[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]
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