19.307 Protesting a firm’s status as a service-disabled veteran-owned small business concern
Source: FAR 19.307 on acquisition.gov
FAR 19.307 establishes strict procedures and timelines for protesting a firm's SDVOSB status, requiring specific evidence and prompt action to ensure only eligible firms receive SDVOSB awards.
Overview
FAR 19.307 outlines the procedures for protesting a firm’s status as a service-disabled veteran-owned small business concern (SDVOSB). It defines who may file a protest, the grounds and timing for protests, the process for submitting and forwarding protests, and the actions required by contracting officers and the SBA’s Office of Hearings and Appeals (OHA). The section ensures that only eligible firms receive SDVOSB set-asides or sole source awards, and provides a clear process for challenging a firm’s eligibility.
Key Rules
- Who May Protest
- For sole source acquisitions, only the contracting officer, VA, or SBA may protest. For all other acquisitions, any interested party may protest.
- Grounds for Protest
- Protests must be specific, in writing, and supported by evidence (e.g., lack of qualifying veteran status, improper ownership/control, ostensible subcontractor issues, or joint venture noncompliance).
- Timing of Protests
- Protests must generally be received by the contracting officer within five business days of bid opening or notification of the apparent awardee, with exceptions for VA/SBA/CO protests.
- Protest Submission and Forwarding
- Protests are submitted to the contracting officer, who must forward them to SBA OHA with a detailed referral letter.
- OHA Review and Decision
- OHA reviews the protest, notifies parties, and issues a final, immediate decision. Contracting officers must withhold award pending OHA’s decision unless urgent award is justified.
- Post-Decision Actions
- If a protest is sustained, the contract may be terminated, and the concern must update its SDVOSB status in SAM and refrain from future SDVOSB offers until recertified.
Responsibilities
- Contracting Officers: Receive, forward, and act on protests; withhold or terminate awards as required; update FPDS; ensure compliance with OHA decisions.
- Contractors: Respond to protests, maintain accurate SDVOSB status, and comply with OHA decisions regarding eligibility.
- Agencies (SBA/OHA/VA): Review, adjudicate, and enforce SDVOSB status protests and maintain certification databases.
Practical Implications
- This section protects the integrity of SDVOSB set-aside and sole source awards by providing a formal protest mechanism. Contractors must ensure their eligibility and documentation are in order, as protests can result in contract loss and loss of SDVOSB status. Timeliness and specificity are critical for both filing and responding to protests. Common pitfalls include missing deadlines, insufficient protest grounds, or failing to update status in SAM after an adverse decision.
(a) Definition.
Interested party, as used in this section, has the meaning given in 13 CFR 134.1002(b).
(b)
(1) General. For sole source acquisitions, the contracting officer, the Department of Veterans Affairs (VA), or SBA may protest the apparently successful offeror’s service-disabled veteran-owned small business (SDVOSB) status. For all other acquisitions, any interested party may protest the apparently successful offeror’s service-disabled veteran-owned small business status.
(2) SBA’s protest regulations are found in 13 CFR 128.500 and 13 CFR part 134.
(c) Protests relating to small business size status are subject to the procedures of 19.302. An interested party seeking to protest both the small business size and service-disabled veteran-owned small business status of an apparent successful offeror shall file two separate protests.
(d) All protests must be in writing and must state all specific grounds for the protest.
(1) OHA will consider protests challenging the SDVOSB status or the ownership and control of a concern if—
(i) For status protests, the protester presents evidence supporting the contention that the owner(s) cannot provide documentation from the VA to show that they meet the definition of “service-disabled veteran” or “service-disabled veteran with a permanent and severe disability” as set forth in 13 CFR 128.102; or
(ii) For ownership and control protests, the protester presents evidence that the concern is not 51 percent owned and controlled by one or more service-disabled veterans. In the case of a veteran with a permanent and severe disability, the protester presents evidence that the concern is not controlled by the veteran, spouse, or permanent caregiver of such veteran; or
(iii) For set-aside or sole-source service contract or order ostensible subcontractor protests, the protester presents credible evidence of the alleged undue reliance on a small entity subcontractor that is not a similarly-situated entity as defined in https://www.ecfr.gov/current/title-13/section-125.1" target="_blank">13 CFR 125.1, or credible evidence that the small non-similarly situated entity is performing the primary and vital requirements of the contract. For allegations that the prime contractor is unduly reliant on an other-than-small subcontractor, see size protests at 19.302, and https://www.ecfr.gov/current/title-13/section-121.103#p-121.103(h)(2)" target="_blank">13 CFR 121.103(h)(2), which treats the pair as joint venturers for size determination purposes (the “ostensible subcontractor rule”); or
(iv) For joint venture protests, the protester presents evidence that the managing SDVOSB joint venture partner does not meet the requirements at 13 CFR 128.402.
(2) Assertions that a protested concern is not a service-disabled veteran-owned small business concern, without setting forth specific facts or allegations, will not be considered by OHA (see 13 CFR 134.1005).
(e) Protest by an interested party.
