SBP220 Business Decisions for Small Business lesson 11 - Size Protest Simulation RESOURCES I PRINT I HELP

Introduction

I Pog etof G I Back ii bull Next

SBP220 Business Decisions for Small Business Lesson 11- Size Protest Simulation RESOURCES I PRINT 1 HELP

Introduction

Closed Captioning This acquisition is a Small Business set-aside for a follow on contract for security guard services Corporate Defenders Inc ( CD ) submitted the apparently successful offer CDIs primary subcontractor is Rivers who is the incumbent contractor and will be providing management support as well as some of their employees for this follow-on effort East Lake Management Operation ( ELMO) received their Pre-award notice of the apparent successful offer ELMO decided to protest the small business representation for CD based on the affiliation with Rivers

_ I Page 1 of 6 1

Back fiiiii I Next

SBP220 Business Decisions for Small Business lesson 11 - Size Protest Simulation RESOURCES I PRINT I HELP

Introduction

1 Pog e1of6 1

Back ii Next

SBP220 Business Decisions for Small Business lesson 11 - Size Protest Simulation RESOURCES I PRINT I HELP

Your Simulation Environment

Here is a birds eye view of your simulat ed environment Select each room on the office environment map for a few details about the office Become familiar with where your office is located in relationship to the other offices

I Pag elof6 I Back Next

SBP220 Business Decisions for Small Business Lesson 11- Size Protest Simulation RESOURCES I PRINT 1 HELP

Your Simulation Environment

Here is a birds eye view of your simulated environment Select each room on the office environment map for a few details about the office Become familiar with where your office is located in relationship to the other offices

Closed Captioning Your simulation environment was introduced earlier but here is a quick reminder for you

~ I Page2of 6 I Back Next

SBP220 Business Decisio n s for Small Business Lesson 11 - Size Protest Simulation RESOURCES I PRINT I HELP

Your Simulation Environment

Here is a b irds eye view of your simulated environment Select each room on the office environment map for a few details about the office Become familiar with where your office is located in relationship to the other offices

Conferen ce Room This is the office conference room The conference room is loca ted directly across from your o ffice Meetings routinely occur in the conference room

~~--

I Pogelof6 I Back Next

SBP220 Business Decisions for Small Business lesson 11 - Size Protest Simulation RESOURCES I PRINT I HELP

Your Simulation Environment

Here is a birds eye view of your simulated environment Select each room on the office environment map for a few details about the office Become familiar with where your office is located in relationship to the other offices

lobby This is the lobby You will see members o f the acquisition team periodically as you enter or leave the lobby You must go through the Exit to ge t into the lobby When you depart your office selec t the le ft arrow to navigate to the exit Select the exit door to go through the door into the I- lobby

~ I P o gelo f 6 I Ba c k Next

SBP220 Business Decisions for Small Business Lesson 11 - Size Protest Simulation RESOURCES I PRINT I HELP

Your Simulation Environment

Here is a birds eye view of your simulate d environment Select each room on the office environment map for a few details about the office Become familiar with where your office is located in relationship to the other offices

Program Managers Office This is Asha the Program Managers office You must go through the Exit to get to the PMs office When you leave your office select the right arrow to navigate to the exit Select the exit door to go through the door and into Ashas office

~ I Pogelof 6 I Back Next

SBP220 Business Decisio n s for Small Business Lesson 11 - Size Protest Simulation RESOURCES I PRINT I HELP

Your Simulation Environment

Here is a birds eye view of your simulated environment Select each room on the office environment map for a few details about the office Become familiar with where your office is located in relationship to the other offices

Technical S ME Office This office is reserved for Government technical SMEs The SMEs work in various o ffices around Fort Washington and come to this office as needed This office remains locked until the SMEs are present Whe n you leave your office

(SBP I) turn left to get to the S~M~E~offi~c~e~middot--=firniil

~ I Pogelof 6 I Back Next

SBP220 Business Decisions for Small Business lesson 11 - Size Protest Simulation RESOURCES I PRINT I HELP

Your Simulation Environment

Here is a birds eye view of your simulated environment Select each room on the office environment map for a few details about the office Become familiar with where your office is located in relationship to the other offices

SBP ll Office This is Ruben the senior SSPs o ffice Rubens office is next door to your office When you leave your office turn left and you are at Rubens door

I Pogelof 6 I Back Next

SBP220 Business Decisions for Small Business lesson 11 - Size Protest Simulation RESOURCES 1 PRINT 1 HELP

Your Simulation Environment

Here is a birds eye view of your simulated environment Select each room on the office environment map for a few details about the office Become familiar with where your office is located in relationship to the other offices

SBP 1 Office You the student are the SSP 1 This is your o ffice You perform daily duties that require use of the computer and phone from this office You attend meetings in the conference room directly across the hall form your office You routinely visit Ruben the Senior SSP Connie the Contracting Officer and Asha the Program Managers offices for short discussions ------

~ I Pogelof 6 I Back Next

SBP220 Business Decisions for Small Business lesson 11 - Size Protest Simulation RESOURCES I PRINT I HELP

Your Simulation Environment

Here is a birds eye view of your simulat ed environment Select each room on the office environment map for a few details about the office Become familiar with where your office is located in relationship to the other offices

Contracting Officer This is Connie the Contracting Officers office When you leave your office select the righ t arrow to navigate to the Contracting Officers office

I Pogelof 6 I Back Next

SBP220 Business Decisio ns for Small Business Lesson 11 - Size Pr otest Simulation RESOURCES I PRINT I HELP

Your Simulation Envir onment

Here is a birds eye view of your simulated environment Select each room on the office environment map for a few details about the office Become familiar with where your office is located in relationship to the other offices

Contract Specialist Office This is Jenny the Contract Specialist s office Occasionally Jenny will have a Contrac t Specialist Intern working with her When you leave your o ffice turn right to ge t to the Contract Specialist o ffice

I Pogelof6 I Back Next

SBP220 Business Decisions for Small Business Lesson 11- Size Protest Simulation RESOURCES I PRINT 1 HELP

Introduction

Closed Captioning This acquisition is a Small Business set-aside for a follow on contract for security guard services Corporate Defenders Inc ( CD ) submitted the apparently successful offer CDIs primary subcontractor is Rivers who is the incumbent contractor and will be providing management support as well as some of their employees for this follow-on effort East Lake Management Operation ( ELMO) received their Pre-award notice of the apparent successful offer ELMO decided to protest the small business representation for CD based on the affiliation with Rivers

_ I Page 1 of 6 1

Back fiiiii I Next

SBP220 Business Decisions for Small Business lesson 11 - Size Protest Simulation RESOURCES I PRINT I HELP

Introduction

1 Pog e1of6 1

Back ii Next

SBP220 Business Decisions for Small Business lesson 11 - Size Protest Simulation RESOURCES I PRINT I HELP

Your Simulation Environment

Here is a birds eye view of your simulat ed environment Select each room on the office environment map for a few details about the office Become familiar with where your office is located in relationship to the other offices

I Pag elof6 I Back Next

SBP220 Business Decisions for Small Business Lesson 11- Size Protest Simulation RESOURCES I PRINT 1 HELP

Your Simulation Environment

Here is a birds eye view of your simulated environment Select each room on the office environment map for a few details about the office Become familiar with where your office is located in relationship to the other offices

Closed Captioning Your simulation environment was introduced earlier but here is a quick reminder for you

~ I Page2of 6 I Back Next

SBP220 Business Decisio n s for Small Business Lesson 11 - Size Protest Simulation RESOURCES I PRINT I HELP

Your Simulation Environment

Here is a b irds eye view of your simulated environment Select each room on the office environment map for a few details about the office Become familiar with where your office is located in relationship to the other offices

Conferen ce Room This is the office conference room The conference room is loca ted directly across from your o ffice Meetings routinely occur in the conference room

~~--

I Pogelof6 I Back Next

SBP220 Business Decisions for Small Business lesson 11 - Size Protest Simulation RESOURCES I PRINT I HELP

Your Simulation Environment

Here is a birds eye view of your simulated environment Select each room on the office environment map for a few details about the office Become familiar with where your office is located in relationship to the other offices

lobby This is the lobby You will see members o f the acquisition team periodically as you enter or leave the lobby You must go through the Exit to ge t into the lobby When you depart your office selec t the le ft arrow to navigate to the exit Select the exit door to go through the door into the I- lobby

~ I P o gelo f 6 I Ba c k Next

SBP220 Business Decisions for Small Business Lesson 11 - Size Protest Simulation RESOURCES I PRINT I HELP

Your Simulation Environment

Here is a birds eye view of your simulate d environment Select each room on the office environment map for a few details about the office Become familiar with where your office is located in relationship to the other offices

Program Managers Office This is Asha the Program Managers office You must go through the Exit to get to the PMs office When you leave your office select the right arrow to navigate to the exit Select the exit door to go through the door and into Ashas office

~ I Pogelof 6 I Back Next

SBP220 Business Decisio n s for Small Business Lesson 11 - Size Protest Simulation RESOURCES I PRINT I HELP

Your Simulation Environment

Here is a birds eye view of your simulated environment Select each room on the office environment map for a few details about the office Become familiar with where your office is located in relationship to the other offices

Technical S ME Office This office is reserved for Government technical SMEs The SMEs work in various o ffices around Fort Washington and come to this office as needed This office remains locked until the SMEs are present Whe n you leave your office

(SBP I) turn left to get to the S~M~E~offi~c~e~middot--=firniil

~ I Pogelof 6 I Back Next

SBP220 Business Decisions for Small Business lesson 11 - Size Protest Simulation RESOURCES I PRINT I HELP

Your Simulation Environment

Here is a birds eye view of your simulated environment Select each room on the office environment map for a few details about the office Become familiar with where your office is located in relationship to the other offices

SBP ll Office This is Ruben the senior SSPs o ffice Rubens office is next door to your office When you leave your office turn left and you are at Rubens door

I Pogelof 6 I Back Next

SBP220 Business Decisions for Small Business lesson 11 - Size Protest Simulation RESOURCES 1 PRINT 1 HELP

Your Simulation Environment

Here is a birds eye view of your simulated environment Select each room on the office environment map for a few details about the office Become familiar with where your office is located in relationship to the other offices

SBP 1 Office You the student are the SSP 1 This is your o ffice You perform daily duties that require use of the computer and phone from this office You attend meetings in the conference room directly across the hall form your office You routinely visit Ruben the Senior SSP Connie the Contracting Officer and Asha the Program Managers offices for short discussions ------

~ I Pogelof 6 I Back Next

SBP220 Business Decisions for Small Business lesson 11 - Size Protest Simulation RESOURCES I PRINT I HELP

Your Simulation Environment

Here is a birds eye view of your simulat ed environment Select each room on the office environment map for a few details about the office Become familiar with where your office is located in relationship to the other offices

Contracting Officer This is Connie the Contracting Officers office When you leave your office select the righ t arrow to navigate to the Contracting Officers office

I Pogelof 6 I Back Next

SBP220 Business Decisio ns for Small Business Lesson 11 - Size Pr otest Simulation RESOURCES I PRINT I HELP

Your Simulation Envir onment

Here is a birds eye view of your simulated environment Select each room on the office environment map for a few details about the office Become familiar with where your office is located in relationship to the other offices

Contract Specialist Office This is Jenny the Contract Specialist s office Occasionally Jenny will have a Contrac t Specialist Intern working with her When you leave your o ffice turn right to ge t to the Contract Specialist o ffice

I Pogelof6 I Back Next

SBP220 Business Decisions for Small Business lesson 11 - Size Protest Simulation RESOURCES I PRINT I HELP

Introduction

1 Pog e1of6 1

Back ii Next

SBP220 Business Decisions for Small Business lesson 11 - Size Protest Simulation RESOURCES I PRINT I HELP

Your Simulation Environment

Here is a birds eye view of your simulat ed environment Select each room on the office environment map for a few details about the office Become familiar with where your office is located in relationship to the other offices

I Pag elof6 I Back Next

SBP220 Business Decisions for Small Business Lesson 11- Size Protest Simulation RESOURCES I PRINT 1 HELP

Your Simulation Environment

Here is a birds eye view of your simulated environment Select each room on the office environment map for a few details about the office Become familiar with where your office is located in relationship to the other offices

Closed Captioning Your simulation environment was introduced earlier but here is a quick reminder for you

~ I Page2of 6 I Back Next

SBP220 Business Decisio n s for Small Business Lesson 11 - Size Protest Simulation RESOURCES I PRINT I HELP

Your Simulation Environment

Here is a b irds eye view of your simulated environment Select each room on the office environment map for a few details about the office Become familiar with where your office is located in relationship to the other offices

Conferen ce Room This is the office conference room The conference room is loca ted directly across from your o ffice Meetings routinely occur in the conference room

~~--

I Pogelof6 I Back Next

SBP220 Business Decisions for Small Business lesson 11 - Size Protest Simulation RESOURCES I PRINT I HELP

Your Simulation Environment

Here is a birds eye view of your simulated environment Select each room on the office environment map for a few details about the office Become familiar with where your office is located in relationship to the other offices

lobby This is the lobby You will see members o f the acquisition team periodically as you enter or leave the lobby You must go through the Exit to ge t into the lobby When you depart your office selec t the le ft arrow to navigate to the exit Select the exit door to go through the door into the I- lobby

~ I P o gelo f 6 I Ba c k Next

SBP220 Business Decisions for Small Business Lesson 11 - Size Protest Simulation RESOURCES I PRINT I HELP

Your Simulation Environment

Here is a birds eye view of your simulate d environment Select each room on the office environment map for a few details about the office Become familiar with where your office is located in relationship to the other offices

Program Managers Office This is Asha the Program Managers office You must go through the Exit to get to the PMs office When you leave your office select the right arrow to navigate to the exit Select the exit door to go through the door and into Ashas office

~ I Pogelof 6 I Back Next

SBP220 Business Decisio n s for Small Business Lesson 11 - Size Protest Simulation RESOURCES I PRINT I HELP

Your Simulation Environment

Here is a birds eye view of your simulated environment Select each room on the office environment map for a few details about the office Become familiar with where your office is located in relationship to the other offices

Technical S ME Office This office is reserved for Government technical SMEs The SMEs work in various o ffices around Fort Washington and come to this office as needed This office remains locked until the SMEs are present Whe n you leave your office

(SBP I) turn left to get to the S~M~E~offi~c~e~middot--=firniil

~ I Pogelof 6 I Back Next

SBP220 Business Decisions for Small Business lesson 11 - Size Protest Simulation RESOURCES I PRINT I HELP

Your Simulation Environment

Here is a birds eye view of your simulated environment Select each room on the office environment map for a few details about the office Become familiar with where your office is located in relationship to the other offices

SBP ll Office This is Ruben the senior SSPs o ffice Rubens office is next door to your office When you leave your office turn left and you are at Rubens door

I Pogelof 6 I Back Next

SBP220 Business Decisions for Small Business lesson 11 - Size Protest Simulation RESOURCES 1 PRINT 1 HELP

Your Simulation Environment

Here is a birds eye view of your simulated environment Select each room on the office environment map for a few details about the office Become familiar with where your office is located in relationship to the other offices

SBP 1 Office You the student are the SSP 1 This is your o ffice You perform daily duties that require use of the computer and phone from this office You attend meetings in the conference room directly across the hall form your office You routinely visit Ruben the Senior SSP Connie the Contracting Officer and Asha the Program Managers offices for short discussions ------

~ I Pogelof 6 I Back Next

SBP220 Business Decisions for Small Business lesson 11 - Size Protest Simulation RESOURCES I PRINT I HELP

Your Simulation Environment

Here is a birds eye view of your simulat ed environment Select each room on the office environment map for a few details about the office Become familiar with where your office is located in relationship to the other offices

Contracting Officer This is Connie the Contracting Officers office When you leave your office select the righ t arrow to navigate to the Contracting Officers office

I Pogelof 6 I Back Next

SBP220 Business Decisio ns for Small Business Lesson 11 - Size Pr otest Simulation RESOURCES I PRINT I HELP

Your Simulation Envir onment

Here is a birds eye view of your simulated environment Select each room on the office environment map for a few details about the office Become familiar with where your office is located in relationship to the other offices

Contract Specialist Office This is Jenny the Contract Specialist s office Occasionally Jenny will have a Contrac t Specialist Intern working with her When you leave your o ffice turn right to ge t to the Contract Specialist o ffice

I Pogelof6 I Back Next

SBP220 Business Decisions for Small Business lesson 11 - Size Protest Simulation RESOURCES I PRINT I HELP

Your Simulation Environment

Here is a birds eye view of your simulat ed environment Select each room on the office environment map for a few details about the office Become familiar with where your office is located in relationship to the other offices

I Pag elof6 I Back Next

SBP220 Business Decisions for Small Business Lesson 11- Size Protest Simulation RESOURCES I PRINT 1 HELP

Your Simulation Environment

Here is a birds eye view of your simulated environment Select each room on the office environment map for a few details about the office Become familiar with where your office is located in relationship to the other offices

Closed Captioning Your simulation environment was introduced earlier but here is a quick reminder for you

~ I Page2of 6 I Back Next

SBP220 Business Decisio n s for Small Business Lesson 11 - Size Protest Simulation RESOURCES I PRINT I HELP

Your Simulation Environment

Here is a b irds eye view of your simulated environment Select each room on the office environment map for a few details about the office Become familiar with where your office is located in relationship to the other offices

Conferen ce Room This is the office conference room The conference room is loca ted directly across from your o ffice Meetings routinely occur in the conference room

~~--

I Pogelof6 I Back Next

SBP220 Business Decisions for Small Business lesson 11 - Size Protest Simulation RESOURCES I PRINT I HELP

Your Simulation Environment

Here is a birds eye view of your simulated environment Select each room on the office environment map for a few details about the office Become familiar with where your office is located in relationship to the other offices

lobby This is the lobby You will see members o f the acquisition team periodically as you enter or leave the lobby You must go through the Exit to ge t into the lobby When you depart your office selec t the le ft arrow to navigate to the exit Select the exit door to go through the door into the I- lobby

~ I P o gelo f 6 I Ba c k Next

SBP220 Business Decisions for Small Business Lesson 11 - Size Protest Simulation RESOURCES I PRINT I HELP

Your Simulation Environment

Here is a birds eye view of your simulate d environment Select each room on the office environment map for a few details about the office Become familiar with where your office is located in relationship to the other offices

Program Managers Office This is Asha the Program Managers office You must go through the Exit to get to the PMs office When you leave your office select the right arrow to navigate to the exit Select the exit door to go through the door and into Ashas office

~ I Pogelof 6 I Back Next

SBP220 Business Decisio n s for Small Business Lesson 11 - Size Protest Simulation RESOURCES I PRINT I HELP

Your Simulation Environment

Here is a birds eye view of your simulated environment Select each room on the office environment map for a few details about the office Become familiar with where your office is located in relationship to the other offices

Technical S ME Office This office is reserved for Government technical SMEs The SMEs work in various o ffices around Fort Washington and come to this office as needed This office remains locked until the SMEs are present Whe n you leave your office

(SBP I) turn left to get to the S~M~E~offi~c~e~middot--=firniil

~ I Pogelof 6 I Back Next

SBP220 Business Decisions for Small Business lesson 11 - Size Protest Simulation RESOURCES I PRINT I HELP

Your Simulation Environment

Here is a birds eye view of your simulated environment Select each room on the office environment map for a few details about the office Become familiar with where your office is located in relationship to the other offices

SBP ll Office This is Ruben the senior SSPs o ffice Rubens office is next door to your office When you leave your office turn left and you are at Rubens door

I Pogelof 6 I Back Next

SBP220 Business Decisions for Small Business lesson 11 - Size Protest Simulation RESOURCES 1 PRINT 1 HELP

Your Simulation Environment

Here is a birds eye view of your simulated environment Select each room on the office environment map for a few details about the office Become familiar with where your office is located in relationship to the other offices

SBP 1 Office You the student are the SSP 1 This is your o ffice You perform daily duties that require use of the computer and phone from this office You attend meetings in the conference room directly across the hall form your office You routinely visit Ruben the Senior SSP Connie the Contracting Officer and Asha the Program Managers offices for short discussions ------

~ I Pogelof 6 I Back Next

SBP220 Business Decisions for Small Business lesson 11 - Size Protest Simulation RESOURCES I PRINT I HELP

Your Simulation Environment

Here is a birds eye view of your simulat ed environment Select each room on the office environment map for a few details about the office Become familiar with where your office is located in relationship to the other offices

Contracting Officer This is Connie the Contracting Officers office When you leave your office select the righ t arrow to navigate to the Contracting Officers office

I Pogelof 6 I Back Next

SBP220 Business Decisio ns for Small Business Lesson 11 - Size Pr otest Simulation RESOURCES I PRINT I HELP

Your Simulation Envir onment

Here is a birds eye view of your simulated environment Select each room on the office environment map for a few details about the office Become familiar with where your office is located in relationship to the other offices

Contract Specialist Office This is Jenny the Contract Specialist s office Occasionally Jenny will have a Contrac t Specialist Intern working with her When you leave your o ffice turn right to ge t to the Contract Specialist o ffice

I Pogelof6 I Back Next

SBP220 Business Decisions for Small Business Lesson 11- Size Protest Simulation RESOURCES I PRINT 1 HELP

Your Simulation Environment

Here is a birds eye view of your simulated environment Select each room on the office environment map for a few details about the office Become familiar with where your office is located in relationship to the other offices

Closed Captioning Your simulation environment was introduced earlier but here is a quick reminder for you

~ I Page2of 6 I Back Next

SBP220 Business Decisio n s for Small Business Lesson 11 - Size Protest Simulation RESOURCES I PRINT I HELP

Your Simulation Environment

Here is a b irds eye view of your simulated environment Select each room on the office environment map for a few details about the office Become familiar with where your office is located in relationship to the other offices

Conferen ce Room This is the office conference room The conference room is loca ted directly across from your o ffice Meetings routinely occur in the conference room

~~--

I Pogelof6 I Back Next

SBP220 Business Decisions for Small Business lesson 11 - Size Protest Simulation RESOURCES I PRINT I HELP

Your Simulation Environment

Here is a birds eye view of your simulated environment Select each room on the office environment map for a few details about the office Become familiar with where your office is located in relationship to the other offices

lobby This is the lobby You will see members o f the acquisition team periodically as you enter or leave the lobby You must go through the Exit to ge t into the lobby When you depart your office selec t the le ft arrow to navigate to the exit Select the exit door to go through the door into the I- lobby

~ I P o gelo f 6 I Ba c k Next

SBP220 Business Decisions for Small Business Lesson 11 - Size Protest Simulation RESOURCES I PRINT I HELP

Your Simulation Environment

Here is a birds eye view of your simulate d environment Select each room on the office environment map for a few details about the office Become familiar with where your office is located in relationship to the other offices

Program Managers Office This is Asha the Program Managers office You must go through the Exit to get to the PMs office When you leave your office select the right arrow to navigate to the exit Select the exit door to go through the door and into Ashas office

~ I Pogelof 6 I Back Next

SBP220 Business Decisio n s for Small Business Lesson 11 - Size Protest Simulation RESOURCES I PRINT I HELP

Your Simulation Environment

Here is a birds eye view of your simulated environment Select each room on the office environment map for a few details about the office Become familiar with where your office is located in relationship to the other offices

Technical S ME Office This office is reserved for Government technical SMEs The SMEs work in various o ffices around Fort Washington and come to this office as needed This office remains locked until the SMEs are present Whe n you leave your office

(SBP I) turn left to get to the S~M~E~offi~c~e~middot--=firniil

~ I Pogelof 6 I Back Next

SBP220 Business Decisions for Small Business lesson 11 - Size Protest Simulation RESOURCES I PRINT I HELP

Your Simulation Environment

Here is a birds eye view of your simulated environment Select each room on the office environment map for a few details about the office Become familiar with where your office is located in relationship to the other offices

SBP ll Office This is Ruben the senior SSPs o ffice Rubens office is next door to your office When you leave your office turn left and you are at Rubens door

I Pogelof 6 I Back Next

SBP220 Business Decisions for Small Business lesson 11 - Size Protest Simulation RESOURCES 1 PRINT 1 HELP

Your Simulation Environment

Here is a birds eye view of your simulated environment Select each room on the office environment map for a few details about the office Become familiar with where your office is located in relationship to the other offices

SBP 1 Office You the student are the SSP 1 This is your o ffice You perform daily duties that require use of the computer and phone from this office You attend meetings in the conference room directly across the hall form your office You routinely visit Ruben the Senior SSP Connie the Contracting Officer and Asha the Program Managers offices for short discussions ------

~ I Pogelof 6 I Back Next

SBP220 Business Decisions for Small Business lesson 11 - Size Protest Simulation RESOURCES I PRINT I HELP

Your Simulation Environment

Here is a birds eye view of your simulat ed environment Select each room on the office environment map for a few details about the office Become familiar with where your office is located in relationship to the other offices

Contracting Officer This is Connie the Contracting Officers office When you leave your office select the righ t arrow to navigate to the Contracting Officers office

I Pogelof 6 I Back Next

SBP220 Business Decisio ns for Small Business Lesson 11 - Size Pr otest Simulation RESOURCES I PRINT I HELP

Your Simulation Envir onment

Here is a birds eye view of your simulated environment Select each room on the office environment map for a few details about the office Become familiar with where your office is located in relationship to the other offices

Contract Specialist Office This is Jenny the Contract Specialist s office Occasionally Jenny will have a Contrac t Specialist Intern working with her When you leave your o ffice turn right to ge t to the Contract Specialist o ffice

I Pogelof6 I Back Next

SBP220 Business Decisio n s for Small Business Lesson 11 - Size Protest Simulation RESOURCES I PRINT I HELP

Your Simulation Environment

Here is a b irds eye view of your simulated environment Select each room on the office environment map for a few details about the office Become familiar with where your office is located in relationship to the other offices

Conferen ce Room This is the office conference room The conference room is loca ted directly across from your o ffice Meetings routinely occur in the conference room

~~--

I Pogelof6 I Back Next

SBP220 Business Decisions for Small Business lesson 11 - Size Protest Simulation RESOURCES I PRINT I HELP

Your Simulation Environment

Here is a birds eye view of your simulated environment Select each room on the office environment map for a few details about the office Become familiar with where your office is located in relationship to the other offices

lobby This is the lobby You will see members o f the acquisition team periodically as you enter or leave the lobby You must go through the Exit to ge t into the lobby When you depart your office selec t the le ft arrow to navigate to the exit Select the exit door to go through the door into the I- lobby

~ I P o gelo f 6 I Ba c k Next

SBP220 Business Decisions for Small Business Lesson 11 - Size Protest Simulation RESOURCES I PRINT I HELP

Your Simulation Environment

Here is a birds eye view of your simulate d environment Select each room on the office environment map for a few details about the office Become familiar with where your office is located in relationship to the other offices

Program Managers Office This is Asha the Program Managers office You must go through the Exit to get to the PMs office When you leave your office select the right arrow to navigate to the exit Select the exit door to go through the door and into Ashas office

~ I Pogelof 6 I Back Next

SBP220 Business Decisio n s for Small Business Lesson 11 - Size Protest Simulation RESOURCES I PRINT I HELP

Your Simulation Environment

Here is a birds eye view of your simulated environment Select each room on the office environment map for a few details about the office Become familiar with where your office is located in relationship to the other offices

Technical S ME Office This office is reserved for Government technical SMEs The SMEs work in various o ffices around Fort Washington and come to this office as needed This office remains locked until the SMEs are present Whe n you leave your office

(SBP I) turn left to get to the S~M~E~offi~c~e~middot--=firniil

~ I Pogelof 6 I Back Next

SBP220 Business Decisions for Small Business lesson 11 - Size Protest Simulation RESOURCES I PRINT I HELP

Your Simulation Environment

Here is a birds eye view of your simulated environment Select each room on the office environment map for a few details about the office Become familiar with where your office is located in relationship to the other offices

SBP ll Office This is Ruben the senior SSPs o ffice Rubens office is next door to your office When you leave your office turn left and you are at Rubens door

I Pogelof 6 I Back Next

SBP220 Business Decisions for Small Business lesson 11 - Size Protest Simulation RESOURCES 1 PRINT 1 HELP

Your Simulation Environment

Here is a birds eye view of your simulated environment Select each room on the office environment map for a few details about the office Become familiar with where your office is located in relationship to the other offices

SBP 1 Office You the student are the SSP 1 This is your o ffice You perform daily duties that require use of the computer and phone from this office You attend meetings in the conference room directly across the hall form your office You routinely visit Ruben the Senior SSP Connie the Contracting Officer and Asha the Program Managers offices for short discussions ------

~ I Pogelof 6 I Back Next

SBP220 Business Decisions for Small Business lesson 11 - Size Protest Simulation RESOURCES I PRINT I HELP

Your Simulation Environment

Here is a birds eye view of your simulat ed environment Select each room on the office environment map for a few details about the office Become familiar with where your office is located in relationship to the other offices

Contracting Officer This is Connie the Contracting Officers office When you leave your office select the righ t arrow to navigate to the Contracting Officers office

I Pogelof 6 I Back Next

SBP220 Business Decisio ns for Small Business Lesson 11 - Size Pr otest Simulation RESOURCES I PRINT I HELP

Your Simulation Envir onment

Here is a birds eye view of your simulated environment Select each room on the office environment map for a few details about the office Become familiar with where your office is located in relationship to the other offices

Contract Specialist Office This is Jenny the Contract Specialist s office Occasionally Jenny will have a Contrac t Specialist Intern working with her When you leave your o ffice turn right to ge t to the Contract Specialist o ffice

I Pogelof6 I Back Next

SBP220 Business Decisions for Small Business lesson 11 - Size Protest Simulation RESOURCES I PRINT I HELP

Your Simulation Environment

Here is a birds eye view of your simulated environment Select each room on the office environment map for a few details about the office Become familiar with where your office is located in relationship to the other offices

lobby This is the lobby You will see members o f the acquisition team periodically as you enter or leave the lobby You must go through the Exit to ge t into the lobby When you depart your office selec t the le ft arrow to navigate to the exit Select the exit door to go through the door into the I- lobby

~ I P o gelo f 6 I Ba c k Next

SBP220 Business Decisions for Small Business Lesson 11 - Size Protest Simulation RESOURCES I PRINT I HELP

Your Simulation Environment

Here is a birds eye view of your simulate d environment Select each room on the office environment map for a few details about the office Become familiar with where your office is located in relationship to the other offices

Program Managers Office This is Asha the Program Managers office You must go through the Exit to get to the PMs office When you leave your office select the right arrow to navigate to the exit Select the exit door to go through the door and into Ashas office

~ I Pogelof 6 I Back Next

SBP220 Business Decisio n s for Small Business Lesson 11 - Size Protest Simulation RESOURCES I PRINT I HELP

Your Simulation Environment

Here is a birds eye view of your simulated environment Select each room on the office environment map for a few details about the office Become familiar with where your office is located in relationship to the other offices

Technical S ME Office This office is reserved for Government technical SMEs The SMEs work in various o ffices around Fort Washington and come to this office as needed This office remains locked until the SMEs are present Whe n you leave your office

(SBP I) turn left to get to the S~M~E~offi~c~e~middot--=firniil

~ I Pogelof 6 I Back Next

SBP220 Business Decisions for Small Business lesson 11 - Size Protest Simulation RESOURCES I PRINT I HELP

Your Simulation Environment

Here is a birds eye view of your simulated environment Select each room on the office environment map for a few details about the office Become familiar with where your office is located in relationship to the other offices

SBP ll Office This is Ruben the senior SSPs o ffice Rubens office is next door to your office When you leave your office turn left and you are at Rubens door

I Pogelof 6 I Back Next

SBP220 Business Decisions for Small Business lesson 11 - Size Protest Simulation RESOURCES 1 PRINT 1 HELP

Your Simulation Environment

Here is a birds eye view of your simulated environment Select each room on the office environment map for a few details about the office Become familiar with where your office is located in relationship to the other offices

SBP 1 Office You the student are the SSP 1 This is your o ffice You perform daily duties that require use of the computer and phone from this office You attend meetings in the conference room directly across the hall form your office You routinely visit Ruben the Senior SSP Connie the Contracting Officer and Asha the Program Managers offices for short discussions ------

~ I Pogelof 6 I Back Next

SBP220 Business Decisions for Small Business lesson 11 - Size Protest Simulation RESOURCES I PRINT I HELP

Your Simulation Environment

Here is a birds eye view of your simulat ed environment Select each room on the office environment map for a few details about the office Become familiar with where your office is located in relationship to the other offices

Contracting Officer This is Connie the Contracting Officers office When you leave your office select the righ t arrow to navigate to the Contracting Officers office

I Pogelof 6 I Back Next

SBP220 Business Decisio ns for Small Business Lesson 11 - Size Pr otest Simulation RESOURCES I PRINT I HELP

Your Simulation Envir onment

Here is a birds eye view of your simulated environment Select each room on the office environment map for a few details about the office Become familiar with where your office is located in relationship to the other offices

Contract Specialist Office This is Jenny the Contract Specialist s office Occasionally Jenny will have a Contrac t Specialist Intern working with her When you leave your o ffice turn right to ge t to the Contract Specialist o ffice

I Pogelof6 I Back Next

SBP220 Business Decisions for Small Business Lesson 11 - Size Protest Simulation RESOURCES I PRINT I HELP

Your Simulation Environment

Here is a birds eye view of your simulate d environment Select each room on the office environment map for a few details about the office Become familiar with where your office is located in relationship to the other offices

Program Managers Office This is Asha the Program Managers office You must go through the Exit to get to the PMs office When you leave your office select the right arrow to navigate to the exit Select the exit door to go through the door and into Ashas office

~ I Pogelof 6 I Back Next

SBP220 Business Decisio n s for Small Business Lesson 11 - Size Protest Simulation RESOURCES I PRINT I HELP

Your Simulation Environment

Here is a birds eye view of your simulated environment Select each room on the office environment map for a few details about the office Become familiar with where your office is located in relationship to the other offices

Technical S ME Office This office is reserved for Government technical SMEs The SMEs work in various o ffices around Fort Washington and come to this office as needed This office remains locked until the SMEs are present Whe n you leave your office

(SBP I) turn left to get to the S~M~E~offi~c~e~middot--=firniil

~ I Pogelof 6 I Back Next

SBP220 Business Decisions for Small Business lesson 11 - Size Protest Simulation RESOURCES I PRINT I HELP

Your Simulation Environment

Here is a birds eye view of your simulated environment Select each room on the office environment map for a few details about the office Become familiar with where your office is located in relationship to the other offices

SBP ll Office This is Ruben the senior SSPs o ffice Rubens office is next door to your office When you leave your office turn left and you are at Rubens door

I Pogelof 6 I Back Next

SBP220 Business Decisions for Small Business lesson 11 - Size Protest Simulation RESOURCES 1 PRINT 1 HELP

Your Simulation Environment

Here is a birds eye view of your simulated environment Select each room on the office environment map for a few details about the office Become familiar with where your office is located in relationship to the other offices

SBP 1 Office You the student are the SSP 1 This is your o ffice You perform daily duties that require use of the computer and phone from this office You attend meetings in the conference room directly across the hall form your office You routinely visit Ruben the Senior SSP Connie the Contracting Officer and Asha the Program Managers offices for short discussions ------

~ I Pogelof 6 I Back Next

SBP220 Business Decisions for Small Business lesson 11 - Size Protest Simulation RESOURCES I PRINT I HELP

Your Simulation Environment

Here is a birds eye view of your simulat ed environment Select each room on the office environment map for a few details about the office Become familiar with where your office is located in relationship to the other offices

Contracting Officer This is Connie the Contracting Officers office When you leave your office select the righ t arrow to navigate to the Contracting Officers office

I Pogelof 6 I Back Next

SBP220 Business Decisio ns for Small Business Lesson 11 - Size Pr otest Simulation RESOURCES I PRINT I HELP

Your Simulation Envir onment

Here is a birds eye view of your simulated environment Select each room on the office environment map for a few details about the office Become familiar with where your office is located in relationship to the other offices

Contract Specialist Office This is Jenny the Contract Specialist s office Occasionally Jenny will have a Contrac t Specialist Intern working with her When you leave your o ffice turn right to ge t to the Contract Specialist o ffice

I Pogelof6 I Back Next

SBP220 Business Decisio n s for Small Business Lesson 11 - Size Protest Simulation RESOURCES I PRINT I HELP

Your Simulation Environment

Here is a birds eye view of your simulated environment Select each room on the office environment map for a few details about the office Become familiar with where your office is located in relationship to the other offices

Technical S ME Office This office is reserved for Government technical SMEs The SMEs work in various o ffices around Fort Washington and come to this office as needed This office remains locked until the SMEs are present Whe n you leave your office

(SBP I) turn left to get to the S~M~E~offi~c~e~middot--=firniil

~ I Pogelof 6 I Back Next

SBP220 Business Decisions for Small Business lesson 11 - Size Protest Simulation RESOURCES I PRINT I HELP

Your Simulation Environment

Here is a birds eye view of your simulated environment Select each room on the office environment map for a few details about the office Become familiar with where your office is located in relationship to the other offices

SBP ll Office This is Ruben the senior SSPs o ffice Rubens office is next door to your office When you leave your office turn left and you are at Rubens door

I Pogelof 6 I Back Next

SBP220 Business Decisions for Small Business lesson 11 - Size Protest Simulation RESOURCES 1 PRINT 1 HELP

Your Simulation Environment

Here is a birds eye view of your simulated environment Select each room on the office environment map for a few details about the office Become familiar with where your office is located in relationship to the other offices

SBP 1 Office You the student are the SSP 1 This is your o ffice You perform daily duties that require use of the computer and phone from this office You attend meetings in the conference room directly across the hall form your office You routinely visit Ruben the Senior SSP Connie the Contracting Officer and Asha the Program Managers offices for short discussions ------

~ I Pogelof 6 I Back Next

SBP220 Business Decisions for Small Business lesson 11 - Size Protest Simulation RESOURCES I PRINT I HELP

Your Simulation Environment

Here is a birds eye view of your simulat ed environment Select each room on the office environment map for a few details about the office Become familiar with where your office is located in relationship to the other offices

Contracting Officer This is Connie the Contracting Officers office When you leave your office select the righ t arrow to navigate to the Contracting Officers office

I Pogelof 6 I Back Next

SBP220 Business Decisio ns for Small Business Lesson 11 - Size Pr otest Simulation RESOURCES I PRINT I HELP

Your Simulation Envir onment

Here is a birds eye view of your simulated environment Select each room on the office environment map for a few details about the office Become familiar with where your office is located in relationship to the other offices

Contract Specialist Office This is Jenny the Contract Specialist s office Occasionally Jenny will have a Contrac t Specialist Intern working with her When you leave your o ffice turn right to ge t to the Contract Specialist o ffice

I Pogelof6 I Back Next

SBP220 Business Decisions for Small Business lesson 11 - Size Protest Simulation RESOURCES I PRINT I HELP

Your Simulation Environment

Here is a birds eye view of your simulated environment Select each room on the office environment map for a few details about the office Become familiar with where your office is located in relationship to the other offices

SBP ll Office This is Ruben the senior SSPs o ffice Rubens office is next door to your office When you leave your office turn left and you are at Rubens door

I Pogelof 6 I Back Next

SBP220 Business Decisions for Small Business lesson 11 - Size Protest Simulation RESOURCES 1 PRINT 1 HELP

Your Simulation Environment

Here is a birds eye view of your simulated environment Select each room on the office environment map for a few details about the office Become familiar with where your office is located in relationship to the other offices

SBP 1 Office You the student are the SSP 1 This is your o ffice You perform daily duties that require use of the computer and phone from this office You attend meetings in the conference room directly across the hall form your office You routinely visit Ruben the Senior SSP Connie the Contracting Officer and Asha the Program Managers offices for short discussions ------

~ I Pogelof 6 I Back Next

SBP220 Business Decisions for Small Business lesson 11 - Size Protest Simulation RESOURCES I PRINT I HELP

Your Simulation Environment

Here is a birds eye view of your simulat ed environment Select each room on the office environment map for a few details about the office Become familiar with where your office is located in relationship to the other offices

Contracting Officer This is Connie the Contracting Officers office When you leave your office select the righ t arrow to navigate to the Contracting Officers office

I Pogelof 6 I Back Next

SBP220 Business Decisio ns for Small Business Lesson 11 - Size Pr otest Simulation RESOURCES I PRINT I HELP

Your Simulation Envir onment

Here is a birds eye view of your simulated environment Select each room on the office environment map for a few details about the office Become familiar with where your office is located in relationship to the other offices

Contract Specialist Office This is Jenny the Contract Specialist s office Occasionally Jenny will have a Contrac t Specialist Intern working with her When you leave your o ffice turn right to ge t to the Contract Specialist o ffice

I Pogelof6 I Back Next

SBP220 Business Decisions for Small Business lesson 11 - Size Protest Simulation RESOURCES 1 PRINT 1 HELP

Your Simulation Environment

Here is a birds eye view of your simulated environment Select each room on the office environment map for a few details about the office Become familiar with where your office is located in relationship to the other offices

SBP 1 Office You the student are the SSP 1 This is your o ffice You perform daily duties that require use of the computer and phone from this office You attend meetings in the conference room directly across the hall form your office You routinely visit Ruben the Senior SSP Connie the Contracting Officer and Asha the Program Managers offices for short discussions ------

~ I Pogelof 6 I Back Next

SBP220 Business Decisions for Small Business lesson 11 - Size Protest Simulation RESOURCES I PRINT I HELP

Your Simulation Environment

Here is a birds eye view of your simulat ed environment Select each room on the office environment map for a few details about the office Become familiar with where your office is located in relationship to the other offices

Contracting Officer This is Connie the Contracting Officers office When you leave your office select the righ t arrow to navigate to the Contracting Officers office

I Pogelof 6 I Back Next

SBP220 Business Decisio ns for Small Business Lesson 11 - Size Pr otest Simulation RESOURCES I PRINT I HELP

Your Simulation Envir onment

Here is a birds eye view of your simulated environment Select each room on the office environment map for a few details about the office Become familiar with where your office is located in relationship to the other offices

Contract Specialist Office This is Jenny the Contract Specialist s office Occasionally Jenny will have a Contrac t Specialist Intern working with her When you leave your o ffice turn right to ge t to the Contract Specialist o ffice

I Pogelof6 I Back Next

SBP220 Business Decisions for Small Business lesson 11 - Size Protest Simulation RESOURCES I PRINT I HELP

Your Simulation Environment

Here is a birds eye view of your simulat ed environment Select each room on the office environment map for a few details about the office Become familiar with where your office is located in relationship to the other offices

Contracting Officer This is Connie the Contracting Officers office When you leave your office select the righ t arrow to navigate to the Contracting Officers office

I Pogelof 6 I Back Next

SBP220 Business Decisio ns for Small Business Lesson 11 - Size Pr otest Simulation RESOURCES I PRINT I HELP

Your Simulation Envir onment

Here is a birds eye view of your simulated environment Select each room on the office environment map for a few details about the office Become familiar with where your office is located in relationship to the other offices

Contract Specialist Office This is Jenny the Contract Specialist s office Occasionally Jenny will have a Contrac t Specialist Intern working with her When you leave your o ffice turn right to ge t to the Contract Specialist o ffice

I Pogelof6 I Back Next

SBP220 Business Decisio ns for Small Business Lesson 11 - Size Pr otest Simulation RESOURCES I PRINT I HELP

Your Simulation Envir onment

Here is a birds eye view of your simulated environment Select each room on the office environment map for a few details about the office Become familiar with where your office is located in relationship to the other offices

Contract Specialist Office This is Jenny the Contract Specialist s office Occasionally Jenny will have a Contrac t Specialist Intern working with her When you leave your o ffice turn right to ge t to the Contract Specialist o ffice

I Pogelof6 I Back Next

SBP220 Business Decisions f o r Small Business Lesson 11 - Size Protesl Simulation RESOURCES I PRINT I HELP

Your Simulation Environment

long Description Here is a birds eye view of your simulated envJrC)I Image of the office environment from an overhead map for a few details about the office Become perspective It displays t he building room lay out w1th a to the other offices hallway through the center

starting from the le ft top o f the image the rooms are labeled as follows

bull Lobby bull Conference Room bull Program Managers (PM) Office

starting from the left bottom of the image the rooms are labeled as follows

==-- bull Technical SME Office bull SBP II Office bull SBP I Office (Your Office ) bull Contracting Officers (CO) Office bull Contract Specialists Office

~ I Page2of 6 I ~ Back Next

SBP220 Business Decisions for Small Business lesson 11 - Size Pr otest Simulation RESOURCES I PRINT I HELP

Simulation Character s

You will interact with several characters in the simulated environment These characters include

bull Connie - Contracting Officer bull Asha - Program Manager bull Ruben - Senior SBP bull Jenny - Contrac t Specialist bull I an - Legal Representative bull Janet - SBA PCR bull Phil - Contrac tor (ELMO) bull Grace - Contrac tor (CD)

~ I Poge3of 6 I Back Next

SBP220 Business Decisions for Small Business Lesson 11- Size Protest Simulation RESOURCES I PRINT 1 HELP

Simulation Characters

You will interact with several characters in the simulated environment These characters include

bull Connie - Contracting Officer bull Asha - Program Manager bull Ruben - Senior SBP bull Jenny - Contract Specialist bull Ian - Legal Representative bull Janet - SBA PCR bull Phil - Contractor (ELMO) bull Grace - Contractor ( CD)

Closed Captioning Your simulation characters were also introduced earlier but here is a quick reminder of who the characters are and their roles in the simulation Select Next to launch the simulation

~ I Page3of6 I Back Next

SBP220 Business Decisions for Small Business lesson 11 - Size Protest Simulation RESOUR CES I PRINT I HELP

Simulation Ch ar acter s

You will interact with several characters in the simulated environment These characters include

bull Connie bull Contracting Officer bull Asha bull Program Managerbull Ruben bull Senior SBIP_______

bull Jenny bull Contrac t l ong Descrip tion bull I an bull Legal Re1oresl bull Janet bull SBA PCR You will interac t with several characters in the simulated bull Phil bull Contractor environment These characters include bull Grace bull Contrabullctorl

bull Connie - Contracting Officer bull Asha - Program Manager bull Ruben - Senior SBP bull Jenny - COntract Specialist bull Ian - legal Representative bull Janet - SBA PCR bull Phil - COntractor (ELMO) bull Grace - COntractor (COl)

~ I Poge 3of6 I Back Next

SBP220 Business Decisions for Small Business Lesson 11 - Size Protest Simulation RESOURCES I PRINT I HELP

Size Protest Simulation

This simulation will open and be conducted in a separate window Once you begin you are an Actor and must initiate the necessary actions to progress through the simulation Pay careful attention to the instructional prompts to determine what to do next Your Tablet is a valuable resource and will allow you to research the FAR DFARS and many other pertinent Federal and DOD Acquisition Websites and reference materials

Throughout the simulation you will make many business decisions involving knowledge and judgment When you apply your knowledge and exercise good judgment in providing guidance your actions will be affirmed with FEED BACK screens However when you incorrectly apply your knowledge and exercise poor judgement in providing guidance your credibility as a small business professional is on the line

You never want to tarnish your credibility as a consummate small business professional It is good to recognize mistakes and learn from them quickly Therefore if you make incorrect decisions in this simulation you will learn of them through the CONSEQU ENCE O F YOUR ACTIONS screen as you progress through the simulation

Select the Size Protest image below to launch the simulation The simulation will open in a new window After comple all simulation activities return to this screen and select Next to continue

Back Next

SBP220 Business Decisions for Small Business l esson 11 -Size Protest Simulation RESOURCES I PRINT 1 HELP

Size Protest Simulation

This simulation will open and be conducted in a separate window Once you begin you are an Actor and must initiate the necessary actions to progress through the simulation Pay careful attention to the instructional prompts to determine what to do next Your Tablet is a valuable resource and will allow you to research the FAR DFARS and many other pertinent Federal and DOD Acquisition Websites and reference materials

Throughout the simulation you will make many business decisions involving knowledge and judgment When you apply your knowledge and exercise good judgment in providing guidance your actions will be affirmed with FEEDBACK screens However when you incorrectly apply your knowledge and exercise poor judgement in providing guidance your credibility as a small business professional is on the line

You never want to tarnish your credibility as a consummate small business professional It is good to recognize mistakes and learn from them quickly Therefore if you make incorrect decisions in this simulation you will learn of them through the CONSEQU ENCE O F YOUR ACTIONS screen as you progress through the simulation

Select the Size Protest image below to launch the simulation The simulation will open in a new window After ting all simulation activities return to this screen and select Next to continue

Closed Capt ioning This simulation will open and be conducted in a separate window Once you begin you are an actor and must initiate the necessary actions to progress through the simulation Pay careful attention to the instructional prompts to determine what to do next Your Tablet is a valuable resource and will allow you to research the FAR DFARS and many other pertinent Federal and DOD Acquisition Websites and reference materials

Select Size Protest Simulation to begin

Back Next

Screen 1 Your Office This acquisition is a small business set-aside for a follow on contract for

security guard services Corporate Defenders Inc (CDI) is the apparent successful offeror CDIs

primary subcontractor is Rivers who is the incumbent contractor and will be providing

management support as well as some of their employees for this follow-on effort East Lake

Management Operation (ELMO) received their Pre-award notice IAW FAR 15503(a)(2)(ii)

indicating that CDI is the apparent successful offeror They have decided to protest the small

business representation for CDI based on the affiliation with Rivers While sitting at your desk

you notice you have a new voicemail

Connie Hello I am just checking with you to make sure you are available to meet with Jenny

our Contracting Specialist concerning the East Lake size protest of the apparent award to CDI I

will be out for a couple of weeks and she will be watching over things in my absence Please

meet her in the conference room at 100pm By the way I left the abstract from the CDI

proposal in your inbox

Screen 2 Your Office Open the Abstract of CDI Document

Screen 3 Conference Room Jenny Thanks for coming in Now that we have sent a Pre-award

notice that CDI is the apparent successful offeror I see that East Lake is protesting the size

status based on affiliation with Rivers With Connie being out I need some guidance What are

the procedures for a size protest

Activity 3-1 Conference Room Jenny How can an offeror protest a small business size

representation

Choice 1 As stated in FAR 19302(c)(2) the protest or confirmation of the protest if initiated

orally shall be in writing Proceed to screen 21

Choice 2 As stated in FAR 19302(c)(2) an offeror can only protest orally and then must follow-

up with a written protest Proceed to screen 4

Choice 3 A protest may be made orally if it is confirmed in writing and received by the

Contracting Officer within the 30-day period or by letter postmarked no later than 1 business

day after the oral protest (FAR 19302(d)(1)(i)) Proceed to screen 12

Screen 4 Conference Room

Jenny Really I will inform the offeror that they can only submit the protest orally Thank you

for your time I assume I will have more questions

Screen 5 Your Office THE NEXT DAY - Coming back from lunch you notice that you have a

voicemail

Phil Hello My name is Phil I am the owner of the small business East Lake Management

Operation better known as ELMO I am in the process of sending in a size protest Jenny

informed me that I could only protest orally I called SBA and they told me that the protest

could be in writing I am not pleased I will be citing this in the written protest

Screen 6 Your Office You have called Ruben the senior SBP to keep him informed of the

events

Ruben Hello this is Ruben Thanks for the back brief of events You need to ensure that you

learn the policies and provide accurate counselling If you are in doubt please review the

regulations It will be an embarrassment if this is written up in the protest

Screen 7 Your Office CONSEQUENCE OF YOUR ACTIONS Requiring all protests to be oral is not

consistent with FAR policy While FAR 19302(c)(2) allows size representation protests to be

initially submitted orally they must be followed up in writing protests can also be initially

submitted in writing All size representation protests must include the basis for the protest with

specific detailed evidence to support the allegation that the offeror is not small As a SBP it is

important that you provide accurate policy guidance when advising industry and Government

personnel to ensure you maintain credibility as a small business expert

Screen 8 Your office

Ruben Do you now understand the regulation How can an offeror protest a small business

size representation

Activity 3-2 Your office Ruben How can an offeror protest a small business size

representation

Choice 1 As stated in FAR 19302(c)(2) The protest or confirmation of the protest if initiated

orally shall be in writing Proceed to screen 20

Choice 2 A protest may be made orally if it is confirmed in writing and received by the

Contracting Officer within the 30-day period or by letter postmarked no later than 1 business

day after the oral protest (FAR 19302(d)(1)(i)) Proceed to screen 9

Screen 9 Your office

Ruben That is incorrect A protest may be made orally within the 5-day period if it is confirmed

in writing and received by the Contracting Officer or by letter postmarked no later than 1

business day after the oral protest

Screen 10 Your office CONSEQUENCE OF YOUR ACTIONS Advising a concern that they have 30

days to submit a protest would result in the SBA denying the protest as untimely While it is the

responsibility of the contractor to know what the FAR requires providing incorrect advice and

counsel too often will adversely impact your credibility and reputation as a SBP and expert in

your field

Screen 11 Your office

Ruben Please contact the offeror and Jenny to inform them of the correct regulation I have to

reiterate that even though industry is responsible for knowing the FAR rules we cannot provide

false advice Have a good day and let me know if you need anything Proceed to screen 22

Screen 12 Conference Room

Jenny Really I will inform the offeror that a protest may be made orally if it is confirmed in

writing and received by the Contracting Officer within the 30-day period Thank you for clearing

that up for me

Screen 13 Your office THE NEXT DAY - Coming back from lunch you notice that you have a

voicemail

Phil Hello My name is Phil I am from ELMO I am in the process of sending in a size protest

Jenny informed me that I had up to 30 days That sounded suspicious so I called SBA They

informed me a protest may be made orally within the 5-day period if it is confirmed in writing

and received by the Contracting Officer or by letter postmarked no later than one business day

after the oral protest I am not pleased I will be citing this in the written protest

Screen 14 Your office THE NEXT DAY - You have contacted Ruben the senior SBP to keep him

informed of the events

Ruben Hello this is Ruben Thanks for the back brief of events You need to ensure that you

learn the policies and provide accurate counselling If you are in doubt please review the

regulations It will be an embarrassment if this is written up in the protest

Screen 15 Your office CONSEQUENCE OF YOUR ACTIONS Advising a concern that they have 30

days to submit a protest would result in the SBA denying the protest as untimely While it is the

responsibility of the contractor to know what the FAR requires providing incorrect advice and

counsel too often will adversely impact your credibility and reputation as a SBP and expert in

your field

Screen 16 Your office

Ruben Do you now understand the regulation How can an offeror protest a small business

size representation

Activity 3-3 Your office

Question Ruben How can an offeror protest a small business size representation

Choice 1 As stated in FAR 19302(c)(2) an offeror can only protest orally and then must

follow-up with a written protest Proceed to screen 17

Choice 2 As stated in FAR 19302(c)(2) The protest or confirmation of the protest if initiated

orally shall be in writing Proceed to screen 20

Screen 17 Your office

Ruben That is incorrect A protest may be made orally within the 5-day period if it is confirmed

in writing and received by the Contracting Officer or by letter postmarked no later than 1

business day after the oral protest

Screen 18 Your Office CONSEQUENCE OF YOUR ACTIONS Advising a concern that they have 30

days to submit a protest would result in the SBA denying the protest as untimely While it is the

responsibility of the contractor to know what the FAR requires providing incorrect advice and

counsel too often will adversely impact your credibility and reputation as a SBP and expert in

your field

Screen 19 Your office

Ruben Please contact the offeror and Jenny to inform them of the correct regulation I have to

reiterate that even though industry is responsible for knowing the FAR rules we cannot provide

false advice Have a good day and let me know if you need anything Proceed to screen 22

Screen 20 Your office

Ruben That is correct Please contact the offeror and Jenny to inform them of the correct

regulation Have a good day and let me know if you need anything

Screen 21 Conference room

Jenny Thank you for clearing that up for me If I need further assistance Ill give you a call

Screen 22 Your office FEEDBACK A protest may be made orally within the 5-day period if it is

confirmed in writing and received by the Contracting Officer or by letter postmarked no later

than 1 business day after the oral protest (FAR 19302(d)(1)(i)) A Contracting Officer may

submit a size protest at any time before or after award and it is considered timely (FAR

19302(d)(2))

You have completed the tasks Ruben asked you to perform It is the end of the week You have

closed your computer and stored your documents away You head for the lobby

Screen 23 Lobby TWO DAYS LATER - As you return to work on Monday morning you run into

Asha in the lobby

Asha Good morning Just wanted to inform you that ELMO wants to send a protest stating that

they had evidence that CDI was large and therefore should not be considered for the award of

any small business set-aside contract for our Army base Have a great day

Screen 24 Your office Entering your office you get a phone call

Phil Hello this is Phil from ELMO I am assuming you heard about the protest Before we send

in the protest letter could you please tell me what is required for a size protest to be

considered by SBA

Activity 24-1 Your office

Question Phil In accordance with 13 CFR 1211007 what is required for a protest of size

status to be considered by SBA

Choice 1 A concern is considered a small and a large depending on the particular size standard

Proceed to screen 25

Choice 2 The size protest must demonstrate that the offeror being protested is considered

large based on presumed affiliation with a large business Proceed to screen 33

Choice 3 The size status protest must relate to a particular procurement and be specific to

provide reasonable notice as to the grounds upon which the protested concerns size is

questioned Proceed to screen 42

Screen 25 Your office

Phil Thank you I will send out the protest later today

Screen 26 Your office Entering your office you notice you have an e-mail

To Acquisition Team

From Connie Contracting Officer

Subject Size Protest E-mail Attachment Protest Letter

Hello

Just wanted to inform the SBA would not act on ELMOs protest I have received notice that the size protest is not being considered

I have also attached a copy of the protest

VR

Connie Contracting Officer

Screen 27 Your office Ruben meets with you weekly to review the status of acquisitions and

discuss any lessons learned During this weekly meeting you inform Ruben about the mistake

you made in informing the protestor that a concern is considered a small and a large depending

on the particular size standard

Ruben You do realize that a concerns size can fluctuate between small and large depending on

the particular procurement assigned NAICS size standards If you counsel industry you need to

realize this

Screen 28 Your office CONSEQUENCE OF YOUR ACTIONS 13 CFR 1211007(a) A protest

challenging the size of a concern which does not pertain to a particular procurement or sale will

not be acted on by SBA While it is true that a concern can be small andor large depending on

the procurements NAICS code and corresponding size standard the size protest would be

denied because it must be related to a particular procurement

Screen 29 Your office

Ruben Did you take a look at 13 CFR 1211007 What is required for a size protest to be

considered by SBA

Activity 24-2 Your office

Question Ruben In accordance with 13 CFR 1211007 what is required for a size protest to be

considered by SBA

Choice 1 The size status protest must relate to a particular procurement and be specific to

provide reasonable notice as to the grounds upon which the protested concerns size is

questioned Proceed to screen 41

Choice 2 The size protest must demonstrate that the offeror being protested is considered

large based on presumed affiliation with a large business Proceed to screen 30

Screen 30 Your office

Ruben Thatrsquos not quite right The protest must be sufficiently specific to prove affiliation Some

basis for the belief must be stated The SBA would not act on the protest IAW CFR 1211007(c)

the SBA protest regulations

Screen 31 Your office CONSEQUENCE OF YOUR ACTIONS 13 CFR 1211007(c) Non-specific

protests will be dismissed The protestor must present proof of affiliation and also relate it to a

specific procurement The protest would be denied because it is not specific The protestor sent

a copy of the protest stating there was presumed affiliation with a large business and therefore

should not be considered for the award of any small business set-aside contract

Screen 32 Your office

Ruben You cannot keep informing industry and the agency in this way You need to refer to the regulations before giving advice I will need to report this to the commander Do not give any more advice without looking at the regulations I will see you next month Proceed to screen 43

Screen 33 Your office

Phil Thank you I will send out the protest later today

Screen 34 Your office

To Acquisition Team

From Connie Contracting Officer

Subject Size Protest Attachment Protest Letter

Hello

Just wanted to inform the SBA would not act on ELMOs protest I have received notice that the size protest is not being considered

I have also attached a copy of the protest

VR

Connie

Contracting officer

Screen 35 Your office Ruben and yourself have monthly general follow-on discussions to discuss the progress of the acquisition and discuss any lessons learned You inform Ruben about the mistake you made

Ruben The protest must be sufficiently specific to prove affiliation Some basis for the belief must be stated The SBA would not act on the protest IAW CFR 1211007(c) the SBA protest regulations

Screen 36 Your office CONSEQUENCE OF YOUR ACTIONS 13 CFR 1211007(a) A protest challenging the size of a concern which does not pertain to a particular procurement or sale will not be acted on by SBA While it is true that a concern can be small andor large depending on the procurements NAICS code and corresponding size standard the size protest would be denied because it must be related to a particular procurement

Screen 37 Your office

Ruben Did you take a look at 13 CFR 1211007 What is required for a protest of size to be considered by SBA

Activity 24-3 Your office

Question Ruben In accordance with 13 CFR 1211007 what is required for a size protest to be

considered by SBA

Choice 1 A concern is considered a small and a large depending on the particular size standard

Proceed to screen 38

Choice 2 The size status protest must relate to a particular procurement and be specific to

provide reasonable notice as to the grounds upon which the protested concernrsquos size is

questioned Proceed to screen 41

Screen 38 Your office

Ruben You do realize that a concerns size can fluctuate between small and large depending on

the particular procurement assigned NAICS size standards If you counsel industry you need to

realize this

Screen 39 Your office CONSEQUENCE OF YOUR ACTIONS 13 CFR 1211007(a) A protest

challenging the size of a concern which does not pertain to a particular procurement or sale will

not be acted on by SBA While it is true that a concern can be small andor large depending on

the procurements NAICS code and corresponding size standard the size protest would be

denied because it must be related to a particular procurement

Screen 40 Your office

Ruben You cannot keep informing industry and the agency in this way You need to refer to the

regulations before giving advice I will need to report this to the commander Do not give any

more advice without looking at the regulations I will see you next month Proceed to screen 43

Screen 41 Your office

Ruben That is correct In the future do not give any more advice without looking at the

regulations I will see you next month

Screen 42 Your office

Phil Thank you I will send out the protest today Goodbye

Screen 43 Your office FEEDBACK A protest challenging the size of a concern must pertain to a

particular procurement or sale Additionally a size protest must be sufficiently specific to

provide reasonable notice as to the grounds upon which the protested concerns size is

questioned No particular form is prescribed for a protest Where materials supporting the

protest are available they should be submitted with the protest Size protests which do not

meet 13 CFR 1211007 requirements will be dismissed by SBA

Screen 44 Your office TWO DAYS LATER

To You SBP Attachment Protest

From Connie Contracting Officer

Subject Size Protest

Hello

After lunch if you could please meet Jenny and I in the conference room I have received the

protest from ELMO and just want to make sure I handle my part The protest document is

attached to this message Please read it before going to see Jenny

Thanks

Connie

Contracting Officer

Screen 45 Conference room LATER THAT DAY

Connie Thanks for coming by ELMO has submitted their small business size representation protest Could you please tell me what needs to be included

Activity 45-1 Conference room

Question Connie What should a small business size representation protest contain

Choice 1 According to FAR 19302(c) a small business size representation protest shall include

the basis for the protest and a referral letter written by the Contracting Officer with

information pertaining to the solicitation - Proceed to screen 73

Choice 2 According to FAR 19302(c)(3) a small business size representation protest shall

include a referral letter written by the Program Manager with information addressing the

solicitation - Proceed to screen 46

Choice 3 According to FAR 19302(c)(3) a small business size representation protest shall

include a copy of the solicitation and all offerors bid - Proceed to screen 59

Screen 46 Conference room

Connie Oh ok Asha needs to fill out the referral letter Please give her a call

Screen 47 Conference room

Asha Hello Asha speaking How may I help you

Screen 48 Conference room

Connie Hey Asha Itrsquos me Connie I have Jenny and the SBP here with me The SBP has just informed me that the Program Manager needs to fill out the referral letter for the size protest

Screen 49 Conference room

Asha Are you sure I have never filled out a referral letter before What must a small business representation protest need to include

Activity 45-2 Conference room

Question Asha What should a small business size representation protest contain

Choice 1 According to FAR 19302(c)(3) a small business size representation protest shall include a copy of the solicitation and all offerorsrsquo bids - Proceed to screen 50

Choice 2 According to FAR 19302(c) a small business size representation protest shall include the basis for the protest and a referral letter written by the Contracting Officer with information pertaining to the solicitation - Proceed to screen 73

Screen 50 Conference room

Asha Ok if you want me to fill out the referral letter I can have it completed by tomorrow You will need to gather the solicitation and offerorsrsquo bids

Screen 51 conference room

Connie Thank you Asha

Screen 52 Your office TWO DAYS LATER - As you enter your office the phone rings

Asha Hello this is Asha I just wanted to let you know that the SBA has returned the protest They stated that the Contracting Officer needs to fill out the referral letter SBA also included a list of items that the protest package should contain I left the list in your inbox

Screen 53 Your office read the protest package that is in your inbox

Screen 54 Your office THREE DAYS LATER

Asha I will get with Connie to make sure what the correct information gets sent to the SBA Bye

Screen 55 Conference room Connie has called a meeting of the team to discuss the size protest from ELMO

Connie Thank you everyone for coming As you all know the protest has slowed down the process of awarding the contract This mishap about who should fill out the referral letter has caused us even more delay which potentially will impact the delivery schedule

Screen 56 Conference room

Connie The protest package has been completed and sent back to the SBA Everything should be in order and now we just wait to hear back from the SBA I brought in copies of the referral letter and the CDI representation letter for everyone to take a look at

Screen 57 Conference room Read the Size Determination document

Screen 58 Conference room CONSEQUENCE OF YOUR ACTIONS The SBA sent back the protest This resulted in a delay of SBAs protest decision As a result there may be potential

delays for contract award and impacts to the programs overall costperformanceschedule

baseline

Screen 59 Conference room

Jenny Oh ok we just need to include the solicitation and all of the offerors bids I can gather

that information up in no time

Screen 60 Conference room

Connie Are you sure that is correct I thought somewhere in the regulations I read that we

were supposed to supply a letter and that the protester was supposed to come up with all the

other information

Activity 45-3 Conference room

Question Connie What should a small business size representation protest contain

Choice 1 According to FAR 19302(c) a small business size representation protest shall include

the basis for the protest and a referral letter written by the Contracting Officer with

information pertaining to the solicitation - Proceed to screen 73

Choice 2 According to FAR 19302(c)(3) a small business size representation protest shall

include a referral letter written by the Program Manager with information addressing the

solicitation - Proceed to screen 61

Screen 61 Conference room

Connie Oh ok Asha needs to fill out the referral letter Letrsquos give her a call

Screen 62 Conference room

Asha Hello Asha speaking How may I help you

Screen 63 Conference room

Connie Hey Asha Itrsquos me Connie I have Jenny and the SBP here with me The SBP has just

informed me that the Program Manager needs to fill out the referral letter for the size protest

Screen 64 Conference room

Asha Sure I can fill out the referral letter Irsquoll have it completed by tomorrow Bye

Screen 65 Conference room

Connie Once I receive the letter from Asha I will send it off to SBA Thanks Have a great rest of your day

Screen 66 Hour office TWO DAYS LATER - As you enter your office the phone rings

Asha Hello this is Asha I just wanted to let you know that the SBA has returned the protest They stated that the Contracting Officer needs to fill out the referral letter SBA also included a list of items that the protest package should contain I left the list in your inbox

Screen 67 Your office

Asha I will get with Connie to make sure that the correct information gets sent to the SBA Bye

Screen 68 Your office Read the Protest Package letter

Screen 69 Conference room THREE DAYS LATER - Connie has called a meeting of the team to discuss the size protest from ELMO

Connie Thank you everyone for coming As you all know the protest has slowed down the

process of awarding the contract This mishap about who should fill out the referral letter has

cause us even more delay which potentially will impact the delivery schedule

Screen 70 conference room

Connie The protest package has been completed and sent back to the SBA Everything should be in order and now we just wait to hear back from the SBA I brought in copies of the referral letter and the CDI representation letter for everyone to take a look at

Screen 71 Conference room Read the Referral Letter CDI Representation and Size Determination documents

Screen 72 Conference room CONSEQUENCE OF YOUR ACTIONS The SBA sent the protest back This has resulted in a delay in the SBA deciding the protest and potential delay of award of the contract which could result in a delay in performance of delivery or service resulting in additional costs to the Government

Screen 73 Conference room

Connie Thatrsquos it Ok I can definitely take care of that today Thank you

Screen 74 Your office It has been several days since you spoke to Connie about the small

business representation protest requirements As you sit down to start your day you notice you

have a voicemail

Jenny Hello Can you stop by the conference room when you get this message Thanks

Screen 75 Conference room

Connie Hello Thanks for coming I just wanted to inform you that the protest package has

been completed and sent back to the SBA Everything should be in order and now we just wait

to hear back from the SBA I brought in copies of the referral letter and the CDI representation

letter for everyone to take a look at

Screen 76 Conference room Read the Referral Letter CDI Representation and Size

Determination documents

Screen 77 Conference room

FEEDBACK According to FAR 19302(c)(3) a small business representation protest shall include

the basis of the protest and include a referral letter signed by the Contracting Officer with

information pertaining to the solicitation and include (i) the protest and any accompanying

materials (ii) a copy of the size self-certification (iii) Identification of applicable size standard

(iv) a copy of the electronic link to the solicitation and any amendments (v) the name address

telephone number email address and number of the Contracting Officer (vi) identification of

the bid opening date or date of notification provided to unsuccessful offerors (vii) the date the

Contracting Officer received the protest (viii) a complete address and point of contact for the

protested concern An offeror the SBA or another interested party may protest the small

business representation of an offeror in a specific offer (FAR 19302(a)(2)) For competitive 8(a)

contracts the filing of a protest is limited to the Contracting Officer an offeror or the SBA The

Contracting Officer may also submit a small business representation protest at any time before

or after award (FAR 19302(a) and (b))

Screen 78 Your office A WEEK LATER - As you come back from lunch with Janet you get a visit

from Jenny She has not heard anything about the protest for several days and would like

clarification on the protest process with the SBA

Jenny Hi I just wanted to clarify the notification process of the protest It has been five days

since the documents were submitted to the SBA and we have not heard anything as of yet

Connie also gave me this form that I am unfamiliar with I put it in your inbox

Screen 79 Your office Read the SBA Form 355

Screen 80 Your office

Jenny Hey Janet what is the SBA Government Contracting Area Directors process after

receiving a size determination protest

Screen 81 Your office

Janet When SBA receives a size protest the SBA Area Director for Government Contracting or

designee will notify the contracting officer the protested concern and the protestor that the

protest has been received SBA will provide a blank copy of SBA Form 355 Application for Small

Business Determination to the concern whose size is at issue The protested concern or

concern whose size is at issue must return the completed SBA Form 355 and all other requested

information to SBA within 3 working days from the date of receipt of the blank form from SBA

SBA has discretion to grant an extension of time to file the form After receipt of a protest or a

request for a formal size determination the SBA Area Office will issue a formal size

determination within 15 business days if possible or within an extension granted by the

Contracting Officer in accordance with FAR 19302(e)

Screen 82 Your office

Jenny Thank you for clarifying the process Irsquoll see you both later

Screen 83 Your office

Janet Yes I have to get back to the office too Irsquoll see you later

Screen 84 Your office THE NEXT DAY - You re-enter your office from a break and receive a

phone call

Jenny Hello I forgot to ask when the Contracting Officer may award a contract that has a small

business size protest

Activity 84-1 Your office

Question Jenny When may the Contracting Officer award a contract that has been protested

Choice 1 Only after the SBA makes a determination of the small business representation

protest - Proceed to screen 85

Choice 2 When the SBA makes a decision or 15 business days have expired whichever comes

first however the CO may award a contract before an SBA determination is made when he

makes a written determination that award must be made to protect public interest - Proceed

to screen 105

Choice 3 The Contracting Officer does not have to wait for SBA to make the determination -

Proceed to screen 95

Screen 85 Your office

Jenny Ok so I guess we just wait until the SBA makes a determination Thanks

Screen 86 Program Managerrsquos Office THE NEXT DAY - Asha has requested that you come by

her office As you walk into Asharsquos office Connie is already there

Asha Connie was just informing me that she has decided to wait on SBAs decision about the

protest before awarding the contract Just want to inform the both of you that the incumbent

contract expires 18 days after the submittal of the protest to the SBA

Screen 87 Program Managerrsquos Office

Connie That is a good point Asha The risk of me waiting too long will result in expiration of the

contract A lapse between contracts is unacceptable as that may adversely impact the

warfighter

Activity 84-2 Program Managerrsquos Office

Question Connie When may the Contracting Officer award a contract that has been

protested

Choice 1 When the SBA makes a decision or 15 business days have expired whichever comes

first however the CO may award a contract before an SBA determination is made when he

makes a written determination that award must be made to protect public interest - Proceed

to screen 103

Choice 2 The Contracting Officer does not have to wait for SBA to make the determination -

Proceed to screen 88

Screen 88 Program Managerrsquos Office

Connie If that is the case letrsquos wait about a week and then award the contract Thanks

everyone

Screen 90 Your office FIVE DAYS LATER - SBA renders its decision on the required 15th

business day finding that the apparent successful offeror was not eligible for the award

Connie Meeting today at 2 PM

Screen 91 Conference room 2 PM - Connie has called in Asha Jenny and Ian to the

conference room

Connie As you are aware SBA came back with the decision that ELMO was not eligible for the

award Because it is so close to the completion of the source selection we may be able to go

back and award to the offeror that was second in line based on evaluation results

Screen 92 Conference room

Ian We would have to get the acquisition team together with legal SBA and leadership but

we might be able to accomplish that without having to start the procurement over again

Screen 93 Conference room

Connie Thanks everyone I will keep you posted

Screen 94 Conference room CONSEQUENCE OF YOUR ACTIONS Awarding the contract

without waiting for SBA to make a decision on the appeal is a violation of FAR policy (FAR

19302(g)(2) this type of violation could result in significant impacts inclusive of the

Contracting Officer having to terminate the unauthorized contract Additional fallout may occur

by having to re-accomplish the procurement entirely since the source selection was effectively

completed upon award of the unauthorized contract to the ineligible company Reprocurement

risk would be dependent upon the acquisition circumstances timing and viewpoints of the key

stakeholders and decision-makers

FEEDBACK After receiving a size protest involving a new procurement the Contracting Officer

shall not award the contract until the SBA has made a size determination or after 15 business

days have expired whichever comes first However the Contracting Officer may award a

contract before an SBA determination is made when shehe makes a written determination

that award must be made to protect the public interest (FAR 19302(g)(1))

Screen 95 Your office

Jenny Ok I will inform Connie Thanks

Screen 96 COrsquos office LATER THAT DAY - Connie has asked you to come by her office

Connie Hello Thanks for coming by Jenny tells me that you said that we do not need to wait

for SBA to make the determination about the size protest What happens if we award the

contract and then SBA finds the apparent successful offeror was not eligible for the award

Maybe you should double check the regulation

Activity 84-3 COrsquos office

Question Connie When may the Contracting Officer award a contract that has been

protested

Choice 1 Only after the SBA makes a determination of the small business representation

protest - Proceed to screen 97

Choice 2 When the SBA makes a decision or 15 business days have expired whichever comes

first however the CO may award a contract before an SBA determination is made when he

makes a written determination that award must be made to protect public interest - Proceed

to screen 104

Screen 97 COrsquos office

Connie Ok so I guess we just wait until the SBA makes a determination

Screen 98 Program Managerrsquos Office LATER THAT DAY - Asha has requested that you come by

her office As you walk into Asharsquos office Connie is already there

Asha Connie was just informing me that she has decided to wait on SBAs decision about the

protest before awarding the contract Just want to inform the both of you that the current

contract expires 18 days after the submittal of the protest to the SBA

Screen 99 Program Managerrsquos Office

Connie That is a good point Asha The risk of me waiting too long will result in expiration of the

incumbents contract and work stoppage for security guard services

Screen 100 Program Managerrsquos Office

Asha I looked up the regulation and it states that we should wait up to 15 business days and

then we may award the contract

Screen 101 Program Managerrsquos Office

Connie Thanks That is what we will do and hopefully SBA will respond before the 15 days

Screen 102 Program Managerrsquos Office CONSEQUENCE OF YOUR ACTIONS Not thoroughly

understanding the protest procedures and being uninformed of program needs and imp acts

could result in adverse impacts to the warfighter

FEEDBACK After receiving a size protest involving a new procurement the Contracting Officer

shall not award the contract until the SBA has made a size determination or after 15 business

days have expired whichever comes first However the Contracting Officer may award a

contract before an SBA determination is made when shehe makes a written determination

that award must be made to protect the public interest (FAR 19302(g)(1))

Screen 103 Program Managerrsquos Office

Connie Ok we wait for 15 business days That sounds much better Thanks - Proceed to

screen 106

Screen 104 COrsquos office

FEEDBACK After receiving a size protest involving a new procurement the Contracting Officer

shall not award the contract until the SBA has made a size determination or after 15 business

days have expired whichever comes first However the Contracting Officer may award a

contract before an SBA determination is made when shehe makes a written determination

that award must be made to protect the public interest (FAR 19302(g)(1))

Connie Ok we wait for 15 business days That sounds much better Thanks - Proceed to

screen 107

Screen 105 Your office

FEEDBACK After receiving a size protest involving a new procurement the Contracting Officer shall not award the contract until the SBA has made a size determination or after 15 business days have expired whichever comes first However the Contracting Officer may award a contract before an SBA determination is made when shehe makes a written determination that award must be made to protect the public interest (FAR 19302(g)(1))

Jenny Ok we wait for 15 business days Thanks - Proceed to screen 107

Screen 106 Program Managerrsquos office FEEDBACK After receiving a size protest involving a new procurement the Contracting Officer shall not award the contract until the SBA has made a size determination or after 15 business days have expired whichever comes first However the Contracting Officer may award a contract before an SBA determination is made when shehe makes a written determination that award must be made to protect the public interest (FAR 19302(g)(1))

Screen 107 Your office TWO DAYS LATER - Itrsquos been two days since your conversation with Jenny You notice that you have a new e-mail

To Acquisition Team Attachment Appeal Letter

From Grace CDI Contractor

Subject ELMO protest upheld

Hello

I just heard that ELMOs protest was upheld We believe the decision was based on erroneous information so we want to appeal Can you give me some guidance in the process for submitting an appeal

I have attached the appeal and size determination letters

Sincerely

Grace CDI Contractor

Activity 107-1 Your office

Question Grace What is the process for submitting an appeal for a size protest determination

Choice 1 IAW FAR 19302(h) an appeal may be filed with the SBA Office of Hearings and Appeals by any concern or interested party whose protest of the small business representation of another concern has been denied - Proceed to screen 111

Choice 2 An appeal may be filed by any concern or interested party to protest the small business representation of another concern to the Contracting Officer - Proceed to screen 108

Screen 108 Your office THREE DAYS LATER Connie comes by your office

Connie Hello there I just received the appeal from CDI through the mail channels and realized

that the protestor sent it to me in error I am having Jenny mail the appeal package back to CDI

Screen 109 Your office As you get back to your desk you notice that you have a voicemail

Grace Hello this is Grace from CDI Looks like I sent my appeal to the wrong location I was not

supposed to send it to the Contracting Officer I have re-sent the appeal to SBA OHA I hope

that its not too late because they will deny my appeal if untimely

Screen 110 Your office CONSEQUENCES OF YOUR ACTIONS Filing the appeal with the

Contracting Officer would result in lost time for the protestor because the appeal must be filed

with SBA OHA The concern encounters a greater risk of denial by SBA OHA if the appeal is not

filed within the time frame listed in Subpart C of 13 CFR 134

Screen 111 Your office The agency awaits confirmation from SBA OHA as to the standing of

the appeal and related impacts to the ongoing procurement You leave for the weekend

Screen 112 Your office FEEDBACK An appeal may be filed only when the small business

representation protest has been denied by the SBA Government Contracting Area Director and

within the time frames and in accordance with the procedures outlined in Subpart C of 13 CFR

Part 134 (IAW FAR 19302(h)) While a Contracting officer may file an appeal of their own the

concern or interested party must file the appeal to the SBA Office of Hearings and Appeals

(OHA) within the time frame and in accordance with the procedures listed in Subpart C of 13

CFR 134

Screen 113 Your office You return to the office on Monday morning You have a new e-mail

E-mail CDI appeal

To You SBP

From Connie Contracting Officer

Subject CDI Appeal

Hello

I would like to have a meeting with you and our lawyer Ian and Jenny to review the CDI size

appeal to the SBA Office of Hearings and Appeals Please check your calendar to see if you are

free tomorrow afternoon Let me know if you can make it

Sincerely

Connie

Contracting Officer

Screen 114 Conference room THE NEXT DAY - You Connie Jenny and the departmentrsquos

lawyer Ian are in a conference room

Ian Glad you could make the meeting We have been informed that Corporate Defenders is

appealing the SBAs decision Because of the potential impact the appeals process may have on

our current security guard services and before we make a decision on what we should do

about continuation of those services I would like to discuss the basis of the original size protest

by ELMO in the Corporate Defenders appeal to determine whether we think it will be denied

What was the basis of the original size protest by ELMO in the Corporate Defenders appeal

Screen 115 Conference room

Jenny The basis of the original protest is that Corporate Defenders Inc is affiliated with Rivers

under the ostensible subcontracting rule

Screen 116 Conference room

Connie Now that we have determined it is a size representation issue does this fall within the

affiliation under the ostensible subcontracting rule

Screen 117 Conference room

Ian The regulation defines an ostensible subcontractor as a subcontractor that performs

primary and vital requirements or when the prime contractor is unusually reliant upon the

subcontractor In this case CDI would be relying on the workforce and management of Rivers

to fulfill the requirements of the contract Therefore the combined size standards of CDI and

