it has been in business.
    (4) The treatment of employees of former affiliates or recently 
acquired affiliates is the same as for size determinations using annual 
receipts in Sec. 121.104(d).


Sec. 121.107  How does SBA determine a concern's ``primary industry''?

    In determining the primary industry in which a concern or a concern 
combined with its affiliates is engaged, SBA considers the distribution 
of receipts, employees and costs of doing business among the different 
industries in which business operations occurred for the most recently 
completed fiscal year. SBA may also consider other factors, such as the 
distribution of patents, contract awards, and assets.


Sec. 121.108  What are the penalties for misrepresentation of size 
status?

    In addition to other laws which may be applicable, section 16(d) of 
the Small Business Act, 15 U.S.C. 645(d), provides severe criminal 
penalties for knowingly misrepresenting the small business size status 
of a concern in connection with procurement programs. Section 16(a) of 
the Act also provides, in part, for criminal penalties for knowingly 
making false statements or misrepresentations to SBA for the purpose of 
influencing in any way the actions of the Agency.

Size Standards Used To Define Small Business Concerns


Sec. 121.201  What size standards has SBA identified by Standard 
Industrial Classification codes?

    The size standards described in this section apply to all SBA 
programs unless otherwise specified. The size standards themselves are 
expressed either in number of employees or annual receipts in millions 
of dollars, unless otherwise specified. The number of employees or 
annual receipts indicates the maximum allowed for a concern and its 
affiliates to be considered small. The following is a listing of size 
standards for industries under the SIC System. Size standards are 
listed by Division and apply to all industries in that Division except 
those specifically listed with separate size standards for a specific 
two-digit major group or four-digit industry code. The industry code 
applicable to an industry that cannot be otherwise classified will be 
SIC code 9999, Nonclassifiable Establishments, with a corresponding 
size standard of $5.0 million in annual receipts.

                     Size Standards by SIC Industry                     
------------------------------------------------------------------------
                                             Size standards in number of
          SIC code and description             employees or millions of 
                                                       dollars          
------------------------------------------------------------------------
                         DIVISION A--AGRICULTURE                        
------------------------------------------------------------------------
MAJOR GROUP 01--AGRICULTURAL PRODUCTION      $0.5                       
 CROPS.                                                                 
MAJOR GROUP 02--LIVESTOCK AND ANIMAL         $0.5                       
 SPECIALTIES.                                                           
Except:                                                                 
    0211  Beef Cattle Feedlots (Custom)....  $0.5                       
    0252  Chicken Eggs.....................  $9.0                       
MAJOR GROUP 07--AGRICULTURAL SERVICES......  $5.0                       
MAJOR GROUP 08--FORESTRY...................  $5.0                       
MAJOR GROUP 09--FISHING, HUNTING, AND        $3.0                       
 TRAPPING.                                                              
------------------------------------------------------------------------
             DIVISION B--MININ                                          
------------------------------------------------------------------------
MAJOR GROUP 10--METAL MINING...............  $500                       
MAJOR GROUP 12--COAL MINING................  $500                       
MAJOR GROUP 13--OIL AND GAS EXTRACTION AND   $500                       
 MAJOR GROUP 14--MINING AND QUARRYING OF                                
 NONMETALLIC MINERALS, EXCEPT FUELS.                                    
EXCEPT:                                                                 
    1081  Metal Mining Services............  $5.0                       
    1241  Coal Mining Services.............  $5.0                       
    1382  Oil and Gas Field Exploration      $5.0                       
     Services.                                                          
    1389  Oil and Gas Field Services,        $5.0                       
     N.E.C..                                                            
    1481  Nonmetallic Minerals Services,     $5.0                       
     Except Fuels.                                                      
------------------------------------------------------------------------
                        DIVISION C--CONSTRUCTION                        
------------------------------------------------------------------------
MAJOR GROUP 15--GENERAL BUILDING             $17.0                      
 CONTRACTORS.                                                           
MAJOR GROUP 16--HEAVY CONSTRUCTION, NON      $17.0                      
 BUILDING.                                                              
EXCEPT:                                                                 
    1629 (Part)    Dredging and Surface      $13.5 \1\                  
     Cleanup Activities.                                                
MAJOR GROUP 17--CONSTRUCTION--SPECIAL TRADE  $7.0                       
 CONTRACTORS.                                                           
------------------------------------------------------------------------
DIVISION D--MANUFACTURING,\2\..............  500                        
------------------------------------------------------------------------
EXCEPT:                                                                 
    2032  Canned Specialties...............  1,000                      

[[Page 3290]]
                                                                        
    2033  Canned Fruits, Vegetables,         500 \3\                    
     Preserves, Jams and Jellies.                                       
    2043  Cereal Breakfast Foods...........  1,000                      
    2046  Wet Corn Milling.................  750                        
    2052  Cookies and Crackers.............  750                        
    2062  Cane Sugar Refining..............  750                        
    2063  Beet Sugar.......................  750                        
    2076  Vegetable Oil Mills, Except Corn,  1,000                      
     Cottonseed, and Soybean.                                           
    2079  Shortening, Table Oils,            750                        
     Margarine, and Other Edible Fats and                               
     Oils, N.E.C.                                                       
    2085  Distilled and Blended Liquors....  750                        
    2111  Cigarettes.......................  1,000                      
    2211  Broadwoven Fabric Mills, Cotton..  1,000                      
    2261  Finishers of Broadwoven Fabrics    1,000                      
     of Cotton.                                                         
    2295  Coated Fabrics, Not Rubberized...  1,000                      
    2296  Tire Cord and Fabrics............  1,000                      
    2611  Pulp Mills.......................  750                        
    2621  Paper Mills......................  750                        
    2631  Paperboard Mills.................  750                        
    2656  Sanitary Food Containers, Except   750                        
     Folding.                                                           
    2657  Folding Paperboard Boxes,          750                        
     Including Sanitary.                                                
    2812  Alkalies and Chlorine............  1,000                      
    2813  Industrial Gases.................  1,000                      
    2816  Inorganic Pigments...............  1,000                      
    2819  Industrial Inorganic Chemicals,    1,000                      
     N.E.C.                                                             
    2821  Plastics Materials, Synthetic      750                        
     Resins, and Nonvulcanizable Elastomers.                            
    2822  Synthetic Rubber (Vulcanizable     1,000                      
     Elastomers).                                                       
    2823  Cellulosic Manmade Fibers........  1,000                      
    2824  Manmade Organic Fibers, Except     1,000                      
     Cellulosic.                                                        
    2833  Medicinal Chemicals and Botanical  750                        
     Products.                                                          
    2834  Pharmaceutical Preparations......  750                        
    2841  Soap and Other Detergents, Except  750                        
     Specialty Cleaners.                                                
    2865  Cyclic Organic Crudes and          750                        
     Intermediates, and Organic Dyes and                                
     Pigments.                                                          
    2869  Industrial Organic Chemicals,      1,000                      
     N.E.C..                                                            
    2873  Nitrogenous Fertilizers..........  1,000                      
    2892  Explosives.......................  750                        
    2911  Petroleum Refining...............  1,500 \4\                  
    2952  Asphalt Felts and Coatings.......  750                        
    3011  Tires and Inner Tubes............  1,000 \5\                  
    3021  Rubber and Plastics Footwear.....  1,000                      
    3211  Flat Glass.......................  1,000                      
    3221  Glass Containers.................  750                        
    3229  Pressed and Blown Glass and        750                        
     Glassware, N.E.C.                                                  
    3241  Cement, Hydraulic................  750                        
    3261  Vitreous China Plumbing Fixtures   750                        
     and China and Earthenware Fittings and                             
     Bathroom Accessories.                                              
    3275  Gypsum Products..................  1,000                      
    3292  Asbestos Products................  750                        
    3296  Mineral Wool.....................  750                        
    3297  Nonclay Refractories.............  750                        
    3312  Steel Works, Blast Furnaces        1,000                      
     (Including Coke Ovens), and Rolling                                
     Mills.                                                             
    3313  Electrometallurgical Products,     750                        
     Except Steel.                                                      
    3315  Steel Wiredrawing and Steel Nails  1,000                      
     and Spikes.                                                        
    3316  Cold-Rolled Steel Sheet, Strip,    1,000                      
     and Bars.                                                          
    3317  Steel Pipe and Tubes.............  1,000                      
    3331  Primary Smelting and Refining of   1,000                      
     Copper.                                                            
    3334  Primary Production of Aluminum...  1,000                      
    3339  Primary Smelting and Refining of   750                        
     Nonferrous Metals, Except Copper and                               
     Aluminum.                                                          
    3351  Rolling, Drawing, and Extruding    750                        
     of Copper.                                                         
    3353  Aluminum Sheet, Plate, and Foil..  750                        
    3354  Aluminum Extruded Products.......  750                        
    3355  Aluminum Rolling and Drawing,      750                        
     N.E.C.                                                             
    3356  Rolling, Drawing, and Extruding    750                        
     of Nonferrous Metals, Except Copper                                
     and Aluminum.                                                      
    3357  Drawing and Insulating of          1,000                      
     Nonferrous Wire.                                                   
    3398  Metal Heat Treating..............  750                        
    3399  Primary Metal Products, N.E.C....  750                        
    3411  Metal Cans.......................  1,000                      
    3431  Enameled Iron and Metal Sanitary   750                        
     Ware.                                                              
    3482  Small Arms Ammunition............  1,000                      
    3483  Ammunition, Except for Small Arms  1,500                      
    3484  Small Arms.......................  1,000                      
    3511  Steam, Gas, and Hydraulic          1,000                      
     Turbines, and Turbine Generator Set                                
     Units.                                                             

[[Page 3291]]
                                                                        
