SBA Size Protests: Powerful Tool to Challenge Competitor’s Contract Award; How to Minimize Risks When Targeted

Fall 2011Articles The Procurement Lawyer

The federal government sets aside a significant portion of its procurement dollars each year for purchasing goods and services from small businesses. In 2010, government agencies allotted $97.9 billion—nearly 23 percent of all federal procurement dollars—to small business contracts. These set-asides present substantial opportunities for qualifying small business concerns (SBCs) to compete for and perform federal contracts. This also means, however, that small business set-asides are frequently subjected to size protests filed under the US Small Business Administration’s (SBA) size regulations, especially because SBA size protests can be filed by just about any SBC, so long as the challenger was an offeror on the contract.

The evidentiary bar to trigger an SBA investigation of the size of a protested concern is incredibly low. The SBA size regulations merely require a protesting SBC to demonstrate that there is “some basis for the belief” that the protested concern is other-than-small in order for the SBA to initiate an investigation of the protested concern’s size. Any SBC with access to the Internet can find and provide the SBA with the required evidence. The SBA readily accepts business profiles, newspapers articles, contract and subcontract histories, publicly available corporate filings, and affidavits as evidence when determining whether to initiate a size investigation.4 Rarely does the SBA find that a size protest does not meet the low evidentiary threshold required to initiate a size investigation of the protested concern.

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Published in The Procurement Lawyer, Volume 47, Number 1, Fall 2011. © 2011 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.