Rivers exceeds the size standard for this procurement according to 13 CFR 121103(h)(4)

Screen 118 Conference room

Connie The SBA Area Office found that under the ostensible subcontracting rule CDI was

considered a large business because of its affiliation with Rivers CDI appealed the ruling to the

SBA Office of Hearings and Appeals stating that CDI was not overly reliant on Rivers for

performing the contract and that CDI will serve as the prime contractor ELMO argued that

there is an ostensible subcontracting affiliation with CDI and Rivers and that Rivers is a large

business and thus CDI is ineligible for award What factors could lead to the appeal being

denied

Activity 118-1 Conference room

Question Connie What factors led to the appeal being denied

Choice 1 Rivers was a large business and thus ineligible for the award - Proceed to screen 119

Choice 2 CFR 121103(h)(4) states only the terms of the proposal are applicable to determining

the teaming agreement between the prime and subcontractor - Proceed to screen 123

Choice 3 There is ostensible subcontracting based on the fact that the proposed subcontractor

is the incumbent contractor and thus ineligible for award the prime contractor proposed to

hire the majority of the workforce from the subcontractor the prime contractors proposed

program manager previously served as program manager for the subcontractor on incumbent

contract and the prime contractor lacked experience with projects of the magnitude required

of this procurement This makes the offeror ineligible for award - Proceed to screen 127

Screen 119 Conference room

Ian I believe that is an incorrect assumption since Rivers was only going to perform 43 percent

of the work for a small business This alone would not make Rivers an ostensible subcontractor

Activity 118-2 Conference room

Question Connie What factors led to the appeal being denied

Choice 1 There is ostensible subcontracting based on the fact that the proposed subcontractor

was the incumbent contractor and thus ineligible for award - Proceed to screen 127

Choice 2 CFR 121103(h)(4) states that only the terms of the proposal are applicable to

determining the teaming agreement between the prime and subcontractor - Proceed to screen

120

Screen 120 Conference room

Ian I believe this is an incorrect assumption All aspects of the relationship between CDI and

Rivers are to be considered

Screen 121 Conference room

Connie Letrsquos reference back to the ruling and the reason why there was an ostensible

subcontract

Screen 122 Conference room

Connie It appears that there was ostensible subcontracting based on the fact that the

proposed subcontractor was the incumbent contractor and thus ineligible for award the prime

contractor proposed to hire the majority of the workforce from the subcontractor the prime

contractors proposed program manager previously served as program manager for the

subcontractor on incumbent contract and the prime contractor lacked experience with

projects of the magnitude required of this procurement - Proceed to screen 127

Screen 123 Conference room

Ian I believe this is an incorrect assumption All aspects of the relationship between CDI and

Rivers are to be considered

Activity 118-3 conference room

Question Ian What factors led to the appeal being denied

Choice 1 Rivers was a large business and thus ineligible for the award - Proceed to screen 124

Choice 2 There is ostensible subcontracting based on the fact that the proposed subcontractor

was the incumbent contractor and thus ineligible for award - Proceed to screen 127

Screen 124 Conference room

Ian I believe that is an incorrect assumption since Rivers was only going to perform 43 percent

of the work for a small business This alone would not make Rivers an ostensible subcontractor

Screen 125 Conference room

Connie Letrsquos reference back to the ruling and the reason why there was an ostensible

subcontract

Screen 126 Conference room

Connie It appears that there was ostensible subcontracting based on the fact that the

proposed subcontractor was the incumbent contractor and thus ineligible for award the prime

contractor proposed to hire the majority of the workforce from the subcontractor the p rime

contractors proposed program manager previously served as program manager for the

subcontractor on incumbent contract and the prime contractor lacked experience with

projects of the magnitude required of this procurement

Screen 127 Conference room

FEEDBACK CFR 121103(h)(4) states all aspects of the relationship between the prime and the

subcontractor are to be considered including but not limited to the terms of the proposal such

as contract management and the percentage of subcontract work agreement between the

prime and subcontractor and whether the subcontractor is the incumbent contractor and is

ineligible to submit a proposal because it exceeds the applicable size standard

Screen 128 Conference room

Connie I think we are good here Thank you for meeting Talk to you later

Screen 129 Conference room

SUMMARY Small Businesses are subject to a size protest on a small business set-aside before

award of a contract The SBA will normally make a determination of size status within 15 days

of receipt of protest To be considered by the SBA it is necessary that the protest be specific

and timely

FAR 19302 and 13 CFR Part 121 provide the specific rules for submitting a size representation

An appeal can be made to the SBA Office of Hearing and Appeals for re-consideration of an SBA

Area Office size protest decision In determining size protests the SBA will consider receipts

number of employees and affiliations of the protested concerns In examining affiliations the

SBA will look for an ostensible subcontracting relationship in which the subcontractor that

performs primary and vital requirements of a contract or a subcontractor upon which the prime

contractor is unusually reliant

If affiliation is found and the prime and the sub are considered large due then award cannot

be made If a size protest is not submitted timely or does not contain sufficient information to

make a size determination the protest will be dismissed The SBP role is to ensure that the

organization is aware of the regulations governing the SBA size protests

When a Small Business size representation protest andor an appeal to a size protest is

received the SBPs role is to advise and assist the acquisition team and Contracting Officer with

interpretation and application of corresponding FAR Part 19 and SBA 13 CFR requirements The

SBP may also advise the offeror or contractor on the procedures for submitting a protest prior

to issuing a solicitation After the solicitation has been issued all communication must be

through the Contracting Officer While this scenario discusses the procedures for a small

business representation protest the SBP needs to be aware that the socio-economic programs

ie HUBZones SDVOSB 8(a) and WOSB each have slightly different procedures which are set-

forth in FAR Part 19 Close attention must be made to both the applicable FAR Part 19 and SBA

13 CFR 121 requirements to provide proper advice and guidance on each type of protest and

appeal

Screen 130 Conference room This concludes the simulation The After Action Report (AAR) has

been created Download the AAR and review your performance in the simulation

After viewing the AAR use the browser close button to close this simulation and return to

screen 3 in the Size Protest lesson to complete this lesson

SBP220 Business Decisions for Small Business lesson 11 - Size Pr otest Simulation RESOURCES I PRINT I HELP

Summary

I Poge 5 of6 I Back Next

SBP220 Business Decisions for Small Business lesson 11 - Size Protest Simulation RESOURCES 1 PRINT 1 HELP

Summary

Closed Captioning Congratulations you have completed the Size Protest Simulation During this simulation you participated in activities common to interpreting data to verify the size of a small business Ensure that you review your After Action Report and if you did not respond correctly to all activities consider going through the simula tion again

I Pogo 5of6 I Back Next

SBP220 Business Decisions for Small Business lesson 11 - Size Protest Simulation RESOURCES I PRINT I HELP

Summary

Poge 5of6 I Back Next

SBP220 Business Decisions for Small Business Lesson 11 - Size Pr otest Simulation RESOURCES j PRINT j HElP

Lesson Completion

You have comple ted the con tent for this lesson

To continue select another lesson from the Table of Con tents on the le f t

If you have closed or hidden the Table of Contents select the Show T OC button at the t op in the Atlas navigation bar

~ I P o ge 6 of6 I Back Next

SBP220 Business Decisions for Small Business lesson 11 - Size Pr otest Simulation RESOURCES I PRINT I HELP

Simulation Character s

You will interact with several characters in the simulated environment These characters include

bull Connie - Contracting Officer bull Asha - Program Manager bull Ruben - Senior SBP bull Jenny - Contrac t Specialist bull I an - Legal Representative bull Janet - SBA PCR bull Phil - Contrac tor (ELMO) bull Grace - Contrac tor (CD)

~ I Poge3of 6 I Back Next

SBP220 Business Decisions for Small Business Lesson 11- Size Protest Simulation RESOURCES I PRINT 1 HELP

Simulation Characters

You will interact with several characters in the simulated environment These characters include

bull Connie - Contracting Officer bull Asha - Program Manager bull Ruben - Senior SBP bull Jenny - Contract Specialist bull Ian - Legal Representative bull Janet - SBA PCR bull Phil - Contractor (ELMO) bull Grace - Contractor ( CD)

Closed Captioning Your simulation characters were also introduced earlier but here is a quick reminder of who the characters are and their roles in the simulation Select Next to launch the simulation

~ I Page3of6 I Back Next

SBP220 Business Decisions for Small Business lesson 11 - Size Protest Simulation RESOUR CES I PRINT I HELP

Simulation Ch ar acter s

You will interact with several characters in the simulated environment These characters include

bull Connie bull Contracting Officer bull Asha bull Program Managerbull Ruben bull Senior SBIP_______

bull Jenny bull Contrac t l ong Descrip tion bull I an bull Legal Re1oresl bull Janet bull SBA PCR You will interac t with several characters in the simulated bull Phil bull Contractor environment These characters include bull Grace bull Contrabullctorl

bull Connie - Contracting Officer bull Asha - Program Manager bull Ruben - Senior SBP bull Jenny - COntract Specialist bull Ian - legal Representative bull Janet - SBA PCR bull Phil - COntractor (ELMO) bull Grace - COntractor (COl)

~ I Poge 3of6 I Back Next

SBP220 Business Decisions for Small Business Lesson 11 - Size Protest Simulation RESOURCES I PRINT I HELP

Size Protest Simulation

This simulation will open and be conducted in a separate window Once you begin you are an Actor and must initiate the necessary actions to progress through the simulation Pay careful attention to the instructional prompts to determine what to do next Your Tablet is a valuable resource and will allow you to research the FAR DFARS and many other pertinent Federal and DOD Acquisition Websites and reference materials

Throughout the simulation you will make many business decisions involving knowledge and judgment When you apply your knowledge and exercise good judgment in providing guidance your actions will be affirmed with FEED BACK screens However when you incorrectly apply your knowledge and exercise poor judgement in providing guidance your credibility as a small business professional is on the line

You never want to tarnish your credibility as a consummate small business professional It is good to recognize mistakes and learn from them quickly Therefore if you make incorrect decisions in this simulation you will learn of them through the CONSEQU ENCE O F YOUR ACTIONS screen as you progress through the simulation

Select the Size Protest image below to launch the simulation The simulation will open in a new window After comple all simulation activities return to this screen and select Next to continue

Back Next

SBP220 Business Decisions for Small Business l esson 11 -Size Protest Simulation RESOURCES I PRINT 1 HELP

Size Protest Simulation

This simulation will open and be conducted in a separate window Once you begin you are an Actor and must initiate the necessary actions to progress through the simulation Pay careful attention to the instructional prompts to determine what to do next Your Tablet is a valuable resource and will allow you to research the FAR DFARS and many other pertinent Federal and DOD Acquisition Websites and reference materials

Throughout the simulation you will make many business decisions involving knowledge and judgment When you apply your knowledge and exercise good judgment in providing guidance your actions will be affirmed with FEEDBACK screens However when you incorrectly apply your knowledge and exercise poor judgement in providing guidance your credibility as a small business professional is on the line

You never want to tarnish your credibility as a consummate small business professional It is good to recognize mistakes and learn from them quickly Therefore if you make incorrect decisions in this simulation you will learn of them through the CONSEQU ENCE O F YOUR ACTIONS screen as you progress through the simulation

Select the Size Protest image below to launch the simulation The simulation will open in a new window After ting all simulation activities return to this screen and select Next to continue

Closed Capt ioning This simulation will open and be conducted in a separate window Once you begin you are an actor and must initiate the necessary actions to progress through the simulation Pay careful attention to the instructional prompts to determine what to do next Your Tablet is a valuable resource and will allow you to research the FAR DFARS and many other pertinent Federal and DOD Acquisition Websites and reference materials

Select Size Protest Simulation to begin

Back Next

Screen 1 Your Office This acquisition is a small business set-aside for a follow on contract for

security guard services Corporate Defenders Inc (CDI) is the apparent successful offeror CDIs

primary subcontractor is Rivers who is the incumbent contractor and will be providing

management support as well as some of their employees for this follow-on effort East Lake

Management Operation (ELMO) received their Pre-award notice IAW FAR 15503(a)(2)(ii)

indicating that CDI is the apparent successful offeror They have decided to protest the small

business representation for CDI based on the affiliation with Rivers While sitting at your desk

you notice you have a new voicemail

Connie Hello I am just checking with you to make sure you are available to meet with Jenny

our Contracting Specialist concerning the East Lake size protest of the apparent award to CDI I

will be out for a couple of weeks and she will be watching over things in my absence Please

meet her in the conference room at 100pm By the way I left the abstract from the CDI

proposal in your inbox

Screen 2 Your Office Open the Abstract of CDI Document

Screen 3 Conference Room Jenny Thanks for coming in Now that we have sent a Pre-award

notice that CDI is the apparent successful offeror I see that East Lake is protesting the size

status based on affiliation with Rivers With Connie being out I need some guidance What are

the procedures for a size protest

Activity 3-1 Conference Room Jenny How can an offeror protest a small business size

representation

Choice 1 As stated in FAR 19302(c)(2) the protest or confirmation of the protest if initiated

orally shall be in writing Proceed to screen 21

Choice 2 As stated in FAR 19302(c)(2) an offeror can only protest orally and then must follow-

up with a written protest Proceed to screen 4

Choice 3 A protest may be made orally if it is confirmed in writing and received by the

Contracting Officer within the 30-day period or by letter postmarked no later than 1 business

day after the oral protest (FAR 19302(d)(1)(i)) Proceed to screen 12

Screen 4 Conference Room

Jenny Really I will inform the offeror that they can only submit the protest orally Thank you

for your time I assume I will have more questions

Screen 5 Your Office THE NEXT DAY - Coming back from lunch you notice that you have a

voicemail

Phil Hello My name is Phil I am the owner of the small business East Lake Management

Operation better known as ELMO I am in the process of sending in a size protest Jenny

informed me that I could only protest orally I called SBA and they told me that the protest

could be in writing I am not pleased I will be citing this in the written protest

Screen 6 Your Office You have called Ruben the senior SBP to keep him informed of the

events

Ruben Hello this is Ruben Thanks for the back brief of events You need to ensure that you

learn the policies and provide accurate counselling If you are in doubt please review the

regulations It will be an embarrassment if this is written up in the protest

Screen 7 Your Office CONSEQUENCE OF YOUR ACTIONS Requiring all protests to be oral is not

consistent with FAR policy While FAR 19302(c)(2) allows size representation protests to be

initially submitted orally they must be followed up in writing protests can also be initially

submitted in writing All size representation protests must include the basis for the protest with

specific detailed evidence to support the allegation that the offeror is not small As a SBP it is

important that you provide accurate policy guidance when advising industry and Government

personnel to ensure you maintain credibility as a small business expert

Screen 8 Your office

Ruben Do you now understand the regulation How can an offeror protest a small business

size representation

Activity 3-2 Your office Ruben How can an offeror protest a small business size

representation

Choice 1 As stated in FAR 19302(c)(2) The protest or confirmation of the protest if initiated

orally shall be in writing Proceed to screen 20

Choice 2 A protest may be made orally if it is confirmed in writing and received by the

Contracting Officer within the 30-day period or by letter postmarked no later than 1 business

day after the oral protest (FAR 19302(d)(1)(i)) Proceed to screen 9

Screen 9 Your office

Ruben That is incorrect A protest may be made orally within the 5-day period if it is confirmed

in writing and received by the Contracting Officer or by letter postmarked no later than 1

business day after the oral protest

Screen 10 Your office CONSEQUENCE OF YOUR ACTIONS Advising a concern that they have 30

days to submit a protest would result in the SBA denying the protest as untimely While it is the

responsibility of the contractor to know what the FAR requires providing incorrect advice and

counsel too often will adversely impact your credibility and reputation as a SBP and expert in

your field

Screen 11 Your office

Ruben Please contact the offeror and Jenny to inform them of the correct regulation I have to

reiterate that even though industry is responsible for knowing the FAR rules we cannot provide

false advice Have a good day and let me know if you need anything Proceed to screen 22

Screen 12 Conference Room

Jenny Really I will inform the offeror that a protest may be made orally if it is confirmed in

writing and received by the Contracting Officer within the 30-day period Thank you for clearing

that up for me

Screen 13 Your office THE NEXT DAY - Coming back from lunch you notice that you have a

voicemail

Phil Hello My name is Phil I am from ELMO I am in the process of sending in a size protest

Jenny informed me that I had up to 30 days That sounded suspicious so I called SBA They

informed me a protest may be made orally within the 5-day period if it is confirmed in writing

and received by the Contracting Officer or by letter postmarked no later than one business day

after the oral protest I am not pleased I will be citing this in the written protest

Screen 14 Your office THE NEXT DAY - You have contacted Ruben the senior SBP to keep him

informed of the events

Ruben Hello this is Ruben Thanks for the back brief of events You need to ensure that you

learn the policies and provide accurate counselling If you are in doubt please review the

regulations It will be an embarrassment if this is written up in the protest

Screen 15 Your office CONSEQUENCE OF YOUR ACTIONS Advising a concern that they have 30

days to submit a protest would result in the SBA denying the protest as untimely While it is the

responsibility of the contractor to know what the FAR requires providing incorrect advice and

counsel too often will adversely impact your credibility and reputation as a SBP and expert in

your field

Screen 16 Your office

Ruben Do you now understand the regulation How can an offeror protest a small business

size representation

Activity 3-3 Your office

Question Ruben How can an offeror protest a small business size representation

Choice 1 As stated in FAR 19302(c)(2) an offeror can only protest orally and then must

follow-up with a written protest Proceed to screen 17

Choice 2 As stated in FAR 19302(c)(2) The protest or confirmation of the protest if initiated

orally shall be in writing Proceed to screen 20

Screen 17 Your office

Ruben That is incorrect A protest may be made orally within the 5-day period if it is confirmed

in writing and received by the Contracting Officer or by letter postmarked no later than 1

business day after the oral protest

Screen 18 Your Office CONSEQUENCE OF YOUR ACTIONS Advising a concern that they have 30

days to submit a protest would result in the SBA denying the protest as untimely While it is the

responsibility of the contractor to know what the FAR requires providing incorrect advice and

counsel too often will adversely impact your credibility and reputation as a SBP and expert in

your field

Screen 19 Your office

Ruben Please contact the offeror and Jenny to inform them of the correct regulation I have to

reiterate that even though industry is responsible for knowing the FAR rules we cannot provide

false advice Have a good day and let me know if you need anything Proceed to screen 22

Screen 20 Your office

Ruben That is correct Please contact the offeror and Jenny to inform them of the correct

regulation Have a good day and let me know if you need anything

Screen 21 Conference room

Jenny Thank you for clearing that up for me If I need further assistance Ill give you a call

Screen 22 Your office FEEDBACK A protest may be made orally within the 5-day period if it is

confirmed in writing and received by the Contracting Officer or by letter postmarked no later

than 1 business day after the oral protest (FAR 19302(d)(1)(i)) A Contracting Officer may

submit a size protest at any time before or after award and it is considered timely (FAR

19302(d)(2))

You have completed the tasks Ruben asked you to perform It is the end of the week You have

closed your computer and stored your documents away You head for the lobby

Screen 23 Lobby TWO DAYS LATER - As you return to work on Monday morning you run into

Asha in the lobby

Asha Good morning Just wanted to inform you that ELMO wants to send a protest stating that

they had evidence that CDI was large and therefore should not be considered for the award of

any small business set-aside contract for our Army base Have a great day

Screen 24 Your office Entering your office you get a phone call

Phil Hello this is Phil from ELMO I am assuming you heard about the protest Before we send

in the protest letter could you please tell me what is required for a size protest to be

considered by SBA

Activity 24-1 Your office

Question Phil In accordance with 13 CFR 1211007 what is required for a protest of size

status to be considered by SBA

Choice 1 A concern is considered a small and a large depending on the particular size standard

Proceed to screen 25

Choice 2 The size protest must demonstrate that the offeror being protested is considered

large based on presumed affiliation with a large business Proceed to screen 33

Choice 3 The size status protest must relate to a particular procurement and be specific to

provide reasonable notice as to the grounds upon which the protested concerns size is

questioned Proceed to screen 42

Screen 25 Your office

Phil Thank you I will send out the protest later today

Screen 26 Your office Entering your office you notice you have an e-mail

To Acquisition Team

From Connie Contracting Officer

Subject Size Protest E-mail Attachment Protest Letter

Hello

Just wanted to inform the SBA would not act on ELMOs protest I have received notice that the size protest is not being considered

I have also attached a copy of the protest

VR

Connie Contracting Officer

Screen 27 Your office Ruben meets with you weekly to review the status of acquisitions and

discuss any lessons learned During this weekly meeting you inform Ruben about the mistake

you made in informing the protestor that a concern is considered a small and a large depending

on the particular size standard

Ruben You do realize that a concerns size can fluctuate between small and large depending on

the particular procurement assigned NAICS size standards If you counsel industry you need to

realize this

Screen 28 Your office CONSEQUENCE OF YOUR ACTIONS 13 CFR 1211007(a) A protest

challenging the size of a concern which does not pertain to a particular procurement or sale will

not be acted on by SBA While it is true that a concern can be small andor large depending on

the procurements NAICS code and corresponding size standard the size protest would be

denied because it must be related to a particular procurement

Screen 29 Your office

Ruben Did you take a look at 13 CFR 1211007 What is required for a size protest to be

considered by SBA

Activity 24-2 Your office

Question Ruben In accordance with 13 CFR 1211007 what is required for a size protest to be

considered by SBA

Choice 1 The size status protest must relate to a particular procurement and be specific to

provide reasonable notice as to the grounds upon which the protested concerns size is

questioned Proceed to screen 41

Choice 2 The size protest must demonstrate that the offeror being protested is considered

large based on presumed affiliation with a large business Proceed to screen 30

Screen 30 Your office

Ruben Thatrsquos not quite right The protest must be sufficiently specific to prove affiliation Some

basis for the belief must be stated The SBA would not act on the protest IAW CFR 1211007(c)

the SBA protest regulations

Screen 31 Your office CONSEQUENCE OF YOUR ACTIONS 13 CFR 1211007(c) Non-specific

protests will be dismissed The protestor must present proof of affiliation and also relate it to a

specific procurement The protest would be denied because it is not specific The protestor sent

a copy of the protest stating there was presumed affiliation with a large business and therefore

should not be considered for the award of any small business set-aside contract

Screen 32 Your office

Ruben You cannot keep informing industry and the agency in this way You need to refer to the regulations before giving advice I will need to report this to the commander Do not give any more advice without looking at the regulations I will see you next month Proceed to screen 43

Screen 33 Your office

Phil Thank you I will send out the protest later today

Screen 34 Your office

To Acquisition Team

From Connie Contracting Officer

Subject Size Protest Attachment Protest Letter

Hello

Just wanted to inform the SBA would not act on ELMOs protest I have received notice that the size protest is not being considered

I have also attached a copy of the protest

VR

Connie

Contracting officer

Screen 35 Your office Ruben and yourself have monthly general follow-on discussions to discuss the progress of the acquisition and discuss any lessons learned You inform Ruben about the mistake you made

Ruben The protest must be sufficiently specific to prove affiliation Some basis for the belief must be stated The SBA would not act on the protest IAW CFR 1211007(c) the SBA protest regulations

Screen 36 Your office CONSEQUENCE OF YOUR ACTIONS 13 CFR 1211007(a) A protest challenging the size of a concern which does not pertain to a particular procurement or sale will not be acted on by SBA While it is true that a concern can be small andor large depending on the procurements NAICS code and corresponding size standard the size protest would be denied because it must be related to a particular procurement

Screen 37 Your office

Ruben Did you take a look at 13 CFR 1211007 What is required for a protest of size to be considered by SBA

Activity 24-3 Your office

Question Ruben In accordance with 13 CFR 1211007 what is required for a size protest to be

considered by SBA

Choice 1 A concern is considered a small and a large depending on the particular size standard

Proceed to screen 38

Choice 2 The size status protest must relate to a particular procurement and be specific to

provide reasonable notice as to the grounds upon which the protested concernrsquos size is

questioned Proceed to screen 41

Screen 38 Your office

Ruben You do realize that a concerns size can fluctuate between small and large depending on

the particular procurement assigned NAICS size standards If you counsel industry you need to

realize this

Screen 39 Your office CONSEQUENCE OF YOUR ACTIONS 13 CFR 1211007(a) A protest

challenging the size of a concern which does not pertain to a particular procurement or sale will

not be acted on by SBA While it is true that a concern can be small andor large depending on

the procurements NAICS code and corresponding size standard the size protest would be

denied because it must be related to a particular procurement

Screen 40 Your office

Ruben You cannot keep informing industry and the agency in this way You need to refer to the

regulations before giving advice I will need to report this to the commander Do not give any

more advice without looking at the regulations I will see you next month Proceed to screen 43

Screen 41 Your office

Ruben That is correct In the future do not give any more advice without looking at the

regulations I will see you next month

Screen 42 Your office

Phil Thank you I will send out the protest today Goodbye

Screen 43 Your office FEEDBACK A protest challenging the size of a concern must pertain to a

particular procurement or sale Additionally a size protest must be sufficiently specific to

provide reasonable notice as to the grounds upon which the protested concerns size is

questioned No particular form is prescribed for a protest Where materials supporting the

protest are available they should be submitted with the protest Size protests which do not

meet 13 CFR 1211007 requirements will be dismissed by SBA

Screen 44 Your office TWO DAYS LATER

To You SBP Attachment Protest

From Connie Contracting Officer

Subject Size Protest

Hello

After lunch if you could please meet Jenny and I in the conference room I have received the

protest from ELMO and just want to make sure I handle my part The protest document is

attached to this message Please read it before going to see Jenny

Thanks

Connie

Contracting Officer

Screen 45 Conference room LATER THAT DAY

Connie Thanks for coming by ELMO has submitted their small business size representation protest Could you please tell me what needs to be included

Activity 45-1 Conference room

Question Connie What should a small business size representation protest contain

Choice 1 According to FAR 19302(c) a small business size representation protest shall include

the basis for the protest and a referral letter written by the Contracting Officer with

information pertaining to the solicitation - Proceed to screen 73

Choice 2 According to FAR 19302(c)(3) a small business size representation protest shall

include a referral letter written by the Program Manager with information addressing the

solicitation - Proceed to screen 46

Choice 3 According to FAR 19302(c)(3) a small business size representation protest shall

include a copy of the solicitation and all offerors bid - Proceed to screen 59

Screen 46 Conference room

Connie Oh ok Asha needs to fill out the referral letter Please give her a call

Screen 47 Conference room

Asha Hello Asha speaking How may I help you

Screen 48 Conference room

Connie Hey Asha Itrsquos me Connie I have Jenny and the SBP here with me The SBP has just informed me that the Program Manager needs to fill out the referral letter for the size protest

Screen 49 Conference room

Asha Are you sure I have never filled out a referral letter before What must a small business representation protest need to include

Activity 45-2 Conference room

Question Asha What should a small business size representation protest contain

Choice 1 According to FAR 19302(c)(3) a small business size representation protest shall include a copy of the solicitation and all offerorsrsquo bids - Proceed to screen 50

Choice 2 According to FAR 19302(c) a small business size representation protest shall include the basis for the protest and a referral letter written by the Contracting Officer with information pertaining to the solicitation - Proceed to screen 73

Screen 50 Conference room

Asha Ok if you want me to fill out the referral letter I can have it completed by tomorrow You will need to gather the solicitation and offerorsrsquo bids

Screen 51 conference room

Connie Thank you Asha

Screen 52 Your office TWO DAYS LATER - As you enter your office the phone rings

Asha Hello this is Asha I just wanted to let you know that the SBA has returned the protest They stated that the Contracting Officer needs to fill out the referral letter SBA also included a list of items that the protest package should contain I left the list in your inbox

Screen 53 Your office read the protest package that is in your inbox

Screen 54 Your office THREE DAYS LATER

Asha I will get with Connie to make sure what the correct information gets sent to the SBA Bye

Screen 55 Conference room Connie has called a meeting of the team to discuss the size protest from ELMO

Connie Thank you everyone for coming As you all know the protest has slowed down the process of awarding the contract This mishap about who should fill out the referral letter has caused us even more delay which potentially will impact the delivery schedule

Screen 56 Conference room

Connie The protest package has been completed and sent back to the SBA Everything should be in order and now we just wait to hear back from the SBA I brought in copies of the referral letter and the CDI representation letter for everyone to take a look at

Screen 57 Conference room Read the Size Determination document

Screen 58 Conference room CONSEQUENCE OF YOUR ACTIONS The SBA sent back the protest This resulted in a delay of SBAs protest decision As a result there may be potential

delays for contract award and impacts to the programs overall costperformanceschedule

baseline

Screen 59 Conference room

Jenny Oh ok we just need to include the solicitation and all of the offerors bids I can gather

that information up in no time

Screen 60 Conference room

Connie Are you sure that is correct I thought somewhere in the regulations I read that we

were supposed to supply a letter and that the protester was supposed to come up with all the

other information

Activity 45-3 Conference room

Question Connie What should a small business size representation protest contain

Choice 1 According to FAR 19302(c) a small business size representation protest shall include

the basis for the protest and a referral letter written by the Contracting Officer with

information pertaining to the solicitation - Proceed to screen 73

Choice 2 According to FAR 19302(c)(3) a small business size representation protest shall

include a referral letter written by the Program Manager with information addressing the

solicitation - Proceed to screen 61

Screen 61 Conference room

Connie Oh ok Asha needs to fill out the referral letter Letrsquos give her a call

Screen 62 Conference room

Asha Hello Asha speaking How may I help you

Screen 63 Conference room

Connie Hey Asha Itrsquos me Connie I have Jenny and the SBP here with me The SBP has just

informed me that the Program Manager needs to fill out the referral letter for the size protest

Screen 64 Conference room

Asha Sure I can fill out the referral letter Irsquoll have it completed by tomorrow Bye

Screen 65 Conference room

Connie Once I receive the letter from Asha I will send it off to SBA Thanks Have a great rest of your day

Screen 66 Hour office TWO DAYS LATER - As you enter your office the phone rings

Asha Hello this is Asha I just wanted to let you know that the SBA has returned the protest They stated that the Contracting Officer needs to fill out the referral letter SBA also included a list of items that the protest package should contain I left the list in your inbox

Screen 67 Your office

Asha I will get with Connie to make sure that the correct information gets sent to the SBA Bye

Screen 68 Your office Read the Protest Package letter

Screen 69 Conference room THREE DAYS LATER - Connie has called a meeting of the team to discuss the size protest from ELMO

Connie Thank you everyone for coming As you all know the protest has slowed down the

process of awarding the contract This mishap about who should fill out the referral letter has

cause us even more delay which potentially will impact the delivery schedule

Screen 70 conference room

Connie The protest package has been completed and sent back to the SBA Everything should be in order and now we just wait to hear back from the SBA I brought in copies of the referral letter and the CDI representation letter for everyone to take a look at

Screen 71 Conference room Read the Referral Letter CDI Representation and Size Determination documents

Screen 72 Conference room CONSEQUENCE OF YOUR ACTIONS The SBA sent the protest back This has resulted in a delay in the SBA deciding the protest and potential delay of award of the contract which could result in a delay in performance of delivery or service resulting in additional costs to the Government

Screen 73 Conference room

Connie Thatrsquos it Ok I can definitely take care of that today Thank you

Screen 74 Your office It has been several days since you spoke to Connie about the small

business representation protest requirements As you sit down to start your day you notice you

have a voicemail

Jenny Hello Can you stop by the conference room when you get this message Thanks

Screen 75 Conference room

Connie Hello Thanks for coming I just wanted to inform you that the protest package has

been completed and sent back to the SBA Everything should be in order and now we just wait

to hear back from the SBA I brought in copies of the referral letter and the CDI representation

letter for everyone to take a look at

Screen 76 Conference room Read the Referral Letter CDI Representation and Size

Determination documents

Screen 77 Conference room

FEEDBACK According to FAR 19302(c)(3) a small business representation protest shall include

the basis of the protest and include a referral letter signed by the Contracting Officer with

information pertaining to the solicitation and include (i) the protest and any accompanying

materials (ii) a copy of the size self-certification (iii) Identification of applicable size standard

(iv) a copy of the electronic link to the solicitation and any amendments (v) the name address

telephone number email address and number of the Contracting Officer (vi) identification of

the bid opening date or date of notification provided to unsuccessful offerors (vii) the date the

Contracting Officer received the protest (viii) a complete address and point of contact for the

protested concern An offeror the SBA or another interested party may protest the small

business representation of an offeror in a specific offer (FAR 19302(a)(2)) For competitive 8(a)

contracts the filing of a protest is limited to the Contracting Officer an offeror or the SBA The

Contracting Officer may also submit a small business representation protest at any time before

or after award (FAR 19302(a) and (b))

Screen 78 Your office A WEEK LATER - As you come back from lunch with Janet you get a visit

from Jenny She has not heard anything about the protest for several days and would like

clarification on the protest process with the SBA

Jenny Hi I just wanted to clarify the notification process of the protest It has been five days

since the documents were submitted to the SBA and we have not heard anything as of yet

Connie also gave me this form that I am unfamiliar with I put it in your inbox

Screen 79 Your office Read the SBA Form 355

Screen 80 Your office

Jenny Hey Janet what is the SBA Government Contracting Area Directors process after

receiving a size determination protest

Screen 81 Your office

Janet When SBA receives a size protest the SBA Area Director for Government Contracting or

designee will notify the contracting officer the protested concern and the protestor that the

protest has been received SBA will provide a blank copy of SBA Form 355 Application for Small

Business Determination to the concern whose size is at issue The protested concern or

concern whose size is at issue must return the completed SBA Form 355 and all other requested

information to SBA within 3 working days from the date of receipt of the blank form from SBA

SBA has discretion to grant an extension of time to file the form After receipt of a protest or a

request for a formal size determination the SBA Area Office will issue a formal size

determination within 15 business days if possible or within an extension granted by the

Contracting Officer in accordance with FAR 19302(e)

Screen 82 Your office

Jenny Thank you for clarifying the process Irsquoll see you both later

Screen 83 Your office

Janet Yes I have to get back to the office too Irsquoll see you later

Screen 84 Your office THE NEXT DAY - You re-enter your office from a break and receive a

phone call

Jenny Hello I forgot to ask when the Contracting Officer may award a contract that has a small

business size protest

Activity 84-1 Your office

Question Jenny When may the Contracting Officer award a contract that has been protested

Choice 1 Only after the SBA makes a determination of the small business representation

protest - Proceed to screen 85

Choice 2 When the SBA makes a decision or 15 business days have expired whichever comes

first however the CO may award a contract before an SBA determination is made when he

makes a written determination that award must be made to protect public interest - Proceed

to screen 105

Choice 3 The Contracting Officer does not have to wait for SBA to make the determination -

Proceed to screen 95

Screen 85 Your office

Jenny Ok so I guess we just wait until the SBA makes a determination Thanks

Screen 86 Program Managerrsquos Office THE NEXT DAY - Asha has requested that you come by

her office As you walk into Asharsquos office Connie is already there

Asha Connie was just informing me that she has decided to wait on SBAs decision about the

protest before awarding the contract Just want to inform the both of you that the incumbent

contract expires 18 days after the submittal of the protest to the SBA

Screen 87 Program Managerrsquos Office

Connie That is a good point Asha The risk of me waiting too long will result in expiration of the

contract A lapse between contracts is unacceptable as that may adversely impact the

warfighter

Activity 84-2 Program Managerrsquos Office

Question Connie When may the Contracting Officer award a contract that has been

protested

Choice 1 When the SBA makes a decision or 15 business days have expired whichever comes

first however the CO may award a contract before an SBA determination is made when he

makes a written determination that award must be made to protect public interest - Proceed

to screen 103

Choice 2 The Contracting Officer does not have to wait for SBA to make the determination -

Proceed to screen 88

Screen 88 Program Managerrsquos Office

Connie If that is the case letrsquos wait about a week and then award the contract Thanks

everyone

Screen 90 Your office FIVE DAYS LATER - SBA renders its decision on the required 15th

business day finding that the apparent successful offeror was not eligible for the award

Connie Meeting today at 2 PM

Screen 91 Conference room 2 PM - Connie has called in Asha Jenny and Ian to the

conference room

Connie As you are aware SBA came back with the decision that ELMO was not eligible for the

award Because it is so close to the completion of the source selection we may be able to go

back and award to the offeror that was second in line based on evaluation results

Screen 92 Conference room

Ian We would have to get the acquisition team together with legal SBA and leadership but

we might be able to accomplish that without having to start the procurement over again

Screen 93 Conference room

Connie Thanks everyone I will keep you posted

Screen 94 Conference room CONSEQUENCE OF YOUR ACTIONS Awarding the contract

without waiting for SBA to make a decision on the appeal is a violation of FAR policy (FAR

19302(g)(2) this type of violation could result in significant impacts inclusive of the

Contracting Officer having to terminate the unauthorized contract Additional fallout may occur

by having to re-accomplish the procurement entirely since the source selection was effectively

completed upon award of the unauthorized contract to the ineligible company Reprocurement

risk would be dependent upon the acquisition circumstances timing and viewpoints of the key

stakeholders and decision-makers

FEEDBACK After receiving a size protest involving a new procurement the Contracting Officer

shall not award the contract until the SBA has made a size determination or after 15 business

days have expired whichever comes first However the Contracting Officer may award a

contract before an SBA determination is made when shehe makes a written determination

that award must be made to protect the public interest (FAR 19302(g)(1))

Screen 95 Your office

Jenny Ok I will inform Connie Thanks

Screen 96 COrsquos office LATER THAT DAY - Connie has asked you to come by her office

Connie Hello Thanks for coming by Jenny tells me that you said that we do not need to wait

for SBA to make the determination about the size protest What happens if we award the

contract and then SBA finds the apparent successful offeror was not eligible for the award

Maybe you should double check the regulation

Activity 84-3 COrsquos office

Question Connie When may the Contracting Officer award a contract that has been

protested

Choice 1 Only after the SBA makes a determination of the small business representation

protest - Proceed to screen 97

Choice 2 When the SBA makes a decision or 15 business days have expired whichever comes

first however the CO may award a contract before an SBA determination is made when he

makes a written determination that award must be made to protect public interest - Proceed

to screen 104

Screen 97 COrsquos office

Connie Ok so I guess we just wait until the SBA makes a determination

Screen 98 Program Managerrsquos Office LATER THAT DAY - Asha has requested that you come by

her office As you walk into Asharsquos office Connie is already there

Asha Connie was just informing me that she has decided to wait on SBAs decision about the

protest before awarding the contract Just want to inform the both of you that the current

contract expires 18 days after the submittal of the protest to the SBA

Screen 99 Program Managerrsquos Office

Connie That is a good point Asha The risk of me waiting too long will result in expiration of the

incumbents contract and work stoppage for security guard services

Screen 100 Program Managerrsquos Office

Asha I looked up the regulation and it states that we should wait up to 15 business days and

then we may award the contract

Screen 101 Program Managerrsquos Office

Connie Thanks That is what we will do and hopefully SBA will respond before the 15 days

Screen 102 Program Managerrsquos Office CONSEQUENCE OF YOUR ACTIONS Not thoroughly

understanding the protest procedures and being uninformed of program needs and imp acts

could result in adverse impacts to the warfighter

FEEDBACK After receiving a size protest involving a new procurement the Contracting Officer

shall not award the contract until the SBA has made a size determination or after 15 business

days have expired whichever comes first However the Contracting Officer may award a

contract before an SBA determination is made when shehe makes a written determination

that award must be made to protect the public interest (FAR 19302(g)(1))

Screen 103 Program Managerrsquos Office

Connie Ok we wait for 15 business days That sounds much better Thanks - Proceed to

screen 106

Screen 104 COrsquos office

FEEDBACK After receiving a size protest involving a new procurement the Contracting Officer

shall not award the contract until the SBA has made a size determination or after 15 business

days have expired whichever comes first However the Contracting Officer may award a

contract before an SBA determination is made when shehe makes a written determination

that award must be made to protect the public interest (FAR 19302(g)(1))

Connie Ok we wait for 15 business days That sounds much better Thanks - Proceed to

screen 107

Screen 105 Your office

FEEDBACK After receiving a size protest involving a new procurement the Contracting Officer shall not award the contract until the SBA has made a size determination or after 15 business days have expired whichever comes first However the Contracting Officer may award a contract before an SBA determination is made when shehe makes a written determination that award must be made to protect the public interest (FAR 19302(g)(1))

Jenny Ok we wait for 15 business days Thanks - Proceed to screen 107

Screen 106 Program Managerrsquos office FEEDBACK After receiving a size protest involving a new procurement the Contracting Officer shall not award the contract until the SBA has made a size determination or after 15 business days have expired whichever comes first However the Contracting Officer may award a contract before an SBA determination is made when shehe makes a written determination that award must be made to protect the public interest (FAR 19302(g)(1))

Screen 107 Your office TWO DAYS LATER - Itrsquos been two days since your conversation with Jenny You notice that you have a new e-mail

To Acquisition Team Attachment Appeal Letter

From Grace CDI Contractor

Subject ELMO protest upheld

Hello

I just heard that ELMOs protest was upheld We believe the decision was based on erroneous information so we want to appeal Can you give me some guidance in the process for submitting an appeal

I have attached the appeal and size determination letters

Sincerely

Grace CDI Contractor

Activity 107-1 Your office

Question Grace What is the process for submitting an appeal for a size protest determination

Choice 1 IAW FAR 19302(h) an appeal may be filed with the SBA Office of Hearings and Appeals by any concern or interested party whose protest of the small business representation of another concern has been denied - Proceed to screen 111

Choice 2 An appeal may be filed by any concern or interested party to protest the small business representation of another concern to the Contracting Officer - Proceed to screen 108

Screen 108 Your office THREE DAYS LATER Connie comes by your office

Connie Hello there I just received the appeal from CDI through the mail channels and realized

that the protestor sent it to me in error I am having Jenny mail the appeal package back to CDI

Screen 109 Your office As you get back to your desk you notice that you have a voicemail

Grace Hello this is Grace from CDI Looks like I sent my appeal to the wrong location I was not

supposed to send it to the Contracting Officer I have re-sent the appeal to SBA OHA I hope

that its not too late because they will deny my appeal if untimely

Screen 110 Your office CONSEQUENCES OF YOUR ACTIONS Filing the appeal with the

Contracting Officer would result in lost time for the protestor because the appeal must be filed

with SBA OHA The concern encounters a greater risk of denial by SBA OHA if the appeal is not

filed within the time frame listed in Subpart C of 13 CFR 134

Screen 111 Your office The agency awaits confirmation from SBA OHA as to the standing of

the appeal and related impacts to the ongoing procurement You leave for the weekend

Screen 112 Your office FEEDBACK An appeal may be filed only when the small business

representation protest has been denied by the SBA Government Contracting Area Director and

within the time frames and in accordance with the procedures outlined in Subpart C of 13 CFR

Part 134 (IAW FAR 19302(h)) While a Contracting officer may file an appeal of their own the

concern or interested party must file the appeal to the SBA Office of Hearings and Appeals

(OHA) within the time frame and in accordance with the procedures listed in Subpart C of 13

CFR 134

Screen 113 Your office You return to the office on Monday morning You have a new e-mail

E-mail CDI appeal

To You SBP

From Connie Contracting Officer

Subject CDI Appeal

Hello

I would like to have a meeting with you and our lawyer Ian and Jenny to review the CDI size

appeal to the SBA Office of Hearings and Appeals Please check your calendar to see if you are

free tomorrow afternoon Let me know if you can make it

Sincerely

Connie

Contracting Officer

Screen 114 Conference room THE NEXT DAY - You Connie Jenny and the departmentrsquos

lawyer Ian are in a conference room

Ian Glad you could make the meeting We have been informed that Corporate Defenders is

appealing the SBAs decision Because of the potential impact the appeals process may have on

our current security guard services and before we make a decision on what we should do

about continuation of those services I would like to discuss the basis of the original size protest

by ELMO in the Corporate Defenders appeal to determine whether we think it will be denied

What was the basis of the original size protest by ELMO in the Corporate Defenders appeal

Screen 115 Conference room

Jenny The basis of the original protest is that Corporate Defenders Inc is affiliated with Rivers

under the ostensible subcontracting rule

Screen 116 Conference room

Connie Now that we have determined it is a size representation issue does this fall within the

affiliation under the ostensible subcontracting rule

Screen 117 Conference room

Ian The regulation defines an ostensible subcontractor as a subcontractor that performs

primary and vital requirements or when the prime contractor is unusually reliant upon the

subcontractor In this case CDI would be relying on the workforce and management of Rivers

to fulfill the requirements of the contract Therefore the combined size standards of CDI and

Rivers exceeds the size standard for this procurement according to 13 CFR 121103(h)(4)

Screen 118 Conference room

Connie The SBA Area Office found that under the ostensible subcontracting rule CDI was

considered a large business because of its affiliation with Rivers CDI appealed the ruling to the

SBA Office of Hearings and Appeals stating that CDI was not overly reliant on Rivers for

performing the contract and that CDI will serve as the prime contractor ELMO argued that

there is an ostensible subcontracting affiliation with CDI and Rivers and that Rivers is a large

business and thus CDI is ineligible for award What factors could lead to the appeal being

denied

Activity 118-1 Conference room

Question Connie What factors led to the appeal being denied

Choice 1 Rivers was a large business and thus ineligible for the award - Proceed to screen 119

Choice 2 CFR 121103(h)(4) states only the terms of the proposal are applicable to determining

the teaming agreement between the prime and subcontractor - Proceed to screen 123

Choice 3 There is ostensible subcontracting based on the fact that the proposed subcontractor

is the incumbent contractor and thus ineligible for award the prime contractor proposed to

hire the majority of the workforce from the subcontractor the prime contractors proposed

program manager previously served as program manager for the subcontractor on incumbent

contract and the prime contractor lacked experience with projects of the magnitude required

of this procurement This makes the offeror ineligible for award - Proceed to screen 127

Screen 119 Conference room

Ian I believe that is an incorrect assumption since Rivers was only going to perform 43 percent

of the work for a small business This alone would not make Rivers an ostensible subcontractor

Activity 118-2 Conference room

Question Connie What factors led to the appeal being denied

Choice 1 There is ostensible subcontracting based on the fact that the proposed subcontractor

was the incumbent contractor and thus ineligible for award - Proceed to screen 127

Choice 2 CFR 121103(h)(4) states that only the terms of the proposal are applicable to

determining the teaming agreement between the prime and subcontractor - Proceed to screen

120

Screen 120 Conference room

Ian I believe this is an incorrect assumption All aspects of the relationship between CDI and

Rivers are to be considered

Screen 121 Conference room

Connie Letrsquos reference back to the ruling and the reason why there was an ostensible

subcontract

Screen 122 Conference room

Connie It appears that there was ostensible subcontracting based on the fact that the

proposed subcontractor was the incumbent contractor and thus ineligible for award the prime

contractor proposed to hire the majority of the workforce from the subcontractor the prime

contractors proposed program manager previously served as program manager for the

subcontractor on incumbent contract and the prime contractor lacked experience with

projects of the magnitude required of this procurement - Proceed to screen 127

Screen 123 Conference room

Ian I believe this is an incorrect assumption All aspects of the relationship between CDI and

Rivers are to be considered

Activity 118-3 conference room

Question Ian What factors led to the appeal being denied

Choice 1 Rivers was a large business and thus ineligible for the award - Proceed to screen 124

Choice 2 There is ostensible subcontracting based on the fact that the proposed subcontractor

was the incumbent contractor and thus ineligible for award - Proceed to screen 127

Screen 124 Conference room

Ian I believe that is an incorrect assumption since Rivers was only going to perform 43 percent

of the work for a small business This alone would not make Rivers an ostensible subcontractor

Screen 125 Conference room

Connie Letrsquos reference back to the ruling and the reason why there was an ostensible

subcontract

Screen 126 Conference room

Connie It appears that there was ostensible subcontracting based on the fact that the

proposed subcontractor was the incumbent contractor and thus ineligible for award the prime

contractor proposed to hire the majority of the workforce from the subcontractor the p rime

contractors proposed program manager previously served as program manager for the

subcontractor on incumbent contract and the prime contractor lacked experience with

projects of the magnitude required of this procurement

Screen 127 Conference room

FEEDBACK CFR 121103(h)(4) states all aspects of the relationship between the prime and the

subcontractor are to be considered including but not limited to the terms of the proposal such

as contract management and the percentage of subcontract work agreement between the

prime and subcontractor and whether the subcontractor is the incumbent contractor and is

ineligible to submit a proposal because it exceeds the applicable size standard

Screen 128 Conference room

Connie I think we are good here Thank you for meeting Talk to you later

Screen 129 Conference room

SUMMARY Small Businesses are subject to a size protest on a small business set-aside before

award of a contract The SBA will normally make a determination of size status within 15 days

of receipt of protest To be considered by the SBA it is necessary that the protest be specific

and timely

FAR 19302 and 13 CFR Part 121 provide the specific rules for submitting a size representation

An appeal can be made to the SBA Office of Hearing and Appeals for re-consideration of an SBA

Area Office size protest decision In determining size protests the SBA will consider receipts

number of employees and affiliations of the protested concerns In examining affiliations the

SBA will look for an ostensible subcontracting relationship in which the subcontractor that

performs primary and vital requirements of a contract or a subcontractor upon which the prime

contractor is unusually reliant

If affiliation is found and the prime and the sub are considered large due then award cannot

be made If a size protest is not submitted timely or does not contain sufficient information to

make a size determination the protest will be dismissed The SBP role is to ensure that the

organization is aware of the regulations governing the SBA size protests

When a Small Business size representation protest andor an appeal to a size protest is

received the SBPs role is to advise and assist the acquisition team and Contracting Officer with

interpretation and application of corresponding FAR Part 19 and SBA 13 CFR requirements The

SBP may also advise the offeror or contractor on the procedures for submitting a protest prior

to issuing a solicitation After the solicitation has been issued all communication must be

through the Contracting Officer While this scenario discusses the procedures for a small

business representation protest the SBP needs to be aware that the socio-economic programs

ie HUBZones SDVOSB 8(a) and WOSB each have slightly different procedures which are set-

forth in FAR Part 19 Close attention must be made to both the applicable FAR Part 19 and SBA

13 CFR 121 requirements to provide proper advice and guidance on each type of protest and

appeal

Screen 130 Conference room This concludes the simulation The After Action Report (AAR) has

been created Download the AAR and review your performance in the simulation

After viewing the AAR use the browser close button to close this simulation and return to

screen 3 in the Size Protest lesson to complete this lesson

SBP220 Business Decisions for Small Business lesson 11 - Size Pr otest Simulation RESOURCES I PRINT I HELP

Summary

I Poge 5 of6 I Back Next

SBP220 Business Decisions for Small Business lesson 11 - Size Protest Simulation RESOURCES 1 PRINT 1 HELP

Summary

Closed Captioning Congratulations you have completed the Size Protest Simulation During this simulation you participated in activities common to interpreting data to verify the size of a small business Ensure that you review your After Action Report and if you did not respond correctly to all activities consider going through the simula tion again

I Pogo 5of6 I Back Next

SBP220 Business Decisions for Small Business lesson 11 - Size Protest Simulation RESOURCES I PRINT I HELP

Summary

Poge 5of6 I Back Next

SBP220 Business Decisions for Small Business Lesson 11 - Size Pr otest Simulation RESOURCES j PRINT j HElP

Lesson Completion

You have comple ted the con tent for this lesson

To continue select another lesson from the Table of Con tents on the le f t

If you have closed or hidden the Table of Contents select the Show T OC button at the t op in the Atlas navigation bar

~ I P o ge 6 of6 I Back Next

SBP220 Business Decisions for Small Business Lesson 11- Size Protest Simulation RESOURCES I PRINT 1 HELP

Simulation Characters

You will interact with several characters in the simulated environment These characters include

bull Connie - Contracting Officer bull Asha - Program Manager bull Ruben - Senior SBP bull Jenny - Contract Specialist bull Ian - Legal Representative bull Janet - SBA PCR bull Phil - Contractor (ELMO) bull Grace - Contractor ( CD)

Closed Captioning Your simulation characters were also introduced earlier but here is a quick reminder of who the characters are and their roles in the simulation Select Next to launch the simulation

~ I Page3of6 I Back Next

SBP220 Business Decisions for Small Business lesson 11 - Size Protest Simulation RESOUR CES I PRINT I HELP

Simulation Ch ar acter s

You will interact with several characters in the simulated environment These characters include

bull Connie bull Contracting Officer bull Asha bull Program Managerbull Ruben bull Senior SBIP_______

bull Jenny bull Contrac t l ong Descrip tion bull I an bull Legal Re1oresl bull Janet bull SBA PCR You will interac t with several characters in the simulated bull Phil bull Contractor environment These characters include bull Grace bull Contrabullctorl

bull Connie - Contracting Officer bull Asha - Program Manager bull Ruben - Senior SBP bull Jenny - COntract Specialist bull Ian - legal Representative bull Janet - SBA PCR bull Phil - COntractor (ELMO) bull Grace - COntractor (COl)

~ I Poge 3of6 I Back Next

SBP220 Business Decisions for Small Business Lesson 11 - Size Protest Simulation RESOURCES I PRINT I HELP

Size Protest Simulation

This simulation will open and be conducted in a separate window Once you begin you are an Actor and must initiate the necessary actions to progress through the simulation Pay careful attention to the instructional prompts to determine what to do next Your Tablet is a valuable resource and will allow you to research the FAR DFARS and many other pertinent Federal and DOD Acquisition Websites and reference materials

Throughout the simulation you will make many business decisions involving knowledge and judgment When you apply your knowledge and exercise good judgment in providing guidance your actions will be affirmed with FEED BACK screens However when you incorrectly apply your knowledge and exercise poor judgement in providing guidance your credibility as a small business professional is on the line

You never want to tarnish your credibility as a consummate small business professional It is good to recognize mistakes and learn from them quickly Therefore if you make incorrect decisions in this simulation you will learn of them through the CONSEQU ENCE O F YOUR ACTIONS screen as you progress through the simulation

Select the Size Protest image below to launch the simulation The simulation will open in a new window After comple all simulation activities return to this screen and select Next to continue

Back Next

SBP220 Business Decisions for Small Business l esson 11 -Size Protest Simulation RESOURCES I PRINT 1 HELP

Size Protest Simulation

This simulation will open and be conducted in a separate window Once you begin you are an Actor and must initiate the necessary actions to progress through the simulation Pay careful attention to the instructional prompts to determine what to do next Your Tablet is a valuable resource and will allow you to research the FAR DFARS and many other pertinent Federal and DOD Acquisition Websites and reference materials

Throughout the simulation you will make many business decisions involving knowledge and judgment When you apply your knowledge and exercise good judgment in providing guidance your actions will be affirmed with FEEDBACK screens However when you incorrectly apply your knowledge and exercise poor judgement in providing guidance your credibility as a small business professional is on the line

You never want to tarnish your credibility as a consummate small business professional It is good to recognize mistakes and learn from them quickly Therefore if you make incorrect decisions in this simulation you will learn of them through the CONSEQU ENCE O F YOUR ACTIONS screen as you progress through the simulation

Select the Size Protest image below to launch the simulation The simulation will open in a new window After ting all simulation activities return to this screen and select Next to continue

Closed Capt ioning This simulation will open and be conducted in a separate window Once you begin you are an actor and must initiate the necessary actions to progress through the simulation Pay careful attention to the instructional prompts to determine what to do next Your Tablet is a valuable resource and will allow you to research the FAR DFARS and many other pertinent Federal and DOD Acquisition Websites and reference materials

Select Size Protest Simulation to begin

Back Next

Screen 1 Your Office This acquisition is a small business set-aside for a follow on contract for

security guard services Corporate Defenders Inc (CDI) is the apparent successful offeror CDIs

primary subcontractor is Rivers who is the incumbent contractor and will be providing

management support as well as some of their employees for this follow-on effort East Lake

Management Operation (ELMO) received their Pre-award notice IAW FAR 15503(a)(2)(ii)

indicating that CDI is the apparent successful offeror They have decided to protest the small

business representation for CDI based on the affiliation with Rivers While sitting at your desk

you notice you have a new voicemail

Connie Hello I am just checking with you to make sure you are available to meet with Jenny

our Contracting Specialist concerning the East Lake size protest of the apparent award to CDI I

will be out for a couple of weeks and she will be watching over things in my absence Please

meet her in the conference room at 100pm By the way I left the abstract from the CDI

proposal in your inbox

Screen 2 Your Office Open the Abstract of CDI Document

Screen 3 Conference Room Jenny Thanks for coming in Now that we have sent a Pre-award

notice that CDI is the apparent successful offeror I see that East Lake is protesting the size

status based on affiliation with Rivers With Connie being out I need some guidance What are

the procedures for a size protest

Activity 3-1 Conference Room Jenny How can an offeror protest a small business size

representation

Choice 1 As stated in FAR 19302(c)(2) the protest or confirmation of the protest if initiated

orally shall be in writing Proceed to screen 21

Choice 2 As stated in FAR 19302(c)(2) an offeror can only protest orally and then must follow-

up with a written protest Proceed to screen 4

Choice 3 A protest may be made orally if it is confirmed in writing and received by the

Contracting Officer within the 30-day period or by letter postmarked no later than 1 business

day after the oral protest (FAR 19302(d)(1)(i)) Proceed to screen 12

Screen 4 Conference Room

Jenny Really I will inform the offeror that they can only submit the protest orally Thank you

for your time I assume I will have more questions

Screen 5 Your Office THE NEXT DAY - Coming back from lunch you notice that you have a

voicemail

Phil Hello My name is Phil I am the owner of the small business East Lake Management

Operation better known as ELMO I am in the process of sending in a size protest Jenny

informed me that I could only protest orally I called SBA and they told me that the protest

could be in writing I am not pleased I will be citing this in the written protest

Screen 6 Your Office You have called Ruben the senior SBP to keep him informed of the

events

Ruben Hello this is Ruben Thanks for the back brief of events You need to ensure that you

learn the policies and provide accurate counselling If you are in doubt please review the

regulations It will be an embarrassment if this is written up in the protest

Screen 7 Your Office CONSEQUENCE OF YOUR ACTIONS Requiring all protests to be oral is not

consistent with FAR policy While FAR 19302(c)(2) allows size representation protests to be

initially submitted orally they must be followed up in writing protests can also be initially

submitted in writing All size representation protests must include the basis for the protest with

specific detailed evidence to support the allegation that the offeror is not small As a SBP it is

important that you provide accurate policy guidance when advising industry and Government

personnel to ensure you maintain credibility as a small business expert

Screen 8 Your office

Ruben Do you now understand the regulation How can an offeror protest a small business

size representation

Activity 3-2 Your office Ruben How can an offeror protest a small business size

representation

Choice 1 As stated in FAR 19302(c)(2) The protest or confirmation of the protest if initiated

orally shall be in writing Proceed to screen 20

Choice 2 A protest may be made orally if it is confirmed in writing and received by the

Contracting Officer within the 30-day period or by letter postmarked no later than 1 business

day after the oral protest (FAR 19302(d)(1)(i)) Proceed to screen 9

Screen 9 Your office

Ruben That is incorrect A protest may be made orally within the 5-day period if it is confirmed

in writing and received by the Contracting Officer or by letter postmarked no later than 1

business day after the oral protest

Screen 10 Your office CONSEQUENCE OF YOUR ACTIONS Advising a concern that they have 30

days to submit a protest would result in the SBA denying the protest as untimely While it is the

responsibility of the contractor to know what the FAR requires providing incorrect advice and

counsel too often will adversely impact your credibility and reputation as a SBP and expert in

your field

Screen 11 Your office

Ruben Please contact the offeror and Jenny to inform them of the correct regulation I have to

reiterate that even though industry is responsible for knowing the FAR rules we cannot provide

false advice Have a good day and let me know if you need anything Proceed to screen 22

Screen 12 Conference Room

Jenny Really I will inform the offeror that a protest may be made orally if it is confirmed in

writing and received by the Contracting Officer within the 30-day period Thank you for clearing

that up for me

Screen 13 Your office THE NEXT DAY - Coming back from lunch you notice that you have a

voicemail

Phil Hello My name is Phil I am from ELMO I am in the process of sending in a size protest

Jenny informed me that I had up to 30 days That sounded suspicious so I called SBA They

informed me a protest may be made orally within the 5-day period if it is confirmed in writing

and received by the Contracting Officer or by letter postmarked no later than one business day

after the oral protest I am not pleased I will be citing this in the written protest

Screen 14 Your office THE NEXT DAY - You have contacted Ruben the senior SBP to keep him

informed of the events

Ruben Hello this is Ruben Thanks for the back brief of events You need to ensure that you

learn the policies and provide accurate counselling If you are in doubt please review the

regulations It will be an embarrassment if this is written up in the protest

Screen 15 Your office CONSEQUENCE OF YOUR ACTIONS Advising a concern that they have 30

days to submit a protest would result in the SBA denying the protest as untimely While it is the

responsibility of the contractor to know what the FAR requires providing incorrect advice and

counsel too often will adversely impact your credibility and reputation as a SBP and expert in

your field

Screen 16 Your office

Ruben Do you now understand the regulation How can an offeror protest a small business

size representation

Activity 3-3 Your office

Question Ruben How can an offeror protest a small business size representation

Choice 1 As stated in FAR 19302(c)(2) an offeror can only protest orally and then must

follow-up with a written protest Proceed to screen 17

Choice 2 As stated in FAR 19302(c)(2) The protest or confirmation of the protest if initiated

orally shall be in writing Proceed to screen 20

Screen 17 Your office

Ruben That is incorrect A protest may be made orally within the 5-day period if it is confirmed

in writing and received by the Contracting Officer or by letter postmarked no later than 1

business day after the oral protest

Screen 18 Your Office CONSEQUENCE OF YOUR ACTIONS Advising a concern that they have 30

days to submit a protest would result in the SBA denying the protest as untimely While it is the

responsibility of the contractor to know what the FAR requires providing incorrect advice and

counsel too often will adversely impact your credibility and reputation as a SBP and expert in

your field

Screen 19 Your office

Ruben Please contact the offeror and Jenny to inform them of the correct regulation I have to

reiterate that even though industry is responsible for knowing the FAR rules we cannot provide

false advice Have a good day and let me know if you need anything Proceed to screen 22

Screen 20 Your office

Ruben That is correct Please contact the offeror and Jenny to inform them of the correct

regulation Have a good day and let me know if you need anything

Screen 21 Conference room

Jenny Thank you for clearing that up for me If I need further assistance Ill give you a call

Screen 22 Your office FEEDBACK A protest may be made orally within the 5-day period if it is

confirmed in writing and received by the Contracting Officer or by letter postmarked no later

than 1 business day after the oral protest (FAR 19302(d)(1)(i)) A Contracting Officer may

submit a size protest at any time before or after award and it is considered timely (FAR

19302(d)(2))

You have completed the tasks Ruben asked you to perform It is the end of the week You have

closed your computer and stored your documents away You head for the lobby

Screen 23 Lobby TWO DAYS LATER - As you return to work on Monday morning you run into

Asha in the lobby

Asha Good morning Just wanted to inform you that ELMO wants to send a protest stating that

they had evidence that CDI was large and therefore should not be considered for the award of

any small business set-aside contract for our Army base Have a great day

Screen 24 Your office Entering your office you get a phone call

Phil Hello this is Phil from ELMO I am assuming you heard about the protest Before we send

in the protest letter could you please tell me what is required for a size protest to be

considered by SBA

Activity 24-1 Your office

Question Phil In accordance with 13 CFR 1211007 what is required for a protest of size

status to be considered by SBA

Choice 1 A concern is considered a small and a large depending on the particular size standard

Proceed to screen 25

Choice 2 The size protest must demonstrate that the offeror being protested is considered

large based on presumed affiliation with a large business Proceed to screen 33

Choice 3 The size status protest must relate to a particular procurement and be specific to

provide reasonable notice as to the grounds upon which the protested concerns size is

questioned Proceed to screen 42

Screen 25 Your office

Phil Thank you I will send out the protest later today

Screen 26 Your office Entering your office you notice you have an e-mail

To Acquisition Team

From Connie Contracting Officer

Subject Size Protest E-mail Attachment Protest Letter

Hello

Just wanted to inform the SBA would not act on ELMOs protest I have received notice that the size protest is not being considered

I have also attached a copy of the protest

VR

Connie Contracting Officer

Screen 27 Your office Ruben meets with you weekly to review the status of acquisitions and

discuss any lessons learned During this weekly meeting you inform Ruben about the mistake

you made in informing the protestor that a concern is considered a small and a large depending

on the particular size standard

Ruben You do realize that a concerns size can fluctuate between small and large depending on

the particular procurement assigned NAICS size standards If you counsel industry you need to

realize this

Screen 28 Your office CONSEQUENCE OF YOUR ACTIONS 13 CFR 1211007(a) A protest

challenging the size of a concern which does not pertain to a particular procurement or sale will

not be acted on by SBA While it is true that a concern can be small andor large depending on

the procurements NAICS code and corresponding size standard the size protest would be

denied because it must be related to a particular procurement

Screen 29 Your office

Ruben Did you take a look at 13 CFR 1211007 What is required for a size protest to be

considered by SBA

Activity 24-2 Your office

Question Ruben In accordance with 13 CFR 1211007 what is required for a size protest to be

considered by SBA

Choice 1 The size status protest must relate to a particular procurement and be specific to

provide reasonable notice as to the grounds upon which the protested concerns size is

questioned Proceed to screen 41

Choice 2 The size protest must demonstrate that the offeror being protested is considered

large based on presumed affiliation with a large business Proceed to screen 30

Screen 30 Your office

Ruben Thatrsquos not quite right The protest must be sufficiently specific to prove affiliation Some

basis for the belief must be stated The SBA would not act on the protest IAW CFR 1211007(c)

the SBA protest regulations

Screen 31 Your office CONSEQUENCE OF YOUR ACTIONS 13 CFR 1211007(c) Non-specific

protests will be dismissed The protestor must present proof of affiliation and also relate it to a

specific procurement The protest would be denied because it is not specific The protestor sent

a copy of the protest stating there was presumed affiliation with a large business and therefore

should not be considered for the award of any small business set-aside contract

Screen 32 Your office

Ruben You cannot keep informing industry and the agency in this way You need to refer to the regulations before giving advice I will need to report this to the commander Do not give any more advice without looking at the regulations I will see you next month Proceed to screen 43

Screen 33 Your office

Phil Thank you I will send out the protest later today

Screen 34 Your office

To Acquisition Team

From Connie Contracting Officer

Subject Size Protest Attachment Protest Letter

Hello

Just wanted to inform the SBA would not act on ELMOs protest I have received notice that the size protest is not being considered

I have also attached a copy of the protest

VR

Connie

Contracting officer

Screen 35 Your office Ruben and yourself have monthly general follow-on discussions to discuss the progress of the acquisition and discuss any lessons learned You inform Ruben about the mistake you made

Ruben The protest must be sufficiently specific to prove affiliation Some basis for the belief must be stated The SBA would not act on the protest IAW CFR 1211007(c) the SBA protest regulations

Screen 36 Your office CONSEQUENCE OF YOUR ACTIONS 13 CFR 1211007(a) A protest challenging the size of a concern which does not pertain to a particular procurement or sale will not be acted on by SBA While it is true that a concern can be small andor large depending on the procurements NAICS code and corresponding size standard the size protest would be denied because it must be related to a particular procurement

Screen 37 Your office

Ruben Did you take a look at 13 CFR 1211007 What is required for a protest of size to be considered by SBA

Activity 24-3 Your office

Question Ruben In accordance with 13 CFR 1211007 what is required for a size protest to be

considered by SBA

Choice 1 A concern is considered a small and a large depending on the particular size standard

Proceed to screen 38

Choice 2 The size status protest must relate to a particular procurement and be specific to

provide reasonable notice as to the grounds upon which the protested concernrsquos size is

questioned Proceed to screen 41

Screen 38 Your office

Ruben You do realize that a concerns size can fluctuate between small and large depending on

the particular procurement assigned NAICS size standards If you counsel industry you need to

realize this

Screen 39 Your office CONSEQUENCE OF YOUR ACTIONS 13 CFR 1211007(a) A protest

challenging the size of a concern which does not pertain to a particular procurement or sale will

not be acted on by SBA While it is true that a concern can be small andor large depending on

the procurements NAICS code and corresponding size standard the size protest would be

denied because it must be related to a particular procurement

Screen 40 Your office

Ruben You cannot keep informing industry and the agency in this way You need to refer to the

regulations before giving advice I will need to report this to the commander Do not give any

more advice without looking at the regulations I will see you next month Proceed to screen 43

Screen 41 Your office

Ruben That is correct In the future do not give any more advice without looking at the

regulations I will see you next month

Screen 42 Your office

Phil Thank you I will send out the protest today Goodbye

Screen 43 Your office FEEDBACK A protest challenging the size of a concern must pertain to a

particular procurement or sale Additionally a size protest must be sufficiently specific to

provide reasonable notice as to the grounds upon which the protested concerns size is

questioned No particular form is prescribed for a protest Where materials supporting the

protest are available they should be submitted with the protest Size protests which do not

meet 13 CFR 1211007 requirements will be dismissed by SBA

Screen 44 Your office TWO DAYS LATER

To You SBP Attachment Protest

From Connie Contracting Officer

Subject Size Protest

Hello

After lunch if you could please meet Jenny and I in the conference room I have received the

protest from ELMO and just want to make sure I handle my part The protest document is

attached to this message Please read it before going to see Jenny

Thanks

Connie

Contracting Officer

Screen 45 Conference room LATER THAT DAY

Connie Thanks for coming by ELMO has submitted their small business size representation protest Could you please tell me what needs to be included

Activity 45-1 Conference room

Question Connie What should a small business size representation protest contain

Choice 1 According to FAR 19302(c) a small business size representation protest shall include

the basis for the protest and a referral letter written by the Contracting Officer with

information pertaining to the solicitation - Proceed to screen 73

Choice 2 According to FAR 19302(c)(3) a small business size representation protest shall

include a referral letter written by the Program Manager with information addressing the

solicitation - Proceed to screen 46

Choice 3 According to FAR 19302(c)(3) a small business size representation protest shall

include a copy of the solicitation and all offerors bid - Proceed to screen 59

Screen 46 Conference room

Connie Oh ok Asha needs to fill out the referral letter Please give her a call

Screen 47 Conference room

Asha Hello Asha speaking How may I help you

Screen 48 Conference room

Connie Hey Asha Itrsquos me Connie I have Jenny and the SBP here with me The SBP has just informed me that the Program Manager needs to fill out the referral letter for the size protest

Screen 49 Conference room

Asha Are you sure I have never filled out a referral letter before What must a small business representation protest need to include

Activity 45-2 Conference room

Question Asha What should a small business size representation protest contain

Choice 1 According to FAR 19302(c)(3) a small business size representation protest shall include a copy of the solicitation and all offerorsrsquo bids - Proceed to screen 50

Choice 2 According to FAR 19302(c) a small business size representation protest shall include the basis for the protest and a referral letter written by the Contracting Officer with information pertaining to the solicitation - Proceed to screen 73

Screen 50 Conference room

Asha Ok if you want me to fill out the referral letter I can have it completed by tomorrow You will need to gather the solicitation and offerorsrsquo bids

Screen 51 conference room

Connie Thank you Asha

Screen 52 Your office TWO DAYS LATER - As you enter your office the phone rings

Asha Hello this is Asha I just wanted to let you know that the SBA has returned the protest They stated that the Contracting Officer needs to fill out the referral letter SBA also included a list of items that the protest package should contain I left the list in your inbox

Screen 53 Your office read the protest package that is in your inbox

Screen 54 Your office THREE DAYS LATER

Asha I will get with Connie to make sure what the correct information gets sent to the SBA Bye

Screen 55 Conference room Connie has called a meeting of the team to discuss the size protest from ELMO

Connie Thank you everyone for coming As you all know the protest has slowed down the process of awarding the contract This mishap about who should fill out the referral letter has caused us even more delay which potentially will impact the delivery schedule

Screen 56 Conference room

Connie The protest package has been completed and sent back to the SBA Everything should be in order and now we just wait to hear back from the SBA I brought in copies of the referral letter and the CDI representation letter for everyone to take a look at

Screen 57 Conference room Read the Size Determination document

Screen 58 Conference room CONSEQUENCE OF YOUR ACTIONS The SBA sent back the protest This resulted in a delay of SBAs protest decision As a result there may be potential

delays for contract award and impacts to the programs overall costperformanceschedule

baseline

Screen 59 Conference room

Jenny Oh ok we just need to include the solicitation and all of the offerors bids I can gather

that information up in no time

Screen 60 Conference room

Connie Are you sure that is correct I thought somewhere in the regulations I read that we

were supposed to supply a letter and that the protester was supposed to come up with all the

other information

Activity 45-3 Conference room

Question Connie What should a small business size representation protest contain

Choice 1 According to FAR 19302(c) a small business size representation protest shall include

the basis for the protest and a referral letter written by the Contracting Officer with

information pertaining to the solicitation - Proceed to screen 73

Choice 2 According to FAR 19302(c)(3) a small business size representation protest shall

include a referral letter written by the Program Manager with information addressing the

solicitation - Proceed to screen 61

Screen 61 Conference room

Connie Oh ok Asha needs to fill out the referral letter Letrsquos give her a call

Screen 62 Conference room

Asha Hello Asha speaking How may I help you

Screen 63 Conference room

Connie Hey Asha Itrsquos me Connie I have Jenny and the SBP here with me The SBP has just

informed me that the Program Manager needs to fill out the referral letter for the size protest

Screen 64 Conference room

Asha Sure I can fill out the referral letter Irsquoll have it completed by tomorrow Bye

Screen 65 Conference room

Connie Once I receive the letter from Asha I will send it off to SBA Thanks Have a great rest of your day

Screen 66 Hour office TWO DAYS LATER - As you enter your office the phone rings

Asha Hello this is Asha I just wanted to let you know that the SBA has returned the protest They stated that the Contracting Officer needs to fill out the referral letter SBA also included a list of items that the protest package should contain I left the list in your inbox

Screen 67 Your office

Asha I will get with Connie to make sure that the correct information gets sent to the SBA Bye

Screen 68 Your office Read the Protest Package letter

Screen 69 Conference room THREE DAYS LATER - Connie has called a meeting of the team to discuss the size protest from ELMO

Connie Thank you everyone for coming As you all know the protest has slowed down the

process of awarding the contract This mishap about who should fill out the referral letter has

cause us even more delay which potentially will impact the delivery schedule

Screen 70 conference room

Connie The protest package has been completed and sent back to the SBA Everything should be in order and now we just wait to hear back from the SBA I brought in copies of the referral letter and the CDI representation letter for everyone to take a look at

Screen 71 Conference room Read the Referral Letter CDI Representation and Size Determination documents

Screen 72 Conference room CONSEQUENCE OF YOUR ACTIONS The SBA sent the protest back This has resulted in a delay in the SBA deciding the protest and potential delay of award of the contract which could result in a delay in performance of delivery or service resulting in additional costs to the Government

Screen 73 Conference room

Connie Thatrsquos it Ok I can definitely take care of that today Thank you

Screen 74 Your office It has been several days since you spoke to Connie about the small

business representation protest requirements As you sit down to start your day you notice you

have a voicemail

Jenny Hello Can you stop by the conference room when you get this message Thanks

Screen 75 Conference room

Connie Hello Thanks for coming I just wanted to inform you that the protest package has

been completed and sent back to the SBA Everything should be in order and now we just wait

to hear back from the SBA I brought in copies of the referral letter and the CDI representation

letter for everyone to take a look at

Screen 76 Conference room Read the Referral Letter CDI Representation and Size

Determination documents

Screen 77 Conference room

FEEDBACK According to FAR 19302(c)(3) a small business representation protest shall include

the basis of the protest and include a referral letter signed by the Contracting Officer with

information pertaining to the solicitation and include (i) the protest and any accompanying

materials (ii) a copy of the size self-certification (iii) Identification of applicable size standard

(iv) a copy of the electronic link to the solicitation and any amendments (v) the name address

telephone number email address and number of the Contracting Officer (vi) identification of

the bid opening date or date of notification provided to unsuccessful offerors (vii) the date the

Contracting Officer received the protest (viii) a complete address and point of contact for the

protested concern An offeror the SBA or another interested party may protest the small

business representation of an offeror in a specific offer (FAR 19302(a)(2)) For competitive 8(a)

contracts the filing of a protest is limited to the Contracting Officer an offeror or the SBA The

Contracting Officer may also submit a small business representation protest at any time before

or after award (FAR 19302(a) and (b))

Screen 78 Your office A WEEK LATER - As you come back from lunch with Janet you get a visit

from Jenny She has not heard anything about the protest for several days and would like

clarification on the protest process with the SBA

Jenny Hi I just wanted to clarify the notification process of the protest It has been five days

since the documents were submitted to the SBA and we have not heard anything as of yet

Connie also gave me this form that I am unfamiliar with I put it in your inbox

Screen 79 Your office Read the SBA Form 355

Screen 80 Your office

Jenny Hey Janet what is the SBA Government Contracting Area Directors process after

receiving a size determination protest

Screen 81 Your office

Janet When SBA receives a size protest the SBA Area Director for Government Contracting or

designee will notify the contracting officer the protested concern and the protestor that the

protest has been received SBA will provide a blank copy of SBA Form 355 Application for Small

Business Determination to the concern whose size is at issue The protested concern or

concern whose size is at issue must return the completed SBA Form 355 and all other requested

information to SBA within 3 working days from the date of receipt of the blank form from SBA

SBA has discretion to grant an extension of time to file the form After receipt of a protest or a

request for a formal size determination the SBA Area Office will issue a formal size

determination within 15 business days if possible or within an extension granted by the

Contracting Officer in accordance with FAR 19302(e)

Screen 82 Your office

Jenny Thank you for clarifying the process Irsquoll see you both later

Screen 83 Your office

Janet Yes I have to get back to the office too Irsquoll see you later

Screen 84 Your office THE NEXT DAY - You re-enter your office from a break and receive a

phone call

Jenny Hello I forgot to ask when the Contracting Officer may award a contract that has a small

business size protest

Activity 84-1 Your office

Question Jenny When may the Contracting Officer award a contract that has been protested

Choice 1 Only after the SBA makes a determination of the small business representation

protest - Proceed to screen 85

Choice 2 When the SBA makes a decision or 15 business days have expired whichever comes

first however the CO may award a contract before an SBA determination is made when he

makes a written determination that award must be made to protect public interest - Proceed

to screen 105

Choice 3 The Contracting Officer does not have to wait for SBA to make the determination -

Proceed to screen 95

Screen 85 Your office

Jenny Ok so I guess we just wait until the SBA makes a determination Thanks

Screen 86 Program Managerrsquos Office THE NEXT DAY - Asha has requested that you come by

her office As you walk into Asharsquos office Connie is already there

Asha Connie was just informing me that she has decided to wait on SBAs decision about the

protest before awarding the contract Just want to inform the both of you that the incumbent

contract expires 18 days after the submittal of the protest to the SBA

Screen 87 Program Managerrsquos Office

Connie That is a good point Asha The risk of me waiting too long will result in expiration of the

contract A lapse between contracts is unacceptable as that may adversely impact the

warfighter

Activity 84-2 Program Managerrsquos Office

Question Connie When may the Contracting Officer award a contract that has been

protested

Choice 1 When the SBA makes a decision or 15 business days have expired whichever comes

first however the CO may award a contract before an SBA determination is made when he

makes a written determination that award must be made to protect public interest - Proceed

to screen 103

Choice 2 The Contracting Officer does not have to wait for SBA to make the determination -

Proceed to screen 88

Screen 88 Program Managerrsquos Office

Connie If that is the case letrsquos wait about a week and then award the contract Thanks

everyone

Screen 90 Your office FIVE DAYS LATER - SBA renders its decision on the required 15th

business day finding that the apparent successful offeror was not eligible for the award

Connie Meeting today at 2 PM

Screen 91 Conference room 2 PM - Connie has called in Asha Jenny and Ian to the

conference room

Connie As you are aware SBA came back with the decision that ELMO was not eligible for the

award Because it is so close to the completion of the source selection we may be able to go

back and award to the offeror that was second in line based on evaluation results

Screen 92 Conference room

Ian We would have to get the acquisition team together with legal SBA and leadership but

we might be able to accomplish that without having to start the procurement over again

Screen 93 Conference room

Connie Thanks everyone I will keep you posted

Screen 94 Conference room CONSEQUENCE OF YOUR ACTIONS Awarding the contract

without waiting for SBA to make a decision on the appeal is a violation of FAR policy (FAR

19302(g)(2) this type of violation could result in significant impacts inclusive of the

Contracting Officer having to terminate the unauthorized contract Additional fallout may occur

by having to re-accomplish the procurement entirely since the source selection was effectively

completed upon award of the unauthorized contract to the ineligible company Reprocurement

risk would be dependent upon the acquisition circumstances timing and viewpoints of the key

stakeholders and decision-makers

FEEDBACK After receiving a size protest involving a new procurement the Contracting Officer

shall not award the contract until the SBA has made a size determination or after 15 business

days have expired whichever comes first However the Contracting Officer may award a

contract before an SBA determination is made when shehe makes a written determination

that award must be made to protect the public interest (FAR 19302(g)(1))

Screen 95 Your office

Jenny Ok I will inform Connie Thanks

Screen 96 COrsquos office LATER THAT DAY - Connie has asked you to come by her office