    3519  Internal Combustion Engines,       1,000                      
     N.E.C.                                                             
    3531  Construction Machinery and         750                        
     Equipment.                                                         
    3537  Industrial Trucks, Tractors,       750                        
     Trailers, and Stackers.                                            
    3562  Ball and Roller Bearings.........  750                        
    3571  Electronic Computers.............  1,000                      
    3572  Computer Storage Devices.........  1,000                      
    3575  Computer Terminals...............  1,000                      
    3577  Computer Peripheral Equipment,     1,000                      
     N.E.C.                                                             
    3578  Calculating and Accounting         1,000                      
     Machines, Except Electronic Computers.                             
    3585  Air-Conditioning and Warm Air      750                        
     Heating Equipment and Commercial and                               
     Industrial Refrigeration Equipment.                                
    3612  Power, Distribution, and           750                        
     Specialty Transformers.                                            
    3613  Switchgear and Switchboard         750                        
     Apparatus.                                                         
    3621  Motors and Generators............  1,000                      
    3624  Carbon and Graphite Products.....  750                        
    3625  Relays and Industrial Controls...  750                        
    3631  Household Cooking Equipment......  750                        
    3632  Household Refrigerators and Home   1,000                      
     and Farm Freezers.                                                 
    3633  Household Laundry Equipment......  1,000                      
    3634  Electronic Housewares and Fans...  750                        
    3635  Household Vacuum Cleaners........  750                        
    3641  Electric Lamp Bulbs and Tubes....  1,000                      
    3651  Household Audio and Video          750                        
     Equipment.                                                         
    3652  Phonograph Records and             750                        
     Prerecorded Audio Tapes and Disks.                                 
    3661  Telephone and Telegraph Apparatus  1,000                      
    3663  Radio and Television Broadcasting  750                        
     and Communications Equipment.                                      
    3669  Communications Equipment, N.E.C..  750                        
    3671  Electron Tubes...................  750                        
    3692  Primary Batteries, Dry and Wet...  1,000                      
    3694  Electrical Equipment for Internal  750                        
     Combustion Engines.                                                
    3695  Magnetic and Optical Recording     1,000                      
     Media.                                                             
    3699  Electrical Machinery, Equipment,   750                        
     and Supplies, N.E.C.                                               
    3711  Motor Vehicles and Passenger Car   1,000                      
     Bodies.                                                            
    3714  Motor Vehicle Parts and            750                        
     Accessories.                                                       
    3716  Motor Homes......................  1,000                      
    3721  Aircraft.........................  1,500                      
    3724  Aircraft Engines and Engine Parts  1,000                      
    3728  Aircraft Parts and Auxiliary       1,000 \9\                  
     Equipment, N.E.C.                                                  
    3731  Shipbuilding and Repair of         1,000                      
     Nuclear Propelled Ships.                                           
        Shipbuilding of Nonnuclear           1,000                      
         Propelled Ships and Nonpropelled                               
         Ships.                                                         
        Ship Repair (Including Overhauls     1,000                      
         and Conversions) Performed on                                  
         Nonnuclear Propelled and                                       
         Nonpropelled Ships East of the 108                             
         Meridian.                                                      
        Ship Repair (Including Overhauls     1,000                      
         and Conversion) Performed on                                   
         Nonnuclear Propelled and                                       
         Nonpropelled Ships West of the 108                             
         Meridian.                                                      
    3743  Railroad Equipment...............  1,000                      
    3761  Guided Missiles and Space          1,000                      
     Vehicles.                                                          
    3764  Guided Missile and Space Vehicle   1,000                      
     Propulsion Units and Propulsion Units                              
     Parts.                                                             
    3769  Guided Missile and Space Vehicle   1,000                      
     Parts and Auxiliary Equipment, N.E.C.                              
    3795  Tanks and Tank Components........  1,000                      
    3812  Search, Detection, Navigation,     750                        
     Guidance, Aeronautical, and Nautical                               
     Systems and Instruments.                                           
    3996  Linoleum, Asphalted-Felt-Base,     750                        
     and other Hard Surface Floor                                       
     Coverings, N.E.C.                                                  
------------------------------------------------------------------------
  DIVISION E--TRANSPORTATION, COMMUNICATIONS ELECTRIC, GAS, AND SANITARY
                                SERVICES                                
------------------------------------------------------------------------
MAJOR GROUP 40--RAILROAD TRANSPORTATION....  1500                       
EXCEPT:                                                                 
    4013  Railroad Switching and Terminal    500                        
     Establishments.                                                    
MAJOR GROUP 41--LOCAL AND SUBURBAN TRANSIT   $5.0                       
 AND INTERURBAN HIGHWAY AND PASSENGER                                   
 TRANSPORTATION.                                                        
MAJOR GROUP 42--MOTOR FREIGHT                $18.5                      
 TRANSPORTATION AND WAREHOUSING.                                        
EXCEPT:                                                                 
    4212 (Part)  Garbage and Refuse          $6.0                       
     Collection, Without Disposal.                                      
    4231  Terminal and Joint Terminal        $5.0                       
     Maintenance Facilities for Motor                                   
     Freight Transportation.                                            
MAJOR GROUP 44--WATER TRANSPORTATION.......  500                        
EXCEPT:                                                                 
    4491  Marine Cargo Handling............  $18.5                      
    4492  Towing and Tugboat Services......  $5.0                       
    4493  Marinas..........................  $5.0                       
    4499  Water Transportation Services,     $5.0                       
     N.E.C..                                                            
          --Offshore Marine Water            $20.5                      
     Transportation Services.                                           

[[Page 3292]]
                                                                        
MAJOR GROUP 45--TRANSPORTATION BY AIR......  1500                       
EXCEPT:                                                                 
    4522  Air Transportation, Nonscheduled.  1500                       
          --Offshore Marine Air              $20.5                      
     Transportation Services.                                           
    4581  Airports, Flying Fields, and       $5.0                       
     Airport Terminal Services.                                         
MAJOR GROUP 46--PIPELINES, EXCEPT NATURAL    1500                       
 GAS,.                                                                  
EXCEPT:                                                                 
    4619  Pipelines, N.E.C.................  $25.0                      
MAJOR GROUP 47--TRANSPORTATION SERVICES,...  $5.0                       
EXCEPT:                                                                 
    4724  Travel Agencies..................  $1.0\6\                    
    4731  Arrangement of Transportation of   $18.5                      
     Freight and Cargo.                                                 
    4783  Packing and Crating..............  $18.5                      
MAJOR GROUP 48--COMMUNICATIONS.............                             
    4812  Radiotelephone Communications....  1,500                      
    4813  Telephone Communications, Except   1,500                      
     Radiotelephone.                                                    
    4822  Telegraph and Other Message        $5.0                       
     Communications.                                                    
    4832  Radio Broadcasting Stations......  $5.0                       
    4833  Television Broadcasting Stations.  $10.5                      
    4841  Cable and Other Pay Television     $11.0                      
     Services.                                                          
    4899  Communications Services, N.E.C...  $11.0                      
MAJOR GROUP 49--ELECTRIC, GAS, AND SANITARY  $5.0                       
 SERVICES,.                                                             
EXCEPT:                                                                 
    4911  Electric Services................  4 million megawatt hrs.    
    4924  Natural Gas Distribution.........  500                        
    4953  Refuse Systems...................  $6.0                       
    4961  Steam and Air-Conditioning Supply  $9.0                       
------------------------------------------------------------------------
DIVISION F--WHOLESALE TRADE................  100                        
------------------------------------------------------------------------
    (Not Applicable to Government                                       
     procurement of supplies. The                                       
     nonmanufacturer size standard of 500                               
     employees shall be used for purposes                               
     of Government procurement of                                       
     supplies.)                                                         
------------------------------------------------------------------------
DIVISION G--RETAIL TRADE...................  $5.0                       
    (Not Applicable to Government                                       
     procurement of supplies. The                                       
     nonmanufacturer size standard of 500                               
     employees shall be used for purposes                               
     of Government procurement of                                       
     supplies.)                                                         
------------------------------------------------------------------------
    5271  Mobile Home Dealers..............  $9.5                       
    5311  Department Stores................  $20.0                      
    5331  Variety Stores...................  $8.0                       
    5411  Grocery Stores...................  $20.0                      
    5511  Motor Vehicle Dealers (New and     $21.0                      
     Used).                                                             
    5521  Motor Vehicle Dealers (Used Only)  $17.0                      
    5541  Gasoline Service Stations........  $6.5                       
    5599  Automobile Dealers, N.E.C........  $5.0                       
          --Aircraft Dealers, Retail.......  $7.5                       
    5611  Men's and Boys' Clothing and       $6.5                       
     Accessory Stores.                                                  
    5621  Women's Clothing Stores..........  $6.5                       
    5651  Family Clothing Stores...........  $6.5                       
    5661  Shoe Stores......................  $6.5                       
    5722  Household Appliance Stores.......  $6.5                       
    5731  Radio, Television, and Consumer    $6.5                       
     Electronics Stores.                                                
    5734  Computer and Computer Software     $6.5                       
     Stores.                                                            
    5812  (Part) Food Service,               $15.0                      
     Institutional.                                                     
    5961  Catalog and Mail-Order Houses....  $18.5                      
    5983  Fuel Oil Dealers.................  $9.0                       
------------------------------------------------------------------------
DIVISION H--FINANCE, INSURANCE, AND REAL     $5.0                       
 ESTATE.                                                                
------------------------------------------------------------------------
EXCEPT:                                                                 
    6021-6082  National and Commercial       $100 Million in assets \7\ 
     Banks, Savings, Institutions and                                   
     Credit Unions.                                                     
    6331  Fire, Marine, and Casualty         1,500                      
     Insurance.                                                         
    6515 (Part)  Leasing of Building Space   $15.0 \8\                  
     to Federal Government by Owners.                                   
    6531  Real Estate Agents and Managers..  $1.5 \6\                   
------------------------------------------------------------------------
DIVISION I--SERVICES.......................  $5.0                       
------------------------------------------------------------------------
EXCEPT:                                                                 

[[Page 3293]]
                                                                        
