13 C.F.R. Subpart H—Protests
Title 13 - Business Credit and Assistance
(a) For sole source procurements. SBA or the contracting officer may protest the proposed awardee's qualified HUBZone SBC status. (b) For all other procurements. SBA, the CO, or any other interested party may protest the apparent successful offeror's qualified HUBZone SBC status. [63 FR 31908, June 11, 1998, as amended at 69 FR 29427, May 24, 2004] (a) General. The protest procedures described in this part are separate from those governing size protests and appeals. All protests relating to whether a qualified HUBZone SBC is other than small for purposes of any Federal program are subject to part 121 of this chapter and must be filed in accordance with that part. If a protester protests both the size of the HUBZone SBC and whether the concern meets the HUBZone qualifying requirements set forth in §126.200, SBA will process protests concurrently, under the procedures set forth in part 121 of this chapter and this part. SBA does not review issues concerning the administration of a HUBZone contract. (b) Format. Protests must be in writing and state all specific grounds for the protest. A protest merely asserting that the protested concern is not a qualified HUBZone SBC, without setting forth specific facts or allegations, is insufficient. (c) Filing. (1) An interested party other than a contracting officer or SBA must submit its written protest to the contracting officer. (2) A contracting officer and SBA must submit their protest to the AA/HUB. (3) Protestors may deliver their protests in person, by facsimile, by express delivery service, or by U.S. mail (postmarked within the applicable time period). (d) Timeliness. (1) For negotiated acquisitions, an interested party must submit its protest by close of business on the fifth business day after notification by the contracting officer of the apparent successful offeror. (2) For sealed bid acquisitions: (i) An interested party must submit its protest by close of business on the fifth business day after bid opening, or (ii) If the price evaluation preference was not applied at the time of bid opening, by close of business on the fifth business day from the date of identification of the apparent successful offeror. (3) Any protest submitted after the time limits is untimely, unless it is from SBA or the CO. (4) Any protest received prior to bid opening or notification of intended award, whichever applies, is premature. (e) Referral to SBA. The CO must forward to SBA any non-premature protest received, notwithstanding whether he or she believes it is sufficiently specific or timely. The CO must send the protests, along with a referral letter, to AA/HUB, U.S. Small Business Administration, 409 3rd Street, SW, Washington, DC 20416. The CO's referral letter must include information pertaining to the solicitation that may be necessary for SBA to determine timeliness and standing, including: the solicitation number; the name, address, telephone number and facsimile number of the CO; the type of HUBZone contract at issue; if the procurement was conducted using full and open competition with a HUBZone price evaluation preference, and whether the protester's opportunity for award was affected by the preference; if the procurement was a HUBZone set-aside, whether the protester submitted an offer; whether the protested concern was the apparent successful offeror; whether the procurement was conducted using sealed bid or negotiated procedures; the bid opening date, if applicable; when the protest was submitted to the CO; and whether a contract has been awarded. [63 FR 31908, June 11, 1998, as amended at 69 FR 29427, May 24, 2004] The AA/HUB or designee will determine whether the concern has qualified HUBZone status. (a) Notice of receipt of protest. (1) SBA immediately will notify the contracting officer and the protestor of the date SBA receives a protest and whether SBA will process the protest or dismiss it in accordance with §126.804. (2) If SBA determines the protest is timely and sufficiently specific, SBA will notify the protested HUBZone SBC of the protest and the identity of the protestor. The protested HUBZone SBC may submit information responsive to the protest within 5 business days. (b) Time period for determination. (1) SBA will determine the HUBZone status of the protested HUBZone SBC within 15 business days after receipt of a protest. (2) If SBA does not contact the contracting officer within 15 business days, the contracting officer may award the contract, unless the contracting officer has granted SBA an extension. (3) The contracting officer may award the contract after receipt of a protest if the contracting officer determines in writing that an award must be made to protect the public interest. (c) Notice of determination. SBA will notify the contracting officer, the protestor, and the protested concern of its determination. (d) Effect of determination. The determination is effective immediately and is final unless overturned on appeal by the ADA/GC&BD, pursuant to §126.805. If SBA upholds the protest, SBA will decertify the concern. [63 FR 31908, June 11, 1998, as amended at 69 FR 29427, May 24, 2004] SBA will decide all protests not dismissed as premature, untimely or non-specific. (a) Who may appeal. The protested HUBZone SBC, the protestor, or the CO may file appeals of protest determinations with the ADA/GC&BD. (b) Timeliness of appeal. The ADA/GC&BD must receive the appeal no later than five business days after the date of receipt of the protest determination. SBA will dismiss any appeal received after the five-day period. (c) Method of Submission. The party appealing the decision may deliver its appeal in person, by facsimile, by express delivery service, or by U.S. mail (postmarked within the applicable time period). (d) Notice of appeal. The party bringing an appeal must provide notice of the appeal to the contracting activity contracting officer and either the protested HUBZone SBC or original protestor, as appropriate. (e) Grounds for appeal. (1) SBA will re-examine a protest determination only if there was a clear and significant error in the processing of the protest or if the AA/HUB failed completely to consider a significant fact contained within the information supplied by the protestor or the protested HUBZone SBC. (2) SBA will not consider additional information or changed circumstances that were not disclosed at the time of the AA/HUB's decision or that are based on disagreement with the findings and conclusions contained in the determination. (f) Contents of appeal. The appeal must be in writing. The appeal must identify the protest determination being appealed and set forth a full and specific statement as to why the decision is erroneous or what significant fact the AA/HUB failed to consider. (g) Completion of appeal after award. An appeal may proceed to completion even after award of the contract that prompted the protest, if so desired by the protested HUBZone SBC, or where SBA determines that a decision on appeal is meaningful. (h) Decision. The ADA/GC&BD will make a decision within five business days of receipt of the appeal, if practicable, and will base his or her decision only on the information and documentation in the protest record as supplemented by the appeal. SBA will provide a copy of the decision to the CO, the protestor, and the protested HUBZone SBC, consistent with law. The ADA/GC&BD's decision is the final agency decision. [63 FR 31908, June 11, 1998, as amended at 69 FR 29427, May 24, 2004]
Title 13: Business Credit and Assistance
PART 126—HUBZONE PROGRAM
Subpart H—Protests
§ 126.800 Who may protest the status of a qualified HUBZone SBC?
§ 126.801 How does one file a HUBZone status protest?
§ 126.802 Who decides a HUBZone status protest?
§ 126.803 How will SBA process a HUBZone status protest?
§ 126.804 Will SBA decide all HUBZone status protests?
§ 126.805 What are the procedures for appeals of HUBZone status determinations?