Connie Hello Thanks for coming by Jenny tells me that you said that we do not need to wait

for SBA to make the determination about the size protest What happens if we award the

contract and then SBA finds the apparent successful offeror was not eligible for the award

Maybe you should double check the regulation

Activity 84-3 COrsquos office

Question Connie When may the Contracting Officer award a contract that has been

protested

Choice 1 Only after the SBA makes a determination of the small business representation

protest - Proceed to screen 97

Choice 2 When the SBA makes a decision or 15 business days have expired whichever comes

first however the CO may award a contract before an SBA determination is made when he

makes a written determination that award must be made to protect public interest - Proceed

to screen 104

Screen 97 COrsquos office

Connie Ok so I guess we just wait until the SBA makes a determination

Screen 98 Program Managerrsquos Office LATER THAT DAY - Asha has requested that you come by

her office As you walk into Asharsquos office Connie is already there

Asha Connie was just informing me that she has decided to wait on SBAs decision about the

protest before awarding the contract Just want to inform the both of you that the current

contract expires 18 days after the submittal of the protest to the SBA

Screen 99 Program Managerrsquos Office

Connie That is a good point Asha The risk of me waiting too long will result in expiration of the

incumbents contract and work stoppage for security guard services

Screen 100 Program Managerrsquos Office

Asha I looked up the regulation and it states that we should wait up to 15 business days and

then we may award the contract

Screen 101 Program Managerrsquos Office

Connie Thanks That is what we will do and hopefully SBA will respond before the 15 days

Screen 102 Program Managerrsquos Office CONSEQUENCE OF YOUR ACTIONS Not thoroughly

understanding the protest procedures and being uninformed of program needs and imp acts

could result in adverse impacts to the warfighter

FEEDBACK After receiving a size protest involving a new procurement the Contracting Officer

shall not award the contract until the SBA has made a size determination or after 15 business

days have expired whichever comes first However the Contracting Officer may award a

contract before an SBA determination is made when shehe makes a written determination

that award must be made to protect the public interest (FAR 19302(g)(1))

Screen 103 Program Managerrsquos Office

Connie Ok we wait for 15 business days That sounds much better Thanks - Proceed to

screen 106

Screen 104 COrsquos office

FEEDBACK After receiving a size protest involving a new procurement the Contracting Officer

shall not award the contract until the SBA has made a size determination or after 15 business

days have expired whichever comes first However the Contracting Officer may award a

contract before an SBA determination is made when shehe makes a written determination

that award must be made to protect the public interest (FAR 19302(g)(1))

Connie Ok we wait for 15 business days That sounds much better Thanks - Proceed to

screen 107

Screen 105 Your office

FEEDBACK After receiving a size protest involving a new procurement the Contracting Officer shall not award the contract until the SBA has made a size determination or after 15 business days have expired whichever comes first However the Contracting Officer may award a contract before an SBA determination is made when shehe makes a written determination that award must be made to protect the public interest (FAR 19302(g)(1))

Jenny Ok we wait for 15 business days Thanks - Proceed to screen 107

Screen 106 Program Managerrsquos office FEEDBACK After receiving a size protest involving a new procurement the Contracting Officer shall not award the contract until the SBA has made a size determination or after 15 business days have expired whichever comes first However the Contracting Officer may award a contract before an SBA determination is made when shehe makes a written determination that award must be made to protect the public interest (FAR 19302(g)(1))

Screen 107 Your office TWO DAYS LATER - Itrsquos been two days since your conversation with Jenny You notice that you have a new e-mail

To Acquisition Team Attachment Appeal Letter

From Grace CDI Contractor

Subject ELMO protest upheld

Hello

I just heard that ELMOs protest was upheld We believe the decision was based on erroneous information so we want to appeal Can you give me some guidance in the process for submitting an appeal

I have attached the appeal and size determination letters

Sincerely

Grace CDI Contractor

Activity 107-1 Your office

Question Grace What is the process for submitting an appeal for a size protest determination

Choice 1 IAW FAR 19302(h) an appeal may be filed with the SBA Office of Hearings and Appeals by any concern or interested party whose protest of the small business representation of another concern has been denied - Proceed to screen 111

Choice 2 An appeal may be filed by any concern or interested party to protest the small business representation of another concern to the Contracting Officer - Proceed to screen 108

Screen 108 Your office THREE DAYS LATER Connie comes by your office

Connie Hello there I just received the appeal from CDI through the mail channels and realized

that the protestor sent it to me in error I am having Jenny mail the appeal package back to CDI

Screen 109 Your office As you get back to your desk you notice that you have a voicemail

Grace Hello this is Grace from CDI Looks like I sent my appeal to the wrong location I was not

supposed to send it to the Contracting Officer I have re-sent the appeal to SBA OHA I hope

that its not too late because they will deny my appeal if untimely

Screen 110 Your office CONSEQUENCES OF YOUR ACTIONS Filing the appeal with the

Contracting Officer would result in lost time for the protestor because the appeal must be filed

with SBA OHA The concern encounters a greater risk of denial by SBA OHA if the appeal is not

filed within the time frame listed in Subpart C of 13 CFR 134

Screen 111 Your office The agency awaits confirmation from SBA OHA as to the standing of

the appeal and related impacts to the ongoing procurement You leave for the weekend

Screen 112 Your office FEEDBACK An appeal may be filed only when the small business

representation protest has been denied by the SBA Government Contracting Area Director and

within the time frames and in accordance with the procedures outlined in Subpart C of 13 CFR

Part 134 (IAW FAR 19302(h)) While a Contracting officer may file an appeal of their own the

concern or interested party must file the appeal to the SBA Office of Hearings and Appeals

(OHA) within the time frame and in accordance with the procedures listed in Subpart C of 13

CFR 134

Screen 113 Your office You return to the office on Monday morning You have a new e-mail

E-mail CDI appeal

To You SBP

From Connie Contracting Officer

Subject CDI Appeal

Hello

I would like to have a meeting with you and our lawyer Ian and Jenny to review the CDI size

appeal to the SBA Office of Hearings and Appeals Please check your calendar to see if you are

free tomorrow afternoon Let me know if you can make it

Sincerely

Connie

Contracting Officer

Screen 114 Conference room THE NEXT DAY - You Connie Jenny and the departmentrsquos

lawyer Ian are in a conference room

Ian Glad you could make the meeting We have been informed that Corporate Defenders is

appealing the SBAs decision Because of the potential impact the appeals process may have on

our current security guard services and before we make a decision on what we should do

about continuation of those services I would like to discuss the basis of the original size protest

by ELMO in the Corporate Defenders appeal to determine whether we think it will be denied

What was the basis of the original size protest by ELMO in the Corporate Defenders appeal

Screen 115 Conference room

Jenny The basis of the original protest is that Corporate Defenders Inc is affiliated with Rivers

under the ostensible subcontracting rule

Screen 116 Conference room

Connie Now that we have determined it is a size representation issue does this fall within the

affiliation under the ostensible subcontracting rule

Screen 117 Conference room

Ian The regulation defines an ostensible subcontractor as a subcontractor that performs

primary and vital requirements or when the prime contractor is unusually reliant upon the

subcontractor In this case CDI would be relying on the workforce and management of Rivers

to fulfill the requirements of the contract Therefore the combined size standards of CDI and

Rivers exceeds the size standard for this procurement according to 13 CFR 121103(h)(4)

Screen 118 Conference room

Connie The SBA Area Office found that under the ostensible subcontracting rule CDI was

considered a large business because of its affiliation with Rivers CDI appealed the ruling to the

SBA Office of Hearings and Appeals stating that CDI was not overly reliant on Rivers for

performing the contract and that CDI will serve as the prime contractor ELMO argued that

there is an ostensible subcontracting affiliation with CDI and Rivers and that Rivers is a large

business and thus CDI is ineligible for award What factors could lead to the appeal being

denied

Activity 118-1 Conference room

Question Connie What factors led to the appeal being denied

Choice 1 Rivers was a large business and thus ineligible for the award - Proceed to screen 119

Choice 2 CFR 121103(h)(4) states only the terms of the proposal are applicable to determining

the teaming agreement between the prime and subcontractor - Proceed to screen 123

Choice 3 There is ostensible subcontracting based on the fact that the proposed subcontractor

is the incumbent contractor and thus ineligible for award the prime contractor proposed to

hire the majority of the workforce from the subcontractor the prime contractors proposed

program manager previously served as program manager for the subcontractor on incumbent

contract and the prime contractor lacked experience with projects of the magnitude required

of this procurement This makes the offeror ineligible for award - Proceed to screen 127

Screen 119 Conference room

Ian I believe that is an incorrect assumption since Rivers was only going to perform 43 percent

of the work for a small business This alone would not make Rivers an ostensible subcontractor

Activity 118-2 Conference room

Question Connie What factors led to the appeal being denied

Choice 1 There is ostensible subcontracting based on the fact that the proposed subcontractor

was the incumbent contractor and thus ineligible for award - Proceed to screen 127

Choice 2 CFR 121103(h)(4) states that only the terms of the proposal are applicable to

determining the teaming agreement between the prime and subcontractor - Proceed to screen

120

Screen 120 Conference room

Ian I believe this is an incorrect assumption All aspects of the relationship between CDI and

Rivers are to be considered

Screen 121 Conference room

Connie Letrsquos reference back to the ruling and the reason why there was an ostensible

subcontract

Screen 122 Conference room

Connie It appears that there was ostensible subcontracting based on the fact that the

proposed subcontractor was the incumbent contractor and thus ineligible for award the prime

contractor proposed to hire the majority of the workforce from the subcontractor the prime

contractors proposed program manager previously served as program manager for the

subcontractor on incumbent contract and the prime contractor lacked experience with

projects of the magnitude required of this procurement - Proceed to screen 127

Screen 123 Conference room

Ian I believe this is an incorrect assumption All aspects of the relationship between CDI and

Rivers are to be considered

Activity 118-3 conference room

Question Ian What factors led to the appeal being denied

Choice 1 Rivers was a large business and thus ineligible for the award - Proceed to screen 124

Choice 2 There is ostensible subcontracting based on the fact that the proposed subcontractor

was the incumbent contractor and thus ineligible for award - Proceed to screen 127

Screen 124 Conference room

Ian I believe that is an incorrect assumption since Rivers was only going to perform 43 percent

of the work for a small business This alone would not make Rivers an ostensible subcontractor

Screen 125 Conference room

Connie Letrsquos reference back to the ruling and the reason why there was an ostensible

subcontract

Screen 126 Conference room

Connie It appears that there was ostensible subcontracting based on the fact that the

proposed subcontractor was the incumbent contractor and thus ineligible for award the prime

contractor proposed to hire the majority of the workforce from the subcontractor the p rime

contractors proposed program manager previously served as program manager for the

subcontractor on incumbent contract and the prime contractor lacked experience with

projects of the magnitude required of this procurement

Screen 127 Conference room

FEEDBACK CFR 121103(h)(4) states all aspects of the relationship between the prime and the

subcontractor are to be considered including but not limited to the terms of the proposal such

as contract management and the percentage of subcontract work agreement between the

prime and subcontractor and whether the subcontractor is the incumbent contractor and is

ineligible to submit a proposal because it exceeds the applicable size standard

Screen 128 Conference room

Connie I think we are good here Thank you for meeting Talk to you later

Screen 129 Conference room

SUMMARY Small Businesses are subject to a size protest on a small business set-aside before

award of a contract The SBA will normally make a determination of size status within 15 days

of receipt of protest To be considered by the SBA it is necessary that the protest be specific

and timely

FAR 19302 and 13 CFR Part 121 provide the specific rules for submitting a size representation

An appeal can be made to the SBA Office of Hearing and Appeals for re-consideration of an SBA

Area Office size protest decision In determining size protests the SBA will consider receipts

number of employees and affiliations of the protested concerns In examining affiliations the

SBA will look for an ostensible subcontracting relationship in which the subcontractor that

performs primary and vital requirements of a contract or a subcontractor upon which the prime

contractor is unusually reliant

If affiliation is found and the prime and the sub are considered large due then award cannot

be made If a size protest is not submitted timely or does not contain sufficient information to

make a size determination the protest will be dismissed The SBP role is to ensure that the

organization is aware of the regulations governing the SBA size protests

When a Small Business size representation protest andor an appeal to a size protest is

received the SBPs role is to advise and assist the acquisition team and Contracting Officer with

interpretation and application of corresponding FAR Part 19 and SBA 13 CFR requirements The

SBP may also advise the offeror or contractor on the procedures for submitting a protest prior

to issuing a solicitation After the solicitation has been issued all communication must be

through the Contracting Officer While this scenario discusses the procedures for a small

business representation protest the SBP needs to be aware that the socio-economic programs

ie HUBZones SDVOSB 8(a) and WOSB each have slightly different procedures which are set-

forth in FAR Part 19 Close attention must be made to both the applicable FAR Part 19 and SBA

13 CFR 121 requirements to provide proper advice and guidance on each type of protest and

appeal

Screen 130 Conference room This concludes the simulation The After Action Report (AAR) has

been created Download the AAR and review your performance in the simulation

After viewing the AAR use the browser close button to close this simulation and return to

screen 3 in the Size Protest lesson to complete this lesson

SBP220 Business Decisions for Small Business lesson 11 - Size Pr otest Simulation RESOURCES I PRINT I HELP

Summary

I Poge 5 of6 I Back Next

SBP220 Business Decisions for Small Business lesson 11 - Size Protest Simulation RESOURCES 1 PRINT 1 HELP

Summary

Closed Captioning Congratulations you have completed the Size Protest Simulation During this simulation you participated in activities common to interpreting data to verify the size of a small business Ensure that you review your After Action Report and if you did not respond correctly to all activities consider going through the simula tion again

I Pogo 5of6 I Back Next

SBP220 Business Decisions for Small Business lesson 11 - Size Protest Simulation RESOURCES I PRINT I HELP

Summary

Poge 5of6 I Back Next

SBP220 Business Decisions for Small Business Lesson 11 - Size Pr otest Simulation RESOURCES j PRINT j HElP

Lesson Completion

You have comple ted the con tent for this lesson

To continue select another lesson from the Table of Con tents on the le f t

If you have closed or hidden the Table of Contents select the Show T OC button at the t op in the Atlas navigation bar

~ I P o ge 6 of6 I Back Next

SBP220 Business Decisions for Small Business lesson 11 - Size Protest Simulation RESOUR CES I PRINT I HELP

Simulation Ch ar acter s

You will interact with several characters in the simulated environment These characters include

bull Connie bull Contracting Officer bull Asha bull Program Managerbull Ruben bull Senior SBIP_______

bull Jenny bull Contrac t l ong Descrip tion bull I an bull Legal Re1oresl bull Janet bull SBA PCR You will interac t with several characters in the simulated bull Phil bull Contractor environment These characters include bull Grace bull Contrabullctorl

bull Connie - Contracting Officer bull Asha - Program Manager bull Ruben - Senior SBP bull Jenny - COntract Specialist bull Ian - legal Representative bull Janet - SBA PCR bull Phil - COntractor (ELMO) bull Grace - COntractor (COl)

~ I Poge 3of6 I Back Next

SBP220 Business Decisions for Small Business Lesson 11 - Size Protest Simulation RESOURCES I PRINT I HELP

Size Protest Simulation

This simulation will open and be conducted in a separate window Once you begin you are an Actor and must initiate the necessary actions to progress through the simulation Pay careful attention to the instructional prompts to determine what to do next Your Tablet is a valuable resource and will allow you to research the FAR DFARS and many other pertinent Federal and DOD Acquisition Websites and reference materials

Throughout the simulation you will make many business decisions involving knowledge and judgment When you apply your knowledge and exercise good judgment in providing guidance your actions will be affirmed with FEED BACK screens However when you incorrectly apply your knowledge and exercise poor judgement in providing guidance your credibility as a small business professional is on the line

You never want to tarnish your credibility as a consummate small business professional It is good to recognize mistakes and learn from them quickly Therefore if you make incorrect decisions in this simulation you will learn of them through the CONSEQU ENCE O F YOUR ACTIONS screen as you progress through the simulation

Select the Size Protest image below to launch the simulation The simulation will open in a new window After comple all simulation activities return to this screen and select Next to continue

Back Next

SBP220 Business Decisions for Small Business l esson 11 -Size Protest Simulation RESOURCES I PRINT 1 HELP

Size Protest Simulation

This simulation will open and be conducted in a separate window Once you begin you are an Actor and must initiate the necessary actions to progress through the simulation Pay careful attention to the instructional prompts to determine what to do next Your Tablet is a valuable resource and will allow you to research the FAR DFARS and many other pertinent Federal and DOD Acquisition Websites and reference materials

Throughout the simulation you will make many business decisions involving knowledge and judgment When you apply your knowledge and exercise good judgment in providing guidance your actions will be affirmed with FEEDBACK screens However when you incorrectly apply your knowledge and exercise poor judgement in providing guidance your credibility as a small business professional is on the line

You never want to tarnish your credibility as a consummate small business professional It is good to recognize mistakes and learn from them quickly Therefore if you make incorrect decisions in this simulation you will learn of them through the CONSEQU ENCE O F YOUR ACTIONS screen as you progress through the simulation

Select the Size Protest image below to launch the simulation The simulation will open in a new window After ting all simulation activities return to this screen and select Next to continue

Closed Capt ioning This simulation will open and be conducted in a separate window Once you begin you are an actor and must initiate the necessary actions to progress through the simulation Pay careful attention to the instructional prompts to determine what to do next Your Tablet is a valuable resource and will allow you to research the FAR DFARS and many other pertinent Federal and DOD Acquisition Websites and reference materials

Select Size Protest Simulation to begin

Back Next

Screen 1 Your Office This acquisition is a small business set-aside for a follow on contract for

security guard services Corporate Defenders Inc (CDI) is the apparent successful offeror CDIs

primary subcontractor is Rivers who is the incumbent contractor and will be providing

management support as well as some of their employees for this follow-on effort East Lake

Management Operation (ELMO) received their Pre-award notice IAW FAR 15503(a)(2)(ii)

indicating that CDI is the apparent successful offeror They have decided to protest the small

business representation for CDI based on the affiliation with Rivers While sitting at your desk

you notice you have a new voicemail

Connie Hello I am just checking with you to make sure you are available to meet with Jenny

our Contracting Specialist concerning the East Lake size protest of the apparent award to CDI I

will be out for a couple of weeks and she will be watching over things in my absence Please

meet her in the conference room at 100pm By the way I left the abstract from the CDI

proposal in your inbox

Screen 2 Your Office Open the Abstract of CDI Document

Screen 3 Conference Room Jenny Thanks for coming in Now that we have sent a Pre-award

notice that CDI is the apparent successful offeror I see that East Lake is protesting the size

status based on affiliation with Rivers With Connie being out I need some guidance What are

the procedures for a size protest

Activity 3-1 Conference Room Jenny How can an offeror protest a small business size

representation

Choice 1 As stated in FAR 19302(c)(2) the protest or confirmation of the protest if initiated

orally shall be in writing Proceed to screen 21

Choice 2 As stated in FAR 19302(c)(2) an offeror can only protest orally and then must follow-

up with a written protest Proceed to screen 4

Choice 3 A protest may be made orally if it is confirmed in writing and received by the

Contracting Officer within the 30-day period or by letter postmarked no later than 1 business

day after the oral protest (FAR 19302(d)(1)(i)) Proceed to screen 12

Screen 4 Conference Room

Jenny Really I will inform the offeror that they can only submit the protest orally Thank you

for your time I assume I will have more questions

Screen 5 Your Office THE NEXT DAY - Coming back from lunch you notice that you have a

voicemail

Phil Hello My name is Phil I am the owner of the small business East Lake Management

Operation better known as ELMO I am in the process of sending in a size protest Jenny

informed me that I could only protest orally I called SBA and they told me that the protest

could be in writing I am not pleased I will be citing this in the written protest

Screen 6 Your Office You have called Ruben the senior SBP to keep him informed of the

events

Ruben Hello this is Ruben Thanks for the back brief of events You need to ensure that you

learn the policies and provide accurate counselling If you are in doubt please review the

regulations It will be an embarrassment if this is written up in the protest

Screen 7 Your Office CONSEQUENCE OF YOUR ACTIONS Requiring all protests to be oral is not

consistent with FAR policy While FAR 19302(c)(2) allows size representation protests to be

initially submitted orally they must be followed up in writing protests can also be initially

submitted in writing All size representation protests must include the basis for the protest with

specific detailed evidence to support the allegation that the offeror is not small As a SBP it is

important that you provide accurate policy guidance when advising industry and Government

personnel to ensure you maintain credibility as a small business expert

Screen 8 Your office

Ruben Do you now understand the regulation How can an offeror protest a small business

size representation

Activity 3-2 Your office Ruben How can an offeror protest a small business size

representation

Choice 1 As stated in FAR 19302(c)(2) The protest or confirmation of the protest if initiated

orally shall be in writing Proceed to screen 20

Choice 2 A protest may be made orally if it is confirmed in writing and received by the

Contracting Officer within the 30-day period or by letter postmarked no later than 1 business

day after the oral protest (FAR 19302(d)(1)(i)) Proceed to screen 9

Screen 9 Your office

Ruben That is incorrect A protest may be made orally within the 5-day period if it is confirmed

in writing and received by the Contracting Officer or by letter postmarked no later than 1

business day after the oral protest

Screen 10 Your office CONSEQUENCE OF YOUR ACTIONS Advising a concern that they have 30

days to submit a protest would result in the SBA denying the protest as untimely While it is the

responsibility of the contractor to know what the FAR requires providing incorrect advice and

counsel too often will adversely impact your credibility and reputation as a SBP and expert in

your field

Screen 11 Your office

Ruben Please contact the offeror and Jenny to inform them of the correct regulation I have to

reiterate that even though industry is responsible for knowing the FAR rules we cannot provide

false advice Have a good day and let me know if you need anything Proceed to screen 22

Screen 12 Conference Room

Jenny Really I will inform the offeror that a protest may be made orally if it is confirmed in

writing and received by the Contracting Officer within the 30-day period Thank you for clearing

that up for me

Screen 13 Your office THE NEXT DAY - Coming back from lunch you notice that you have a

voicemail

Phil Hello My name is Phil I am from ELMO I am in the process of sending in a size protest

Jenny informed me that I had up to 30 days That sounded suspicious so I called SBA They

informed me a protest may be made orally within the 5-day period if it is confirmed in writing

and received by the Contracting Officer or by letter postmarked no later than one business day

after the oral protest I am not pleased I will be citing this in the written protest

Screen 14 Your office THE NEXT DAY - You have contacted Ruben the senior SBP to keep him

informed of the events

Ruben Hello this is Ruben Thanks for the back brief of events You need to ensure that you

learn the policies and provide accurate counselling If you are in doubt please review the

regulations It will be an embarrassment if this is written up in the protest

Screen 15 Your office CONSEQUENCE OF YOUR ACTIONS Advising a concern that they have 30

days to submit a protest would result in the SBA denying the protest as untimely While it is the

responsibility of the contractor to know what the FAR requires providing incorrect advice and

counsel too often will adversely impact your credibility and reputation as a SBP and expert in

your field

Screen 16 Your office

Ruben Do you now understand the regulation How can an offeror protest a small business

size representation

Activity 3-3 Your office

Question Ruben How can an offeror protest a small business size representation

Choice 1 As stated in FAR 19302(c)(2) an offeror can only protest orally and then must

follow-up with a written protest Proceed to screen 17

Choice 2 As stated in FAR 19302(c)(2) The protest or confirmation of the protest if initiated

orally shall be in writing Proceed to screen 20

Screen 17 Your office

Ruben That is incorrect A protest may be made orally within the 5-day period if it is confirmed

in writing and received by the Contracting Officer or by letter postmarked no later than 1

business day after the oral protest

Screen 18 Your Office CONSEQUENCE OF YOUR ACTIONS Advising a concern that they have 30

days to submit a protest would result in the SBA denying the protest as untimely While it is the

responsibility of the contractor to know what the FAR requires providing incorrect advice and

counsel too often will adversely impact your credibility and reputation as a SBP and expert in

your field

Screen 19 Your office

Ruben Please contact the offeror and Jenny to inform them of the correct regulation I have to

reiterate that even though industry is responsible for knowing the FAR rules we cannot provide

false advice Have a good day and let me know if you need anything Proceed to screen 22

Screen 20 Your office

Ruben That is correct Please contact the offeror and Jenny to inform them of the correct

regulation Have a good day and let me know if you need anything

Screen 21 Conference room

Jenny Thank you for clearing that up for me If I need further assistance Ill give you a call

Screen 22 Your office FEEDBACK A protest may be made orally within the 5-day period if it is

confirmed in writing and received by the Contracting Officer or by letter postmarked no later

than 1 business day after the oral protest (FAR 19302(d)(1)(i)) A Contracting Officer may

submit a size protest at any time before or after award and it is considered timely (FAR

19302(d)(2))

You have completed the tasks Ruben asked you to perform It is the end of the week You have

closed your computer and stored your documents away You head for the lobby

Screen 23 Lobby TWO DAYS LATER - As you return to work on Monday morning you run into

Asha in the lobby

Asha Good morning Just wanted to inform you that ELMO wants to send a protest stating that

they had evidence that CDI was large and therefore should not be considered for the award of

any small business set-aside contract for our Army base Have a great day

Screen 24 Your office Entering your office you get a phone call

Phil Hello this is Phil from ELMO I am assuming you heard about the protest Before we send

in the protest letter could you please tell me what is required for a size protest to be

considered by SBA

Activity 24-1 Your office

Question Phil In accordance with 13 CFR 1211007 what is required for a protest of size

status to be considered by SBA

Choice 1 A concern is considered a small and a large depending on the particular size standard

Proceed to screen 25

Choice 2 The size protest must demonstrate that the offeror being protested is considered

large based on presumed affiliation with a large business Proceed to screen 33

Choice 3 The size status protest must relate to a particular procurement and be specific to

provide reasonable notice as to the grounds upon which the protested concerns size is

questioned Proceed to screen 42

Screen 25 Your office

Phil Thank you I will send out the protest later today

Screen 26 Your office Entering your office you notice you have an e-mail

To Acquisition Team

From Connie Contracting Officer

Subject Size Protest E-mail Attachment Protest Letter

Hello

Just wanted to inform the SBA would not act on ELMOs protest I have received notice that the size protest is not being considered

I have also attached a copy of the protest

VR

Connie Contracting Officer

Screen 27 Your office Ruben meets with you weekly to review the status of acquisitions and

discuss any lessons learned During this weekly meeting you inform Ruben about the mistake

you made in informing the protestor that a concern is considered a small and a large depending

on the particular size standard

Ruben You do realize that a concerns size can fluctuate between small and large depending on

the particular procurement assigned NAICS size standards If you counsel industry you need to

realize this

Screen 28 Your office CONSEQUENCE OF YOUR ACTIONS 13 CFR 1211007(a) A protest

challenging the size of a concern which does not pertain to a particular procurement or sale will

not be acted on by SBA While it is true that a concern can be small andor large depending on

the procurements NAICS code and corresponding size standard the size protest would be

denied because it must be related to a particular procurement

Screen 29 Your office

Ruben Did you take a look at 13 CFR 1211007 What is required for a size protest to be

considered by SBA

Activity 24-2 Your office

Question Ruben In accordance with 13 CFR 1211007 what is required for a size protest to be

considered by SBA

Choice 1 The size status protest must relate to a particular procurement and be specific to

provide reasonable notice as to the grounds upon which the protested concerns size is

questioned Proceed to screen 41

Choice 2 The size protest must demonstrate that the offeror being protested is considered

large based on presumed affiliation with a large business Proceed to screen 30

Screen 30 Your office

Ruben Thatrsquos not quite right The protest must be sufficiently specific to prove affiliation Some

basis for the belief must be stated The SBA would not act on the protest IAW CFR 1211007(c)

the SBA protest regulations

Screen 31 Your office CONSEQUENCE OF YOUR ACTIONS 13 CFR 1211007(c) Non-specific

protests will be dismissed The protestor must present proof of affiliation and also relate it to a

specific procurement The protest would be denied because it is not specific The protestor sent

a copy of the protest stating there was presumed affiliation with a large business and therefore

should not be considered for the award of any small business set-aside contract

Screen 32 Your office

Ruben You cannot keep informing industry and the agency in this way You need to refer to the regulations before giving advice I will need to report this to the commander Do not give any more advice without looking at the regulations I will see you next month Proceed to screen 43

Screen 33 Your office

Phil Thank you I will send out the protest later today

Screen 34 Your office

To Acquisition Team

From Connie Contracting Officer

Subject Size Protest Attachment Protest Letter

Hello

Just wanted to inform the SBA would not act on ELMOs protest I have received notice that the size protest is not being considered

I have also attached a copy of the protest

VR

Connie

Contracting officer

Screen 35 Your office Ruben and yourself have monthly general follow-on discussions to discuss the progress of the acquisition and discuss any lessons learned You inform Ruben about the mistake you made

Ruben The protest must be sufficiently specific to prove affiliation Some basis for the belief must be stated The SBA would not act on the protest IAW CFR 1211007(c) the SBA protest regulations

Screen 36 Your office CONSEQUENCE OF YOUR ACTIONS 13 CFR 1211007(a) A protest challenging the size of a concern which does not pertain to a particular procurement or sale will not be acted on by SBA While it is true that a concern can be small andor large depending on the procurements NAICS code and corresponding size standard the size protest would be denied because it must be related to a particular procurement

Screen 37 Your office

Ruben Did you take a look at 13 CFR 1211007 What is required for a protest of size to be considered by SBA

Activity 24-3 Your office

Question Ruben In accordance with 13 CFR 1211007 what is required for a size protest to be

considered by SBA

Choice 1 A concern is considered a small and a large depending on the particular size standard

Proceed to screen 38

Choice 2 The size status protest must relate to a particular procurement and be specific to

provide reasonable notice as to the grounds upon which the protested concernrsquos size is

questioned Proceed to screen 41

Screen 38 Your office

Ruben You do realize that a concerns size can fluctuate between small and large depending on

the particular procurement assigned NAICS size standards If you counsel industry you need to

realize this

Screen 39 Your office CONSEQUENCE OF YOUR ACTIONS 13 CFR 1211007(a) A protest

challenging the size of a concern which does not pertain to a particular procurement or sale will

not be acted on by SBA While it is true that a concern can be small andor large depending on

the procurements NAICS code and corresponding size standard the size protest would be

denied because it must be related to a particular procurement

Screen 40 Your office

Ruben You cannot keep informing industry and the agency in this way You need to refer to the

regulations before giving advice I will need to report this to the commander Do not give any

more advice without looking at the regulations I will see you next month Proceed to screen 43

Screen 41 Your office

Ruben That is correct In the future do not give any more advice without looking at the

regulations I will see you next month

Screen 42 Your office

Phil Thank you I will send out the protest today Goodbye

Screen 43 Your office FEEDBACK A protest challenging the size of a concern must pertain to a

particular procurement or sale Additionally a size protest must be sufficiently specific to

provide reasonable notice as to the grounds upon which the protested concerns size is

questioned No particular form is prescribed for a protest Where materials supporting the

protest are available they should be submitted with the protest Size protests which do not

meet 13 CFR 1211007 requirements will be dismissed by SBA

Screen 44 Your office TWO DAYS LATER

To You SBP Attachment Protest

From Connie Contracting Officer

Subject Size Protest

Hello

After lunch if you could please meet Jenny and I in the conference room I have received the

protest from ELMO and just want to make sure I handle my part The protest document is

attached to this message Please read it before going to see Jenny

Thanks

Connie

Contracting Officer

Screen 45 Conference room LATER THAT DAY

Connie Thanks for coming by ELMO has submitted their small business size representation protest Could you please tell me what needs to be included

Activity 45-1 Conference room

Question Connie What should a small business size representation protest contain

Choice 1 According to FAR 19302(c) a small business size representation protest shall include

the basis for the protest and a referral letter written by the Contracting Officer with

information pertaining to the solicitation - Proceed to screen 73

Choice 2 According to FAR 19302(c)(3) a small business size representation protest shall

include a referral letter written by the Program Manager with information addressing the

solicitation - Proceed to screen 46

Choice 3 According to FAR 19302(c)(3) a small business size representation protest shall

include a copy of the solicitation and all offerors bid - Proceed to screen 59

Screen 46 Conference room

Connie Oh ok Asha needs to fill out the referral letter Please give her a call

Screen 47 Conference room

Asha Hello Asha speaking How may I help you

Screen 48 Conference room

Connie Hey Asha Itrsquos me Connie I have Jenny and the SBP here with me The SBP has just informed me that the Program Manager needs to fill out the referral letter for the size protest

Screen 49 Conference room

Asha Are you sure I have never filled out a referral letter before What must a small business representation protest need to include

Activity 45-2 Conference room

Question Asha What should a small business size representation protest contain

Choice 1 According to FAR 19302(c)(3) a small business size representation protest shall include a copy of the solicitation and all offerorsrsquo bids - Proceed to screen 50

Choice 2 According to FAR 19302(c) a small business size representation protest shall include the basis for the protest and a referral letter written by the Contracting Officer with information pertaining to the solicitation - Proceed to screen 73

Screen 50 Conference room

Asha Ok if you want me to fill out the referral letter I can have it completed by tomorrow You will need to gather the solicitation and offerorsrsquo bids

Screen 51 conference room

Connie Thank you Asha

Screen 52 Your office TWO DAYS LATER - As you enter your office the phone rings

Asha Hello this is Asha I just wanted to let you know that the SBA has returned the protest They stated that the Contracting Officer needs to fill out the referral letter SBA also included a list of items that the protest package should contain I left the list in your inbox

Screen 53 Your office read the protest package that is in your inbox

Screen 54 Your office THREE DAYS LATER

Asha I will get with Connie to make sure what the correct information gets sent to the SBA Bye

Screen 55 Conference room Connie has called a meeting of the team to discuss the size protest from ELMO

Connie Thank you everyone for coming As you all know the protest has slowed down the process of awarding the contract This mishap about who should fill out the referral letter has caused us even more delay which potentially will impact the delivery schedule

Screen 56 Conference room

Connie The protest package has been completed and sent back to the SBA Everything should be in order and now we just wait to hear back from the SBA I brought in copies of the referral letter and the CDI representation letter for everyone to take a look at

Screen 57 Conference room Read the Size Determination document

Screen 58 Conference room CONSEQUENCE OF YOUR ACTIONS The SBA sent back the protest This resulted in a delay of SBAs protest decision As a result there may be potential

delays for contract award and impacts to the programs overall costperformanceschedule

baseline

Screen 59 Conference room

Jenny Oh ok we just need to include the solicitation and all of the offerors bids I can gather

that information up in no time

Screen 60 Conference room

Connie Are you sure that is correct I thought somewhere in the regulations I read that we

were supposed to supply a letter and that the protester was supposed to come up with all the

other information

Activity 45-3 Conference room

Question Connie What should a small business size representation protest contain

Choice 1 According to FAR 19302(c) a small business size representation protest shall include

the basis for the protest and a referral letter written by the Contracting Officer with

information pertaining to the solicitation - Proceed to screen 73

Choice 2 According to FAR 19302(c)(3) a small business size representation protest shall

include a referral letter written by the Program Manager with information addressing the

solicitation - Proceed to screen 61

Screen 61 Conference room

Connie Oh ok Asha needs to fill out the referral letter Letrsquos give her a call

Screen 62 Conference room

Asha Hello Asha speaking How may I help you

Screen 63 Conference room

Connie Hey Asha Itrsquos me Connie I have Jenny and the SBP here with me The SBP has just

informed me that the Program Manager needs to fill out the referral letter for the size protest

Screen 64 Conference room

Asha Sure I can fill out the referral letter Irsquoll have it completed by tomorrow Bye

Screen 65 Conference room

Connie Once I receive the letter from Asha I will send it off to SBA Thanks Have a great rest of your day

Screen 66 Hour office TWO DAYS LATER - As you enter your office the phone rings

Asha Hello this is Asha I just wanted to let you know that the SBA has returned the protest They stated that the Contracting Officer needs to fill out the referral letter SBA also included a list of items that the protest package should contain I left the list in your inbox

Screen 67 Your office

Asha I will get with Connie to make sure that the correct information gets sent to the SBA Bye

Screen 68 Your office Read the Protest Package letter

Screen 69 Conference room THREE DAYS LATER - Connie has called a meeting of the team to discuss the size protest from ELMO

Connie Thank you everyone for coming As you all know the protest has slowed down the

process of awarding the contract This mishap about who should fill out the referral letter has

cause us even more delay which potentially will impact the delivery schedule

Screen 70 conference room

Connie The protest package has been completed and sent back to the SBA Everything should be in order and now we just wait to hear back from the SBA I brought in copies of the referral letter and the CDI representation letter for everyone to take a look at

Screen 71 Conference room Read the Referral Letter CDI Representation and Size Determination documents

Screen 72 Conference room CONSEQUENCE OF YOUR ACTIONS The SBA sent the protest back This has resulted in a delay in the SBA deciding the protest and potential delay of award of the contract which could result in a delay in performance of delivery or service resulting in additional costs to the Government

Screen 73 Conference room

Connie Thatrsquos it Ok I can definitely take care of that today Thank you

Screen 74 Your office It has been several days since you spoke to Connie about the small

business representation protest requirements As you sit down to start your day you notice you

have a voicemail

Jenny Hello Can you stop by the conference room when you get this message Thanks

Screen 75 Conference room

Connie Hello Thanks for coming I just wanted to inform you that the protest package has

been completed and sent back to the SBA Everything should be in order and now we just wait

to hear back from the SBA I brought in copies of the referral letter and the CDI representation

letter for everyone to take a look at

Screen 76 Conference room Read the Referral Letter CDI Representation and Size

Determination documents

Screen 77 Conference room

FEEDBACK According to FAR 19302(c)(3) a small business representation protest shall include

the basis of the protest and include a referral letter signed by the Contracting Officer with

information pertaining to the solicitation and include (i) the protest and any accompanying

materials (ii) a copy of the size self-certification (iii) Identification of applicable size standard

(iv) a copy of the electronic link to the solicitation and any amendments (v) the name address

telephone number email address and number of the Contracting Officer (vi) identification of

the bid opening date or date of notification provided to unsuccessful offerors (vii) the date the

Contracting Officer received the protest (viii) a complete address and point of contact for the

protested concern An offeror the SBA or another interested party may protest the small

business representation of an offeror in a specific offer (FAR 19302(a)(2)) For competitive 8(a)

contracts the filing of a protest is limited to the Contracting Officer an offeror or the SBA The

Contracting Officer may also submit a small business representation protest at any time before

or after award (FAR 19302(a) and (b))

Screen 78 Your office A WEEK LATER - As you come back from lunch with Janet you get a visit

from Jenny She has not heard anything about the protest for several days and would like

clarification on the protest process with the SBA

Jenny Hi I just wanted to clarify the notification process of the protest It has been five days

since the documents were submitted to the SBA and we have not heard anything as of yet

Connie also gave me this form that I am unfamiliar with I put it in your inbox

Screen 79 Your office Read the SBA Form 355

Screen 80 Your office

Jenny Hey Janet what is the SBA Government Contracting Area Directors process after

receiving a size determination protest

Screen 81 Your office

Janet When SBA receives a size protest the SBA Area Director for Government Contracting or

designee will notify the contracting officer the protested concern and the protestor that the

protest has been received SBA will provide a blank copy of SBA Form 355 Application for Small

Business Determination to the concern whose size is at issue The protested concern or

concern whose size is at issue must return the completed SBA Form 355 and all other requested

information to SBA within 3 working days from the date of receipt of the blank form from SBA

SBA has discretion to grant an extension of time to file the form After receipt of a protest or a

request for a formal size determination the SBA Area Office will issue a formal size

determination within 15 business days if possible or within an extension granted by the

Contracting Officer in accordance with FAR 19302(e)

Screen 82 Your office

Jenny Thank you for clarifying the process Irsquoll see you both later

Screen 83 Your office

Janet Yes I have to get back to the office too Irsquoll see you later

Screen 84 Your office THE NEXT DAY - You re-enter your office from a break and receive a

phone call

Jenny Hello I forgot to ask when the Contracting Officer may award a contract that has a small

business size protest

Activity 84-1 Your office

Question Jenny When may the Contracting Officer award a contract that has been protested

Choice 1 Only after the SBA makes a determination of the small business representation

protest - Proceed to screen 85

Choice 2 When the SBA makes a decision or 15 business days have expired whichever comes

first however the CO may award a contract before an SBA determination is made when he

makes a written determination that award must be made to protect public interest - Proceed

to screen 105

Choice 3 The Contracting Officer does not have to wait for SBA to make the determination -

Proceed to screen 95

Screen 85 Your office

Jenny Ok so I guess we just wait until the SBA makes a determination Thanks

Screen 86 Program Managerrsquos Office THE NEXT DAY - Asha has requested that you come by

her office As you walk into Asharsquos office Connie is already there

Asha Connie was just informing me that she has decided to wait on SBAs decision about the

protest before awarding the contract Just want to inform the both of you that the incumbent

contract expires 18 days after the submittal of the protest to the SBA

Screen 87 Program Managerrsquos Office

Connie That is a good point Asha The risk of me waiting too long will result in expiration of the

contract A lapse between contracts is unacceptable as that may adversely impact the

warfighter

Activity 84-2 Program Managerrsquos Office

Question Connie When may the Contracting Officer award a contract that has been

protested

Choice 1 When the SBA makes a decision or 15 business days have expired whichever comes

first however the CO may award a contract before an SBA determination is made when he

makes a written determination that award must be made to protect public interest - Proceed

to screen 103

Choice 2 The Contracting Officer does not have to wait for SBA to make the determination -

Proceed to screen 88

Screen 88 Program Managerrsquos Office

Connie If that is the case letrsquos wait about a week and then award the contract Thanks

everyone

Screen 90 Your office FIVE DAYS LATER - SBA renders its decision on the required 15th

business day finding that the apparent successful offeror was not eligible for the award

Connie Meeting today at 2 PM

Screen 91 Conference room 2 PM - Connie has called in Asha Jenny and Ian to the

conference room

Connie As you are aware SBA came back with the decision that ELMO was not eligible for the

award Because it is so close to the completion of the source selection we may be able to go

back and award to the offeror that was second in line based on evaluation results

Screen 92 Conference room

Ian We would have to get the acquisition team together with legal SBA and leadership but

we might be able to accomplish that without having to start the procurement over again

Screen 93 Conference room

Connie Thanks everyone I will keep you posted

Screen 94 Conference room CONSEQUENCE OF YOUR ACTIONS Awarding the contract

without waiting for SBA to make a decision on the appeal is a violation of FAR policy (FAR

19302(g)(2) this type of violation could result in significant impacts inclusive of the

Contracting Officer having to terminate the unauthorized contract Additional fallout may occur

by having to re-accomplish the procurement entirely since the source selection was effectively

completed upon award of the unauthorized contract to the ineligible company Reprocurement

risk would be dependent upon the acquisition circumstances timing and viewpoints of the key

stakeholders and decision-makers

FEEDBACK After receiving a size protest involving a new procurement the Contracting Officer

shall not award the contract until the SBA has made a size determination or after 15 business

days have expired whichever comes first However the Contracting Officer may award a

contract before an SBA determination is made when shehe makes a written determination

that award must be made to protect the public interest (FAR 19302(g)(1))

Screen 95 Your office

Jenny Ok I will inform Connie Thanks

Screen 96 COrsquos office LATER THAT DAY - Connie has asked you to come by her office

Connie Hello Thanks for coming by Jenny tells me that you said that we do not need to wait

for SBA to make the determination about the size protest What happens if we award the

contract and then SBA finds the apparent successful offeror was not eligible for the award

Maybe you should double check the regulation

Activity 84-3 COrsquos office

Question Connie When may the Contracting Officer award a contract that has been

protested

Choice 1 Only after the SBA makes a determination of the small business representation

protest - Proceed to screen 97

Choice 2 When the SBA makes a decision or 15 business days have expired whichever comes

first however the CO may award a contract before an SBA determination is made when he

makes a written determination that award must be made to protect public interest - Proceed

to screen 104

Screen 97 COrsquos office

Connie Ok so I guess we just wait until the SBA makes a determination

Screen 98 Program Managerrsquos Office LATER THAT DAY - Asha has requested that you come by

her office As you walk into Asharsquos office Connie is already there

Asha Connie was just informing me that she has decided to wait on SBAs decision about the

protest before awarding the contract Just want to inform the both of you that the current

contract expires 18 days after the submittal of the protest to the SBA

Screen 99 Program Managerrsquos Office

Connie That is a good point Asha The risk of me waiting too long will result in expiration of the

incumbents contract and work stoppage for security guard services

Screen 100 Program Managerrsquos Office

Asha I looked up the regulation and it states that we should wait up to 15 business days and

then we may award the contract

Screen 101 Program Managerrsquos Office

Connie Thanks That is what we will do and hopefully SBA will respond before the 15 days

Screen 102 Program Managerrsquos Office CONSEQUENCE OF YOUR ACTIONS Not thoroughly

understanding the protest procedures and being uninformed of program needs and imp acts

could result in adverse impacts to the warfighter

FEEDBACK After receiving a size protest involving a new procurement the Contracting Officer

shall not award the contract until the SBA has made a size determination or after 15 business

days have expired whichever comes first However the Contracting Officer may award a

contract before an SBA determination is made when shehe makes a written determination

that award must be made to protect the public interest (FAR 19302(g)(1))

Screen 103 Program Managerrsquos Office

Connie Ok we wait for 15 business days That sounds much better Thanks - Proceed to

screen 106

Screen 104 COrsquos office

FEEDBACK After receiving a size protest involving a new procurement the Contracting Officer

shall not award the contract until the SBA has made a size determination or after 15 business

days have expired whichever comes first However the Contracting Officer may award a

contract before an SBA determination is made when shehe makes a written determination

that award must be made to protect the public interest (FAR 19302(g)(1))

Connie Ok we wait for 15 business days That sounds much better Thanks - Proceed to

screen 107

Screen 105 Your office

FEEDBACK After receiving a size protest involving a new procurement the Contracting Officer shall not award the contract until the SBA has made a size determination or after 15 business days have expired whichever comes first However the Contracting Officer may award a contract before an SBA determination is made when shehe makes a written determination that award must be made to protect the public interest (FAR 19302(g)(1))

Jenny Ok we wait for 15 business days Thanks - Proceed to screen 107

Screen 106 Program Managerrsquos office FEEDBACK After receiving a size protest involving a new procurement the Contracting Officer shall not award the contract until the SBA has made a size determination or after 15 business days have expired whichever comes first However the Contracting Officer may award a contract before an SBA determination is made when shehe makes a written determination that award must be made to protect the public interest (FAR 19302(g)(1))

Screen 107 Your office TWO DAYS LATER - Itrsquos been two days since your conversation with Jenny You notice that you have a new e-mail

To Acquisition Team Attachment Appeal Letter

From Grace CDI Contractor

Subject ELMO protest upheld

Hello

I just heard that ELMOs protest was upheld We believe the decision was based on erroneous information so we want to appeal Can you give me some guidance in the process for submitting an appeal

I have attached the appeal and size determination letters

Sincerely

Grace CDI Contractor

Activity 107-1 Your office

Question Grace What is the process for submitting an appeal for a size protest determination

Choice 1 IAW FAR 19302(h) an appeal may be filed with the SBA Office of Hearings and Appeals by any concern or interested party whose protest of the small business representation of another concern has been denied - Proceed to screen 111

Choice 2 An appeal may be filed by any concern or interested party to protest the small business representation of another concern to the Contracting Officer - Proceed to screen 108

Screen 108 Your office THREE DAYS LATER Connie comes by your office

Connie Hello there I just received the appeal from CDI through the mail channels and realized

that the protestor sent it to me in error I am having Jenny mail the appeal package back to CDI

Screen 109 Your office As you get back to your desk you notice that you have a voicemail

Grace Hello this is Grace from CDI Looks like I sent my appeal to the wrong location I was not

supposed to send it to the Contracting Officer I have re-sent the appeal to SBA OHA I hope

that its not too late because they will deny my appeal if untimely

Screen 110 Your office CONSEQUENCES OF YOUR ACTIONS Filing the appeal with the

Contracting Officer would result in lost time for the protestor because the appeal must be filed

with SBA OHA The concern encounters a greater risk of denial by SBA OHA if the appeal is not

filed within the time frame listed in Subpart C of 13 CFR 134

Screen 111 Your office The agency awaits confirmation from SBA OHA as to the standing of

the appeal and related impacts to the ongoing procurement You leave for the weekend

Screen 112 Your office FEEDBACK An appeal may be filed only when the small business

representation protest has been denied by the SBA Government Contracting Area Director and

within the time frames and in accordance with the procedures outlined in Subpart C of 13 CFR

Part 134 (IAW FAR 19302(h)) While a Contracting officer may file an appeal of their own the

concern or interested party must file the appeal to the SBA Office of Hearings and Appeals

(OHA) within the time frame and in accordance with the procedures listed in Subpart C of 13

CFR 134

Screen 113 Your office You return to the office on Monday morning You have a new e-mail

E-mail CDI appeal

To You SBP

From Connie Contracting Officer

Subject CDI Appeal

Hello

I would like to have a meeting with you and our lawyer Ian and Jenny to review the CDI size

appeal to the SBA Office of Hearings and Appeals Please check your calendar to see if you are

free tomorrow afternoon Let me know if you can make it

Sincerely

Connie

Contracting Officer

Screen 114 Conference room THE NEXT DAY - You Connie Jenny and the departmentrsquos

lawyer Ian are in a conference room

Ian Glad you could make the meeting We have been informed that Corporate Defenders is

appealing the SBAs decision Because of the potential impact the appeals process may have on

our current security guard services and before we make a decision on what we should do

about continuation of those services I would like to discuss the basis of the original size protest

by ELMO in the Corporate Defenders appeal to determine whether we think it will be denied

What was the basis of the original size protest by ELMO in the Corporate Defenders appeal

Screen 115 Conference room

Jenny The basis of the original protest is that Corporate Defenders Inc is affiliated with Rivers

under the ostensible subcontracting rule

Screen 116 Conference room

Connie Now that we have determined it is a size representation issue does this fall within the

affiliation under the ostensible subcontracting rule

Screen 117 Conference room

Ian The regulation defines an ostensible subcontractor as a subcontractor that performs

primary and vital requirements or when the prime contractor is unusually reliant upon the

subcontractor In this case CDI would be relying on the workforce and management of Rivers

to fulfill the requirements of the contract Therefore the combined size standards of CDI and

Rivers exceeds the size standard for this procurement according to 13 CFR 121103(h)(4)

Screen 118 Conference room

Connie The SBA Area Office found that under the ostensible subcontracting rule CDI was

considered a large business because of its affiliation with Rivers CDI appealed the ruling to the

SBA Office of Hearings and Appeals stating that CDI was not overly reliant on Rivers for

performing the contract and that CDI will serve as the prime contractor ELMO argued that

there is an ostensible subcontracting affiliation with CDI and Rivers and that Rivers is a large

business and thus CDI is ineligible for award What factors could lead to the appeal being

denied

Activity 118-1 Conference room

Question Connie What factors led to the appeal being denied

Choice 1 Rivers was a large business and thus ineligible for the award - Proceed to screen 119

Choice 2 CFR 121103(h)(4) states only the terms of the proposal are applicable to determining

the teaming agreement between the prime and subcontractor - Proceed to screen 123

Choice 3 There is ostensible subcontracting based on the fact that the proposed subcontractor

is the incumbent contractor and thus ineligible for award the prime contractor proposed to

hire the majority of the workforce from the subcontractor the prime contractors proposed

program manager previously served as program manager for the subcontractor on incumbent

contract and the prime contractor lacked experience with projects of the magnitude required

of this procurement This makes the offeror ineligible for award - Proceed to screen 127

Screen 119 Conference room

Ian I believe that is an incorrect assumption since Rivers was only going to perform 43 percent

of the work for a small business This alone would not make Rivers an ostensible subcontractor

Activity 118-2 Conference room

Question Connie What factors led to the appeal being denied

Choice 1 There is ostensible subcontracting based on the fact that the proposed subcontractor

was the incumbent contractor and thus ineligible for award - Proceed to screen 127

Choice 2 CFR 121103(h)(4) states that only the terms of the proposal are applicable to

determining the teaming agreement between the prime and subcontractor - Proceed to screen

120

Screen 120 Conference room

Ian I believe this is an incorrect assumption All aspects of the relationship between CDI and

Rivers are to be considered

Screen 121 Conference room

Connie Letrsquos reference back to the ruling and the reason why there was an ostensible

subcontract

Screen 122 Conference room

Connie It appears that there was ostensible subcontracting based on the fact that the

proposed subcontractor was the incumbent contractor and thus ineligible for award the prime

contractor proposed to hire the majority of the workforce from the subcontractor the prime

contractors proposed program manager previously served as program manager for the

subcontractor on incumbent contract and the prime contractor lacked experience with

projects of the magnitude required of this procurement - Proceed to screen 127

Screen 123 Conference room

Ian I believe this is an incorrect assumption All aspects of the relationship between CDI and

Rivers are to be considered

Activity 118-3 conference room

Question Ian What factors led to the appeal being denied

Choice 1 Rivers was a large business and thus ineligible for the award - Proceed to screen 124

Choice 2 There is ostensible subcontracting based on the fact that the proposed subcontractor

was the incumbent contractor and thus ineligible for award - Proceed to screen 127

Screen 124 Conference room

Ian I believe that is an incorrect assumption since Rivers was only going to perform 43 percent

of the work for a small business This alone would not make Rivers an ostensible subcontractor

Screen 125 Conference room

Connie Letrsquos reference back to the ruling and the reason why there was an ostensible

subcontract

Screen 126 Conference room

Connie It appears that there was ostensible subcontracting based on the fact that the

proposed subcontractor was the incumbent contractor and thus ineligible for award the prime

contractor proposed to hire the majority of the workforce from the subcontractor the p rime

contractors proposed program manager previously served as program manager for the

subcontractor on incumbent contract and the prime contractor lacked experience with

projects of the magnitude required of this procurement

Screen 127 Conference room

FEEDBACK CFR 121103(h)(4) states all aspects of the relationship between the prime and the

subcontractor are to be considered including but not limited to the terms of the proposal such

as contract management and the percentage of subcontract work agreement between the

prime and subcontractor and whether the subcontractor is the incumbent contractor and is

ineligible to submit a proposal because it exceeds the applicable size standard

Screen 128 Conference room

Connie I think we are good here Thank you for meeting Talk to you later

Screen 129 Conference room

SUMMARY Small Businesses are subject to a size protest on a small business set-aside before

award of a contract The SBA will normally make a determination of size status within 15 days

of receipt of protest To be considered by the SBA it is necessary that the protest be specific

and timely

FAR 19302 and 13 CFR Part 121 provide the specific rules for submitting a size representation

An appeal can be made to the SBA Office of Hearing and Appeals for re-consideration of an SBA

Area Office size protest decision In determining size protests the SBA will consider receipts

number of employees and affiliations of the protested concerns In examining affiliations the

SBA will look for an ostensible subcontracting relationship in which the subcontractor that

performs primary and vital requirements of a contract or a subcontractor upon which the prime

contractor is unusually reliant

If affiliation is found and the prime and the sub are considered large due then award cannot

be made If a size protest is not submitted timely or does not contain sufficient information to

make a size determination the protest will be dismissed The SBP role is to ensure that the

organization is aware of the regulations governing the SBA size protests

When a Small Business size representation protest andor an appeal to a size protest is

received the SBPs role is to advise and assist the acquisition team and Contracting Officer with

interpretation and application of corresponding FAR Part 19 and SBA 13 CFR requirements The

SBP may also advise the offeror or contractor on the procedures for submitting a protest prior

to issuing a solicitation After the solicitation has been issued all communication must be

through the Contracting Officer While this scenario discusses the procedures for a small

business representation protest the SBP needs to be aware that the socio-economic programs

ie HUBZones SDVOSB 8(a) and WOSB each have slightly different procedures which are set-

forth in FAR Part 19 Close attention must be made to both the applicable FAR Part 19 and SBA

13 CFR 121 requirements to provide proper advice and guidance on each type of protest and

appeal

Screen 130 Conference room This concludes the simulation The After Action Report (AAR) has

been created Download the AAR and review your performance in the simulation

After viewing the AAR use the browser close button to close this simulation and return to

screen 3 in the Size Protest lesson to complete this lesson

SBP220 Business Decisions for Small Business lesson 11 - Size Pr otest Simulation RESOURCES I PRINT I HELP

Summary

I Poge 5 of6 I Back Next

SBP220 Business Decisions for Small Business lesson 11 - Size Protest Simulation RESOURCES 1 PRINT 1 HELP

Summary

Closed Captioning Congratulations you have completed the Size Protest Simulation During this simulation you participated in activities common to interpreting data to verify the size of a small business Ensure that you review your After Action Report and if you did not respond correctly to all activities consider going through the simula tion again

I Pogo 5of6 I Back Next

SBP220 Business Decisions for Small Business lesson 11 - Size Protest Simulation RESOURCES I PRINT I HELP

Summary

Poge 5of6 I Back Next

SBP220 Business Decisions for Small Business Lesson 11 - Size Pr otest Simulation RESOURCES j PRINT j HElP

Lesson Completion

You have comple ted the con tent for this lesson

To continue select another lesson from the Table of Con tents on the le f t

If you have closed or hidden the Table of Contents select the Show T OC button at the t op in the Atlas navigation bar

~ I P o ge 6 of6 I Back Next

SBP220 Business Decisions for Small Business Lesson 11 - Size Protest Simulation RESOURCES I PRINT I HELP

Size Protest Simulation

This simulation will open and be conducted in a separate window Once you begin you are an Actor and must initiate the necessary actions to progress through the simulation Pay careful attention to the instructional prompts to determine what to do next Your Tablet is a valuable resource and will allow you to research the FAR DFARS and many other pertinent Federal and DOD Acquisition Websites and reference materials

Throughout the simulation you will make many business decisions involving knowledge and judgment When you apply your knowledge and exercise good judgment in providing guidance your actions will be affirmed with FEED BACK screens However when you incorrectly apply your knowledge and exercise poor judgement in providing guidance your credibility as a small business professional is on the line

You never want to tarnish your credibility as a consummate small business professional It is good to recognize mistakes and learn from them quickly Therefore if you make incorrect decisions in this simulation you will learn of them through the CONSEQU ENCE O F YOUR ACTIONS screen as you progress through the simulation

Select the Size Protest image below to launch the simulation The simulation will open in a new window After comple all simulation activities return to this screen and select Next to continue

Back Next

SBP220 Business Decisions for Small Business l esson 11 -Size Protest Simulation RESOURCES I PRINT 1 HELP

Size Protest Simulation

This simulation will open and be conducted in a separate window Once you begin you are an Actor and must initiate the necessary actions to progress through the simulation Pay careful attention to the instructional prompts to determine what to do next Your Tablet is a valuable resource and will allow you to research the FAR DFARS and many other pertinent Federal and DOD Acquisition Websites and reference materials

Throughout the simulation you will make many business decisions involving knowledge and judgment When you apply your knowledge and exercise good judgment in providing guidance your actions will be affirmed with FEEDBACK screens However when you incorrectly apply your knowledge and exercise poor judgement in providing guidance your credibility as a small business professional is on the line

You never want to tarnish your credibility as a consummate small business professional It is good to recognize mistakes and learn from them quickly Therefore if you make incorrect decisions in this simulation you will learn of them through the CONSEQU ENCE O F YOUR ACTIONS screen as you progress through the simulation

Select the Size Protest image below to launch the simulation The simulation will open in a new window After ting all simulation activities return to this screen and select Next to continue

Closed Capt ioning This simulation will open and be conducted in a separate window Once you begin you are an actor and must initiate the necessary actions to progress through the simulation Pay careful attention to the instructional prompts to determine what to do next Your Tablet is a valuable resource and will allow you to research the FAR DFARS and many other pertinent Federal and DOD Acquisition Websites and reference materials

Select Size Protest Simulation to begin

Back Next

Screen 1 Your Office This acquisition is a small business set-aside for a follow on contract for

security guard services Corporate Defenders Inc (CDI) is the apparent successful offeror CDIs

primary subcontractor is Rivers who is the incumbent contractor and will be providing

management support as well as some of their employees for this follow-on effort East Lake

Management Operation (ELMO) received their Pre-award notice IAW FAR 15503(a)(2)(ii)

indicating that CDI is the apparent successful offeror They have decided to protest the small

business representation for CDI based on the affiliation with Rivers While sitting at your desk

you notice you have a new voicemail

Connie Hello I am just checking with you to make sure you are available to meet with Jenny

our Contracting Specialist concerning the East Lake size protest of the apparent award to CDI I

will be out for a couple of weeks and she will be watching over things in my absence Please

meet her in the conference room at 100pm By the way I left the abstract from the CDI

proposal in your inbox

Screen 2 Your Office Open the Abstract of CDI Document

Screen 3 Conference Room Jenny Thanks for coming in Now that we have sent a Pre-award

notice that CDI is the apparent successful offeror I see that East Lake is protesting the size

status based on affiliation with Rivers With Connie being out I need some guidance What are

the procedures for a size protest

Activity 3-1 Conference Room Jenny How can an offeror protest a small business size

representation

Choice 1 As stated in FAR 19302(c)(2) the protest or confirmation of the protest if initiated

orally shall be in writing Proceed to screen 21

Choice 2 As stated in FAR 19302(c)(2) an offeror can only protest orally and then must follow-

up with a written protest Proceed to screen 4

Choice 3 A protest may be made orally if it is confirmed in writing and received by the

Contracting Officer within the 30-day period or by letter postmarked no later than 1 business

day after the oral protest (FAR 19302(d)(1)(i)) Proceed to screen 12

Screen 4 Conference Room

Jenny Really I will inform the offeror that they can only submit the protest orally Thank you

for your time I assume I will have more questions

Screen 5 Your Office THE NEXT DAY - Coming back from lunch you notice that you have a

voicemail

Phil Hello My name is Phil I am the owner of the small business East Lake Management

Operation better known as ELMO I am in the process of sending in a size protest Jenny

informed me that I could only protest orally I called SBA and they told me that the protest

could be in writing I am not pleased I will be citing this in the written protest

Screen 6 Your Office You have called Ruben the senior SBP to keep him informed of the

events

Ruben Hello this is Ruben Thanks for the back brief of events You need to ensure that you

learn the policies and provide accurate counselling If you are in doubt please review the

regulations It will be an embarrassment if this is written up in the protest

Screen 7 Your Office CONSEQUENCE OF YOUR ACTIONS Requiring all protests to be oral is not

consistent with FAR policy While FAR 19302(c)(2) allows size representation protests to be

initially submitted orally they must be followed up in writing protests can also be initially

submitted in writing All size representation protests must include the basis for the protest with

specific detailed evidence to support the allegation that the offeror is not small As a SBP it is

important that you provide accurate policy guidance when advising industry and Government

personnel to ensure you maintain credibility as a small business expert

Screen 8 Your office

Ruben Do you now understand the regulation How can an offeror protest a small business

size representation

Activity 3-2 Your office Ruben How can an offeror protest a small business size

representation

Choice 1 As stated in FAR 19302(c)(2) The protest or confirmation of the protest if initiated

orally shall be in writing Proceed to screen 20

Choice 2 A protest may be made orally if it is confirmed in writing and received by the

Contracting Officer within the 30-day period or by letter postmarked no later than 1 business

day after the oral protest (FAR 19302(d)(1)(i)) Proceed to screen 9

Screen 9 Your office

Ruben That is incorrect A protest may be made orally within the 5-day period if it is confirmed

in writing and received by the Contracting Officer or by letter postmarked no later than 1

business day after the oral protest

Screen 10 Your office CONSEQUENCE OF YOUR ACTIONS Advising a concern that they have 30

days to submit a protest would result in the SBA denying the protest as untimely While it is the

responsibility of the contractor to know what the FAR requires providing incorrect advice and

counsel too often will adversely impact your credibility and reputation as a SBP and expert in

your field

Screen 11 Your office

Ruben Please contact the offeror and Jenny to inform them of the correct regulation I have to

reiterate that even though industry is responsible for knowing the FAR rules we cannot provide

false advice Have a good day and let me know if you need anything Proceed to screen 22

Screen 12 Conference Room

Jenny Really I will inform the offeror that a protest may be made orally if it is confirmed in

writing and received by the Contracting Officer within the 30-day period Thank you for clearing

that up for me

Screen 13 Your office THE NEXT DAY - Coming back from lunch you notice that you have a

voicemail

Phil Hello My name is Phil I am from ELMO I am in the process of sending in a size protest

Jenny informed me that I had up to 30 days That sounded suspicious so I called SBA They

informed me a protest may be made orally within the 5-day period if it is confirmed in writing

and received by the Contracting Officer or by letter postmarked no later than one business day

after the oral protest I am not pleased I will be citing this in the written protest

Screen 14 Your office THE NEXT DAY - You have contacted Ruben the senior SBP to keep him

informed of the events

Ruben Hello this is Ruben Thanks for the back brief of events You need to ensure that you

learn the policies and provide accurate counselling If you are in doubt please review the

regulations It will be an embarrassment if this is written up in the protest

Screen 15 Your office CONSEQUENCE OF YOUR ACTIONS Advising a concern that they have 30

days to submit a protest would result in the SBA denying the protest as untimely While it is the

responsibility of the contractor to know what the FAR requires providing incorrect advice and

counsel too often will adversely impact your credibility and reputation as a SBP and expert in

your field

Screen 16 Your office

Ruben Do you now understand the regulation How can an offeror protest a small business

size representation

Activity 3-3 Your office

Question Ruben How can an offeror protest a small business size representation

Choice 1 As stated in FAR 19302(c)(2) an offeror can only protest orally and then must

follow-up with a written protest Proceed to screen 17

Choice 2 As stated in FAR 19302(c)(2) The protest or confirmation of the protest if initiated

orally shall be in writing Proceed to screen 20

Screen 17 Your office

Ruben That is incorrect A protest may be made orally within the 5-day period if it is confirmed

in writing and received by the Contracting Officer or by letter postmarked no later than 1

business day after the oral protest

Screen 18 Your Office CONSEQUENCE OF YOUR ACTIONS Advising a concern that they have 30

days to submit a protest would result in the SBA denying the protest as untimely While it is the

responsibility of the contractor to know what the FAR requires providing incorrect advice and

counsel too often will adversely impact your credibility and reputation as a SBP and expert in

your field

Screen 19 Your office

Ruben Please contact the offeror and Jenny to inform them of the correct regulation I have to

reiterate that even though industry is responsible for knowing the FAR rules we cannot provide

false advice Have a good day and let me know if you need anything Proceed to screen 22

Screen 20 Your office

Ruben That is correct Please contact the offeror and Jenny to inform them of the correct

regulation Have a good day and let me know if you need anything

Screen 21 Conference room

Jenny Thank you for clearing that up for me If I need further assistance Ill give you a call

Screen 22 Your office FEEDBACK A protest may be made orally within the 5-day period if it is

confirmed in writing and received by the Contracting Officer or by letter postmarked no later

than 1 business day after the oral protest (FAR 19302(d)(1)(i)) A Contracting Officer may

submit a size protest at any time before or after award and it is considered timely (FAR

19302(d)(2))

You have completed the tasks Ruben asked you to perform It is the end of the week You have

closed your computer and stored your documents away You head for the lobby

Screen 23 Lobby TWO DAYS LATER - As you return to work on Monday morning you run into

Asha in the lobby

Asha Good morning Just wanted to inform you that ELMO wants to send a protest stating that

they had evidence that CDI was large and therefore should not be considered for the award of

any small business set-aside contract for our Army base Have a great day

Screen 24 Your office Entering your office you get a phone call

Phil Hello this is Phil from ELMO I am assuming you heard about the protest Before we send

in the protest letter could you please tell me what is required for a size protest to be

considered by SBA

Activity 24-1 Your office

Question Phil In accordance with 13 CFR 1211007 what is required for a protest of size

status to be considered by SBA

Choice 1 A concern is considered a small and a large depending on the particular size standard

Proceed to screen 25

Choice 2 The size protest must demonstrate that the offeror being protested is considered

large based on presumed affiliation with a large business Proceed to screen 33

Choice 3 The size status protest must relate to a particular procurement and be specific to

provide reasonable notice as to the grounds upon which the protested concerns size is

questioned Proceed to screen 42

Screen 25 Your office

Phil Thank you I will send out the protest later today

Screen 26 Your office Entering your office you notice you have an e-mail

To Acquisition Team

From Connie Contracting Officer

Subject Size Protest E-mail Attachment Protest Letter

Hello

Just wanted to inform the SBA would not act on ELMOs protest I have received notice that the size protest is not being considered

I have also attached a copy of the protest

VR

Connie Contracting Officer

Screen 27 Your office Ruben meets with you weekly to review the status of acquisitions and

discuss any lessons learned During this weekly meeting you inform Ruben about the mistake

you made in informing the protestor that a concern is considered a small and a large depending

on the particular size standard

Ruben You do realize that a concerns size can fluctuate between small and large depending on

the particular procurement assigned NAICS size standards If you counsel industry you need to

realize this

Screen 28 Your office CONSEQUENCE OF YOUR ACTIONS 13 CFR 1211007(a) A protest

challenging the size of a concern which does not pertain to a particular procurement or sale will

not be acted on by SBA While it is true that a concern can be small andor large depending on

the procurements NAICS code and corresponding size standard the size protest would be

denied because it must be related to a particular procurement

Screen 29 Your office

Ruben Did you take a look at 13 CFR 1211007 What is required for a size protest to be

considered by SBA

Activity 24-2 Your office

Question Ruben In accordance with 13 CFR 1211007 what is required for a size protest to be

considered by SBA

Choice 1 The size status protest must relate to a particular procurement and be specific to

provide reasonable notice as to the grounds upon which the protested concerns size is

questioned Proceed to screen 41

Choice 2 The size protest must demonstrate that the offeror being protested is considered

large based on presumed affiliation with a large business Proceed to screen 30

Screen 30 Your office

Ruben Thatrsquos not quite right The protest must be sufficiently specific to prove affiliation Some

basis for the belief must be stated The SBA would not act on the protest IAW CFR 1211007(c)

the SBA protest regulations

Screen 31 Your office CONSEQUENCE OF YOUR ACTIONS 13 CFR 1211007(c) Non-specific

protests will be dismissed The protestor must present proof of affiliation and also relate it to a

specific procurement The protest would be denied because it is not specific The protestor sent

a copy of the protest stating there was presumed affiliation with a large business and therefore

should not be considered for the award of any small business set-aside contract

Screen 32 Your office

Ruben You cannot keep informing industry and the agency in this way You need to refer to the regulations before giving advice I will need to report this to the commander Do not give any more advice without looking at the regulations I will see you next month Proceed to screen 43

Screen 33 Your office

Phil Thank you I will send out the protest later today

Screen 34 Your office

To Acquisition Team

From Connie Contracting Officer

Subject Size Protest Attachment Protest Letter

Hello

Just wanted to inform the SBA would not act on ELMOs protest I have received notice that the size protest is not being considered

I have also attached a copy of the protest

VR

Connie

Contracting officer

Screen 35 Your office Ruben and yourself have monthly general follow-on discussions to discuss the progress of the acquisition and discuss any lessons learned You inform Ruben about the mistake you made

Ruben The protest must be sufficiently specific to prove affiliation Some basis for the belief must be stated The SBA would not act on the protest IAW CFR 1211007(c) the SBA protest regulations

Screen 36 Your office CONSEQUENCE OF YOUR ACTIONS 13 CFR 1211007(a) A protest challenging the size of a concern which does not pertain to a particular procurement or sale will not be acted on by SBA While it is true that a concern can be small andor large depending on the procurements NAICS code and corresponding size standard the size protest would be denied because it must be related to a particular procurement

Screen 37 Your office

Ruben Did you take a look at 13 CFR 1211007 What is required for a protest of size to be considered by SBA

Activity 24-3 Your office

Question Ruben In accordance with 13 CFR 1211007 what is required for a size protest to be

considered by SBA

Choice 1 A concern is considered a small and a large depending on the particular size standard

Proceed to screen 38

Choice 2 The size status protest must relate to a particular procurement and be specific to

provide reasonable notice as to the grounds upon which the protested concernrsquos size is

questioned Proceed to screen 41

Screen 38 Your office

Ruben You do realize that a concerns size can fluctuate between small and large depending on

the particular procurement assigned NAICS size standards If you counsel industry you need to

realize this

Screen 39 Your office CONSEQUENCE OF YOUR ACTIONS 13 CFR 1211007(a) A protest

challenging the size of a concern which does not pertain to a particular procurement or sale will

not be acted on by SBA While it is true that a concern can be small andor large depending on

the procurements NAICS code and corresponding size standard the size protest would be

denied because it must be related to a particular procurement

Screen 40 Your office

Ruben You cannot keep informing industry and the agency in this way You need to refer to the

regulations before giving advice I will need to report this to the commander Do not give any

more advice without looking at the regulations I will see you next month Proceed to screen 43

Screen 41 Your office

Ruben That is correct In the future do not give any more advice without looking at the

regulations I will see you next month

Screen 42 Your office

Phil Thank you I will send out the protest today Goodbye

Screen 43 Your office FEEDBACK A protest challenging the size of a concern must pertain to a

particular procurement or sale Additionally a size protest must be sufficiently specific to

provide reasonable notice as to the grounds upon which the protested concerns size is

questioned No particular form is prescribed for a protest Where materials supporting the

protest are available they should be submitted with the protest Size protests which do not

meet 13 CFR 1211007 requirements will be dismissed by SBA

Screen 44 Your office TWO DAYS LATER

To You SBP Attachment Protest

From Connie Contracting Officer

Subject Size Protest

Hello

After lunch if you could please meet Jenny and I in the conference room I have received the

protest from ELMO and just want to make sure I handle my part The protest document is

attached to this message Please read it before going to see Jenny

Thanks

Connie

Contracting Officer

Screen 45 Conference room LATER THAT DAY

Connie Thanks for coming by ELMO has submitted their small business size representation protest Could you please tell me what needs to be included

Activity 45-1 Conference room

Question Connie What should a small business size representation protest contain

Choice 1 According to FAR 19302(c) a small business size representation protest shall include

the basis for the protest and a referral letter written by the Contracting Officer with

information pertaining to the solicitation - Proceed to screen 73

Choice 2 According to FAR 19302(c)(3) a small business size representation protest shall

include a referral letter written by the Program Manager with information addressing the

solicitation - Proceed to screen 46

Choice 3 According to FAR 19302(c)(3) a small business size representation protest shall

include a copy of the solicitation and all offerors bid - Proceed to screen 59

Screen 46 Conference room

Connie Oh ok Asha needs to fill out the referral letter Please give her a call

Screen 47 Conference room

Asha Hello Asha speaking How may I help you

Screen 48 Conference room

Connie Hey Asha Itrsquos me Connie I have Jenny and the SBP here with me The SBP has just informed me that the Program Manager needs to fill out the referral letter for the size protest

Screen 49 Conference room

Asha Are you sure I have never filled out a referral letter before What must a small business representation protest need to include

Activity 45-2 Conference room

Question Asha What should a small business size representation protest contain

Choice 1 According to FAR 19302(c)(3) a small business size representation protest shall include a copy of the solicitation and all offerorsrsquo bids - Proceed to screen 50

Choice 2 According to FAR 19302(c) a small business size representation protest shall include the basis for the protest and a referral letter written by the Contracting Officer with information pertaining to the solicitation - Proceed to screen 73

Screen 50 Conference room

Asha Ok if you want me to fill out the referral letter I can have it completed by tomorrow You will need to gather the solicitation and offerorsrsquo bids

Screen 51 conference room

Connie Thank you Asha

Screen 52 Your office TWO DAYS LATER - As you enter your office the phone rings

Asha Hello this is Asha I just wanted to let you know that the SBA has returned the protest They stated that the Contracting Officer needs to fill out the referral letter SBA also included a list of items that the protest package should contain I left the list in your inbox

Screen 53 Your office read the protest package that is in your inbox

Screen 54 Your office THREE DAYS LATER

Asha I will get with Connie to make sure what the correct information gets sent to the SBA Bye

Screen 55 Conference room Connie has called a meeting of the team to discuss the size protest from ELMO

Connie Thank you everyone for coming As you all know the protest has slowed down the process of awarding the contract This mishap about who should fill out the referral letter has caused us even more delay which potentially will impact the delivery schedule

Screen 56 Conference room

Connie The protest package has been completed and sent back to the SBA Everything should be in order and now we just wait to hear back from the SBA I brought in copies of the referral letter and the CDI representation letter for everyone to take a look at

Screen 57 Conference room Read the Size Determination document

Screen 58 Conference room CONSEQUENCE OF YOUR ACTIONS The SBA sent back the protest This resulted in a delay of SBAs protest decision As a result there may be potential

delays for contract award and impacts to the programs overall costperformanceschedule

baseline

Screen 59 Conference room

Jenny Oh ok we just need to include the solicitation and all of the offerors bids I can gather

that information up in no time

Screen 60 Conference room

Connie Are you sure that is correct I thought somewhere in the regulations I read that we

were supposed to supply a letter and that the protester was supposed to come up with all the

other information

Activity 45-3 Conference room

Question Connie What should a small business size representation protest contain

Choice 1 According to FAR 19302(c) a small business size representation protest shall include

the basis for the protest and a referral letter written by the Contracting Officer with

information pertaining to the solicitation - Proceed to screen 73

Choice 2 According to FAR 19302(c)(3) a small business size representation protest shall

include a referral letter written by the Program Manager with information addressing the

solicitation - Proceed to screen 61

Screen 61 Conference room

Connie Oh ok Asha needs to fill out the referral letter Letrsquos give her a call

Screen 62 Conference room

Asha Hello Asha speaking How may I help you

Screen 63 Conference room

Connie Hey Asha Itrsquos me Connie I have Jenny and the SBP here with me The SBP has just

informed me that the Program Manager needs to fill out the referral letter for the size protest

Screen 64 Conference room

Asha Sure I can fill out the referral letter Irsquoll have it completed by tomorrow Bye

Screen 65 Conference room

Connie Once I receive the letter from Asha I will send it off to SBA Thanks Have a great rest of your day

Screen 66 Hour office TWO DAYS LATER - As you enter your office the phone rings

Asha Hello this is Asha I just wanted to let you know that the SBA has returned the protest They stated that the Contracting Officer needs to fill out the referral letter SBA also included a list of items that the protest package should contain I left the list in your inbox

Screen 67 Your office

Asha I will get with Connie to make sure that the correct information gets sent to the SBA Bye

Screen 68 Your office Read the Protest Package letter

Screen 69 Conference room THREE DAYS LATER - Connie has called a meeting of the team to discuss the size protest from ELMO

Connie Thank you everyone for coming As you all know the protest has slowed down the

process of awarding the contract This mishap about who should fill out the referral letter has

cause us even more delay which potentially will impact the delivery schedule

Screen 70 conference room

Connie The protest package has been completed and sent back to the SBA Everything should be in order and now we just wait to hear back from the SBA I brought in copies of the referral letter and the CDI representation letter for everyone to take a look at

Screen 71 Conference room Read the Referral Letter CDI Representation and Size Determination documents

Screen 72 Conference room CONSEQUENCE OF YOUR ACTIONS The SBA sent the protest back This has resulted in a delay in the SBA deciding the protest and potential delay of award of the contract which could result in a delay in performance of delivery or service resulting in additional costs to the Government

Screen 73 Conference room

Connie Thatrsquos it Ok I can definitely take care of that today Thank you

Screen 74 Your office It has been several days since you spoke to Connie about the small

business representation protest requirements As you sit down to start your day you notice you

have a voicemail

Jenny Hello Can you stop by the conference room when you get this message Thanks

Screen 75 Conference room

Connie Hello Thanks for coming I just wanted to inform you that the protest package has

been completed and sent back to the SBA Everything should be in order and now we just wait

to hear back from the SBA I brought in copies of the referral letter and the CDI representation

letter for everyone to take a look at

Screen 76 Conference room Read the Referral Letter CDI Representation and Size

Determination documents

Screen 77 Conference room

FEEDBACK According to FAR 19302(c)(3) a small business representation protest shall include

the basis of the protest and include a referral letter signed by the Contracting Officer with

information pertaining to the solicitation and include (i) the protest and any accompanying

materials (ii) a copy of the size self-certification (iii) Identification of applicable size standard

(iv) a copy of the electronic link to the solicitation and any amendments (v) the name address

telephone number email address and number of the Contracting Officer (vi) identification of

the bid opening date or date of notification provided to unsuccessful offerors (vii) the date the

Contracting Officer received the protest (viii) a complete address and point of contact for the

protested concern An offeror the SBA or another interested party may protest the small

business representation of an offeror in a specific offer (FAR 19302(a)(2)) For competitive 8(a)

contracts the filing of a protest is limited to the Contracting Officer an offeror or the SBA The

Contracting Officer may also submit a small business representation protest at any time before

or after award (FAR 19302(a) and (b))

Screen 78 Your office A WEEK LATER - As you come back from lunch with Janet you get a visit

from Jenny She has not heard anything about the protest for several days and would like

clarification on the protest process with the SBA

Jenny Hi I just wanted to clarify the notification process of the protest It has been five days

since the documents were submitted to the SBA and we have not heard anything as of yet

Connie also gave me this form that I am unfamiliar with I put it in your inbox

Screen 79 Your office Read the SBA Form 355

Screen 80 Your office

Jenny Hey Janet what is the SBA Government Contracting Area Directors process after

receiving a size determination protest

Screen 81 Your office

Janet When SBA receives a size protest the SBA Area Director for Government Contracting or

designee will notify the contracting officer the protested concern and the protestor that the

protest has been received SBA will provide a blank copy of SBA Form 355 Application for Small