    7211  Power Laundries, Family and        $10.5                      
     Commercial.                                                        
    7213  Linen Supply.....................  $10.5                      
    7216  Drycleaning Plants, Except Rug     $3.5                       
     Cleaning.                                                          
    7217  Carpet and Upholstery Cleaning...  $3.5                       
    7218  Industries Launderers............  $10.0                      
    7311  Advertising Agencies.............  $5.0 \6\                   
    7312  Outdoor Advertising Services.....  $5.0 \6\                   
    7313  Radio, Television, and             $5.0 \6\                   
     Publishers' Advertising                                            
     Representatives.                                                   
    7319  Advertising, N.E.C...............  $5.0 \6\                   
    7349  Building Cleaning and Maintenance  $12.0                      
     Services, N.E.C..                                                  
    7371  Computer Programming Services....  $18.0                      
    7372  Prepackaged Software.............  $18.0                      
    7373  Computer Integrated Systems        $18.0                      
     Design.                                                            
    7374  Computer Processing and Data       $18.0                      
     Preparation and Processing Services.                               
    7375  Information Retrieval Services...  $18.0                      
    7376  Computer Facilities Management     $18.0                      
     Services.                                                          
    7377  Computer Rental and Leasing......  $18.0                      
    7378  Computer Maintenance and Repair..  $18.0                      
    7379  Computer Related Services, N.E.C.  $18.0                      
    7381  Detective, Guard, and Armord Car   $9.0                       
     Services.                                                          
    7382  Security Systems Services........  $9.0                       
    7389  Business Services, N.E.C.........  $5.0                       
        Map Drafting Services, Mapmaking     $3.5                       
         (Including Aerial) and                                         
         Photogrammetric Mapping Services.                              
    7513  Truck Rental and Leasing Without   $18.5                      
     Drivers.                                                           
    7514  Passenger Car Rental.............  $18.5                      
    7515  Passenger Car Leasing............  $18.5                      
    7534  Tire Retreading and Repair Shops.  $10.5                      
    7699  Repair Shops and Related           $5.0 \9\                   
     Services, N.E.C.                                                   
    7812  Motion Picture and Video Tape      $21.5                      
     Production.                                                        
    7819  Services Allied to Motion Picture  $21.5                      
     Production.                                                        
    7822  Motion Picture and Video Tape      $21.5                      
     Distribution.                                                      
    8299  (Part) Flight Training Services..  $18.5                      
    8711  Engineering Services.............  $2.5                       
        Military and Aerospace Equipment     $20.0                      
         and Military Weapons.                                          
        Contracts and Subcontracts for       $20.0                      
         Engineering Services Awarded Under                             
         the National Energy Policy Act of                              
         1992.                                                          
        Marine Engineering and Naval         $13.5                      
         Architecture.                                                  
    8712  Architectural Services (Other      $2.5                       
     Than Naval).                                                       
    8713  Surveying Services...............  $2.5                       
    8721  Accounting, Auditing, and          $6.0                       
     Bookkeeping Services.                                              
    8731  Commercial Physical and            500 \10\                   
     Biological Research.                                               
        Aircraft...........................  1,500                      
        Aircraft Parts, and Auxiliary        1,000                      
         Equipment, and Aircraft Engines                                
         and Engine Parts.                                              
        Space Vehicles and Guided Missiles,  1,000                      
         their Propulsion Units, their                                  
         Propulsion Units Parts, and their                              
         Auxiliary Equipment and Parts.                                 
    8741 (Part)  Conference Management       $5.0 \6\                   
     Services.                                                          
    8744  Facilities Support Management      $5.0 \11\                  
     Services.                                                          
        Base Maintenance...................  $20.0 \12\                 
        Environmental Remediation Services.  500 \13\                   
------------------------------------------------------------------------
Footnotes:                                                              
\1\ SIC code 1629--Dredging: To be considered small for purposes of     
  Government procurement, a firm must perform at least 40 percent of the
  volume dredged with its own equipment or equipment owned by another   
  small dredging concern.                                               
\2\ SIC Division D--Manufacturing: For rebuilding machinery or equipment
  on a factory basis, or equivalent, use the SIC code for a newly       
  manufactured product. Concerns performing major rebuilding or overhaul
  activities do not necessarily have to meet the criteria for being a   
  ``manufacturer'' although the activities may be classified under a    
  manufacturing SIC code. Ordinary repair services or preservation are  
  not considered rebuilding.                                            
\3\ SIC code 2033: For purposes of Government procurement for food      
  canning and preserving, the standard of 500 employees excludes        
  agricultural labor as defined in section 3306(k) of the Internal      
  Revenue Code, 26 U.S.C. 3306(k).                                      
\4\ SIC code 2911: For purposes of Government procurement, the firm may 
  not have more than 1,500 employees nor more than 75,000 barrels per   
  day capacity of petroleum-based inputs, including crude oil or bona   
  fide feedstocks. Capacity includes owned or leased facilities as well 
  as facilities under a processing agreement or an arrangement such as  
  an exchange agreement or a throughput. The total product to be        
  delivered under the contract must be at least 90 percent refined by   
  the successful bidder from either crude oil or bona fide feedstocks.  
\5\ SIC code 3011: For purposes of Government procurement, a firm is    
  small for bidding on a contract for pneumatic tires within Census     
  Classification codes 30111 and 30112, provided that:                  
(1) The value of tires within Census Classification codes 30111 and     
  30112 which it manufactured in the United States during the previous  
  calendar year is more than 50 percent of the value of its total       
  worldwide manufacture;                                                
(2) The value of pneumatic tires within Census Classification codes     
  30111 and 30112 comprising its total worldwide manufacture during the 
  preceding calendar year was less than 5 percent of the value of all   
  such tires manufactured in the United States during that period; and  
(3) the value of the principal product which it manufactured or         
  otherwise produced, or sold worldwide during the preceding calendar   
  year is less than 10 percent of the total value of such products      
  manufactured or otherwise produced or sold in the United States during
  that period.                                                          
\6\ SIC codes 4724, 6531, 7311, 7312, 7313, 7319, and 8741 (part): As   
  measured by total revenues, but excluding funds received in trust for 
  an unaffiliated third party, such as bookings or sales subject to     
  commissions. The commissions received are included as revenue.        

[[Page 3294]]
                                                                        
\7\ A financial institution's assets are determined by averaging the    
  assets reported on its four quarterly financial statements for the    
  preceding year. Assets for the purposes of this size standard means   
  the assets defined according to the Federal Financial Institutions    
  Examination Council 034 call report form.                             
\8\ SIC code 6515: Leasing of building space to the Federal Government  
  by Owners: For Government procurement, a size standard of $15.0       
  million in gross receipts applies to the owners of building space     
  leased to the Federal Government. The standard does not apply to an   
  agent.                                                                
\9\ SIC codes 7699 and 3728: Contracts for the rebuilding or overhaul of
  aircraft ground support equipment on a contract basis are classified  
  under SIC code 3728.                                                  
\10\ SIC code 8731: For research and development contracts requiring the
  delivery of a manufactured product, the appropriate size standard is  
  that of the manufacturing industry.                                   
(1) Research and Development means laboratory or other physical research
  and development. It does not include economic, educational,           
  engineering, operations, systems, or other nonphysical research; or   
  computer programming, data processing, commercial and/or medical      
  laboratory testing.                                                   
(2) For purposes of the Small Business Innovation Research (SBIR)       
  program only, a different definition has been established by law. See 
  Sec.  121.701.                                                        
(3) Research and development for guided missiles and space vehicles     
  includes evaluations and simulation, and other services requiring     
  thorough knowledge of complete missiles and spacecraft.               
\11\ Facilities Management, a component of SIC code 8744, includes      
  establishments, not elsewhere classified, which provide overall       
  management and the personnel to perform a variety of related support  
  services in operating a complete facility in or around a specific     
  building, or within another business or Government establishment.     
  Facilities management means furnishing three or more personnel supply 
  services which may include, but are not limited to, secretarial       
  services, typists, telephone answering, reproduction or mimeograph    
  service, mailing service, financial or business management, public    
  relations, conference planning, travel arrangements, word processing, 
  maintaining files and/or libraries, switchboard operation, writers,   
  bookkeeping, minor office equipment maintenance and repair, or use of 
  information systems (not programming).                                
\12\ SIC code 8744:                                                     
(1) If one of the activities of base maintenance, as defined in         
  paragraph (2) of this footnote, can be identified with a separate     
  industry and that activity (or industry) accounts for 50 percent or   
  more of the value of an entire contract, then the proper size standard
  is that of the particular industry, and not the base maintenance size 
  standard.                                                             
(2) ``Base Maintenance'' requires the performance of three or more      
  separate activities in the areas of service or special trade          
  construction industries. If services are performed, these activities  
  must each be in a separate SIC code including, but not limited to,    
  Janitorial and Custodial Service, Fire Prevention Service, Messenger  
  Service, Commissary Service, Protective Guard Service, and Grounds    
  Maintenance and Landscaping Service. If the contract requires the use 
  of special trade contractors (plumbing, painting, plastering,         
  carpentry, etc.), all such special trade construction activities are  
  considered a single activity and classified as Base Housing           
  Maintenance. Since Base Housing Maintenance is only one activity, two 
  additional activities are required for a contract to be classified as 
  ``Base Maintenance.''                                                 
\13\ SIC codre 8744: (1) For SBA assistance as a small business concern 
  in the industry of Environmental Remediation Services, other than for 
  Government procurement, a concern must be engaged primarily in        
  furnishing a range of services for the remediation of a contaminated  
  environment to an acceptable condition including, but not limited to, 
  preliminary assessment, site inspection, testing, remedial            
  investigation, feasibility studies, remedial design, containment,     
  remedial action, removal of contaminated materials, storage of        
  contaminated materials and security and site closeouts. If one of such
  activities accounts for 50 percent or more of a concern's total       
  revenues, employees, or other related factors, the concern's primary  
  industry is that of the particular industry and not the Environmental 
  Remediation Services Industry.                                        
(2) For purposes of classifying a Government procurement as             
  Environmental Remediation Services, the general purpose of the        
  procurement must be to restore a contaminated environment and also the
  procurement must be composed of activities in three or more separate  
  industries with separate SIC codes or, in some instances (e.g.,       
  engineering), smaller sub-components of SIC codes with separate,      
  distinct size standards. These activities may include, but are not    
  limited to, separate activities in industries such as: Heavy          
  Construction; Special Trade Construction; Engineering Services;       
  Architectural Services; Management Services; Refuse Systems; Sanitary 
  Services, Not Elsewhere Classified; Local Trucking Without Storage;   
  Testing Laboratories; and Commercial, Physical and Biological         
  Research. If any activity in the procurement can be identified with a 
  separate SIC code, or component of a code with a separate distinct    
  size standard, and that industry accounts for 50 percent or more of   
  the value of the entire procurement, then the proper size standard is 
  the one for that particular industry, and not the Environmental       
  Remediation Service size standard.                                    



Size Eligibility Requirements For SBA Financial Assistance


Sec. 121.301  What size standards are applicable to financial 
assistance programs?

    (a) For Business Loans and Disaster Loans (other than physical 
disaster loans), an applicant must not exceed the size standard for the 
industry in which:
    (1) The applicant combined with its affiliates is primarily 
engaged; and
    (2) The applicant alone is primarily engaged.
    (b) For Development Company programs, an applicant must meet one of 
the following standards:
    (1) Including its affiliates, tangible net worth not in excess of 
$6 million, and average net income after Federal income taxes 
(excluding any carry-over losses) for the preceding two completed 
fiscal years not in excess of $2 million; or
    (2) The same standards applicable under paragraph (a) of this 
section.
    (c) For the Small Business Investment Company (SBIC) program, an 
applicant must meet one of the following standards:
    (1) Including its affiliates, tangible net worth not in excess of 
$18 million, and average net income after Federal income taxes 
(excluding any carry-over losses) for the preceding 2 completed fiscal 
years not in excess of $6 million; or
    (2) The same standards applicable under paragraph (a) of this 
section.
    (d) For Surety Bond Guarantee assistance--
    (1) Any construction (general or special trade) concern or concern 
performing a contract for services is small if its average annual 
receipts do not exceed $5.0 million.
    (2) Any concern not specified in paragraph (d)(1) of this section 
must meet the size standard for the primary industry in which it, 
combined with its affiliates, is engaged.
    (e) The applicable size standards for the purpose of all SBA 
financial assistance programs, excluding the Surety Bond Guarantee 
assistance program, are increased by 25 percent whenever the applicant 
agrees to use the assistance within a labor surplus area. Labor surplus 
areas are listed monthly in the Department of Labor publication called 
``Area Trends.''


