19.810 SBA appeals
Source: FAR 19.810 on acquisition.gov
FAR 19.810 establishes a formal process for SBA to appeal certain 8(a) Program decisions, requiring strict notification and suspension procedures to ensure fair consideration of SBA concerns.
Overview
FAR 19.810 outlines the procedures for appeals by the Small Business Administration (SBA) when disagreements arise with a contracting officer regarding certain decisions under the 8(a) Program. It specifies the types of issues that can be appealed, the notification and timing requirements, and the responsibilities of both the SBA and the contracting agency during the appeal process. The regulation ensures that the SBA has a formal mechanism to challenge agency decisions that may impact 8(a) participants and program integrity.
Key Rules
- Appealable Matters
- The SBA Administrator may appeal to the agency head on issues such as decisions not to set aside acquisitions for the 8(a) Program, rejection of 8(a) participants, contract terms (including NAICS codes and price estimates), and determinations about new requirements not subject to release.
- Notification and Timing
- SBA must notify the contracting officer of its intent to appeal within 5 working days of being notified of the decision and must send the written appeal to the agency head within 15 working days.
- Suspension of Acquisition
- The contracting officer must suspend action on the acquisition during the appeal unless urgent and compelling circumstances are documented.
- Agency Head Decision
- If the appeal is denied, the agency head must provide written reasons, including capability determinations, and include the decision in the contract file.
Responsibilities
- Contracting Officers: Must recognize appealable issues, adhere to suspension requirements, and document urgent circumstances if proceeding during an appeal.
- Contractors: Should be aware of potential delays or changes due to SBA appeals and understand their rights if rejected for an 8(a) award.
- Agencies: Must ensure timely notification, proper documentation, and compliance with appeal procedures.
Practical Implications
- This section provides a formal process for resolving disputes between SBA and agencies, protecting the interests of 8(a) participants. Delays may occur during appeals, and failure to follow procedures can result in compliance issues or protest risk. Contractors should monitor for potential appeals that could impact award timelines or eligibility.
(a) The SBA Administrator may submit the following matters for determination to the agency head if the SBA and the contracting officer fail to agree on them:
(1) The decision not to make a particular acquisition available for award under the 8(a) Program.
(2) A contracting officer’s decision to reject a specific 8(a) participant for award of an 8(a) contract after SBA’s acceptance of the requirement for the 8(a) program.
(3) The terms and conditions of a proposed 8(a) contract, including the contracting officer’s NAICS code designation and estimate of the fair market price.
(4) A contracting officer's decision that an acquisition previously procured under the 8(a) program is a new requirement not subject to the release requirements at 13 CFR 124.504(d)(1) (see 19.815(a) and (d)(1)).
(b)
(1) Notification by SBA of an intent to appeal to the agency head-
(i) Must be received by the contracting officer within 5 working days after SBA is formally notified of the contracting officer's decision; and
(ii) Must be provided to the contracting agency Director for the Office of Smalland Disadvantaged Business Utilization or, for the Department of Defense, the Director of the Office of Small Business Programs.
(2) SBA must send the written appeal to the agency head within 15 working days of SBA’s notification of intent to appeal or the appeal may be considered withdrawn. Pending issuance of a decision by the agency head, the contracting officer shall suspend action on the acquisition. The contracting officer need not suspend action on the acquisition if the contracting officer makes a written determination that urgent and compelling circumstances that significantly affect the interests of the United States will not permit waiting for a decision.
(c) If the SBA appeal is denied, the decision of the agency head shall specify the reasons for the denial, including the reasons why the selected participant was determined incapable of performance, if appropriate. The decision shall be made a part of the contract file.