Business Determination to the concern whose size is at issue The protested concern or

concern whose size is at issue must return the completed SBA Form 355 and all other requested

information to SBA within 3 working days from the date of receipt of the blank form from SBA

SBA has discretion to grant an extension of time to file the form After receipt of a protest or a

request for a formal size determination the SBA Area Office will issue a formal size

determination within 15 business days if possible or within an extension granted by the

Contracting Officer in accordance with FAR 19302(e)

Screen 82 Your office

Jenny Thank you for clarifying the process Irsquoll see you both later

Screen 83 Your office

Janet Yes I have to get back to the office too Irsquoll see you later

Screen 84 Your office THE NEXT DAY - You re-enter your office from a break and receive a

phone call

Jenny Hello I forgot to ask when the Contracting Officer may award a contract that has a small

business size protest

Activity 84-1 Your office

Question Jenny When may the Contracting Officer award a contract that has been protested

Choice 1 Only after the SBA makes a determination of the small business representation

protest - Proceed to screen 85

Choice 2 When the SBA makes a decision or 15 business days have expired whichever comes

first however the CO may award a contract before an SBA determination is made when he

makes a written determination that award must be made to protect public interest - Proceed

to screen 105

Choice 3 The Contracting Officer does not have to wait for SBA to make the determination -

Proceed to screen 95

Screen 85 Your office

Jenny Ok so I guess we just wait until the SBA makes a determination Thanks

Screen 86 Program Managerrsquos Office THE NEXT DAY - Asha has requested that you come by

her office As you walk into Asharsquos office Connie is already there

Asha Connie was just informing me that she has decided to wait on SBAs decision about the

protest before awarding the contract Just want to inform the both of you that the incumbent

contract expires 18 days after the submittal of the protest to the SBA

Screen 87 Program Managerrsquos Office

Connie That is a good point Asha The risk of me waiting too long will result in expiration of the

contract A lapse between contracts is unacceptable as that may adversely impact the

warfighter

Activity 84-2 Program Managerrsquos Office

Question Connie When may the Contracting Officer award a contract that has been

protested

Choice 1 When the SBA makes a decision or 15 business days have expired whichever comes

first however the CO may award a contract before an SBA determination is made when he

makes a written determination that award must be made to protect public interest - Proceed

to screen 103

Choice 2 The Contracting Officer does not have to wait for SBA to make the determination -

Proceed to screen 88

Screen 88 Program Managerrsquos Office

Connie If that is the case letrsquos wait about a week and then award the contract Thanks

everyone

Screen 90 Your office FIVE DAYS LATER - SBA renders its decision on the required 15th

business day finding that the apparent successful offeror was not eligible for the award

Connie Meeting today at 2 PM

Screen 91 Conference room 2 PM - Connie has called in Asha Jenny and Ian to the

conference room

Connie As you are aware SBA came back with the decision that ELMO was not eligible for the

award Because it is so close to the completion of the source selection we may be able to go

back and award to the offeror that was second in line based on evaluation results

Screen 92 Conference room

Ian We would have to get the acquisition team together with legal SBA and leadership but

we might be able to accomplish that without having to start the procurement over again

Screen 93 Conference room

Connie Thanks everyone I will keep you posted

Screen 94 Conference room CONSEQUENCE OF YOUR ACTIONS Awarding the contract

without waiting for SBA to make a decision on the appeal is a violation of FAR policy (FAR

19302(g)(2) this type of violation could result in significant impacts inclusive of the

Contracting Officer having to terminate the unauthorized contract Additional fallout may occur

by having to re-accomplish the procurement entirely since the source selection was effectively

completed upon award of the unauthorized contract to the ineligible company Reprocurement

risk would be dependent upon the acquisition circumstances timing and viewpoints of the key

stakeholders and decision-makers

FEEDBACK After receiving a size protest involving a new procurement the Contracting Officer

shall not award the contract until the SBA has made a size determination or after 15 business

days have expired whichever comes first However the Contracting Officer may award a

contract before an SBA determination is made when shehe makes a written determination

that award must be made to protect the public interest (FAR 19302(g)(1))

Screen 95 Your office

Jenny Ok I will inform Connie Thanks

Screen 96 COrsquos office LATER THAT DAY - Connie has asked you to come by her office

Connie Hello Thanks for coming by Jenny tells me that you said that we do not need to wait

for SBA to make the determination about the size protest What happens if we award the

contract and then SBA finds the apparent successful offeror was not eligible for the award

Maybe you should double check the regulation

Activity 84-3 COrsquos office

Question Connie When may the Contracting Officer award a contract that has been

protested

Choice 1 Only after the SBA makes a determination of the small business representation

protest - Proceed to screen 97

Choice 2 When the SBA makes a decision or 15 business days have expired whichever comes

first however the CO may award a contract before an SBA determination is made when he

makes a written determination that award must be made to protect public interest - Proceed

to screen 104

Screen 97 COrsquos office

Connie Ok so I guess we just wait until the SBA makes a determination

Screen 98 Program Managerrsquos Office LATER THAT DAY - Asha has requested that you come by

her office As you walk into Asharsquos office Connie is already there

Asha Connie was just informing me that she has decided to wait on SBAs decision about the

protest before awarding the contract Just want to inform the both of you that the current

contract expires 18 days after the submittal of the protest to the SBA

Screen 99 Program Managerrsquos Office

Connie That is a good point Asha The risk of me waiting too long will result in expiration of the

incumbents contract and work stoppage for security guard services

Screen 100 Program Managerrsquos Office

Asha I looked up the regulation and it states that we should wait up to 15 business days and

then we may award the contract

Screen 101 Program Managerrsquos Office

Connie Thanks That is what we will do and hopefully SBA will respond before the 15 days

Screen 102 Program Managerrsquos Office CONSEQUENCE OF YOUR ACTIONS Not thoroughly

understanding the protest procedures and being uninformed of program needs and imp acts

could result in adverse impacts to the warfighter

FEEDBACK After receiving a size protest involving a new procurement the Contracting Officer

shall not award the contract until the SBA has made a size determination or after 15 business

days have expired whichever comes first However the Contracting Officer may award a

contract before an SBA determination is made when shehe makes a written determination

that award must be made to protect the public interest (FAR 19302(g)(1))

Screen 103 Program Managerrsquos Office

Connie Ok we wait for 15 business days That sounds much better Thanks - Proceed to

screen 106

Screen 104 COrsquos office

FEEDBACK After receiving a size protest involving a new procurement the Contracting Officer

shall not award the contract until the SBA has made a size determination or after 15 business

days have expired whichever comes first However the Contracting Officer may award a

contract before an SBA determination is made when shehe makes a written determination

that award must be made to protect the public interest (FAR 19302(g)(1))

Connie Ok we wait for 15 business days That sounds much better Thanks - Proceed to

screen 107

Screen 105 Your office

FEEDBACK After receiving a size protest involving a new procurement the Contracting Officer shall not award the contract until the SBA has made a size determination or after 15 business days have expired whichever comes first However the Contracting Officer may award a contract before an SBA determination is made when shehe makes a written determination that award must be made to protect the public interest (FAR 19302(g)(1))

Jenny Ok we wait for 15 business days Thanks - Proceed to screen 107

Screen 106 Program Managerrsquos office FEEDBACK After receiving a size protest involving a new procurement the Contracting Officer shall not award the contract until the SBA has made a size determination or after 15 business days have expired whichever comes first However the Contracting Officer may award a contract before an SBA determination is made when shehe makes a written determination that award must be made to protect the public interest (FAR 19302(g)(1))

Screen 107 Your office TWO DAYS LATER - Itrsquos been two days since your conversation with Jenny You notice that you have a new e-mail

To Acquisition Team Attachment Appeal Letter

From Grace CDI Contractor

Subject ELMO protest upheld

Hello

I just heard that ELMOs protest was upheld We believe the decision was based on erroneous information so we want to appeal Can you give me some guidance in the process for submitting an appeal

I have attached the appeal and size determination letters

Sincerely

Grace CDI Contractor

Activity 107-1 Your office

Question Grace What is the process for submitting an appeal for a size protest determination

Choice 1 IAW FAR 19302(h) an appeal may be filed with the SBA Office of Hearings and Appeals by any concern or interested party whose protest of the small business representation of another concern has been denied - Proceed to screen 111

Choice 2 An appeal may be filed by any concern or interested party to protest the small business representation of another concern to the Contracting Officer - Proceed to screen 108

Screen 108 Your office THREE DAYS LATER Connie comes by your office

Connie Hello there I just received the appeal from CDI through the mail channels and realized

that the protestor sent it to me in error I am having Jenny mail the appeal package back to CDI

Screen 109 Your office As you get back to your desk you notice that you have a voicemail

Grace Hello this is Grace from CDI Looks like I sent my appeal to the wrong location I was not

supposed to send it to the Contracting Officer I have re-sent the appeal to SBA OHA I hope

that its not too late because they will deny my appeal if untimely

Screen 110 Your office CONSEQUENCES OF YOUR ACTIONS Filing the appeal with the

Contracting Officer would result in lost time for the protestor because the appeal must be filed

with SBA OHA The concern encounters a greater risk of denial by SBA OHA if the appeal is not

filed within the time frame listed in Subpart C of 13 CFR 134

Screen 111 Your office The agency awaits confirmation from SBA OHA as to the standing of

the appeal and related impacts to the ongoing procurement You leave for the weekend

Screen 112 Your office FEEDBACK An appeal may be filed only when the small business

representation protest has been denied by the SBA Government Contracting Area Director and

within the time frames and in accordance with the procedures outlined in Subpart C of 13 CFR

Part 134 (IAW FAR 19302(h)) While a Contracting officer may file an appeal of their own the

concern or interested party must file the appeal to the SBA Office of Hearings and Appeals

(OHA) within the time frame and in accordance with the procedures listed in Subpart C of 13

CFR 134

Screen 113 Your office You return to the office on Monday morning You have a new e-mail

E-mail CDI appeal

To You SBP

From Connie Contracting Officer

Subject CDI Appeal

Hello

I would like to have a meeting with you and our lawyer Ian and Jenny to review the CDI size

appeal to the SBA Office of Hearings and Appeals Please check your calendar to see if you are

free tomorrow afternoon Let me know if you can make it

Sincerely

Connie

Contracting Officer

Screen 114 Conference room THE NEXT DAY - You Connie Jenny and the departmentrsquos

lawyer Ian are in a conference room

Ian Glad you could make the meeting We have been informed that Corporate Defenders is

appealing the SBAs decision Because of the potential impact the appeals process may have on

our current security guard services and before we make a decision on what we should do

about continuation of those services I would like to discuss the basis of the original size protest

by ELMO in the Corporate Defenders appeal to determine whether we think it will be denied

What was the basis of the original size protest by ELMO in the Corporate Defenders appeal

Screen 115 Conference room

Jenny The basis of the original protest is that Corporate Defenders Inc is affiliated with Rivers

under the ostensible subcontracting rule

Screen 116 Conference room

Connie Now that we have determined it is a size representation issue does this fall within the

affiliation under the ostensible subcontracting rule

Screen 117 Conference room

Ian The regulation defines an ostensible subcontractor as a subcontractor that performs

primary and vital requirements or when the prime contractor is unusually reliant upon the

subcontractor In this case CDI would be relying on the workforce and management of Rivers

to fulfill the requirements of the contract Therefore the combined size standards of CDI and

Rivers exceeds the size standard for this procurement according to 13 CFR 121103(h)(4)

Screen 118 Conference room

Connie The SBA Area Office found that under the ostensible subcontracting rule CDI was

considered a large business because of its affiliation with Rivers CDI appealed the ruling to the

SBA Office of Hearings and Appeals stating that CDI was not overly reliant on Rivers for

performing the contract and that CDI will serve as the prime contractor ELMO argued that

there is an ostensible subcontracting affiliation with CDI and Rivers and that Rivers is a large

business and thus CDI is ineligible for award What factors could lead to the appeal being

denied

Activity 118-1 Conference room

Question Connie What factors led to the appeal being denied

Choice 1 Rivers was a large business and thus ineligible for the award - Proceed to screen 119

Choice 2 CFR 121103(h)(4) states only the terms of the proposal are applicable to determining

the teaming agreement between the prime and subcontractor - Proceed to screen 123

Choice 3 There is ostensible subcontracting based on the fact that the proposed subcontractor

is the incumbent contractor and thus ineligible for award the prime contractor proposed to

hire the majority of the workforce from the subcontractor the prime contractors proposed

program manager previously served as program manager for the subcontractor on incumbent

contract and the prime contractor lacked experience with projects of the magnitude required

of this procurement This makes the offeror ineligible for award - Proceed to screen 127

Screen 119 Conference room

Ian I believe that is an incorrect assumption since Rivers was only going to perform 43 percent

of the work for a small business This alone would not make Rivers an ostensible subcontractor

Activity 118-2 Conference room

Question Connie What factors led to the appeal being denied

Choice 1 There is ostensible subcontracting based on the fact that the proposed subcontractor

was the incumbent contractor and thus ineligible for award - Proceed to screen 127

Choice 2 CFR 121103(h)(4) states that only the terms of the proposal are applicable to

determining the teaming agreement between the prime and subcontractor - Proceed to screen

120

Screen 120 Conference room

Ian I believe this is an incorrect assumption All aspects of the relationship between CDI and

Rivers are to be considered

Screen 121 Conference room

Connie Letrsquos reference back to the ruling and the reason why there was an ostensible

subcontract

Screen 122 Conference room

Connie It appears that there was ostensible subcontracting based on the fact that the

proposed subcontractor was the incumbent contractor and thus ineligible for award the prime

contractor proposed to hire the majority of the workforce from the subcontractor the prime

contractors proposed program manager previously served as program manager for the

subcontractor on incumbent contract and the prime contractor lacked experience with

projects of the magnitude required of this procurement - Proceed to screen 127

Screen 123 Conference room

Ian I believe this is an incorrect assumption All aspects of the relationship between CDI and

Rivers are to be considered

Activity 118-3 conference room

Question Ian What factors led to the appeal being denied

Choice 1 Rivers was a large business and thus ineligible for the award - Proceed to screen 124

Choice 2 There is ostensible subcontracting based on the fact that the proposed subcontractor

was the incumbent contractor and thus ineligible for award - Proceed to screen 127

Screen 124 Conference room

Ian I believe that is an incorrect assumption since Rivers was only going to perform 43 percent

of the work for a small business This alone would not make Rivers an ostensible subcontractor

Screen 125 Conference room

Connie Letrsquos reference back to the ruling and the reason why there was an ostensible

subcontract

Screen 126 Conference room

Connie It appears that there was ostensible subcontracting based on the fact that the

proposed subcontractor was the incumbent contractor and thus ineligible for award the prime

contractor proposed to hire the majority of the workforce from the subcontractor the p rime

contractors proposed program manager previously served as program manager for the

subcontractor on incumbent contract and the prime contractor lacked experience with

projects of the magnitude required of this procurement

Screen 127 Conference room

FEEDBACK CFR 121103(h)(4) states all aspects of the relationship between the prime and the

subcontractor are to be considered including but not limited to the terms of the proposal such

as contract management and the percentage of subcontract work agreement between the

prime and subcontractor and whether the subcontractor is the incumbent contractor and is

ineligible to submit a proposal because it exceeds the applicable size standard

Screen 128 Conference room

Connie I think we are good here Thank you for meeting Talk to you later

Screen 129 Conference room

SUMMARY Small Businesses are subject to a size protest on a small business set-aside before

award of a contract The SBA will normally make a determination of size status within 15 days

of receipt of protest To be considered by the SBA it is necessary that the protest be specific

and timely

FAR 19302 and 13 CFR Part 121 provide the specific rules for submitting a size representation

An appeal can be made to the SBA Office of Hearing and Appeals for re-consideration of an SBA

Area Office size protest decision In determining size protests the SBA will consider receipts

number of employees and affiliations of the protested concerns In examining affiliations the

SBA will look for an ostensible subcontracting relationship in which the subcontractor that

performs primary and vital requirements of a contract or a subcontractor upon which the prime

contractor is unusually reliant

If affiliation is found and the prime and the sub are considered large due then award cannot

be made If a size protest is not submitted timely or does not contain sufficient information to

make a size determination the protest will be dismissed The SBP role is to ensure that the

organization is aware of the regulations governing the SBA size protests

When a Small Business size representation protest andor an appeal to a size protest is

received the SBPs role is to advise and assist the acquisition team and Contracting Officer with

interpretation and application of corresponding FAR Part 19 and SBA 13 CFR requirements The

SBP may also advise the offeror or contractor on the procedures for submitting a protest prior

to issuing a solicitation After the solicitation has been issued all communication must be

through the Contracting Officer While this scenario discusses the procedures for a small

business representation protest the SBP needs to be aware that the socio-economic programs

ie HUBZones SDVOSB 8(a) and WOSB each have slightly different procedures which are set-

forth in FAR Part 19 Close attention must be made to both the applicable FAR Part 19 and SBA

13 CFR 121 requirements to provide proper advice and guidance on each type of protest and

appeal

Screen 130 Conference room This concludes the simulation The After Action Report (AAR) has

been created Download the AAR and review your performance in the simulation

After viewing the AAR use the browser close button to close this simulation and return to

screen 3 in the Size Protest lesson to complete this lesson

SBP220 Business Decisions for Small Business lesson 11 - Size Pr otest Simulation RESOURCES I PRINT I HELP

Summary

I Poge 5 of6 I Back Next

SBP220 Business Decisions for Small Business lesson 11 - Size Protest Simulation RESOURCES 1 PRINT 1 HELP

Summary

Closed Captioning Congratulations you have completed the Size Protest Simulation During this simulation you participated in activities common to interpreting data to verify the size of a small business Ensure that you review your After Action Report and if you did not respond correctly to all activities consider going through the simula tion again

I Pogo 5of6 I Back Next

SBP220 Business Decisions for Small Business lesson 11 - Size Protest Simulation RESOURCES I PRINT I HELP

Summary

Poge 5of6 I Back Next

SBP220 Business Decisions for Small Business Lesson 11 - Size Pr otest Simulation RESOURCES j PRINT j HElP

Lesson Completion

You have comple ted the con tent for this lesson

To continue select another lesson from the Table of Con tents on the le f t

If you have closed or hidden the Table of Contents select the Show T OC button at the t op in the Atlas navigation bar

~ I P o ge 6 of6 I Back Next

SBP220 Business Decisions for Small Business l esson 11 -Size Protest Simulation RESOURCES I PRINT 1 HELP

Size Protest Simulation

This simulation will open and be conducted in a separate window Once you begin you are an Actor and must initiate the necessary actions to progress through the simulation Pay careful attention to the instructional prompts to determine what to do next Your Tablet is a valuable resource and will allow you to research the FAR DFARS and many other pertinent Federal and DOD Acquisition Websites and reference materials

Throughout the simulation you will make many business decisions involving knowledge and judgment When you apply your knowledge and exercise good judgment in providing guidance your actions will be affirmed with FEEDBACK screens However when you incorrectly apply your knowledge and exercise poor judgement in providing guidance your credibility as a small business professional is on the line

You never want to tarnish your credibility as a consummate small business professional It is good to recognize mistakes and learn from them quickly Therefore if you make incorrect decisions in this simulation you will learn of them through the CONSEQU ENCE O F YOUR ACTIONS screen as you progress through the simulation

Select the Size Protest image below to launch the simulation The simulation will open in a new window After ting all simulation activities return to this screen and select Next to continue

Closed Capt ioning This simulation will open and be conducted in a separate window Once you begin you are an actor and must initiate the necessary actions to progress through the simulation Pay careful attention to the instructional prompts to determine what to do next Your Tablet is a valuable resource and will allow you to research the FAR DFARS and many other pertinent Federal and DOD Acquisition Websites and reference materials

Select Size Protest Simulation to begin

Back Next

Screen 1 Your Office This acquisition is a small business set-aside for a follow on contract for

security guard services Corporate Defenders Inc (CDI) is the apparent successful offeror CDIs

primary subcontractor is Rivers who is the incumbent contractor and will be providing

management support as well as some of their employees for this follow-on effort East Lake

Management Operation (ELMO) received their Pre-award notice IAW FAR 15503(a)(2)(ii)

indicating that CDI is the apparent successful offeror They have decided to protest the small

business representation for CDI based on the affiliation with Rivers While sitting at your desk

you notice you have a new voicemail

Connie Hello I am just checking with you to make sure you are available to meet with Jenny

our Contracting Specialist concerning the East Lake size protest of the apparent award to CDI I

will be out for a couple of weeks and she will be watching over things in my absence Please

meet her in the conference room at 100pm By the way I left the abstract from the CDI

proposal in your inbox

Screen 2 Your Office Open the Abstract of CDI Document

Screen 3 Conference Room Jenny Thanks for coming in Now that we have sent a Pre-award

notice that CDI is the apparent successful offeror I see that East Lake is protesting the size

status based on affiliation with Rivers With Connie being out I need some guidance What are

the procedures for a size protest

Activity 3-1 Conference Room Jenny How can an offeror protest a small business size

representation

Choice 1 As stated in FAR 19302(c)(2) the protest or confirmation of the protest if initiated

orally shall be in writing Proceed to screen 21

Choice 2 As stated in FAR 19302(c)(2) an offeror can only protest orally and then must follow-

up with a written protest Proceed to screen 4

Choice 3 A protest may be made orally if it is confirmed in writing and received by the

Contracting Officer within the 30-day period or by letter postmarked no later than 1 business

day after the oral protest (FAR 19302(d)(1)(i)) Proceed to screen 12

Screen 4 Conference Room

Jenny Really I will inform the offeror that they can only submit the protest orally Thank you

for your time I assume I will have more questions

Screen 5 Your Office THE NEXT DAY - Coming back from lunch you notice that you have a

voicemail

Phil Hello My name is Phil I am the owner of the small business East Lake Management

Operation better known as ELMO I am in the process of sending in a size protest Jenny

informed me that I could only protest orally I called SBA and they told me that the protest

could be in writing I am not pleased I will be citing this in the written protest

Screen 6 Your Office You have called Ruben the senior SBP to keep him informed of the

events

Ruben Hello this is Ruben Thanks for the back brief of events You need to ensure that you

learn the policies and provide accurate counselling If you are in doubt please review the

regulations It will be an embarrassment if this is written up in the protest

Screen 7 Your Office CONSEQUENCE OF YOUR ACTIONS Requiring all protests to be oral is not

consistent with FAR policy While FAR 19302(c)(2) allows size representation protests to be

initially submitted orally they must be followed up in writing protests can also be initially

submitted in writing All size representation protests must include the basis for the protest with

specific detailed evidence to support the allegation that the offeror is not small As a SBP it is

important that you provide accurate policy guidance when advising industry and Government

personnel to ensure you maintain credibility as a small business expert

Screen 8 Your office

Ruben Do you now understand the regulation How can an offeror protest a small business

size representation

Activity 3-2 Your office Ruben How can an offeror protest a small business size

representation

Choice 1 As stated in FAR 19302(c)(2) The protest or confirmation of the protest if initiated

orally shall be in writing Proceed to screen 20

Choice 2 A protest may be made orally if it is confirmed in writing and received by the

Contracting Officer within the 30-day period or by letter postmarked no later than 1 business

day after the oral protest (FAR 19302(d)(1)(i)) Proceed to screen 9

Screen 9 Your office

Ruben That is incorrect A protest may be made orally within the 5-day period if it is confirmed

in writing and received by the Contracting Officer or by letter postmarked no later than 1

business day after the oral protest

Screen 10 Your office CONSEQUENCE OF YOUR ACTIONS Advising a concern that they have 30

days to submit a protest would result in the SBA denying the protest as untimely While it is the

responsibility of the contractor to know what the FAR requires providing incorrect advice and

counsel too often will adversely impact your credibility and reputation as a SBP and expert in

your field

Screen 11 Your office

Ruben Please contact the offeror and Jenny to inform them of the correct regulation I have to

reiterate that even though industry is responsible for knowing the FAR rules we cannot provide

false advice Have a good day and let me know if you need anything Proceed to screen 22

Screen 12 Conference Room

Jenny Really I will inform the offeror that a protest may be made orally if it is confirmed in

writing and received by the Contracting Officer within the 30-day period Thank you for clearing

that up for me

Screen 13 Your office THE NEXT DAY - Coming back from lunch you notice that you have a

voicemail

Phil Hello My name is Phil I am from ELMO I am in the process of sending in a size protest

Jenny informed me that I had up to 30 days That sounded suspicious so I called SBA They

informed me a protest may be made orally within the 5-day period if it is confirmed in writing

and received by the Contracting Officer or by letter postmarked no later than one business day

after the oral protest I am not pleased I will be citing this in the written protest

Screen 14 Your office THE NEXT DAY - You have contacted Ruben the senior SBP to keep him

informed of the events

Ruben Hello this is Ruben Thanks for the back brief of events You need to ensure that you

learn the policies and provide accurate counselling If you are in doubt please review the

regulations It will be an embarrassment if this is written up in the protest

Screen 15 Your office CONSEQUENCE OF YOUR ACTIONS Advising a concern that they have 30

days to submit a protest would result in the SBA denying the protest as untimely While it is the

responsibility of the contractor to know what the FAR requires providing incorrect advice and

counsel too often will adversely impact your credibility and reputation as a SBP and expert in

your field

Screen 16 Your office

Ruben Do you now understand the regulation How can an offeror protest a small business

size representation

Activity 3-3 Your office

Question Ruben How can an offeror protest a small business size representation

Choice 1 As stated in FAR 19302(c)(2) an offeror can only protest orally and then must

follow-up with a written protest Proceed to screen 17

Choice 2 As stated in FAR 19302(c)(2) The protest or confirmation of the protest if initiated

orally shall be in writing Proceed to screen 20

Screen 17 Your office

Ruben That is incorrect A protest may be made orally within the 5-day period if it is confirmed

in writing and received by the Contracting Officer or by letter postmarked no later than 1

business day after the oral protest

Screen 18 Your Office CONSEQUENCE OF YOUR ACTIONS Advising a concern that they have 30

days to submit a protest would result in the SBA denying the protest as untimely While it is the

responsibility of the contractor to know what the FAR requires providing incorrect advice and

counsel too often will adversely impact your credibility and reputation as a SBP and expert in

your field

Screen 19 Your office

Ruben Please contact the offeror and Jenny to inform them of the correct regulation I have to

reiterate that even though industry is responsible for knowing the FAR rules we cannot provide

false advice Have a good day and let me know if you need anything Proceed to screen 22

Screen 20 Your office

Ruben That is correct Please contact the offeror and Jenny to inform them of the correct

regulation Have a good day and let me know if you need anything

Screen 21 Conference room

Jenny Thank you for clearing that up for me If I need further assistance Ill give you a call

Screen 22 Your office FEEDBACK A protest may be made orally within the 5-day period if it is

confirmed in writing and received by the Contracting Officer or by letter postmarked no later

than 1 business day after the oral protest (FAR 19302(d)(1)(i)) A Contracting Officer may

submit a size protest at any time before or after award and it is considered timely (FAR

19302(d)(2))

You have completed the tasks Ruben asked you to perform It is the end of the week You have

closed your computer and stored your documents away You head for the lobby

Screen 23 Lobby TWO DAYS LATER - As you return to work on Monday morning you run into

Asha in the lobby

Asha Good morning Just wanted to inform you that ELMO wants to send a protest stating that

they had evidence that CDI was large and therefore should not be considered for the award of

any small business set-aside contract for our Army base Have a great day

Screen 24 Your office Entering your office you get a phone call

Phil Hello this is Phil from ELMO I am assuming you heard about the protest Before we send

in the protest letter could you please tell me what is required for a size protest to be

considered by SBA

Activity 24-1 Your office

Question Phil In accordance with 13 CFR 1211007 what is required for a protest of size

status to be considered by SBA

Choice 1 A concern is considered a small and a large depending on the particular size standard

Proceed to screen 25

Choice 2 The size protest must demonstrate that the offeror being protested is considered

large based on presumed affiliation with a large business Proceed to screen 33

Choice 3 The size status protest must relate to a particular procurement and be specific to

provide reasonable notice as to the grounds upon which the protested concerns size is

questioned Proceed to screen 42

Screen 25 Your office

Phil Thank you I will send out the protest later today

Screen 26 Your office Entering your office you notice you have an e-mail

To Acquisition Team

From Connie Contracting Officer

Subject Size Protest E-mail Attachment Protest Letter

Hello

Just wanted to inform the SBA would not act on ELMOs protest I have received notice that the size protest is not being considered

I have also attached a copy of the protest

VR

Connie Contracting Officer

Screen 27 Your office Ruben meets with you weekly to review the status of acquisitions and

discuss any lessons learned During this weekly meeting you inform Ruben about the mistake

you made in informing the protestor that a concern is considered a small and a large depending

on the particular size standard

Ruben You do realize that a concerns size can fluctuate between small and large depending on

the particular procurement assigned NAICS size standards If you counsel industry you need to

realize this

Screen 28 Your office CONSEQUENCE OF YOUR ACTIONS 13 CFR 1211007(a) A protest

challenging the size of a concern which does not pertain to a particular procurement or sale will

not be acted on by SBA While it is true that a concern can be small andor large depending on

the procurements NAICS code and corresponding size standard the size protest would be

denied because it must be related to a particular procurement

Screen 29 Your office

Ruben Did you take a look at 13 CFR 1211007 What is required for a size protest to be

considered by SBA

Activity 24-2 Your office

Question Ruben In accordance with 13 CFR 1211007 what is required for a size protest to be

considered by SBA

Choice 1 The size status protest must relate to a particular procurement and be specific to

provide reasonable notice as to the grounds upon which the protested concerns size is

questioned Proceed to screen 41

Choice 2 The size protest must demonstrate that the offeror being protested is considered

large based on presumed affiliation with a large business Proceed to screen 30

Screen 30 Your office

Ruben Thatrsquos not quite right The protest must be sufficiently specific to prove affiliation Some

basis for the belief must be stated The SBA would not act on the protest IAW CFR 1211007(c)

the SBA protest regulations

Screen 31 Your office CONSEQUENCE OF YOUR ACTIONS 13 CFR 1211007(c) Non-specific

protests will be dismissed The protestor must present proof of affiliation and also relate it to a

specific procurement The protest would be denied because it is not specific The protestor sent

a copy of the protest stating there was presumed affiliation with a large business and therefore

should not be considered for the award of any small business set-aside contract

Screen 32 Your office

Ruben You cannot keep informing industry and the agency in this way You need to refer to the regulations before giving advice I will need to report this to the commander Do not give any more advice without looking at the regulations I will see you next month Proceed to screen 43

Screen 33 Your office

Phil Thank you I will send out the protest later today

Screen 34 Your office

To Acquisition Team

From Connie Contracting Officer

Subject Size Protest Attachment Protest Letter

Hello

Just wanted to inform the SBA would not act on ELMOs protest I have received notice that the size protest is not being considered

I have also attached a copy of the protest

VR

Connie

Contracting officer

Screen 35 Your office Ruben and yourself have monthly general follow-on discussions to discuss the progress of the acquisition and discuss any lessons learned You inform Ruben about the mistake you made

Ruben The protest must be sufficiently specific to prove affiliation Some basis for the belief must be stated The SBA would not act on the protest IAW CFR 1211007(c) the SBA protest regulations

Screen 36 Your office CONSEQUENCE OF YOUR ACTIONS 13 CFR 1211007(a) A protest challenging the size of a concern which does not pertain to a particular procurement or sale will not be acted on by SBA While it is true that a concern can be small andor large depending on the procurements NAICS code and corresponding size standard the size protest would be denied because it must be related to a particular procurement

Screen 37 Your office

Ruben Did you take a look at 13 CFR 1211007 What is required for a protest of size to be considered by SBA

Activity 24-3 Your office

Question Ruben In accordance with 13 CFR 1211007 what is required for a size protest to be

considered by SBA

Choice 1 A concern is considered a small and a large depending on the particular size standard

Proceed to screen 38

Choice 2 The size status protest must relate to a particular procurement and be specific to

provide reasonable notice as to the grounds upon which the protested concernrsquos size is

questioned Proceed to screen 41

Screen 38 Your office

Ruben You do realize that a concerns size can fluctuate between small and large depending on

the particular procurement assigned NAICS size standards If you counsel industry you need to

realize this

Screen 39 Your office CONSEQUENCE OF YOUR ACTIONS 13 CFR 1211007(a) A protest

challenging the size of a concern which does not pertain to a particular procurement or sale will

not be acted on by SBA While it is true that a concern can be small andor large depending on

the procurements NAICS code and corresponding size standard the size protest would be

denied because it must be related to a particular procurement

Screen 40 Your office

Ruben You cannot keep informing industry and the agency in this way You need to refer to the

regulations before giving advice I will need to report this to the commander Do not give any

more advice without looking at the regulations I will see you next month Proceed to screen 43

Screen 41 Your office

Ruben That is correct In the future do not give any more advice without looking at the

regulations I will see you next month

Screen 42 Your office

Phil Thank you I will send out the protest today Goodbye

Screen 43 Your office FEEDBACK A protest challenging the size of a concern must pertain to a

particular procurement or sale Additionally a size protest must be sufficiently specific to

provide reasonable notice as to the grounds upon which the protested concerns size is

questioned No particular form is prescribed for a protest Where materials supporting the

protest are available they should be submitted with the protest Size protests which do not

meet 13 CFR 1211007 requirements will be dismissed by SBA

Screen 44 Your office TWO DAYS LATER

To You SBP Attachment Protest

From Connie Contracting Officer

Subject Size Protest

Hello

After lunch if you could please meet Jenny and I in the conference room I have received the

protest from ELMO and just want to make sure I handle my part The protest document is

attached to this message Please read it before going to see Jenny

Thanks

Connie

Contracting Officer

Screen 45 Conference room LATER THAT DAY

Connie Thanks for coming by ELMO has submitted their small business size representation protest Could you please tell me what needs to be included

Activity 45-1 Conference room

Question Connie What should a small business size representation protest contain

Choice 1 According to FAR 19302(c) a small business size representation protest shall include

the basis for the protest and a referral letter written by the Contracting Officer with

information pertaining to the solicitation - Proceed to screen 73

Choice 2 According to FAR 19302(c)(3) a small business size representation protest shall

include a referral letter written by the Program Manager with information addressing the

solicitation - Proceed to screen 46

Choice 3 According to FAR 19302(c)(3) a small business size representation protest shall

include a copy of the solicitation and all offerors bid - Proceed to screen 59

Screen 46 Conference room

Connie Oh ok Asha needs to fill out the referral letter Please give her a call

Screen 47 Conference room

Asha Hello Asha speaking How may I help you

Screen 48 Conference room

Connie Hey Asha Itrsquos me Connie I have Jenny and the SBP here with me The SBP has just informed me that the Program Manager needs to fill out the referral letter for the size protest

Screen 49 Conference room

Asha Are you sure I have never filled out a referral letter before What must a small business representation protest need to include

Activity 45-2 Conference room

Question Asha What should a small business size representation protest contain

Choice 1 According to FAR 19302(c)(3) a small business size representation protest shall include a copy of the solicitation and all offerorsrsquo bids - Proceed to screen 50

Choice 2 According to FAR 19302(c) a small business size representation protest shall include the basis for the protest and a referral letter written by the Contracting Officer with information pertaining to the solicitation - Proceed to screen 73

Screen 50 Conference room

Asha Ok if you want me to fill out the referral letter I can have it completed by tomorrow You will need to gather the solicitation and offerorsrsquo bids

Screen 51 conference room

Connie Thank you Asha

Screen 52 Your office TWO DAYS LATER - As you enter your office the phone rings

Asha Hello this is Asha I just wanted to let you know that the SBA has returned the protest They stated that the Contracting Officer needs to fill out the referral letter SBA also included a list of items that the protest package should contain I left the list in your inbox

Screen 53 Your office read the protest package that is in your inbox

Screen 54 Your office THREE DAYS LATER

Asha I will get with Connie to make sure what the correct information gets sent to the SBA Bye

Screen 55 Conference room Connie has called a meeting of the team to discuss the size protest from ELMO

Connie Thank you everyone for coming As you all know the protest has slowed down the process of awarding the contract This mishap about who should fill out the referral letter has caused us even more delay which potentially will impact the delivery schedule

Screen 56 Conference room

Connie The protest package has been completed and sent back to the SBA Everything should be in order and now we just wait to hear back from the SBA I brought in copies of the referral letter and the CDI representation letter for everyone to take a look at

Screen 57 Conference room Read the Size Determination document

Screen 58 Conference room CONSEQUENCE OF YOUR ACTIONS The SBA sent back the protest This resulted in a delay of SBAs protest decision As a result there may be potential

delays for contract award and impacts to the programs overall costperformanceschedule

baseline

Screen 59 Conference room

Jenny Oh ok we just need to include the solicitation and all of the offerors bids I can gather

that information up in no time

Screen 60 Conference room

Connie Are you sure that is correct I thought somewhere in the regulations I read that we

were supposed to supply a letter and that the protester was supposed to come up with all the

other information

Activity 45-3 Conference room

Question Connie What should a small business size representation protest contain

Choice 1 According to FAR 19302(c) a small business size representation protest shall include

the basis for the protest and a referral letter written by the Contracting Officer with

information pertaining to the solicitation - Proceed to screen 73

Choice 2 According to FAR 19302(c)(3) a small business size representation protest shall

include a referral letter written by the Program Manager with information addressing the

solicitation - Proceed to screen 61

Screen 61 Conference room

Connie Oh ok Asha needs to fill out the referral letter Letrsquos give her a call

Screen 62 Conference room

Asha Hello Asha speaking How may I help you

Screen 63 Conference room

Connie Hey Asha Itrsquos me Connie I have Jenny and the SBP here with me The SBP has just

informed me that the Program Manager needs to fill out the referral letter for the size protest

Screen 64 Conference room

Asha Sure I can fill out the referral letter Irsquoll have it completed by tomorrow Bye

Screen 65 Conference room

Connie Once I receive the letter from Asha I will send it off to SBA Thanks Have a great rest of your day

Screen 66 Hour office TWO DAYS LATER - As you enter your office the phone rings

Asha Hello this is Asha I just wanted to let you know that the SBA has returned the protest They stated that the Contracting Officer needs to fill out the referral letter SBA also included a list of items that the protest package should contain I left the list in your inbox

Screen 67 Your office

Asha I will get with Connie to make sure that the correct information gets sent to the SBA Bye

Screen 68 Your office Read the Protest Package letter

Screen 69 Conference room THREE DAYS LATER - Connie has called a meeting of the team to discuss the size protest from ELMO

Connie Thank you everyone for coming As you all know the protest has slowed down the

process of awarding the contract This mishap about who should fill out the referral letter has

cause us even more delay which potentially will impact the delivery schedule

Screen 70 conference room

Connie The protest package has been completed and sent back to the SBA Everything should be in order and now we just wait to hear back from the SBA I brought in copies of the referral letter and the CDI representation letter for everyone to take a look at

Screen 71 Conference room Read the Referral Letter CDI Representation and Size Determination documents

Screen 72 Conference room CONSEQUENCE OF YOUR ACTIONS The SBA sent the protest back This has resulted in a delay in the SBA deciding the protest and potential delay of award of the contract which could result in a delay in performance of delivery or service resulting in additional costs to the Government

Screen 73 Conference room

Connie Thatrsquos it Ok I can definitely take care of that today Thank you

Screen 74 Your office It has been several days since you spoke to Connie about the small

business representation protest requirements As you sit down to start your day you notice you

have a voicemail

Jenny Hello Can you stop by the conference room when you get this message Thanks

Screen 75 Conference room

Connie Hello Thanks for coming I just wanted to inform you that the protest package has

been completed and sent back to the SBA Everything should be in order and now we just wait

to hear back from the SBA I brought in copies of the referral letter and the CDI representation

letter for everyone to take a look at

Screen 76 Conference room Read the Referral Letter CDI Representation and Size

Determination documents

Screen 77 Conference room

FEEDBACK According to FAR 19302(c)(3) a small business representation protest shall include

the basis of the protest and include a referral letter signed by the Contracting Officer with

information pertaining to the solicitation and include (i) the protest and any accompanying

materials (ii) a copy of the size self-certification (iii) Identification of applicable size standard

(iv) a copy of the electronic link to the solicitation and any amendments (v) the name address

telephone number email address and number of the Contracting Officer (vi) identification of

the bid opening date or date of notification provided to unsuccessful offerors (vii) the date the

Contracting Officer received the protest (viii) a complete address and point of contact for the

protested concern An offeror the SBA or another interested party may protest the small

business representation of an offeror in a specific offer (FAR 19302(a)(2)) For competitive 8(a)

contracts the filing of a protest is limited to the Contracting Officer an offeror or the SBA The

Contracting Officer may also submit a small business representation protest at any time before

or after award (FAR 19302(a) and (b))

Screen 78 Your office A WEEK LATER - As you come back from lunch with Janet you get a visit

from Jenny She has not heard anything about the protest for several days and would like

clarification on the protest process with the SBA

Jenny Hi I just wanted to clarify the notification process of the protest It has been five days

since the documents were submitted to the SBA and we have not heard anything as of yet

Connie also gave me this form that I am unfamiliar with I put it in your inbox

Screen 79 Your office Read the SBA Form 355

Screen 80 Your office

Jenny Hey Janet what is the SBA Government Contracting Area Directors process after

receiving a size determination protest

Screen 81 Your office

Janet When SBA receives a size protest the SBA Area Director for Government Contracting or

designee will notify the contracting officer the protested concern and the protestor that the

protest has been received SBA will provide a blank copy of SBA Form 355 Application for Small

Business Determination to the concern whose size is at issue The protested concern or

concern whose size is at issue must return the completed SBA Form 355 and all other requested

information to SBA within 3 working days from the date of receipt of the blank form from SBA

SBA has discretion to grant an extension of time to file the form After receipt of a protest or a

request for a formal size determination the SBA Area Office will issue a formal size

determination within 15 business days if possible or within an extension granted by the

Contracting Officer in accordance with FAR 19302(e)

Screen 82 Your office

Jenny Thank you for clarifying the process Irsquoll see you both later

Screen 83 Your office

Janet Yes I have to get back to the office too Irsquoll see you later

Screen 84 Your office THE NEXT DAY - You re-enter your office from a break and receive a

phone call

Jenny Hello I forgot to ask when the Contracting Officer may award a contract that has a small

business size protest

Activity 84-1 Your office

Question Jenny When may the Contracting Officer award a contract that has been protested

Choice 1 Only after the SBA makes a determination of the small business representation

protest - Proceed to screen 85

Choice 2 When the SBA makes a decision or 15 business days have expired whichever comes

first however the CO may award a contract before an SBA determination is made when he

makes a written determination that award must be made to protect public interest - Proceed

to screen 105

Choice 3 The Contracting Officer does not have to wait for SBA to make the determination -

Proceed to screen 95

Screen 85 Your office

Jenny Ok so I guess we just wait until the SBA makes a determination Thanks

Screen 86 Program Managerrsquos Office THE NEXT DAY - Asha has requested that you come by

her office As you walk into Asharsquos office Connie is already there

Asha Connie was just informing me that she has decided to wait on SBAs decision about the

protest before awarding the contract Just want to inform the both of you that the incumbent

contract expires 18 days after the submittal of the protest to the SBA

Screen 87 Program Managerrsquos Office

Connie That is a good point Asha The risk of me waiting too long will result in expiration of the

contract A lapse between contracts is unacceptable as that may adversely impact the

warfighter

Activity 84-2 Program Managerrsquos Office

Question Connie When may the Contracting Officer award a contract that has been

protested

Choice 1 When the SBA makes a decision or 15 business days have expired whichever comes

first however the CO may award a contract before an SBA determination is made when he

makes a written determination that award must be made to protect public interest - Proceed

to screen 103

Choice 2 The Contracting Officer does not have to wait for SBA to make the determination -

Proceed to screen 88

Screen 88 Program Managerrsquos Office

Connie If that is the case letrsquos wait about a week and then award the contract Thanks

everyone

Screen 90 Your office FIVE DAYS LATER - SBA renders its decision on the required 15th

business day finding that the apparent successful offeror was not eligible for the award

Connie Meeting today at 2 PM

Screen 91 Conference room 2 PM - Connie has called in Asha Jenny and Ian to the

conference room

Connie As you are aware SBA came back with the decision that ELMO was not eligible for the

award Because it is so close to the completion of the source selection we may be able to go

back and award to the offeror that was second in line based on evaluation results

Screen 92 Conference room

Ian We would have to get the acquisition team together with legal SBA and leadership but

we might be able to accomplish that without having to start the procurement over again

Screen 93 Conference room

Connie Thanks everyone I will keep you posted

Screen 94 Conference room CONSEQUENCE OF YOUR ACTIONS Awarding the contract

without waiting for SBA to make a decision on the appeal is a violation of FAR policy (FAR

19302(g)(2) this type of violation could result in significant impacts inclusive of the

Contracting Officer having to terminate the unauthorized contract Additional fallout may occur

by having to re-accomplish the procurement entirely since the source selection was effectively

completed upon award of the unauthorized contract to the ineligible company Reprocurement

risk would be dependent upon the acquisition circumstances timing and viewpoints of the key

stakeholders and decision-makers

FEEDBACK After receiving a size protest involving a new procurement the Contracting Officer

shall not award the contract until the SBA has made a size determination or after 15 business

days have expired whichever comes first However the Contracting Officer may award a

contract before an SBA determination is made when shehe makes a written determination

that award must be made to protect the public interest (FAR 19302(g)(1))

Screen 95 Your office

Jenny Ok I will inform Connie Thanks

Screen 96 COrsquos office LATER THAT DAY - Connie has asked you to come by her office

Connie Hello Thanks for coming by Jenny tells me that you said that we do not need to wait

for SBA to make the determination about the size protest What happens if we award the

contract and then SBA finds the apparent successful offeror was not eligible for the award

Maybe you should double check the regulation

Activity 84-3 COrsquos office

Question Connie When may the Contracting Officer award a contract that has been

protested

Choice 1 Only after the SBA makes a determination of the small business representation

protest - Proceed to screen 97

Choice 2 When the SBA makes a decision or 15 business days have expired whichever comes

first however the CO may award a contract before an SBA determination is made when he

makes a written determination that award must be made to protect public interest - Proceed

to screen 104

Screen 97 COrsquos office

Connie Ok so I guess we just wait until the SBA makes a determination

Screen 98 Program Managerrsquos Office LATER THAT DAY - Asha has requested that you come by

her office As you walk into Asharsquos office Connie is already there

Asha Connie was just informing me that she has decided to wait on SBAs decision about the

protest before awarding the contract Just want to inform the both of you that the current

contract expires 18 days after the submittal of the protest to the SBA

Screen 99 Program Managerrsquos Office

Connie That is a good point Asha The risk of me waiting too long will result in expiration of the

incumbents contract and work stoppage for security guard services

Screen 100 Program Managerrsquos Office

Asha I looked up the regulation and it states that we should wait up to 15 business days and

then we may award the contract

Screen 101 Program Managerrsquos Office

Connie Thanks That is what we will do and hopefully SBA will respond before the 15 days

Screen 102 Program Managerrsquos Office CONSEQUENCE OF YOUR ACTIONS Not thoroughly

understanding the protest procedures and being uninformed of program needs and imp acts

could result in adverse impacts to the warfighter

FEEDBACK After receiving a size protest involving a new procurement the Contracting Officer

shall not award the contract until the SBA has made a size determination or after 15 business

days have expired whichever comes first However the Contracting Officer may award a

contract before an SBA determination is made when shehe makes a written determination

that award must be made to protect the public interest (FAR 19302(g)(1))

Screen 103 Program Managerrsquos Office

Connie Ok we wait for 15 business days That sounds much better Thanks - Proceed to

screen 106

Screen 104 COrsquos office

FEEDBACK After receiving a size protest involving a new procurement the Contracting Officer

shall not award the contract until the SBA has made a size determination or after 15 business

days have expired whichever comes first However the Contracting Officer may award a

contract before an SBA determination is made when shehe makes a written determination

that award must be made to protect the public interest (FAR 19302(g)(1))

Connie Ok we wait for 15 business days That sounds much better Thanks - Proceed to

screen 107

Screen 105 Your office

FEEDBACK After receiving a size protest involving a new procurement the Contracting Officer shall not award the contract until the SBA has made a size determination or after 15 business days have expired whichever comes first However the Contracting Officer may award a contract before an SBA determination is made when shehe makes a written determination that award must be made to protect the public interest (FAR 19302(g)(1))

Jenny Ok we wait for 15 business days Thanks - Proceed to screen 107

Screen 106 Program Managerrsquos office FEEDBACK After receiving a size protest involving a new procurement the Contracting Officer shall not award the contract until the SBA has made a size determination or after 15 business days have expired whichever comes first However the Contracting Officer may award a contract before an SBA determination is made when shehe makes a written determination that award must be made to protect the public interest (FAR 19302(g)(1))

Screen 107 Your office TWO DAYS LATER - Itrsquos been two days since your conversation with Jenny You notice that you have a new e-mail

To Acquisition Team Attachment Appeal Letter

From Grace CDI Contractor

Subject ELMO protest upheld

Hello

I just heard that ELMOs protest was upheld We believe the decision was based on erroneous information so we want to appeal Can you give me some guidance in the process for submitting an appeal

I have attached the appeal and size determination letters

Sincerely

Grace CDI Contractor

Activity 107-1 Your office

Question Grace What is the process for submitting an appeal for a size protest determination

Choice 1 IAW FAR 19302(h) an appeal may be filed with the SBA Office of Hearings and Appeals by any concern or interested party whose protest of the small business representation of another concern has been denied - Proceed to screen 111

Choice 2 An appeal may be filed by any concern or interested party to protest the small business representation of another concern to the Contracting Officer - Proceed to screen 108

Screen 108 Your office THREE DAYS LATER Connie comes by your office

Connie Hello there I just received the appeal from CDI through the mail channels and realized

that the protestor sent it to me in error I am having Jenny mail the appeal package back to CDI

Screen 109 Your office As you get back to your desk you notice that you have a voicemail

Grace Hello this is Grace from CDI Looks like I sent my appeal to the wrong location I was not

supposed to send it to the Contracting Officer I have re-sent the appeal to SBA OHA I hope

that its not too late because they will deny my appeal if untimely

Screen 110 Your office CONSEQUENCES OF YOUR ACTIONS Filing the appeal with the

Contracting Officer would result in lost time for the protestor because the appeal must be filed

with SBA OHA The concern encounters a greater risk of denial by SBA OHA if the appeal is not

filed within the time frame listed in Subpart C of 13 CFR 134

Screen 111 Your office The agency awaits confirmation from SBA OHA as to the standing of

the appeal and related impacts to the ongoing procurement You leave for the weekend

Screen 112 Your office FEEDBACK An appeal may be filed only when the small business

representation protest has been denied by the SBA Government Contracting Area Director and

within the time frames and in accordance with the procedures outlined in Subpart C of 13 CFR

Part 134 (IAW FAR 19302(h)) While a Contracting officer may file an appeal of their own the

concern or interested party must file the appeal to the SBA Office of Hearings and Appeals

(OHA) within the time frame and in accordance with the procedures listed in Subpart C of 13

CFR 134

Screen 113 Your office You return to the office on Monday morning You have a new e-mail

E-mail CDI appeal

To You SBP

From Connie Contracting Officer

Subject CDI Appeal

Hello

I would like to have a meeting with you and our lawyer Ian and Jenny to review the CDI size

appeal to the SBA Office of Hearings and Appeals Please check your calendar to see if you are

free tomorrow afternoon Let me know if you can make it

Sincerely

Connie

Contracting Officer

Screen 114 Conference room THE NEXT DAY - You Connie Jenny and the departmentrsquos

lawyer Ian are in a conference room

Ian Glad you could make the meeting We have been informed that Corporate Defenders is

appealing the SBAs decision Because of the potential impact the appeals process may have on

our current security guard services and before we make a decision on what we should do

about continuation of those services I would like to discuss the basis of the original size protest

by ELMO in the Corporate Defenders appeal to determine whether we think it will be denied

What was the basis of the original size protest by ELMO in the Corporate Defenders appeal

Screen 115 Conference room

Jenny The basis of the original protest is that Corporate Defenders Inc is affiliated with Rivers

under the ostensible subcontracting rule

Screen 116 Conference room

Connie Now that we have determined it is a size representation issue does this fall within the

affiliation under the ostensible subcontracting rule

Screen 117 Conference room

Ian The regulation defines an ostensible subcontractor as a subcontractor that performs

primary and vital requirements or when the prime contractor is unusually reliant upon the

subcontractor In this case CDI would be relying on the workforce and management of Rivers

to fulfill the requirements of the contract Therefore the combined size standards of CDI and

Rivers exceeds the size standard for this procurement according to 13 CFR 121103(h)(4)

Screen 118 Conference room

Connie The SBA Area Office found that under the ostensible subcontracting rule CDI was

considered a large business because of its affiliation with Rivers CDI appealed the ruling to the

SBA Office of Hearings and Appeals stating that CDI was not overly reliant on Rivers for

performing the contract and that CDI will serve as the prime contractor ELMO argued that

there is an ostensible subcontracting affiliation with CDI and Rivers and that Rivers is a large

business and thus CDI is ineligible for award What factors could lead to the appeal being

denied

Activity 118-1 Conference room

Question Connie What factors led to the appeal being denied

Choice 1 Rivers was a large business and thus ineligible for the award - Proceed to screen 119

Choice 2 CFR 121103(h)(4) states only the terms of the proposal are applicable to determining

the teaming agreement between the prime and subcontractor - Proceed to screen 123

Choice 3 There is ostensible subcontracting based on the fact that the proposed subcontractor

is the incumbent contractor and thus ineligible for award the prime contractor proposed to

hire the majority of the workforce from the subcontractor the prime contractors proposed

program manager previously served as program manager for the subcontractor on incumbent

contract and the prime contractor lacked experience with projects of the magnitude required

of this procurement This makes the offeror ineligible for award - Proceed to screen 127

Screen 119 Conference room

Ian I believe that is an incorrect assumption since Rivers was only going to perform 43 percent

of the work for a small business This alone would not make Rivers an ostensible subcontractor

Activity 118-2 Conference room

Question Connie What factors led to the appeal being denied

Choice 1 There is ostensible subcontracting based on the fact that the proposed subcontractor

was the incumbent contractor and thus ineligible for award - Proceed to screen 127

Choice 2 CFR 121103(h)(4) states that only the terms of the proposal are applicable to

determining the teaming agreement between the prime and subcontractor - Proceed to screen

120

Screen 120 Conference room

Ian I believe this is an incorrect assumption All aspects of the relationship between CDI and

Rivers are to be considered

Screen 121 Conference room

Connie Letrsquos reference back to the ruling and the reason why there was an ostensible

subcontract

Screen 122 Conference room

Connie It appears that there was ostensible subcontracting based on the fact that the

proposed subcontractor was the incumbent contractor and thus ineligible for award the prime

contractor proposed to hire the majority of the workforce from the subcontractor the prime

contractors proposed program manager previously served as program manager for the

subcontractor on incumbent contract and the prime contractor lacked experience with

projects of the magnitude required of this procurement - Proceed to screen 127

Screen 123 Conference room

Ian I believe this is an incorrect assumption All aspects of the relationship between CDI and

Rivers are to be considered

Activity 118-3 conference room

Question Ian What factors led to the appeal being denied

Choice 1 Rivers was a large business and thus ineligible for the award - Proceed to screen 124

Choice 2 There is ostensible subcontracting based on the fact that the proposed subcontractor

was the incumbent contractor and thus ineligible for award - Proceed to screen 127

Screen 124 Conference room

Ian I believe that is an incorrect assumption since Rivers was only going to perform 43 percent

of the work for a small business This alone would not make Rivers an ostensible subcontractor

Screen 125 Conference room

Connie Letrsquos reference back to the ruling and the reason why there was an ostensible

subcontract

Screen 126 Conference room

Connie It appears that there was ostensible subcontracting based on the fact that the

proposed subcontractor was the incumbent contractor and thus ineligible for award the prime

contractor proposed to hire the majority of the workforce from the subcontractor the p rime

contractors proposed program manager previously served as program manager for the

subcontractor on incumbent contract and the prime contractor lacked experience with

projects of the magnitude required of this procurement

Screen 127 Conference room

FEEDBACK CFR 121103(h)(4) states all aspects of the relationship between the prime and the

subcontractor are to be considered including but not limited to the terms of the proposal such

as contract management and the percentage of subcontract work agreement between the

prime and subcontractor and whether the subcontractor is the incumbent contractor and is

ineligible to submit a proposal because it exceeds the applicable size standard

Screen 128 Conference room

Connie I think we are good here Thank you for meeting Talk to you later

Screen 129 Conference room

SUMMARY Small Businesses are subject to a size protest on a small business set-aside before

award of a contract The SBA will normally make a determination of size status within 15 days

of receipt of protest To be considered by the SBA it is necessary that the protest be specific

and timely

FAR 19302 and 13 CFR Part 121 provide the specific rules for submitting a size representation

An appeal can be made to the SBA Office of Hearing and Appeals for re-consideration of an SBA

Area Office size protest decision In determining size protests the SBA will consider receipts

number of employees and affiliations of the protested concerns In examining affiliations the

SBA will look for an ostensible subcontracting relationship in which the subcontractor that

performs primary and vital requirements of a contract or a subcontractor upon which the prime

contractor is unusually reliant

If affiliation is found and the prime and the sub are considered large due then award cannot

be made If a size protest is not submitted timely or does not contain sufficient information to

make a size determination the protest will be dismissed The SBP role is to ensure that the

organization is aware of the regulations governing the SBA size protests

When a Small Business size representation protest andor an appeal to a size protest is

received the SBPs role is to advise and assist the acquisition team and Contracting Officer with

interpretation and application of corresponding FAR Part 19 and SBA 13 CFR requirements The

SBP may also advise the offeror or contractor on the procedures for submitting a protest prior

to issuing a solicitation After the solicitation has been issued all communication must be

through the Contracting Officer While this scenario discusses the procedures for a small

business representation protest the SBP needs to be aware that the socio-economic programs

ie HUBZones SDVOSB 8(a) and WOSB each have slightly different procedures which are set-

forth in FAR Part 19 Close attention must be made to both the applicable FAR Part 19 and SBA

13 CFR 121 requirements to provide proper advice and guidance on each type of protest and

appeal

Screen 130 Conference room This concludes the simulation The After Action Report (AAR) has

been created Download the AAR and review your performance in the simulation

After viewing the AAR use the browser close button to close this simulation and return to

screen 3 in the Size Protest lesson to complete this lesson

SBP220 Business Decisions for Small Business lesson 11 - Size Pr otest Simulation RESOURCES I PRINT I HELP

Summary

I Poge 5 of6 I Back Next

SBP220 Business Decisions for Small Business lesson 11 - Size Protest Simulation RESOURCES 1 PRINT 1 HELP

Summary

Closed Captioning Congratulations you have completed the Size Protest Simulation During this simulation you participated in activities common to interpreting data to verify the size of a small business Ensure that you review your After Action Report and if you did not respond correctly to all activities consider going through the simula tion again

I Pogo 5of6 I Back Next

SBP220 Business Decisions for Small Business lesson 11 - Size Protest Simulation RESOURCES I PRINT I HELP

Summary

Poge 5of6 I Back Next

SBP220 Business Decisions for Small Business Lesson 11 - Size Pr otest Simulation RESOURCES j PRINT j HElP

Lesson Completion

You have comple ted the con tent for this lesson

To continue select another lesson from the Table of Con tents on the le f t

If you have closed or hidden the Table of Contents select the Show T OC button at the t op in the Atlas navigation bar

~ I P o ge 6 of6 I Back Next

Screen 1 Your Office This acquisition is a small business set-aside for a follow on contract for

security guard services Corporate Defenders Inc (CDI) is the apparent successful offeror CDIs

primary subcontractor is Rivers who is the incumbent contractor and will be providing

management support as well as some of their employees for this follow-on effort East Lake

Management Operation (ELMO) received their Pre-award notice IAW FAR 15503(a)(2)(ii)

indicating that CDI is the apparent successful offeror They have decided to protest the small

business representation for CDI based on the affiliation with Rivers While sitting at your desk

you notice you have a new voicemail

Connie Hello I am just checking with you to make sure you are available to meet with Jenny

our Contracting Specialist concerning the East Lake size protest of the apparent award to CDI I

will be out for a couple of weeks and she will be watching over things in my absence Please

meet her in the conference room at 100pm By the way I left the abstract from the CDI

proposal in your inbox

Screen 2 Your Office Open the Abstract of CDI Document

Screen 3 Conference Room Jenny Thanks for coming in Now that we have sent a Pre-award

notice that CDI is the apparent successful offeror I see that East Lake is protesting the size

status based on affiliation with Rivers With Connie being out I need some guidance What are

the procedures for a size protest

Activity 3-1 Conference Room Jenny How can an offeror protest a small business size

representation

Choice 1 As stated in FAR 19302(c)(2) the protest or confirmation of the protest if initiated

orally shall be in writing Proceed to screen 21

Choice 2 As stated in FAR 19302(c)(2) an offeror can only protest orally and then must follow-

up with a written protest Proceed to screen 4

Choice 3 A protest may be made orally if it is confirmed in writing and received by the

Contracting Officer within the 30-day period or by letter postmarked no later than 1 business

day after the oral protest (FAR 19302(d)(1)(i)) Proceed to screen 12

Screen 4 Conference Room

Jenny Really I will inform the offeror that they can only submit the protest orally Thank you

for your time I assume I will have more questions

Screen 5 Your Office THE NEXT DAY - Coming back from lunch you notice that you have a

voicemail

Phil Hello My name is Phil I am the owner of the small business East Lake Management

Operation better known as ELMO I am in the process of sending in a size protest Jenny

informed me that I could only protest orally I called SBA and they told me that the protest

could be in writing I am not pleased I will be citing this in the written protest

Screen 6 Your Office You have called Ruben the senior SBP to keep him informed of the

events

Ruben Hello this is Ruben Thanks for the back brief of events You need to ensure that you

learn the policies and provide accurate counselling If you are in doubt please review the

regulations It will be an embarrassment if this is written up in the protest

Screen 7 Your Office CONSEQUENCE OF YOUR ACTIONS Requiring all protests to be oral is not

consistent with FAR policy While FAR 19302(c)(2) allows size representation protests to be

initially submitted orally they must be followed up in writing protests can also be initially

submitted in writing All size representation protests must include the basis for the protest with

specific detailed evidence to support the allegation that the offeror is not small As a SBP it is

important that you provide accurate policy guidance when advising industry and Government

personnel to ensure you maintain credibility as a small business expert

Screen 8 Your office

Ruben Do you now understand the regulation How can an offeror protest a small business

size representation

Activity 3-2 Your office Ruben How can an offeror protest a small business size

representation

Choice 1 As stated in FAR 19302(c)(2) The protest or confirmation of the protest if initiated

orally shall be in writing Proceed to screen 20

Choice 2 A protest may be made orally if it is confirmed in writing and received by the

Contracting Officer within the 30-day period or by letter postmarked no later than 1 business

day after the oral protest (FAR 19302(d)(1)(i)) Proceed to screen 9

Screen 9 Your office

Ruben That is incorrect A protest may be made orally within the 5-day period if it is confirmed

in writing and received by the Contracting Officer or by letter postmarked no later than 1

business day after the oral protest

Screen 10 Your office CONSEQUENCE OF YOUR ACTIONS Advising a concern that they have 30

days to submit a protest would result in the SBA denying the protest as untimely While it is the

responsibility of the contractor to know what the FAR requires providing incorrect advice and

counsel too often will adversely impact your credibility and reputation as a SBP and expert in

your field

Screen 11 Your office

Ruben Please contact the offeror and Jenny to inform them of the correct regulation I have to

reiterate that even though industry is responsible for knowing the FAR rules we cannot provide

false advice Have a good day and let me know if you need anything Proceed to screen 22

Screen 12 Conference Room

Jenny Really I will inform the offeror that a protest may be made orally if it is confirmed in

writing and received by the Contracting Officer within the 30-day period Thank you for clearing

that up for me

Screen 13 Your office THE NEXT DAY - Coming back from lunch you notice that you have a

voicemail

Phil Hello My name is Phil I am from ELMO I am in the process of sending in a size protest

Jenny informed me that I had up to 30 days That sounded suspicious so I called SBA They

informed me a protest may be made orally within the 5-day period if it is confirmed in writing

and received by the Contracting Officer or by letter postmarked no later than one business day

after the oral protest I am not pleased I will be citing this in the written protest

Screen 14 Your office THE NEXT DAY - You have contacted Ruben the senior SBP to keep him

informed of the events

Ruben Hello this is Ruben Thanks for the back brief of events You need to ensure that you

learn the policies and provide accurate counselling If you are in doubt please review the

regulations It will be an embarrassment if this is written up in the protest

Screen 15 Your office CONSEQUENCE OF YOUR ACTIONS Advising a concern that they have 30

days to submit a protest would result in the SBA denying the protest as untimely While it is the

responsibility of the contractor to know what the FAR requires providing incorrect advice and

counsel too often will adversely impact your credibility and reputation as a SBP and expert in

your field

Screen 16 Your office

Ruben Do you now understand the regulation How can an offeror protest a small business

size representation

Activity 3-3 Your office

Question Ruben How can an offeror protest a small business size representation

Choice 1 As stated in FAR 19302(c)(2) an offeror can only protest orally and then must

follow-up with a written protest Proceed to screen 17

Choice 2 As stated in FAR 19302(c)(2) The protest or confirmation of the protest if initiated

orally shall be in writing Proceed to screen 20

Screen 17 Your office

Ruben That is incorrect A protest may be made orally within the 5-day period if it is confirmed

in writing and received by the Contracting Officer or by letter postmarked no later than 1

business day after the oral protest

Screen 18 Your Office CONSEQUENCE OF YOUR ACTIONS Advising a concern that they have 30

days to submit a protest would result in the SBA denying the protest as untimely While it is the

responsibility of the contractor to know what the FAR requires providing incorrect advice and

counsel too often will adversely impact your credibility and reputation as a SBP and expert in

your field

Screen 19 Your office

Ruben Please contact the offeror and Jenny to inform them of the correct regulation I have to

reiterate that even though industry is responsible for knowing the FAR rules we cannot provide

false advice Have a good day and let me know if you need anything Proceed to screen 22

Screen 20 Your office

Ruben That is correct Please contact the offeror and Jenny to inform them of the correct

regulation Have a good day and let me know if you need anything

Screen 21 Conference room

Jenny Thank you for clearing that up for me If I need further assistance Ill give you a call

Screen 22 Your office FEEDBACK A protest may be made orally within the 5-day period if it is

confirmed in writing and received by the Contracting Officer or by letter postmarked no later

than 1 business day after the oral protest (FAR 19302(d)(1)(i)) A Contracting Officer may

submit a size protest at any time before or after award and it is considered timely (FAR

19302(d)(2))

You have completed the tasks Ruben asked you to perform It is the end of the week You have

closed your computer and stored your documents away You head for the lobby

Screen 23 Lobby TWO DAYS LATER - As you return to work on Monday morning you run into

Asha in the lobby

Asha Good morning Just wanted to inform you that ELMO wants to send a protest stating that

they had evidence that CDI was large and therefore should not be considered for the award of

any small business set-aside contract for our Army base Have a great day

Screen 24 Your office Entering your office you get a phone call

Phil Hello this is Phil from ELMO I am assuming you heard about the protest Before we send

in the protest letter could you please tell me what is required for a size protest to be

considered by SBA

Activity 24-1 Your office

Question Phil In accordance with 13 CFR 1211007 what is required for a protest of size

status to be considered by SBA

Choice 1 A concern is considered a small and a large depending on the particular size standard

Proceed to screen 25

Choice 2 The size protest must demonstrate that the offeror being protested is considered

large based on presumed affiliation with a large business Proceed to screen 33

Choice 3 The size status protest must relate to a particular procurement and be specific to

provide reasonable notice as to the grounds upon which the protested concerns size is

questioned Proceed to screen 42

Screen 25 Your office

Phil Thank you I will send out the protest later today

Screen 26 Your office Entering your office you notice you have an e-mail

To Acquisition Team

From Connie Contracting Officer

Subject Size Protest E-mail Attachment Protest Letter

Hello

Just wanted to inform the SBA would not act on ELMOs protest I have received notice that the size protest is not being considered

I have also attached a copy of the protest

VR

Connie Contracting Officer

Screen 27 Your office Ruben meets with you weekly to review the status of acquisitions and

discuss any lessons learned During this weekly meeting you inform Ruben about the mistake

you made in informing the protestor that a concern is considered a small and a large depending

on the particular size standard

Ruben You do realize that a concerns size can fluctuate between small and large depending on

the particular procurement assigned NAICS size standards If you counsel industry you need to

realize this

Screen 28 Your office CONSEQUENCE OF YOUR ACTIONS 13 CFR 1211007(a) A protest

challenging the size of a concern which does not pertain to a particular procurement or sale will

not be acted on by SBA While it is true that a concern can be small andor large depending on

the procurements NAICS code and corresponding size standard the size protest would be

denied because it must be related to a particular procurement

Screen 29 Your office

Ruben Did you take a look at 13 CFR 1211007 What is required for a size protest to be

considered by SBA

Activity 24-2 Your office

Question Ruben In accordance with 13 CFR 1211007 what is required for a size protest to be

considered by SBA

Choice 1 The size status protest must relate to a particular procurement and be specific to

provide reasonable notice as to the grounds upon which the protested concerns size is

questioned Proceed to screen 41

Choice 2 The size protest must demonstrate that the offeror being protested is considered

large based on presumed affiliation with a large business Proceed to screen 30

Screen 30 Your office

Ruben Thatrsquos not quite right The protest must be sufficiently specific to prove affiliation Some

basis for the belief must be stated The SBA would not act on the protest IAW CFR 1211007(c)

the SBA protest regulations

Screen 31 Your office CONSEQUENCE OF YOUR ACTIONS 13 CFR 1211007(c) Non-specific

protests will be dismissed The protestor must present proof of affiliation and also relate it to a

specific procurement The protest would be denied because it is not specific The protestor sent

a copy of the protest stating there was presumed affiliation with a large business and therefore

should not be considered for the award of any small business set-aside contract

Screen 32 Your office

Ruben You cannot keep informing industry and the agency in this way You need to refer to the regulations before giving advice I will need to report this to the commander Do not give any more advice without looking at the regulations I will see you next month Proceed to screen 43

Screen 33 Your office

Phil Thank you I will send out the protest later today

Screen 34 Your office

To Acquisition Team

From Connie Contracting Officer

Subject Size Protest Attachment Protest Letter

Hello

Just wanted to inform the SBA would not act on ELMOs protest I have received notice that the size protest is not being considered

I have also attached a copy of the protest

VR

Connie

Contracting officer

Screen 35 Your office Ruben and yourself have monthly general follow-on discussions to discuss the progress of the acquisition and discuss any lessons learned You inform Ruben about the mistake you made

Ruben The protest must be sufficiently specific to prove affiliation Some basis for the belief must be stated The SBA would not act on the protest IAW CFR 1211007(c) the SBA protest regulations

Screen 36 Your office CONSEQUENCE OF YOUR ACTIONS 13 CFR 1211007(a) A protest challenging the size of a concern which does not pertain to a particular procurement or sale will not be acted on by SBA While it is true that a concern can be small andor large depending on the procurements NAICS code and corresponding size standard the size protest would be denied because it must be related to a particular procurement

Screen 37 Your office

Ruben Did you take a look at 13 CFR 1211007 What is required for a protest of size to be considered by SBA

Activity 24-3 Your office

Question Ruben In accordance with 13 CFR 1211007 what is required for a size protest to be

considered by SBA

Choice 1 A concern is considered a small and a large depending on the particular size standard

Proceed to screen 38

Choice 2 The size status protest must relate to a particular procurement and be specific to

provide reasonable notice as to the grounds upon which the protested concernrsquos size is

questioned Proceed to screen 41

Screen 38 Your office

Ruben You do realize that a concerns size can fluctuate between small and large depending on

the particular procurement assigned NAICS size standards If you counsel industry you need to

realize this

Screen 39 Your office CONSEQUENCE OF YOUR ACTIONS 13 CFR 1211007(a) A protest

challenging the size of a concern which does not pertain to a particular procurement or sale will

not be acted on by SBA While it is true that a concern can be small andor large depending on

the procurements NAICS code and corresponding size standard the size protest would be

denied because it must be related to a particular procurement

Screen 40 Your office

Ruben You cannot keep informing industry and the agency in this way You need to refer to the

regulations before giving advice I will need to report this to the commander Do not give any

more advice without looking at the regulations I will see you next month Proceed to screen 43

Screen 41 Your office

Ruben That is correct In the future do not give any more advice without looking at the

regulations I will see you next month

Screen 42 Your office

Phil Thank you I will send out the protest today Goodbye

Screen 43 Your office FEEDBACK A protest challenging the size of a concern must pertain to a

particular procurement or sale Additionally a size protest must be sufficiently specific to

provide reasonable notice as to the grounds upon which the protested concerns size is

questioned No particular form is prescribed for a protest Where materials supporting the

protest are available they should be submitted with the protest Size protests which do not

meet 13 CFR 1211007 requirements will be dismissed by SBA

Screen 44 Your office TWO DAYS LATER

To You SBP Attachment Protest

From Connie Contracting Officer

Subject Size Protest

Hello

After lunch if you could please meet Jenny and I in the conference room I have received the

protest from ELMO and just want to make sure I handle my part The protest document is

attached to this message Please read it before going to see Jenny

Thanks

Connie

Contracting Officer

Screen 45 Conference room LATER THAT DAY

Connie Thanks for coming by ELMO has submitted their small business size representation protest Could you please tell me what needs to be included

Activity 45-1 Conference room

Question Connie What should a small business size representation protest contain

Choice 1 According to FAR 19302(c) a small business size representation protest shall include

the basis for the protest and a referral letter written by the Contracting Officer with

information pertaining to the solicitation - Proceed to screen 73

Choice 2 According to FAR 19302(c)(3) a small business size representation protest shall

include a referral letter written by the Program Manager with information addressing the

solicitation - Proceed to screen 46

Choice 3 According to FAR 19302(c)(3) a small business size representation protest shall

include a copy of the solicitation and all offerors bid - Proceed to screen 59

Screen 46 Conference room

Connie Oh ok Asha needs to fill out the referral letter Please give her a call

Screen 47 Conference room

Asha Hello Asha speaking How may I help you

Screen 48 Conference room

Connie Hey Asha Itrsquos me Connie I have Jenny and the SBP here with me The SBP has just informed me that the Program Manager needs to fill out the referral letter for the size protest

Screen 49 Conference room

Asha Are you sure I have never filled out a referral letter before What must a small business representation protest need to include

Activity 45-2 Conference room

Question Asha What should a small business size representation protest contain

Choice 1 According to FAR 19302(c)(3) a small business size representation protest shall include a copy of the solicitation and all offerorsrsquo bids - Proceed to screen 50

Choice 2 According to FAR 19302(c) a small business size representation protest shall include the basis for the protest and a referral letter written by the Contracting Officer with information pertaining to the solicitation - Proceed to screen 73

Screen 50 Conference room

Asha Ok if you want me to fill out the referral letter I can have it completed by tomorrow You will need to gather the solicitation and offerorsrsquo bids

Screen 51 conference room

Connie Thank you Asha

Screen 52 Your office TWO DAYS LATER - As you enter your office the phone rings

Asha Hello this is Asha I just wanted to let you know that the SBA has returned the protest They stated that the Contracting Officer needs to fill out the referral letter SBA also included a list of items that the protest package should contain I left the list in your inbox

Screen 53 Your office read the protest package that is in your inbox

Screen 54 Your office THREE DAYS LATER

Asha I will get with Connie to make sure what the correct information gets sent to the SBA Bye

Screen 55 Conference room Connie has called a meeting of the team to discuss the size protest from ELMO

Connie Thank you everyone for coming As you all know the protest has slowed down the process of awarding the contract This mishap about who should fill out the referral letter has caused us even more delay which potentially will impact the delivery schedule

Screen 56 Conference room

Connie The protest package has been completed and sent back to the SBA Everything should be in order and now we just wait to hear back from the SBA I brought in copies of the referral letter and the CDI representation letter for everyone to take a look at

Screen 57 Conference room Read the Size Determination document

Screen 58 Conference room CONSEQUENCE OF YOUR ACTIONS The SBA sent back the protest This resulted in a delay of SBAs protest decision As a result there may be potential

delays for contract award and impacts to the programs overall costperformanceschedule

baseline

Screen 59 Conference room

Jenny Oh ok we just need to include the solicitation and all of the offerors bids I can gather

that information up in no time

Screen 60 Conference room

Connie Are you sure that is correct I thought somewhere in the regulations I read that we

were supposed to supply a letter and that the protester was supposed to come up with all the

other information

Activity 45-3 Conference room

Question Connie What should a small business size representation protest contain

Choice 1 According to FAR 19302(c) a small business size representation protest shall include

the basis for the protest and a referral letter written by the Contracting Officer with

information pertaining to the solicitation - Proceed to screen 73

Choice 2 According to FAR 19302(c)(3) a small business size representation protest shall

include a referral letter written by the Program Manager with information addressing the

solicitation - Proceed to screen 61

Screen 61 Conference room

Connie Oh ok Asha needs to fill out the referral letter Letrsquos give her a call

Screen 62 Conference room

Asha Hello Asha speaking How may I help you

Screen 63 Conference room

Connie Hey Asha Itrsquos me Connie I have Jenny and the SBP here with me The SBP has just

informed me that the Program Manager needs to fill out the referral letter for the size protest

Screen 64 Conference room

Asha Sure I can fill out the referral letter Irsquoll have it completed by tomorrow Bye

Screen 65 Conference room

Connie Once I receive the letter from Asha I will send it off to SBA Thanks Have a great rest of your day

Screen 66 Hour office TWO DAYS LATER - As you enter your office the phone rings

Asha Hello this is Asha I just wanted to let you know that the SBA has returned the protest They stated that the Contracting Officer needs to fill out the referral letter SBA also included a list of items that the protest package should contain I left the list in your inbox

Screen 67 Your office

Asha I will get with Connie to make sure that the correct information gets sent to the SBA Bye

Screen 68 Your office Read the Protest Package letter

Screen 69 Conference room THREE DAYS LATER - Connie has called a meeting of the team to discuss the size protest from ELMO

Connie Thank you everyone for coming As you all know the protest has slowed down the

process of awarding the contract This mishap about who should fill out the referral letter has

cause us even more delay which potentially will impact the delivery schedule

Screen 70 conference room

Connie The protest package has been completed and sent back to the SBA Everything should be in order and now we just wait to hear back from the SBA I brought in copies of the referral letter and the CDI representation letter for everyone to take a look at

Screen 71 Conference room Read the Referral Letter CDI Representation and Size Determination documents

Screen 72 Conference room CONSEQUENCE OF YOUR ACTIONS The SBA sent the protest back This has resulted in a delay in the SBA deciding the protest and potential delay of award of the contract which could result in a delay in performance of delivery or service resulting in additional costs to the Government

Screen 73 Conference room

Connie Thatrsquos it Ok I can definitely take care of that today Thank you

Screen 74 Your office It has been several days since you spoke to Connie about the small

business representation protest requirements As you sit down to start your day you notice you

have a voicemail

Jenny Hello Can you stop by the conference room when you get this message Thanks

Screen 75 Conference room

Connie Hello Thanks for coming I just wanted to inform you that the protest package has

been completed and sent back to the SBA Everything should be in order and now we just wait

to hear back from the SBA I brought in copies of the referral letter and the CDI representation

letter for everyone to take a look at

Screen 76 Conference room Read the Referral Letter CDI Representation and Size

Determination documents

Screen 77 Conference room

FEEDBACK According to FAR 19302(c)(3) a small business representation protest shall include

the basis of the protest and include a referral letter signed by the Contracting Officer with

information pertaining to the solicitation and include (i) the protest and any accompanying

materials (ii) a copy of the size self-certification (iii) Identification of applicable size standard

(iv) a copy of the electronic link to the solicitation and any amendments (v) the name address

telephone number email address and number of the Contracting Officer (vi) identification of

the bid opening date or date of notification provided to unsuccessful offerors (vii) the date the

Contracting Officer received the protest (viii) a complete address and point of contact for the

protested concern An offeror the SBA or another interested party may protest the small

business representation of an offeror in a specific offer (FAR 19302(a)(2)) For competitive 8(a)

contracts the filing of a protest is limited to the Contracting Officer an offeror or the SBA The

Contracting Officer may also submit a small business representation protest at any time before

or after award (FAR 19302(a) and (b))

Screen 78 Your office A WEEK LATER - As you come back from lunch with Janet you get a visit

from Jenny She has not heard anything about the protest for several days and would like

clarification on the protest process with the SBA

Jenny Hi I just wanted to clarify the notification process of the protest It has been five days

since the documents were submitted to the SBA and we have not heard anything as of yet

Connie also gave me this form that I am unfamiliar with I put it in your inbox

Screen 79 Your office Read the SBA Form 355

Screen 80 Your office

Jenny Hey Janet what is the SBA Government Contracting Area Directors process after

receiving a size determination protest

Screen 81 Your office

Janet When SBA receives a size protest the SBA Area Director for Government Contracting or

designee will notify the contracting officer the protested concern and the protestor that the

protest has been received SBA will provide a blank copy of SBA Form 355 Application for Small

