[Federal Register Volume 63, Number 35 (Monday, February 23, 1998)]
[Rules and Regulations]
[Pages 9055-9056]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-4298]


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DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Part 19

[FAC 97-04; FAR Case 97-026; Item VII]
RIN 9000-AH87


Federal Acquisition Regulation; SIC Code and Size Standard 
Appeals

AGENCIES: Department of Defense (DoD), General Services Administration 
(GSA), and National Aeronautics and Space Administration (NASA).

ACTION: Final rule.

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SUMMARY: The Civilian Agency Acquisition Council and the Defense 
Acquisition Regulations Council have agreed on a final rule amending 
the Federal Acquisition Regulation (FAR) to conform to the Small 
Business Administration (SBA) regulations pertaining to protest of an 
offeror's small business representation, and appeal of a contracting 
officer's Standard Industrial Classification (SIC) code designation and 
related small business size standard. This regulatory action was not 
subject to Office of Management and Budget review under Executive Order 
12866, dated September 30, 1993, and is not a major rule under 5 U.S.C. 
804.

EFFECTIVE DATE: April 24, 1998.

FOR FURTHER INFORMATION CONTACT: The FAR Secretariat, Room 4035, GS 
Building, Washington, DC 20405 (202) 501-4755 for information 
pertaining to status or publication schedules. For clarification of 
content, contact Ms. Victoria Moss, Procurement Analyst, at (202) 501-
4764. Please cite FAC 97-04, FAR case 97-026.

SUPPLEMENTARY INFORMATION:

A. Background

    This rule amends FAR Subpart 19.3 to conform to SBA regulations at 
13 CFR 121 and 134 pertaining to protest of small business 
representations, and appeal of SIC code designations and related small 
business size standards. The rule contains procedures for filing such 
protests and appeals.

B. Regulatory Flexibility Act

    The final rule does not constitute a significant FAR revision 
within the meaning of FAR 1.501 and Public Law 98-577, and publication 
for public comments is not required. However, comments from small 
entities concerning the affected FAR subpart will be considered in 
accordance with 5 U.S.C. 610. Such comments must be submitted 
separately and should cite 5 U.S.C. 601, et seq. (FAC 97-04, FAR case 
97-026), in correspondence.

C. Paperwork Reduction Act

    The Paperwork Reduction Act does not apply because the changes to 
the FAR do not impose recordkeeping or information collection 
requirements, or collections of information from offerors, contractors, 
or members of the public which require the approval of the Office of 
Management and Budget under 44 U.S.C. 3501, et seq.

List of Subjects in 48 CFR Part 19:

    Government procurement.

    Dated: February 13, 1998.
Edward C. Loeb,
Director, Federal Acquisition Policy Division.

    Therefore, 48 CFR Part 19 is amended as set forth below:

PART 19--SMALL BUSINESS PROGRAMS

    1. The authority citation for 48 CFR Part 19 continues to read as 
follows:

    Authority: 40 U.S.C. 486(c); 10 U.S.C. chapter 137; and 42 
U.S.C. 2473(c).

    2. Section 19.302 is amended--
    a. By revising paragraph (a);
    b. In paragraph (c)(1) by adding ``Government Contracting'' after 
``SBA'';
    c. In paragraph (d)(1)(i) by adding ``business'' after ``1'';
    d. In paragraphs (e)(1) and (g)(1) by removing ``protestant'' and 
adding ``protester'' in its place;
    e. In the first sentence of paragraph (g)(2) by adding ``Government 
Contracting'' after ``SBA'', and ``, or designee,'' after ``Director''; 
and in the third sentence by removing the word ``below'' and adding 
``of this section'' in its place;
    f. By revising the second sentence of paragraph (h)(4); and
    g. By revising paragraphs (i) and (j) to read as follows:


19.302   Protesting a small business representation.

    (a) An offeror, the SBA Government Contracting Area Director having 
responsibility for the area in which the headquarters of the protested 
offeror is located, the SBA Associate

[[Page 9056]]

