There are many things to know about responding to size protests. One could probably fill a book with the information-(actually I did, for those who want a real deep dive!). But if you need to know just the basics, here are five things you should know about size protests that can help you be prepared if your company is facing a size protest.
1. The response time is short.
Normally, your company only gets three business days to respond. So, be sure to work quickly to put together as much information as possible in that short amount of time to respond to the size protest allegations and any additional questions from SBA, while also completing the Form 355. It’s also a good idea to have these records (such as tax returns or employee count documents) handy so that you can respond quickly.
2. But you can ask for an extension.
The SBA Area Office will often grant an extension and allow you to submit your response electronically. Indeed, the SBA’s rules state that SBA may grant an extension. It used to be that the SBA Area Office would require a paper copy of the response, but many Area Offices will accept submission by electronic means. Regardless, be sure to reach out to the Area office as soon as possible to request a specific extension and to confirm that electronic submission is allowed. While not required, the Area Office will often grant these short extension requests.
3. Be sure to demonstrate why your business is small.
Your size protest response should generally show why your business is small. This means establishing that the company is small by (a) describing all affiliates or showing there are none and (b) providing a calculation of size based on receipts or employees (e.g. showing the math in a table or list). This also means responding to the allegations of the protest and showing why they are factually inaccurate or that, even if accurate, the facts don’t make your company other than small.
For instance, if the protest alleges that certain companies are affiliates under SBA’s affiliation rules, your response should explain why those companies are not affiliates. It often makes sense for the protested company to include a sworn declaration, as SBA’s rules state that “SBA will give greater weight to specific, signed, factual evidence than to general, unsupported allegations or opinions.” 13 CFR § 121.1009. So, including a declaration from a company owner is a great way to counter any protest allegations from a protester that cannot be explained easily through existing documentation that will be submitted to SBA.
For example, maybe the protester has alleged that someone with the last name of the company’s owner is also the company’s sister and that the alleged sister’s company’s are affiliates. It may be hard to provide a document showing you don’t have a sister, but that can be accomplished through a sworn declaration.
4. Answer all the questions from SBA, to avoid the dreaded adverse inference.
SBA’s rules allow it to assume the worst if a company fails to respond to any particular question. If the company responding to the size protest “fails to submit a completed SBA Form 355, responses to the allegations of the protest, or other requested information within the time allowed by SBA, or if it submits incomplete information, SBA may presume that disclosure of the information required by the form or other missing information would demonstrate that the concern is other than a small business.” 13 CFR § 121.1008.
Therefore, be sure to respond to all allegations, questions, and blanks on the Form 355. If any request is not applicable, you can explain that to the Area Office, but be sure to do so for each item.
5. The size determination will arrive quickly.
Normally, the Area Office will issue its size determination within 15 business days of when it receives the size protest and related information from the contracting officer. Normally, a contracting officer will wait the 15 business days before continuing with award of the contract, unless the “the contracting officer determines in writing that an award must be made to protect the public interest.” 13 CFR § 121.1009. So, your company will know fairly quickly what the outcome is. And if the outcome is not good, there is an appeal process, but the appeal process (also described in my book) is a subject for another day.
A size protest response goes quickly, but it’s not too bad.
There you have it, five things that can make responding to a size protest a little less stressful. It’s a tight turnaround, but knowing how the process works can make it a smoother process.
Need help with a government contracting legal matter? Email us or give us a call at 785-200-8919.