Business Determination to the concern whose size is at issue The protested concern or

concern whose size is at issue must return the completed SBA Form 355 and all other requested

information to SBA within 3 working days from the date of receipt of the blank form from SBA

SBA has discretion to grant an extension of time to file the form After receipt of a protest or a

request for a formal size determination the SBA Area Office will issue a formal size

determination within 15 business days if possible or within an extension granted by the

Contracting Officer in accordance with FAR 19302(e)

Screen 82 Your office

Jenny Thank you for clarifying the process Irsquoll see you both later

Screen 83 Your office

Janet Yes I have to get back to the office too Irsquoll see you later

Screen 84 Your office THE NEXT DAY - You re-enter your office from a break and receive a

phone call

Jenny Hello I forgot to ask when the Contracting Officer may award a contract that has a small

business size protest

Activity 84-1 Your office

Question Jenny When may the Contracting Officer award a contract that has been protested

Choice 1 Only after the SBA makes a determination of the small business representation

protest - Proceed to screen 85

Choice 2 When the SBA makes a decision or 15 business days have expired whichever comes

first however the CO may award a contract before an SBA determination is made when he

makes a written determination that award must be made to protect public interest - Proceed

to screen 105

Choice 3 The Contracting Officer does not have to wait for SBA to make the determination -

Proceed to screen 95

Screen 85 Your office

Jenny Ok so I guess we just wait until the SBA makes a determination Thanks

Screen 86 Program Managerrsquos Office THE NEXT DAY - Asha has requested that you come by

her office As you walk into Asharsquos office Connie is already there

Asha Connie was just informing me that she has decided to wait on SBAs decision about the

protest before awarding the contract Just want to inform the both of you that the incumbent

contract expires 18 days after the submittal of the protest to the SBA

Screen 87 Program Managerrsquos Office

Connie That is a good point Asha The risk of me waiting too long will result in expiration of the

contract A lapse between contracts is unacceptable as that may adversely impact the

warfighter

Activity 84-2 Program Managerrsquos Office

Question Connie When may the Contracting Officer award a contract that has been

protested

Choice 1 When the SBA makes a decision or 15 business days have expired whichever comes

first however the CO may award a contract before an SBA determination is made when he

makes a written determination that award must be made to protect public interest - Proceed

to screen 103

Choice 2 The Contracting Officer does not have to wait for SBA to make the determination -

Proceed to screen 88

Screen 88 Program Managerrsquos Office

Connie If that is the case letrsquos wait about a week and then award the contract Thanks

everyone

Screen 90 Your office FIVE DAYS LATER - SBA renders its decision on the required 15th

business day finding that the apparent successful offeror was not eligible for the award

Connie Meeting today at 2 PM

Screen 91 Conference room 2 PM - Connie has called in Asha Jenny and Ian to the

conference room

Connie As you are aware SBA came back with the decision that ELMO was not eligible for the

award Because it is so close to the completion of the source selection we may be able to go

back and award to the offeror that was second in line based on evaluation results

Screen 92 Conference room

Ian We would have to get the acquisition team together with legal SBA and leadership but

we might be able to accomplish that without having to start the procurement over again

Screen 93 Conference room

Connie Thanks everyone I will keep you posted

Screen 94 Conference room CONSEQUENCE OF YOUR ACTIONS Awarding the contract

without waiting for SBA to make a decision on the appeal is a violation of FAR policy (FAR

19302(g)(2) this type of violation could result in significant impacts inclusive of the

Contracting Officer having to terminate the unauthorized contract Additional fallout may occur

by having to re-accomplish the procurement entirely since the source selection was effectively

completed upon award of the unauthorized contract to the ineligible company Reprocurement

risk would be dependent upon the acquisition circumstances timing and viewpoints of the key

stakeholders and decision-makers

FEEDBACK After receiving a size protest involving a new procurement the Contracting Officer

shall not award the contract until the SBA has made a size determination or after 15 business

days have expired whichever comes first However the Contracting Officer may award a

contract before an SBA determination is made when shehe makes a written determination

that award must be made to protect the public interest (FAR 19302(g)(1))

Screen 95 Your office

Jenny Ok I will inform Connie Thanks

Screen 96 COrsquos office LATER THAT DAY - Connie has asked you to come by her office

Connie Hello Thanks for coming by Jenny tells me that you said that we do not need to wait

for SBA to make the determination about the size protest What happens if we award the

contract and then SBA finds the apparent successful offeror was not eligible for the award

Maybe you should double check the regulation

Activity 84-3 COrsquos office

Question Connie When may the Contracting Officer award a contract that has been

protested

Choice 1 Only after the SBA makes a determination of the small business representation

protest - Proceed to screen 97

Choice 2 When the SBA makes a decision or 15 business days have expired whichever comes

first however the CO may award a contract before an SBA determination is made when he

makes a written determination that award must be made to protect public interest - Proceed

to screen 104

Screen 97 COrsquos office

Connie Ok so I guess we just wait until the SBA makes a determination

Screen 98 Program Managerrsquos Office LATER THAT DAY - Asha has requested that you come by

her office As you walk into Asharsquos office Connie is already there

Asha Connie was just informing me that she has decided to wait on SBAs decision about the

protest before awarding the contract Just want to inform the both of you that the current

contract expires 18 days after the submittal of the protest to the SBA

Screen 99 Program Managerrsquos Office

Connie That is a good point Asha The risk of me waiting too long will result in expiration of the

incumbents contract and work stoppage for security guard services

Screen 100 Program Managerrsquos Office

Asha I looked up the regulation and it states that we should wait up to 15 business days and

then we may award the contract

Screen 101 Program Managerrsquos Office

Connie Thanks That is what we will do and hopefully SBA will respond before the 15 days

Screen 102 Program Managerrsquos Office CONSEQUENCE OF YOUR ACTIONS Not thoroughly

understanding the protest procedures and being uninformed of program needs and imp acts

could result in adverse impacts to the warfighter

FEEDBACK After receiving a size protest involving a new procurement the Contracting Officer

shall not award the contract until the SBA has made a size determination or after 15 business

days have expired whichever comes first However the Contracting Officer may award a

contract before an SBA determination is made when shehe makes a written determination

that award must be made to protect the public interest (FAR 19302(g)(1))

Screen 103 Program Managerrsquos Office

Connie Ok we wait for 15 business days That sounds much better Thanks - Proceed to

screen 106

Screen 104 COrsquos office

FEEDBACK After receiving a size protest involving a new procurement the Contracting Officer

shall not award the contract until the SBA has made a size determination or after 15 business

days have expired whichever comes first However the Contracting Officer may award a

contract before an SBA determination is made when shehe makes a written determination

that award must be made to protect the public interest (FAR 19302(g)(1))

Connie Ok we wait for 15 business days That sounds much better Thanks - Proceed to

screen 107

Screen 105 Your office

FEEDBACK After receiving a size protest involving a new procurement the Contracting Officer shall not award the contract until the SBA has made a size determination or after 15 business days have expired whichever comes first However the Contracting Officer may award a contract before an SBA determination is made when shehe makes a written determination that award must be made to protect the public interest (FAR 19302(g)(1))

Jenny Ok we wait for 15 business days Thanks - Proceed to screen 107

Screen 106 Program Managerrsquos office FEEDBACK After receiving a size protest involving a new procurement the Contracting Officer shall not award the contract until the SBA has made a size determination or after 15 business days have expired whichever comes first However the Contracting Officer may award a contract before an SBA determination is made when shehe makes a written determination that award must be made to protect the public interest (FAR 19302(g)(1))

Screen 107 Your office TWO DAYS LATER - Itrsquos been two days since your conversation with Jenny You notice that you have a new e-mail

To Acquisition Team Attachment Appeal Letter

From Grace CDI Contractor

Subject ELMO protest upheld

Hello

I just heard that ELMOs protest was upheld We believe the decision was based on erroneous information so we want to appeal Can you give me some guidance in the process for submitting an appeal

I have attached the appeal and size determination letters

Sincerely

Grace CDI Contractor

Activity 107-1 Your office

Question Grace What is the process for submitting an appeal for a size protest determination

Choice 1 IAW FAR 19302(h) an appeal may be filed with the SBA Office of Hearings and Appeals by any concern or interested party whose protest of the small business representation of another concern has been denied - Proceed to screen 111

Choice 2 An appeal may be filed by any concern or interested party to protest the small business representation of another concern to the Contracting Officer - Proceed to screen 108

Screen 108 Your office THREE DAYS LATER Connie comes by your office

Connie Hello there I just received the appeal from CDI through the mail channels and realized

that the protestor sent it to me in error I am having Jenny mail the appeal package back to CDI

Screen 109 Your office As you get back to your desk you notice that you have a voicemail

Grace Hello this is Grace from CDI Looks like I sent my appeal to the wrong location I was not

supposed to send it to the Contracting Officer I have re-sent the appeal to SBA OHA I hope

that its not too late because they will deny my appeal if untimely

Screen 110 Your office CONSEQUENCES OF YOUR ACTIONS Filing the appeal with the

Contracting Officer would result in lost time for the protestor because the appeal must be filed

with SBA OHA The concern encounters a greater risk of denial by SBA OHA if the appeal is not

filed within the time frame listed in Subpart C of 13 CFR 134

Screen 111 Your office The agency awaits confirmation from SBA OHA as to the standing of

the appeal and related impacts to the ongoing procurement You leave for the weekend

Screen 112 Your office FEEDBACK An appeal may be filed only when the small business

representation protest has been denied by the SBA Government Contracting Area Director and

within the time frames and in accordance with the procedures outlined in Subpart C of 13 CFR

Part 134 (IAW FAR 19302(h)) While a Contracting officer may file an appeal of their own the

concern or interested party must file the appeal to the SBA Office of Hearings and Appeals

(OHA) within the time frame and in accordance with the procedures listed in Subpart C of 13

CFR 134

Screen 113 Your office You return to the office on Monday morning You have a new e-mail

E-mail CDI appeal

To You SBP

From Connie Contracting Officer

Subject CDI Appeal

Hello

I would like to have a meeting with you and our lawyer Ian and Jenny to review the CDI size

appeal to the SBA Office of Hearings and Appeals Please check your calendar to see if you are

free tomorrow afternoon Let me know if you can make it

Sincerely

Connie

Contracting Officer

Screen 114 Conference room THE NEXT DAY - You Connie Jenny and the departmentrsquos

lawyer Ian are in a conference room

Ian Glad you could make the meeting We have been informed that Corporate Defenders is

appealing the SBAs decision Because of the potential impact the appeals process may have on

our current security guard services and before we make a decision on what we should do

about continuation of those services I would like to discuss the basis of the original size protest

by ELMO in the Corporate Defenders appeal to determine whether we think it will be denied

What was the basis of the original size protest by ELMO in the Corporate Defenders appeal

Screen 115 Conference room

Jenny The basis of the original protest is that Corporate Defenders Inc is affiliated with Rivers

under the ostensible subcontracting rule

Screen 116 Conference room

Connie Now that we have determined it is a size representation issue does this fall within the

affiliation under the ostensible subcontracting rule

Screen 117 Conference room

Ian The regulation defines an ostensible subcontractor as a subcontractor that performs

primary and vital requirements or when the prime contractor is unusually reliant upon the

subcontractor In this case CDI would be relying on the workforce and management of Rivers

to fulfill the requirements of the contract Therefore the combined size standards of CDI and

Rivers exceeds the size standard for this procurement according to 13 CFR 121103(h)(4)

Screen 118 Conference room

Connie The SBA Area Office found that under the ostensible subcontracting rule CDI was

considered a large business because of its affiliation with Rivers CDI appealed the ruling to the

SBA Office of Hearings and Appeals stating that CDI was not overly reliant on Rivers for

performing the contract and that CDI will serve as the prime contractor ELMO argued that

there is an ostensible subcontracting affiliation with CDI and Rivers and that Rivers is a large

business and thus CDI is ineligible for award What factors could lead to the appeal being

denied

Activity 118-1 Conference room

Question Connie What factors led to the appeal being denied

Choice 1 Rivers was a large business and thus ineligible for the award - Proceed to screen 119

Choice 2 CFR 121103(h)(4) states only the terms of the proposal are applicable to determining

the teaming agreement between the prime and subcontractor - Proceed to screen 123

Choice 3 There is ostensible subcontracting based on the fact that the proposed subcontractor

is the incumbent contractor and thus ineligible for award the prime contractor proposed to

hire the majority of the workforce from the subcontractor the prime contractors proposed

program manager previously served as program manager for the subcontractor on incumbent

contract and the prime contractor lacked experience with projects of the magnitude required

of this procurement This makes the offeror ineligible for award - Proceed to screen 127

Screen 119 Conference room

Ian I believe that is an incorrect assumption since Rivers was only going to perform 43 percent

of the work for a small business This alone would not make Rivers an ostensible subcontractor

Activity 118-2 Conference room

Question Connie What factors led to the appeal being denied

Choice 1 There is ostensible subcontracting based on the fact that the proposed subcontractor

was the incumbent contractor and thus ineligible for award - Proceed to screen 127

Choice 2 CFR 121103(h)(4) states that only the terms of the proposal are applicable to

determining the teaming agreement between the prime and subcontractor - Proceed to screen

120

Screen 120 Conference room

Ian I believe this is an incorrect assumption All aspects of the relationship between CDI and

Rivers are to be considered

Screen 121 Conference room

Connie Letrsquos reference back to the ruling and the reason why there was an ostensible

subcontract

Screen 122 Conference room

Connie It appears that there was ostensible subcontracting based on the fact that the

proposed subcontractor was the incumbent contractor and thus ineligible for award the prime

contractor proposed to hire the majority of the workforce from the subcontractor the prime

contractors proposed program manager previously served as program manager for the

subcontractor on incumbent contract and the prime contractor lacked experience with

projects of the magnitude required of this procurement - Proceed to screen 127

Screen 123 Conference room

Ian I believe this is an incorrect assumption All aspects of the relationship between CDI and

Rivers are to be considered

Activity 118-3 conference room

Question Ian What factors led to the appeal being denied

Choice 1 Rivers was a large business and thus ineligible for the award - Proceed to screen 124

Choice 2 There is ostensible subcontracting based on the fact that the proposed subcontractor

was the incumbent contractor and thus ineligible for award - Proceed to screen 127

Screen 124 Conference room

Ian I believe that is an incorrect assumption since Rivers was only going to perform 43 percent

of the work for a small business This alone would not make Rivers an ostensible subcontractor

Screen 125 Conference room

Connie Letrsquos reference back to the ruling and the reason why there was an ostensible

subcontract

Screen 126 Conference room

Connie It appears that there was ostensible subcontracting based on the fact that the

proposed subcontractor was the incumbent contractor and thus ineligible for award the prime

contractor proposed to hire the majority of the workforce from the subcontractor the p rime

contractors proposed program manager previously served as program manager for the

subcontractor on incumbent contract and the prime contractor lacked experience with

projects of the magnitude required of this procurement

Screen 127 Conference room

FEEDBACK CFR 121103(h)(4) states all aspects of the relationship between the prime and the

subcontractor are to be considered including but not limited to the terms of the proposal such

as contract management and the percentage of subcontract work agreement between the

prime and subcontractor and whether the subcontractor is the incumbent contractor and is

ineligible to submit a proposal because it exceeds the applicable size standard

Screen 128 Conference room

Connie I think we are good here Thank you for meeting Talk to you later

Screen 129 Conference room

SUMMARY Small Businesses are subject to a size protest on a small business set-aside before

award of a contract The SBA will normally make a determination of size status within 15 days

of receipt of protest To be considered by the SBA it is necessary that the protest be specific

and timely

FAR 19302 and 13 CFR Part 121 provide the specific rules for submitting a size representation

An appeal can be made to the SBA Office of Hearing and Appeals for re-consideration of an SBA

Area Office size protest decision In determining size protests the SBA will consider receipts

number of employees and affiliations of the protested concerns In examining affiliations the

SBA will look for an ostensible subcontracting relationship in which the subcontractor that

performs primary and vital requirements of a contract or a subcontractor upon which the prime

contractor is unusually reliant

If affiliation is found and the prime and the sub are considered large due then award cannot

be made If a size protest is not submitted timely or does not contain sufficient information to

make a size determination the protest will be dismissed The SBP role is to ensure that the

organization is aware of the regulations governing the SBA size protests

When a Small Business size representation protest andor an appeal to a size protest is

received the SBPs role is to advise and assist the acquisition team and Contracting Officer with

interpretation and application of corresponding FAR Part 19 and SBA 13 CFR requirements The

SBP may also advise the offeror or contractor on the procedures for submitting a protest prior

to issuing a solicitation After the solicitation has been issued all communication must be

through the Contracting Officer While this scenario discusses the procedures for a small

business representation protest the SBP needs to be aware that the socio-economic programs

ie HUBZones SDVOSB 8(a) and WOSB each have slightly different procedures which are set-

forth in FAR Part 19 Close attention must be made to both the applicable FAR Part 19 and SBA

13 CFR 121 requirements to provide proper advice and guidance on each type of protest and

appeal

Screen 130 Conference room This concludes the simulation The After Action Report (AAR) has

been created Download the AAR and review your performance in the simulation

After viewing the AAR use the browser close button to close this simulation and return to

screen 3 in the Size Protest lesson to complete this lesson

SBP220 Business Decisions for Small Business lesson 11 - Size Pr otest Simulation RESOURCES I PRINT I HELP

Summary

I Poge 5 of6 I Back Next

SBP220 Business Decisions for Small Business lesson 11 - Size Protest Simulation RESOURCES 1 PRINT 1 HELP

Summary

Closed Captioning Congratulations you have completed the Size Protest Simulation During this simulation you participated in activities common to interpreting data to verify the size of a small business Ensure that you review your After Action Report and if you did not respond correctly to all activities consider going through the simula tion again

I Pogo 5of6 I Back Next

SBP220 Business Decisions for Small Business lesson 11 - Size Protest Simulation RESOURCES I PRINT I HELP

Summary

Poge 5of6 I Back Next

SBP220 Business Decisions for Small Business Lesson 11 - Size Pr otest Simulation RESOURCES j PRINT j HElP

Lesson Completion

You have comple ted the con tent for this lesson

To continue select another lesson from the Table of Con tents on the le f t

If you have closed or hidden the Table of Contents select the Show T OC button at the t op in the Atlas navigation bar

~ I P o ge 6 of6 I Back Next

Screen 5 Your Office THE NEXT DAY - Coming back from lunch you notice that you have a

voicemail

Phil Hello My name is Phil I am the owner of the small business East Lake Management

Operation better known as ELMO I am in the process of sending in a size protest Jenny

informed me that I could only protest orally I called SBA and they told me that the protest

could be in writing I am not pleased I will be citing this in the written protest

Screen 6 Your Office You have called Ruben the senior SBP to keep him informed of the

events

Ruben Hello this is Ruben Thanks for the back brief of events You need to ensure that you

learn the policies and provide accurate counselling If you are in doubt please review the

regulations It will be an embarrassment if this is written up in the protest

Screen 7 Your Office CONSEQUENCE OF YOUR ACTIONS Requiring all protests to be oral is not

consistent with FAR policy While FAR 19302(c)(2) allows size representation protests to be

initially submitted orally they must be followed up in writing protests can also be initially

submitted in writing All size representation protests must include the basis for the protest with

specific detailed evidence to support the allegation that the offeror is not small As a SBP it is

important that you provide accurate policy guidance when advising industry and Government

personnel to ensure you maintain credibility as a small business expert

Screen 8 Your office

Ruben Do you now understand the regulation How can an offeror protest a small business

size representation

Activity 3-2 Your office Ruben How can an offeror protest a small business size

representation

Choice 1 As stated in FAR 19302(c)(2) The protest or confirmation of the protest if initiated

orally shall be in writing Proceed to screen 20

Choice 2 A protest may be made orally if it is confirmed in writing and received by the

Contracting Officer within the 30-day period or by letter postmarked no later than 1 business

day after the oral protest (FAR 19302(d)(1)(i)) Proceed to screen 9

Screen 9 Your office

Ruben That is incorrect A protest may be made orally within the 5-day period if it is confirmed

in writing and received by the Contracting Officer or by letter postmarked no later than 1

business day after the oral protest

Screen 10 Your office CONSEQUENCE OF YOUR ACTIONS Advising a concern that they have 30

days to submit a protest would result in the SBA denying the protest as untimely While it is the

responsibility of the contractor to know what the FAR requires providing incorrect advice and

counsel too often will adversely impact your credibility and reputation as a SBP and expert in

your field

Screen 11 Your office

Ruben Please contact the offeror and Jenny to inform them of the correct regulation I have to

reiterate that even though industry is responsible for knowing the FAR rules we cannot provide

false advice Have a good day and let me know if you need anything Proceed to screen 22

Screen 12 Conference Room

Jenny Really I will inform the offeror that a protest may be made orally if it is confirmed in

writing and received by the Contracting Officer within the 30-day period Thank you for clearing

that up for me

Screen 13 Your office THE NEXT DAY - Coming back from lunch you notice that you have a

voicemail

Phil Hello My name is Phil I am from ELMO I am in the process of sending in a size protest

Jenny informed me that I had up to 30 days That sounded suspicious so I called SBA They

informed me a protest may be made orally within the 5-day period if it is confirmed in writing

and received by the Contracting Officer or by letter postmarked no later than one business day

after the oral protest I am not pleased I will be citing this in the written protest

Screen 14 Your office THE NEXT DAY - You have contacted Ruben the senior SBP to keep him

informed of the events

Ruben Hello this is Ruben Thanks for the back brief of events You need to ensure that you

learn the policies and provide accurate counselling If you are in doubt please review the

regulations It will be an embarrassment if this is written up in the protest

Screen 15 Your office CONSEQUENCE OF YOUR ACTIONS Advising a concern that they have 30

days to submit a protest would result in the SBA denying the protest as untimely While it is the

responsibility of the contractor to know what the FAR requires providing incorrect advice and

counsel too often will adversely impact your credibility and reputation as a SBP and expert in

your field

Screen 16 Your office

Ruben Do you now understand the regulation How can an offeror protest a small business

size representation

Activity 3-3 Your office

Question Ruben How can an offeror protest a small business size representation

Choice 1 As stated in FAR 19302(c)(2) an offeror can only protest orally and then must

follow-up with a written protest Proceed to screen 17

Choice 2 As stated in FAR 19302(c)(2) The protest or confirmation of the protest if initiated

orally shall be in writing Proceed to screen 20

Screen 17 Your office

Ruben That is incorrect A protest may be made orally within the 5-day period if it is confirmed

in writing and received by the Contracting Officer or by letter postmarked no later than 1

business day after the oral protest

Screen 18 Your Office CONSEQUENCE OF YOUR ACTIONS Advising a concern that they have 30

days to submit a protest would result in the SBA denying the protest as untimely While it is the

responsibility of the contractor to know what the FAR requires providing incorrect advice and

counsel too often will adversely impact your credibility and reputation as a SBP and expert in

your field

Screen 19 Your office

Ruben Please contact the offeror and Jenny to inform them of the correct regulation I have to

reiterate that even though industry is responsible for knowing the FAR rules we cannot provide

false advice Have a good day and let me know if you need anything Proceed to screen 22

Screen 20 Your office

Ruben That is correct Please contact the offeror and Jenny to inform them of the correct

regulation Have a good day and let me know if you need anything

Screen 21 Conference room

Jenny Thank you for clearing that up for me If I need further assistance Ill give you a call

Screen 22 Your office FEEDBACK A protest may be made orally within the 5-day period if it is

confirmed in writing and received by the Contracting Officer or by letter postmarked no later

than 1 business day after the oral protest (FAR 19302(d)(1)(i)) A Contracting Officer may

submit a size protest at any time before or after award and it is considered timely (FAR

19302(d)(2))

You have completed the tasks Ruben asked you to perform It is the end of the week You have

closed your computer and stored your documents away You head for the lobby

Screen 23 Lobby TWO DAYS LATER - As you return to work on Monday morning you run into

Asha in the lobby

Asha Good morning Just wanted to inform you that ELMO wants to send a protest stating that

they had evidence that CDI was large and therefore should not be considered for the award of

any small business set-aside contract for our Army base Have a great day

Screen 24 Your office Entering your office you get a phone call

Phil Hello this is Phil from ELMO I am assuming you heard about the protest Before we send

in the protest letter could you please tell me what is required for a size protest to be

considered by SBA

Activity 24-1 Your office

Question Phil In accordance with 13 CFR 1211007 what is required for a protest of size

status to be considered by SBA

Choice 1 A concern is considered a small and a large depending on the particular size standard

Proceed to screen 25

Choice 2 The size protest must demonstrate that the offeror being protested is considered

large based on presumed affiliation with a large business Proceed to screen 33

Choice 3 The size status protest must relate to a particular procurement and be specific to

provide reasonable notice as to the grounds upon which the protested concerns size is

questioned Proceed to screen 42

Screen 25 Your office

Phil Thank you I will send out the protest later today

Screen 26 Your office Entering your office you notice you have an e-mail

To Acquisition Team

From Connie Contracting Officer

Subject Size Protest E-mail Attachment Protest Letter

Hello

Just wanted to inform the SBA would not act on ELMOs protest I have received notice that the size protest is not being considered

I have also attached a copy of the protest

VR

Connie Contracting Officer

Screen 27 Your office Ruben meets with you weekly to review the status of acquisitions and

discuss any lessons learned During this weekly meeting you inform Ruben about the mistake

you made in informing the protestor that a concern is considered a small and a large depending

on the particular size standard

Ruben You do realize that a concerns size can fluctuate between small and large depending on

the particular procurement assigned NAICS size standards If you counsel industry you need to

realize this

Screen 28 Your office CONSEQUENCE OF YOUR ACTIONS 13 CFR 1211007(a) A protest

challenging the size of a concern which does not pertain to a particular procurement or sale will

not be acted on by SBA While it is true that a concern can be small andor large depending on

the procurements NAICS code and corresponding size standard the size protest would be

denied because it must be related to a particular procurement

Screen 29 Your office

Ruben Did you take a look at 13 CFR 1211007 What is required for a size protest to be

considered by SBA

Activity 24-2 Your office

Question Ruben In accordance with 13 CFR 1211007 what is required for a size protest to be

considered by SBA

Choice 1 The size status protest must relate to a particular procurement and be specific to

provide reasonable notice as to the grounds upon which the protested concerns size is

questioned Proceed to screen 41

Choice 2 The size protest must demonstrate that the offeror being protested is considered

large based on presumed affiliation with a large business Proceed to screen 30

Screen 30 Your office

Ruben Thatrsquos not quite right The protest must be sufficiently specific to prove affiliation Some

basis for the belief must be stated The SBA would not act on the protest IAW CFR 1211007(c)

the SBA protest regulations

Screen 31 Your office CONSEQUENCE OF YOUR ACTIONS 13 CFR 1211007(c) Non-specific

protests will be dismissed The protestor must present proof of affiliation and also relate it to a

specific procurement The protest would be denied because it is not specific The protestor sent

a copy of the protest stating there was presumed affiliation with a large business and therefore

should not be considered for the award of any small business set-aside contract

Screen 32 Your office

Ruben You cannot keep informing industry and the agency in this way You need to refer to the regulations before giving advice I will need to report this to the commander Do not give any more advice without looking at the regulations I will see you next month Proceed to screen 43

Screen 33 Your office

Phil Thank you I will send out the protest later today

Screen 34 Your office

To Acquisition Team

From Connie Contracting Officer

Subject Size Protest Attachment Protest Letter

Hello

Just wanted to inform the SBA would not act on ELMOs protest I have received notice that the size protest is not being considered

I have also attached a copy of the protest

VR

Connie

Contracting officer

Screen 35 Your office Ruben and yourself have monthly general follow-on discussions to discuss the progress of the acquisition and discuss any lessons learned You inform Ruben about the mistake you made

Ruben The protest must be sufficiently specific to prove affiliation Some basis for the belief must be stated The SBA would not act on the protest IAW CFR 1211007(c) the SBA protest regulations

Screen 36 Your office CONSEQUENCE OF YOUR ACTIONS 13 CFR 1211007(a) A protest challenging the size of a concern which does not pertain to a particular procurement or sale will not be acted on by SBA While it is true that a concern can be small andor large depending on the procurements NAICS code and corresponding size standard the size protest would be denied because it must be related to a particular procurement

Screen 37 Your office

Ruben Did you take a look at 13 CFR 1211007 What is required for a protest of size to be considered by SBA

Activity 24-3 Your office

Question Ruben In accordance with 13 CFR 1211007 what is required for a size protest to be

considered by SBA

Choice 1 A concern is considered a small and a large depending on the particular size standard

Proceed to screen 38

Choice 2 The size status protest must relate to a particular procurement and be specific to

provide reasonable notice as to the grounds upon which the protested concernrsquos size is

questioned Proceed to screen 41

Screen 38 Your office

Ruben You do realize that a concerns size can fluctuate between small and large depending on

the particular procurement assigned NAICS size standards If you counsel industry you need to

realize this

Screen 39 Your office CONSEQUENCE OF YOUR ACTIONS 13 CFR 1211007(a) A protest

challenging the size of a concern which does not pertain to a particular procurement or sale will

not be acted on by SBA While it is true that a concern can be small andor large depending on

the procurements NAICS code and corresponding size standard the size protest would be

denied because it must be related to a particular procurement

Screen 40 Your office

Ruben You cannot keep informing industry and the agency in this way You need to refer to the

regulations before giving advice I will need to report this to the commander Do not give any

more advice without looking at the regulations I will see you next month Proceed to screen 43

Screen 41 Your office

Ruben That is correct In the future do not give any more advice without looking at the

regulations I will see you next month

Screen 42 Your office

Phil Thank you I will send out the protest today Goodbye

Screen 43 Your office FEEDBACK A protest challenging the size of a concern must pertain to a

particular procurement or sale Additionally a size protest must be sufficiently specific to

provide reasonable notice as to the grounds upon which the protested concerns size is

questioned No particular form is prescribed for a protest Where materials supporting the

protest are available they should be submitted with the protest Size protests which do not

meet 13 CFR 1211007 requirements will be dismissed by SBA

Screen 44 Your office TWO DAYS LATER

To You SBP Attachment Protest

From Connie Contracting Officer

Subject Size Protest

Hello

After lunch if you could please meet Jenny and I in the conference room I have received the

protest from ELMO and just want to make sure I handle my part The protest document is

attached to this message Please read it before going to see Jenny

Thanks

Connie

Contracting Officer

Screen 45 Conference room LATER THAT DAY

Connie Thanks for coming by ELMO has submitted their small business size representation protest Could you please tell me what needs to be included

Activity 45-1 Conference room

Question Connie What should a small business size representation protest contain

Choice 1 According to FAR 19302(c) a small business size representation protest shall include

the basis for the protest and a referral letter written by the Contracting Officer with

information pertaining to the solicitation - Proceed to screen 73

Choice 2 According to FAR 19302(c)(3) a small business size representation protest shall

include a referral letter written by the Program Manager with information addressing the

solicitation - Proceed to screen 46

Choice 3 According to FAR 19302(c)(3) a small business size representation protest shall

include a copy of the solicitation and all offerors bid - Proceed to screen 59

Screen 46 Conference room

Connie Oh ok Asha needs to fill out the referral letter Please give her a call

Screen 47 Conference room

Asha Hello Asha speaking How may I help you

Screen 48 Conference room

Connie Hey Asha Itrsquos me Connie I have Jenny and the SBP here with me The SBP has just informed me that the Program Manager needs to fill out the referral letter for the size protest

Screen 49 Conference room

Asha Are you sure I have never filled out a referral letter before What must a small business representation protest need to include

Activity 45-2 Conference room

Question Asha What should a small business size representation protest contain

Choice 1 According to FAR 19302(c)(3) a small business size representation protest shall include a copy of the solicitation and all offerorsrsquo bids - Proceed to screen 50

Choice 2 According to FAR 19302(c) a small business size representation protest shall include the basis for the protest and a referral letter written by the Contracting Officer with information pertaining to the solicitation - Proceed to screen 73

Screen 50 Conference room

Asha Ok if you want me to fill out the referral letter I can have it completed by tomorrow You will need to gather the solicitation and offerorsrsquo bids

Screen 51 conference room

Connie Thank you Asha

Screen 52 Your office TWO DAYS LATER - As you enter your office the phone rings

Asha Hello this is Asha I just wanted to let you know that the SBA has returned the protest They stated that the Contracting Officer needs to fill out the referral letter SBA also included a list of items that the protest package should contain I left the list in your inbox

Screen 53 Your office read the protest package that is in your inbox

Screen 54 Your office THREE DAYS LATER

Asha I will get with Connie to make sure what the correct information gets sent to the SBA Bye

Screen 55 Conference room Connie has called a meeting of the team to discuss the size protest from ELMO

Connie Thank you everyone for coming As you all know the protest has slowed down the process of awarding the contract This mishap about who should fill out the referral letter has caused us even more delay which potentially will impact the delivery schedule

Screen 56 Conference room

Connie The protest package has been completed and sent back to the SBA Everything should be in order and now we just wait to hear back from the SBA I brought in copies of the referral letter and the CDI representation letter for everyone to take a look at

Screen 57 Conference room Read the Size Determination document

Screen 58 Conference room CONSEQUENCE OF YOUR ACTIONS The SBA sent back the protest This resulted in a delay of SBAs protest decision As a result there may be potential

delays for contract award and impacts to the programs overall costperformanceschedule

baseline

Screen 59 Conference room

Jenny Oh ok we just need to include the solicitation and all of the offerors bids I can gather

that information up in no time

Screen 60 Conference room

Connie Are you sure that is correct I thought somewhere in the regulations I read that we

were supposed to supply a letter and that the protester was supposed to come up with all the

other information

Activity 45-3 Conference room

Question Connie What should a small business size representation protest contain

Choice 1 According to FAR 19302(c) a small business size representation protest shall include

the basis for the protest and a referral letter written by the Contracting Officer with

information pertaining to the solicitation - Proceed to screen 73

Choice 2 According to FAR 19302(c)(3) a small business size representation protest shall

include a referral letter written by the Program Manager with information addressing the

solicitation - Proceed to screen 61

Screen 61 Conference room

Connie Oh ok Asha needs to fill out the referral letter Letrsquos give her a call

Screen 62 Conference room

Asha Hello Asha speaking How may I help you

Screen 63 Conference room

Connie Hey Asha Itrsquos me Connie I have Jenny and the SBP here with me The SBP has just

informed me that the Program Manager needs to fill out the referral letter for the size protest

Screen 64 Conference room

Asha Sure I can fill out the referral letter Irsquoll have it completed by tomorrow Bye

Screen 65 Conference room

Connie Once I receive the letter from Asha I will send it off to SBA Thanks Have a great rest of your day

Screen 66 Hour office TWO DAYS LATER - As you enter your office the phone rings

Asha Hello this is Asha I just wanted to let you know that the SBA has returned the protest They stated that the Contracting Officer needs to fill out the referral letter SBA also included a list of items that the protest package should contain I left the list in your inbox

Screen 67 Your office

Asha I will get with Connie to make sure that the correct information gets sent to the SBA Bye

Screen 68 Your office Read the Protest Package letter

Screen 69 Conference room THREE DAYS LATER - Connie has called a meeting of the team to discuss the size protest from ELMO

Connie Thank you everyone for coming As you all know the protest has slowed down the

process of awarding the contract This mishap about who should fill out the referral letter has

cause us even more delay which potentially will impact the delivery schedule

Screen 70 conference room

Connie The protest package has been completed and sent back to the SBA Everything should be in order and now we just wait to hear back from the SBA I brought in copies of the referral letter and the CDI representation letter for everyone to take a look at

Screen 71 Conference room Read the Referral Letter CDI Representation and Size Determination documents

Screen 72 Conference room CONSEQUENCE OF YOUR ACTIONS The SBA sent the protest back This has resulted in a delay in the SBA deciding the protest and potential delay of award of the contract which could result in a delay in performance of delivery or service resulting in additional costs to the Government

Screen 73 Conference room

Connie Thatrsquos it Ok I can definitely take care of that today Thank you

Screen 74 Your office It has been several days since you spoke to Connie about the small

business representation protest requirements As you sit down to start your day you notice you

have a voicemail

Jenny Hello Can you stop by the conference room when you get this message Thanks

Screen 75 Conference room

Connie Hello Thanks for coming I just wanted to inform you that the protest package has

been completed and sent back to the SBA Everything should be in order and now we just wait

to hear back from the SBA I brought in copies of the referral letter and the CDI representation

letter for everyone to take a look at

Screen 76 Conference room Read the Referral Letter CDI Representation and Size

Determination documents

Screen 77 Conference room

FEEDBACK According to FAR 19302(c)(3) a small business representation protest shall include

the basis of the protest and include a referral letter signed by the Contracting Officer with

information pertaining to the solicitation and include (i) the protest and any accompanying

materials (ii) a copy of the size self-certification (iii) Identification of applicable size standard

(iv) a copy of the electronic link to the solicitation and any amendments (v) the name address

telephone number email address and number of the Contracting Officer (vi) identification of

the bid opening date or date of notification provided to unsuccessful offerors (vii) the date the

Contracting Officer received the protest (viii) a complete address and point of contact for the

protested concern An offeror the SBA or another interested party may protest the small

business representation of an offeror in a specific offer (FAR 19302(a)(2)) For competitive 8(a)

contracts the filing of a protest is limited to the Contracting Officer an offeror or the SBA The

Contracting Officer may also submit a small business representation protest at any time before

or after award (FAR 19302(a) and (b))

Screen 78 Your office A WEEK LATER - As you come back from lunch with Janet you get a visit

from Jenny She has not heard anything about the protest for several days and would like

clarification on the protest process with the SBA

Jenny Hi I just wanted to clarify the notification process of the protest It has been five days

since the documents were submitted to the SBA and we have not heard anything as of yet

Connie also gave me this form that I am unfamiliar with I put it in your inbox

Screen 79 Your office Read the SBA Form 355

Screen 80 Your office

Jenny Hey Janet what is the SBA Government Contracting Area Directors process after

receiving a size determination protest

Screen 81 Your office

Janet When SBA receives a size protest the SBA Area Director for Government Contracting or

designee will notify the contracting officer the protested concern and the protestor that the

protest has been received SBA will provide a blank copy of SBA Form 355 Application for Small

Business Determination to the concern whose size is at issue The protested concern or

concern whose size is at issue must return the completed SBA Form 355 and all other requested

information to SBA within 3 working days from the date of receipt of the blank form from SBA

SBA has discretion to grant an extension of time to file the form After receipt of a protest or a

request for a formal size determination the SBA Area Office will issue a formal size

determination within 15 business days if possible or within an extension granted by the

Contracting Officer in accordance with FAR 19302(e)

Screen 82 Your office

Jenny Thank you for clarifying the process Irsquoll see you both later

Screen 83 Your office

Janet Yes I have to get back to the office too Irsquoll see you later

Screen 84 Your office THE NEXT DAY - You re-enter your office from a break and receive a

phone call

Jenny Hello I forgot to ask when the Contracting Officer may award a contract that has a small

business size protest

Activity 84-1 Your office

Question Jenny When may the Contracting Officer award a contract that has been protested

Choice 1 Only after the SBA makes a determination of the small business representation

protest - Proceed to screen 85

Choice 2 When the SBA makes a decision or 15 business days have expired whichever comes

first however the CO may award a contract before an SBA determination is made when he

makes a written determination that award must be made to protect public interest - Proceed

to screen 105

Choice 3 The Contracting Officer does not have to wait for SBA to make the determination -

Proceed to screen 95

Screen 85 Your office

Jenny Ok so I guess we just wait until the SBA makes a determination Thanks

Screen 86 Program Managerrsquos Office THE NEXT DAY - Asha has requested that you come by

her office As you walk into Asharsquos office Connie is already there

Asha Connie was just informing me that she has decided to wait on SBAs decision about the

protest before awarding the contract Just want to inform the both of you that the incumbent

contract expires 18 days after the submittal of the protest to the SBA

Screen 87 Program Managerrsquos Office

Connie That is a good point Asha The risk of me waiting too long will result in expiration of the

contract A lapse between contracts is unacceptable as that may adversely impact the

warfighter

Activity 84-2 Program Managerrsquos Office

Question Connie When may the Contracting Officer award a contract that has been

protested

Choice 1 When the SBA makes a decision or 15 business days have expired whichever comes

first however the CO may award a contract before an SBA determination is made when he

makes a written determination that award must be made to protect public interest - Proceed

to screen 103

Choice 2 The Contracting Officer does not have to wait for SBA to make the determination -

Proceed to screen 88

Screen 88 Program Managerrsquos Office

Connie If that is the case letrsquos wait about a week and then award the contract Thanks

everyone

Screen 90 Your office FIVE DAYS LATER - SBA renders its decision on the required 15th

business day finding that the apparent successful offeror was not eligible for the award

Connie Meeting today at 2 PM

Screen 91 Conference room 2 PM - Connie has called in Asha Jenny and Ian to the

conference room

Connie As you are aware SBA came back with the decision that ELMO was not eligible for the

award Because it is so close to the completion of the source selection we may be able to go

back and award to the offeror that was second in line based on evaluation results

Screen 92 Conference room

Ian We would have to get the acquisition team together with legal SBA and leadership but

we might be able to accomplish that without having to start the procurement over again

Screen 93 Conference room

Connie Thanks everyone I will keep you posted

Screen 94 Conference room CONSEQUENCE OF YOUR ACTIONS Awarding the contract

without waiting for SBA to make a decision on the appeal is a violation of FAR policy (FAR

19302(g)(2) this type of violation could result in significant impacts inclusive of the

Contracting Officer having to terminate the unauthorized contract Additional fallout may occur

by having to re-accomplish the procurement entirely since the source selection was effectively

completed upon award of the unauthorized contract to the ineligible company Reprocurement

risk would be dependent upon the acquisition circumstances timing and viewpoints of the key

stakeholders and decision-makers

FEEDBACK After receiving a size protest involving a new procurement the Contracting Officer

shall not award the contract until the SBA has made a size determination or after 15 business

days have expired whichever comes first However the Contracting Officer may award a

contract before an SBA determination is made when shehe makes a written determination

that award must be made to protect the public interest (FAR 19302(g)(1))

Screen 95 Your office

Jenny Ok I will inform Connie Thanks

Screen 96 COrsquos office LATER THAT DAY - Connie has asked you to come by her office

Connie Hello Thanks for coming by Jenny tells me that you said that we do not need to wait

for SBA to make the determination about the size protest What happens if we award the

contract and then SBA finds the apparent successful offeror was not eligible for the award

Maybe you should double check the regulation

Activity 84-3 COrsquos office

Question Connie When may the Contracting Officer award a contract that has been

protested

Choice 1 Only after the SBA makes a determination of the small business representation

protest - Proceed to screen 97

Choice 2 When the SBA makes a decision or 15 business days have expired whichever comes

first however the CO may award a contract before an SBA determination is made when he

makes a written determination that award must be made to protect public interest - Proceed

to screen 104

Screen 97 COrsquos office

Connie Ok so I guess we just wait until the SBA makes a determination

Screen 98 Program Managerrsquos Office LATER THAT DAY - Asha has requested that you come by

her office As you walk into Asharsquos office Connie is already there

Asha Connie was just informing me that she has decided to wait on SBAs decision about the

protest before awarding the contract Just want to inform the both of you that the current

contract expires 18 days after the submittal of the protest to the SBA

Screen 99 Program Managerrsquos Office

Connie That is a good point Asha The risk of me waiting too long will result in expiration of the

incumbents contract and work stoppage for security guard services

Screen 100 Program Managerrsquos Office

Asha I looked up the regulation and it states that we should wait up to 15 business days and

then we may award the contract

Screen 101 Program Managerrsquos Office

Connie Thanks That is what we will do and hopefully SBA will respond before the 15 days

Screen 102 Program Managerrsquos Office CONSEQUENCE OF YOUR ACTIONS Not thoroughly

understanding the protest procedures and being uninformed of program needs and imp acts

could result in adverse impacts to the warfighter

FEEDBACK After receiving a size protest involving a new procurement the Contracting Officer

shall not award the contract until the SBA has made a size determination or after 15 business

days have expired whichever comes first However the Contracting Officer may award a

contract before an SBA determination is made when shehe makes a written determination

that award must be made to protect the public interest (FAR 19302(g)(1))

Screen 103 Program Managerrsquos Office

Connie Ok we wait for 15 business days That sounds much better Thanks - Proceed to

screen 106

Screen 104 COrsquos office

FEEDBACK After receiving a size protest involving a new procurement the Contracting Officer

shall not award the contract until the SBA has made a size determination or after 15 business

days have expired whichever comes first However the Contracting Officer may award a

contract before an SBA determination is made when shehe makes a written determination

that award must be made to protect the public interest (FAR 19302(g)(1))

Connie Ok we wait for 15 business days That sounds much better Thanks - Proceed to

screen 107

Screen 105 Your office

FEEDBACK After receiving a size protest involving a new procurement the Contracting Officer shall not award the contract until the SBA has made a size determination or after 15 business days have expired whichever comes first However the Contracting Officer may award a contract before an SBA determination is made when shehe makes a written determination that award must be made to protect the public interest (FAR 19302(g)(1))

Jenny Ok we wait for 15 business days Thanks - Proceed to screen 107

Screen 106 Program Managerrsquos office FEEDBACK After receiving a size protest involving a new procurement the Contracting Officer shall not award the contract until the SBA has made a size determination or after 15 business days have expired whichever comes first However the Contracting Officer may award a contract before an SBA determination is made when shehe makes a written determination that award must be made to protect the public interest (FAR 19302(g)(1))

Screen 107 Your office TWO DAYS LATER - Itrsquos been two days since your conversation with Jenny You notice that you have a new e-mail

To Acquisition Team Attachment Appeal Letter

From Grace CDI Contractor

Subject ELMO protest upheld

Hello

I just heard that ELMOs protest was upheld We believe the decision was based on erroneous information so we want to appeal Can you give me some guidance in the process for submitting an appeal

I have attached the appeal and size determination letters

Sincerely

Grace CDI Contractor

Activity 107-1 Your office

Question Grace What is the process for submitting an appeal for a size protest determination

Choice 1 IAW FAR 19302(h) an appeal may be filed with the SBA Office of Hearings and Appeals by any concern or interested party whose protest of the small business representation of another concern has been denied - Proceed to screen 111

Choice 2 An appeal may be filed by any concern or interested party to protest the small business representation of another concern to the Contracting Officer - Proceed to screen 108

Screen 108 Your office THREE DAYS LATER Connie comes by your office

Connie Hello there I just received the appeal from CDI through the mail channels and realized

that the protestor sent it to me in error I am having Jenny mail the appeal package back to CDI

Screen 109 Your office As you get back to your desk you notice that you have a voicemail

Grace Hello this is Grace from CDI Looks like I sent my appeal to the wrong location I was not

supposed to send it to the Contracting Officer I have re-sent the appeal to SBA OHA I hope

that its not too late because they will deny my appeal if untimely

Screen 110 Your office CONSEQUENCES OF YOUR ACTIONS Filing the appeal with the

Contracting Officer would result in lost time for the protestor because the appeal must be filed

with SBA OHA The concern encounters a greater risk of denial by SBA OHA if the appeal is not

filed within the time frame listed in Subpart C of 13 CFR 134

Screen 111 Your office The agency awaits confirmation from SBA OHA as to the standing of

the appeal and related impacts to the ongoing procurement You leave for the weekend

Screen 112 Your office FEEDBACK An appeal may be filed only when the small business

representation protest has been denied by the SBA Government Contracting Area Director and

within the time frames and in accordance with the procedures outlined in Subpart C of 13 CFR

Part 134 (IAW FAR 19302(h)) While a Contracting officer may file an appeal of their own the

concern or interested party must file the appeal to the SBA Office of Hearings and Appeals

(OHA) within the time frame and in accordance with the procedures listed in Subpart C of 13

CFR 134

Screen 113 Your office You return to the office on Monday morning You have a new e-mail

E-mail CDI appeal

To You SBP

From Connie Contracting Officer

Subject CDI Appeal

Hello

I would like to have a meeting with you and our lawyer Ian and Jenny to review the CDI size

appeal to the SBA Office of Hearings and Appeals Please check your calendar to see if you are

free tomorrow afternoon Let me know if you can make it

Sincerely

Connie

Contracting Officer

Screen 114 Conference room THE NEXT DAY - You Connie Jenny and the departmentrsquos

lawyer Ian are in a conference room

Ian Glad you could make the meeting We have been informed that Corporate Defenders is

appealing the SBAs decision Because of the potential impact the appeals process may have on

our current security guard services and before we make a decision on what we should do

about continuation of those services I would like to discuss the basis of the original size protest

by ELMO in the Corporate Defenders appeal to determine whether we think it will be denied

What was the basis of the original size protest by ELMO in the Corporate Defenders appeal

Screen 115 Conference room

Jenny The basis of the original protest is that Corporate Defenders Inc is affiliated with Rivers

under the ostensible subcontracting rule

Screen 116 Conference room

Connie Now that we have determined it is a size representation issue does this fall within the

affiliation under the ostensible subcontracting rule

Screen 117 Conference room

Ian The regulation defines an ostensible subcontractor as a subcontractor that performs

primary and vital requirements or when the prime contractor is unusually reliant upon the

subcontractor In this case CDI would be relying on the workforce and management of Rivers

to fulfill the requirements of the contract Therefore the combined size standards of CDI and

Rivers exceeds the size standard for this procurement according to 13 CFR 121103(h)(4)

Screen 118 Conference room

Connie The SBA Area Office found that under the ostensible subcontracting rule CDI was

considered a large business because of its affiliation with Rivers CDI appealed the ruling to the

SBA Office of Hearings and Appeals stating that CDI was not overly reliant on Rivers for

performing the contract and that CDI will serve as the prime contractor ELMO argued that

there is an ostensible subcontracting affiliation with CDI and Rivers and that Rivers is a large

business and thus CDI is ineligible for award What factors could lead to the appeal being

denied

Activity 118-1 Conference room

Question Connie What factors led to the appeal being denied

Choice 1 Rivers was a large business and thus ineligible for the award - Proceed to screen 119

Choice 2 CFR 121103(h)(4) states only the terms of the proposal are applicable to determining

the teaming agreement between the prime and subcontractor - Proceed to screen 123

Choice 3 There is ostensible subcontracting based on the fact that the proposed subcontractor

is the incumbent contractor and thus ineligible for award the prime contractor proposed to

hire the majority of the workforce from the subcontractor the prime contractors proposed

program manager previously served as program manager for the subcontractor on incumbent

contract and the prime contractor lacked experience with projects of the magnitude required

of this procurement This makes the offeror ineligible for award - Proceed to screen 127

Screen 119 Conference room

Ian I believe that is an incorrect assumption since Rivers was only going to perform 43 percent

of the work for a small business This alone would not make Rivers an ostensible subcontractor

Activity 118-2 Conference room

Question Connie What factors led to the appeal being denied

Choice 1 There is ostensible subcontracting based on the fact that the proposed subcontractor

was the incumbent contractor and thus ineligible for award - Proceed to screen 127

Choice 2 CFR 121103(h)(4) states that only the terms of the proposal are applicable to

determining the teaming agreement between the prime and subcontractor - Proceed to screen

120

Screen 120 Conference room

Ian I believe this is an incorrect assumption All aspects of the relationship between CDI and

Rivers are to be considered

Screen 121 Conference room

Connie Letrsquos reference back to the ruling and the reason why there was an ostensible

subcontract

Screen 122 Conference room

Connie It appears that there was ostensible subcontracting based on the fact that the

proposed subcontractor was the incumbent contractor and thus ineligible for award the prime

contractor proposed to hire the majority of the workforce from the subcontractor the prime

contractors proposed program manager previously served as program manager for the

subcontractor on incumbent contract and the prime contractor lacked experience with

projects of the magnitude required of this procurement - Proceed to screen 127

Screen 123 Conference room

Ian I believe this is an incorrect assumption All aspects of the relationship between CDI and

Rivers are to be considered

Activity 118-3 conference room

Question Ian What factors led to the appeal being denied

Choice 1 Rivers was a large business and thus ineligible for the award - Proceed to screen 124

Choice 2 There is ostensible subcontracting based on the fact that the proposed subcontractor

was the incumbent contractor and thus ineligible for award - Proceed to screen 127

Screen 124 Conference room

Ian I believe that is an incorrect assumption since Rivers was only going to perform 43 percent

of the work for a small business This alone would not make Rivers an ostensible subcontractor

Screen 125 Conference room

Connie Letrsquos reference back to the ruling and the reason why there was an ostensible

subcontract

Screen 126 Conference room

Connie It appears that there was ostensible subcontracting based on the fact that the

proposed subcontractor was the incumbent contractor and thus ineligible for award the prime

contractor proposed to hire the majority of the workforce from the subcontractor the p rime

contractors proposed program manager previously served as program manager for the

subcontractor on incumbent contract and the prime contractor lacked experience with

projects of the magnitude required of this procurement

Screen 127 Conference room

FEEDBACK CFR 121103(h)(4) states all aspects of the relationship between the prime and the

subcontractor are to be considered including but not limited to the terms of the proposal such

as contract management and the percentage of subcontract work agreement between the

prime and subcontractor and whether the subcontractor is the incumbent contractor and is

ineligible to submit a proposal because it exceeds the applicable size standard

Screen 128 Conference room

Connie I think we are good here Thank you for meeting Talk to you later

Screen 129 Conference room

SUMMARY Small Businesses are subject to a size protest on a small business set-aside before

award of a contract The SBA will normally make a determination of size status within 15 days

of receipt of protest To be considered by the SBA it is necessary that the protest be specific

and timely

FAR 19302 and 13 CFR Part 121 provide the specific rules for submitting a size representation

An appeal can be made to the SBA Office of Hearing and Appeals for re-consideration of an SBA

Area Office size protest decision In determining size protests the SBA will consider receipts

number of employees and affiliations of the protested concerns In examining affiliations the

SBA will look for an ostensible subcontracting relationship in which the subcontractor that

performs primary and vital requirements of a contract or a subcontractor upon which the prime

contractor is unusually reliant

If affiliation is found and the prime and the sub are considered large due then award cannot

be made If a size protest is not submitted timely or does not contain sufficient information to

make a size determination the protest will be dismissed The SBP role is to ensure that the

organization is aware of the regulations governing the SBA size protests

When a Small Business size representation protest andor an appeal to a size protest is

received the SBPs role is to advise and assist the acquisition team and Contracting Officer with

interpretation and application of corresponding FAR Part 19 and SBA 13 CFR requirements The

SBP may also advise the offeror or contractor on the procedures for submitting a protest prior

to issuing a solicitation After the solicitation has been issued all communication must be

through the Contracting Officer While this scenario discusses the procedures for a small

business representation protest the SBP needs to be aware that the socio-economic programs

ie HUBZones SDVOSB 8(a) and WOSB each have slightly different procedures which are set-

forth in FAR Part 19 Close attention must be made to both the applicable FAR Part 19 and SBA

13 CFR 121 requirements to provide proper advice and guidance on each type of protest and

appeal

Screen 130 Conference room This concludes the simulation The After Action Report (AAR) has

been created Download the AAR and review your performance in the simulation

After viewing the AAR use the browser close button to close this simulation and return to

screen 3 in the Size Protest lesson to complete this lesson

SBP220 Business Decisions for Small Business lesson 11 - Size Pr otest Simulation RESOURCES I PRINT I HELP

Summary

I Poge 5 of6 I Back Next

SBP220 Business Decisions for Small Business lesson 11 - Size Protest Simulation RESOURCES 1 PRINT 1 HELP

Summary

Closed Captioning Congratulations you have completed the Size Protest Simulation During this simulation you participated in activities common to interpreting data to verify the size of a small business Ensure that you review your After Action Report and if you did not respond correctly to all activities consider going through the simula tion again

I Pogo 5of6 I Back Next

SBP220 Business Decisions for Small Business lesson 11 - Size Protest Simulation RESOURCES I PRINT I HELP

Summary

Poge 5of6 I Back Next

SBP220 Business Decisions for Small Business Lesson 11 - Size Pr otest Simulation RESOURCES j PRINT j HElP

Lesson Completion

You have comple ted the con tent for this lesson

To continue select another lesson from the Table of Con tents on the le f t

If you have closed or hidden the Table of Contents select the Show T OC button at the t op in the Atlas navigation bar

~ I P o ge 6 of6 I Back Next

Screen 10 Your office CONSEQUENCE OF YOUR ACTIONS Advising a concern that they have 30

days to submit a protest would result in the SBA denying the protest as untimely While it is the

responsibility of the contractor to know what the FAR requires providing incorrect advice and

counsel too often will adversely impact your credibility and reputation as a SBP and expert in

your field

Screen 11 Your office

Ruben Please contact the offeror and Jenny to inform them of the correct regulation I have to

reiterate that even though industry is responsible for knowing the FAR rules we cannot provide

false advice Have a good day and let me know if you need anything Proceed to screen 22

Screen 12 Conference Room

Jenny Really I will inform the offeror that a protest may be made orally if it is confirmed in

writing and received by the Contracting Officer within the 30-day period Thank you for clearing

that up for me

Screen 13 Your office THE NEXT DAY - Coming back from lunch you notice that you have a

voicemail

Phil Hello My name is Phil I am from ELMO I am in the process of sending in a size protest

Jenny informed me that I had up to 30 days That sounded suspicious so I called SBA They

informed me a protest may be made orally within the 5-day period if it is confirmed in writing

and received by the Contracting Officer or by letter postmarked no later than one business day

after the oral protest I am not pleased I will be citing this in the written protest

Screen 14 Your office THE NEXT DAY - You have contacted Ruben the senior SBP to keep him

informed of the events

Ruben Hello this is Ruben Thanks for the back brief of events You need to ensure that you

learn the policies and provide accurate counselling If you are in doubt please review the

regulations It will be an embarrassment if this is written up in the protest

Screen 15 Your office CONSEQUENCE OF YOUR ACTIONS Advising a concern that they have 30

days to submit a protest would result in the SBA denying the protest as untimely While it is the

responsibility of the contractor to know what the FAR requires providing incorrect advice and

counsel too often will adversely impact your credibility and reputation as a SBP and expert in

your field

Screen 16 Your office

Ruben Do you now understand the regulation How can an offeror protest a small business

size representation

Activity 3-3 Your office

Question Ruben How can an offeror protest a small business size representation

Choice 1 As stated in FAR 19302(c)(2) an offeror can only protest orally and then must

follow-up with a written protest Proceed to screen 17

Choice 2 As stated in FAR 19302(c)(2) The protest or confirmation of the protest if initiated

orally shall be in writing Proceed to screen 20

Screen 17 Your office

Ruben That is incorrect A protest may be made orally within the 5-day period if it is confirmed

in writing and received by the Contracting Officer or by letter postmarked no later than 1

business day after the oral protest

Screen 18 Your Office CONSEQUENCE OF YOUR ACTIONS Advising a concern that they have 30

days to submit a protest would result in the SBA denying the protest as untimely While it is the

responsibility of the contractor to know what the FAR requires providing incorrect advice and

counsel too often will adversely impact your credibility and reputation as a SBP and expert in

your field

Screen 19 Your office

Ruben Please contact the offeror and Jenny to inform them of the correct regulation I have to

reiterate that even though industry is responsible for knowing the FAR rules we cannot provide

false advice Have a good day and let me know if you need anything Proceed to screen 22

Screen 20 Your office

Ruben That is correct Please contact the offeror and Jenny to inform them of the correct

regulation Have a good day and let me know if you need anything

Screen 21 Conference room

Jenny Thank you for clearing that up for me If I need further assistance Ill give you a call

Screen 22 Your office FEEDBACK A protest may be made orally within the 5-day period if it is

confirmed in writing and received by the Contracting Officer or by letter postmarked no later

than 1 business day after the oral protest (FAR 19302(d)(1)(i)) A Contracting Officer may

submit a size protest at any time before or after award and it is considered timely (FAR

19302(d)(2))

You have completed the tasks Ruben asked you to perform It is the end of the week You have

closed your computer and stored your documents away You head for the lobby

Screen 23 Lobby TWO DAYS LATER - As you return to work on Monday morning you run into

Asha in the lobby

Asha Good morning Just wanted to inform you that ELMO wants to send a protest stating that

they had evidence that CDI was large and therefore should not be considered for the award of

any small business set-aside contract for our Army base Have a great day

Screen 24 Your office Entering your office you get a phone call

Phil Hello this is Phil from ELMO I am assuming you heard about the protest Before we send

in the protest letter could you please tell me what is required for a size protest to be

considered by SBA

Activity 24-1 Your office

Question Phil In accordance with 13 CFR 1211007 what is required for a protest of size

status to be considered by SBA

Choice 1 A concern is considered a small and a large depending on the particular size standard

Proceed to screen 25

Choice 2 The size protest must demonstrate that the offeror being protested is considered

large based on presumed affiliation with a large business Proceed to screen 33

Choice 3 The size status protest must relate to a particular procurement and be specific to

provide reasonable notice as to the grounds upon which the protested concerns size is

questioned Proceed to screen 42

Screen 25 Your office

Phil Thank you I will send out the protest later today

Screen 26 Your office Entering your office you notice you have an e-mail

To Acquisition Team

From Connie Contracting Officer

Subject Size Protest E-mail Attachment Protest Letter

Hello

Just wanted to inform the SBA would not act on ELMOs protest I have received notice that the size protest is not being considered

I have also attached a copy of the protest

VR

Connie Contracting Officer

Screen 27 Your office Ruben meets with you weekly to review the status of acquisitions and

discuss any lessons learned During this weekly meeting you inform Ruben about the mistake

you made in informing the protestor that a concern is considered a small and a large depending

on the particular size standard

Ruben You do realize that a concerns size can fluctuate between small and large depending on

the particular procurement assigned NAICS size standards If you counsel industry you need to

realize this

Screen 28 Your office CONSEQUENCE OF YOUR ACTIONS 13 CFR 1211007(a) A protest

challenging the size of a concern which does not pertain to a particular procurement or sale will

not be acted on by SBA While it is true that a concern can be small andor large depending on

the procurements NAICS code and corresponding size standard the size protest would be

denied because it must be related to a particular procurement

Screen 29 Your office

Ruben Did you take a look at 13 CFR 1211007 What is required for a size protest to be

considered by SBA

Activity 24-2 Your office

Question Ruben In accordance with 13 CFR 1211007 what is required for a size protest to be

considered by SBA

Choice 1 The size status protest must relate to a particular procurement and be specific to

provide reasonable notice as to the grounds upon which the protested concerns size is

questioned Proceed to screen 41

Choice 2 The size protest must demonstrate that the offeror being protested is considered

large based on presumed affiliation with a large business Proceed to screen 30

Screen 30 Your office

Ruben Thatrsquos not quite right The protest must be sufficiently specific to prove affiliation Some

basis for the belief must be stated The SBA would not act on the protest IAW CFR 1211007(c)

the SBA protest regulations

Screen 31 Your office CONSEQUENCE OF YOUR ACTIONS 13 CFR 1211007(c) Non-specific

protests will be dismissed The protestor must present proof of affiliation and also relate it to a

specific procurement The protest would be denied because it is not specific The protestor sent

a copy of the protest stating there was presumed affiliation with a large business and therefore

should not be considered for the award of any small business set-aside contract

Screen 32 Your office

Ruben You cannot keep informing industry and the agency in this way You need to refer to the regulations before giving advice I will need to report this to the commander Do not give any more advice without looking at the regulations I will see you next month Proceed to screen 43

Screen 33 Your office

Phil Thank you I will send out the protest later today

Screen 34 Your office

To Acquisition Team

From Connie Contracting Officer

Subject Size Protest Attachment Protest Letter

Hello

Just wanted to inform the SBA would not act on ELMOs protest I have received notice that the size protest is not being considered

I have also attached a copy of the protest

VR

Connie

Contracting officer

Screen 35 Your office Ruben and yourself have monthly general follow-on discussions to discuss the progress of the acquisition and discuss any lessons learned You inform Ruben about the mistake you made

Ruben The protest must be sufficiently specific to prove affiliation Some basis for the belief must be stated The SBA would not act on the protest IAW CFR 1211007(c) the SBA protest regulations

Screen 36 Your office CONSEQUENCE OF YOUR ACTIONS 13 CFR 1211007(a) A protest challenging the size of a concern which does not pertain to a particular procurement or sale will not be acted on by SBA While it is true that a concern can be small andor large depending on the procurements NAICS code and corresponding size standard the size protest would be denied because it must be related to a particular procurement

Screen 37 Your office

Ruben Did you take a look at 13 CFR 1211007 What is required for a protest of size to be considered by SBA

Activity 24-3 Your office

Question Ruben In accordance with 13 CFR 1211007 what is required for a size protest to be

considered by SBA

Choice 1 A concern is considered a small and a large depending on the particular size standard

Proceed to screen 38

Choice 2 The size status protest must relate to a particular procurement and be specific to

provide reasonable notice as to the grounds upon which the protested concernrsquos size is

questioned Proceed to screen 41

Screen 38 Your office

Ruben You do realize that a concerns size can fluctuate between small and large depending on

the particular procurement assigned NAICS size standards If you counsel industry you need to

realize this

Screen 39 Your office CONSEQUENCE OF YOUR ACTIONS 13 CFR 1211007(a) A protest

challenging the size of a concern which does not pertain to a particular procurement or sale will

not be acted on by SBA While it is true that a concern can be small andor large depending on

the procurements NAICS code and corresponding size standard the size protest would be

denied because it must be related to a particular procurement

Screen 40 Your office

Ruben You cannot keep informing industry and the agency in this way You need to refer to the

regulations before giving advice I will need to report this to the commander Do not give any

more advice without looking at the regulations I will see you next month Proceed to screen 43

Screen 41 Your office

Ruben That is correct In the future do not give any more advice without looking at the

regulations I will see you next month

Screen 42 Your office

Phil Thank you I will send out the protest today Goodbye

Screen 43 Your office FEEDBACK A protest challenging the size of a concern must pertain to a

particular procurement or sale Additionally a size protest must be sufficiently specific to

provide reasonable notice as to the grounds upon which the protested concerns size is

questioned No particular form is prescribed for a protest Where materials supporting the

protest are available they should be submitted with the protest Size protests which do not

meet 13 CFR 1211007 requirements will be dismissed by SBA

Screen 44 Your office TWO DAYS LATER

To You SBP Attachment Protest

From Connie Contracting Officer

Subject Size Protest

Hello

After lunch if you could please meet Jenny and I in the conference room I have received the

protest from ELMO and just want to make sure I handle my part The protest document is

attached to this message Please read it before going to see Jenny

Thanks

Connie

Contracting Officer

Screen 45 Conference room LATER THAT DAY

Connie Thanks for coming by ELMO has submitted their small business size representation protest Could you please tell me what needs to be included

Activity 45-1 Conference room

Question Connie What should a small business size representation protest contain

Choice 1 According to FAR 19302(c) a small business size representation protest shall include

the basis for the protest and a referral letter written by the Contracting Officer with

information pertaining to the solicitation - Proceed to screen 73

Choice 2 According to FAR 19302(c)(3) a small business size representation protest shall

include a referral letter written by the Program Manager with information addressing the

solicitation - Proceed to screen 46

Choice 3 According to FAR 19302(c)(3) a small business size representation protest shall

include a copy of the solicitation and all offerors bid - Proceed to screen 59

Screen 46 Conference room

Connie Oh ok Asha needs to fill out the referral letter Please give her a call

Screen 47 Conference room

Asha Hello Asha speaking How may I help you

Screen 48 Conference room

Connie Hey Asha Itrsquos me Connie I have Jenny and the SBP here with me The SBP has just informed me that the Program Manager needs to fill out the referral letter for the size protest

Screen 49 Conference room

Asha Are you sure I have never filled out a referral letter before What must a small business representation protest need to include

Activity 45-2 Conference room

Question Asha What should a small business size representation protest contain

Choice 1 According to FAR 19302(c)(3) a small business size representation protest shall include a copy of the solicitation and all offerorsrsquo bids - Proceed to screen 50

Choice 2 According to FAR 19302(c) a small business size representation protest shall include the basis for the protest and a referral letter written by the Contracting Officer with information pertaining to the solicitation - Proceed to screen 73

Screen 50 Conference room

Asha Ok if you want me to fill out the referral letter I can have it completed by tomorrow You will need to gather the solicitation and offerorsrsquo bids

Screen 51 conference room

Connie Thank you Asha

Screen 52 Your office TWO DAYS LATER - As you enter your office the phone rings

Asha Hello this is Asha I just wanted to let you know that the SBA has returned the protest They stated that the Contracting Officer needs to fill out the referral letter SBA also included a list of items that the protest package should contain I left the list in your inbox

Screen 53 Your office read the protest package that is in your inbox

Screen 54 Your office THREE DAYS LATER

Asha I will get with Connie to make sure what the correct information gets sent to the SBA Bye

Screen 55 Conference room Connie has called a meeting of the team to discuss the size protest from ELMO

Connie Thank you everyone for coming As you all know the protest has slowed down the process of awarding the contract This mishap about who should fill out the referral letter has caused us even more delay which potentially will impact the delivery schedule

Screen 56 Conference room

Connie The protest package has been completed and sent back to the SBA Everything should be in order and now we just wait to hear back from the SBA I brought in copies of the referral letter and the CDI representation letter for everyone to take a look at

Screen 57 Conference room Read the Size Determination document

Screen 58 Conference room CONSEQUENCE OF YOUR ACTIONS The SBA sent back the protest This resulted in a delay of SBAs protest decision As a result there may be potential

delays for contract award and impacts to the programs overall costperformanceschedule

baseline

Screen 59 Conference room

Jenny Oh ok we just need to include the solicitation and all of the offerors bids I can gather

that information up in no time

Screen 60 Conference room

Connie Are you sure that is correct I thought somewhere in the regulations I read that we

were supposed to supply a letter and that the protester was supposed to come up with all the

other information

Activity 45-3 Conference room

Question Connie What should a small business size representation protest contain

Choice 1 According to FAR 19302(c) a small business size representation protest shall include

the basis for the protest and a referral letter written by the Contracting Officer with

information pertaining to the solicitation - Proceed to screen 73

Choice 2 According to FAR 19302(c)(3) a small business size representation protest shall

include a referral letter written by the Program Manager with information addressing the

solicitation - Proceed to screen 61

Screen 61 Conference room

Connie Oh ok Asha needs to fill out the referral letter Letrsquos give her a call

Screen 62 Conference room

Asha Hello Asha speaking How may I help you

Screen 63 Conference room

Connie Hey Asha Itrsquos me Connie I have Jenny and the SBP here with me The SBP has just

informed me that the Program Manager needs to fill out the referral letter for the size protest

Screen 64 Conference room

Asha Sure I can fill out the referral letter Irsquoll have it completed by tomorrow Bye

Screen 65 Conference room

Connie Once I receive the letter from Asha I will send it off to SBA Thanks Have a great rest of your day

Screen 66 Hour office TWO DAYS LATER - As you enter your office the phone rings

Asha Hello this is Asha I just wanted to let you know that the SBA has returned the protest They stated that the Contracting Officer needs to fill out the referral letter SBA also included a list of items that the protest package should contain I left the list in your inbox

Screen 67 Your office

Asha I will get with Connie to make sure that the correct information gets sent to the SBA Bye

Screen 68 Your office Read the Protest Package letter

Screen 69 Conference room THREE DAYS LATER - Connie has called a meeting of the team to discuss the size protest from ELMO

Connie Thank you everyone for coming As you all know the protest has slowed down the

process of awarding the contract This mishap about who should fill out the referral letter has

cause us even more delay which potentially will impact the delivery schedule

Screen 70 conference room

Connie The protest package has been completed and sent back to the SBA Everything should be in order and now we just wait to hear back from the SBA I brought in copies of the referral letter and the CDI representation letter for everyone to take a look at

Screen 71 Conference room Read the Referral Letter CDI Representation and Size Determination documents

Screen 72 Conference room CONSEQUENCE OF YOUR ACTIONS The SBA sent the protest back This has resulted in a delay in the SBA deciding the protest and potential delay of award of the contract which could result in a delay in performance of delivery or service resulting in additional costs to the Government

Screen 73 Conference room

Connie Thatrsquos it Ok I can definitely take care of that today Thank you

Screen 74 Your office It has been several days since you spoke to Connie about the small

business representation protest requirements As you sit down to start your day you notice you

have a voicemail

Jenny Hello Can you stop by the conference room when you get this message Thanks

Screen 75 Conference room

Connie Hello Thanks for coming I just wanted to inform you that the protest package has

been completed and sent back to the SBA Everything should be in order and now we just wait

to hear back from the SBA I brought in copies of the referral letter and the CDI representation

letter for everyone to take a look at

Screen 76 Conference room Read the Referral Letter CDI Representation and Size

Determination documents

Screen 77 Conference room

FEEDBACK According to FAR 19302(c)(3) a small business representation protest shall include

the basis of the protest and include a referral letter signed by the Contracting Officer with

information pertaining to the solicitation and include (i) the protest and any accompanying

materials (ii) a copy of the size self-certification (iii) Identification of applicable size standard

(iv) a copy of the electronic link to the solicitation and any amendments (v) the name address

telephone number email address and number of the Contracting Officer (vi) identification of

the bid opening date or date of notification provided to unsuccessful offerors (vii) the date the

Contracting Officer received the protest (viii) a complete address and point of contact for the

protested concern An offeror the SBA or another interested party may protest the small

business representation of an offeror in a specific offer (FAR 19302(a)(2)) For competitive 8(a)

contracts the filing of a protest is limited to the Contracting Officer an offeror or the SBA The

Contracting Officer may also submit a small business representation protest at any time before

or after award (FAR 19302(a) and (b))

Screen 78 Your office A WEEK LATER - As you come back from lunch with Janet you get a visit

from Jenny She has not heard anything about the protest for several days and would like

clarification on the protest process with the SBA

Jenny Hi I just wanted to clarify the notification process of the protest It has been five days

since the documents were submitted to the SBA and we have not heard anything as of yet

Connie also gave me this form that I am unfamiliar with I put it in your inbox

Screen 79 Your office Read the SBA Form 355

Screen 80 Your office

Jenny Hey Janet what is the SBA Government Contracting Area Directors process after

receiving a size determination protest

Screen 81 Your office

Janet When SBA receives a size protest the SBA Area Director for Government Contracting or

designee will notify the contracting officer the protested concern and the protestor that the

protest has been received SBA will provide a blank copy of SBA Form 355 Application for Small

Business Determination to the concern whose size is at issue The protested concern or

concern whose size is at issue must return the completed SBA Form 355 and all other requested

information to SBA within 3 working days from the date of receipt of the blank form from SBA

SBA has discretion to grant an extension of time to file the form After receipt of a protest or a

request for a formal size determination the SBA Area Office will issue a formal size

determination within 15 business days if possible or within an extension granted by the

Contracting Officer in accordance with FAR 19302(e)

Screen 82 Your office

Jenny Thank you for clarifying the process Irsquoll see you both later

Screen 83 Your office

Janet Yes I have to get back to the office too Irsquoll see you later

Screen 84 Your office THE NEXT DAY - You re-enter your office from a break and receive a

phone call

Jenny Hello I forgot to ask when the Contracting Officer may award a contract that has a small

business size protest

Activity 84-1 Your office

Question Jenny When may the Contracting Officer award a contract that has been protested

Choice 1 Only after the SBA makes a determination of the small business representation

protest - Proceed to screen 85

Choice 2 When the SBA makes a decision or 15 business days have expired whichever comes

first however the CO may award a contract before an SBA determination is made when he

makes a written determination that award must be made to protect public interest - Proceed

to screen 105

Choice 3 The Contracting Officer does not have to wait for SBA to make the determination -

Proceed to screen 95

Screen 85 Your office

Jenny Ok so I guess we just wait until the SBA makes a determination Thanks

Screen 86 Program Managerrsquos Office THE NEXT DAY - Asha has requested that you come by

her office As you walk into Asharsquos office Connie is already there

Asha Connie was just informing me that she has decided to wait on SBAs decision about the

protest before awarding the contract Just want to inform the both of you that the incumbent

contract expires 18 days after the submittal of the protest to the SBA

Screen 87 Program Managerrsquos Office

Connie That is a good point Asha The risk of me waiting too long will result in expiration of the

contract A lapse between contracts is unacceptable as that may adversely impact the

warfighter

Activity 84-2 Program Managerrsquos Office

Question Connie When may the Contracting Officer award a contract that has been

protested

Choice 1 When the SBA makes a decision or 15 business days have expired whichever comes

first however the CO may award a contract before an SBA determination is made when he

makes a written determination that award must be made to protect public interest - Proceed

to screen 103

Choice 2 The Contracting Officer does not have to wait for SBA to make the determination -

Proceed to screen 88

Screen 88 Program Managerrsquos Office

Connie If that is the case letrsquos wait about a week and then award the contract Thanks

everyone

Screen 90 Your office FIVE DAYS LATER - SBA renders its decision on the required 15th

business day finding that the apparent successful offeror was not eligible for the award

Connie Meeting today at 2 PM

Screen 91 Conference room 2 PM - Connie has called in Asha Jenny and Ian to the

conference room

Connie As you are aware SBA came back with the decision that ELMO was not eligible for the

award Because it is so close to the completion of the source selection we may be able to go

back and award to the offeror that was second in line based on evaluation results

Screen 92 Conference room

Ian We would have to get the acquisition team together with legal SBA and leadership but

we might be able to accomplish that without having to start the procurement over again

Screen 93 Conference room

Connie Thanks everyone I will keep you posted

Screen 94 Conference room CONSEQUENCE OF YOUR ACTIONS Awarding the contract

without waiting for SBA to make a decision on the appeal is a violation of FAR policy (FAR

19302(g)(2) this type of violation could result in significant impacts inclusive of the

Contracting Officer having to terminate the unauthorized contract Additional fallout may occur

by having to re-accomplish the procurement entirely since the source selection was effectively

completed upon award of the unauthorized contract to the ineligible company Reprocurement

risk would be dependent upon the acquisition circumstances timing and viewpoints of the key

stakeholders and decision-makers

FEEDBACK After receiving a size protest involving a new procurement the Contracting Officer

shall not award the contract until the SBA has made a size determination or after 15 business

days have expired whichever comes first However the Contracting Officer may award a

contract before an SBA determination is made when shehe makes a written determination

that award must be made to protect the public interest (FAR 19302(g)(1))

Screen 95 Your office

Jenny Ok I will inform Connie Thanks

Screen 96 COrsquos office LATER THAT DAY - Connie has asked you to come by her office

Connie Hello Thanks for coming by Jenny tells me that you said that we do not need to wait

for SBA to make the determination about the size protest What happens if we award the

contract and then SBA finds the apparent successful offeror was not eligible for the award

Maybe you should double check the regulation

Activity 84-3 COrsquos office

Question Connie When may the Contracting Officer award a contract that has been

protested

Choice 1 Only after the SBA makes a determination of the small business representation

protest - Proceed to screen 97

Choice 2 When the SBA makes a decision or 15 business days have expired whichever comes

first however the CO may award a contract before an SBA determination is made when he

makes a written determination that award must be made to protect public interest - Proceed

to screen 104

Screen 97 COrsquos office

Connie Ok so I guess we just wait until the SBA makes a determination

Screen 98 Program Managerrsquos Office LATER THAT DAY - Asha has requested that you come by

her office As you walk into Asharsquos office Connie is already there

Asha Connie was just informing me that she has decided to wait on SBAs decision about the

protest before awarding the contract Just want to inform the both of you that the current

contract expires 18 days after the submittal of the protest to the SBA

Screen 99 Program Managerrsquos Office

Connie That is a good point Asha The risk of me waiting too long will result in expiration of the

incumbents contract and work stoppage for security guard services

Screen 100 Program Managerrsquos Office

Asha I looked up the regulation and it states that we should wait up to 15 business days and

then we may award the contract

Screen 101 Program Managerrsquos Office

Connie Thanks That is what we will do and hopefully SBA will respond before the 15 days

Screen 102 Program Managerrsquos Office CONSEQUENCE OF YOUR ACTIONS Not thoroughly

understanding the protest procedures and being uninformed of program needs and imp acts

could result in adverse impacts to the warfighter

FEEDBACK After receiving a size protest involving a new procurement the Contracting Officer

shall not award the contract until the SBA has made a size determination or after 15 business

days have expired whichever comes first However the Contracting Officer may award a

contract before an SBA determination is made when shehe makes a written determination

that award must be made to protect the public interest (FAR 19302(g)(1))

Screen 103 Program Managerrsquos Office

Connie Ok we wait for 15 business days That sounds much better Thanks - Proceed to

screen 106

Screen 104 COrsquos office

FEEDBACK After receiving a size protest involving a new procurement the Contracting Officer

shall not award the contract until the SBA has made a size determination or after 15 business

days have expired whichever comes first However the Contracting Officer may award a

contract before an SBA determination is made when shehe makes a written determination

that award must be made to protect the public interest (FAR 19302(g)(1))

Connie Ok we wait for 15 business days That sounds much better Thanks - Proceed to

screen 107

Screen 105 Your office

FEEDBACK After receiving a size protest involving a new procurement the Contracting Officer shall not award the contract until the SBA has made a size determination or after 15 business days have expired whichever comes first However the Contracting Officer may award a contract before an SBA determination is made when shehe makes a written determination that award must be made to protect the public interest (FAR 19302(g)(1))

Jenny Ok we wait for 15 business days Thanks - Proceed to screen 107

Screen 106 Program Managerrsquos office FEEDBACK After receiving a size protest involving a new procurement the Contracting Officer shall not award the contract until the SBA has made a size determination or after 15 business days have expired whichever comes first However the Contracting Officer may award a contract before an SBA determination is made when shehe makes a written determination that award must be made to protect the public interest (FAR 19302(g)(1))

