[Federal Register Volume 59, Number 148 (Wednesday, August 3, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-18835]
[[Page Unknown]]
[Federal Register: August 3, 1994]
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SMALL BUSINESS ADMINISTRATION
13 CFR Part 121
Procedural Regulations Governing Size Protests
AGENCY: Small Business Administration.
ACTION: Final rule.
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SUMMARY: The Small Business Administration is amending its procedural
regulations governing size protests for purposes of clarification. The
amendment makes clear that size protests filed by any person, including
the contracting officer, will be considered premature and will be
dismissed if filed before bids have been opened or the identity of the
prospective awardee has been established.
EFFECTIVE DATE: This rule is effective on August 3, 1994.
FOR FURTHER INFORMATION CONTACT:
David R. Kohler, Associate General Counsel for General Law, Office of
the General Counsel, U.S. Small Business Administration, 409 3rd Street
SW., Washington, DC 20416, (202) 205-6645.
SUPPLEMENTARY INFORMATION: The Small Business Administration (SBA) is
amending Sec. 121.1603(a)(4) of its procedural regulations governing
size protests in order to make clear that size protests filed by
contracting officers, like all other protests, will be dismissed if
prematurely filed, i.e., if filed prior to bid opening (in the case of
sealed bids) or prior to identification of the apparent successful
offeror (in the case of negotiated procurements).
Section 121.1603(a)(4) presently states that ``(a)t any time after
bid opening a contracting officer may question the size of any offeror
for the purpose of a particular procurement or sale by filing a protest
with the SBA Regional Office * * *'' Although SBA had intended that
this regulation preclude contracting officers from filing premature
protests with respect to both sealed bid and negotiated procurements,
the language employed does not reflect this intention and has resulted
in a recent decision by SBA's Office of Hearings and Appeals holding
that a contracting officer's protest filed after the date for
submitting initial offers but before the submission of best and final
offers or identification of the apparent successful offeror was not
premature and necessitated a decision on the merits.
In order to effect its original intentions with respect to
premature protests, SBA is amending paragraph (a)(4) by adding
clarifying language to emphasize that contracting officers (like all
other protestors) are precluded from filing premature protests in
negotiated procurements as well as in procurements conducted using
sealed bid procedures. This expressed intention accords with paragraph
(b)(5) of Sec. 121.1603, which clearly states that ``(p)rotests filed
by any person before bid opening or notification of intended award
shall be considered premature and shall be dismissed.'' It in no way
conflicts with the statement in paragraph (b)(2) of Sec. 121.1603 that
``(a) protest by a contracting officer shall be timely for the purpose
of the procurement or sale in question whether filed before or after
award.'' Paragraph (b)(2) of Sec. 121.1603 addresses the issue of
lateness. Paragraphs (a)(4) and (b)(5) address the issue of
prematurity.
SBA's distinction between lateness and prematurity with respect to
protests filed by contracting officers is based upon the realities of
the procurement process and the need to establish procedures for
adjudicating size status that are fair as well as administratively
efficient. A contracting officer, unlike any other potential protestor,
has the authority to terminate a contract awarded as a small business
set aside should it be determined that the awardee is not a small
business. Thus it is prudent to permit a contracting officer to file a
late protest whenever size ineligibility is suspected in order to
preserve the integrity of the set-aside program by resolving any
questions on size status in an expeditious manner. The prohibition
against premature protests, however, has historically been applied to
contracting officers and other protestors alike, because in neither
case is it prudent either to impose the burdens of a size investigation
on a concern unnecessarily or to expend SBA's limited resources by
making formal size determinations where it is unclear that the
protested concern is the potential awardee of the contract.
Under Sec. 121.1603(a)(4), a protest is considered premature until
identification of the prospective awardee. Traditionally, this
identification occurs at bid opening or, in the case of a negotiated
procurement, at the point the contracting officer notifies other
offerors of the intended award and names the prospective awardee. SBA
believes that the concept of notification applicable to protests filed
by other offerors is not appropriate with respect to contracting
officers, since it is the contracting officer who does the
notification. Thus Sec. 121.1603(a)(4) will merely require that a
contracting officer wait until he or she has identified the apparent
successful offeror before filing a protest concerning that firm's size
status. Such a restriction will ensure that SBA does not impose the
burdens of an unnecessary size investigation on other offerors or
expend its limited resources rendering size determinations that are
unlikely to have any practical significance for the procurement in
question.
This clarification of SBA's procedural regulations governing
premature protests applies to all pending protests as well as all size
determinations for which a final decision has not yet been rendered by
the Office of Hearings and Appeals.
Compliance With Executive Orders 12866, 12612 and 12778; the Regulatory
Flexibility Act, 5 U.S.C. 601 et seq.; and the Paperwork Reduction Act,
44 U.S.C. CH 35
For purposes of Executive Order 12866, SBA certifies that this rule
will not have an economic effect in excess of $100 million, result in a
major increase in costs for individuals or governments, or have a
significant adverse effect on competition and, therefore, will not
constitute a major or significant rule. SBA has made this determination
because the rule is purely procedural in nature and will impose no
additional filing or other requirements and, as such, does not
represent a significant regulatory event.
For purposes of Executive Order 12612, SBA certifies that this rule
will not have Federalism implications warranting the preparation of a
Federalism assessment.
For purposes of Executive Order 12778, SBA certifies that the rule
is drafted, to the extent practicable, in accordance with the standards
set forth in section 2 of that Order.
For purposes of the Regulatory Flexibility Act, SBA certifies that
the rule will not have a significant economic effect on a substantial
number of small entities, for the same reason that it will not be a
major or significant rule.
For purposes of the Paperwork Reduction Act, SBA certifies that the
rule will not impose a new recordkeeping or reporting requirement.
List of Subjects in 13 CFR Part 121
Administrative practice and procedure; Government procurement;
Small business.
For the reasons set forth above, part 121 of title 13, Code of
Federal Regulations, is amended as follows:
PART 121--[AMENDED]
1. The authority citation for part 121 continues to read as
follows:
Authority: 15 U.S.C. 632(a), 634(b)(6), 637(a), 644(c) and Pub.
L. 102-486, 106 Stat. 2776, 3133.
Sec. 121.1603 [Amended]
2. Section 121.1603 is amended in paragraph (a)(4) by inserting the
phrase ``or identification of the apparent successful offeror'' between
the words ``opening'' and ``,a.''
Dated: July 20, 1994.
Erskine B. Bowles,
Administrator.
[FR Doc. 94-18835 Filed 8-2-94; 8:45 am]
BILLING CODE 8025-01