Sec. 121.302  When does SBA determine the size status of an applicant?

    (a) The size of an applicant for SBA financial assistance is 
determined as of the date the application for such financial assistance 
is accepted for processing by SBA, except for the Disaster Loan and 
Preferred Lenders programs.
    (b) For the Preferred Lenders program, size is determined as of the 
date of approval of the loan by the Preferred Lender.
    (c) For disaster loan assistance (other than physical disaster 
loans), size status is determined as of the date the disaster 
commenced, as set forth in the Disaster Declaration.
    (d) Changes in size subsequent to the applicable date when size is 
determined will not disqualify an applicant for assistance. 

[[Page 3295]]



Sec. 121.303  What size procedures are used by SBA before it makes a 
formal size determination?

    (a) A concern that submits an application for financial assistance 
is deemed to have certified that it is small under the applicable size 
standard. SBA may question the concern's status based on information 
supplied in the application or from any other source.
    (b) A small business investment company, a development company, a 
surety bond company, or a preferred lender may accept as true the size 
information provided by an applicant, unless credible evidence to the 
contrary is apparent.
    (c) Size is initially considered by the individual with final 
financial assistance authority. This is not a formal size 
determination. A formal determination may be requested prior to a 
denial of eligibility based on size.
    (d) An applicant may request a formal size determination when 
assistance has been denied for size ineligibility. Except for disaster 
loan eligibility, a request for a formal size determination must be 
made to the Government Contracting Area Director serving the area in 
which the headquarters of the applicant is located, regardless of the 
location of the parent company or affiliates. For disaster loan 
assistance, the request for a size determination must be made to the 
Area Director for the Disaster Area Office which denied the assistance.
    (e) There are no time limitations for making a formal size 
determination for purposes of financial assistance. The official making 
the formal size determination must provide a copy of the determination 
to the applicant, to the requesting SBA official, and to other 
interested SBA program officials.


Sec. 121.304  What are the size requirements for refinancing an 
existing SBA loan?

    (a) A concern that applies to refinance an existing SBA loan or 
guarantee will be considered small for the refinancing even though its 
size has increased since the date of the original financing to exceed 
its applicable size standard, provided that:
    (1) The increase in size is due to natural growth (as distinguished 
from merger, acquisition or similar management action); and
    (2) SBA determines that refinancing is necessary to protect the 
Government's financial interest.
    (b) If a concern's size has increased other than by natural growth, 
the concern and its affiliates must be small at the time the 
application for refinancing is accepted for processing by SBA.


Sec. 121.305  What size eligibility requirements exist for obtaining 
business loans relating to particular procurements?

    A concern qualified as small for a particular procurement, 
including an 8(a) subcontract, is small for financial assistance 
directly and primarily relating to the performance of the particular 
procurement.

Size Eligibility Requirements for Government Procurement


Sec. 121.401  What procurement programs are subject to size 
determinations?

    The requirements set forth in Secs. 121.401 through 121.412 cover 
all procurement programs for which status as a small business is 
required, including the small business set-aside program, SBA's 
Certificate of Competency Program, SBA's Minority Enterprise 
Development program, the Small Business Subcontracting program 
authorized under section 8(d) of the Small Business Act, and Federal 
Small Disadvantaged Business programs.


Sec. 121.402  What size standards are applicable to procurement 
assistance programs?

    (a) A concern must meet the size standard for the SIC code 
specified in the solicitation.
    (b) The procuring agency contracting officer, or authorized 
representative, designates the proper SIC code and size standard in a 
solicitation, selecting the SIC code which best describes the principal 
purpose of the product or service being acquired. Primary consideration 
is given to the industry descriptions in the SIC Manual, the product or 
service description in the solicitation and any attachments to it, the 
relative value and importance of the components of the procurement 
making up the end item being procured, and the function of the goods or 
services being purchased. Other factors considered include previous 
Government procurement classifications of the same or similar products 
or services, and the classification which would best serve the purposes 
of the Small Business Act. A procurement is usually classified 
according to the component which accounts for the greatest percentage 
of contract value.
    (c) The SIC code assigned to a procurement and its corresponding 
size standard is final unless timely appealed to SBA's Office of 
Hearings and Appeals (OHA), or unless SBA assigns a SIC code or size 
standard as provided in paragraph (d) of this section.
    (d) An unclear, incomplete or missing SIC code designation or size 
standard in the solicitation may be clarified, completed or supplied by 
SBA in connection with a formal size determination or size appeal.
    (e) Any offeror or other interested party adversely affected by a 
SIC code designation or size standard designation may appeal the 
designations to OHA under Part 134 of this chapter.


Sec. 121.403  Are SBA size determinations and SIC code designations 
binding on parties?

    Formal size determinations and SIC code designations made by 
authorized SBA officials are binding upon the parties. Opinions 
otherwise provided by SBA officials to contracting officers or others 
are advisory in nature, and are not binding or appealable.


Sec. 121.404  When does SBA determine the size status of a business 
concern?

    Generally, SBA determines the size status of a concern (including 
its affiliates) as of the date the concern submits a written self-
certification that it is small to the procuring agency as part of its 
initial offer including price. The following are two exceptions to this 
rule:
    (a) The size status of an applicant for a Certificate of Competency 
(COC) relating to an unrestricted procurement is determined as of the 
date of the concern's application for the COC.
    (b) Size status for purposes of compliance with the nonmanufacturer 
rule set forth in Sec. 121.406(b)(1) and the ostensible subcontractor 
rule set forth in Sec. 121.103(f)(3) is determined as of the date of 
the best and final offer.


Sec. 121.405  May a business concern self-certify its small business 
size status?

    (a) A concern must self-certify it is small under the size standard 
specified in the solicitation, or as clarified, completed or supplied 
by SBA pursuant to Sec. 121.402(d).
    (b) A contracting officer may accept a concern's self-certification 
as true for the particular procurement involved in the absence of a 
written protest by other offerors or other credible information which 
causes the contracting officer or SBA to question the size of the 
concern.
    (c) Procedures for protesting the self-certification of an offeror 
are set forth in Secs. 121.1001 through 121.1009.


Sec. 121.406  How does a small business concern qualify to provide 
manufactured products under small business set-aside or MED 
procurements?

    (a) General. In order to qualify as a small business concern for a 
small business set-aside or 8(a) contract to provide manufactured 
products, an offeror must either:
    (1) Be the manufacturer of the end item being procured (and the end 
item 

[[Page 3296]]
must be manufactured or produced in the United States); or
    (2) Comply with the requirements of paragraph (b), (c) or (d) of 
this section as a nonmanufacturer, a kit assembler or a supplier under 
Simplified Acquisition Procedures.
    (b) Nonmanufacturers. (1) A concern may qualify for a requirement 
to provide manufactured products as a nonmanufacturer if it:
    (i) Does not exceed 500 employees;
    (ii) Is primarily engaged in the wholesale or retail trade and 
normally sells the items being supplied to the general public; and
    (iii) Will supply the end item of a small business manufacturer or 
processor made in the United States, or obtains a waiver of such 
requirement pursuant to paragraph (b)(3) of this section.
    (2) For size purposes, there can be only one manufacturer of the 
end item being acquired. The manufacturer is the concern which, with 
its own facilities, performs the primary activities in transforming 
inorganic or organic substances, including the assembly of parts and 
components, into the end item being acquired. The end item must possess 
characteristics which, as a result of mechanical, chemical or human 
action, it did not possess before the original substances, parts or 
components were assembled or transformed. The end item may be finished 
and ready for utilization or consumption, or it may be semifinished as 
a raw material to be used in further manufacturing. Firms which perform 
only minimal operations upon the item being procured do not qualify as 
manufacturers of the end item. SBA will evaluate the following factors 
in determining whether a concern is the manufacturer of the end item:
    (i) The proportion of total value in the end item added by the 
efforts of the concern, excluding costs of overhead, testing, quality 
control, and profit; and
    (ii) The importance of the elements added by the concern to the 
function of the end item, regardless of their relative value.
    (3) The Administrator or designee may waive the requirement set 
forth in paragraph (b)(1)(iii) of this section under the following two 
circumstances:
    (i) The contracting officer has determined that no small business 
manufacturer or processor reasonably can be expected to offer a product 
meeting the specifications (including period for performance) required 
by a particular solicitation and SBA reviews and accepts that 
determination; or
    (ii) SBA determines that no small business manufacturer or 
processor of the product or class of products is available to 
participate in the Federal procurement market.
    (4) The two waiver possibilities identified in paragraph (b)(3) of 
this section are called ``class'' waivers and ``individual'' waivers 
respectively, and the procedures for them are contained in 
Sec. 121.1204 .
    (5) Any SBA waiver of the nonmanufacturer rule has no effect on 
requirements external to the Small Business Act which involve domestic 
sources of supply, such as the Buy American Act.
    (c) Kit assemblers. (1) Where the manufactured item being acquired 
is a kit of supplies or other goods provided by an offeror for a 
special purpose, the offeror cannot exceed 500 employees, and 50 
percent of the total value of the components of the kit must be 
manufactured by business concerns in the United States which are small 
under the size standards for the SIC codes of the components being 
assembled. The offeror need not itself be the manufacturer of any of 
the items assembled.
    (2) Where the Government has specified an item for the kit which is 
not produced by U.S. small business concerns, such item shall be 
excluded from the calculation of total value in paragraph (c)(1) of 
this section.
    (d) Simplified Acquisition Procedures. Where the procurement of a 
manufactured item is processed under Simplified Acquisition Procedures, 
as defined in Sec. 13.101 of the Federal Acquisition Regulation (FAR) 
(48 CFR 13.101), and where the anticipated cost of the procurement will 
not exceed $25,000, the offeror need not supply the end product of a 
small business concern as long as the product acquired is manufactured 
or produced in the United States, and the offeror does not exceed 500 
employees. The offeror need not itself be the manufacturer of any of 
the items acquired.


Sec. 121.407  What are the size procedures for multiple item 
procurements?

    If a procurement calls for two or more specific end items or types 
of services with different size standards and the offeror may submit an 
offer on any or all end items or types of services, the offeror must 
meet the size standard for each end item or service item for which it 
submits an offer. If the procurement calls for more than one specific 
end item or type of service and an offeror is required to submit an 
offer on all items, the offeror may qualify as a small business for the 
procurement if it meets the size standard of the item which accounts 
for the greatest percentage of the total contract value.


Sec. 121.408  What are the size procedures for SBA's Certificate of 
Competency Program?