Screen 107 Your office TWO DAYS LATER - Itrsquos been two days since your conversation with Jenny You notice that you have a new e-mail

To Acquisition Team Attachment Appeal Letter

From Grace CDI Contractor

Subject ELMO protest upheld

Hello

I just heard that ELMOs protest was upheld We believe the decision was based on erroneous information so we want to appeal Can you give me some guidance in the process for submitting an appeal

I have attached the appeal and size determination letters

Sincerely

Grace CDI Contractor

Activity 107-1 Your office

Question Grace What is the process for submitting an appeal for a size protest determination

Choice 1 IAW FAR 19302(h) an appeal may be filed with the SBA Office of Hearings and Appeals by any concern or interested party whose protest of the small business representation of another concern has been denied - Proceed to screen 111

Choice 2 An appeal may be filed by any concern or interested party to protest the small business representation of another concern to the Contracting Officer - Proceed to screen 108

Screen 108 Your office THREE DAYS LATER Connie comes by your office

Connie Hello there I just received the appeal from CDI through the mail channels and realized

that the protestor sent it to me in error I am having Jenny mail the appeal package back to CDI

Screen 109 Your office As you get back to your desk you notice that you have a voicemail

Grace Hello this is Grace from CDI Looks like I sent my appeal to the wrong location I was not

supposed to send it to the Contracting Officer I have re-sent the appeal to SBA OHA I hope

that its not too late because they will deny my appeal if untimely

Screen 110 Your office CONSEQUENCES OF YOUR ACTIONS Filing the appeal with the

Contracting Officer would result in lost time for the protestor because the appeal must be filed

with SBA OHA The concern encounters a greater risk of denial by SBA OHA if the appeal is not

filed within the time frame listed in Subpart C of 13 CFR 134

Screen 111 Your office The agency awaits confirmation from SBA OHA as to the standing of

the appeal and related impacts to the ongoing procurement You leave for the weekend

Screen 112 Your office FEEDBACK An appeal may be filed only when the small business

representation protest has been denied by the SBA Government Contracting Area Director and

within the time frames and in accordance with the procedures outlined in Subpart C of 13 CFR

Part 134 (IAW FAR 19302(h)) While a Contracting officer may file an appeal of their own the

concern or interested party must file the appeal to the SBA Office of Hearings and Appeals

(OHA) within the time frame and in accordance with the procedures listed in Subpart C of 13

CFR 134

Screen 113 Your office You return to the office on Monday morning You have a new e-mail

E-mail CDI appeal

To You SBP

From Connie Contracting Officer

Subject CDI Appeal

Hello

I would like to have a meeting with you and our lawyer Ian and Jenny to review the CDI size

appeal to the SBA Office of Hearings and Appeals Please check your calendar to see if you are

free tomorrow afternoon Let me know if you can make it

Sincerely

Connie

Contracting Officer

Screen 114 Conference room THE NEXT DAY - You Connie Jenny and the departmentrsquos

lawyer Ian are in a conference room

Ian Glad you could make the meeting We have been informed that Corporate Defenders is

appealing the SBAs decision Because of the potential impact the appeals process may have on

our current security guard services and before we make a decision on what we should do

about continuation of those services I would like to discuss the basis of the original size protest

by ELMO in the Corporate Defenders appeal to determine whether we think it will be denied

What was the basis of the original size protest by ELMO in the Corporate Defenders appeal

Screen 115 Conference room

Jenny The basis of the original protest is that Corporate Defenders Inc is affiliated with Rivers

under the ostensible subcontracting rule

Screen 116 Conference room

Connie Now that we have determined it is a size representation issue does this fall within the

affiliation under the ostensible subcontracting rule

Screen 117 Conference room

Ian The regulation defines an ostensible subcontractor as a subcontractor that performs

primary and vital requirements or when the prime contractor is unusually reliant upon the

subcontractor In this case CDI would be relying on the workforce and management of Rivers

to fulfill the requirements of the contract Therefore the combined size standards of CDI and

Rivers exceeds the size standard for this procurement according to 13 CFR 121103(h)(4)

Screen 118 Conference room

Connie The SBA Area Office found that under the ostensible subcontracting rule CDI was

considered a large business because of its affiliation with Rivers CDI appealed the ruling to the

SBA Office of Hearings and Appeals stating that CDI was not overly reliant on Rivers for

performing the contract and that CDI will serve as the prime contractor ELMO argued that

there is an ostensible subcontracting affiliation with CDI and Rivers and that Rivers is a large

business and thus CDI is ineligible for award What factors could lead to the appeal being

denied

Activity 118-1 Conference room

Question Connie What factors led to the appeal being denied

Choice 1 Rivers was a large business and thus ineligible for the award - Proceed to screen 119

Choice 2 CFR 121103(h)(4) states only the terms of the proposal are applicable to determining

the teaming agreement between the prime and subcontractor - Proceed to screen 123

Choice 3 There is ostensible subcontracting based on the fact that the proposed subcontractor

is the incumbent contractor and thus ineligible for award the prime contractor proposed to

hire the majority of the workforce from the subcontractor the prime contractors proposed

program manager previously served as program manager for the subcontractor on incumbent

contract and the prime contractor lacked experience with projects of the magnitude required

of this procurement This makes the offeror ineligible for award - Proceed to screen 127

Screen 119 Conference room

Ian I believe that is an incorrect assumption since Rivers was only going to perform 43 percent

of the work for a small business This alone would not make Rivers an ostensible subcontractor

Activity 118-2 Conference room

Question Connie What factors led to the appeal being denied

Choice 1 There is ostensible subcontracting based on the fact that the proposed subcontractor

was the incumbent contractor and thus ineligible for award - Proceed to screen 127

Choice 2 CFR 121103(h)(4) states that only the terms of the proposal are applicable to

determining the teaming agreement between the prime and subcontractor - Proceed to screen

120

Screen 120 Conference room

Ian I believe this is an incorrect assumption All aspects of the relationship between CDI and

Rivers are to be considered

Screen 121 Conference room

Connie Letrsquos reference back to the ruling and the reason why there was an ostensible

subcontract

Screen 122 Conference room

Connie It appears that there was ostensible subcontracting based on the fact that the

proposed subcontractor was the incumbent contractor and thus ineligible for award the prime

contractor proposed to hire the majority of the workforce from the subcontractor the prime

contractors proposed program manager previously served as program manager for the

subcontractor on incumbent contract and the prime contractor lacked experience with

projects of the magnitude required of this procurement - Proceed to screen 127

Screen 123 Conference room

Ian I believe this is an incorrect assumption All aspects of the relationship between CDI and

Rivers are to be considered

Activity 118-3 conference room

Question Ian What factors led to the appeal being denied

Choice 1 Rivers was a large business and thus ineligible for the award - Proceed to screen 124

Choice 2 There is ostensible subcontracting based on the fact that the proposed subcontractor

was the incumbent contractor and thus ineligible for award - Proceed to screen 127

Screen 124 Conference room

Ian I believe that is an incorrect assumption since Rivers was only going to perform 43 percent

of the work for a small business This alone would not make Rivers an ostensible subcontractor

Screen 125 Conference room

Connie Letrsquos reference back to the ruling and the reason why there was an ostensible

subcontract

Screen 126 Conference room

Connie It appears that there was ostensible subcontracting based on the fact that the

proposed subcontractor was the incumbent contractor and thus ineligible for award the prime

contractor proposed to hire the majority of the workforce from the subcontractor the p rime

contractors proposed program manager previously served as program manager for the

subcontractor on incumbent contract and the prime contractor lacked experience with

projects of the magnitude required of this procurement

Screen 127 Conference room

FEEDBACK CFR 121103(h)(4) states all aspects of the relationship between the prime and the

subcontractor are to be considered including but not limited to the terms of the proposal such

as contract management and the percentage of subcontract work agreement between the

prime and subcontractor and whether the subcontractor is the incumbent contractor and is

ineligible to submit a proposal because it exceeds the applicable size standard

Screen 128 Conference room

Connie I think we are good here Thank you for meeting Talk to you later

Screen 129 Conference room

SUMMARY Small Businesses are subject to a size protest on a small business set-aside before

award of a contract The SBA will normally make a determination of size status within 15 days

of receipt of protest To be considered by the SBA it is necessary that the protest be specific

and timely

FAR 19302 and 13 CFR Part 121 provide the specific rules for submitting a size representation

An appeal can be made to the SBA Office of Hearing and Appeals for re-consideration of an SBA

Area Office size protest decision In determining size protests the SBA will consider receipts

number of employees and affiliations of the protested concerns In examining affiliations the

SBA will look for an ostensible subcontracting relationship in which the subcontractor that

performs primary and vital requirements of a contract or a subcontractor upon which the prime

contractor is unusually reliant

If affiliation is found and the prime and the sub are considered large due then award cannot

be made If a size protest is not submitted timely or does not contain sufficient information to

make a size determination the protest will be dismissed The SBP role is to ensure that the

organization is aware of the regulations governing the SBA size protests

When a Small Business size representation protest andor an appeal to a size protest is

received the SBPs role is to advise and assist the acquisition team and Contracting Officer with

interpretation and application of corresponding FAR Part 19 and SBA 13 CFR requirements The

SBP may also advise the offeror or contractor on the procedures for submitting a protest prior

to issuing a solicitation After the solicitation has been issued all communication must be

through the Contracting Officer While this scenario discusses the procedures for a small

business representation protest the SBP needs to be aware that the socio-economic programs

ie HUBZones SDVOSB 8(a) and WOSB each have slightly different procedures which are set-

forth in FAR Part 19 Close attention must be made to both the applicable FAR Part 19 and SBA

13 CFR 121 requirements to provide proper advice and guidance on each type of protest and

appeal

Screen 130 Conference room This concludes the simulation The After Action Report (AAR) has

been created Download the AAR and review your performance in the simulation

After viewing the AAR use the browser close button to close this simulation and return to

screen 3 in the Size Protest lesson to complete this lesson

SBP220 Business Decisions for Small Business lesson 11 - Size Pr otest Simulation RESOURCES I PRINT I HELP

Summary

I Poge 5 of6 I Back Next

SBP220 Business Decisions for Small Business lesson 11 - Size Protest Simulation RESOURCES 1 PRINT 1 HELP

Summary

Closed Captioning Congratulations you have completed the Size Protest Simulation During this simulation you participated in activities common to interpreting data to verify the size of a small business Ensure that you review your After Action Report and if you did not respond correctly to all activities consider going through the simula tion again

I Pogo 5of6 I Back Next

SBP220 Business Decisions for Small Business lesson 11 - Size Protest Simulation RESOURCES I PRINT I HELP

Summary

Poge 5of6 I Back Next

SBP220 Business Decisions for Small Business Lesson 11 - Size Pr otest Simulation RESOURCES j PRINT j HElP

Lesson Completion

You have comple ted the con tent for this lesson

To continue select another lesson from the Table of Con tents on the le f t

If you have closed or hidden the Table of Contents select the Show T OC button at the t op in the Atlas navigation bar

~ I P o ge 6 of6 I Back Next

Activity 3-3 Your office

Question Ruben How can an offeror protest a small business size representation

Choice 1 As stated in FAR 19302(c)(2) an offeror can only protest orally and then must

follow-up with a written protest Proceed to screen 17

Choice 2 As stated in FAR 19302(c)(2) The protest or confirmation of the protest if initiated

orally shall be in writing Proceed to screen 20

Screen 17 Your office

Ruben That is incorrect A protest may be made orally within the 5-day period if it is confirmed

in writing and received by the Contracting Officer or by letter postmarked no later than 1

business day after the oral protest

Screen 18 Your Office CONSEQUENCE OF YOUR ACTIONS Advising a concern that they have 30

days to submit a protest would result in the SBA denying the protest as untimely While it is the

responsibility of the contractor to know what the FAR requires providing incorrect advice and

counsel too often will adversely impact your credibility and reputation as a SBP and expert in

your field

Screen 19 Your office

Ruben Please contact the offeror and Jenny to inform them of the correct regulation I have to

reiterate that even though industry is responsible for knowing the FAR rules we cannot provide

false advice Have a good day and let me know if you need anything Proceed to screen 22

Screen 20 Your office

Ruben That is correct Please contact the offeror and Jenny to inform them of the correct

regulation Have a good day and let me know if you need anything

Screen 21 Conference room

Jenny Thank you for clearing that up for me If I need further assistance Ill give you a call

Screen 22 Your office FEEDBACK A protest may be made orally within the 5-day period if it is

confirmed in writing and received by the Contracting Officer or by letter postmarked no later

than 1 business day after the oral protest (FAR 19302(d)(1)(i)) A Contracting Officer may

submit a size protest at any time before or after award and it is considered timely (FAR

19302(d)(2))

You have completed the tasks Ruben asked you to perform It is the end of the week You have

closed your computer and stored your documents away You head for the lobby

Screen 23 Lobby TWO DAYS LATER - As you return to work on Monday morning you run into

Asha in the lobby

Asha Good morning Just wanted to inform you that ELMO wants to send a protest stating that

they had evidence that CDI was large and therefore should not be considered for the award of

any small business set-aside contract for our Army base Have a great day

Screen 24 Your office Entering your office you get a phone call

Phil Hello this is Phil from ELMO I am assuming you heard about the protest Before we send

in the protest letter could you please tell me what is required for a size protest to be

considered by SBA

Activity 24-1 Your office

Question Phil In accordance with 13 CFR 1211007 what is required for a protest of size

status to be considered by SBA

Choice 1 A concern is considered a small and a large depending on the particular size standard

Proceed to screen 25

Choice 2 The size protest must demonstrate that the offeror being protested is considered

large based on presumed affiliation with a large business Proceed to screen 33

Choice 3 The size status protest must relate to a particular procurement and be specific to

provide reasonable notice as to the grounds upon which the protested concerns size is

questioned Proceed to screen 42

Screen 25 Your office

Phil Thank you I will send out the protest later today

Screen 26 Your office Entering your office you notice you have an e-mail

To Acquisition Team

From Connie Contracting Officer

Subject Size Protest E-mail Attachment Protest Letter

Hello

Just wanted to inform the SBA would not act on ELMOs protest I have received notice that the size protest is not being considered

I have also attached a copy of the protest

VR

Connie Contracting Officer

Screen 27 Your office Ruben meets with you weekly to review the status of acquisitions and

discuss any lessons learned During this weekly meeting you inform Ruben about the mistake

you made in informing the protestor that a concern is considered a small and a large depending

on the particular size standard

Ruben You do realize that a concerns size can fluctuate between small and large depending on

the particular procurement assigned NAICS size standards If you counsel industry you need to

realize this

Screen 28 Your office CONSEQUENCE OF YOUR ACTIONS 13 CFR 1211007(a) A protest

challenging the size of a concern which does not pertain to a particular procurement or sale will

not be acted on by SBA While it is true that a concern can be small andor large depending on

the procurements NAICS code and corresponding size standard the size protest would be

denied because it must be related to a particular procurement

Screen 29 Your office

Ruben Did you take a look at 13 CFR 1211007 What is required for a size protest to be

considered by SBA

Activity 24-2 Your office

Question Ruben In accordance with 13 CFR 1211007 what is required for a size protest to be

considered by SBA

Choice 1 The size status protest must relate to a particular procurement and be specific to

provide reasonable notice as to the grounds upon which the protested concerns size is

questioned Proceed to screen 41

Choice 2 The size protest must demonstrate that the offeror being protested is considered

large based on presumed affiliation with a large business Proceed to screen 30

Screen 30 Your office

Ruben Thatrsquos not quite right The protest must be sufficiently specific to prove affiliation Some

basis for the belief must be stated The SBA would not act on the protest IAW CFR 1211007(c)

the SBA protest regulations

Screen 31 Your office CONSEQUENCE OF YOUR ACTIONS 13 CFR 1211007(c) Non-specific

protests will be dismissed The protestor must present proof of affiliation and also relate it to a

specific procurement The protest would be denied because it is not specific The protestor sent

a copy of the protest stating there was presumed affiliation with a large business and therefore

should not be considered for the award of any small business set-aside contract

Screen 32 Your office

Ruben You cannot keep informing industry and the agency in this way You need to refer to the regulations before giving advice I will need to report this to the commander Do not give any more advice without looking at the regulations I will see you next month Proceed to screen 43

Screen 33 Your office

Phil Thank you I will send out the protest later today

Screen 34 Your office

To Acquisition Team

From Connie Contracting Officer

Subject Size Protest Attachment Protest Letter

Hello

Just wanted to inform the SBA would not act on ELMOs protest I have received notice that the size protest is not being considered

I have also attached a copy of the protest

VR

Connie

Contracting officer

Screen 35 Your office Ruben and yourself have monthly general follow-on discussions to discuss the progress of the acquisition and discuss any lessons learned You inform Ruben about the mistake you made

Ruben The protest must be sufficiently specific to prove affiliation Some basis for the belief must be stated The SBA would not act on the protest IAW CFR 1211007(c) the SBA protest regulations

Screen 36 Your office CONSEQUENCE OF YOUR ACTIONS 13 CFR 1211007(a) A protest challenging the size of a concern which does not pertain to a particular procurement or sale will not be acted on by SBA While it is true that a concern can be small andor large depending on the procurements NAICS code and corresponding size standard the size protest would be denied because it must be related to a particular procurement

Screen 37 Your office

Ruben Did you take a look at 13 CFR 1211007 What is required for a protest of size to be considered by SBA

Activity 24-3 Your office

Question Ruben In accordance with 13 CFR 1211007 what is required for a size protest to be

considered by SBA

Choice 1 A concern is considered a small and a large depending on the particular size standard

Proceed to screen 38

Choice 2 The size status protest must relate to a particular procurement and be specific to

provide reasonable notice as to the grounds upon which the protested concernrsquos size is

questioned Proceed to screen 41

Screen 38 Your office

Ruben You do realize that a concerns size can fluctuate between small and large depending on

the particular procurement assigned NAICS size standards If you counsel industry you need to

realize this

Screen 39 Your office CONSEQUENCE OF YOUR ACTIONS 13 CFR 1211007(a) A protest

challenging the size of a concern which does not pertain to a particular procurement or sale will

not be acted on by SBA While it is true that a concern can be small andor large depending on

the procurements NAICS code and corresponding size standard the size protest would be

denied because it must be related to a particular procurement

Screen 40 Your office

Ruben You cannot keep informing industry and the agency in this way You need to refer to the

regulations before giving advice I will need to report this to the commander Do not give any

more advice without looking at the regulations I will see you next month Proceed to screen 43

Screen 41 Your office

Ruben That is correct In the future do not give any more advice without looking at the

regulations I will see you next month

Screen 42 Your office

Phil Thank you I will send out the protest today Goodbye

Screen 43 Your office FEEDBACK A protest challenging the size of a concern must pertain to a

particular procurement or sale Additionally a size protest must be sufficiently specific to

provide reasonable notice as to the grounds upon which the protested concerns size is

questioned No particular form is prescribed for a protest Where materials supporting the

protest are available they should be submitted with the protest Size protests which do not

meet 13 CFR 1211007 requirements will be dismissed by SBA

Screen 44 Your office TWO DAYS LATER

To You SBP Attachment Protest

From Connie Contracting Officer

Subject Size Protest

Hello

After lunch if you could please meet Jenny and I in the conference room I have received the

protest from ELMO and just want to make sure I handle my part The protest document is

attached to this message Please read it before going to see Jenny

Thanks

Connie

Contracting Officer

Screen 45 Conference room LATER THAT DAY

Connie Thanks for coming by ELMO has submitted their small business size representation protest Could you please tell me what needs to be included

Activity 45-1 Conference room

Question Connie What should a small business size representation protest contain

Choice 1 According to FAR 19302(c) a small business size representation protest shall include

the basis for the protest and a referral letter written by the Contracting Officer with

information pertaining to the solicitation - Proceed to screen 73

Choice 2 According to FAR 19302(c)(3) a small business size representation protest shall

include a referral letter written by the Program Manager with information addressing the

solicitation - Proceed to screen 46

Choice 3 According to FAR 19302(c)(3) a small business size representation protest shall

include a copy of the solicitation and all offerors bid - Proceed to screen 59

Screen 46 Conference room

Connie Oh ok Asha needs to fill out the referral letter Please give her a call

Screen 47 Conference room

Asha Hello Asha speaking How may I help you

Screen 48 Conference room

Connie Hey Asha Itrsquos me Connie I have Jenny and the SBP here with me The SBP has just informed me that the Program Manager needs to fill out the referral letter for the size protest

Screen 49 Conference room

Asha Are you sure I have never filled out a referral letter before What must a small business representation protest need to include

Activity 45-2 Conference room

Question Asha What should a small business size representation protest contain

Choice 1 According to FAR 19302(c)(3) a small business size representation protest shall include a copy of the solicitation and all offerorsrsquo bids - Proceed to screen 50

Choice 2 According to FAR 19302(c) a small business size representation protest shall include the basis for the protest and a referral letter written by the Contracting Officer with information pertaining to the solicitation - Proceed to screen 73

Screen 50 Conference room

Asha Ok if you want me to fill out the referral letter I can have it completed by tomorrow You will need to gather the solicitation and offerorsrsquo bids

Screen 51 conference room

Connie Thank you Asha

Screen 52 Your office TWO DAYS LATER - As you enter your office the phone rings

Asha Hello this is Asha I just wanted to let you know that the SBA has returned the protest They stated that the Contracting Officer needs to fill out the referral letter SBA also included a list of items that the protest package should contain I left the list in your inbox

Screen 53 Your office read the protest package that is in your inbox

Screen 54 Your office THREE DAYS LATER

Asha I will get with Connie to make sure what the correct information gets sent to the SBA Bye

Screen 55 Conference room Connie has called a meeting of the team to discuss the size protest from ELMO

Connie Thank you everyone for coming As you all know the protest has slowed down the process of awarding the contract This mishap about who should fill out the referral letter has caused us even more delay which potentially will impact the delivery schedule

Screen 56 Conference room

Connie The protest package has been completed and sent back to the SBA Everything should be in order and now we just wait to hear back from the SBA I brought in copies of the referral letter and the CDI representation letter for everyone to take a look at

Screen 57 Conference room Read the Size Determination document

Screen 58 Conference room CONSEQUENCE OF YOUR ACTIONS The SBA sent back the protest This resulted in a delay of SBAs protest decision As a result there may be potential

delays for contract award and impacts to the programs overall costperformanceschedule

baseline

Screen 59 Conference room

Jenny Oh ok we just need to include the solicitation and all of the offerors bids I can gather

that information up in no time

Screen 60 Conference room

Connie Are you sure that is correct I thought somewhere in the regulations I read that we

were supposed to supply a letter and that the protester was supposed to come up with all the

other information

Activity 45-3 Conference room

Question Connie What should a small business size representation protest contain

Choice 1 According to FAR 19302(c) a small business size representation protest shall include

the basis for the protest and a referral letter written by the Contracting Officer with

information pertaining to the solicitation - Proceed to screen 73

Choice 2 According to FAR 19302(c)(3) a small business size representation protest shall

include a referral letter written by the Program Manager with information addressing the

solicitation - Proceed to screen 61

Screen 61 Conference room

Connie Oh ok Asha needs to fill out the referral letter Letrsquos give her a call

Screen 62 Conference room

Asha Hello Asha speaking How may I help you

Screen 63 Conference room

Connie Hey Asha Itrsquos me Connie I have Jenny and the SBP here with me The SBP has just

informed me that the Program Manager needs to fill out the referral letter for the size protest

Screen 64 Conference room

Asha Sure I can fill out the referral letter Irsquoll have it completed by tomorrow Bye

Screen 65 Conference room

Connie Once I receive the letter from Asha I will send it off to SBA Thanks Have a great rest of your day

Screen 66 Hour office TWO DAYS LATER - As you enter your office the phone rings

Asha Hello this is Asha I just wanted to let you know that the SBA has returned the protest They stated that the Contracting Officer needs to fill out the referral letter SBA also included a list of items that the protest package should contain I left the list in your inbox

Screen 67 Your office

Asha I will get with Connie to make sure that the correct information gets sent to the SBA Bye

Screen 68 Your office Read the Protest Package letter

Screen 69 Conference room THREE DAYS LATER - Connie has called a meeting of the team to discuss the size protest from ELMO

Connie Thank you everyone for coming As you all know the protest has slowed down the

process of awarding the contract This mishap about who should fill out the referral letter has

cause us even more delay which potentially will impact the delivery schedule

Screen 70 conference room

Connie The protest package has been completed and sent back to the SBA Everything should be in order and now we just wait to hear back from the SBA I brought in copies of the referral letter and the CDI representation letter for everyone to take a look at

Screen 71 Conference room Read the Referral Letter CDI Representation and Size Determination documents

Screen 72 Conference room CONSEQUENCE OF YOUR ACTIONS The SBA sent the protest back This has resulted in a delay in the SBA deciding the protest and potential delay of award of the contract which could result in a delay in performance of delivery or service resulting in additional costs to the Government

Screen 73 Conference room

Connie Thatrsquos it Ok I can definitely take care of that today Thank you

Screen 74 Your office It has been several days since you spoke to Connie about the small

business representation protest requirements As you sit down to start your day you notice you

have a voicemail

Jenny Hello Can you stop by the conference room when you get this message Thanks

Screen 75 Conference room

Connie Hello Thanks for coming I just wanted to inform you that the protest package has

been completed and sent back to the SBA Everything should be in order and now we just wait

to hear back from the SBA I brought in copies of the referral letter and the CDI representation

letter for everyone to take a look at

Screen 76 Conference room Read the Referral Letter CDI Representation and Size

Determination documents

Screen 77 Conference room

FEEDBACK According to FAR 19302(c)(3) a small business representation protest shall include

the basis of the protest and include a referral letter signed by the Contracting Officer with

information pertaining to the solicitation and include (i) the protest and any accompanying

materials (ii) a copy of the size self-certification (iii) Identification of applicable size standard

(iv) a copy of the electronic link to the solicitation and any amendments (v) the name address

telephone number email address and number of the Contracting Officer (vi) identification of

the bid opening date or date of notification provided to unsuccessful offerors (vii) the date the

Contracting Officer received the protest (viii) a complete address and point of contact for the

protested concern An offeror the SBA or another interested party may protest the small

business representation of an offeror in a specific offer (FAR 19302(a)(2)) For competitive 8(a)

contracts the filing of a protest is limited to the Contracting Officer an offeror or the SBA The

Contracting Officer may also submit a small business representation protest at any time before

or after award (FAR 19302(a) and (b))

Screen 78 Your office A WEEK LATER - As you come back from lunch with Janet you get a visit

from Jenny She has not heard anything about the protest for several days and would like

clarification on the protest process with the SBA

Jenny Hi I just wanted to clarify the notification process of the protest It has been five days

since the documents were submitted to the SBA and we have not heard anything as of yet

Connie also gave me this form that I am unfamiliar with I put it in your inbox

Screen 79 Your office Read the SBA Form 355

Screen 80 Your office

Jenny Hey Janet what is the SBA Government Contracting Area Directors process after

receiving a size determination protest

Screen 81 Your office

Janet When SBA receives a size protest the SBA Area Director for Government Contracting or

designee will notify the contracting officer the protested concern and the protestor that the

protest has been received SBA will provide a blank copy of SBA Form 355 Application for Small

Business Determination to the concern whose size is at issue The protested concern or

concern whose size is at issue must return the completed SBA Form 355 and all other requested

information to SBA within 3 working days from the date of receipt of the blank form from SBA

SBA has discretion to grant an extension of time to file the form After receipt of a protest or a

request for a formal size determination the SBA Area Office will issue a formal size

determination within 15 business days if possible or within an extension granted by the

Contracting Officer in accordance with FAR 19302(e)

Screen 82 Your office

Jenny Thank you for clarifying the process Irsquoll see you both later

Screen 83 Your office

Janet Yes I have to get back to the office too Irsquoll see you later

Screen 84 Your office THE NEXT DAY - You re-enter your office from a break and receive a

phone call

Jenny Hello I forgot to ask when the Contracting Officer may award a contract that has a small

business size protest

Activity 84-1 Your office

Question Jenny When may the Contracting Officer award a contract that has been protested

Choice 1 Only after the SBA makes a determination of the small business representation

protest - Proceed to screen 85

Choice 2 When the SBA makes a decision or 15 business days have expired whichever comes

first however the CO may award a contract before an SBA determination is made when he

makes a written determination that award must be made to protect public interest - Proceed

to screen 105

Choice 3 The Contracting Officer does not have to wait for SBA to make the determination -

Proceed to screen 95

Screen 85 Your office

Jenny Ok so I guess we just wait until the SBA makes a determination Thanks

Screen 86 Program Managerrsquos Office THE NEXT DAY - Asha has requested that you come by

her office As you walk into Asharsquos office Connie is already there

Asha Connie was just informing me that she has decided to wait on SBAs decision about the

protest before awarding the contract Just want to inform the both of you that the incumbent

contract expires 18 days after the submittal of the protest to the SBA

Screen 87 Program Managerrsquos Office

Connie That is a good point Asha The risk of me waiting too long will result in expiration of the

contract A lapse between contracts is unacceptable as that may adversely impact the

warfighter

Activity 84-2 Program Managerrsquos Office

Question Connie When may the Contracting Officer award a contract that has been

protested

Choice 1 When the SBA makes a decision or 15 business days have expired whichever comes

first however the CO may award a contract before an SBA determination is made when he

makes a written determination that award must be made to protect public interest - Proceed

to screen 103

Choice 2 The Contracting Officer does not have to wait for SBA to make the determination -

Proceed to screen 88

Screen 88 Program Managerrsquos Office

Connie If that is the case letrsquos wait about a week and then award the contract Thanks

everyone

Screen 90 Your office FIVE DAYS LATER - SBA renders its decision on the required 15th

business day finding that the apparent successful offeror was not eligible for the award

Connie Meeting today at 2 PM

Screen 91 Conference room 2 PM - Connie has called in Asha Jenny and Ian to the

conference room

Connie As you are aware SBA came back with the decision that ELMO was not eligible for the

award Because it is so close to the completion of the source selection we may be able to go

back and award to the offeror that was second in line based on evaluation results

Screen 92 Conference room

Ian We would have to get the acquisition team together with legal SBA and leadership but

we might be able to accomplish that without having to start the procurement over again

Screen 93 Conference room

Connie Thanks everyone I will keep you posted

Screen 94 Conference room CONSEQUENCE OF YOUR ACTIONS Awarding the contract

without waiting for SBA to make a decision on the appeal is a violation of FAR policy (FAR

19302(g)(2) this type of violation could result in significant impacts inclusive of the

Contracting Officer having to terminate the unauthorized contract Additional fallout may occur

by having to re-accomplish the procurement entirely since the source selection was effectively

completed upon award of the unauthorized contract to the ineligible company Reprocurement

risk would be dependent upon the acquisition circumstances timing and viewpoints of the key

stakeholders and decision-makers

FEEDBACK After receiving a size protest involving a new procurement the Contracting Officer

shall not award the contract until the SBA has made a size determination or after 15 business

days have expired whichever comes first However the Contracting Officer may award a

contract before an SBA determination is made when shehe makes a written determination

that award must be made to protect the public interest (FAR 19302(g)(1))

Screen 95 Your office

Jenny Ok I will inform Connie Thanks

Screen 96 COrsquos office LATER THAT DAY - Connie has asked you to come by her office

Connie Hello Thanks for coming by Jenny tells me that you said that we do not need to wait

for SBA to make the determination about the size protest What happens if we award the

contract and then SBA finds the apparent successful offeror was not eligible for the award

Maybe you should double check the regulation

Activity 84-3 COrsquos office

Question Connie When may the Contracting Officer award a contract that has been

protested

Choice 1 Only after the SBA makes a determination of the small business representation

protest - Proceed to screen 97

Choice 2 When the SBA makes a decision or 15 business days have expired whichever comes

first however the CO may award a contract before an SBA determination is made when he

makes a written determination that award must be made to protect public interest - Proceed

to screen 104

Screen 97 COrsquos office

Connie Ok so I guess we just wait until the SBA makes a determination

Screen 98 Program Managerrsquos Office LATER THAT DAY - Asha has requested that you come by

her office As you walk into Asharsquos office Connie is already there

Asha Connie was just informing me that she has decided to wait on SBAs decision about the

protest before awarding the contract Just want to inform the both of you that the current

contract expires 18 days after the submittal of the protest to the SBA

Screen 99 Program Managerrsquos Office

Connie That is a good point Asha The risk of me waiting too long will result in expiration of the

incumbents contract and work stoppage for security guard services

Screen 100 Program Managerrsquos Office

Asha I looked up the regulation and it states that we should wait up to 15 business days and

then we may award the contract

Screen 101 Program Managerrsquos Office

Connie Thanks That is what we will do and hopefully SBA will respond before the 15 days

Screen 102 Program Managerrsquos Office CONSEQUENCE OF YOUR ACTIONS Not thoroughly

understanding the protest procedures and being uninformed of program needs and imp acts

could result in adverse impacts to the warfighter

FEEDBACK After receiving a size protest involving a new procurement the Contracting Officer

shall not award the contract until the SBA has made a size determination or after 15 business

days have expired whichever comes first However the Contracting Officer may award a

contract before an SBA determination is made when shehe makes a written determination

that award must be made to protect the public interest (FAR 19302(g)(1))

Screen 103 Program Managerrsquos Office

Connie Ok we wait for 15 business days That sounds much better Thanks - Proceed to

screen 106

Screen 104 COrsquos office

FEEDBACK After receiving a size protest involving a new procurement the Contracting Officer

shall not award the contract until the SBA has made a size determination or after 15 business

days have expired whichever comes first However the Contracting Officer may award a

contract before an SBA determination is made when shehe makes a written determination

that award must be made to protect the public interest (FAR 19302(g)(1))

Connie Ok we wait for 15 business days That sounds much better Thanks - Proceed to

screen 107

Screen 105 Your office

FEEDBACK After receiving a size protest involving a new procurement the Contracting Officer shall not award the contract until the SBA has made a size determination or after 15 business days have expired whichever comes first However the Contracting Officer may award a contract before an SBA determination is made when shehe makes a written determination that award must be made to protect the public interest (FAR 19302(g)(1))

Jenny Ok we wait for 15 business days Thanks - Proceed to screen 107

Screen 106 Program Managerrsquos office FEEDBACK After receiving a size protest involving a new procurement the Contracting Officer shall not award the contract until the SBA has made a size determination or after 15 business days have expired whichever comes first However the Contracting Officer may award a contract before an SBA determination is made when shehe makes a written determination that award must be made to protect the public interest (FAR 19302(g)(1))

Screen 107 Your office TWO DAYS LATER - Itrsquos been two days since your conversation with Jenny You notice that you have a new e-mail

To Acquisition Team Attachment Appeal Letter

From Grace CDI Contractor

Subject ELMO protest upheld

Hello

I just heard that ELMOs protest was upheld We believe the decision was based on erroneous information so we want to appeal Can you give me some guidance in the process for submitting an appeal

I have attached the appeal and size determination letters

Sincerely

Grace CDI Contractor

Activity 107-1 Your office

Question Grace What is the process for submitting an appeal for a size protest determination

Choice 1 IAW FAR 19302(h) an appeal may be filed with the SBA Office of Hearings and Appeals by any concern or interested party whose protest of the small business representation of another concern has been denied - Proceed to screen 111

Choice 2 An appeal may be filed by any concern or interested party to protest the small business representation of another concern to the Contracting Officer - Proceed to screen 108

Screen 108 Your office THREE DAYS LATER Connie comes by your office

Connie Hello there I just received the appeal from CDI through the mail channels and realized

that the protestor sent it to me in error I am having Jenny mail the appeal package back to CDI

Screen 109 Your office As you get back to your desk you notice that you have a voicemail

Grace Hello this is Grace from CDI Looks like I sent my appeal to the wrong location I was not

supposed to send it to the Contracting Officer I have re-sent the appeal to SBA OHA I hope

that its not too late because they will deny my appeal if untimely

Screen 110 Your office CONSEQUENCES OF YOUR ACTIONS Filing the appeal with the

Contracting Officer would result in lost time for the protestor because the appeal must be filed

with SBA OHA The concern encounters a greater risk of denial by SBA OHA if the appeal is not

filed within the time frame listed in Subpart C of 13 CFR 134

Screen 111 Your office The agency awaits confirmation from SBA OHA as to the standing of

the appeal and related impacts to the ongoing procurement You leave for the weekend

Screen 112 Your office FEEDBACK An appeal may be filed only when the small business

representation protest has been denied by the SBA Government Contracting Area Director and

within the time frames and in accordance with the procedures outlined in Subpart C of 13 CFR

Part 134 (IAW FAR 19302(h)) While a Contracting officer may file an appeal of their own the

concern or interested party must file the appeal to the SBA Office of Hearings and Appeals

(OHA) within the time frame and in accordance with the procedures listed in Subpart C of 13

CFR 134

Screen 113 Your office You return to the office on Monday morning You have a new e-mail

E-mail CDI appeal

To You SBP

From Connie Contracting Officer

Subject CDI Appeal

Hello

I would like to have a meeting with you and our lawyer Ian and Jenny to review the CDI size

appeal to the SBA Office of Hearings and Appeals Please check your calendar to see if you are

free tomorrow afternoon Let me know if you can make it

Sincerely

Connie

Contracting Officer

Screen 114 Conference room THE NEXT DAY - You Connie Jenny and the departmentrsquos

lawyer Ian are in a conference room

Ian Glad you could make the meeting We have been informed that Corporate Defenders is

appealing the SBAs decision Because of the potential impact the appeals process may have on

our current security guard services and before we make a decision on what we should do

about continuation of those services I would like to discuss the basis of the original size protest

by ELMO in the Corporate Defenders appeal to determine whether we think it will be denied

What was the basis of the original size protest by ELMO in the Corporate Defenders appeal

Screen 115 Conference room

Jenny The basis of the original protest is that Corporate Defenders Inc is affiliated with Rivers

under the ostensible subcontracting rule

Screen 116 Conference room

Connie Now that we have determined it is a size representation issue does this fall within the

affiliation under the ostensible subcontracting rule

Screen 117 Conference room

Ian The regulation defines an ostensible subcontractor as a subcontractor that performs

primary and vital requirements or when the prime contractor is unusually reliant upon the

subcontractor In this case CDI would be relying on the workforce and management of Rivers

to fulfill the requirements of the contract Therefore the combined size standards of CDI and

Rivers exceeds the size standard for this procurement according to 13 CFR 121103(h)(4)

Screen 118 Conference room

Connie The SBA Area Office found that under the ostensible subcontracting rule CDI was

considered a large business because of its affiliation with Rivers CDI appealed the ruling to the

SBA Office of Hearings and Appeals stating that CDI was not overly reliant on Rivers for

performing the contract and that CDI will serve as the prime contractor ELMO argued that

there is an ostensible subcontracting affiliation with CDI and Rivers and that Rivers is a large

business and thus CDI is ineligible for award What factors could lead to the appeal being

denied

Activity 118-1 Conference room

Question Connie What factors led to the appeal being denied

Choice 1 Rivers was a large business and thus ineligible for the award - Proceed to screen 119

Choice 2 CFR 121103(h)(4) states only the terms of the proposal are applicable to determining

the teaming agreement between the prime and subcontractor - Proceed to screen 123

Choice 3 There is ostensible subcontracting based on the fact that the proposed subcontractor

is the incumbent contractor and thus ineligible for award the prime contractor proposed to

hire the majority of the workforce from the subcontractor the prime contractors proposed

program manager previously served as program manager for the subcontractor on incumbent

contract and the prime contractor lacked experience with projects of the magnitude required

of this procurement This makes the offeror ineligible for award - Proceed to screen 127

Screen 119 Conference room

Ian I believe that is an incorrect assumption since Rivers was only going to perform 43 percent

of the work for a small business This alone would not make Rivers an ostensible subcontractor

Activity 118-2 Conference room

Question Connie What factors led to the appeal being denied

Choice 1 There is ostensible subcontracting based on the fact that the proposed subcontractor

was the incumbent contractor and thus ineligible for award - Proceed to screen 127

Choice 2 CFR 121103(h)(4) states that only the terms of the proposal are applicable to

determining the teaming agreement between the prime and subcontractor - Proceed to screen

120

Screen 120 Conference room

Ian I believe this is an incorrect assumption All aspects of the relationship between CDI and

Rivers are to be considered

Screen 121 Conference room

Connie Letrsquos reference back to the ruling and the reason why there was an ostensible

subcontract

Screen 122 Conference room

Connie It appears that there was ostensible subcontracting based on the fact that the

proposed subcontractor was the incumbent contractor and thus ineligible for award the prime

contractor proposed to hire the majority of the workforce from the subcontractor the prime

contractors proposed program manager previously served as program manager for the

subcontractor on incumbent contract and the prime contractor lacked experience with

projects of the magnitude required of this procurement - Proceed to screen 127

Screen 123 Conference room

Ian I believe this is an incorrect assumption All aspects of the relationship between CDI and

Rivers are to be considered

Activity 118-3 conference room

Question Ian What factors led to the appeal being denied

Choice 1 Rivers was a large business and thus ineligible for the award - Proceed to screen 124

Choice 2 There is ostensible subcontracting based on the fact that the proposed subcontractor

was the incumbent contractor and thus ineligible for award - Proceed to screen 127

Screen 124 Conference room

Ian I believe that is an incorrect assumption since Rivers was only going to perform 43 percent

of the work for a small business This alone would not make Rivers an ostensible subcontractor

Screen 125 Conference room

Connie Letrsquos reference back to the ruling and the reason why there was an ostensible

subcontract

Screen 126 Conference room

Connie It appears that there was ostensible subcontracting based on the fact that the

proposed subcontractor was the incumbent contractor and thus ineligible for award the prime

contractor proposed to hire the majority of the workforce from the subcontractor the p rime

contractors proposed program manager previously served as program manager for the

subcontractor on incumbent contract and the prime contractor lacked experience with

projects of the magnitude required of this procurement

Screen 127 Conference room

FEEDBACK CFR 121103(h)(4) states all aspects of the relationship between the prime and the

subcontractor are to be considered including but not limited to the terms of the proposal such

as contract management and the percentage of subcontract work agreement between the

prime and subcontractor and whether the subcontractor is the incumbent contractor and is

ineligible to submit a proposal because it exceeds the applicable size standard

Screen 128 Conference room

Connie I think we are good here Thank you for meeting Talk to you later

Screen 129 Conference room

SUMMARY Small Businesses are subject to a size protest on a small business set-aside before

award of a contract The SBA will normally make a determination of size status within 15 days

of receipt of protest To be considered by the SBA it is necessary that the protest be specific

and timely

FAR 19302 and 13 CFR Part 121 provide the specific rules for submitting a size representation

An appeal can be made to the SBA Office of Hearing and Appeals for re-consideration of an SBA

Area Office size protest decision In determining size protests the SBA will consider receipts

number of employees and affiliations of the protested concerns In examining affiliations the

SBA will look for an ostensible subcontracting relationship in which the subcontractor that

performs primary and vital requirements of a contract or a subcontractor upon which the prime

contractor is unusually reliant

If affiliation is found and the prime and the sub are considered large due then award cannot

be made If a size protest is not submitted timely or does not contain sufficient information to

make a size determination the protest will be dismissed The SBP role is to ensure that the

organization is aware of the regulations governing the SBA size protests

When a Small Business size representation protest andor an appeal to a size protest is

received the SBPs role is to advise and assist the acquisition team and Contracting Officer with

interpretation and application of corresponding FAR Part 19 and SBA 13 CFR requirements The

SBP may also advise the offeror or contractor on the procedures for submitting a protest prior

to issuing a solicitation After the solicitation has been issued all communication must be

through the Contracting Officer While this scenario discusses the procedures for a small

business representation protest the SBP needs to be aware that the socio-economic programs

ie HUBZones SDVOSB 8(a) and WOSB each have slightly different procedures which are set-

forth in FAR Part 19 Close attention must be made to both the applicable FAR Part 19 and SBA

13 CFR 121 requirements to provide proper advice and guidance on each type of protest and

appeal

Screen 130 Conference room This concludes the simulation The After Action Report (AAR) has

been created Download the AAR and review your performance in the simulation

After viewing the AAR use the browser close button to close this simulation and return to

screen 3 in the Size Protest lesson to complete this lesson

SBP220 Business Decisions for Small Business lesson 11 - Size Pr otest Simulation RESOURCES I PRINT I HELP

Summary

I Poge 5 of6 I Back Next

SBP220 Business Decisions for Small Business lesson 11 - Size Protest Simulation RESOURCES 1 PRINT 1 HELP

Summary

Closed Captioning Congratulations you have completed the Size Protest Simulation During this simulation you participated in activities common to interpreting data to verify the size of a small business Ensure that you review your After Action Report and if you did not respond correctly to all activities consider going through the simula tion again

I Pogo 5of6 I Back Next

SBP220 Business Decisions for Small Business lesson 11 - Size Protest Simulation RESOURCES I PRINT I HELP

Summary

Poge 5of6 I Back Next

SBP220 Business Decisions for Small Business Lesson 11 - Size Pr otest Simulation RESOURCES j PRINT j HElP

Lesson Completion

You have comple ted the con tent for this lesson

To continue select another lesson from the Table of Con tents on the le f t

If you have closed or hidden the Table of Contents select the Show T OC button at the t op in the Atlas navigation bar

~ I P o ge 6 of6 I Back Next

Screen 23 Lobby TWO DAYS LATER - As you return to work on Monday morning you run into

Asha in the lobby

Asha Good morning Just wanted to inform you that ELMO wants to send a protest stating that

they had evidence that CDI was large and therefore should not be considered for the award of

any small business set-aside contract for our Army base Have a great day

Screen 24 Your office Entering your office you get a phone call

Phil Hello this is Phil from ELMO I am assuming you heard about the protest Before we send

in the protest letter could you please tell me what is required for a size protest to be

considered by SBA

Activity 24-1 Your office

Question Phil In accordance with 13 CFR 1211007 what is required for a protest of size

status to be considered by SBA

Choice 1 A concern is considered a small and a large depending on the particular size standard

Proceed to screen 25

Choice 2 The size protest must demonstrate that the offeror being protested is considered

large based on presumed affiliation with a large business Proceed to screen 33

Choice 3 The size status protest must relate to a particular procurement and be specific to

provide reasonable notice as to the grounds upon which the protested concerns size is

questioned Proceed to screen 42

Screen 25 Your office

Phil Thank you I will send out the protest later today

Screen 26 Your office Entering your office you notice you have an e-mail

To Acquisition Team

From Connie Contracting Officer

Subject Size Protest E-mail Attachment Protest Letter

Hello

Just wanted to inform the SBA would not act on ELMOs protest I have received notice that the size protest is not being considered

I have also attached a copy of the protest

VR

Connie Contracting Officer

Screen 27 Your office Ruben meets with you weekly to review the status of acquisitions and

discuss any lessons learned During this weekly meeting you inform Ruben about the mistake

you made in informing the protestor that a concern is considered a small and a large depending

on the particular size standard

Ruben You do realize that a concerns size can fluctuate between small and large depending on

the particular procurement assigned NAICS size standards If you counsel industry you need to

realize this

Screen 28 Your office CONSEQUENCE OF YOUR ACTIONS 13 CFR 1211007(a) A protest

challenging the size of a concern which does not pertain to a particular procurement or sale will

not be acted on by SBA While it is true that a concern can be small andor large depending on

the procurements NAICS code and corresponding size standard the size protest would be

denied because it must be related to a particular procurement

Screen 29 Your office

Ruben Did you take a look at 13 CFR 1211007 What is required for a size protest to be

considered by SBA

Activity 24-2 Your office

Question Ruben In accordance with 13 CFR 1211007 what is required for a size protest to be

considered by SBA

Choice 1 The size status protest must relate to a particular procurement and be specific to

provide reasonable notice as to the grounds upon which the protested concerns size is

questioned Proceed to screen 41

Choice 2 The size protest must demonstrate that the offeror being protested is considered

large based on presumed affiliation with a large business Proceed to screen 30

Screen 30 Your office

Ruben Thatrsquos not quite right The protest must be sufficiently specific to prove affiliation Some

basis for the belief must be stated The SBA would not act on the protest IAW CFR 1211007(c)

the SBA protest regulations

Screen 31 Your office CONSEQUENCE OF YOUR ACTIONS 13 CFR 1211007(c) Non-specific

protests will be dismissed The protestor must present proof of affiliation and also relate it to a

specific procurement The protest would be denied because it is not specific The protestor sent

a copy of the protest stating there was presumed affiliation with a large business and therefore

should not be considered for the award of any small business set-aside contract

Screen 32 Your office

Ruben You cannot keep informing industry and the agency in this way You need to refer to the regulations before giving advice I will need to report this to the commander Do not give any more advice without looking at the regulations I will see you next month Proceed to screen 43

Screen 33 Your office

Phil Thank you I will send out the protest later today

Screen 34 Your office

To Acquisition Team

From Connie Contracting Officer

Subject Size Protest Attachment Protest Letter

Hello

Just wanted to inform the SBA would not act on ELMOs protest I have received notice that the size protest is not being considered

I have also attached a copy of the protest

VR

Connie

Contracting officer

Screen 35 Your office Ruben and yourself have monthly general follow-on discussions to discuss the progress of the acquisition and discuss any lessons learned You inform Ruben about the mistake you made

Ruben The protest must be sufficiently specific to prove affiliation Some basis for the belief must be stated The SBA would not act on the protest IAW CFR 1211007(c) the SBA protest regulations

Screen 36 Your office CONSEQUENCE OF YOUR ACTIONS 13 CFR 1211007(a) A protest challenging the size of a concern which does not pertain to a particular procurement or sale will not be acted on by SBA While it is true that a concern can be small andor large depending on the procurements NAICS code and corresponding size standard the size protest would be denied because it must be related to a particular procurement

Screen 37 Your office

Ruben Did you take a look at 13 CFR 1211007 What is required for a protest of size to be considered by SBA

Activity 24-3 Your office

Question Ruben In accordance with 13 CFR 1211007 what is required for a size protest to be

considered by SBA

Choice 1 A concern is considered a small and a large depending on the particular size standard

Proceed to screen 38

Choice 2 The size status protest must relate to a particular procurement and be specific to

provide reasonable notice as to the grounds upon which the protested concernrsquos size is

questioned Proceed to screen 41

Screen 38 Your office

Ruben You do realize that a concerns size can fluctuate between small and large depending on

the particular procurement assigned NAICS size standards If you counsel industry you need to

realize this

Screen 39 Your office CONSEQUENCE OF YOUR ACTIONS 13 CFR 1211007(a) A protest

challenging the size of a concern which does not pertain to a particular procurement or sale will

not be acted on by SBA While it is true that a concern can be small andor large depending on

the procurements NAICS code and corresponding size standard the size protest would be

denied because it must be related to a particular procurement

Screen 40 Your office

Ruben You cannot keep informing industry and the agency in this way You need to refer to the

regulations before giving advice I will need to report this to the commander Do not give any

more advice without looking at the regulations I will see you next month Proceed to screen 43

Screen 41 Your office

Ruben That is correct In the future do not give any more advice without looking at the

regulations I will see you next month

Screen 42 Your office

Phil Thank you I will send out the protest today Goodbye

Screen 43 Your office FEEDBACK A protest challenging the size of a concern must pertain to a

particular procurement or sale Additionally a size protest must be sufficiently specific to

provide reasonable notice as to the grounds upon which the protested concerns size is

questioned No particular form is prescribed for a protest Where materials supporting the

protest are available they should be submitted with the protest Size protests which do not

meet 13 CFR 1211007 requirements will be dismissed by SBA

Screen 44 Your office TWO DAYS LATER

To You SBP Attachment Protest

From Connie Contracting Officer

Subject Size Protest

Hello

After lunch if you could please meet Jenny and I in the conference room I have received the

protest from ELMO and just want to make sure I handle my part The protest document is

attached to this message Please read it before going to see Jenny

Thanks

Connie

Contracting Officer

Screen 45 Conference room LATER THAT DAY

Connie Thanks for coming by ELMO has submitted their small business size representation protest Could you please tell me what needs to be included

Activity 45-1 Conference room

Question Connie What should a small business size representation protest contain

Choice 1 According to FAR 19302(c) a small business size representation protest shall include

the basis for the protest and a referral letter written by the Contracting Officer with

information pertaining to the solicitation - Proceed to screen 73

Choice 2 According to FAR 19302(c)(3) a small business size representation protest shall

include a referral letter written by the Program Manager with information addressing the

solicitation - Proceed to screen 46

Choice 3 According to FAR 19302(c)(3) a small business size representation protest shall

include a copy of the solicitation and all offerors bid - Proceed to screen 59

Screen 46 Conference room

Connie Oh ok Asha needs to fill out the referral letter Please give her a call

Screen 47 Conference room

Asha Hello Asha speaking How may I help you

Screen 48 Conference room

Connie Hey Asha Itrsquos me Connie I have Jenny and the SBP here with me The SBP has just informed me that the Program Manager needs to fill out the referral letter for the size protest

Screen 49 Conference room

Asha Are you sure I have never filled out a referral letter before What must a small business representation protest need to include

Activity 45-2 Conference room

Question Asha What should a small business size representation protest contain

Choice 1 According to FAR 19302(c)(3) a small business size representation protest shall include a copy of the solicitation and all offerorsrsquo bids - Proceed to screen 50

Choice 2 According to FAR 19302(c) a small business size representation protest shall include the basis for the protest and a referral letter written by the Contracting Officer with information pertaining to the solicitation - Proceed to screen 73

Screen 50 Conference room

Asha Ok if you want me to fill out the referral letter I can have it completed by tomorrow You will need to gather the solicitation and offerorsrsquo bids

Screen 51 conference room

Connie Thank you Asha

Screen 52 Your office TWO DAYS LATER - As you enter your office the phone rings

Asha Hello this is Asha I just wanted to let you know that the SBA has returned the protest They stated that the Contracting Officer needs to fill out the referral letter SBA also included a list of items that the protest package should contain I left the list in your inbox

Screen 53 Your office read the protest package that is in your inbox

Screen 54 Your office THREE DAYS LATER

Asha I will get with Connie to make sure what the correct information gets sent to the SBA Bye

Screen 55 Conference room Connie has called a meeting of the team to discuss the size protest from ELMO

Connie Thank you everyone for coming As you all know the protest has slowed down the process of awarding the contract This mishap about who should fill out the referral letter has caused us even more delay which potentially will impact the delivery schedule

Screen 56 Conference room

Connie The protest package has been completed and sent back to the SBA Everything should be in order and now we just wait to hear back from the SBA I brought in copies of the referral letter and the CDI representation letter for everyone to take a look at

Screen 57 Conference room Read the Size Determination document

Screen 58 Conference room CONSEQUENCE OF YOUR ACTIONS The SBA sent back the protest This resulted in a delay of SBAs protest decision As a result there may be potential

delays for contract award and impacts to the programs overall costperformanceschedule

baseline

Screen 59 Conference room

Jenny Oh ok we just need to include the solicitation and all of the offerors bids I can gather

that information up in no time

Screen 60 Conference room

Connie Are you sure that is correct I thought somewhere in the regulations I read that we

were supposed to supply a letter and that the protester was supposed to come up with all the

other information

Activity 45-3 Conference room

Question Connie What should a small business size representation protest contain

Choice 1 According to FAR 19302(c) a small business size representation protest shall include

the basis for the protest and a referral letter written by the Contracting Officer with

information pertaining to the solicitation - Proceed to screen 73

Choice 2 According to FAR 19302(c)(3) a small business size representation protest shall

include a referral letter written by the Program Manager with information addressing the

solicitation - Proceed to screen 61

Screen 61 Conference room

Connie Oh ok Asha needs to fill out the referral letter Letrsquos give her a call

Screen 62 Conference room

Asha Hello Asha speaking How may I help you

Screen 63 Conference room

Connie Hey Asha Itrsquos me Connie I have Jenny and the SBP here with me The SBP has just

informed me that the Program Manager needs to fill out the referral letter for the size protest

Screen 64 Conference room

Asha Sure I can fill out the referral letter Irsquoll have it completed by tomorrow Bye

Screen 65 Conference room

Connie Once I receive the letter from Asha I will send it off to SBA Thanks Have a great rest of your day

Screen 66 Hour office TWO DAYS LATER - As you enter your office the phone rings

Asha Hello this is Asha I just wanted to let you know that the SBA has returned the protest They stated that the Contracting Officer needs to fill out the referral letter SBA also included a list of items that the protest package should contain I left the list in your inbox

Screen 67 Your office

Asha I will get with Connie to make sure that the correct information gets sent to the SBA Bye

Screen 68 Your office Read the Protest Package letter

Screen 69 Conference room THREE DAYS LATER - Connie has called a meeting of the team to discuss the size protest from ELMO

Connie Thank you everyone for coming As you all know the protest has slowed down the

process of awarding the contract This mishap about who should fill out the referral letter has

cause us even more delay which potentially will impact the delivery schedule

Screen 70 conference room

Connie The protest package has been completed and sent back to the SBA Everything should be in order and now we just wait to hear back from the SBA I brought in copies of the referral letter and the CDI representation letter for everyone to take a look at

Screen 71 Conference room Read the Referral Letter CDI Representation and Size Determination documents

Screen 72 Conference room CONSEQUENCE OF YOUR ACTIONS The SBA sent the protest back This has resulted in a delay in the SBA deciding the protest and potential delay of award of the contract which could result in a delay in performance of delivery or service resulting in additional costs to the Government

Screen 73 Conference room

Connie Thatrsquos it Ok I can definitely take care of that today Thank you

Screen 74 Your office It has been several days since you spoke to Connie about the small

business representation protest requirements As you sit down to start your day you notice you

have a voicemail

Jenny Hello Can you stop by the conference room when you get this message Thanks

Screen 75 Conference room

Connie Hello Thanks for coming I just wanted to inform you that the protest package has

been completed and sent back to the SBA Everything should be in order and now we just wait

to hear back from the SBA I brought in copies of the referral letter and the CDI representation

letter for everyone to take a look at

Screen 76 Conference room Read the Referral Letter CDI Representation and Size

Determination documents

Screen 77 Conference room

FEEDBACK According to FAR 19302(c)(3) a small business representation protest shall include

the basis of the protest and include a referral letter signed by the Contracting Officer with

information pertaining to the solicitation and include (i) the protest and any accompanying

materials (ii) a copy of the size self-certification (iii) Identification of applicable size standard

(iv) a copy of the electronic link to the solicitation and any amendments (v) the name address

telephone number email address and number of the Contracting Officer (vi) identification of

the bid opening date or date of notification provided to unsuccessful offerors (vii) the date the

Contracting Officer received the protest (viii) a complete address and point of contact for the

protested concern An offeror the SBA or another interested party may protest the small

business representation of an offeror in a specific offer (FAR 19302(a)(2)) For competitive 8(a)

contracts the filing of a protest is limited to the Contracting Officer an offeror or the SBA The

Contracting Officer may also submit a small business representation protest at any time before

or after award (FAR 19302(a) and (b))

Screen 78 Your office A WEEK LATER - As you come back from lunch with Janet you get a visit

from Jenny She has not heard anything about the protest for several days and would like

clarification on the protest process with the SBA

Jenny Hi I just wanted to clarify the notification process of the protest It has been five days

since the documents were submitted to the SBA and we have not heard anything as of yet

Connie also gave me this form that I am unfamiliar with I put it in your inbox

Screen 79 Your office Read the SBA Form 355

Screen 80 Your office

Jenny Hey Janet what is the SBA Government Contracting Area Directors process after

receiving a size determination protest

Screen 81 Your office

Janet When SBA receives a size protest the SBA Area Director for Government Contracting or

designee will notify the contracting officer the protested concern and the protestor that the

protest has been received SBA will provide a blank copy of SBA Form 355 Application for Small

Business Determination to the concern whose size is at issue The protested concern or

concern whose size is at issue must return the completed SBA Form 355 and all other requested

information to SBA within 3 working days from the date of receipt of the blank form from SBA

SBA has discretion to grant an extension of time to file the form After receipt of a protest or a

request for a formal size determination the SBA Area Office will issue a formal size

determination within 15 business days if possible or within an extension granted by the

Contracting Officer in accordance with FAR 19302(e)

Screen 82 Your office

Jenny Thank you for clarifying the process Irsquoll see you both later

Screen 83 Your office

Janet Yes I have to get back to the office too Irsquoll see you later

Screen 84 Your office THE NEXT DAY - You re-enter your office from a break and receive a

phone call

Jenny Hello I forgot to ask when the Contracting Officer may award a contract that has a small

business size protest

Activity 84-1 Your office

Question Jenny When may the Contracting Officer award a contract that has been protested

Choice 1 Only after the SBA makes a determination of the small business representation

protest - Proceed to screen 85

Choice 2 When the SBA makes a decision or 15 business days have expired whichever comes

first however the CO may award a contract before an SBA determination is made when he

makes a written determination that award must be made to protect public interest - Proceed

to screen 105

Choice 3 The Contracting Officer does not have to wait for SBA to make the determination -

Proceed to screen 95

Screen 85 Your office

Jenny Ok so I guess we just wait until the SBA makes a determination Thanks

Screen 86 Program Managerrsquos Office THE NEXT DAY - Asha has requested that you come by

her office As you walk into Asharsquos office Connie is already there

Asha Connie was just informing me that she has decided to wait on SBAs decision about the

protest before awarding the contract Just want to inform the both of you that the incumbent

contract expires 18 days after the submittal of the protest to the SBA

Screen 87 Program Managerrsquos Office

Connie That is a good point Asha The risk of me waiting too long will result in expiration of the

contract A lapse between contracts is unacceptable as that may adversely impact the

warfighter

Activity 84-2 Program Managerrsquos Office

Question Connie When may the Contracting Officer award a contract that has been

protested

Choice 1 When the SBA makes a decision or 15 business days have expired whichever comes

first however the CO may award a contract before an SBA determination is made when he

makes a written determination that award must be made to protect public interest - Proceed

to screen 103

Choice 2 The Contracting Officer does not have to wait for SBA to make the determination -

Proceed to screen 88

Screen 88 Program Managerrsquos Office

Connie If that is the case letrsquos wait about a week and then award the contract Thanks

everyone

Screen 90 Your office FIVE DAYS LATER - SBA renders its decision on the required 15th

business day finding that the apparent successful offeror was not eligible for the award

Connie Meeting today at 2 PM

Screen 91 Conference room 2 PM - Connie has called in Asha Jenny and Ian to the

conference room

Connie As you are aware SBA came back with the decision that ELMO was not eligible for the

award Because it is so close to the completion of the source selection we may be able to go

back and award to the offeror that was second in line based on evaluation results

Screen 92 Conference room

Ian We would have to get the acquisition team together with legal SBA and leadership but

we might be able to accomplish that without having to start the procurement over again

Screen 93 Conference room

Connie Thanks everyone I will keep you posted

Screen 94 Conference room CONSEQUENCE OF YOUR ACTIONS Awarding the contract

without waiting for SBA to make a decision on the appeal is a violation of FAR policy (FAR

19302(g)(2) this type of violation could result in significant impacts inclusive of the

Contracting Officer having to terminate the unauthorized contract Additional fallout may occur

by having to re-accomplish the procurement entirely since the source selection was effectively

completed upon award of the unauthorized contract to the ineligible company Reprocurement

risk would be dependent upon the acquisition circumstances timing and viewpoints of the key

stakeholders and decision-makers

FEEDBACK After receiving a size protest involving a new procurement the Contracting Officer

shall not award the contract until the SBA has made a size determination or after 15 business

days have expired whichever comes first However the Contracting Officer may award a

contract before an SBA determination is made when shehe makes a written determination

that award must be made to protect the public interest (FAR 19302(g)(1))

Screen 95 Your office

Jenny Ok I will inform Connie Thanks

Screen 96 COrsquos office LATER THAT DAY - Connie has asked you to come by her office

Connie Hello Thanks for coming by Jenny tells me that you said that we do not need to wait

for SBA to make the determination about the size protest What happens if we award the

contract and then SBA finds the apparent successful offeror was not eligible for the award

Maybe you should double check the regulation

Activity 84-3 COrsquos office

Question Connie When may the Contracting Officer award a contract that has been

protested

Choice 1 Only after the SBA makes a determination of the small business representation

protest - Proceed to screen 97

Choice 2 When the SBA makes a decision or 15 business days have expired whichever comes

first however the CO may award a contract before an SBA determination is made when he

makes a written determination that award must be made to protect public interest - Proceed

to screen 104

Screen 97 COrsquos office

Connie Ok so I guess we just wait until the SBA makes a determination

Screen 98 Program Managerrsquos Office LATER THAT DAY - Asha has requested that you come by

her office As you walk into Asharsquos office Connie is already there

Asha Connie was just informing me that she has decided to wait on SBAs decision about the

protest before awarding the contract Just want to inform the both of you that the current

contract expires 18 days after the submittal of the protest to the SBA

Screen 99 Program Managerrsquos Office

Connie That is a good point Asha The risk of me waiting too long will result in expiration of the

incumbents contract and work stoppage for security guard services

Screen 100 Program Managerrsquos Office

Asha I looked up the regulation and it states that we should wait up to 15 business days and

then we may award the contract

Screen 101 Program Managerrsquos Office

Connie Thanks That is what we will do and hopefully SBA will respond before the 15 days

Screen 102 Program Managerrsquos Office CONSEQUENCE OF YOUR ACTIONS Not thoroughly

understanding the protest procedures and being uninformed of program needs and imp acts

could result in adverse impacts to the warfighter

FEEDBACK After receiving a size protest involving a new procurement the Contracting Officer

shall not award the contract until the SBA has made a size determination or after 15 business

days have expired whichever comes first However the Contracting Officer may award a

contract before an SBA determination is made when shehe makes a written determination

that award must be made to protect the public interest (FAR 19302(g)(1))

Screen 103 Program Managerrsquos Office

Connie Ok we wait for 15 business days That sounds much better Thanks - Proceed to

screen 106

Screen 104 COrsquos office

FEEDBACK After receiving a size protest involving a new procurement the Contracting Officer

shall not award the contract until the SBA has made a size determination or after 15 business

days have expired whichever comes first However the Contracting Officer may award a

contract before an SBA determination is made when shehe makes a written determination

that award must be made to protect the public interest (FAR 19302(g)(1))

Connie Ok we wait for 15 business days That sounds much better Thanks - Proceed to

screen 107

Screen 105 Your office

FEEDBACK After receiving a size protest involving a new procurement the Contracting Officer shall not award the contract until the SBA has made a size determination or after 15 business days have expired whichever comes first However the Contracting Officer may award a contract before an SBA determination is made when shehe makes a written determination that award must be made to protect the public interest (FAR 19302(g)(1))

Jenny Ok we wait for 15 business days Thanks - Proceed to screen 107

Screen 106 Program Managerrsquos office FEEDBACK After receiving a size protest involving a new procurement the Contracting Officer shall not award the contract until the SBA has made a size determination or after 15 business days have expired whichever comes first However the Contracting Officer may award a contract before an SBA determination is made when shehe makes a written determination that award must be made to protect the public interest (FAR 19302(g)(1))

Screen 107 Your office TWO DAYS LATER - Itrsquos been two days since your conversation with Jenny You notice that you have a new e-mail

To Acquisition Team Attachment Appeal Letter

From Grace CDI Contractor

Subject ELMO protest upheld

Hello

I just heard that ELMOs protest was upheld We believe the decision was based on erroneous information so we want to appeal Can you give me some guidance in the process for submitting an appeal

I have attached the appeal and size determination letters

Sincerely

Grace CDI Contractor

Activity 107-1 Your office

Question Grace What is the process for submitting an appeal for a size protest determination

Choice 1 IAW FAR 19302(h) an appeal may be filed with the SBA Office of Hearings and Appeals by any concern or interested party whose protest of the small business representation of another concern has been denied - Proceed to screen 111

Choice 2 An appeal may be filed by any concern or interested party to protest the small business representation of another concern to the Contracting Officer - Proceed to screen 108

Screen 108 Your office THREE DAYS LATER Connie comes by your office

Connie Hello there I just received the appeal from CDI through the mail channels and realized

that the protestor sent it to me in error I am having Jenny mail the appeal package back to CDI

Screen 109 Your office As you get back to your desk you notice that you have a voicemail

Grace Hello this is Grace from CDI Looks like I sent my appeal to the wrong location I was not

supposed to send it to the Contracting Officer I have re-sent the appeal to SBA OHA I hope

that its not too late because they will deny my appeal if untimely

Screen 110 Your office CONSEQUENCES OF YOUR ACTIONS Filing the appeal with the

Contracting Officer would result in lost time for the protestor because the appeal must be filed

with SBA OHA The concern encounters a greater risk of denial by SBA OHA if the appeal is not

filed within the time frame listed in Subpart C of 13 CFR 134

Screen 111 Your office The agency awaits confirmation from SBA OHA as to the standing of

the appeal and related impacts to the ongoing procurement You leave for the weekend

Screen 112 Your office FEEDBACK An appeal may be filed only when the small business

representation protest has been denied by the SBA Government Contracting Area Director and

within the time frames and in accordance with the procedures outlined in Subpart C of 13 CFR

Part 134 (IAW FAR 19302(h)) While a Contracting officer may file an appeal of their own the

concern or interested party must file the appeal to the SBA Office of Hearings and Appeals

(OHA) within the time frame and in accordance with the procedures listed in Subpart C of 13

CFR 134

Screen 113 Your office You return to the office on Monday morning You have a new e-mail

E-mail CDI appeal

To You SBP

From Connie Contracting Officer

Subject CDI Appeal

Hello

I would like to have a meeting with you and our lawyer Ian and Jenny to review the CDI size

appeal to the SBA Office of Hearings and Appeals Please check your calendar to see if you are

free tomorrow afternoon Let me know if you can make it

Sincerely

Connie

Contracting Officer

Screen 114 Conference room THE NEXT DAY - You Connie Jenny and the departmentrsquos

lawyer Ian are in a conference room

Ian Glad you could make the meeting We have been informed that Corporate Defenders is

appealing the SBAs decision Because of the potential impact the appeals process may have on

our current security guard services and before we make a decision on what we should do

about continuation of those services I would like to discuss the basis of the original size protest

by ELMO in the Corporate Defenders appeal to determine whether we think it will be denied

What was the basis of the original size protest by ELMO in the Corporate Defenders appeal

Screen 115 Conference room

Jenny The basis of the original protest is that Corporate Defenders Inc is affiliated with Rivers

under the ostensible subcontracting rule

Screen 116 Conference room

Connie Now that we have determined it is a size representation issue does this fall within the

affiliation under the ostensible subcontracting rule

Screen 117 Conference room

Ian The regulation defines an ostensible subcontractor as a subcontractor that performs

primary and vital requirements or when the prime contractor is unusually reliant upon the

subcontractor In this case CDI would be relying on the workforce and management of Rivers

to fulfill the requirements of the contract Therefore the combined size standards of CDI and

Rivers exceeds the size standard for this procurement according to 13 CFR 121103(h)(4)

Screen 118 Conference room

Connie The SBA Area Office found that under the ostensible subcontracting rule CDI was

considered a large business because of its affiliation with Rivers CDI appealed the ruling to the

SBA Office of Hearings and Appeals stating that CDI was not overly reliant on Rivers for

performing the contract and that CDI will serve as the prime contractor ELMO argued that

there is an ostensible subcontracting affiliation with CDI and Rivers and that Rivers is a large

business and thus CDI is ineligible for award What factors could lead to the appeal being

denied

Activity 118-1 Conference room

Question Connie What factors led to the appeal being denied

Choice 1 Rivers was a large business and thus ineligible for the award - Proceed to screen 119

Choice 2 CFR 121103(h)(4) states only the terms of the proposal are applicable to determining

the teaming agreement between the prime and subcontractor - Proceed to screen 123

Choice 3 There is ostensible subcontracting based on the fact that the proposed subcontractor

is the incumbent contractor and thus ineligible for award the prime contractor proposed to

hire the majority of the workforce from the subcontractor the prime contractors proposed

program manager previously served as program manager for the subcontractor on incumbent

contract and the prime contractor lacked experience with projects of the magnitude required

of this procurement This makes the offeror ineligible for award - Proceed to screen 127

Screen 119 Conference room

Ian I believe that is an incorrect assumption since Rivers was only going to perform 43 percent

of the work for a small business This alone would not make Rivers an ostensible subcontractor

Activity 118-2 Conference room

Question Connie What factors led to the appeal being denied

Choice 1 There is ostensible subcontracting based on the fact that the proposed subcontractor

was the incumbent contractor and thus ineligible for award - Proceed to screen 127

Choice 2 CFR 121103(h)(4) states that only the terms of the proposal are applicable to

determining the teaming agreement between the prime and subcontractor - Proceed to screen

120

Screen 120 Conference room

Ian I believe this is an incorrect assumption All aspects of the relationship between CDI and

Rivers are to be considered

Screen 121 Conference room

Connie Letrsquos reference back to the ruling and the reason why there was an ostensible

subcontract

Screen 122 Conference room

Connie It appears that there was ostensible subcontracting based on the fact that the

proposed subcontractor was the incumbent contractor and thus ineligible for award the prime

contractor proposed to hire the majority of the workforce from the subcontractor the prime

contractors proposed program manager previously served as program manager for the

subcontractor on incumbent contract and the prime contractor lacked experience with

projects of the magnitude required of this procurement - Proceed to screen 127

Screen 123 Conference room

Ian I believe this is an incorrect assumption All aspects of the relationship between CDI and

Rivers are to be considered

Activity 118-3 conference room

Question Ian What factors led to the appeal being denied

Choice 1 Rivers was a large business and thus ineligible for the award - Proceed to screen 124

Choice 2 There is ostensible subcontracting based on the fact that the proposed subcontractor

was the incumbent contractor and thus ineligible for award - Proceed to screen 127

Screen 124 Conference room

Ian I believe that is an incorrect assumption since Rivers was only going to perform 43 percent

of the work for a small business This alone would not make Rivers an ostensible subcontractor

Screen 125 Conference room

Connie Letrsquos reference back to the ruling and the reason why there was an ostensible

subcontract

Screen 126 Conference room

Connie It appears that there was ostensible subcontracting based on the fact that the

proposed subcontractor was the incumbent contractor and thus ineligible for award the prime

contractor proposed to hire the majority of the workforce from the subcontractor the p rime

contractors proposed program manager previously served as program manager for the

subcontractor on incumbent contract and the prime contractor lacked experience with

projects of the magnitude required of this procurement

Screen 127 Conference room

FEEDBACK CFR 121103(h)(4) states all aspects of the relationship between the prime and the

subcontractor are to be considered including but not limited to the terms of the proposal such

as contract management and the percentage of subcontract work agreement between the

prime and subcontractor and whether the subcontractor is the incumbent contractor and is

ineligible to submit a proposal because it exceeds the applicable size standard

Screen 128 Conference room

Connie I think we are good here Thank you for meeting Talk to you later

Screen 129 Conference room

SUMMARY Small Businesses are subject to a size protest on a small business set-aside before

award of a contract The SBA will normally make a determination of size status within 15 days

of receipt of protest To be considered by the SBA it is necessary that the protest be specific

and timely

FAR 19302 and 13 CFR Part 121 provide the specific rules for submitting a size representation

An appeal can be made to the SBA Office of Hearing and Appeals for re-consideration of an SBA

Area Office size protest decision In determining size protests the SBA will consider receipts

number of employees and affiliations of the protested concerns In examining affiliations the

SBA will look for an ostensible subcontracting relationship in which the subcontractor that

performs primary and vital requirements of a contract or a subcontractor upon which the prime

contractor is unusually reliant

If affiliation is found and the prime and the sub are considered large due then award cannot

be made If a size protest is not submitted timely or does not contain sufficient information to

make a size determination the protest will be dismissed The SBP role is to ensure that the

organization is aware of the regulations governing the SBA size protests

When a Small Business size representation protest andor an appeal to a size protest is

received the SBPs role is to advise and assist the acquisition team and Contracting Officer with

interpretation and application of corresponding FAR Part 19 and SBA 13 CFR requirements The

SBP may also advise the offeror or contractor on the procedures for submitting a protest prior

to issuing a solicitation After the solicitation has been issued all communication must be

through the Contracting Officer While this scenario discusses the procedures for a small

business representation protest the SBP needs to be aware that the socio-economic programs

ie HUBZones SDVOSB 8(a) and WOSB each have slightly different procedures which are set-

forth in FAR Part 19 Close attention must be made to both the applicable FAR Part 19 and SBA

13 CFR 121 requirements to provide proper advice and guidance on each type of protest and

appeal

Screen 130 Conference room This concludes the simulation The After Action Report (AAR) has

been created Download the AAR and review your performance in the simulation

After viewing the AAR use the browser close button to close this simulation and return to

screen 3 in the Size Protest lesson to complete this lesson

SBP220 Business Decisions for Small Business lesson 11 - Size Pr otest Simulation RESOURCES I PRINT I HELP

Summary

I Poge 5 of6 I Back Next

SBP220 Business Decisions for Small Business lesson 11 - Size Protest Simulation RESOURCES 1 PRINT 1 HELP

Summary

Closed Captioning Congratulations you have completed the Size Protest Simulation During this simulation you participated in activities common to interpreting data to verify the size of a small business Ensure that you review your After Action Report and if you did not respond correctly to all activities consider going through the simula tion again

I Pogo 5of6 I Back Next

SBP220 Business Decisions for Small Business lesson 11 - Size Protest Simulation RESOURCES I PRINT I HELP

Summary

Poge 5of6 I Back Next

SBP220 Business Decisions for Small Business Lesson 11 - Size Pr otest Simulation RESOURCES j PRINT j HElP

Lesson Completion

You have comple ted the con tent for this lesson

To continue select another lesson from the Table of Con tents on the le f t

If you have closed or hidden the Table of Contents select the Show T OC button at the t op in the Atlas navigation bar

~ I P o ge 6 of6 I Back Next

Screen 27 Your office Ruben meets with you weekly to review the status of acquisitions and

discuss any lessons learned During this weekly meeting you inform Ruben about the mistake

you made in informing the protestor that a concern is considered a small and a large depending

on the particular size standard

Ruben You do realize that a concerns size can fluctuate between small and large depending on

the particular procurement assigned NAICS size standards If you counsel industry you need to

realize this

Screen 28 Your office CONSEQUENCE OF YOUR ACTIONS 13 CFR 1211007(a) A protest

challenging the size of a concern which does not pertain to a particular procurement or sale will

not be acted on by SBA While it is true that a concern can be small andor large depending on

the procurements NAICS code and corresponding size standard the size protest would be

denied because it must be related to a particular procurement

Screen 29 Your office

Ruben Did you take a look at 13 CFR 1211007 What is required for a size protest to be

considered by SBA

Activity 24-2 Your office

Question Ruben In accordance with 13 CFR 1211007 what is required for a size protest to be

considered by SBA

Choice 1 The size status protest must relate to a particular procurement and be specific to

provide reasonable notice as to the grounds upon which the protested concerns size is

questioned Proceed to screen 41

Choice 2 The size protest must demonstrate that the offeror being protested is considered

large based on presumed affiliation with a large business Proceed to screen 30

Screen 30 Your office

Ruben Thatrsquos not quite right The protest must be sufficiently specific to prove affiliation Some

basis for the belief must be stated The SBA would not act on the protest IAW CFR 1211007(c)

the SBA protest regulations

Screen 31 Your office CONSEQUENCE OF YOUR ACTIONS 13 CFR 1211007(c) Non-specific

protests will be dismissed The protestor must present proof of affiliation and also relate it to a

specific procurement The protest would be denied because it is not specific The protestor sent

a copy of the protest stating there was presumed affiliation with a large business and therefore

should not be considered for the award of any small business set-aside contract

Screen 32 Your office

Ruben You cannot keep informing industry and the agency in this way You need to refer to the regulations before giving advice I will need to report this to the commander Do not give any more advice without looking at the regulations I will see you next month Proceed to screen 43

Screen 33 Your office

Phil Thank you I will send out the protest later today

Screen 34 Your office

To Acquisition Team

From Connie Contracting Officer

Subject Size Protest Attachment Protest Letter

Hello

Just wanted to inform the SBA would not act on ELMOs protest I have received notice that the size protest is not being considered

I have also attached a copy of the protest

VR

Connie

Contracting officer

Screen 35 Your office Ruben and yourself have monthly general follow-on discussions to discuss the progress of the acquisition and discuss any lessons learned You inform Ruben about the mistake you made

Ruben The protest must be sufficiently specific to prove affiliation Some basis for the belief must be stated The SBA would not act on the protest IAW CFR 1211007(c) the SBA protest regulations

Screen 36 Your office CONSEQUENCE OF YOUR ACTIONS 13 CFR 1211007(a) A protest challenging the size of a concern which does not pertain to a particular procurement or sale will not be acted on by SBA While it is true that a concern can be small andor large depending on the procurements NAICS code and corresponding size standard the size protest would be denied because it must be related to a particular procurement

Screen 37 Your office

Ruben Did you take a look at 13 CFR 1211007 What is required for a protest of size to be considered by SBA

Activity 24-3 Your office

Question Ruben In accordance with 13 CFR 1211007 what is required for a size protest to be

considered by SBA

Choice 1 A concern is considered a small and a large depending on the particular size standard

