PilieroMazza: SBA’s Proposed Rule Alters the Landscape for Size and Status Protests

On September 9, 2022, the U.S. Small Business Administration (SBA) issued a proposed rule (the Rule) making substantial changes to the 8(a) Business Development program (covered here in a previous PilieroMazza alert). Scattered throughout the Rule are various protest-related changes for the Women-Owned Small Business (WOSB), Service-Disabled Veteran-Owned Small Business (SDVOSB), and Historically Underutilized Business Zone (HUBZone) Programs. The Rule expands and limits the ground rules for filing a size or status protest against an apparent successful offeror. To avoid losing contracting opportunities to ineligible contractors, contractors should know when they can file size or status protests. Below are the Rule’s key potential changes and the implications for those seeking to file a size or status protest. The deadline to submit a public comment is November 8, 2022…

The Rule would also create consistent rules for who can initiate a size or status protest across SBA’s small business programs. As of now, any WOSB or SDVOSB offeror can bring a size protest. Additionally, any HUBZone offeror not eliminated for reasons unrelated to size can file a size protest. In contrast, for small business set-aside contracts and competitive 8(a) contracts, only an offeror that the contracting officer has not eliminated from consideration for a procurement-related reason may initiate a size protest. The Rule would adopt this language to all of SBA’s small business programs. Thus, any offeror that the contracting officer has not eliminated from consideration for any procurement-related reason could initiate a size protest in each of those programs…

Where SBA determines that a subcontractor does not qualify as an SDB, the Rule would prevent the prime contractor from including subcontracts to that subcontractor as subcontracts to an SDB in its subcontracting reports, starting from the time that the protest was decided. As a result, prime contractors wanting to avoid the headache of not being able to count subcontracts to SDBs should pay closer attention to and investigate its SDB subcontractors’ status… Read the full article here.



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