    (a) A firm which applies for a COC must file an ``Application for 
Small Business Size Determination'' (SBA Form 355). If the initial 
review of SBA Form 355 indicates the applicant, including its 
affiliates, is small for purposes of the COC program, SBA will process 
the application for COC. If the review indicates the applicant, 
including its affiliates, is other than small, SBA will initiate a 
formal size determination as set forth in Sec. 121.1009. In such a 
case, SBA will not further process the COC application until a formal 
size determination is made.
    (b) A concern is ineligible for a COC if a formal SBA size 
determination finds the concern other than small.


Sec. 121.409  What size standard applies in an unrestricted procurement 
for Certificate of Competency purposes?

    For the purpose of receiving a Certificate of Competency in an 
unrestricted procurement, the applicable size standard is that 
corresponding to the SIC code set forth in the solicitation. For a 
manufactured product, a concern must also furnish a domestically 
produced or manufactured product, regardless of the size status of the 
product manufacturer. The offeror need not be the manufacturer of any 
of the items acquired.


Sec. 121.410  What are the size standards for SBA's Section 8(d) 
Subcontracting Program?

    For subcontracting purposes pursuant to section 8(d) of the Small 
Business Act, a concern is small:
    (a) For subcontracts of $10,000 or less which relate to Government 
procurements, if its number of employees (including its affiliates) 
does not exceed 500 employees. However, subcontracts for engineering 
services awarded under the National Energy Policy Act of 1992 have the 
same size standard as Military and Aerospace Equipment and Military 
Weapons under SIC code 8711;
    (b) For subcontracts exceeding $10,000 which relate to Government 
procurements, if its number of employees or average annual receipts 
(including its affiliates) does not exceed the size standard for the 
product or service it is providing on the subcontract; and
    (c) For subcontracts for financial services, if the concern 
(including its affiliates) is a commercial bank or savings and loan 
association whose assets do not exceed $100 million. 

[[Page 3297]]



Sec. 121.411  What are the size procedures for SBA's Section 8(d) 
Subcontracting Program?

    (a) Prime contractors may rely on the information contained in 
SBA's Procurement Automated Source System (PASS), or equivalent data 
base maintained or sanctioned by SBA, as an accurate representation of 
a concern's size and ownership characteristics for purposes of 
maintaining a small business source list. Even though a concern is on a 
small business source list, it must still qualify and self-certify as a 
small business at the time it submits its offer as a section 8(d) 
subcontractor.
    (b) Upon determination of the successful subcontract offeror for a 
competitive subcontract, but prior to award, the prime contractor must 
inform each unsuccessful subcontract offeror in writing of the name and 
location of the apparent successful offeror.
    (c) The self-certification of a concern subcontracting or proposing 
to subcontract under section 8(d) of the Small Business Act may be 
protested by the contracting officer, the prime contractor, the 
appropriate SBA official or any other interested party.


Sec. 121.412  What are the size procedures for partial small business 
set-asides?

    A firm is required to meet size standard requirements only for the 
small business set-aside portion of a procurement, and is not required 
to qualify as a small business for the unrestricted portion.

Size Eligibility Requirements For Sales Or Lease Of Government Property


Sec. 121.501  What programs for sales or leases of Government property 
are subject to size determinations?

    Sections 121.501 through 121.512 apply to small business size 
determinations for the purpose of the sale or lease of Government 
property, including the Timber Sales Program, the Special Salvage 
Timber Sales Program, and the sale of Government petroleum, coal and 
uranium.


Sec. 121.502  What size standards are applicable to programs for sales 
or leases of Government property?

    (a) Unless otherwise specified in this part--
    (1) A concern primarily engaged in manufacturing is small for sales 
or leases of Government property if it does not exceed 500 employees;
    (2) A concern not primarily engaged in manufacturing is small for 
sales or leases of Government property if it has annual receipts not 
exceeding $2 million.
    (b) Size status for such sales and leases is determined by the 
primary industry of the applicant business concern.


Sec. 121.503  Are SBA size determinations binding on parties?

    Formal size determinations based upon a specific Government sale or 
lease, or made in response to a request from another Government agency 
under Sec. 121.901, are binding upon the parties. Other SBA opinions 
provided to contracting officers or others are only advisory, and are 
not binding or appealable.


Sec. 121.504  When does SBA determine the size status of a business 
concern?

    SBA determines the size status of a concern (including its 
affiliates) as of the date the concern submits a written self-
certification that it is small to the Government as part of its initial 
offer including price where there is a specific sale or lease at issue, 
or as set forth in Sec. 121.903 if made in response to a request of 
another Government agency.


Sec. 121.505  What is the effect of a self-certification?

    (a) A contracting officer may accept a concern's self-certification 
as true for the particular sale or lease involved, in the absence of a 
written protest by other offerors or other credible information which 
would cause the contracting officer or SBA to question the size of the 
concern.
    (b) Procedures for protesting the self-certification of an offeror 
are set forth in Secs. 121.1001 through 121.1009.


Sec. 121.506  What definitions are important for sales or leases of 
Government-owned timber?

    (a) Forest product industry means logging, wood preserving, and the 
manufacture of lumber and wood related products such as veneer, 
plywood, hardboard, particle board, or wood pulp, and of products of 
which lumber or wood related products are the principal raw materials.
    (b) Logging of timber means felling and bucking, yarding, and/or 
loading. It does not mean hauling.
    (c) Manufacture of logs means, at a minimum, breaking down logs 
into rough cuts of the finished product.
    (d) Sell means, in addition to its usual and customary meaning, the 
exchange of sawlogs for sawlogs on a product-for-product basis with or 
without monetary adjustment, and an indirect transfer, such as the sale 
of the assets of a concern after it has been awarded one or more set-
aside sales of timber.
    (e) Significant logging of timber means that a concern uses its own 
employees to perform at least two of the following: felling and 
bucking, yarding, and loading.


Sec. 121.507  What are the size standard and other requirements for the 
purchase of Government-owned timber (other than Special Salvage 
Timber)?

    (a) To be small for purposes of the sale of Government-owned timber 
(other than Special Salvage Timber) a concern must:
    (1) Be primarily engaged in the logging or forest products 
industry;
    (2) Not exceed 500 employees, taking into account its affiliates; 
and
    (3) If it does not intend at the time of the offer to resell the 
timber--
    (i) Agree that it will manufacture the logs with its own facilities 
or those of another business which meets the requirements of paragraphs 
(a)(1) and (a)(2) of this section;
    (ii) Agree that if it eventually resells the timber, it will resell 
no more than 30% of the sawtimber volume to other businesses which do 
not meet the requirements of paragraphs (a)(1) and (a)(2) of this 
section; and
    (iii) Agree that if it becomes acquired or controlled by a business 
which does not meet the requirements of paragraphs (a)(1) and (a)(2) of 
this section, it will require as a condition of the acquisition or 
change of control that the acquiring or controlling business resell at 
least 70% of the sawtimber volume to businesses which do meet the 
requirements of paragraphs
    (a)(1) and (a)(2) of this section; or
    (4) If it intends at the time of offer to resell the timber--
    (i) Agree that it will not sell more than 30% of such timber (50% 
of such timber if the concern is an Alaskan business) to a business 
which does not meet the requirements of paragraphs (a)(1) and (a)(2) of 
this section; and
    (ii) Agree that if it becomes acquired or controlled by a business 
which does not meet the requirements of paragraphs (a)(1) and (a)(2) of 
this section, it will require as a condition of the acquisition or 
change of control that the acquiring or controlling business resell at 
least 70% of the sawtimber volume (or at least 50% of the sawtimber 
volume, if it is an Alaskan business) to businesses which meet the 
requirements of paragraphs (a)(1) and (a)(2) of this section.
    (b) For a period of three years following the date upon which a 
concern purchases timber under a small business set-aside (other than 
through the Special Salvage Timber Sale program), it must maintain a 
record of:
    (1) The name, address and size status of every concern to which it 
sells the timber or sawlogs; and 

[[Page 3298]]

    (2) The species, grades and volumes of sawlogs sold.
    (c) For a period of three years following the date upon which a 
concern purchases timber, it must by contract require all small 
business repurchasers of the sawlogs or timber it purchased under the 
small business set-aside to maintain the records described in paragraph 
(b) of this section.


Sec. 121.508  What are the size standard and other requirements for the 
purchase of Government-owned Special Salvage Timber?

    (a) In order to purchase Government-owned Special Salvage Timber 
from the United States Forest Service or the Bureau of Land Management 
as a small business, a concern must:
    (1) Be primarily engaged in the logging or forest product industry;
    (2) Have, together with its affiliates, no more than twenty-five 
employees during any pay period for the last twelve months; and
    (3) If it does not intend at the time of offer to resell the 
timber--
    (i) Agree that it will manufacture a significant portion of the 
logs with its own employees; and
    (ii) Agree that it will log the timber only with its own employees 
or with employees of another business which is eligible for award of a 
Special Salvage Timber sales contract; or
    (4) If it intends at the time of offer to resell the timber, agree 
that it will perform a significant portion of timber logging with its 
own employees and that it will subcontract the remainder of the timber 
logging to a concern which is eligible for award of a Special Salvage 
Timber sales contract.


Sec. 121.509  What is the size standard for leasing of Government land 
for coal mining?

    A concern is small for this purpose if it:
    (a) Together with its affiliates, does not have more than 250 
employees;
    (b) Maintains management and control of the actual mining 
operations of the tract; and
    (c) Agrees that if it subleases the Government land, it will be to 
another small business, and that it will require its sublessors to 
agree to the same.


Sec. 121.510  What is the size standard for leasing of Government land 
for uranium mining?

    A concern is small for this purpose if it, together with its 
affiliates, does not have more than 100 employees.


Sec. 121.511  What is the size standard for buying Government-owned 
petroleum?

    A concern is small for this purpose if it is primarily engaged in 
petroleum refining and meets the size standard for a petroleum refining 
business.


Sec. 121.512  What is the size standard for stockpile purchases?

    A concern is small for this purpose if:
    (a) It is primarily engaged in the purchase of materials which are 
not domestic products; and
    (b) Its annual receipts, together with its affiliates, do not 
exceed $42 million.

Size Eligibility Requirements for the Minority Enterprise Development 
(MED) Program


Sec. 121.601  What is a small business for purposes of admission to 
SBA's Minority Enterprise Development (MED) program?

    An applicant must be small under the size standard corresponding to 
its primary industry classification in order to be admitted to SBA's 
Minority Enterprise Development (MED) program.


Sec. 121.602  At what point in time must a MED applicant be small?

    A MED applicant must be small for its primary industry at the time 
SBA certifies it for admission into the program.


Sec. 121.603  How does SBA determine whether a Participant is small for 
a particular MED subcontract?