Proceed to screen 38

Choice 2 The size status protest must relate to a particular procurement and be specific to

provide reasonable notice as to the grounds upon which the protested concernrsquos size is

questioned Proceed to screen 41

Screen 38 Your office

Ruben You do realize that a concerns size can fluctuate between small and large depending on

the particular procurement assigned NAICS size standards If you counsel industry you need to

realize this

Screen 39 Your office CONSEQUENCE OF YOUR ACTIONS 13 CFR 1211007(a) A protest

challenging the size of a concern which does not pertain to a particular procurement or sale will

not be acted on by SBA While it is true that a concern can be small andor large depending on

the procurements NAICS code and corresponding size standard the size protest would be

denied because it must be related to a particular procurement

Screen 40 Your office

Ruben You cannot keep informing industry and the agency in this way You need to refer to the

regulations before giving advice I will need to report this to the commander Do not give any

more advice without looking at the regulations I will see you next month Proceed to screen 43

Screen 41 Your office

Ruben That is correct In the future do not give any more advice without looking at the

regulations I will see you next month

Screen 42 Your office

Phil Thank you I will send out the protest today Goodbye

Screen 43 Your office FEEDBACK A protest challenging the size of a concern must pertain to a

particular procurement or sale Additionally a size protest must be sufficiently specific to

provide reasonable notice as to the grounds upon which the protested concerns size is

questioned No particular form is prescribed for a protest Where materials supporting the

protest are available they should be submitted with the protest Size protests which do not

meet 13 CFR 1211007 requirements will be dismissed by SBA

Screen 44 Your office TWO DAYS LATER

To You SBP Attachment Protest

From Connie Contracting Officer

Subject Size Protest

Hello

After lunch if you could please meet Jenny and I in the conference room I have received the

protest from ELMO and just want to make sure I handle my part The protest document is

attached to this message Please read it before going to see Jenny

Thanks

Connie

Contracting Officer

Screen 45 Conference room LATER THAT DAY

Connie Thanks for coming by ELMO has submitted their small business size representation protest Could you please tell me what needs to be included

Activity 45-1 Conference room

Question Connie What should a small business size representation protest contain

Choice 1 According to FAR 19302(c) a small business size representation protest shall include

the basis for the protest and a referral letter written by the Contracting Officer with

information pertaining to the solicitation - Proceed to screen 73

Choice 2 According to FAR 19302(c)(3) a small business size representation protest shall

include a referral letter written by the Program Manager with information addressing the

solicitation - Proceed to screen 46

Choice 3 According to FAR 19302(c)(3) a small business size representation protest shall

include a copy of the solicitation and all offerors bid - Proceed to screen 59

Screen 46 Conference room

Connie Oh ok Asha needs to fill out the referral letter Please give her a call

Screen 47 Conference room

Asha Hello Asha speaking How may I help you

Screen 48 Conference room

Connie Hey Asha Itrsquos me Connie I have Jenny and the SBP here with me The SBP has just informed me that the Program Manager needs to fill out the referral letter for the size protest

Screen 49 Conference room

Asha Are you sure I have never filled out a referral letter before What must a small business representation protest need to include

Activity 45-2 Conference room

Question Asha What should a small business size representation protest contain

Choice 1 According to FAR 19302(c)(3) a small business size representation protest shall include a copy of the solicitation and all offerorsrsquo bids - Proceed to screen 50

Choice 2 According to FAR 19302(c) a small business size representation protest shall include the basis for the protest and a referral letter written by the Contracting Officer with information pertaining to the solicitation - Proceed to screen 73

Screen 50 Conference room

Asha Ok if you want me to fill out the referral letter I can have it completed by tomorrow You will need to gather the solicitation and offerorsrsquo bids

Screen 51 conference room

Connie Thank you Asha

Screen 52 Your office TWO DAYS LATER - As you enter your office the phone rings

Asha Hello this is Asha I just wanted to let you know that the SBA has returned the protest They stated that the Contracting Officer needs to fill out the referral letter SBA also included a list of items that the protest package should contain I left the list in your inbox

Screen 53 Your office read the protest package that is in your inbox

Screen 54 Your office THREE DAYS LATER

Asha I will get with Connie to make sure what the correct information gets sent to the SBA Bye

Screen 55 Conference room Connie has called a meeting of the team to discuss the size protest from ELMO

Connie Thank you everyone for coming As you all know the protest has slowed down the process of awarding the contract This mishap about who should fill out the referral letter has caused us even more delay which potentially will impact the delivery schedule

Screen 56 Conference room

Connie The protest package has been completed and sent back to the SBA Everything should be in order and now we just wait to hear back from the SBA I brought in copies of the referral letter and the CDI representation letter for everyone to take a look at

Screen 57 Conference room Read the Size Determination document

Screen 58 Conference room CONSEQUENCE OF YOUR ACTIONS The SBA sent back the protest This resulted in a delay of SBAs protest decision As a result there may be potential

delays for contract award and impacts to the programs overall costperformanceschedule

baseline

Screen 59 Conference room

Jenny Oh ok we just need to include the solicitation and all of the offerors bids I can gather

that information up in no time

Screen 60 Conference room

Connie Are you sure that is correct I thought somewhere in the regulations I read that we

were supposed to supply a letter and that the protester was supposed to come up with all the

other information

Activity 45-3 Conference room

Question Connie What should a small business size representation protest contain

Choice 1 According to FAR 19302(c) a small business size representation protest shall include

the basis for the protest and a referral letter written by the Contracting Officer with

information pertaining to the solicitation - Proceed to screen 73

Choice 2 According to FAR 19302(c)(3) a small business size representation protest shall

include a referral letter written by the Program Manager with information addressing the

solicitation - Proceed to screen 61

Screen 61 Conference room

Connie Oh ok Asha needs to fill out the referral letter Letrsquos give her a call

Screen 62 Conference room

Asha Hello Asha speaking How may I help you

Screen 63 Conference room

Connie Hey Asha Itrsquos me Connie I have Jenny and the SBP here with me The SBP has just

informed me that the Program Manager needs to fill out the referral letter for the size protest

Screen 64 Conference room

Asha Sure I can fill out the referral letter Irsquoll have it completed by tomorrow Bye

Screen 65 Conference room

Connie Once I receive the letter from Asha I will send it off to SBA Thanks Have a great rest of your day

Screen 66 Hour office TWO DAYS LATER - As you enter your office the phone rings

Asha Hello this is Asha I just wanted to let you know that the SBA has returned the protest They stated that the Contracting Officer needs to fill out the referral letter SBA also included a list of items that the protest package should contain I left the list in your inbox

Screen 67 Your office

Asha I will get with Connie to make sure that the correct information gets sent to the SBA Bye

Screen 68 Your office Read the Protest Package letter

Screen 69 Conference room THREE DAYS LATER - Connie has called a meeting of the team to discuss the size protest from ELMO

Connie Thank you everyone for coming As you all know the protest has slowed down the

process of awarding the contract This mishap about who should fill out the referral letter has

cause us even more delay which potentially will impact the delivery schedule

Screen 70 conference room

Connie The protest package has been completed and sent back to the SBA Everything should be in order and now we just wait to hear back from the SBA I brought in copies of the referral letter and the CDI representation letter for everyone to take a look at

Screen 71 Conference room Read the Referral Letter CDI Representation and Size Determination documents

Screen 72 Conference room CONSEQUENCE OF YOUR ACTIONS The SBA sent the protest back This has resulted in a delay in the SBA deciding the protest and potential delay of award of the contract which could result in a delay in performance of delivery or service resulting in additional costs to the Government

Screen 73 Conference room

Connie Thatrsquos it Ok I can definitely take care of that today Thank you

Screen 74 Your office It has been several days since you spoke to Connie about the small

business representation protest requirements As you sit down to start your day you notice you

have a voicemail

Jenny Hello Can you stop by the conference room when you get this message Thanks

Screen 75 Conference room

Connie Hello Thanks for coming I just wanted to inform you that the protest package has

been completed and sent back to the SBA Everything should be in order and now we just wait

to hear back from the SBA I brought in copies of the referral letter and the CDI representation

letter for everyone to take a look at

Screen 76 Conference room Read the Referral Letter CDI Representation and Size

Determination documents

Screen 77 Conference room

FEEDBACK According to FAR 19302(c)(3) a small business representation protest shall include

the basis of the protest and include a referral letter signed by the Contracting Officer with

information pertaining to the solicitation and include (i) the protest and any accompanying

materials (ii) a copy of the size self-certification (iii) Identification of applicable size standard

(iv) a copy of the electronic link to the solicitation and any amendments (v) the name address

telephone number email address and number of the Contracting Officer (vi) identification of

the bid opening date or date of notification provided to unsuccessful offerors (vii) the date the

Contracting Officer received the protest (viii) a complete address and point of contact for the

protested concern An offeror the SBA or another interested party may protest the small

business representation of an offeror in a specific offer (FAR 19302(a)(2)) For competitive 8(a)

contracts the filing of a protest is limited to the Contracting Officer an offeror or the SBA The

Contracting Officer may also submit a small business representation protest at any time before

or after award (FAR 19302(a) and (b))

Screen 78 Your office A WEEK LATER - As you come back from lunch with Janet you get a visit

from Jenny She has not heard anything about the protest for several days and would like

clarification on the protest process with the SBA

Jenny Hi I just wanted to clarify the notification process of the protest It has been five days

since the documents were submitted to the SBA and we have not heard anything as of yet

Connie also gave me this form that I am unfamiliar with I put it in your inbox

Screen 79 Your office Read the SBA Form 355

Screen 80 Your office

Jenny Hey Janet what is the SBA Government Contracting Area Directors process after

receiving a size determination protest

Screen 81 Your office

Janet When SBA receives a size protest the SBA Area Director for Government Contracting or

designee will notify the contracting officer the protested concern and the protestor that the

protest has been received SBA will provide a blank copy of SBA Form 355 Application for Small

Business Determination to the concern whose size is at issue The protested concern or

concern whose size is at issue must return the completed SBA Form 355 and all other requested

information to SBA within 3 working days from the date of receipt of the blank form from SBA

SBA has discretion to grant an extension of time to file the form After receipt of a protest or a

request for a formal size determination the SBA Area Office will issue a formal size

determination within 15 business days if possible or within an extension granted by the

Contracting Officer in accordance with FAR 19302(e)

Screen 82 Your office

Jenny Thank you for clarifying the process Irsquoll see you both later

Screen 83 Your office

Janet Yes I have to get back to the office too Irsquoll see you later

Screen 84 Your office THE NEXT DAY - You re-enter your office from a break and receive a

phone call

Jenny Hello I forgot to ask when the Contracting Officer may award a contract that has a small

business size protest

Activity 84-1 Your office

Question Jenny When may the Contracting Officer award a contract that has been protested

Choice 1 Only after the SBA makes a determination of the small business representation

protest - Proceed to screen 85

Choice 2 When the SBA makes a decision or 15 business days have expired whichever comes

first however the CO may award a contract before an SBA determination is made when he

makes a written determination that award must be made to protect public interest - Proceed

to screen 105

Choice 3 The Contracting Officer does not have to wait for SBA to make the determination -

Proceed to screen 95

Screen 85 Your office

Jenny Ok so I guess we just wait until the SBA makes a determination Thanks

Screen 86 Program Managerrsquos Office THE NEXT DAY - Asha has requested that you come by

her office As you walk into Asharsquos office Connie is already there

Asha Connie was just informing me that she has decided to wait on SBAs decision about the

protest before awarding the contract Just want to inform the both of you that the incumbent

contract expires 18 days after the submittal of the protest to the SBA

Screen 87 Program Managerrsquos Office

Connie That is a good point Asha The risk of me waiting too long will result in expiration of the

contract A lapse between contracts is unacceptable as that may adversely impact the

warfighter

Activity 84-2 Program Managerrsquos Office

Question Connie When may the Contracting Officer award a contract that has been

protested

Choice 1 When the SBA makes a decision or 15 business days have expired whichever comes

first however the CO may award a contract before an SBA determination is made when he

makes a written determination that award must be made to protect public interest - Proceed

to screen 103

Choice 2 The Contracting Officer does not have to wait for SBA to make the determination -

Proceed to screen 88

Screen 88 Program Managerrsquos Office

Connie If that is the case letrsquos wait about a week and then award the contract Thanks

everyone

Screen 90 Your office FIVE DAYS LATER - SBA renders its decision on the required 15th

business day finding that the apparent successful offeror was not eligible for the award

Connie Meeting today at 2 PM

Screen 91 Conference room 2 PM - Connie has called in Asha Jenny and Ian to the

conference room

Connie As you are aware SBA came back with the decision that ELMO was not eligible for the

award Because it is so close to the completion of the source selection we may be able to go

back and award to the offeror that was second in line based on evaluation results

Screen 92 Conference room

Ian We would have to get the acquisition team together with legal SBA and leadership but

we might be able to accomplish that without having to start the procurement over again

Screen 93 Conference room

Connie Thanks everyone I will keep you posted

Screen 94 Conference room CONSEQUENCE OF YOUR ACTIONS Awarding the contract

without waiting for SBA to make a decision on the appeal is a violation of FAR policy (FAR

19302(g)(2) this type of violation could result in significant impacts inclusive of the

Contracting Officer having to terminate the unauthorized contract Additional fallout may occur

by having to re-accomplish the procurement entirely since the source selection was effectively

completed upon award of the unauthorized contract to the ineligible company Reprocurement

risk would be dependent upon the acquisition circumstances timing and viewpoints of the key

stakeholders and decision-makers

FEEDBACK After receiving a size protest involving a new procurement the Contracting Officer

shall not award the contract until the SBA has made a size determination or after 15 business

days have expired whichever comes first However the Contracting Officer may award a

contract before an SBA determination is made when shehe makes a written determination

that award must be made to protect the public interest (FAR 19302(g)(1))

Screen 95 Your office

Jenny Ok I will inform Connie Thanks

Screen 96 COrsquos office LATER THAT DAY - Connie has asked you to come by her office

Connie Hello Thanks for coming by Jenny tells me that you said that we do not need to wait

for SBA to make the determination about the size protest What happens if we award the

contract and then SBA finds the apparent successful offeror was not eligible for the award

Maybe you should double check the regulation

Activity 84-3 COrsquos office

Question Connie When may the Contracting Officer award a contract that has been

protested

Choice 1 Only after the SBA makes a determination of the small business representation

protest - Proceed to screen 97

Choice 2 When the SBA makes a decision or 15 business days have expired whichever comes

first however the CO may award a contract before an SBA determination is made when he

makes a written determination that award must be made to protect public interest - Proceed

to screen 104

Screen 97 COrsquos office

Connie Ok so I guess we just wait until the SBA makes a determination

Screen 98 Program Managerrsquos Office LATER THAT DAY - Asha has requested that you come by

her office As you walk into Asharsquos office Connie is already there

Asha Connie was just informing me that she has decided to wait on SBAs decision about the

protest before awarding the contract Just want to inform the both of you that the current

contract expires 18 days after the submittal of the protest to the SBA

Screen 99 Program Managerrsquos Office

Connie That is a good point Asha The risk of me waiting too long will result in expiration of the

incumbents contract and work stoppage for security guard services

Screen 100 Program Managerrsquos Office

Asha I looked up the regulation and it states that we should wait up to 15 business days and

then we may award the contract

Screen 101 Program Managerrsquos Office

Connie Thanks That is what we will do and hopefully SBA will respond before the 15 days

Screen 102 Program Managerrsquos Office CONSEQUENCE OF YOUR ACTIONS Not thoroughly

understanding the protest procedures and being uninformed of program needs and imp acts

could result in adverse impacts to the warfighter

FEEDBACK After receiving a size protest involving a new procurement the Contracting Officer

shall not award the contract until the SBA has made a size determination or after 15 business

days have expired whichever comes first However the Contracting Officer may award a

contract before an SBA determination is made when shehe makes a written determination

that award must be made to protect the public interest (FAR 19302(g)(1))

Screen 103 Program Managerrsquos Office

Connie Ok we wait for 15 business days That sounds much better Thanks - Proceed to

screen 106

Screen 104 COrsquos office

FEEDBACK After receiving a size protest involving a new procurement the Contracting Officer

shall not award the contract until the SBA has made a size determination or after 15 business

days have expired whichever comes first However the Contracting Officer may award a

contract before an SBA determination is made when shehe makes a written determination

that award must be made to protect the public interest (FAR 19302(g)(1))

Connie Ok we wait for 15 business days That sounds much better Thanks - Proceed to

screen 107

Screen 105 Your office

FEEDBACK After receiving a size protest involving a new procurement the Contracting Officer shall not award the contract until the SBA has made a size determination or after 15 business days have expired whichever comes first However the Contracting Officer may award a contract before an SBA determination is made when shehe makes a written determination that award must be made to protect the public interest (FAR 19302(g)(1))

Jenny Ok we wait for 15 business days Thanks - Proceed to screen 107

Screen 106 Program Managerrsquos office FEEDBACK After receiving a size protest involving a new procurement the Contracting Officer shall not award the contract until the SBA has made a size determination or after 15 business days have expired whichever comes first However the Contracting Officer may award a contract before an SBA determination is made when shehe makes a written determination that award must be made to protect the public interest (FAR 19302(g)(1))

Screen 107 Your office TWO DAYS LATER - Itrsquos been two days since your conversation with Jenny You notice that you have a new e-mail

To Acquisition Team Attachment Appeal Letter

From Grace CDI Contractor

Subject ELMO protest upheld

Hello

I just heard that ELMOs protest was upheld We believe the decision was based on erroneous information so we want to appeal Can you give me some guidance in the process for submitting an appeal

I have attached the appeal and size determination letters

Sincerely

Grace CDI Contractor

Activity 107-1 Your office

Question Grace What is the process for submitting an appeal for a size protest determination

Choice 1 IAW FAR 19302(h) an appeal may be filed with the SBA Office of Hearings and Appeals by any concern or interested party whose protest of the small business representation of another concern has been denied - Proceed to screen 111

Choice 2 An appeal may be filed by any concern or interested party to protest the small business representation of another concern to the Contracting Officer - Proceed to screen 108

Screen 108 Your office THREE DAYS LATER Connie comes by your office

Connie Hello there I just received the appeal from CDI through the mail channels and realized

that the protestor sent it to me in error I am having Jenny mail the appeal package back to CDI

Screen 109 Your office As you get back to your desk you notice that you have a voicemail

Grace Hello this is Grace from CDI Looks like I sent my appeal to the wrong location I was not

supposed to send it to the Contracting Officer I have re-sent the appeal to SBA OHA I hope

that its not too late because they will deny my appeal if untimely

Screen 110 Your office CONSEQUENCES OF YOUR ACTIONS Filing the appeal with the

Contracting Officer would result in lost time for the protestor because the appeal must be filed

with SBA OHA The concern encounters a greater risk of denial by SBA OHA if the appeal is not

filed within the time frame listed in Subpart C of 13 CFR 134

Screen 111 Your office The agency awaits confirmation from SBA OHA as to the standing of

the appeal and related impacts to the ongoing procurement You leave for the weekend

Screen 112 Your office FEEDBACK An appeal may be filed only when the small business

representation protest has been denied by the SBA Government Contracting Area Director and

within the time frames and in accordance with the procedures outlined in Subpart C of 13 CFR

Part 134 (IAW FAR 19302(h)) While a Contracting officer may file an appeal of their own the

concern or interested party must file the appeal to the SBA Office of Hearings and Appeals

(OHA) within the time frame and in accordance with the procedures listed in Subpart C of 13

CFR 134

Screen 113 Your office You return to the office on Monday morning You have a new e-mail

E-mail CDI appeal

To You SBP

From Connie Contracting Officer

Subject CDI Appeal

Hello

I would like to have a meeting with you and our lawyer Ian and Jenny to review the CDI size

appeal to the SBA Office of Hearings and Appeals Please check your calendar to see if you are

free tomorrow afternoon Let me know if you can make it

Sincerely

Connie

Contracting Officer

Screen 114 Conference room THE NEXT DAY - You Connie Jenny and the departmentrsquos

lawyer Ian are in a conference room

Ian Glad you could make the meeting We have been informed that Corporate Defenders is

appealing the SBAs decision Because of the potential impact the appeals process may have on

our current security guard services and before we make a decision on what we should do

about continuation of those services I would like to discuss the basis of the original size protest

by ELMO in the Corporate Defenders appeal to determine whether we think it will be denied

What was the basis of the original size protest by ELMO in the Corporate Defenders appeal

Screen 115 Conference room

Jenny The basis of the original protest is that Corporate Defenders Inc is affiliated with Rivers

under the ostensible subcontracting rule

Screen 116 Conference room

Connie Now that we have determined it is a size representation issue does this fall within the

affiliation under the ostensible subcontracting rule

Screen 117 Conference room

Ian The regulation defines an ostensible subcontractor as a subcontractor that performs

primary and vital requirements or when the prime contractor is unusually reliant upon the

subcontractor In this case CDI would be relying on the workforce and management of Rivers

to fulfill the requirements of the contract Therefore the combined size standards of CDI and

Rivers exceeds the size standard for this procurement according to 13 CFR 121103(h)(4)

Screen 118 Conference room

Connie The SBA Area Office found that under the ostensible subcontracting rule CDI was

considered a large business because of its affiliation with Rivers CDI appealed the ruling to the

SBA Office of Hearings and Appeals stating that CDI was not overly reliant on Rivers for

performing the contract and that CDI will serve as the prime contractor ELMO argued that

there is an ostensible subcontracting affiliation with CDI and Rivers and that Rivers is a large

business and thus CDI is ineligible for award What factors could lead to the appeal being

denied

Activity 118-1 Conference room

Question Connie What factors led to the appeal being denied

Choice 1 Rivers was a large business and thus ineligible for the award - Proceed to screen 119

Choice 2 CFR 121103(h)(4) states only the terms of the proposal are applicable to determining

the teaming agreement between the prime and subcontractor - Proceed to screen 123

Choice 3 There is ostensible subcontracting based on the fact that the proposed subcontractor

is the incumbent contractor and thus ineligible for award the prime contractor proposed to

hire the majority of the workforce from the subcontractor the prime contractors proposed

program manager previously served as program manager for the subcontractor on incumbent

contract and the prime contractor lacked experience with projects of the magnitude required

of this procurement This makes the offeror ineligible for award - Proceed to screen 127

Screen 119 Conference room

Ian I believe that is an incorrect assumption since Rivers was only going to perform 43 percent

of the work for a small business This alone would not make Rivers an ostensible subcontractor

Activity 118-2 Conference room

Question Connie What factors led to the appeal being denied

Choice 1 There is ostensible subcontracting based on the fact that the proposed subcontractor

was the incumbent contractor and thus ineligible for award - Proceed to screen 127

Choice 2 CFR 121103(h)(4) states that only the terms of the proposal are applicable to

determining the teaming agreement between the prime and subcontractor - Proceed to screen

120

Screen 120 Conference room

Ian I believe this is an incorrect assumption All aspects of the relationship between CDI and

Rivers are to be considered

Screen 121 Conference room

Connie Letrsquos reference back to the ruling and the reason why there was an ostensible

subcontract

Screen 122 Conference room

Connie It appears that there was ostensible subcontracting based on the fact that the

proposed subcontractor was the incumbent contractor and thus ineligible for award the prime

contractor proposed to hire the majority of the workforce from the subcontractor the prime

contractors proposed program manager previously served as program manager for the

subcontractor on incumbent contract and the prime contractor lacked experience with

projects of the magnitude required of this procurement - Proceed to screen 127

Screen 123 Conference room

Ian I believe this is an incorrect assumption All aspects of the relationship between CDI and

Rivers are to be considered

Activity 118-3 conference room

Question Ian What factors led to the appeal being denied

Choice 1 Rivers was a large business and thus ineligible for the award - Proceed to screen 124

Choice 2 There is ostensible subcontracting based on the fact that the proposed subcontractor

was the incumbent contractor and thus ineligible for award - Proceed to screen 127

Screen 124 Conference room

Ian I believe that is an incorrect assumption since Rivers was only going to perform 43 percent

of the work for a small business This alone would not make Rivers an ostensible subcontractor

Screen 125 Conference room

Connie Letrsquos reference back to the ruling and the reason why there was an ostensible

subcontract

Screen 126 Conference room

Connie It appears that there was ostensible subcontracting based on the fact that the

proposed subcontractor was the incumbent contractor and thus ineligible for award the prime

contractor proposed to hire the majority of the workforce from the subcontractor the p rime

contractors proposed program manager previously served as program manager for the

subcontractor on incumbent contract and the prime contractor lacked experience with

projects of the magnitude required of this procurement

Screen 127 Conference room

FEEDBACK CFR 121103(h)(4) states all aspects of the relationship between the prime and the

subcontractor are to be considered including but not limited to the terms of the proposal such

as contract management and the percentage of subcontract work agreement between the

prime and subcontractor and whether the subcontractor is the incumbent contractor and is

ineligible to submit a proposal because it exceeds the applicable size standard

Screen 128 Conference room

Connie I think we are good here Thank you for meeting Talk to you later

Screen 129 Conference room

SUMMARY Small Businesses are subject to a size protest on a small business set-aside before

award of a contract The SBA will normally make a determination of size status within 15 days

of receipt of protest To be considered by the SBA it is necessary that the protest be specific

and timely

FAR 19302 and 13 CFR Part 121 provide the specific rules for submitting a size representation

An appeal can be made to the SBA Office of Hearing and Appeals for re-consideration of an SBA

Area Office size protest decision In determining size protests the SBA will consider receipts

number of employees and affiliations of the protested concerns In examining affiliations the

SBA will look for an ostensible subcontracting relationship in which the subcontractor that

performs primary and vital requirements of a contract or a subcontractor upon which the prime

contractor is unusually reliant

If affiliation is found and the prime and the sub are considered large due then award cannot

be made If a size protest is not submitted timely or does not contain sufficient information to

make a size determination the protest will be dismissed The SBP role is to ensure that the

organization is aware of the regulations governing the SBA size protests

When a Small Business size representation protest andor an appeal to a size protest is

received the SBPs role is to advise and assist the acquisition team and Contracting Officer with

interpretation and application of corresponding FAR Part 19 and SBA 13 CFR requirements The

SBP may also advise the offeror or contractor on the procedures for submitting a protest prior

to issuing a solicitation After the solicitation has been issued all communication must be

through the Contracting Officer While this scenario discusses the procedures for a small

business representation protest the SBP needs to be aware that the socio-economic programs

ie HUBZones SDVOSB 8(a) and WOSB each have slightly different procedures which are set-

forth in FAR Part 19 Close attention must be made to both the applicable FAR Part 19 and SBA

13 CFR 121 requirements to provide proper advice and guidance on each type of protest and

appeal

Screen 130 Conference room This concludes the simulation The After Action Report (AAR) has

been created Download the AAR and review your performance in the simulation

After viewing the AAR use the browser close button to close this simulation and return to

screen 3 in the Size Protest lesson to complete this lesson

SBP220 Business Decisions for Small Business lesson 11 - Size Pr otest Simulation RESOURCES I PRINT I HELP

Summary

I Poge 5 of6 I Back Next

SBP220 Business Decisions for Small Business lesson 11 - Size Protest Simulation RESOURCES 1 PRINT 1 HELP

Summary

Closed Captioning Congratulations you have completed the Size Protest Simulation During this simulation you participated in activities common to interpreting data to verify the size of a small business Ensure that you review your After Action Report and if you did not respond correctly to all activities consider going through the simula tion again

I Pogo 5of6 I Back Next

SBP220 Business Decisions for Small Business lesson 11 - Size Protest Simulation RESOURCES I PRINT I HELP

Summary

Poge 5of6 I Back Next

SBP220 Business Decisions for Small Business Lesson 11 - Size Pr otest Simulation RESOURCES j PRINT j HElP

Lesson Completion

You have comple ted the con tent for this lesson

To continue select another lesson from the Table of Con tents on the le f t

If you have closed or hidden the Table of Contents select the Show T OC button at the t op in the Atlas navigation bar

~ I P o ge 6 of6 I Back Next

Screen 32 Your office

Ruben You cannot keep informing industry and the agency in this way You need to refer to the regulations before giving advice I will need to report this to the commander Do not give any more advice without looking at the regulations I will see you next month Proceed to screen 43

Screen 33 Your office

Phil Thank you I will send out the protest later today

Screen 34 Your office

To Acquisition Team

From Connie Contracting Officer

Subject Size Protest Attachment Protest Letter

Hello

Just wanted to inform the SBA would not act on ELMOs protest I have received notice that the size protest is not being considered

I have also attached a copy of the protest

VR

Connie

Contracting officer

Screen 35 Your office Ruben and yourself have monthly general follow-on discussions to discuss the progress of the acquisition and discuss any lessons learned You inform Ruben about the mistake you made

Ruben The protest must be sufficiently specific to prove affiliation Some basis for the belief must be stated The SBA would not act on the protest IAW CFR 1211007(c) the SBA protest regulations

Screen 36 Your office CONSEQUENCE OF YOUR ACTIONS 13 CFR 1211007(a) A protest challenging the size of a concern which does not pertain to a particular procurement or sale will not be acted on by SBA While it is true that a concern can be small andor large depending on the procurements NAICS code and corresponding size standard the size protest would be denied because it must be related to a particular procurement

Screen 37 Your office

Ruben Did you take a look at 13 CFR 1211007 What is required for a protest of size to be considered by SBA

Activity 24-3 Your office

Question Ruben In accordance with 13 CFR 1211007 what is required for a size protest to be

considered by SBA

Choice 1 A concern is considered a small and a large depending on the particular size standard

Proceed to screen 38

Choice 2 The size status protest must relate to a particular procurement and be specific to

provide reasonable notice as to the grounds upon which the protested concernrsquos size is

questioned Proceed to screen 41

Screen 38 Your office

Ruben You do realize that a concerns size can fluctuate between small and large depending on

the particular procurement assigned NAICS size standards If you counsel industry you need to

realize this

Screen 39 Your office CONSEQUENCE OF YOUR ACTIONS 13 CFR 1211007(a) A protest

challenging the size of a concern which does not pertain to a particular procurement or sale will

not be acted on by SBA While it is true that a concern can be small andor large depending on

the procurements NAICS code and corresponding size standard the size protest would be

denied because it must be related to a particular procurement

Screen 40 Your office

Ruben You cannot keep informing industry and the agency in this way You need to refer to the

regulations before giving advice I will need to report this to the commander Do not give any

more advice without looking at the regulations I will see you next month Proceed to screen 43

Screen 41 Your office

Ruben That is correct In the future do not give any more advice without looking at the

regulations I will see you next month

Screen 42 Your office

Phil Thank you I will send out the protest today Goodbye

Screen 43 Your office FEEDBACK A protest challenging the size of a concern must pertain to a

particular procurement or sale Additionally a size protest must be sufficiently specific to

provide reasonable notice as to the grounds upon which the protested concerns size is

questioned No particular form is prescribed for a protest Where materials supporting the

protest are available they should be submitted with the protest Size protests which do not

meet 13 CFR 1211007 requirements will be dismissed by SBA

Screen 44 Your office TWO DAYS LATER

To You SBP Attachment Protest

From Connie Contracting Officer

Subject Size Protest

Hello

After lunch if you could please meet Jenny and I in the conference room I have received the

protest from ELMO and just want to make sure I handle my part The protest document is

attached to this message Please read it before going to see Jenny

Thanks

Connie

Contracting Officer

Screen 45 Conference room LATER THAT DAY

Connie Thanks for coming by ELMO has submitted their small business size representation protest Could you please tell me what needs to be included

Activity 45-1 Conference room

Question Connie What should a small business size representation protest contain

Choice 1 According to FAR 19302(c) a small business size representation protest shall include

the basis for the protest and a referral letter written by the Contracting Officer with

information pertaining to the solicitation - Proceed to screen 73

Choice 2 According to FAR 19302(c)(3) a small business size representation protest shall

include a referral letter written by the Program Manager with information addressing the

solicitation - Proceed to screen 46

Choice 3 According to FAR 19302(c)(3) a small business size representation protest shall

include a copy of the solicitation and all offerors bid - Proceed to screen 59

Screen 46 Conference room

Connie Oh ok Asha needs to fill out the referral letter Please give her a call

Screen 47 Conference room

Asha Hello Asha speaking How may I help you

Screen 48 Conference room

Connie Hey Asha Itrsquos me Connie I have Jenny and the SBP here with me The SBP has just informed me that the Program Manager needs to fill out the referral letter for the size protest

Screen 49 Conference room

Asha Are you sure I have never filled out a referral letter before What must a small business representation protest need to include

Activity 45-2 Conference room

Question Asha What should a small business size representation protest contain

Choice 1 According to FAR 19302(c)(3) a small business size representation protest shall include a copy of the solicitation and all offerorsrsquo bids - Proceed to screen 50

Choice 2 According to FAR 19302(c) a small business size representation protest shall include the basis for the protest and a referral letter written by the Contracting Officer with information pertaining to the solicitation - Proceed to screen 73

Screen 50 Conference room

Asha Ok if you want me to fill out the referral letter I can have it completed by tomorrow You will need to gather the solicitation and offerorsrsquo bids

Screen 51 conference room

Connie Thank you Asha

Screen 52 Your office TWO DAYS LATER - As you enter your office the phone rings

Asha Hello this is Asha I just wanted to let you know that the SBA has returned the protest They stated that the Contracting Officer needs to fill out the referral letter SBA also included a list of items that the protest package should contain I left the list in your inbox

Screen 53 Your office read the protest package that is in your inbox

Screen 54 Your office THREE DAYS LATER

Asha I will get with Connie to make sure what the correct information gets sent to the SBA Bye

Screen 55 Conference room Connie has called a meeting of the team to discuss the size protest from ELMO

Connie Thank you everyone for coming As you all know the protest has slowed down the process of awarding the contract This mishap about who should fill out the referral letter has caused us even more delay which potentially will impact the delivery schedule

Screen 56 Conference room

Connie The protest package has been completed and sent back to the SBA Everything should be in order and now we just wait to hear back from the SBA I brought in copies of the referral letter and the CDI representation letter for everyone to take a look at

Screen 57 Conference room Read the Size Determination document

Screen 58 Conference room CONSEQUENCE OF YOUR ACTIONS The SBA sent back the protest This resulted in a delay of SBAs protest decision As a result there may be potential

delays for contract award and impacts to the programs overall costperformanceschedule

baseline

Screen 59 Conference room

Jenny Oh ok we just need to include the solicitation and all of the offerors bids I can gather

that information up in no time

Screen 60 Conference room

Connie Are you sure that is correct I thought somewhere in the regulations I read that we

were supposed to supply a letter and that the protester was supposed to come up with all the

other information

Activity 45-3 Conference room

Question Connie What should a small business size representation protest contain

Choice 1 According to FAR 19302(c) a small business size representation protest shall include

the basis for the protest and a referral letter written by the Contracting Officer with

information pertaining to the solicitation - Proceed to screen 73

Choice 2 According to FAR 19302(c)(3) a small business size representation protest shall

include a referral letter written by the Program Manager with information addressing the

solicitation - Proceed to screen 61

Screen 61 Conference room

Connie Oh ok Asha needs to fill out the referral letter Letrsquos give her a call

Screen 62 Conference room

Asha Hello Asha speaking How may I help you

Screen 63 Conference room

Connie Hey Asha Itrsquos me Connie I have Jenny and the SBP here with me The SBP has just

informed me that the Program Manager needs to fill out the referral letter for the size protest

Screen 64 Conference room

Asha Sure I can fill out the referral letter Irsquoll have it completed by tomorrow Bye

Screen 65 Conference room

Connie Once I receive the letter from Asha I will send it off to SBA Thanks Have a great rest of your day

Screen 66 Hour office TWO DAYS LATER - As you enter your office the phone rings

Asha Hello this is Asha I just wanted to let you know that the SBA has returned the protest They stated that the Contracting Officer needs to fill out the referral letter SBA also included a list of items that the protest package should contain I left the list in your inbox

Screen 67 Your office

Asha I will get with Connie to make sure that the correct information gets sent to the SBA Bye

Screen 68 Your office Read the Protest Package letter

Screen 69 Conference room THREE DAYS LATER - Connie has called a meeting of the team to discuss the size protest from ELMO

Connie Thank you everyone for coming As you all know the protest has slowed down the

process of awarding the contract This mishap about who should fill out the referral letter has

cause us even more delay which potentially will impact the delivery schedule

Screen 70 conference room

Connie The protest package has been completed and sent back to the SBA Everything should be in order and now we just wait to hear back from the SBA I brought in copies of the referral letter and the CDI representation letter for everyone to take a look at

Screen 71 Conference room Read the Referral Letter CDI Representation and Size Determination documents

Screen 72 Conference room CONSEQUENCE OF YOUR ACTIONS The SBA sent the protest back This has resulted in a delay in the SBA deciding the protest and potential delay of award of the contract which could result in a delay in performance of delivery or service resulting in additional costs to the Government

Screen 73 Conference room

Connie Thatrsquos it Ok I can definitely take care of that today Thank you

Screen 74 Your office It has been several days since you spoke to Connie about the small

business representation protest requirements As you sit down to start your day you notice you

have a voicemail

Jenny Hello Can you stop by the conference room when you get this message Thanks

Screen 75 Conference room

Connie Hello Thanks for coming I just wanted to inform you that the protest package has

been completed and sent back to the SBA Everything should be in order and now we just wait

to hear back from the SBA I brought in copies of the referral letter and the CDI representation

letter for everyone to take a look at

Screen 76 Conference room Read the Referral Letter CDI Representation and Size

Determination documents

Screen 77 Conference room

FEEDBACK According to FAR 19302(c)(3) a small business representation protest shall include

the basis of the protest and include a referral letter signed by the Contracting Officer with

information pertaining to the solicitation and include (i) the protest and any accompanying

materials (ii) a copy of the size self-certification (iii) Identification of applicable size standard

(iv) a copy of the electronic link to the solicitation and any amendments (v) the name address

telephone number email address and number of the Contracting Officer (vi) identification of

the bid opening date or date of notification provided to unsuccessful offerors (vii) the date the

Contracting Officer received the protest (viii) a complete address and point of contact for the

protested concern An offeror the SBA or another interested party may protest the small

business representation of an offeror in a specific offer (FAR 19302(a)(2)) For competitive 8(a)

contracts the filing of a protest is limited to the Contracting Officer an offeror or the SBA The

Contracting Officer may also submit a small business representation protest at any time before

or after award (FAR 19302(a) and (b))

Screen 78 Your office A WEEK LATER - As you come back from lunch with Janet you get a visit

from Jenny She has not heard anything about the protest for several days and would like

clarification on the protest process with the SBA

Jenny Hi I just wanted to clarify the notification process of the protest It has been five days

since the documents were submitted to the SBA and we have not heard anything as of yet

Connie also gave me this form that I am unfamiliar with I put it in your inbox

Screen 79 Your office Read the SBA Form 355

Screen 80 Your office

Jenny Hey Janet what is the SBA Government Contracting Area Directors process after

receiving a size determination protest

Screen 81 Your office

Janet When SBA receives a size protest the SBA Area Director for Government Contracting or

designee will notify the contracting officer the protested concern and the protestor that the

protest has been received SBA will provide a blank copy of SBA Form 355 Application for Small

Business Determination to the concern whose size is at issue The protested concern or

concern whose size is at issue must return the completed SBA Form 355 and all other requested

information to SBA within 3 working days from the date of receipt of the blank form from SBA

SBA has discretion to grant an extension of time to file the form After receipt of a protest or a

request for a formal size determination the SBA Area Office will issue a formal size

determination within 15 business days if possible or within an extension granted by the

Contracting Officer in accordance with FAR 19302(e)

Screen 82 Your office

Jenny Thank you for clarifying the process Irsquoll see you both later

Screen 83 Your office

Janet Yes I have to get back to the office too Irsquoll see you later

Screen 84 Your office THE NEXT DAY - You re-enter your office from a break and receive a

phone call

Jenny Hello I forgot to ask when the Contracting Officer may award a contract that has a small

business size protest

Activity 84-1 Your office

Question Jenny When may the Contracting Officer award a contract that has been protested

Choice 1 Only after the SBA makes a determination of the small business representation

protest - Proceed to screen 85

Choice 2 When the SBA makes a decision or 15 business days have expired whichever comes

first however the CO may award a contract before an SBA determination is made when he

makes a written determination that award must be made to protect public interest - Proceed

to screen 105

Choice 3 The Contracting Officer does not have to wait for SBA to make the determination -

Proceed to screen 95

Screen 85 Your office

Jenny Ok so I guess we just wait until the SBA makes a determination Thanks

Screen 86 Program Managerrsquos Office THE NEXT DAY - Asha has requested that you come by

her office As you walk into Asharsquos office Connie is already there

Asha Connie was just informing me that she has decided to wait on SBAs decision about the

protest before awarding the contract Just want to inform the both of you that the incumbent

contract expires 18 days after the submittal of the protest to the SBA

Screen 87 Program Managerrsquos Office

Connie That is a good point Asha The risk of me waiting too long will result in expiration of the

contract A lapse between contracts is unacceptable as that may adversely impact the

warfighter

Activity 84-2 Program Managerrsquos Office

Question Connie When may the Contracting Officer award a contract that has been

protested

Choice 1 When the SBA makes a decision or 15 business days have expired whichever comes

first however the CO may award a contract before an SBA determination is made when he

makes a written determination that award must be made to protect public interest - Proceed

to screen 103

Choice 2 The Contracting Officer does not have to wait for SBA to make the determination -

Proceed to screen 88

Screen 88 Program Managerrsquos Office

Connie If that is the case letrsquos wait about a week and then award the contract Thanks

everyone

Screen 90 Your office FIVE DAYS LATER - SBA renders its decision on the required 15th

business day finding that the apparent successful offeror was not eligible for the award

Connie Meeting today at 2 PM

Screen 91 Conference room 2 PM - Connie has called in Asha Jenny and Ian to the

conference room

Connie As you are aware SBA came back with the decision that ELMO was not eligible for the

award Because it is so close to the completion of the source selection we may be able to go

back and award to the offeror that was second in line based on evaluation results

Screen 92 Conference room

Ian We would have to get the acquisition team together with legal SBA and leadership but

we might be able to accomplish that without having to start the procurement over again

Screen 93 Conference room

Connie Thanks everyone I will keep you posted

Screen 94 Conference room CONSEQUENCE OF YOUR ACTIONS Awarding the contract

without waiting for SBA to make a decision on the appeal is a violation of FAR policy (FAR

19302(g)(2) this type of violation could result in significant impacts inclusive of the

Contracting Officer having to terminate the unauthorized contract Additional fallout may occur

by having to re-accomplish the procurement entirely since the source selection was effectively

completed upon award of the unauthorized contract to the ineligible company Reprocurement

risk would be dependent upon the acquisition circumstances timing and viewpoints of the key

stakeholders and decision-makers

FEEDBACK After receiving a size protest involving a new procurement the Contracting Officer

shall not award the contract until the SBA has made a size determination or after 15 business

days have expired whichever comes first However the Contracting Officer may award a

contract before an SBA determination is made when shehe makes a written determination

that award must be made to protect the public interest (FAR 19302(g)(1))

Screen 95 Your office

Jenny Ok I will inform Connie Thanks

Screen 96 COrsquos office LATER THAT DAY - Connie has asked you to come by her office

Connie Hello Thanks for coming by Jenny tells me that you said that we do not need to wait

for SBA to make the determination about the size protest What happens if we award the

contract and then SBA finds the apparent successful offeror was not eligible for the award

Maybe you should double check the regulation

Activity 84-3 COrsquos office

Question Connie When may the Contracting Officer award a contract that has been

protested

Choice 1 Only after the SBA makes a determination of the small business representation

protest - Proceed to screen 97

Choice 2 When the SBA makes a decision or 15 business days have expired whichever comes

first however the CO may award a contract before an SBA determination is made when he

makes a written determination that award must be made to protect public interest - Proceed

to screen 104

Screen 97 COrsquos office

Connie Ok so I guess we just wait until the SBA makes a determination

Screen 98 Program Managerrsquos Office LATER THAT DAY - Asha has requested that you come by

her office As you walk into Asharsquos office Connie is already there

Asha Connie was just informing me that she has decided to wait on SBAs decision about the

protest before awarding the contract Just want to inform the both of you that the current

contract expires 18 days after the submittal of the protest to the SBA

Screen 99 Program Managerrsquos Office

Connie That is a good point Asha The risk of me waiting too long will result in expiration of the

incumbents contract and work stoppage for security guard services

Screen 100 Program Managerrsquos Office

Asha I looked up the regulation and it states that we should wait up to 15 business days and

then we may award the contract

Screen 101 Program Managerrsquos Office

Connie Thanks That is what we will do and hopefully SBA will respond before the 15 days

Screen 102 Program Managerrsquos Office CONSEQUENCE OF YOUR ACTIONS Not thoroughly

understanding the protest procedures and being uninformed of program needs and imp acts

could result in adverse impacts to the warfighter

FEEDBACK After receiving a size protest involving a new procurement the Contracting Officer

shall not award the contract until the SBA has made a size determination or after 15 business

days have expired whichever comes first However the Contracting Officer may award a

contract before an SBA determination is made when shehe makes a written determination

that award must be made to protect the public interest (FAR 19302(g)(1))

Screen 103 Program Managerrsquos Office

Connie Ok we wait for 15 business days That sounds much better Thanks - Proceed to

screen 106

Screen 104 COrsquos office

FEEDBACK After receiving a size protest involving a new procurement the Contracting Officer

shall not award the contract until the SBA has made a size determination or after 15 business

days have expired whichever comes first However the Contracting Officer may award a

contract before an SBA determination is made when shehe makes a written determination

that award must be made to protect the public interest (FAR 19302(g)(1))

Connie Ok we wait for 15 business days That sounds much better Thanks - Proceed to

screen 107

Screen 105 Your office

FEEDBACK After receiving a size protest involving a new procurement the Contracting Officer shall not award the contract until the SBA has made a size determination or after 15 business days have expired whichever comes first However the Contracting Officer may award a contract before an SBA determination is made when shehe makes a written determination that award must be made to protect the public interest (FAR 19302(g)(1))

Jenny Ok we wait for 15 business days Thanks - Proceed to screen 107

Screen 106 Program Managerrsquos office FEEDBACK After receiving a size protest involving a new procurement the Contracting Officer shall not award the contract until the SBA has made a size determination or after 15 business days have expired whichever comes first However the Contracting Officer may award a contract before an SBA determination is made when shehe makes a written determination that award must be made to protect the public interest (FAR 19302(g)(1))

Screen 107 Your office TWO DAYS LATER - Itrsquos been two days since your conversation with Jenny You notice that you have a new e-mail

To Acquisition Team Attachment Appeal Letter

From Grace CDI Contractor

Subject ELMO protest upheld

Hello

I just heard that ELMOs protest was upheld We believe the decision was based on erroneous information so we want to appeal Can you give me some guidance in the process for submitting an appeal

I have attached the appeal and size determination letters

Sincerely

Grace CDI Contractor

Activity 107-1 Your office

Question Grace What is the process for submitting an appeal for a size protest determination

Choice 1 IAW FAR 19302(h) an appeal may be filed with the SBA Office of Hearings and Appeals by any concern or interested party whose protest of the small business representation of another concern has been denied - Proceed to screen 111

Choice 2 An appeal may be filed by any concern or interested party to protest the small business representation of another concern to the Contracting Officer - Proceed to screen 108

Screen 108 Your office THREE DAYS LATER Connie comes by your office

Connie Hello there I just received the appeal from CDI through the mail channels and realized

that the protestor sent it to me in error I am having Jenny mail the appeal package back to CDI

Screen 109 Your office As you get back to your desk you notice that you have a voicemail

Grace Hello this is Grace from CDI Looks like I sent my appeal to the wrong location I was not

supposed to send it to the Contracting Officer I have re-sent the appeal to SBA OHA I hope

that its not too late because they will deny my appeal if untimely

Screen 110 Your office CONSEQUENCES OF YOUR ACTIONS Filing the appeal with the

Contracting Officer would result in lost time for the protestor because the appeal must be filed

with SBA OHA The concern encounters a greater risk of denial by SBA OHA if the appeal is not

filed within the time frame listed in Subpart C of 13 CFR 134

Screen 111 Your office The agency awaits confirmation from SBA OHA as to the standing of

the appeal and related impacts to the ongoing procurement You leave for the weekend

Screen 112 Your office FEEDBACK An appeal may be filed only when the small business

representation protest has been denied by the SBA Government Contracting Area Director and

within the time frames and in accordance with the procedures outlined in Subpart C of 13 CFR

Part 134 (IAW FAR 19302(h)) While a Contracting officer may file an appeal of their own the

concern or interested party must file the appeal to the SBA Office of Hearings and Appeals

(OHA) within the time frame and in accordance with the procedures listed in Subpart C of 13

CFR 134

Screen 113 Your office You return to the office on Monday morning You have a new e-mail

E-mail CDI appeal

To You SBP

From Connie Contracting Officer

Subject CDI Appeal

Hello

I would like to have a meeting with you and our lawyer Ian and Jenny to review the CDI size

appeal to the SBA Office of Hearings and Appeals Please check your calendar to see if you are

free tomorrow afternoon Let me know if you can make it

Sincerely

Connie

Contracting Officer

Screen 114 Conference room THE NEXT DAY - You Connie Jenny and the departmentrsquos

lawyer Ian are in a conference room

Ian Glad you could make the meeting We have been informed that Corporate Defenders is

appealing the SBAs decision Because of the potential impact the appeals process may have on

our current security guard services and before we make a decision on what we should do

about continuation of those services I would like to discuss the basis of the original size protest

by ELMO in the Corporate Defenders appeal to determine whether we think it will be denied

What was the basis of the original size protest by ELMO in the Corporate Defenders appeal

Screen 115 Conference room

Jenny The basis of the original protest is that Corporate Defenders Inc is affiliated with Rivers

under the ostensible subcontracting rule

Screen 116 Conference room

Connie Now that we have determined it is a size representation issue does this fall within the

affiliation under the ostensible subcontracting rule

Screen 117 Conference room

Ian The regulation defines an ostensible subcontractor as a subcontractor that performs

primary and vital requirements or when the prime contractor is unusually reliant upon the

subcontractor In this case CDI would be relying on the workforce and management of Rivers

to fulfill the requirements of the contract Therefore the combined size standards of CDI and

Rivers exceeds the size standard for this procurement according to 13 CFR 121103(h)(4)

Screen 118 Conference room

Connie The SBA Area Office found that under the ostensible subcontracting rule CDI was

considered a large business because of its affiliation with Rivers CDI appealed the ruling to the

SBA Office of Hearings and Appeals stating that CDI was not overly reliant on Rivers for

performing the contract and that CDI will serve as the prime contractor ELMO argued that

there is an ostensible subcontracting affiliation with CDI and Rivers and that Rivers is a large

business and thus CDI is ineligible for award What factors could lead to the appeal being

denied

Activity 118-1 Conference room

Question Connie What factors led to the appeal being denied

Choice 1 Rivers was a large business and thus ineligible for the award - Proceed to screen 119

Choice 2 CFR 121103(h)(4) states only the terms of the proposal are applicable to determining

the teaming agreement between the prime and subcontractor - Proceed to screen 123

Choice 3 There is ostensible subcontracting based on the fact that the proposed subcontractor

is the incumbent contractor and thus ineligible for award the prime contractor proposed to

hire the majority of the workforce from the subcontractor the prime contractors proposed

program manager previously served as program manager for the subcontractor on incumbent

contract and the prime contractor lacked experience with projects of the magnitude required

of this procurement This makes the offeror ineligible for award - Proceed to screen 127

Screen 119 Conference room

Ian I believe that is an incorrect assumption since Rivers was only going to perform 43 percent

of the work for a small business This alone would not make Rivers an ostensible subcontractor

Activity 118-2 Conference room

Question Connie What factors led to the appeal being denied

Choice 1 There is ostensible subcontracting based on the fact that the proposed subcontractor

was the incumbent contractor and thus ineligible for award - Proceed to screen 127

Choice 2 CFR 121103(h)(4) states that only the terms of the proposal are applicable to

determining the teaming agreement between the prime and subcontractor - Proceed to screen

120

Screen 120 Conference room

Ian I believe this is an incorrect assumption All aspects of the relationship between CDI and

Rivers are to be considered

Screen 121 Conference room

Connie Letrsquos reference back to the ruling and the reason why there was an ostensible

subcontract

Screen 122 Conference room

Connie It appears that there was ostensible subcontracting based on the fact that the

proposed subcontractor was the incumbent contractor and thus ineligible for award the prime

contractor proposed to hire the majority of the workforce from the subcontractor the prime

contractors proposed program manager previously served as program manager for the

subcontractor on incumbent contract and the prime contractor lacked experience with

projects of the magnitude required of this procurement - Proceed to screen 127

Screen 123 Conference room

Ian I believe this is an incorrect assumption All aspects of the relationship between CDI and

Rivers are to be considered

Activity 118-3 conference room

Question Ian What factors led to the appeal being denied

Choice 1 Rivers was a large business and thus ineligible for the award - Proceed to screen 124

Choice 2 There is ostensible subcontracting based on the fact that the proposed subcontractor

was the incumbent contractor and thus ineligible for award - Proceed to screen 127

Screen 124 Conference room

Ian I believe that is an incorrect assumption since Rivers was only going to perform 43 percent

of the work for a small business This alone would not make Rivers an ostensible subcontractor

Screen 125 Conference room

Connie Letrsquos reference back to the ruling and the reason why there was an ostensible

subcontract

Screen 126 Conference room

Connie It appears that there was ostensible subcontracting based on the fact that the

proposed subcontractor was the incumbent contractor and thus ineligible for award the prime

contractor proposed to hire the majority of the workforce from the subcontractor the p rime

contractors proposed program manager previously served as program manager for the

subcontractor on incumbent contract and the prime contractor lacked experience with

projects of the magnitude required of this procurement

Screen 127 Conference room

FEEDBACK CFR 121103(h)(4) states all aspects of the relationship between the prime and the

subcontractor are to be considered including but not limited to the terms of the proposal such

as contract management and the percentage of subcontract work agreement between the

prime and subcontractor and whether the subcontractor is the incumbent contractor and is

ineligible to submit a proposal because it exceeds the applicable size standard

Screen 128 Conference room

Connie I think we are good here Thank you for meeting Talk to you later

Screen 129 Conference room

SUMMARY Small Businesses are subject to a size protest on a small business set-aside before

award of a contract The SBA will normally make a determination of size status within 15 days

of receipt of protest To be considered by the SBA it is necessary that the protest be specific

and timely

FAR 19302 and 13 CFR Part 121 provide the specific rules for submitting a size representation

An appeal can be made to the SBA Office of Hearing and Appeals for re-consideration of an SBA

Area Office size protest decision In determining size protests the SBA will consider receipts

number of employees and affiliations of the protested concerns In examining affiliations the

SBA will look for an ostensible subcontracting relationship in which the subcontractor that

performs primary and vital requirements of a contract or a subcontractor upon which the prime

contractor is unusually reliant

If affiliation is found and the prime and the sub are considered large due then award cannot

be made If a size protest is not submitted timely or does not contain sufficient information to

make a size determination the protest will be dismissed The SBP role is to ensure that the

organization is aware of the regulations governing the SBA size protests

When a Small Business size representation protest andor an appeal to a size protest is

received the SBPs role is to advise and assist the acquisition team and Contracting Officer with

interpretation and application of corresponding FAR Part 19 and SBA 13 CFR requirements The

SBP may also advise the offeror or contractor on the procedures for submitting a protest prior

to issuing a solicitation After the solicitation has been issued all communication must be

through the Contracting Officer While this scenario discusses the procedures for a small

business representation protest the SBP needs to be aware that the socio-economic programs

ie HUBZones SDVOSB 8(a) and WOSB each have slightly different procedures which are set-

forth in FAR Part 19 Close attention must be made to both the applicable FAR Part 19 and SBA

13 CFR 121 requirements to provide proper advice and guidance on each type of protest and

appeal

Screen 130 Conference room This concludes the simulation The After Action Report (AAR) has

been created Download the AAR and review your performance in the simulation

After viewing the AAR use the browser close button to close this simulation and return to

screen 3 in the Size Protest lesson to complete this lesson

SBP220 Business Decisions for Small Business lesson 11 - Size Pr otest Simulation RESOURCES I PRINT I HELP

Summary

I Poge 5 of6 I Back Next

SBP220 Business Decisions for Small Business lesson 11 - Size Protest Simulation RESOURCES 1 PRINT 1 HELP

Summary

Closed Captioning Congratulations you have completed the Size Protest Simulation During this simulation you participated in activities common to interpreting data to verify the size of a small business Ensure that you review your After Action Report and if you did not respond correctly to all activities consider going through the simula tion again

I Pogo 5of6 I Back Next

SBP220 Business Decisions for Small Business lesson 11 - Size Protest Simulation RESOURCES I PRINT I HELP

Summary

Poge 5of6 I Back Next

SBP220 Business Decisions for Small Business Lesson 11 - Size Pr otest Simulation RESOURCES j PRINT j HElP

Lesson Completion

You have comple ted the con tent for this lesson

To continue select another lesson from the Table of Con tents on the le f t

If you have closed or hidden the Table of Contents select the Show T OC button at the t op in the Atlas navigation bar

~ I P o ge 6 of6 I Back Next

Activity 24-3 Your office

Question Ruben In accordance with 13 CFR 1211007 what is required for a size protest to be

considered by SBA

Choice 1 A concern is considered a small and a large depending on the particular size standard

Proceed to screen 38

Choice 2 The size status protest must relate to a particular procurement and be specific to

provide reasonable notice as to the grounds upon which the protested concernrsquos size is

questioned Proceed to screen 41

Screen 38 Your office

Ruben You do realize that a concerns size can fluctuate between small and large depending on

the particular procurement assigned NAICS size standards If you counsel industry you need to

realize this

Screen 39 Your office CONSEQUENCE OF YOUR ACTIONS 13 CFR 1211007(a) A protest

challenging the size of a concern which does not pertain to a particular procurement or sale will

not be acted on by SBA While it is true that a concern can be small andor large depending on

the procurements NAICS code and corresponding size standard the size protest would be

denied because it must be related to a particular procurement

Screen 40 Your office

Ruben You cannot keep informing industry and the agency in this way You need to refer to the

regulations before giving advice I will need to report this to the commander Do not give any

more advice without looking at the regulations I will see you next month Proceed to screen 43

Screen 41 Your office

Ruben That is correct In the future do not give any more advice without looking at the

regulations I will see you next month

Screen 42 Your office

Phil Thank you I will send out the protest today Goodbye

Screen 43 Your office FEEDBACK A protest challenging the size of a concern must pertain to a

particular procurement or sale Additionally a size protest must be sufficiently specific to

provide reasonable notice as to the grounds upon which the protested concerns size is

questioned No particular form is prescribed for a protest Where materials supporting the

protest are available they should be submitted with the protest Size protests which do not

meet 13 CFR 1211007 requirements will be dismissed by SBA

Screen 44 Your office TWO DAYS LATER

To You SBP Attachment Protest

From Connie Contracting Officer

Subject Size Protest

Hello

After lunch if you could please meet Jenny and I in the conference room I have received the

protest from ELMO and just want to make sure I handle my part The protest document is

attached to this message Please read it before going to see Jenny

Thanks

Connie

Contracting Officer

Screen 45 Conference room LATER THAT DAY

Connie Thanks for coming by ELMO has submitted their small business size representation protest Could you please tell me what needs to be included

Activity 45-1 Conference room

Question Connie What should a small business size representation protest contain

Choice 1 According to FAR 19302(c) a small business size representation protest shall include

the basis for the protest and a referral letter written by the Contracting Officer with

information pertaining to the solicitation - Proceed to screen 73

Choice 2 According to FAR 19302(c)(3) a small business size representation protest shall

include a referral letter written by the Program Manager with information addressing the

solicitation - Proceed to screen 46

Choice 3 According to FAR 19302(c)(3) a small business size representation protest shall

include a copy of the solicitation and all offerors bid - Proceed to screen 59

Screen 46 Conference room

Connie Oh ok Asha needs to fill out the referral letter Please give her a call

Screen 47 Conference room

Asha Hello Asha speaking How may I help you

Screen 48 Conference room

Connie Hey Asha Itrsquos me Connie I have Jenny and the SBP here with me The SBP has just informed me that the Program Manager needs to fill out the referral letter for the size protest

Screen 49 Conference room

Asha Are you sure I have never filled out a referral letter before What must a small business representation protest need to include

Activity 45-2 Conference room

Question Asha What should a small business size representation protest contain

Choice 1 According to FAR 19302(c)(3) a small business size representation protest shall include a copy of the solicitation and all offerorsrsquo bids - Proceed to screen 50

Choice 2 According to FAR 19302(c) a small business size representation protest shall include the basis for the protest and a referral letter written by the Contracting Officer with information pertaining to the solicitation - Proceed to screen 73

Screen 50 Conference room

Asha Ok if you want me to fill out the referral letter I can have it completed by tomorrow You will need to gather the solicitation and offerorsrsquo bids

Screen 51 conference room

Connie Thank you Asha

Screen 52 Your office TWO DAYS LATER - As you enter your office the phone rings

Asha Hello this is Asha I just wanted to let you know that the SBA has returned the protest They stated that the Contracting Officer needs to fill out the referral letter SBA also included a list of items that the protest package should contain I left the list in your inbox

Screen 53 Your office read the protest package that is in your inbox

Screen 54 Your office THREE DAYS LATER

Asha I will get with Connie to make sure what the correct information gets sent to the SBA Bye

Screen 55 Conference room Connie has called a meeting of the team to discuss the size protest from ELMO

Connie Thank you everyone for coming As you all know the protest has slowed down the process of awarding the contract This mishap about who should fill out the referral letter has caused us even more delay which potentially will impact the delivery schedule

Screen 56 Conference room

Connie The protest package has been completed and sent back to the SBA Everything should be in order and now we just wait to hear back from the SBA I brought in copies of the referral letter and the CDI representation letter for everyone to take a look at

Screen 57 Conference room Read the Size Determination document

Screen 58 Conference room CONSEQUENCE OF YOUR ACTIONS The SBA sent back the protest This resulted in a delay of SBAs protest decision As a result there may be potential

delays for contract award and impacts to the programs overall costperformanceschedule

baseline

Screen 59 Conference room

Jenny Oh ok we just need to include the solicitation and all of the offerors bids I can gather

that information up in no time

Screen 60 Conference room

Connie Are you sure that is correct I thought somewhere in the regulations I read that we

were supposed to supply a letter and that the protester was supposed to come up with all the

other information

Activity 45-3 Conference room

Question Connie What should a small business size representation protest contain

Choice 1 According to FAR 19302(c) a small business size representation protest shall include

the basis for the protest and a referral letter written by the Contracting Officer with

information pertaining to the solicitation - Proceed to screen 73

Choice 2 According to FAR 19302(c)(3) a small business size representation protest shall

include a referral letter written by the Program Manager with information addressing the

solicitation - Proceed to screen 61

Screen 61 Conference room

Connie Oh ok Asha needs to fill out the referral letter Letrsquos give her a call

Screen 62 Conference room

Asha Hello Asha speaking How may I help you

Screen 63 Conference room

Connie Hey Asha Itrsquos me Connie I have Jenny and the SBP here with me The SBP has just

informed me that the Program Manager needs to fill out the referral letter for the size protest

Screen 64 Conference room

Asha Sure I can fill out the referral letter Irsquoll have it completed by tomorrow Bye

Screen 65 Conference room

Connie Once I receive the letter from Asha I will send it off to SBA Thanks Have a great rest of your day

Screen 66 Hour office TWO DAYS LATER - As you enter your office the phone rings

Asha Hello this is Asha I just wanted to let you know that the SBA has returned the protest They stated that the Contracting Officer needs to fill out the referral letter SBA also included a list of items that the protest package should contain I left the list in your inbox

Screen 67 Your office

Asha I will get with Connie to make sure that the correct information gets sent to the SBA Bye

Screen 68 Your office Read the Protest Package letter

Screen 69 Conference room THREE DAYS LATER - Connie has called a meeting of the team to discuss the size protest from ELMO

Connie Thank you everyone for coming As you all know the protest has slowed down the

process of awarding the contract This mishap about who should fill out the referral letter has

cause us even more delay which potentially will impact the delivery schedule

Screen 70 conference room

Connie The protest package has been completed and sent back to the SBA Everything should be in order and now we just wait to hear back from the SBA I brought in copies of the referral letter and the CDI representation letter for everyone to take a look at

Screen 71 Conference room Read the Referral Letter CDI Representation and Size Determination documents

Screen 72 Conference room CONSEQUENCE OF YOUR ACTIONS The SBA sent the protest back This has resulted in a delay in the SBA deciding the protest and potential delay of award of the contract which could result in a delay in performance of delivery or service resulting in additional costs to the Government

Screen 73 Conference room

Connie Thatrsquos it Ok I can definitely take care of that today Thank you

Screen 74 Your office It has been several days since you spoke to Connie about the small

business representation protest requirements As you sit down to start your day you notice you

have a voicemail

Jenny Hello Can you stop by the conference room when you get this message Thanks

Screen 75 Conference room

Connie Hello Thanks for coming I just wanted to inform you that the protest package has

been completed and sent back to the SBA Everything should be in order and now we just wait

to hear back from the SBA I brought in copies of the referral letter and the CDI representation

letter for everyone to take a look at

Screen 76 Conference room Read the Referral Letter CDI Representation and Size

Determination documents

Screen 77 Conference room

FEEDBACK According to FAR 19302(c)(3) a small business representation protest shall include

the basis of the protest and include a referral letter signed by the Contracting Officer with

information pertaining to the solicitation and include (i) the protest and any accompanying

materials (ii) a copy of the size self-certification (iii) Identification of applicable size standard

(iv) a copy of the electronic link to the solicitation and any amendments (v) the name address

telephone number email address and number of the Contracting Officer (vi) identification of

the bid opening date or date of notification provided to unsuccessful offerors (vii) the date the

Contracting Officer received the protest (viii) a complete address and point of contact for the

protested concern An offeror the SBA or another interested party may protest the small

business representation of an offeror in a specific offer (FAR 19302(a)(2)) For competitive 8(a)

contracts the filing of a protest is limited to the Contracting Officer an offeror or the SBA The

Contracting Officer may also submit a small business representation protest at any time before

or after award (FAR 19302(a) and (b))

Screen 78 Your office A WEEK LATER - As you come back from lunch with Janet you get a visit

from Jenny She has not heard anything about the protest for several days and would like

clarification on the protest process with the SBA

Jenny Hi I just wanted to clarify the notification process of the protest It has been five days

since the documents were submitted to the SBA and we have not heard anything as of yet

Connie also gave me this form that I am unfamiliar with I put it in your inbox

Screen 79 Your office Read the SBA Form 355

Screen 80 Your office

Jenny Hey Janet what is the SBA Government Contracting Area Directors process after

receiving a size determination protest

Screen 81 Your office

Janet When SBA receives a size protest the SBA Area Director for Government Contracting or

designee will notify the contracting officer the protested concern and the protestor that the

protest has been received SBA will provide a blank copy of SBA Form 355 Application for Small

Business Determination to the concern whose size is at issue The protested concern or

concern whose size is at issue must return the completed SBA Form 355 and all other requested

information to SBA within 3 working days from the date of receipt of the blank form from SBA

SBA has discretion to grant an extension of time to file the form After receipt of a protest or a

request for a formal size determination the SBA Area Office will issue a formal size

determination within 15 business days if possible or within an extension granted by the

Contracting Officer in accordance with FAR 19302(e)

Screen 82 Your office

Jenny Thank you for clarifying the process Irsquoll see you both later

Screen 83 Your office

Janet Yes I have to get back to the office too Irsquoll see you later

Screen 84 Your office THE NEXT DAY - You re-enter your office from a break and receive a

phone call

Jenny Hello I forgot to ask when the Contracting Officer may award a contract that has a small

business size protest

Activity 84-1 Your office

Question Jenny When may the Contracting Officer award a contract that has been protested

Choice 1 Only after the SBA makes a determination of the small business representation

protest - Proceed to screen 85

Choice 2 When the SBA makes a decision or 15 business days have expired whichever comes

first however the CO may award a contract before an SBA determination is made when he

makes a written determination that award must be made to protect public interest - Proceed

to screen 105

Choice 3 The Contracting Officer does not have to wait for SBA to make the determination -

Proceed to screen 95

Screen 85 Your office

Jenny Ok so I guess we just wait until the SBA makes a determination Thanks

Screen 86 Program Managerrsquos Office THE NEXT DAY - Asha has requested that you come by

her office As you walk into Asharsquos office Connie is already there

Asha Connie was just informing me that she has decided to wait on SBAs decision about the

protest before awarding the contract Just want to inform the both of you that the incumbent

contract expires 18 days after the submittal of the protest to the SBA

Screen 87 Program Managerrsquos Office

Connie That is a good point Asha The risk of me waiting too long will result in expiration of the

contract A lapse between contracts is unacceptable as that may adversely impact the

warfighter

Activity 84-2 Program Managerrsquos Office

Question Connie When may the Contracting Officer award a contract that has been

protested

Choice 1 When the SBA makes a decision or 15 business days have expired whichever comes

first however the CO may award a contract before an SBA determination is made when he

makes a written determination that award must be made to protect public interest - Proceed

to screen 103

Choice 2 The Contracting Officer does not have to wait for SBA to make the determination -

Proceed to screen 88

Screen 88 Program Managerrsquos Office

Connie If that is the case letrsquos wait about a week and then award the contract Thanks

everyone

Screen 90 Your office FIVE DAYS LATER - SBA renders its decision on the required 15th

business day finding that the apparent successful offeror was not eligible for the award

Connie Meeting today at 2 PM

Screen 91 Conference room 2 PM - Connie has called in Asha Jenny and Ian to the

conference room

Connie As you are aware SBA came back with the decision that ELMO was not eligible for the

award Because it is so close to the completion of the source selection we may be able to go

back and award to the offeror that was second in line based on evaluation results

Screen 92 Conference room

Ian We would have to get the acquisition team together with legal SBA and leadership but

we might be able to accomplish that without having to start the procurement over again

Screen 93 Conference room

Connie Thanks everyone I will keep you posted

Screen 94 Conference room CONSEQUENCE OF YOUR ACTIONS Awarding the contract

without waiting for SBA to make a decision on the appeal is a violation of FAR policy (FAR

19302(g)(2) this type of violation could result in significant impacts inclusive of the

Contracting Officer having to terminate the unauthorized contract Additional fallout may occur

by having to re-accomplish the procurement entirely since the source selection was effectively

completed upon award of the unauthorized contract to the ineligible company Reprocurement

risk would be dependent upon the acquisition circumstances timing and viewpoints of the key

stakeholders and decision-makers

FEEDBACK After receiving a size protest involving a new procurement the Contracting Officer

shall not award the contract until the SBA has made a size determination or after 15 business

days have expired whichever comes first However the Contracting Officer may award a

contract before an SBA determination is made when shehe makes a written determination

that award must be made to protect the public interest (FAR 19302(g)(1))

Screen 95 Your office

Jenny Ok I will inform Connie Thanks

Screen 96 COrsquos office LATER THAT DAY - Connie has asked you to come by her office

Connie Hello Thanks for coming by Jenny tells me that you said that we do not need to wait

for SBA to make the determination about the size protest What happens if we award the

contract and then SBA finds the apparent successful offeror was not eligible for the award

Maybe you should double check the regulation

Activity 84-3 COrsquos office

Question Connie When may the Contracting Officer award a contract that has been

protested

Choice 1 Only after the SBA makes a determination of the small business representation

protest - Proceed to screen 97

Choice 2 When the SBA makes a decision or 15 business days have expired whichever comes

first however the CO may award a contract before an SBA determination is made when he

makes a written determination that award must be made to protect public interest - Proceed

to screen 104

Screen 97 COrsquos office

Connie Ok so I guess we just wait until the SBA makes a determination

Screen 98 Program Managerrsquos Office LATER THAT DAY - Asha has requested that you come by

her office As you walk into Asharsquos office Connie is already there

Asha Connie was just informing me that she has decided to wait on SBAs decision about the

protest before awarding the contract Just want to inform the both of you that the current

contract expires 18 days after the submittal of the protest to the SBA

Screen 99 Program Managerrsquos Office

Connie That is a good point Asha The risk of me waiting too long will result in expiration of the

incumbents contract and work stoppage for security guard services

Screen 100 Program Managerrsquos Office

Asha I looked up the regulation and it states that we should wait up to 15 business days and

then we may award the contract

Screen 101 Program Managerrsquos Office

Connie Thanks That is what we will do and hopefully SBA will respond before the 15 days

Screen 102 Program Managerrsquos Office CONSEQUENCE OF YOUR ACTIONS Not thoroughly

understanding the protest procedures and being uninformed of program needs and imp acts

could result in adverse impacts to the warfighter

FEEDBACK After receiving a size protest involving a new procurement the Contracting Officer

shall not award the contract until the SBA has made a size determination or after 15 business

days have expired whichever comes first However the Contracting Officer may award a

contract before an SBA determination is made when shehe makes a written determination

that award must be made to protect the public interest (FAR 19302(g)(1))

Screen 103 Program Managerrsquos Office

Connie Ok we wait for 15 business days That sounds much better Thanks - Proceed to

screen 106

Screen 104 COrsquos office

FEEDBACK After receiving a size protest involving a new procurement the Contracting Officer

shall not award the contract until the SBA has made a size determination or after 15 business

days have expired whichever comes first However the Contracting Officer may award a

contract before an SBA determination is made when shehe makes a written determination

that award must be made to protect the public interest (FAR 19302(g)(1))

Connie Ok we wait for 15 business days That sounds much better Thanks - Proceed to

screen 107

Screen 105 Your office

FEEDBACK After receiving a size protest involving a new procurement the Contracting Officer shall not award the contract until the SBA has made a size determination or after 15 business days have expired whichever comes first However the Contracting Officer may award a contract before an SBA determination is made when shehe makes a written determination that award must be made to protect the public interest (FAR 19302(g)(1))

Jenny Ok we wait for 15 business days Thanks - Proceed to screen 107

Screen 106 Program Managerrsquos office FEEDBACK After receiving a size protest involving a new procurement the Contracting Officer shall not award the contract until the SBA has made a size determination or after 15 business days have expired whichever comes first However the Contracting Officer may award a contract before an SBA determination is made when shehe makes a written determination that award must be made to protect the public interest (FAR 19302(g)(1))

Screen 107 Your office TWO DAYS LATER - Itrsquos been two days since your conversation with Jenny You notice that you have a new e-mail

To Acquisition Team Attachment Appeal Letter

From Grace CDI Contractor

Subject ELMO protest upheld

Hello

I just heard that ELMOs protest was upheld We believe the decision was based on erroneous information so we want to appeal Can you give me some guidance in the process for submitting an appeal

I have attached the appeal and size determination letters

Sincerely

Grace CDI Contractor

Activity 107-1 Your office

Question Grace What is the process for submitting an appeal for a size protest determination

Choice 1 IAW FAR 19302(h) an appeal may be filed with the SBA Office of Hearings and Appeals by any concern or interested party whose protest of the small business representation of another concern has been denied - Proceed to screen 111

Choice 2 An appeal may be filed by any concern or interested party to protest the small business representation of another concern to the Contracting Officer - Proceed to screen 108

Screen 108 Your office THREE DAYS LATER Connie comes by your office

Connie Hello there I just received the appeal from CDI through the mail channels and realized

that the protestor sent it to me in error I am having Jenny mail the appeal package back to CDI

Screen 109 Your office As you get back to your desk you notice that you have a voicemail

Grace Hello this is Grace from CDI Looks like I sent my appeal to the wrong location I was not

supposed to send it to the Contracting Officer I have re-sent the appeal to SBA OHA I hope

that its not too late because they will deny my appeal if untimely

Screen 110 Your office CONSEQUENCES OF YOUR ACTIONS Filing the appeal with the

Contracting Officer would result in lost time for the protestor because the appeal must be filed

with SBA OHA The concern encounters a greater risk of denial by SBA OHA if the appeal is not

filed within the time frame listed in Subpart C of 13 CFR 134

Screen 111 Your office The agency awaits confirmation from SBA OHA as to the standing of

the appeal and related impacts to the ongoing procurement You leave for the weekend

Screen 112 Your office FEEDBACK An appeal may be filed only when the small business

representation protest has been denied by the SBA Government Contracting Area Director and

within the time frames and in accordance with the procedures outlined in Subpart C of 13 CFR

Part 134 (IAW FAR 19302(h)) While a Contracting officer may file an appeal of their own the

concern or interested party must file the appeal to the SBA Office of Hearings and Appeals

(OHA) within the time frame and in accordance with the procedures listed in Subpart C of 13

CFR 134

Screen 113 Your office You return to the office on Monday morning You have a new e-mail

E-mail CDI appeal

To You SBP

From Connie Contracting Officer

Subject CDI Appeal

Hello

I would like to have a meeting with you and our lawyer Ian and Jenny to review the CDI size

appeal to the SBA Office of Hearings and Appeals Please check your calendar to see if you are

free tomorrow afternoon Let me know if you can make it

Sincerely

Connie

Contracting Officer

Screen 114 Conference room THE NEXT DAY - You Connie Jenny and the departmentrsquos

lawyer Ian are in a conference room

Ian Glad you could make the meeting We have been informed that Corporate Defenders is

appealing the SBAs decision Because of the potential impact the appeals process may have on

our current security guard services and before we make a decision on what we should do

about continuation of those services I would like to discuss the basis of the original size protest

by ELMO in the Corporate Defenders appeal to determine whether we think it will be denied

What was the basis of the original size protest by ELMO in the Corporate Defenders appeal

Screen 115 Conference room

Jenny The basis of the original protest is that Corporate Defenders Inc is affiliated with Rivers

under the ostensible subcontracting rule

Screen 116 Conference room

Connie Now that we have determined it is a size representation issue does this fall within the

affiliation under the ostensible subcontracting rule

Screen 117 Conference room

Ian The regulation defines an ostensible subcontractor as a subcontractor that performs

primary and vital requirements or when the prime contractor is unusually reliant upon the

subcontractor In this case CDI would be relying on the workforce and management of Rivers

to fulfill the requirements of the contract Therefore the combined size standards of CDI and

Rivers exceeds the size standard for this procurement according to 13 CFR 121103(h)(4)

Screen 118 Conference room

Connie The SBA Area Office found that under the ostensible subcontracting rule CDI was

considered a large business because of its affiliation with Rivers CDI appealed the ruling to the

SBA Office of Hearings and Appeals stating that CDI was not overly reliant on Rivers for

performing the contract and that CDI will serve as the prime contractor ELMO argued that

there is an ostensible subcontracting affiliation with CDI and Rivers and that Rivers is a large

business and thus CDI is ineligible for award What factors could lead to the appeal being

denied

Activity 118-1 Conference room

Question Connie What factors led to the appeal being denied

Choice 1 Rivers was a large business and thus ineligible for the award - Proceed to screen 119

Choice 2 CFR 121103(h)(4) states only the terms of the proposal are applicable to determining

the teaming agreement between the prime and subcontractor - Proceed to screen 123

Choice 3 There is ostensible subcontracting based on the fact that the proposed subcontractor

is the incumbent contractor and thus ineligible for award the prime contractor proposed to

hire the majority of the workforce from the subcontractor the prime contractors proposed

program manager previously served as program manager for the subcontractor on incumbent

contract and the prime contractor lacked experience with projects of the magnitude required

of this procurement This makes the offeror ineligible for award - Proceed to screen 127

Screen 119 Conference room

Ian I believe that is an incorrect assumption since Rivers was only going to perform 43 percent

of the work for a small business This alone would not make Rivers an ostensible subcontractor

Activity 118-2 Conference room

Question Connie What factors led to the appeal being denied

Choice 1 There is ostensible subcontracting based on the fact that the proposed subcontractor

was the incumbent contractor and thus ineligible for award - Proceed to screen 127

Choice 2 CFR 121103(h)(4) states that only the terms of the proposal are applicable to

determining the teaming agreement between the prime and subcontractor - Proceed to screen

120

Screen 120 Conference room

Ian I believe this is an incorrect assumption All aspects of the relationship between CDI and

Rivers are to be considered

Screen 121 Conference room

Connie Letrsquos reference back to the ruling and the reason why there was an ostensible

subcontract

Screen 122 Conference room

Connie It appears that there was ostensible subcontracting based on the fact that the

proposed subcontractor was the incumbent contractor and thus ineligible for award the prime

contractor proposed to hire the majority of the workforce from the subcontractor the prime

contractors proposed program manager previously served as program manager for the

subcontractor on incumbent contract and the prime contractor lacked experience with

projects of the magnitude required of this procurement - Proceed to screen 127

Screen 123 Conference room

Ian I believe this is an incorrect assumption All aspects of the relationship between CDI and

Rivers are to be considered

Activity 118-3 conference room

Question Ian What factors led to the appeal being denied

Choice 1 Rivers was a large business and thus ineligible for the award - Proceed to screen 124

Choice 2 There is ostensible subcontracting based on the fact that the proposed subcontractor

was the incumbent contractor and thus ineligible for award - Proceed to screen 127

Screen 124 Conference room

Ian I believe that is an incorrect assumption since Rivers was only going to perform 43 percent

of the work for a small business This alone would not make Rivers an ostensible subcontractor