Administrator for Government Contracting, or another interested party 
may protest the small business representation of an offeror in a 
specific offer.
* * * * *
    (h) * * *
    (4) * * * The contracting officer shall forward the protest to the 
SBA (see paragraph (c)(1) of this section) with a notation that the 
concern is not being considered for award, and shall notify the 
protester of this action.
    (i) An appeal from an SBA size determination may be filed by: any 
concern or other interested party whose protest of the small business 
representation of another concern has been denied by an SBA Government 
Contracting Area Director; any concern or other interested party that 
has been adversely affected by a Government Contracting Area Director's 
decision; or the SBA Associate Administrator for the SBA program 
involved. The appeal must be filed with the--

Office of Hearings and Appeals, Small Business Administration, Suite 
5900, 409 3rd Street, SW., Washington, DC 20416

within the time limits and in strict accordance with the procedures 
contained in subpart C of 13 CFR Part 134. It is within the discretion 
of the SBA Judge whether to accept an appeal from a size determination. 
If the Judge decides not to consider such an appeal, the Judge will 
issue an order denying review and specifying the reasons for the 
decision. The SBA will inform the contracting officer of its ruling on 
the appeal. The SBA decision, if received before award, will apply to 
the pending acquisition. SBA rulings received after award shall not 
apply to that acquisition.
    (j) A protest that is not timely, even though received before 
award, shall be forwarded to the SBA Government Contracting Area Office 
(see paragraph (c)(1) of this section), with a notation on it that the 
protest is not timely. The protester shall be notified that the protest 
cannot be considered on the instant acquisition but has been referred 
to SBA for its consideration in any future actions. A protest received 
by a contracting officer after award of a contract shall be forwarded 
to the SBA Government Contracting Area Office with a notation that 
award has been made. The protester shall be notified that the award has 
been made and that the protest has been forwarded to SBA for its 
consideration in future actions.

    3. Section 19.303 is amended by revising the section heading and 
paragraph (c) to read as follows:


19.303   Determining standard industrial classification codes and size 
standards.

* * * * *
    (c) The contracting officer's determination is final unless 
appealed as follows:
    (1) An appeal from a contracting officer's SIC code designation and 
the applicable size standard must be served and filed within 10 
calendar days after the issuance of the initial solicitation. SBA's 
Office of Hearings and Appeals (OHA) will dismiss summarily an untimely 
SIC code appeal.
    (2)(i) The appeal petition must be in writing and must be addressed 
to the--

Office of Hearings and Appeals, Small Business Administration, Suite 
5900, 409 3rd Street, SW., Washington, DC 20416

    (ii) There is no required format for the appeal; however, the 
appeal must include--
    (A) The solicitation or contract number and the name, address, and 
telephone number of the contracting officer;
    (B) A full and specific statement as to why the size determination 
or SIC code designation is allegedly erroneous and argument supporting 
the allegation; and
    (C) The name, address, telephone number, and signature of the 
appellant or its attorney.
    (3) The appellant must serve the appeal petition upon--
    (i) The SBA official who issued the size determination;
    (ii) The contracting officer who assigned the SIC code to the 
acquisition;
    (iii) The business concern whose size status is at issue;
    (iv) All persons who filed protests; and
    (v) SBA's Office of General Counsel.
    (4) Upon receipt of a SIC code appeal, OHA will notify the 
contracting officer by a notice and order of the date OHA received the 
appeal, the docket number, and Judge assigned to the case. The 
contracting officer's response to the appeal, if any, must include 
argument and evidence (see 13 CFR Part 134), and must be received by 
OHA within 10 calendar days from the date of the docketing notice and 
order, unless otherwise specified by the Administrative Judge. Upon 
receipt of OHA's docketing notice and order, the contracting officer 
must immediately send to OHA a copy of the solicitation relating to the 
SIC code appeal.
    (5) After close of record, OHA will issue a decision and inform the 
contracting officer. If OHA's decision is received by the contracting 
officer before the date the offers are due, the decision shall be final 
and the solicitation must be amended to reflect the decision, if 
appropriate. OHA's decision received after the due date of the initial 
offers shall not apply to the pending solicitation but shall apply to 
future solicitations of the same products or services.

[FR Doc. 98-4298 Filed 2-20-98; 8:45 am]
BILLING CODE 6820-EP-P