    (a) Self certification by Participant. A MED Participant must 
certify that it qualifies as a small business under the SIC code 
assigned to a particular MED subcontract as part of its initial offer 
including price to the procuring agency. The Participant also must 
submit a copy of its offer, including its self-certification as to 
size, to the appropriate SBA district office at the same time it 
submits the offer to the procuring agency. See Sec. 121.404 for the 
time at which size is determined for, and Sec. 121.406 for the 
applicability of the nonmanufacturer rule to, MED procurements.
    (b) Verification of size by SBA. Within 30 days of its receipt of a 
Participant's size self-certification for a particular MED subcontract, 
the SBA district office serving the geographic area in which the 
Participant's principal office is located will review the Participant's 
self-certification and determine if it is small for purposes of that 
subcontract. The SBA district office will review the Participant's most 
recent financial statements and other relevant data and then notify the 
Participant of its decision.
    (c) Changes in size between date of self-certification and date of 
award. (1) Where SBA verifies that the selected Participant is small 
for a particular procurement, subsequent changes in size up to the date 
of award, except those due to merger with or acquisition by another 
business concern, will not affect the firm's size status for that 
procurement.
    (2) Where a Participant has merged with or been acquired by another 
business concern between the date of its self-certification and the 
date of award, the concern must recertify its size status, and SBA must 
verify the new certification before award can occur.
    (d) Finding Participant to be other than small. (1) A Participant 
may request a formal size determination (pursuant to Secs. 121.1001 
through 121.1009) with the SBA Government Contracting Area Office 
serving the geographic area in which the principal office of the 
Participant is located within 5 working days of its receipt of notice 
from the SBA district office that it is not small for a particular MED 
subcontract.
    (2) Where the Participant does not timely request a formal size 
determination, SBA may accept the procurement in support of another 
Participant, or may rescind its acceptance of the offer for the MED 
program, as appropriate.


Sec. 121.604  Are MED Participants considered small for purposes of 
other SBA assistance?

    A concern which SBA determines to be a small business for the award 
of a MED subcontract will be considered to have met applicable size 
eligibility requirements of other SBA programs where that assistance 
directly and primarily relates to the performance of the MED 
subcontract in question.

Size Eligibility Requirements for the Small Business Innovation 
Research (SBIR) Program


Sec. 121.701  What SBIR programs are subject to size determinations?

    (a) These sections apply to size status for award of a funding 
agreement pursuant to the Small Business Innovation Development Act of 
1982 (Pub. L. 97-219, 15 U.S.C. 638(e) through (k)).
    (b) Funding agreement officer means a contracting officer, a grants 
officer, or a cooperative agreement officer.
    (c) Funding agreement means any contract, grant or cooperative 
agreement entered into between any Federal agency and any small 
business for the performance of experimental, developmental, or 
research work funded in whole or in part by the Federal Government. 
Such work includes:
    (1) A systematic, intensive study directed toward greater knowledge 
or understanding of the subject studied; 

[[Page 3299]]

    (2) A systematic study directed specifically toward applying new 
knowledge to meet a recognized need; or
    (3) A systematic application of knowledge toward the production of 
useful materials, devices, and systems or methods, including design, 
development, and improvement of prototypes and new processes to meet 
specific requirements.


Sec. 121.702  What size standards are applicable to the SBIR program?

    To be eligible to compete for award of funding agreements in SBA's 
Small Business Innovation Research (SBIR) program, a business concern 
must:
    (a) Be at least 51 percent owned and controlled by one or more 
individuals who are citizens of, or permanent resident aliens in, the 
United States; and
    (b) Not have more than 500 employees, including its affiliates.


Sec. 121.703  Are formal size determinations binding on parties?

    Size determinations by authorized SBA officials are formal actions 
based upon a specific funding agreement, and are binding upon the 
parties. Other SBA opinions provided to funding agreement officers or 
others, are only advisory, and are not binding or appealable.


Sec. 121.704  When does SBA determine the size status of a business 
concern?

    The size status of a concern for the purpose of a funding agreement 
under the SBIR program is determined as of the date of the award for 
both Phase I and Phase II SBIR awards.


Sec. 121.705  Must a business concern self-certify its size status?

    (a) A firm must self-certify it is small in its SBIR funding 
proposal.
    (b) A funding agreement officer may accept a concern's self-
certification as true for the particular funding agreement involved in 
the absence of a written protest by other offerors or other credible 
information which would cause the funding agreement officer or SBA to 
question the size of the concern.
    (c) Procedures for protesting an offeror's self-certification are 
set forth in Secs. 121.1001 through 121.1009.

Size Eligibility Requirements For Paying Reduced Patent Fees


Sec. 121.801  May patent fees be reduced if a concern is small?

    These sections apply to size status for the purpose of paying 
reduced patent fees authorized by Pub. L. 97-247, 96 Stat. 317. The 
eligibility requirements for independent inventors and nonprofit 
organizations for the purpose of paying reduced patent fees are set 
forth in regulations of the Patent and Trademark Office of the 
Department of Commerce, 37 CFR 1.9, 1.27, 1.28.


Sec. 121.802  What size standards are applicable to reduced patent fees 
programs?

    A concern eligible for reduced patent fees is one:
    (a) Whose number of employees, including affiliates, does not 
exceed 500 persons; and
    (b) Which has not assigned, granted, conveyed, or licensed (and is 
under no obligation to do so) any rights in the invention to any person 
who made it and could not be classified as an independent inventor, or 
to any concern which would not qualify as a non-profit organization or 
a small business concern under this section.


Sec. 121.803  Are formal size determinations binding on parties?

    Size determinations by authorized SBA officials are formal actions, 
based upon a specific patent application pursuant to the rules of the 
Patent and Trademark Office, Department of Commerce, and are binding 
upon the parties. Other SBA opinions provided to patent applicants or 
others are only advisory, and are not binding or appealable.


Sec. 121.804  When does SBA determine the size status of a business 
concern?

    Size status is determined as of the date of the patent applicant's 
written verification of size.


Sec. 121.805  May a business concern self-certify its size status?

    (a) A concern verifies its size status with its submission of its 
patent application.
    (b) Any attempt to establish small size status improperly 
(fraudulently, through gross negligence, or otherwise) may result in 
remedial action by the Patent and Trademark Office.
    (c) In the absence of credible information indicating otherwise, 
the Patent and Trademark Office may accept the verification by the 
concern as a small business as true.
    (d) Questions concerning the size verification are resolved 
initially by the Patent and Trademark Office. If not verified as small, 
the applicant may request a formal SBA size determination.

Size Eligibility Requirements for Compliance With Programs of Other 
Agencies


Sec. 121.901  Can other Government agencies obtain SBA size 
determinations?

    Upon request by another Government agency, SBA will provide a size 
determination, under SBA rules, standards and procedures, for its use 
in determining compliance with small business requirements of its 
statutes, regulations or programs.


Sec. 121.902  What size standards are applicable to programs of other 
agencies?

    (a) SBA size standards. The size standards for compliance with 
programs of other agencies are those for SBA programs which are most 
comparable to the programs of such other agencies, unless otherwise 
agreed by the agency and SBA.
    (b) Special size standards. (1) Federal agencies or departments 
promulgating regulations relating to small businesses usually use SBA 
size criteria. In limited circumstances, if they decide the SBA size 
standard is not appropriate, then agency heads may establish a small 
business definition for the exclusive use of such program which is more 
appropriate, but only when:
    (i) The size standard is first proposed for public comment pursuant 
to the Administrative Procedure Act, 4 U.S.C. 553;
    (ii) The proposed size standard provides for determining size 
measured by average number of employees over 12 months for 
manufacturing concerns, average annual revenues over three years for 
concerns providing services, and data over a period of not less than 
three years for all other concerns (unless approved by SBA, ``annual 
receipts'' and ``number of employees'' must be determined in accordance 
with Secs. 121.104 and 121.106, respectively); and
    (iii) The proposed size standard is approved by SBA's 
Administrator.
    (2) In order to receive the approval of SBA's Administrator, the 
agency head must:
    (i) Request approval prior to publishing the proposed rule 
containing the size standard. The request must include: an explanation 
of the contemplated industry size standard, the reasons the SBA size 
standard is not appropriate, and the reasons the proposed size standard 
would be appropriate; and a certification that there will be compliance 
with the criteria set forth in paragraphs (b)(1)(i) and (b)(1)(ii) of 
this section; and
    (ii) Agree to provide written notice to SBA's Administrator prior 
to publishing the contemplated size standard as a final rule. The 
notice must include: a copy of the intended final rule, including the 
preamble, or a separate written justification for the intended size 
standard followed by a copy of the intended final rule and preamble 
prior to its publication; copies of all public 

[[Page 3300]]
comments relating to the size standard received in response to the 
proposed rule; and any other supporting documentation relevant to the 
size standard and requested by SBA's Administrator.
    (3) When approving any size standard established pursuant to 
subsection (b) of this section, SBA's Administrator will ensure that 
the size standard varies from industry to industry to the extent 
necessary to reflect the differing characteristics of the various 
industries, and consider other relevant factors.
    (4) Where the agency head is developing a size standard for the 
sole purpose of performing a Regulatory Flexibility Analysis pursuant 
to the Regulatory Flexibility Act, the department or agency may, after 
consultation with the SBA Office of Advocacy, establish a size standard 
different from SBA's which is more appropriate for such analysis.


Sec. 121.903  When does SBA determine the size status of a business 
concern?

    For the purpose of compliance with programs of other agencies, SBA 
will base its size determination on the size of the concern as of the 
date set forth in the request of the other agency.

Procedures for Size Protests and Requests for Formal Size 
Determinations


Sec. 121.1001  Who may initiate a size protest or a request for formal 
size determination?