(1) An interested party (except contracting officers should see paragraph (f)(1) of this section) shall submit its protest to the contracting officer—
(i) To be received by close of business on the fifth business day after bid opening for sealed bid acquisitions;
(ii) To be received by close of business on the fifth business day after receipt of the special notification from the contracting officer (see 15.503(a)(2)) that identifies the apparently successful offeror for negotiated acquisitions, including—
(A) Orders placed under multiple-award contracts where the contracting officer requested rerepresentation for the order (see https://www.ecfr.gov/current/title-13/section-127.603#p-127.603(c)(1)" target="_blank">13 CFR 134.1004(a)(3)(ii)); and
(B) Orders set aside for service-disabled veteran-owned small businesses under multiple-award contracts that are not partially or totally set aside or reserved for service-disabled veteran-owned small business concerns (see https://www.ecfr.gov/current/title-13/section-127.603#p-127.603(c)(1)" target="_blank">13 CFR 134.1004(a)(3)(i)), except for orders and blanket purchase agreements placed under a Federal Supply Schedule contract (see 8.405 and 19.302(d)(5));
(iii) To be received by close of business on the fifth business day after notification by the contracting officer of the intended awardee for an order that is set aside for SDVOSBs under a multiple-award contract that was not totally or partially set aside or reserved for SDVOSB concerns. This paragraph (e)(1)(iii) does not apply to an order issued under a Federal Supply Schedule (FSS) contract;
(iv) To be received by the close of the fifth business day after notification by the contracting officer of the intended awardee for a blanket purchase agreement that is set aside for SDVOSBs under a multiple-award contract that was not totally or partially set aside or reserved for SDVOSB concerns. This paragraph (e)(1)(iv) does not apply to a blanket purchase agreement issued under a FSS contract; or
(v) To be received by the close of business on the fifth business day after receipt of notification using other communication means when written notification is not required.
(2) Any protest received after the designated time limits is untimely, except—
(i) The VA or SBA may file an SDVOSB status protest at any time; and
(ii) The contracting officer, SBA, or VA may file an SDVOSB status protest at any time after the apparent awardee has been identified or after bid opening, whichever applies.
(f) Forwarding protests to SBA.
(1) The contracting officer shall forward all protests to the U.S. Small Business Administration, Office of Hearings and Appeals, 409 Third Street, SW, Washington, DC 20416, or by email at OHAfilings@sba.gov, marked “Attn: SDVOSB Status Protest”.
(2) The protest shall include a referral letter written by the contracting officer with information pertaining to the solicitation. The referral letter must include the following information to allow OHA to determine timeliness and standing:
(i) The solicitation number (or an electronic link to or a paper copy of the solicitation).
(ii) The name, address, telephone number, and email address of the contracting officer.
(iii) Whether the contract was sole-source or set-aside.
(iv) Whether the protestor submitted an offer.
(v) Whether the protested concern was the apparent successful offeror.
(vi) When the protested concern submitted its initial offer that included price.
(vii) Whether the acquisition was conducted using sealed bid or negotiated procedures.
(viii) The bid opening date, if applicable.
(ix) The date the contracting officer received the protest.
(x) The date the protestor received notification about the apparent successful offeror, if applicable.
(xi) Whether a contract has been awarded.
(g) Notification by OHA. OHA will notify the protester, the protested concern, SBA’s Director of Government Contracting (D/GC), SBA Counsel, and the contracting officer of the date OHA received the protest.
(h) Before OHA decision.
(1) After receiving a protest involving the apparent successful offeror's status as an SDVOSB concern, the contracting officer shall either-
(i) Withhold award of the contract until OHA determines the status of the protested concern; or
(ii) Award the contract after receipt of the protest but before OHA issues its decision if the contracting officer determines in writing that an award must be made to protect the public interest. The contracting officer shall notify OHA and SBA D/GC in writing of the determination and a copy shall be included in the contract file.
(2) OHA will determine the merits of the status protest.
(3) OHA does not have a standard timeline for issuing decisions.
(i) After OHA decision. OHA will notify the contracting officer, the protester, and the protested concern of its decision. The decision is effective immediately and is final.
(1) If the contracting officer has withheld contract award and OHA has determined that the protested concern is an eligible SDVOSB or dismissed all protests against the protested concern, then the contracting officer may award the contract to the protested concern.
(2) If the contracting officer has withheld contract award, and OHA has sustained the protest and determined that the concern is not an SDVOSB, then the contracting officer shall not award the contract to the protested concern.
(3) If the contracting officer has made a written determination in accordance with paragraph (h)(1)(ii) of this section, the contract has been awarded, and the OHA decision to sustain the protest is received after award-
(i) The contracting officer shall terminate the contract, unless the contracting officer has made a written determination that termination is not in the best interests of the Government. However, the contracting officer shall not exercise any options or award further task or delivery orders;
(ii) The contracting officer shall update FPDS to reflect the final OHA decision; and
(iii) The concern must remove its designation in the System for Award Management (SAM) as an SDVOSB concern within 2 days of the OHA decision. SBA will update the concern’s SDVOSB status in SAM if the concern fails to do so. The concern shall not submit an offer as a SDVOSB concern or an SDVOSB concern eligible under the SDVOSB Program, until the concern is designated as an SDVOSB by SBA in the SBA Veteran Small Business Certification Program database at https://veterans.certify.sba.gov" target="_blank">https://veterans.certify.sba.gov.
(4) A concern found to be ineligible may not submit future offers as an SDVOSB concern until the concern is designated as an SDVOSB by SBA in the SBA Veteran Small Business Certification Program database at https://veterans.certify.sba.gov" target="_blank">https://veterans.certify.sba.gov.