    (a) Size Status Protests. (1) For SBA's Small Business Set-Aside 
Program, including the Property Sales Program, the following entities 
may file a size protest in connection with a particular procurement or 
sale:
    (i) Any offeror;
    (ii) The contracting officer;
    (iii) The SBA Government Contracting Area Director having 
responsibility for the area in which the headquarters of the protested 
offeror is located, regardless of the location of a parent company or 
affiliates, or the Associate Administrator for Government Contracting; 
and
    (iv) Other interested parties. Other interested parties include 
large businesses where only one concern submitted an offer for the 
specific procurement in question. A concern found to be other than 
small in connection with the procurement is not an interested party 
unless there is only one remaining offeror after the concern is found 
to be other than small.
    (2) For SBA's Subcontracting Program, the following entities may 
protest:
    (i) The prime contractor;
    (ii) The contracting officer;
    (iii) Other potential subcontractors;
    (iv) The responsible SBA Government Contracting Area Director or 
the Associate Administrator for Government Contracting; and
    (v) Other interested parties.
    (3) For SBA's Small Business Innovation Research (SBIR) Program, 
the following entities may protest:
    (i) A prospective offeror;
    (ii) The funding agreement officer;
    (iii) The responsible SBA Government Contracting Area Director or 
the Assistant Administrator for Technology; and
    (iv) Other interested parties.
    (4) For the Department of Defense's Small Disadvantaged Business 
(SDB) Program, and any other similar program of another Federal agency, 
the following entities may file a protest in connection with a 
particular SDB procurement:
    (i) Any offeror for the specific SDB requirement;
    (ii) The contracting officer; and
    (iii) The responsible SBA Government Contracting Area Director, the 
Associate Administrator for Government Contracting, or the Associate 
Administrator for MED.
    (5) For any unrestricted Government procurement in which status as 
a small business may be beneficial, including, but not limited to, the 
award of a contract to a small business where there are tie bids, the 
opportunity to seek a Certificate of Competency by a small business, 
and SDB price evaluation preferences, the following entities may 
protest in connection with a particular procurement:
    (i) Any offeror;
    (ii) The contracting officer; and
    (iii) The responsible SBA Government Contracting Area Director, the 
Associate Administrator for Government Contracting, or the Associate 
Administrator for MED.
    (b) Request for Size Determinations. (1) For SBA's Financial 
Assistance Programs, the following entities may request a formal size 
determination:
    (i) The applicant for assistance; and
    (ii) The SBA official with authority to take final action on the 
assistance requested. That official may also request the appropriate 
Government Contracting Area Office to determine whether affiliation 
exists between an applicant for financial assistance and one or more 
other entities for purposes of determining whether the applicant would 
exceed the loan limit amount imposed by Sec. 120.151 of this chapter.
    (2) For SBA's MED program--
    (i) Concerning initial MED eligibility, the following entities may 
request a formal size determination:
    (A) The MED applicant concern; and
    (B) The Director of the Division of Program Certification and 
Eligibility or the Associate Administrator for MED.
    (ii) Concerning individual 8(a) subcontract awards, whether sole 
source or competitive, the following entities may request a formal size 
determination:
    (A) The MED concern nominated by SBA for the particular sole source 
8(a) award or the apparent successful offeror for the particular 
competitive 8(a) award;
    (B) The SBA program official with authority to execute the 8(a) 
subcontract; and
    (C) The SBA District Director in the district serving the area in 
which the headquarters of the MED concern is located, regardless of the 
location of a parent company and affiliates, or the Associate 
Administrator for MED.
    (3) For SBA's Certificate of Competency Program, the following 
entities may request a formal size determination:
    (i) The offeror who has applied for a COC; and
    (ii) The responsible SBA Government Contracting Area Director or 
the Associate Administrator for Government Contracting.
    (4) For SBA's sale or lease of government property, the following 
entities may request a formal size determination:
    (i) The responsible SBA Government Contracting Area Director or the 
Associate Administrator for Government Contracting; and
    (ii) Authorized officials of other Federal agencies administering a 
property sales program.
    (5) For eligibility to pay reduced patent fees, the following 
entities may request a formal size determination:
    (i) The applicant for the reduced patent fees; and
    (ii) The Patent and Trademark Office.
    (6) For purposes of determining compliance with small business 
requirements of another Government agency program not otherwise 
specified in this section, an official with authority to administer the 
program involved may request a formal size determination.


Sec. 121.1002  Who makes a formal size determination?

    The responsible Government Contracting Area Director or designee 
makes all formal size determinations in response to either a size 
protest or a request for a formal size determination, with the 
exception of size determinations for purposes of the Disaster Loan 
Program, which will be made by the Disaster Area Office Director or 
designee responsible for the area in which the disaster occurred. 

[[Page 3301]]



Sec. 121.1003  Where should a size protest be filed?

    A protest involving a government procurement or sale must be filed 
with the contracting officer for the procurement or sale, who must 
forward the protest to the SBA Government Contracting Area Office 
serving the area in which the headquarters of the protested concern is 
located, regardless of the location of any parent company or 
affiliates.


Sec. 121.1004  What time limits apply to protests?

    (a) Protests by entities other than contracting officers or SBA. 
(1) Non-negotiated procurement or sale. A protest must be received by 
the contracting officer prior to the close of business on the 5th day, 
exclusive of Saturdays, Sundays, and legal holidays, after bid or 
proposal opening.
    (2) Negotiated procurement. A protest must be received by the 
contracting officer prior to the close of business on the 5th day, 
exclusive of Saturdays, Sundays, and legal holidays, after the 
contracting officer has notified the protestor of the identity of the 
prospective awardee.
    (3) Multiple award schedule. On a multiple award schedule 
procurement set aside for small business, protests will be considered 
timely if received by SBA at any time prior to the expiration of the 
contract period (including renewals).
    (b) Protests by contracting officers or SBA. The time limitations 
in paragraph (a) of this section do not apply to contracting officers 
or SBA, and they may file protests before or after awards, except to 
the extent set forth in paragraph (e) of this section.
    (c) Effect of contract award. A timely filed protest applies to the 
procurement in question even though a contracting officer awarded the 
contract prior to receipt of the protest.
    (d) Untimely protests. A protest received after the allotted time 
limits must still be forwarded to SBA. SBA will dismiss untimely 
protests.
    (e) Premature protests. A protest filed by any party, including the 
contracting officer, before bid opening or notification to offerors of 
the selection of the apparent successful offer will be dismissed as 
premature.


Sec. 121.1005  How must a protest be filed with the contracting 
officer?

    A protest must be delivered to the contracting officer by hand, 
telegram, mail, FAX, or telephone. If a protest is made by telephone, 
the contracting officer must later receive a confirming letter either 
within the 5-day period in Sec. 121.1004(a)(1) or postmarked no later 
than one day after the date of the telephone protest.


Sec. 121.1006  When will a size protest be referred to an SBA 
Government Contracting Area Office?

    (a) A contracting officer who receives a protest (other than from 
SBA) must forward the protest promptly to the SBA Government 
Contracting Area Office serving the area in which the headquarters of 
the offeror is located.
    (b) A contracting officer's referral must contain the following 
information:
    (1) The protest and any accompanying materials;
    (2) A copy of the self-certification as to size;
    (3) Identification of the applicable size standard;
    (4) A copy of the solicitation;
    (5) Identification of the date of bid opening or notification 
provided to unsuccessful offerors;
    (6) The date on which the protest was received; and
    (7) A complete address and point of contact for the protested 
concern.


Sec. 121.1007  Must a protest of size status relate to a particular 
procurement and be specific?

    (a) Particular procurement. A protest challenging the size of a 
concern which does not pertain to a particular procurement or sale will 
not be acted on by SBA.
    (b) A protest must include specific facts. A protest must be 
sufficiently specific to provide reasonable notice as to the grounds 
upon which the protested concern's size is questioned. Some basis for 
the belief or allegation stated in the protest must be given. A protest 
merely alleging that the protested concern is not small or is 
affiliated with unnamed other concerns does not specify adequate 
grounds for the protest. No particular form is prescribed for a 
protest. Where materials supporting the protest are available, they 
should be submitted with the protest.
    (c) Non-specific protests will be dismissed. Protests which do not 
contain sufficient specificity will be dismissed by SBA.


Sec. 121.1008  What happens after SBA receives a size protest or a 
request for a formal size determination?

    (a) When a size protest is received, the SBA Government Contracting 
Area Director, or designee, will promptly notify the contracting 
officer, the protested concern, and the protestor that a protest has 
been received. In the event the size protest pertains to a requirement 
involving SBA's SBIR Program, the Government Contracting Area Director 
will advise the Assistant Administrator for Technology of the receipt 
of the protest. SBA will provide a copy of the protest to the protested 
concern along with a blank SBA Application for Small Business Size 
Determination (SBA Form 355) by certified mail, return receipt 
requested, or by any overnight delivery service that provides proof of 
receipt. SBA will ask the protested concern to respond to the 
allegations of the protestor.
    (b) When SBA receives a request for a formal size determination in 
accord with Sec. 121.1001(b), SBA will provide a blank copy of SBA Form 
355 to the concern whose size is at issue.
    (c) The protested concern or concern whose size is at issue must 
return the completed SBA Form 355 and all other requested information 
to SBA within 3 working days from the date of receipt of the blank form 
from SBA. SBA has discretion to grant an extension of time to file the 
form. The firm must attach to the completed SBA Form 355 its answers to 
the allegations contained in the protest, where applicable, together 
with any supporting material.
    (d) If a concern does not submit a completed SBA Form 355, answers 
to the protest allegations, or other requested information within the 
allotted time provided by SBA, or if it submits incomplete information, 
SBA may presume that disclosure of the form, any information missing 
from it, or other missing information would show or tend to show that 
the concern is other than a small business.


Sec. 121.1009  What are the procedures for making the size 
determination?

    (a) Time frame for making size determination. After receipt of a 
protest or a request for a formal size determination, SBA will make a 
formal size determination within 10 working days, if possible.
    (b) Basis for determination. The size determination will be based 
primarily on information supplied by the protestor or the entity 
requesting the size determination and the subject concern. The 
determination, however, may also be based on other grounds not raised 
in the protest or request for size determination. SBA may utilize other 
information in its files and may make inquiries including requests to 
the protestor, the protested concern and any alleged affiliates, or 
other persons for additional specific information.
    (c) Burden of persuasion. The concern whose size is under 
consideration has the burden of establishing its small business size. 

[[Page 3302]]

    (d) Weight of evidence. SBA will give greater weight to specific, 
signed, factual evidence than to general, unsupported allegations or 
opinions. In the case of refusal or failure to furnish requested 
information within a required time period, SBA may assume that 
disclosure would be contrary to the interests of the party failing to 
make disclosure.
    (e) Formal size determination. The SBA will base its formal size 
determination upon the record, including reasonable inferences from the 
record, and will state in writing the basis for its findings and 
conclusions.
    (f) Notification of determination. SBA will promptly notify the 
contracting officer, the protestor, and the protested offeror, as well 
as each affiliate or alleged affiliate, of the size determination. The 
notification will be by certified mail, return receipt requested, or by 
any overnight delivery service that provides proof of receipt.
    (g) Results of an SBA size determination. (1) A formal size 
determination becomes effective immediately and remains in full force 
and effect unless and until reversed by OHA.
    (2) Once SBA has determined that a concern is other than small for 
purposes of a particular procurement, the concern cannot later become 
eligible for the procurement by reducing its size.
    (3) A concern determined to be other than small for a particular 
size standard is ineligible for any procurement or assistance 
authorized by the Small Business Act or the Small Business Investment 
Act of 1958, requiring the same or a lower size standard, unless 
recertified as small pursuant to Sec. 121.1010. Following an adverse 
size determination, a concern cannot again self-certify as small within 
the same or a lower size standard unless it is recertified as small by 
SBA. If it does so, it may be in violation of criminal laws, including 
section 16(d) of the Small Business Act, 15 U.S.C. 645(d). If the 
concern has already certified itself as small on a pending procurement 
or on another assistance application, the concern must immediately 
inform the officials responsible for the pending procurement or other 
requested assistance of the adverse size determination.
    (h) Limited reopening of size determinations. In cases where the 
size determination contains clear administrative error or a clear 
mistake of fact, SBA may, in its sole discretion, reopen the size 
determination to correct the error or mistake, provided the case has 
not been accepted for review by OHA.


Sec. 121.1010  How does a concern become recertified as a small 
business?

    (a) A concern may request SBA to recertify it as small at any time 
by filing an application for recertification with the Government 
Contracting Area Office responsible for the area in which the 
headquarters of the applicant is located, regardless of the location of 
parent companies or affiliates. No particular form is prescribed for 
the application; however, the request for recertification must be 
accompanied by a current completed SBA Form 355 and any other 
information sufficient to show a significant change in its ownership, 
management, or other factors bearing on its status as a small concern.
    (b) Recertification will not be required nor will the prohibition 
against future self-certification apply if the adverse SBA size 
determination is based solely on a finding of affiliation due to a 
joint venture (e.g., ostensible subcontracting) limited to a particular 
Government procurement or property sale, or is based on an ineligible 
manufacturer where the eligible small business bidder or offeror is a 
nonmanufacturer on a particular Government procurement.
    (c) A denial of an application for recertification is a formal size 
determination and may be reviewed by OHA at the discretion of that 
office.
    (d) The granting of an application for recertification has future 
effect only. While it is a formal size determination, notice of 
recertification is required to be given only to the applicant.

Appeals of Size Determinations and SIC Code Designations


Sec. 121.1101  Are formal size determinations subject to appeal?

    There is no right of appeal of a size determination. OHA, however, 
may, in its sole discretion, review a formal size determination made by 
a SBA Government Contracting Area Office or by a Disaster Area Office. 
Unless OHA accepts a petition for review of a formal size 
determination, the size determination made by a SBA Government 
Contracting Area Office or by a Disaster Area Office is the final 
decision of SBA. The procedures for requesting discretionary reviews by 
OHA of formal size determinations are set forth in part 134 of this 
chapter.


Sec. 121.1102  Are SIC code designations subject to appeal?

    Appeals may be made to OHA, which has exclusive jurisdiction to 
determine appeals of SIC code designations pursuant to part 134 of this 
chapter.


Sec. 121.1103  What are the procedures for appealing a SIC code 
designation?

    (a) Generally, any interested party who has been adversely affected 
by a SIC code designation may appeal the designation to OHA. However, 
with respect to a particular MED contract, only the Associate 
Administrator for MED may appeal.
    (b) Procedures for perfecting SIC code appeals with OHA are 
contained in Sec. 19.303 of the Federal Acquisition Regulations, 48 CFR 
19.303.

Subpart B--Other Applicable Provisions

Waivers of the Nonmanufacturer Rule for Classes of Products and 
Individual Contracts


Sec. 121.1201  What is the Nonmanufacturer Rule?

    The Nonmanufacturer Rule is set forth in Sec. 121.406(b).


Sec. 121.1202  When will a waiver of the Nonmanufacturer Rule be 
granted for a class of products?

    (a) A waiver for a class of products (class waiver) will be granted 
when there are no small business manufacturers or processors available 
to participate in the Federal market for that class of products.
    (b) Federal market means acquisitions by the Federal Government 
from offerors located in the United States, or such smaller area as SBA 
designates if it concludes that the class of products is not supplied 
on a national basis.
    (1) When considering the appropriate market area for a product, SBA 
presumes that the entire United States is the relevant Federal market, 
unless it is clearly demonstrated that a class of products cannot be 
procured on a national basis. This presumption may be particularly 
difficult to overcome in the case of manufactured products, since such 
items typically have a market area encompassing the entire United 
States.
    (2) When considering geographic segmentation of a Federal market, 
SBA will not necessarily use market definitions dependent on airline 
radius, political, or SBA regional boundaries. Market areas typically 
follow established transportation routes rather than jurisdictional 
borders. SBA examines the following factors, among others, in cases 
where geographic segmentation for a class of products is urged:
    (i) Whether perishability affects the area in which the product can 
practically be sold;
    (ii) Whether transportation costs are high as a proportion of the 
total value 

[[Page 3303]]
of the product so as to limit the economic distribution of the product;
    (iii) Whether there are legal barriers to transportation of the 
item;
    (iv) Whether a fixed, well-delineated boundary exists for the 
purported market area and whether this boundary has been stable over 
time; and
    (v) Whether a small business, not currently selling in the defined 
market area, could potentially enter the market from another area and 
supply the market at a reasonable price.
    (c) Available to participate in the context of the Federal market 
means that contractors exist that have been awarded or have performed a 
contract to supply a specific class of products to the Federal 
Government within 24 months from the date of the request for waiver, 
either directly or through a dealer, or who have submitted an offer on 
a solicitation for that class of products within that time frame.
    (d) Class of products is an individual subdivision within a four-
digit Industry Number as established by the Office of Management and 
Budget in the SIC Manual.


Sec. 121.1203  When will a waiver of the Nonmanufacturer Rule be 
granted for an individual contract?

    An individual waiver for a product in a specific solicitation will 
be approved when the SBA Associate Administrator for Government 
Contracting reviews and accepts a contracting officer's determination 
that no small business manufacturer or processor can reasonably be 
expected to offer a product meeting the specifications of a 
solicitation, including the period of performance.


Sec. 121.1204  What are the procedures for requesting and granting 
waivers?

    (a) Waivers for classes of products. (1) SBA may, at its own 
initiative, examine a class of products for possible waiver of the 
Nonmanufacturer Rule.
    (2) Any interested person, business, association, or Federal agency 
may submit a request for a waiver for a particular class of products. 
Requests should be addressed or hand-carried to the Associate 
Administrator of Government Contracting, Small Business Administration, 
409 3rd Street S.W., Washington, D.C. 20416.
    (3) Requests for a waiver of a class of products need not be in any 
particular form, but should include a statement of the class of 
products to be waived, the applicable SIC code, and detailed 
information on the efforts made to identify small business 
manufacturers or processors for the class.
    (4) If SBA decides that there are small business manufacturers or 
processors in the Federal procurement market, it will deny the request 
for waiver, issue notice of the denial, and provide the names, 
addresses, and telephone numbers of the sources found. If SBA does not 
initially confirm the existence of small business manufacturers or 
processors in the Federal market, it will:
    (i) Publish notices in the Commerce Business Daily and the Federal 
Register seeking information on small business manufacturers or 
processors, announcing a notice of intent to waive the Nonmanufacturer 
Rule for that class of products and affording the public a 15-day 
comment period; and
    (ii) If no small business sources are identified, publish a notice 
in the Federal Register stating that no small business sources were 
found and that a waiver of the Nonmanufacturer Rule for that class of 
products has been granted.
    (5) An expedited procedure for issuing a class waiver may be used 
for emergency situations, but only if the contracting officer provides 
a determination to the Associate Administrator for Government 
Contracting that the procurement is proceeding under the authority of 
FAR Sec. 6.302-2 (48 CFR 6.302-2) for ``unusual and compelling 
urgency,'' or provides a determination materially the same as one of 
unusual and compelling urgency. Under the expedited procedure, if a 
small business manufacturer or processor is not identified by a PASS 
search, the SBA will grant the waiver for the class of products and 
then publish a notice in the Federal Register. The notice will state 
that a waiver has been granted, and solicit public comment for future 
procurements.
    (6) The decision by the Associate Administrator for Government 
Contracting to grant or deny a waiver is the final decision by the 
Agency.
    (7) A waiver of the Nonmanufacturer Rule for classes of products 
has no specific time limitation. SBA will, however, periodically review 
existing class waivers to the Nonmanufacturer Rule to determine if 
small business manufacturers or processors have become available to 
participate in the Federal market for the waived classes of products 
and the waiver should be terminated.
    (i) Upon SBA's receipt of evidence that a small business 
manufacturer or processor exists in the Federal market for a waived 
class of products, the waiver will be terminated by the Associate 
Administrator for Government Contracting. This evidence may be 
discovered by SBA during a periodic review of existing waivers or may 
be brought to SBA's attention by other sources.
    (ii) SBA will announce its intent to terminate a waiver for a class 
of products through the publication of a notice in the Federal 
Register, asking for comments regarding the proposed termination.
    (iii) Unless public comment reveals that no small business 
manufacturer or processor in fact exists for the class of products in 
question, SBA will publish a final Notice of Termination in the Federal 
Register.
    (b) Individual waivers for specific solicitations. (1) A 
contracting officer's request for a waiver of the Nonmanufacturer Rule 
for specific solicitations need not be in any particular form, but 
must, at a minimum, include:
    (i) A definitive statement of the specific item to be waived and 
justification as to why the specific item is required;
    (ii) The solicitation number, SIC code, dollar amount of the 
procurement, and a brief statement of the procurement history;
    (iii) A determination by the contracting officer that there are no 
known small business manufacturers or processors for the requested 
items (the determination must contain a narrative statement of the 
contracting officer's efforts to search for small business 
manufacturers or processors of the item and the results of those 
efforts, and a statement by the contracting officer that there are no 
known small business manufacturers for the items and that no small 
business manufacturer or processor can reasonably be expected to offer 
the required items); and
    (iv) For contracts expected to exceed $500,000, a copy of the 
Statement of Work.
    (2) Requests should be addressed to the Associate Administrator for 
Government Contracting, Small Business Administration, 409 3rd Street, 
S.W., Washington, D.C. 20416.
    (3) SBA will examine the contracting officer's determination and 
any other information it deems necessary to make an informed decision 
on the individual waiver request. If SBA's research verifies that no 
small business manufacturers or processors exist for the item, the 
Associate Administrator for Government Contracting will grant an 
individual, one-time waiver. If a small business manufacturer or 
processor is found for the product in question, the Associate 
Administrator will deny the request. Either decision represents a final 
decision by SBA.

[[Page 3304]]



Sec. 121.1205  How is a list of previously granted class waivers 
obtained?

    A list of classes of products for which waivers of the 
Nonmanufacturer Rule have been granted will be maintained in SBA's 
Procurement Automated Source System (PASS). A list of such waivers may 
also be obtained by contacting the Office of Government Contracting at 
the Small Business Administration, 409 3rd Street, S.W., Washington, 
D.C. 20416, or at the nearest SBA Government Contracting Area Office.

    Dated: January 22, 1996.
John T. Spotila,
Acting Administrator.
[FR Doc. 96-1348 Filed 1-30-96; 8:45 am]
BILLING CODE 8025-01-P