Screen 125 Conference room

Connie Letrsquos reference back to the ruling and the reason why there was an ostensible

subcontract

Screen 126 Conference room

Connie It appears that there was ostensible subcontracting based on the fact that the

proposed subcontractor was the incumbent contractor and thus ineligible for award the prime

contractor proposed to hire the majority of the workforce from the subcontractor the p rime

contractors proposed program manager previously served as program manager for the

subcontractor on incumbent contract and the prime contractor lacked experience with

projects of the magnitude required of this procurement

Screen 127 Conference room

FEEDBACK CFR 121103(h)(4) states all aspects of the relationship between the prime and the

subcontractor are to be considered including but not limited to the terms of the proposal such

as contract management and the percentage of subcontract work agreement between the

prime and subcontractor and whether the subcontractor is the incumbent contractor and is

ineligible to submit a proposal because it exceeds the applicable size standard

Screen 128 Conference room

Connie I think we are good here Thank you for meeting Talk to you later

Screen 129 Conference room

SUMMARY Small Businesses are subject to a size protest on a small business set-aside before

award of a contract The SBA will normally make a determination of size status within 15 days

of receipt of protest To be considered by the SBA it is necessary that the protest be specific

and timely

FAR 19302 and 13 CFR Part 121 provide the specific rules for submitting a size representation

An appeal can be made to the SBA Office of Hearing and Appeals for re-consideration of an SBA

Area Office size protest decision In determining size protests the SBA will consider receipts

number of employees and affiliations of the protested concerns In examining affiliations the

SBA will look for an ostensible subcontracting relationship in which the subcontractor that

performs primary and vital requirements of a contract or a subcontractor upon which the prime

contractor is unusually reliant

If affiliation is found and the prime and the sub are considered large due then award cannot

be made If a size protest is not submitted timely or does not contain sufficient information to

make a size determination the protest will be dismissed The SBP role is to ensure that the

organization is aware of the regulations governing the SBA size protests

When a Small Business size representation protest andor an appeal to a size protest is

received the SBPs role is to advise and assist the acquisition team and Contracting Officer with

interpretation and application of corresponding FAR Part 19 and SBA 13 CFR requirements The

SBP may also advise the offeror or contractor on the procedures for submitting a protest prior

to issuing a solicitation After the solicitation has been issued all communication must be

through the Contracting Officer While this scenario discusses the procedures for a small

business representation protest the SBP needs to be aware that the socio-economic programs

ie HUBZones SDVOSB 8(a) and WOSB each have slightly different procedures which are set-

forth in FAR Part 19 Close attention must be made to both the applicable FAR Part 19 and SBA

13 CFR 121 requirements to provide proper advice and guidance on each type of protest and

appeal

Screen 130 Conference room This concludes the simulation The After Action Report (AAR) has

been created Download the AAR and review your performance in the simulation

After viewing the AAR use the browser close button to close this simulation and return to

screen 3 in the Size Protest lesson to complete this lesson

SBP220 Business Decisions for Small Business lesson 11 - Size Pr otest Simulation RESOURCES I PRINT I HELP

Summary

I Poge 5 of6 I Back Next

SBP220 Business Decisions for Small Business lesson 11 - Size Protest Simulation RESOURCES 1 PRINT 1 HELP

Summary

Closed Captioning Congratulations you have completed the Size Protest Simulation During this simulation you participated in activities common to interpreting data to verify the size of a small business Ensure that you review your After Action Report and if you did not respond correctly to all activities consider going through the simula tion again

I Pogo 5of6 I Back Next

SBP220 Business Decisions for Small Business lesson 11 - Size Protest Simulation RESOURCES I PRINT I HELP

Summary

Poge 5of6 I Back Next

SBP220 Business Decisions for Small Business Lesson 11 - Size Pr otest Simulation RESOURCES j PRINT j HElP

Lesson Completion

You have comple ted the con tent for this lesson

To continue select another lesson from the Table of Con tents on the le f t

If you have closed or hidden the Table of Contents select the Show T OC button at the t op in the Atlas navigation bar

~ I P o ge 6 of6 I Back Next

Screen 44 Your office TWO DAYS LATER

To You SBP Attachment Protest

From Connie Contracting Officer

Subject Size Protest

Hello

After lunch if you could please meet Jenny and I in the conference room I have received the

protest from ELMO and just want to make sure I handle my part The protest document is

attached to this message Please read it before going to see Jenny

Thanks

Connie

Contracting Officer

Screen 45 Conference room LATER THAT DAY

Connie Thanks for coming by ELMO has submitted their small business size representation protest Could you please tell me what needs to be included

Activity 45-1 Conference room

Question Connie What should a small business size representation protest contain

Choice 1 According to FAR 19302(c) a small business size representation protest shall include

the basis for the protest and a referral letter written by the Contracting Officer with

information pertaining to the solicitation - Proceed to screen 73

Choice 2 According to FAR 19302(c)(3) a small business size representation protest shall

include a referral letter written by the Program Manager with information addressing the

solicitation - Proceed to screen 46

Choice 3 According to FAR 19302(c)(3) a small business size representation protest shall

include a copy of the solicitation and all offerors bid - Proceed to screen 59

Screen 46 Conference room

Connie Oh ok Asha needs to fill out the referral letter Please give her a call

Screen 47 Conference room

Asha Hello Asha speaking How may I help you

Screen 48 Conference room

Connie Hey Asha Itrsquos me Connie I have Jenny and the SBP here with me The SBP has just informed me that the Program Manager needs to fill out the referral letter for the size protest

Screen 49 Conference room

Asha Are you sure I have never filled out a referral letter before What must a small business representation protest need to include

Activity 45-2 Conference room

Question Asha What should a small business size representation protest contain

Choice 1 According to FAR 19302(c)(3) a small business size representation protest shall include a copy of the solicitation and all offerorsrsquo bids - Proceed to screen 50

Choice 2 According to FAR 19302(c) a small business size representation protest shall include the basis for the protest and a referral letter written by the Contracting Officer with information pertaining to the solicitation - Proceed to screen 73

Screen 50 Conference room

Asha Ok if you want me to fill out the referral letter I can have it completed by tomorrow You will need to gather the solicitation and offerorsrsquo bids

Screen 51 conference room

Connie Thank you Asha

Screen 52 Your office TWO DAYS LATER - As you enter your office the phone rings

Asha Hello this is Asha I just wanted to let you know that the SBA has returned the protest They stated that the Contracting Officer needs to fill out the referral letter SBA also included a list of items that the protest package should contain I left the list in your inbox

Screen 53 Your office read the protest package that is in your inbox

Screen 54 Your office THREE DAYS LATER

Asha I will get with Connie to make sure what the correct information gets sent to the SBA Bye

Screen 55 Conference room Connie has called a meeting of the team to discuss the size protest from ELMO

Connie Thank you everyone for coming As you all know the protest has slowed down the process of awarding the contract This mishap about who should fill out the referral letter has caused us even more delay which potentially will impact the delivery schedule

Screen 56 Conference room

Connie The protest package has been completed and sent back to the SBA Everything should be in order and now we just wait to hear back from the SBA I brought in copies of the referral letter and the CDI representation letter for everyone to take a look at

Screen 57 Conference room Read the Size Determination document

Screen 58 Conference room CONSEQUENCE OF YOUR ACTIONS The SBA sent back the protest This resulted in a delay of SBAs protest decision As a result there may be potential

delays for contract award and impacts to the programs overall costperformanceschedule

baseline

Screen 59 Conference room

Jenny Oh ok we just need to include the solicitation and all of the offerors bids I can gather

that information up in no time

Screen 60 Conference room

Connie Are you sure that is correct I thought somewhere in the regulations I read that we

were supposed to supply a letter and that the protester was supposed to come up with all the

other information

Activity 45-3 Conference room

Question Connie What should a small business size representation protest contain

Choice 1 According to FAR 19302(c) a small business size representation protest shall include

the basis for the protest and a referral letter written by the Contracting Officer with

information pertaining to the solicitation - Proceed to screen 73

Choice 2 According to FAR 19302(c)(3) a small business size representation protest shall

include a referral letter written by the Program Manager with information addressing the

solicitation - Proceed to screen 61

Screen 61 Conference room

Connie Oh ok Asha needs to fill out the referral letter Letrsquos give her a call

Screen 62 Conference room

Asha Hello Asha speaking How may I help you

Screen 63 Conference room

Connie Hey Asha Itrsquos me Connie I have Jenny and the SBP here with me The SBP has just

informed me that the Program Manager needs to fill out the referral letter for the size protest

Screen 64 Conference room

Asha Sure I can fill out the referral letter Irsquoll have it completed by tomorrow Bye

Screen 65 Conference room

Connie Once I receive the letter from Asha I will send it off to SBA Thanks Have a great rest of your day

Screen 66 Hour office TWO DAYS LATER - As you enter your office the phone rings

Asha Hello this is Asha I just wanted to let you know that the SBA has returned the protest They stated that the Contracting Officer needs to fill out the referral letter SBA also included a list of items that the protest package should contain I left the list in your inbox

Screen 67 Your office

Asha I will get with Connie to make sure that the correct information gets sent to the SBA Bye

Screen 68 Your office Read the Protest Package letter

Screen 69 Conference room THREE DAYS LATER - Connie has called a meeting of the team to discuss the size protest from ELMO

Connie Thank you everyone for coming As you all know the protest has slowed down the

process of awarding the contract This mishap about who should fill out the referral letter has

cause us even more delay which potentially will impact the delivery schedule

Screen 70 conference room

Connie The protest package has been completed and sent back to the SBA Everything should be in order and now we just wait to hear back from the SBA I brought in copies of the referral letter and the CDI representation letter for everyone to take a look at

Screen 71 Conference room Read the Referral Letter CDI Representation and Size Determination documents

Screen 72 Conference room CONSEQUENCE OF YOUR ACTIONS The SBA sent the protest back This has resulted in a delay in the SBA deciding the protest and potential delay of award of the contract which could result in a delay in performance of delivery or service resulting in additional costs to the Government

Screen 73 Conference room

Connie Thatrsquos it Ok I can definitely take care of that today Thank you

Screen 74 Your office It has been several days since you spoke to Connie about the small

business representation protest requirements As you sit down to start your day you notice you

have a voicemail

Jenny Hello Can you stop by the conference room when you get this message Thanks

Screen 75 Conference room

Connie Hello Thanks for coming I just wanted to inform you that the protest package has

been completed and sent back to the SBA Everything should be in order and now we just wait

to hear back from the SBA I brought in copies of the referral letter and the CDI representation

letter for everyone to take a look at

Screen 76 Conference room Read the Referral Letter CDI Representation and Size

Determination documents

Screen 77 Conference room

FEEDBACK According to FAR 19302(c)(3) a small business representation protest shall include

the basis of the protest and include a referral letter signed by the Contracting Officer with

information pertaining to the solicitation and include (i) the protest and any accompanying

materials (ii) a copy of the size self-certification (iii) Identification of applicable size standard

(iv) a copy of the electronic link to the solicitation and any amendments (v) the name address

telephone number email address and number of the Contracting Officer (vi) identification of

the bid opening date or date of notification provided to unsuccessful offerors (vii) the date the

Contracting Officer received the protest (viii) a complete address and point of contact for the

protested concern An offeror the SBA or another interested party may protest the small

business representation of an offeror in a specific offer (FAR 19302(a)(2)) For competitive 8(a)

contracts the filing of a protest is limited to the Contracting Officer an offeror or the SBA The

Contracting Officer may also submit a small business representation protest at any time before

or after award (FAR 19302(a) and (b))

Screen 78 Your office A WEEK LATER - As you come back from lunch with Janet you get a visit

from Jenny She has not heard anything about the protest for several days and would like

clarification on the protest process with the SBA

Jenny Hi I just wanted to clarify the notification process of the protest It has been five days

since the documents were submitted to the SBA and we have not heard anything as of yet

Connie also gave me this form that I am unfamiliar with I put it in your inbox

Screen 79 Your office Read the SBA Form 355

Screen 80 Your office

Jenny Hey Janet what is the SBA Government Contracting Area Directors process after

receiving a size determination protest

Screen 81 Your office

Janet When SBA receives a size protest the SBA Area Director for Government Contracting or

designee will notify the contracting officer the protested concern and the protestor that the

protest has been received SBA will provide a blank copy of SBA Form 355 Application for Small

Business Determination to the concern whose size is at issue The protested concern or

concern whose size is at issue must return the completed SBA Form 355 and all other requested

information to SBA within 3 working days from the date of receipt of the blank form from SBA

SBA has discretion to grant an extension of time to file the form After receipt of a protest or a

request for a formal size determination the SBA Area Office will issue a formal size

determination within 15 business days if possible or within an extension granted by the

Contracting Officer in accordance with FAR 19302(e)

Screen 82 Your office

Jenny Thank you for clarifying the process Irsquoll see you both later

Screen 83 Your office

Janet Yes I have to get back to the office too Irsquoll see you later

Screen 84 Your office THE NEXT DAY - You re-enter your office from a break and receive a

phone call

Jenny Hello I forgot to ask when the Contracting Officer may award a contract that has a small

business size protest

Activity 84-1 Your office

Question Jenny When may the Contracting Officer award a contract that has been protested

Choice 1 Only after the SBA makes a determination of the small business representation

protest - Proceed to screen 85

Choice 2 When the SBA makes a decision or 15 business days have expired whichever comes

first however the CO may award a contract before an SBA determination is made when he

makes a written determination that award must be made to protect public interest - Proceed

to screen 105

Choice 3 The Contracting Officer does not have to wait for SBA to make the determination -

Proceed to screen 95

Screen 85 Your office

Jenny Ok so I guess we just wait until the SBA makes a determination Thanks

Screen 86 Program Managerrsquos Office THE NEXT DAY - Asha has requested that you come by

her office As you walk into Asharsquos office Connie is already there

Asha Connie was just informing me that she has decided to wait on SBAs decision about the

protest before awarding the contract Just want to inform the both of you that the incumbent

contract expires 18 days after the submittal of the protest to the SBA

Screen 87 Program Managerrsquos Office

Connie That is a good point Asha The risk of me waiting too long will result in expiration of the

contract A lapse between contracts is unacceptable as that may adversely impact the

warfighter

Activity 84-2 Program Managerrsquos Office

Question Connie When may the Contracting Officer award a contract that has been

protested

Choice 1 When the SBA makes a decision or 15 business days have expired whichever comes

first however the CO may award a contract before an SBA determination is made when he

makes a written determination that award must be made to protect public interest - Proceed

to screen 103

Choice 2 The Contracting Officer does not have to wait for SBA to make the determination -

Proceed to screen 88

Screen 88 Program Managerrsquos Office

Connie If that is the case letrsquos wait about a week and then award the contract Thanks

everyone

Screen 90 Your office FIVE DAYS LATER - SBA renders its decision on the required 15th

business day finding that the apparent successful offeror was not eligible for the award

Connie Meeting today at 2 PM

Screen 91 Conference room 2 PM - Connie has called in Asha Jenny and Ian to the

conference room

Connie As you are aware SBA came back with the decision that ELMO was not eligible for the

award Because it is so close to the completion of the source selection we may be able to go

back and award to the offeror that was second in line based on evaluation results

Screen 92 Conference room

Ian We would have to get the acquisition team together with legal SBA and leadership but

we might be able to accomplish that without having to start the procurement over again

Screen 93 Conference room

Connie Thanks everyone I will keep you posted

Screen 94 Conference room CONSEQUENCE OF YOUR ACTIONS Awarding the contract

without waiting for SBA to make a decision on the appeal is a violation of FAR policy (FAR

19302(g)(2) this type of violation could result in significant impacts inclusive of the

Contracting Officer having to terminate the unauthorized contract Additional fallout may occur

by having to re-accomplish the procurement entirely since the source selection was effectively

completed upon award of the unauthorized contract to the ineligible company Reprocurement

risk would be dependent upon the acquisition circumstances timing and viewpoints of the key

stakeholders and decision-makers

FEEDBACK After receiving a size protest involving a new procurement the Contracting Officer

shall not award the contract until the SBA has made a size determination or after 15 business

days have expired whichever comes first However the Contracting Officer may award a

contract before an SBA determination is made when shehe makes a written determination

that award must be made to protect the public interest (FAR 19302(g)(1))

Screen 95 Your office

Jenny Ok I will inform Connie Thanks

Screen 96 COrsquos office LATER THAT DAY - Connie has asked you to come by her office

Connie Hello Thanks for coming by Jenny tells me that you said that we do not need to wait

for SBA to make the determination about the size protest What happens if we award the

contract and then SBA finds the apparent successful offeror was not eligible for the award

Maybe you should double check the regulation

Activity 84-3 COrsquos office

Question Connie When may the Contracting Officer award a contract that has been

protested

Choice 1 Only after the SBA makes a determination of the small business representation

protest - Proceed to screen 97

Choice 2 When the SBA makes a decision or 15 business days have expired whichever comes

first however the CO may award a contract before an SBA determination is made when he

makes a written determination that award must be made to protect public interest - Proceed

to screen 104

Screen 97 COrsquos office

Connie Ok so I guess we just wait until the SBA makes a determination

Screen 98 Program Managerrsquos Office LATER THAT DAY - Asha has requested that you come by

her office As you walk into Asharsquos office Connie is already there

Asha Connie was just informing me that she has decided to wait on SBAs decision about the

protest before awarding the contract Just want to inform the both of you that the current

contract expires 18 days after the submittal of the protest to the SBA

Screen 99 Program Managerrsquos Office

Connie That is a good point Asha The risk of me waiting too long will result in expiration of the

incumbents contract and work stoppage for security guard services

Screen 100 Program Managerrsquos Office

Asha I looked up the regulation and it states that we should wait up to 15 business days and

then we may award the contract

Screen 101 Program Managerrsquos Office

Connie Thanks That is what we will do and hopefully SBA will respond before the 15 days

Screen 102 Program Managerrsquos Office CONSEQUENCE OF YOUR ACTIONS Not thoroughly

understanding the protest procedures and being uninformed of program needs and imp acts

could result in adverse impacts to the warfighter

FEEDBACK After receiving a size protest involving a new procurement the Contracting Officer

shall not award the contract until the SBA has made a size determination or after 15 business

days have expired whichever comes first However the Contracting Officer may award a

contract before an SBA determination is made when shehe makes a written determination

that award must be made to protect the public interest (FAR 19302(g)(1))

Screen 103 Program Managerrsquos Office

Connie Ok we wait for 15 business days That sounds much better Thanks - Proceed to

screen 106

Screen 104 COrsquos office

FEEDBACK After receiving a size protest involving a new procurement the Contracting Officer

shall not award the contract until the SBA has made a size determination or after 15 business

days have expired whichever comes first However the Contracting Officer may award a

contract before an SBA determination is made when shehe makes a written determination

that award must be made to protect the public interest (FAR 19302(g)(1))

Connie Ok we wait for 15 business days That sounds much better Thanks - Proceed to

screen 107

Screen 105 Your office

FEEDBACK After receiving a size protest involving a new procurement the Contracting Officer shall not award the contract until the SBA has made a size determination or after 15 business days have expired whichever comes first However the Contracting Officer may award a contract before an SBA determination is made when shehe makes a written determination that award must be made to protect the public interest (FAR 19302(g)(1))

Jenny Ok we wait for 15 business days Thanks - Proceed to screen 107

Screen 106 Program Managerrsquos office FEEDBACK After receiving a size protest involving a new procurement the Contracting Officer shall not award the contract until the SBA has made a size determination or after 15 business days have expired whichever comes first However the Contracting Officer may award a contract before an SBA determination is made when shehe makes a written determination that award must be made to protect the public interest (FAR 19302(g)(1))

Screen 107 Your office TWO DAYS LATER - Itrsquos been two days since your conversation with Jenny You notice that you have a new e-mail

To Acquisition Team Attachment Appeal Letter

From Grace CDI Contractor

Subject ELMO protest upheld

Hello

I just heard that ELMOs protest was upheld We believe the decision was based on erroneous information so we want to appeal Can you give me some guidance in the process for submitting an appeal

I have attached the appeal and size determination letters

Sincerely

Grace CDI Contractor

Activity 107-1 Your office

Question Grace What is the process for submitting an appeal for a size protest determination

Choice 1 IAW FAR 19302(h) an appeal may be filed with the SBA Office of Hearings and Appeals by any concern or interested party whose protest of the small business representation of another concern has been denied - Proceed to screen 111

Choice 2 An appeal may be filed by any concern or interested party to protest the small business representation of another concern to the Contracting Officer - Proceed to screen 108

Screen 108 Your office THREE DAYS LATER Connie comes by your office

Connie Hello there I just received the appeal from CDI through the mail channels and realized

that the protestor sent it to me in error I am having Jenny mail the appeal package back to CDI

Screen 109 Your office As you get back to your desk you notice that you have a voicemail

Grace Hello this is Grace from CDI Looks like I sent my appeal to the wrong location I was not

supposed to send it to the Contracting Officer I have re-sent the appeal to SBA OHA I hope

that its not too late because they will deny my appeal if untimely

Screen 110 Your office CONSEQUENCES OF YOUR ACTIONS Filing the appeal with the

Contracting Officer would result in lost time for the protestor because the appeal must be filed

with SBA OHA The concern encounters a greater risk of denial by SBA OHA if the appeal is not

filed within the time frame listed in Subpart C of 13 CFR 134

Screen 111 Your office The agency awaits confirmation from SBA OHA as to the standing of

the appeal and related impacts to the ongoing procurement You leave for the weekend

Screen 112 Your office FEEDBACK An appeal may be filed only when the small business

representation protest has been denied by the SBA Government Contracting Area Director and

within the time frames and in accordance with the procedures outlined in Subpart C of 13 CFR

Part 134 (IAW FAR 19302(h)) While a Contracting officer may file an appeal of their own the

concern or interested party must file the appeal to the SBA Office of Hearings and Appeals

(OHA) within the time frame and in accordance with the procedures listed in Subpart C of 13

CFR 134

Screen 113 Your office You return to the office on Monday morning You have a new e-mail

E-mail CDI appeal

To You SBP

From Connie Contracting Officer

Subject CDI Appeal

Hello

I would like to have a meeting with you and our lawyer Ian and Jenny to review the CDI size

appeal to the SBA Office of Hearings and Appeals Please check your calendar to see if you are

free tomorrow afternoon Let me know if you can make it

Sincerely

Connie

Contracting Officer

Screen 114 Conference room THE NEXT DAY - You Connie Jenny and the departmentrsquos

lawyer Ian are in a conference room

Ian Glad you could make the meeting We have been informed that Corporate Defenders is

appealing the SBAs decision Because of the potential impact the appeals process may have on

our current security guard services and before we make a decision on what we should do

about continuation of those services I would like to discuss the basis of the original size protest

by ELMO in the Corporate Defenders appeal to determine whether we think it will be denied

What was the basis of the original size protest by ELMO in the Corporate Defenders appeal

Screen 115 Conference room

Jenny The basis of the original protest is that Corporate Defenders Inc is affiliated with Rivers

under the ostensible subcontracting rule

Screen 116 Conference room

Connie Now that we have determined it is a size representation issue does this fall within the

affiliation under the ostensible subcontracting rule

Screen 117 Conference room

Ian The regulation defines an ostensible subcontractor as a subcontractor that performs

primary and vital requirements or when the prime contractor is unusually reliant upon the

subcontractor In this case CDI would be relying on the workforce and management of Rivers

to fulfill the requirements of the contract Therefore the combined size standards of CDI and

Rivers exceeds the size standard for this procurement according to 13 CFR 121103(h)(4)

Screen 118 Conference room

Connie The SBA Area Office found that under the ostensible subcontracting rule CDI was

considered a large business because of its affiliation with Rivers CDI appealed the ruling to the

SBA Office of Hearings and Appeals stating that CDI was not overly reliant on Rivers for

performing the contract and that CDI will serve as the prime contractor ELMO argued that

there is an ostensible subcontracting affiliation with CDI and Rivers and that Rivers is a large

business and thus CDI is ineligible for award What factors could lead to the appeal being

denied

Activity 118-1 Conference room

Question Connie What factors led to the appeal being denied

Choice 1 Rivers was a large business and thus ineligible for the award - Proceed to screen 119

Choice 2 CFR 121103(h)(4) states only the terms of the proposal are applicable to determining

the teaming agreement between the prime and subcontractor - Proceed to screen 123

Choice 3 There is ostensible subcontracting based on the fact that the proposed subcontractor

is the incumbent contractor and thus ineligible for award the prime contractor proposed to

hire the majority of the workforce from the subcontractor the prime contractors proposed

program manager previously served as program manager for the subcontractor on incumbent

contract and the prime contractor lacked experience with projects of the magnitude required

of this procurement This makes the offeror ineligible for award - Proceed to screen 127

Screen 119 Conference room

Ian I believe that is an incorrect assumption since Rivers was only going to perform 43 percent

of the work for a small business This alone would not make Rivers an ostensible subcontractor

Activity 118-2 Conference room

Question Connie What factors led to the appeal being denied

Choice 1 There is ostensible subcontracting based on the fact that the proposed subcontractor

was the incumbent contractor and thus ineligible for award - Proceed to screen 127

Choice 2 CFR 121103(h)(4) states that only the terms of the proposal are applicable to

determining the teaming agreement between the prime and subcontractor - Proceed to screen

120

Screen 120 Conference room

Ian I believe this is an incorrect assumption All aspects of the relationship between CDI and

Rivers are to be considered

Screen 121 Conference room

Connie Letrsquos reference back to the ruling and the reason why there was an ostensible

subcontract

Screen 122 Conference room

Connie It appears that there was ostensible subcontracting based on the fact that the

proposed subcontractor was the incumbent contractor and thus ineligible for award the prime

contractor proposed to hire the majority of the workforce from the subcontractor the prime

contractors proposed program manager previously served as program manager for the

subcontractor on incumbent contract and the prime contractor lacked experience with

projects of the magnitude required of this procurement - Proceed to screen 127

Screen 123 Conference room

Ian I believe this is an incorrect assumption All aspects of the relationship between CDI and

Rivers are to be considered

Activity 118-3 conference room

Question Ian What factors led to the appeal being denied

Choice 1 Rivers was a large business and thus ineligible for the award - Proceed to screen 124

Choice 2 There is ostensible subcontracting based on the fact that the proposed subcontractor

was the incumbent contractor and thus ineligible for award - Proceed to screen 127

Screen 124 Conference room

Ian I believe that is an incorrect assumption since Rivers was only going to perform 43 percent

of the work for a small business This alone would not make Rivers an ostensible subcontractor

Screen 125 Conference room

Connie Letrsquos reference back to the ruling and the reason why there was an ostensible

subcontract

Screen 126 Conference room

Connie It appears that there was ostensible subcontracting based on the fact that the

proposed subcontractor was the incumbent contractor and thus ineligible for award the prime

contractor proposed to hire the majority of the workforce from the subcontractor the p rime

contractors proposed program manager previously served as program manager for the

subcontractor on incumbent contract and the prime contractor lacked experience with

projects of the magnitude required of this procurement

Screen 127 Conference room

FEEDBACK CFR 121103(h)(4) states all aspects of the relationship between the prime and the

subcontractor are to be considered including but not limited to the terms of the proposal such

as contract management and the percentage of subcontract work agreement between the

prime and subcontractor and whether the subcontractor is the incumbent contractor and is

ineligible to submit a proposal because it exceeds the applicable size standard

Screen 128 Conference room

Connie I think we are good here Thank you for meeting Talk to you later

Screen 129 Conference room

SUMMARY Small Businesses are subject to a size protest on a small business set-aside before

award of a contract The SBA will normally make a determination of size status within 15 days

of receipt of protest To be considered by the SBA it is necessary that the protest be specific

and timely

FAR 19302 and 13 CFR Part 121 provide the specific rules for submitting a size representation

An appeal can be made to the SBA Office of Hearing and Appeals for re-consideration of an SBA

Area Office size protest decision In determining size protests the SBA will consider receipts

number of employees and affiliations of the protested concerns In examining affiliations the

SBA will look for an ostensible subcontracting relationship in which the subcontractor that

performs primary and vital requirements of a contract or a subcontractor upon which the prime

contractor is unusually reliant

If affiliation is found and the prime and the sub are considered large due then award cannot

be made If a size protest is not submitted timely or does not contain sufficient information to

make a size determination the protest will be dismissed The SBP role is to ensure that the

organization is aware of the regulations governing the SBA size protests

When a Small Business size representation protest andor an appeal to a size protest is

received the SBPs role is to advise and assist the acquisition team and Contracting Officer with

interpretation and application of corresponding FAR Part 19 and SBA 13 CFR requirements The

SBP may also advise the offeror or contractor on the procedures for submitting a protest prior

to issuing a solicitation After the solicitation has been issued all communication must be

through the Contracting Officer While this scenario discusses the procedures for a small

business representation protest the SBP needs to be aware that the socio-economic programs

ie HUBZones SDVOSB 8(a) and WOSB each have slightly different procedures which are set-

forth in FAR Part 19 Close attention must be made to both the applicable FAR Part 19 and SBA

13 CFR 121 requirements to provide proper advice and guidance on each type of protest and

appeal

Screen 130 Conference room This concludes the simulation The After Action Report (AAR) has

been created Download the AAR and review your performance in the simulation

After viewing the AAR use the browser close button to close this simulation and return to

screen 3 in the Size Protest lesson to complete this lesson

SBP220 Business Decisions for Small Business lesson 11 - Size Pr otest Simulation RESOURCES I PRINT I HELP

Summary

I Poge 5 of6 I Back Next

SBP220 Business Decisions for Small Business lesson 11 - Size Protest Simulation RESOURCES 1 PRINT 1 HELP

Summary

Closed Captioning Congratulations you have completed the Size Protest Simulation During this simulation you participated in activities common to interpreting data to verify the size of a small business Ensure that you review your After Action Report and if you did not respond correctly to all activities consider going through the simula tion again

I Pogo 5of6 I Back Next

SBP220 Business Decisions for Small Business lesson 11 - Size Protest Simulation RESOURCES I PRINT I HELP

Summary

Poge 5of6 I Back Next

SBP220 Business Decisions for Small Business Lesson 11 - Size Pr otest Simulation RESOURCES j PRINT j HElP

Lesson Completion

You have comple ted the con tent for this lesson

To continue select another lesson from the Table of Con tents on the le f t

If you have closed or hidden the Table of Contents select the Show T OC button at the t op in the Atlas navigation bar

~ I P o ge 6 of6 I Back Next

Screen 48 Conference room

Connie Hey Asha Itrsquos me Connie I have Jenny and the SBP here with me The SBP has just informed me that the Program Manager needs to fill out the referral letter for the size protest

Screen 49 Conference room

Asha Are you sure I have never filled out a referral letter before What must a small business representation protest need to include

Activity 45-2 Conference room

Question Asha What should a small business size representation protest contain

Choice 1 According to FAR 19302(c)(3) a small business size representation protest shall include a copy of the solicitation and all offerorsrsquo bids - Proceed to screen 50

Choice 2 According to FAR 19302(c) a small business size representation protest shall include the basis for the protest and a referral letter written by the Contracting Officer with information pertaining to the solicitation - Proceed to screen 73

Screen 50 Conference room

Asha Ok if you want me to fill out the referral letter I can have it completed by tomorrow You will need to gather the solicitation and offerorsrsquo bids

Screen 51 conference room

Connie Thank you Asha

Screen 52 Your office TWO DAYS LATER - As you enter your office the phone rings

Asha Hello this is Asha I just wanted to let you know that the SBA has returned the protest They stated that the Contracting Officer needs to fill out the referral letter SBA also included a list of items that the protest package should contain I left the list in your inbox

Screen 53 Your office read the protest package that is in your inbox

Screen 54 Your office THREE DAYS LATER

Asha I will get with Connie to make sure what the correct information gets sent to the SBA Bye

Screen 55 Conference room Connie has called a meeting of the team to discuss the size protest from ELMO

Connie Thank you everyone for coming As you all know the protest has slowed down the process of awarding the contract This mishap about who should fill out the referral letter has caused us even more delay which potentially will impact the delivery schedule

Screen 56 Conference room

Connie The protest package has been completed and sent back to the SBA Everything should be in order and now we just wait to hear back from the SBA I brought in copies of the referral letter and the CDI representation letter for everyone to take a look at

Screen 57 Conference room Read the Size Determination document

Screen 58 Conference room CONSEQUENCE OF YOUR ACTIONS The SBA sent back the protest This resulted in a delay of SBAs protest decision As a result there may be potential

delays for contract award and impacts to the programs overall costperformanceschedule

baseline

Screen 59 Conference room

Jenny Oh ok we just need to include the solicitation and all of the offerors bids I can gather

that information up in no time

Screen 60 Conference room

Connie Are you sure that is correct I thought somewhere in the regulations I read that we

were supposed to supply a letter and that the protester was supposed to come up with all the

other information

Activity 45-3 Conference room

Question Connie What should a small business size representation protest contain

Choice 1 According to FAR 19302(c) a small business size representation protest shall include

the basis for the protest and a referral letter written by the Contracting Officer with

information pertaining to the solicitation - Proceed to screen 73

Choice 2 According to FAR 19302(c)(3) a small business size representation protest shall

include a referral letter written by the Program Manager with information addressing the

solicitation - Proceed to screen 61

Screen 61 Conference room

Connie Oh ok Asha needs to fill out the referral letter Letrsquos give her a call

Screen 62 Conference room

Asha Hello Asha speaking How may I help you

Screen 63 Conference room

Connie Hey Asha Itrsquos me Connie I have Jenny and the SBP here with me The SBP has just

informed me that the Program Manager needs to fill out the referral letter for the size protest

Screen 64 Conference room

Asha Sure I can fill out the referral letter Irsquoll have it completed by tomorrow Bye

Screen 65 Conference room

Connie Once I receive the letter from Asha I will send it off to SBA Thanks Have a great rest of your day

Screen 66 Hour office TWO DAYS LATER - As you enter your office the phone rings

Asha Hello this is Asha I just wanted to let you know that the SBA has returned the protest They stated that the Contracting Officer needs to fill out the referral letter SBA also included a list of items that the protest package should contain I left the list in your inbox

Screen 67 Your office

Asha I will get with Connie to make sure that the correct information gets sent to the SBA Bye

Screen 68 Your office Read the Protest Package letter

Screen 69 Conference room THREE DAYS LATER - Connie has called a meeting of the team to discuss the size protest from ELMO

Connie Thank you everyone for coming As you all know the protest has slowed down the

process of awarding the contract This mishap about who should fill out the referral letter has

cause us even more delay which potentially will impact the delivery schedule

Screen 70 conference room

Connie The protest package has been completed and sent back to the SBA Everything should be in order and now we just wait to hear back from the SBA I brought in copies of the referral letter and the CDI representation letter for everyone to take a look at

Screen 71 Conference room Read the Referral Letter CDI Representation and Size Determination documents

Screen 72 Conference room CONSEQUENCE OF YOUR ACTIONS The SBA sent the protest back This has resulted in a delay in the SBA deciding the protest and potential delay of award of the contract which could result in a delay in performance of delivery or service resulting in additional costs to the Government

Screen 73 Conference room

Connie Thatrsquos it Ok I can definitely take care of that today Thank you

Screen 74 Your office It has been several days since you spoke to Connie about the small

business representation protest requirements As you sit down to start your day you notice you

have a voicemail

Jenny Hello Can you stop by the conference room when you get this message Thanks

Screen 75 Conference room

Connie Hello Thanks for coming I just wanted to inform you that the protest package has

been completed and sent back to the SBA Everything should be in order and now we just wait

to hear back from the SBA I brought in copies of the referral letter and the CDI representation

letter for everyone to take a look at

Screen 76 Conference room Read the Referral Letter CDI Representation and Size

Determination documents

Screen 77 Conference room

FEEDBACK According to FAR 19302(c)(3) a small business representation protest shall include

the basis of the protest and include a referral letter signed by the Contracting Officer with

information pertaining to the solicitation and include (i) the protest and any accompanying

materials (ii) a copy of the size self-certification (iii) Identification of applicable size standard

(iv) a copy of the electronic link to the solicitation and any amendments (v) the name address

telephone number email address and number of the Contracting Officer (vi) identification of

the bid opening date or date of notification provided to unsuccessful offerors (vii) the date the

Contracting Officer received the protest (viii) a complete address and point of contact for the

protested concern An offeror the SBA or another interested party may protest the small

business representation of an offeror in a specific offer (FAR 19302(a)(2)) For competitive 8(a)

contracts the filing of a protest is limited to the Contracting Officer an offeror or the SBA The

Contracting Officer may also submit a small business representation protest at any time before

or after award (FAR 19302(a) and (b))

Screen 78 Your office A WEEK LATER - As you come back from lunch with Janet you get a visit

from Jenny She has not heard anything about the protest for several days and would like

clarification on the protest process with the SBA

Jenny Hi I just wanted to clarify the notification process of the protest It has been five days

since the documents were submitted to the SBA and we have not heard anything as of yet

Connie also gave me this form that I am unfamiliar with I put it in your inbox

Screen 79 Your office Read the SBA Form 355

Screen 80 Your office

Jenny Hey Janet what is the SBA Government Contracting Area Directors process after

receiving a size determination protest

Screen 81 Your office

Janet When SBA receives a size protest the SBA Area Director for Government Contracting or

designee will notify the contracting officer the protested concern and the protestor that the

protest has been received SBA will provide a blank copy of SBA Form 355 Application for Small

Business Determination to the concern whose size is at issue The protested concern or

concern whose size is at issue must return the completed SBA Form 355 and all other requested

information to SBA within 3 working days from the date of receipt of the blank form from SBA

SBA has discretion to grant an extension of time to file the form After receipt of a protest or a

request for a formal size determination the SBA Area Office will issue a formal size

determination within 15 business days if possible or within an extension granted by the

Contracting Officer in accordance with FAR 19302(e)

Screen 82 Your office

Jenny Thank you for clarifying the process Irsquoll see you both later

Screen 83 Your office

Janet Yes I have to get back to the office too Irsquoll see you later

Screen 84 Your office THE NEXT DAY - You re-enter your office from a break and receive a

phone call

Jenny Hello I forgot to ask when the Contracting Officer may award a contract that has a small

business size protest

Activity 84-1 Your office

Question Jenny When may the Contracting Officer award a contract that has been protested

Choice 1 Only after the SBA makes a determination of the small business representation

protest - Proceed to screen 85

Choice 2 When the SBA makes a decision or 15 business days have expired whichever comes

first however the CO may award a contract before an SBA determination is made when he

makes a written determination that award must be made to protect public interest - Proceed

to screen 105

Choice 3 The Contracting Officer does not have to wait for SBA to make the determination -

Proceed to screen 95

Screen 85 Your office

Jenny Ok so I guess we just wait until the SBA makes a determination Thanks

Screen 86 Program Managerrsquos Office THE NEXT DAY - Asha has requested that you come by

her office As you walk into Asharsquos office Connie is already there

Asha Connie was just informing me that she has decided to wait on SBAs decision about the

protest before awarding the contract Just want to inform the both of you that the incumbent

contract expires 18 days after the submittal of the protest to the SBA

Screen 87 Program Managerrsquos Office

Connie That is a good point Asha The risk of me waiting too long will result in expiration of the

contract A lapse between contracts is unacceptable as that may adversely impact the

warfighter

Activity 84-2 Program Managerrsquos Office

Question Connie When may the Contracting Officer award a contract that has been

protested

Choice 1 When the SBA makes a decision or 15 business days have expired whichever comes

first however the CO may award a contract before an SBA determination is made when he

makes a written determination that award must be made to protect public interest - Proceed

to screen 103

Choice 2 The Contracting Officer does not have to wait for SBA to make the determination -

Proceed to screen 88

Screen 88 Program Managerrsquos Office

Connie If that is the case letrsquos wait about a week and then award the contract Thanks

everyone

Screen 90 Your office FIVE DAYS LATER - SBA renders its decision on the required 15th

business day finding that the apparent successful offeror was not eligible for the award

Connie Meeting today at 2 PM

Screen 91 Conference room 2 PM - Connie has called in Asha Jenny and Ian to the

conference room

Connie As you are aware SBA came back with the decision that ELMO was not eligible for the

award Because it is so close to the completion of the source selection we may be able to go

back and award to the offeror that was second in line based on evaluation results

Screen 92 Conference room

Ian We would have to get the acquisition team together with legal SBA and leadership but

we might be able to accomplish that without having to start the procurement over again

Screen 93 Conference room

Connie Thanks everyone I will keep you posted

Screen 94 Conference room CONSEQUENCE OF YOUR ACTIONS Awarding the contract

without waiting for SBA to make a decision on the appeal is a violation of FAR policy (FAR

19302(g)(2) this type of violation could result in significant impacts inclusive of the

Contracting Officer having to terminate the unauthorized contract Additional fallout may occur

by having to re-accomplish the procurement entirely since the source selection was effectively

completed upon award of the unauthorized contract to the ineligible company Reprocurement

risk would be dependent upon the acquisition circumstances timing and viewpoints of the key

stakeholders and decision-makers

FEEDBACK After receiving a size protest involving a new procurement the Contracting Officer

shall not award the contract until the SBA has made a size determination or after 15 business

days have expired whichever comes first However the Contracting Officer may award a

contract before an SBA determination is made when shehe makes a written determination

that award must be made to protect the public interest (FAR 19302(g)(1))

Screen 95 Your office

Jenny Ok I will inform Connie Thanks

Screen 96 COrsquos office LATER THAT DAY - Connie has asked you to come by her office

Connie Hello Thanks for coming by Jenny tells me that you said that we do not need to wait

for SBA to make the determination about the size protest What happens if we award the

contract and then SBA finds the apparent successful offeror was not eligible for the award

Maybe you should double check the regulation

Activity 84-3 COrsquos office

Question Connie When may the Contracting Officer award a contract that has been

protested

Choice 1 Only after the SBA makes a determination of the small business representation

protest - Proceed to screen 97

Choice 2 When the SBA makes a decision or 15 business days have expired whichever comes

first however the CO may award a contract before an SBA determination is made when he

makes a written determination that award must be made to protect public interest - Proceed

to screen 104

Screen 97 COrsquos office

Connie Ok so I guess we just wait until the SBA makes a determination

Screen 98 Program Managerrsquos Office LATER THAT DAY - Asha has requested that you come by

her office As you walk into Asharsquos office Connie is already there

Asha Connie was just informing me that she has decided to wait on SBAs decision about the

protest before awarding the contract Just want to inform the both of you that the current

contract expires 18 days after the submittal of the protest to the SBA

Screen 99 Program Managerrsquos Office

Connie That is a good point Asha The risk of me waiting too long will result in expiration of the

incumbents contract and work stoppage for security guard services

Screen 100 Program Managerrsquos Office

Asha I looked up the regulation and it states that we should wait up to 15 business days and

then we may award the contract

Screen 101 Program Managerrsquos Office

Connie Thanks That is what we will do and hopefully SBA will respond before the 15 days

Screen 102 Program Managerrsquos Office CONSEQUENCE OF YOUR ACTIONS Not thoroughly

understanding the protest procedures and being uninformed of program needs and imp acts

could result in adverse impacts to the warfighter

FEEDBACK After receiving a size protest involving a new procurement the Contracting Officer

shall not award the contract until the SBA has made a size determination or after 15 business

days have expired whichever comes first However the Contracting Officer may award a

contract before an SBA determination is made when shehe makes a written determination

that award must be made to protect the public interest (FAR 19302(g)(1))

Screen 103 Program Managerrsquos Office

Connie Ok we wait for 15 business days That sounds much better Thanks - Proceed to

screen 106

Screen 104 COrsquos office

FEEDBACK After receiving a size protest involving a new procurement the Contracting Officer

shall not award the contract until the SBA has made a size determination or after 15 business

days have expired whichever comes first However the Contracting Officer may award a

contract before an SBA determination is made when shehe makes a written determination

that award must be made to protect the public interest (FAR 19302(g)(1))

Connie Ok we wait for 15 business days That sounds much better Thanks - Proceed to

screen 107

Screen 105 Your office

FEEDBACK After receiving a size protest involving a new procurement the Contracting Officer shall not award the contract until the SBA has made a size determination or after 15 business days have expired whichever comes first However the Contracting Officer may award a contract before an SBA determination is made when shehe makes a written determination that award must be made to protect the public interest (FAR 19302(g)(1))

Jenny Ok we wait for 15 business days Thanks - Proceed to screen 107

Screen 106 Program Managerrsquos office FEEDBACK After receiving a size protest involving a new procurement the Contracting Officer shall not award the contract until the SBA has made a size determination or after 15 business days have expired whichever comes first However the Contracting Officer may award a contract before an SBA determination is made when shehe makes a written determination that award must be made to protect the public interest (FAR 19302(g)(1))

Screen 107 Your office TWO DAYS LATER - Itrsquos been two days since your conversation with Jenny You notice that you have a new e-mail

To Acquisition Team Attachment Appeal Letter

From Grace CDI Contractor

Subject ELMO protest upheld

Hello

I just heard that ELMOs protest was upheld We believe the decision was based on erroneous information so we want to appeal Can you give me some guidance in the process for submitting an appeal

I have attached the appeal and size determination letters

Sincerely

Grace CDI Contractor

Activity 107-1 Your office

Question Grace What is the process for submitting an appeal for a size protest determination

Choice 1 IAW FAR 19302(h) an appeal may be filed with the SBA Office of Hearings and Appeals by any concern or interested party whose protest of the small business representation of another concern has been denied - Proceed to screen 111

Choice 2 An appeal may be filed by any concern or interested party to protest the small business representation of another concern to the Contracting Officer - Proceed to screen 108

Screen 108 Your office THREE DAYS LATER Connie comes by your office

Connie Hello there I just received the appeal from CDI through the mail channels and realized

that the protestor sent it to me in error I am having Jenny mail the appeal package back to CDI

Screen 109 Your office As you get back to your desk you notice that you have a voicemail

Grace Hello this is Grace from CDI Looks like I sent my appeal to the wrong location I was not

supposed to send it to the Contracting Officer I have re-sent the appeal to SBA OHA I hope

that its not too late because they will deny my appeal if untimely

Screen 110 Your office CONSEQUENCES OF YOUR ACTIONS Filing the appeal with the

Contracting Officer would result in lost time for the protestor because the appeal must be filed

with SBA OHA The concern encounters a greater risk of denial by SBA OHA if the appeal is not

filed within the time frame listed in Subpart C of 13 CFR 134

Screen 111 Your office The agency awaits confirmation from SBA OHA as to the standing of

the appeal and related impacts to the ongoing procurement You leave for the weekend

Screen 112 Your office FEEDBACK An appeal may be filed only when the small business

representation protest has been denied by the SBA Government Contracting Area Director and

within the time frames and in accordance with the procedures outlined in Subpart C of 13 CFR

Part 134 (IAW FAR 19302(h)) While a Contracting officer may file an appeal of their own the

concern or interested party must file the appeal to the SBA Office of Hearings and Appeals

(OHA) within the time frame and in accordance with the procedures listed in Subpart C of 13

CFR 134

Screen 113 Your office You return to the office on Monday morning You have a new e-mail

E-mail CDI appeal

To You SBP

From Connie Contracting Officer

Subject CDI Appeal

Hello

I would like to have a meeting with you and our lawyer Ian and Jenny to review the CDI size

appeal to the SBA Office of Hearings and Appeals Please check your calendar to see if you are

free tomorrow afternoon Let me know if you can make it

Sincerely

Connie

Contracting Officer

Screen 114 Conference room THE NEXT DAY - You Connie Jenny and the departmentrsquos

lawyer Ian are in a conference room

Ian Glad you could make the meeting We have been informed that Corporate Defenders is

appealing the SBAs decision Because of the potential impact the appeals process may have on

our current security guard services and before we make a decision on what we should do

about continuation of those services I would like to discuss the basis of the original size protest

by ELMO in the Corporate Defenders appeal to determine whether we think it will be denied

What was the basis of the original size protest by ELMO in the Corporate Defenders appeal

Screen 115 Conference room

Jenny The basis of the original protest is that Corporate Defenders Inc is affiliated with Rivers

under the ostensible subcontracting rule

Screen 116 Conference room

Connie Now that we have determined it is a size representation issue does this fall within the

affiliation under the ostensible subcontracting rule

Screen 117 Conference room

Ian The regulation defines an ostensible subcontractor as a subcontractor that performs

primary and vital requirements or when the prime contractor is unusually reliant upon the

subcontractor In this case CDI would be relying on the workforce and management of Rivers

to fulfill the requirements of the contract Therefore the combined size standards of CDI and

Rivers exceeds the size standard for this procurement according to 13 CFR 121103(h)(4)

Screen 118 Conference room

Connie The SBA Area Office found that under the ostensible subcontracting rule CDI was

considered a large business because of its affiliation with Rivers CDI appealed the ruling to the

SBA Office of Hearings and Appeals stating that CDI was not overly reliant on Rivers for

performing the contract and that CDI will serve as the prime contractor ELMO argued that

there is an ostensible subcontracting affiliation with CDI and Rivers and that Rivers is a large

business and thus CDI is ineligible for award What factors could lead to the appeal being

denied

Activity 118-1 Conference room

Question Connie What factors led to the appeal being denied

Choice 1 Rivers was a large business and thus ineligible for the award - Proceed to screen 119

Choice 2 CFR 121103(h)(4) states only the terms of the proposal are applicable to determining

the teaming agreement between the prime and subcontractor - Proceed to screen 123

Choice 3 There is ostensible subcontracting based on the fact that the proposed subcontractor

is the incumbent contractor and thus ineligible for award the prime contractor proposed to

hire the majority of the workforce from the subcontractor the prime contractors proposed

program manager previously served as program manager for the subcontractor on incumbent

contract and the prime contractor lacked experience with projects of the magnitude required

of this procurement This makes the offeror ineligible for award - Proceed to screen 127

Screen 119 Conference room

Ian I believe that is an incorrect assumption since Rivers was only going to perform 43 percent

of the work for a small business This alone would not make Rivers an ostensible subcontractor

Activity 118-2 Conference room

Question Connie What factors led to the appeal being denied

Choice 1 There is ostensible subcontracting based on the fact that the proposed subcontractor

was the incumbent contractor and thus ineligible for award - Proceed to screen 127

Choice 2 CFR 121103(h)(4) states that only the terms of the proposal are applicable to

determining the teaming agreement between the prime and subcontractor - Proceed to screen

120

Screen 120 Conference room

Ian I believe this is an incorrect assumption All aspects of the relationship between CDI and

Rivers are to be considered

Screen 121 Conference room

Connie Letrsquos reference back to the ruling and the reason why there was an ostensible

subcontract

Screen 122 Conference room

Connie It appears that there was ostensible subcontracting based on the fact that the

proposed subcontractor was the incumbent contractor and thus ineligible for award the prime

contractor proposed to hire the majority of the workforce from the subcontractor the prime

contractors proposed program manager previously served as program manager for the

subcontractor on incumbent contract and the prime contractor lacked experience with

projects of the magnitude required of this procurement - Proceed to screen 127

Screen 123 Conference room

Ian I believe this is an incorrect assumption All aspects of the relationship between CDI and

Rivers are to be considered

Activity 118-3 conference room

Question Ian What factors led to the appeal being denied

Choice 1 Rivers was a large business and thus ineligible for the award - Proceed to screen 124

Choice 2 There is ostensible subcontracting based on the fact that the proposed subcontractor

was the incumbent contractor and thus ineligible for award - Proceed to screen 127

Screen 124 Conference room

Ian I believe that is an incorrect assumption since Rivers was only going to perform 43 percent

of the work for a small business This alone would not make Rivers an ostensible subcontractor

Screen 125 Conference room

Connie Letrsquos reference back to the ruling and the reason why there was an ostensible

subcontract

Screen 126 Conference room

Connie It appears that there was ostensible subcontracting based on the fact that the

proposed subcontractor was the incumbent contractor and thus ineligible for award the prime

contractor proposed to hire the majority of the workforce from the subcontractor the p rime

contractors proposed program manager previously served as program manager for the

subcontractor on incumbent contract and the prime contractor lacked experience with

projects of the magnitude required of this procurement

Screen 127 Conference room

FEEDBACK CFR 121103(h)(4) states all aspects of the relationship between the prime and the

subcontractor are to be considered including but not limited to the terms of the proposal such

as contract management and the percentage of subcontract work agreement between the

prime and subcontractor and whether the subcontractor is the incumbent contractor and is

ineligible to submit a proposal because it exceeds the applicable size standard

Screen 128 Conference room

Connie I think we are good here Thank you for meeting Talk to you later

Screen 129 Conference room

SUMMARY Small Businesses are subject to a size protest on a small business set-aside before

award of a contract The SBA will normally make a determination of size status within 15 days

of receipt of protest To be considered by the SBA it is necessary that the protest be specific

and timely

FAR 19302 and 13 CFR Part 121 provide the specific rules for submitting a size representation

An appeal can be made to the SBA Office of Hearing and Appeals for re-consideration of an SBA

Area Office size protest decision In determining size protests the SBA will consider receipts

number of employees and affiliations of the protested concerns In examining affiliations the

SBA will look for an ostensible subcontracting relationship in which the subcontractor that

performs primary and vital requirements of a contract or a subcontractor upon which the prime

contractor is unusually reliant

If affiliation is found and the prime and the sub are considered large due then award cannot

be made If a size protest is not submitted timely or does not contain sufficient information to

make a size determination the protest will be dismissed The SBP role is to ensure that the

organization is aware of the regulations governing the SBA size protests

When a Small Business size representation protest andor an appeal to a size protest is

received the SBPs role is to advise and assist the acquisition team and Contracting Officer with

interpretation and application of corresponding FAR Part 19 and SBA 13 CFR requirements The

SBP may also advise the offeror or contractor on the procedures for submitting a protest prior

to issuing a solicitation After the solicitation has been issued all communication must be

through the Contracting Officer While this scenario discusses the procedures for a small

business representation protest the SBP needs to be aware that the socio-economic programs

ie HUBZones SDVOSB 8(a) and WOSB each have slightly different procedures which are set-

forth in FAR Part 19 Close attention must be made to both the applicable FAR Part 19 and SBA

13 CFR 121 requirements to provide proper advice and guidance on each type of protest and

appeal

Screen 130 Conference room This concludes the simulation The After Action Report (AAR) has

been created Download the AAR and review your performance in the simulation

After viewing the AAR use the browser close button to close this simulation and return to

screen 3 in the Size Protest lesson to complete this lesson

SBP220 Business Decisions for Small Business lesson 11 - Size Pr otest Simulation RESOURCES I PRINT I HELP

Summary

I Poge 5 of6 I Back Next

SBP220 Business Decisions for Small Business lesson 11 - Size Protest Simulation RESOURCES 1 PRINT 1 HELP

Summary

Closed Captioning Congratulations you have completed the Size Protest Simulation During this simulation you participated in activities common to interpreting data to verify the size of a small business Ensure that you review your After Action Report and if you did not respond correctly to all activities consider going through the simula tion again

I Pogo 5of6 I Back Next

SBP220 Business Decisions for Small Business lesson 11 - Size Protest Simulation RESOURCES I PRINT I HELP

Summary

Poge 5of6 I Back Next

SBP220 Business Decisions for Small Business Lesson 11 - Size Pr otest Simulation RESOURCES j PRINT j HElP

Lesson Completion

You have comple ted the con tent for this lesson

To continue select another lesson from the Table of Con tents on the le f t

If you have closed or hidden the Table of Contents select the Show T OC button at the t op in the Atlas navigation bar

~ I P o ge 6 of6 I Back Next

Screen 56 Conference room

Connie The protest package has been completed and sent back to the SBA Everything should be in order and now we just wait to hear back from the SBA I brought in copies of the referral letter and the CDI representation letter for everyone to take a look at

Screen 57 Conference room Read the Size Determination document

Screen 58 Conference room CONSEQUENCE OF YOUR ACTIONS The SBA sent back the protest This resulted in a delay of SBAs protest decision As a result there may be potential

delays for contract award and impacts to the programs overall costperformanceschedule

baseline

Screen 59 Conference room

Jenny Oh ok we just need to include the solicitation and all of the offerors bids I can gather

that information up in no time

Screen 60 Conference room

Connie Are you sure that is correct I thought somewhere in the regulations I read that we

were supposed to supply a letter and that the protester was supposed to come up with all the

other information

Activity 45-3 Conference room

Question Connie What should a small business size representation protest contain

Choice 1 According to FAR 19302(c) a small business size representation protest shall include

the basis for the protest and a referral letter written by the Contracting Officer with

information pertaining to the solicitation - Proceed to screen 73

Choice 2 According to FAR 19302(c)(3) a small business size representation protest shall

include a referral letter written by the Program Manager with information addressing the

solicitation - Proceed to screen 61

Screen 61 Conference room

Connie Oh ok Asha needs to fill out the referral letter Letrsquos give her a call

Screen 62 Conference room

Asha Hello Asha speaking How may I help you

Screen 63 Conference room

Connie Hey Asha Itrsquos me Connie I have Jenny and the SBP here with me The SBP has just

informed me that the Program Manager needs to fill out the referral letter for the size protest

Screen 64 Conference room

Asha Sure I can fill out the referral letter Irsquoll have it completed by tomorrow Bye

Screen 65 Conference room

Connie Once I receive the letter from Asha I will send it off to SBA Thanks Have a great rest of your day

Screen 66 Hour office TWO DAYS LATER - As you enter your office the phone rings

Asha Hello this is Asha I just wanted to let you know that the SBA has returned the protest They stated that the Contracting Officer needs to fill out the referral letter SBA also included a list of items that the protest package should contain I left the list in your inbox

Screen 67 Your office

Asha I will get with Connie to make sure that the correct information gets sent to the SBA Bye

Screen 68 Your office Read the Protest Package letter

Screen 69 Conference room THREE DAYS LATER - Connie has called a meeting of the team to discuss the size protest from ELMO

Connie Thank you everyone for coming As you all know the protest has slowed down the

process of awarding the contract This mishap about who should fill out the referral letter has

cause us even more delay which potentially will impact the delivery schedule

Screen 70 conference room

Connie The protest package has been completed and sent back to the SBA Everything should be in order and now we just wait to hear back from the SBA I brought in copies of the referral letter and the CDI representation letter for everyone to take a look at

Screen 71 Conference room Read the Referral Letter CDI Representation and Size Determination documents

Screen 72 Conference room CONSEQUENCE OF YOUR ACTIONS The SBA sent the protest back This has resulted in a delay in the SBA deciding the protest and potential delay of award of the contract which could result in a delay in performance of delivery or service resulting in additional costs to the Government

Screen 73 Conference room

Connie Thatrsquos it Ok I can definitely take care of that today Thank you

Screen 74 Your office It has been several days since you spoke to Connie about the small

business representation protest requirements As you sit down to start your day you notice you

have a voicemail

Jenny Hello Can you stop by the conference room when you get this message Thanks

Screen 75 Conference room

Connie Hello Thanks for coming I just wanted to inform you that the protest package has

been completed and sent back to the SBA Everything should be in order and now we just wait

to hear back from the SBA I brought in copies of the referral letter and the CDI representation

letter for everyone to take a look at

Screen 76 Conference room Read the Referral Letter CDI Representation and Size

Determination documents

Screen 77 Conference room

FEEDBACK According to FAR 19302(c)(3) a small business representation protest shall include

the basis of the protest and include a referral letter signed by the Contracting Officer with

information pertaining to the solicitation and include (i) the protest and any accompanying

materials (ii) a copy of the size self-certification (iii) Identification of applicable size standard

(iv) a copy of the electronic link to the solicitation and any amendments (v) the name address

telephone number email address and number of the Contracting Officer (vi) identification of

the bid opening date or date of notification provided to unsuccessful offerors (vii) the date the

Contracting Officer received the protest (viii) a complete address and point of contact for the

protested concern An offeror the SBA or another interested party may protest the small

business representation of an offeror in a specific offer (FAR 19302(a)(2)) For competitive 8(a)

contracts the filing of a protest is limited to the Contracting Officer an offeror or the SBA The

Contracting Officer may also submit a small business representation protest at any time before

or after award (FAR 19302(a) and (b))

Screen 78 Your office A WEEK LATER - As you come back from lunch with Janet you get a visit

from Jenny She has not heard anything about the protest for several days and would like

clarification on the protest process with the SBA

Jenny Hi I just wanted to clarify the notification process of the protest It has been five days

since the documents were submitted to the SBA and we have not heard anything as of yet

Connie also gave me this form that I am unfamiliar with I put it in your inbox

Screen 79 Your office Read the SBA Form 355

Screen 80 Your office

Jenny Hey Janet what is the SBA Government Contracting Area Directors process after

receiving a size determination protest

Screen 81 Your office

Janet When SBA receives a size protest the SBA Area Director for Government Contracting or

designee will notify the contracting officer the protested concern and the protestor that the

protest has been received SBA will provide a blank copy of SBA Form 355 Application for Small

Business Determination to the concern whose size is at issue The protested concern or

concern whose size is at issue must return the completed SBA Form 355 and all other requested

information to SBA within 3 working days from the date of receipt of the blank form from SBA

SBA has discretion to grant an extension of time to file the form After receipt of a protest or a

request for a formal size determination the SBA Area Office will issue a formal size

determination within 15 business days if possible or within an extension granted by the

Contracting Officer in accordance with FAR 19302(e)

Screen 82 Your office

Jenny Thank you for clarifying the process Irsquoll see you both later

Screen 83 Your office

Janet Yes I have to get back to the office too Irsquoll see you later

Screen 84 Your office THE NEXT DAY - You re-enter your office from a break and receive a

phone call

Jenny Hello I forgot to ask when the Contracting Officer may award a contract that has a small

business size protest

Activity 84-1 Your office

Question Jenny When may the Contracting Officer award a contract that has been protested

Choice 1 Only after the SBA makes a determination of the small business representation

protest - Proceed to screen 85

Choice 2 When the SBA makes a decision or 15 business days have expired whichever comes

first however the CO may award a contract before an SBA determination is made when he

makes a written determination that award must be made to protect public interest - Proceed

to screen 105

Choice 3 The Contracting Officer does not have to wait for SBA to make the determination -

Proceed to screen 95

Screen 85 Your office

Jenny Ok so I guess we just wait until the SBA makes a determination Thanks

Screen 86 Program Managerrsquos Office THE NEXT DAY - Asha has requested that you come by

her office As you walk into Asharsquos office Connie is already there

Asha Connie was just informing me that she has decided to wait on SBAs decision about the

protest before awarding the contract Just want to inform the both of you that the incumbent

contract expires 18 days after the submittal of the protest to the SBA

Screen 87 Program Managerrsquos Office

Connie That is a good point Asha The risk of me waiting too long will result in expiration of the

contract A lapse between contracts is unacceptable as that may adversely impact the

warfighter

Activity 84-2 Program Managerrsquos Office

Question Connie When may the Contracting Officer award a contract that has been

protested

Choice 1 When the SBA makes a decision or 15 business days have expired whichever comes

first however the CO may award a contract before an SBA determination is made when he

makes a written determination that award must be made to protect public interest - Proceed

to screen 103

Choice 2 The Contracting Officer does not have to wait for SBA to make the determination -

Proceed to screen 88

Screen 88 Program Managerrsquos Office

Connie If that is the case letrsquos wait about a week and then award the contract Thanks

everyone

Screen 90 Your office FIVE DAYS LATER - SBA renders its decision on the required 15th

business day finding that the apparent successful offeror was not eligible for the award

Connie Meeting today at 2 PM

Screen 91 Conference room 2 PM - Connie has called in Asha Jenny and Ian to the

conference room

Connie As you are aware SBA came back with the decision that ELMO was not eligible for the

award Because it is so close to the completion of the source selection we may be able to go

back and award to the offeror that was second in line based on evaluation results

Screen 92 Conference room

Ian We would have to get the acquisition team together with legal SBA and leadership but

we might be able to accomplish that without having to start the procurement over again

Screen 93 Conference room

Connie Thanks everyone I will keep you posted

Screen 94 Conference room CONSEQUENCE OF YOUR ACTIONS Awarding the contract

without waiting for SBA to make a decision on the appeal is a violation of FAR policy (FAR

19302(g)(2) this type of violation could result in significant impacts inclusive of the

Contracting Officer having to terminate the unauthorized contract Additional fallout may occur

by having to re-accomplish the procurement entirely since the source selection was effectively

completed upon award of the unauthorized contract to the ineligible company Reprocurement

risk would be dependent upon the acquisition circumstances timing and viewpoints of the key

stakeholders and decision-makers

FEEDBACK After receiving a size protest involving a new procurement the Contracting Officer

shall not award the contract until the SBA has made a size determination or after 15 business

days have expired whichever comes first However the Contracting Officer may award a

contract before an SBA determination is made when shehe makes a written determination

that award must be made to protect the public interest (FAR 19302(g)(1))

Screen 95 Your office

Jenny Ok I will inform Connie Thanks

Screen 96 COrsquos office LATER THAT DAY - Connie has asked you to come by her office

Connie Hello Thanks for coming by Jenny tells me that you said that we do not need to wait

for SBA to make the determination about the size protest What happens if we award the

contract and then SBA finds the apparent successful offeror was not eligible for the award

Maybe you should double check the regulation

Activity 84-3 COrsquos office

Question Connie When may the Contracting Officer award a contract that has been

protested

Choice 1 Only after the SBA makes a determination of the small business representation

protest - Proceed to screen 97

Choice 2 When the SBA makes a decision or 15 business days have expired whichever comes

first however the CO may award a contract before an SBA determination is made when he

makes a written determination that award must be made to protect public interest - Proceed

to screen 104

Screen 97 COrsquos office

Connie Ok so I guess we just wait until the SBA makes a determination

Screen 98 Program Managerrsquos Office LATER THAT DAY - Asha has requested that you come by

her office As you walk into Asharsquos office Connie is already there

Asha Connie was just informing me that she has decided to wait on SBAs decision about the

protest before awarding the contract Just want to inform the both of you that the current

contract expires 18 days after the submittal of the protest to the SBA

Screen 99 Program Managerrsquos Office

Connie That is a good point Asha The risk of me waiting too long will result in expiration of the

incumbents contract and work stoppage for security guard services

Screen 100 Program Managerrsquos Office

Asha I looked up the regulation and it states that we should wait up to 15 business days and

then we may award the contract

Screen 101 Program Managerrsquos Office

Connie Thanks That is what we will do and hopefully SBA will respond before the 15 days

Screen 102 Program Managerrsquos Office CONSEQUENCE OF YOUR ACTIONS Not thoroughly

understanding the protest procedures and being uninformed of program needs and imp acts

could result in adverse impacts to the warfighter

FEEDBACK After receiving a size protest involving a new procurement the Contracting Officer

shall not award the contract until the SBA has made a size determination or after 15 business

days have expired whichever comes first However the Contracting Officer may award a

contract before an SBA determination is made when shehe makes a written determination

that award must be made to protect the public interest (FAR 19302(g)(1))

Screen 103 Program Managerrsquos Office

Connie Ok we wait for 15 business days That sounds much better Thanks - Proceed to

screen 106

Screen 104 COrsquos office

FEEDBACK After receiving a size protest involving a new procurement the Contracting Officer

shall not award the contract until the SBA has made a size determination or after 15 business

days have expired whichever comes first However the Contracting Officer may award a

contract before an SBA determination is made when shehe makes a written determination

that award must be made to protect the public interest (FAR 19302(g)(1))

Connie Ok we wait for 15 business days That sounds much better Thanks - Proceed to

screen 107

Screen 105 Your office

FEEDBACK After receiving a size protest involving a new procurement the Contracting Officer shall not award the contract until the SBA has made a size determination or after 15 business days have expired whichever comes first However the Contracting Officer may award a contract before an SBA determination is made when shehe makes a written determination that award must be made to protect the public interest (FAR 19302(g)(1))

Jenny Ok we wait for 15 business days Thanks - Proceed to screen 107

Screen 106 Program Managerrsquos office FEEDBACK After receiving a size protest involving a new procurement the Contracting Officer shall not award the contract until the SBA has made a size determination or after 15 business days have expired whichever comes first However the Contracting Officer may award a contract before an SBA determination is made when shehe makes a written determination that award must be made to protect the public interest (FAR 19302(g)(1))

Screen 107 Your office TWO DAYS LATER - Itrsquos been two days since your conversation with Jenny You notice that you have a new e-mail

To Acquisition Team Attachment Appeal Letter

From Grace CDI Contractor

Subject ELMO protest upheld

Hello

I just heard that ELMOs protest was upheld We believe the decision was based on erroneous information so we want to appeal Can you give me some guidance in the process for submitting an appeal

I have attached the appeal and size determination letters

Sincerely

Grace CDI Contractor

Activity 107-1 Your office

Question Grace What is the process for submitting an appeal for a size protest determination

Choice 1 IAW FAR 19302(h) an appeal may be filed with the SBA Office of Hearings and Appeals by any concern or interested party whose protest of the small business representation of another concern has been denied - Proceed to screen 111

Choice 2 An appeal may be filed by any concern or interested party to protest the small business representation of another concern to the Contracting Officer - Proceed to screen 108

Screen 108 Your office THREE DAYS LATER Connie comes by your office

Connie Hello there I just received the appeal from CDI through the mail channels and realized

that the protestor sent it to me in error I am having Jenny mail the appeal package back to CDI

Screen 109 Your office As you get back to your desk you notice that you have a voicemail

Grace Hello this is Grace from CDI Looks like I sent my appeal to the wrong location I was not

supposed to send it to the Contracting Officer I have re-sent the appeal to SBA OHA I hope

that its not too late because they will deny my appeal if untimely

Screen 110 Your office CONSEQUENCES OF YOUR ACTIONS Filing the appeal with the

Contracting Officer would result in lost time for the protestor because the appeal must be filed

with SBA OHA The concern encounters a greater risk of denial by SBA OHA if the appeal is not

filed within the time frame listed in Subpart C of 13 CFR 134

Screen 111 Your office The agency awaits confirmation from SBA OHA as to the standing of

the appeal and related impacts to the ongoing procurement You leave for the weekend

Screen 112 Your office FEEDBACK An appeal may be filed only when the small business

representation protest has been denied by the SBA Government Contracting Area Director and

within the time frames and in accordance with the procedures outlined in Subpart C of 13 CFR

Part 134 (IAW FAR 19302(h)) While a Contracting officer may file an appeal of their own the

concern or interested party must file the appeal to the SBA Office of Hearings and Appeals

(OHA) within the time frame and in accordance with the procedures listed in Subpart C of 13

CFR 134

Screen 113 Your office You return to the office on Monday morning You have a new e-mail

E-mail CDI appeal

To You SBP

From Connie Contracting Officer

Subject CDI Appeal

Hello

I would like to have a meeting with you and our lawyer Ian and Jenny to review the CDI size

appeal to the SBA Office of Hearings and Appeals Please check your calendar to see if you are

free tomorrow afternoon Let me know if you can make it

Sincerely

Connie

Contracting Officer

Screen 114 Conference room THE NEXT DAY - You Connie Jenny and the departmentrsquos

lawyer Ian are in a conference room

Ian Glad you could make the meeting We have been informed that Corporate Defenders is

appealing the SBAs decision Because of the potential impact the appeals process may have on

our current security guard services and before we make a decision on what we should do

about continuation of those services I would like to discuss the basis of the original size protest

by ELMO in the Corporate Defenders appeal to determine whether we think it will be denied

What was the basis of the original size protest by ELMO in the Corporate Defenders appeal

Screen 115 Conference room

Jenny The basis of the original protest is that Corporate Defenders Inc is affiliated with Rivers

under the ostensible subcontracting rule

Screen 116 Conference room

Connie Now that we have determined it is a size representation issue does this fall within the

affiliation under the ostensible subcontracting rule

Screen 117 Conference room

Ian The regulation defines an ostensible subcontractor as a subcontractor that performs

primary and vital requirements or when the prime contractor is unusually reliant upon the

subcontractor In this case CDI would be relying on the workforce and management of Rivers

to fulfill the requirements of the contract Therefore the combined size standards of CDI and

Rivers exceeds the size standard for this procurement according to 13 CFR 121103(h)(4)

Screen 118 Conference room

Connie The SBA Area Office found that under the ostensible subcontracting rule CDI was

considered a large business because of its affiliation with Rivers CDI appealed the ruling to the

SBA Office of Hearings and Appeals stating that CDI was not overly reliant on Rivers for

performing the contract and that CDI will serve as the prime contractor ELMO argued that

there is an ostensible subcontracting affiliation with CDI and Rivers and that Rivers is a large

business and thus CDI is ineligible for award What factors could lead to the appeal being

denied

Activity 118-1 Conference room

Question Connie What factors led to the appeal being denied

Choice 1 Rivers was a large business and thus ineligible for the award - Proceed to screen 119

Choice 2 CFR 121103(h)(4) states only the terms of the proposal are applicable to determining

the teaming agreement between the prime and subcontractor - Proceed to screen 123

Choice 3 There is ostensible subcontracting based on the fact that the proposed subcontractor

is the incumbent contractor and thus ineligible for award the prime contractor proposed to

hire the majority of the workforce from the subcontractor the prime contractors proposed

program manager previously served as program manager for the subcontractor on incumbent

contract and the prime contractor lacked experience with projects of the magnitude required

of this procurement This makes the offeror ineligible for award - Proceed to screen 127

Screen 119 Conference room

Ian I believe that is an incorrect assumption since Rivers was only going to perform 43 percent

of the work for a small business This alone would not make Rivers an ostensible subcontractor

Activity 118-2 Conference room

Question Connie What factors led to the appeal being denied

Choice 1 There is ostensible subcontracting based on the fact that the proposed subcontractor

was the incumbent contractor and thus ineligible for award - Proceed to screen 127

Choice 2 CFR 121103(h)(4) states that only the terms of the proposal are applicable to

determining the teaming agreement between the prime and subcontractor - Proceed to screen

120

Screen 120 Conference room

Ian I believe this is an incorrect assumption All aspects of the relationship between CDI and

Rivers are to be considered

Screen 121 Conference room

Connie Letrsquos reference back to the ruling and the reason why there was an ostensible

subcontract

Screen 122 Conference room

Connie It appears that there was ostensible subcontracting based on the fact that the

proposed subcontractor was the incumbent contractor and thus ineligible for award the prime

contractor proposed to hire the majority of the workforce from the subcontractor the prime

contractors proposed program manager previously served as program manager for the

subcontractor on incumbent contract and the prime contractor lacked experience with

projects of the magnitude required of this procurement - Proceed to screen 127

Screen 123 Conference room

Ian I believe this is an incorrect assumption All aspects of the relationship between CDI and

Rivers are to be considered

Activity 118-3 conference room

Question Ian What factors led to the appeal being denied

Choice 1 Rivers was a large business and thus ineligible for the award - Proceed to screen 124

Choice 2 There is ostensible subcontracting based on the fact that the proposed subcontractor

was the incumbent contractor and thus ineligible for award - Proceed to screen 127

Screen 124 Conference room

Ian I believe that is an incorrect assumption since Rivers was only going to perform 43 percent

of the work for a small business This alone would not make Rivers an ostensible subcontractor

Screen 125 Conference room

Connie Letrsquos reference back to the ruling and the reason why there was an ostensible

subcontract

Screen 126 Conference room

Connie It appears that there was ostensible subcontracting based on the fact that the

proposed subcontractor was the incumbent contractor and thus ineligible for award the prime

contractor proposed to hire the majority of the workforce from the subcontractor the p rime

contractors proposed program manager previously served as program manager for the

subcontractor on incumbent contract and the prime contractor lacked experience with

projects of the magnitude required of this procurement

Screen 127 Conference room

FEEDBACK CFR 121103(h)(4) states all aspects of the relationship between the prime and the

subcontractor are to be considered including but not limited to the terms of the proposal such

as contract management and the percentage of subcontract work agreement between the

prime and subcontractor and whether the subcontractor is the incumbent contractor and is

ineligible to submit a proposal because it exceeds the applicable size standard

Screen 128 Conference room

Connie I think we are good here Thank you for meeting Talk to you later

Screen 129 Conference room

SUMMARY Small Businesses are subject to a size protest on a small business set-aside before

award of a contract The SBA will normally make a determination of size status within 15 days

of receipt of protest To be considered by the SBA it is necessary that the protest be specific

and timely

FAR 19302 and 13 CFR Part 121 provide the specific rules for submitting a size representation

An appeal can be made to the SBA Office of Hearing and Appeals for re-consideration of an SBA

Area Office size protest decision In determining size protests the SBA will consider receipts

number of employees and affiliations of the protested concerns In examining affiliations the

SBA will look for an ostensible subcontracting relationship in which the subcontractor that

performs primary and vital requirements of a contract or a subcontractor upon which the prime

contractor is unusually reliant

If affiliation is found and the prime and the sub are considered large due then award cannot

be made If a size protest is not submitted timely or does not contain sufficient information to

make a size determination the protest will be dismissed The SBP role is to ensure that the

organization is aware of the regulations governing the SBA size protests

When a Small Business size representation protest andor an appeal to a size protest is

received the SBPs role is to advise and assist the acquisition team and Contracting Officer with

interpretation and application of corresponding FAR Part 19 and SBA 13 CFR requirements The

SBP may also advise the offeror or contractor on the procedures for submitting a protest prior

to issuing a solicitation After the solicitation has been issued all communication must be

through the Contracting Officer While this scenario discusses the procedures for a small

business representation protest the SBP needs to be aware that the socio-economic programs

ie HUBZones SDVOSB 8(a) and WOSB each have slightly different procedures which are set-

forth in FAR Part 19 Close attention must be made to both the applicable FAR Part 19 and SBA

13 CFR 121 requirements to provide proper advice and guidance on each type of protest and

appeal

Screen 130 Conference room This concludes the simulation The After Action Report (AAR) has

been created Download the AAR and review your performance in the simulation

After viewing the AAR use the browser close button to close this simulation and return to

screen 3 in the Size Protest lesson to complete this lesson

SBP220 Business Decisions for Small Business lesson 11 - Size Pr otest Simulation RESOURCES I PRINT I HELP

Summary

I Poge 5 of6 I Back Next

SBP220 Business Decisions for Small Business lesson 11 - Size Protest Simulation RESOURCES 1 PRINT 1 HELP

Summary

Closed Captioning Congratulations you have completed the Size Protest Simulation During this simulation you participated in activities common to interpreting data to verify the size of a small business Ensure that you review your After Action Report and if you did not respond correctly to all activities consider going through the simula tion again

I Pogo 5of6 I Back Next

SBP220 Business Decisions for Small Business lesson 11 - Size Protest Simulation RESOURCES I PRINT I HELP

Summary

Poge 5of6 I Back Next

SBP220 Business Decisions for Small Business Lesson 11 - Size Pr otest Simulation RESOURCES j PRINT j HElP

Lesson Completion

You have comple ted the con tent for this lesson

To continue select another lesson from the Table of Con tents on the le f t

If you have closed or hidden the Table of Contents select the Show T OC button at the t op in the Atlas navigation bar

~ I P o ge 6 of6 I Back Next

Screen 64 Conference room

Asha Sure I can fill out the referral letter Irsquoll have it completed by tomorrow Bye

Screen 65 Conference room

Connie Once I receive the letter from Asha I will send it off to SBA Thanks Have a great rest of your day

Screen 66 Hour office TWO DAYS LATER - As you enter your office the phone rings

Asha Hello this is Asha I just wanted to let you know that the SBA has returned the protest They stated that the Contracting Officer needs to fill out the referral letter SBA also included a list of items that the protest package should contain I left the list in your inbox

Screen 67 Your office

Asha I will get with Connie to make sure that the correct information gets sent to the SBA Bye

Screen 68 Your office Read the Protest Package letter

Screen 69 Conference room THREE DAYS LATER - Connie has called a meeting of the team to discuss the size protest from ELMO

Connie Thank you everyone for coming As you all know the protest has slowed down the

process of awarding the contract This mishap about who should fill out the referral letter has

cause us even more delay which potentially will impact the delivery schedule

Screen 70 conference room

Connie The protest package has been completed and sent back to the SBA Everything should be in order and now we just wait to hear back from the SBA I brought in copies of the referral letter and the CDI representation letter for everyone to take a look at

Screen 71 Conference room Read the Referral Letter CDI Representation and Size Determination documents

Screen 72 Conference room CONSEQUENCE OF YOUR ACTIONS The SBA sent the protest back This has resulted in a delay in the SBA deciding the protest and potential delay of award of the contract which could result in a delay in performance of delivery or service resulting in additional costs to the Government

Screen 73 Conference room

Connie Thatrsquos it Ok I can definitely take care of that today Thank you

Screen 74 Your office It has been several days since you spoke to Connie about the small

business representation protest requirements As you sit down to start your day you notice you

have a voicemail

Jenny Hello Can you stop by the conference room when you get this message Thanks

Screen 75 Conference room

Connie Hello Thanks for coming I just wanted to inform you that the protest package has

been completed and sent back to the SBA Everything should be in order and now we just wait

to hear back from the SBA I brought in copies of the referral letter and the CDI representation

letter for everyone to take a look at

Screen 76 Conference room Read the Referral Letter CDI Representation and Size

Determination documents

Screen 77 Conference room

FEEDBACK According to FAR 19302(c)(3) a small business representation protest shall include

the basis of the protest and include a referral letter signed by the Contracting Officer with

information pertaining to the solicitation and include (i) the protest and any accompanying

materials (ii) a copy of the size self-certification (iii) Identification of applicable size standard

(iv) a copy of the electronic link to the solicitation and any amendments (v) the name address

telephone number email address and number of the Contracting Officer (vi) identification of

the bid opening date or date of notification provided to unsuccessful offerors (vii) the date the

Contracting Officer received the protest (viii) a complete address and point of contact for the

protested concern An offeror the SBA or another interested party may protest the small

business representation of an offeror in a specific offer (FAR 19302(a)(2)) For competitive 8(a)

contracts the filing of a protest is limited to the Contracting Officer an offeror or the SBA The

Contracting Officer may also submit a small business representation protest at any time before

or after award (FAR 19302(a) and (b))

Screen 78 Your office A WEEK LATER - As you come back from lunch with Janet you get a visit

from Jenny She has not heard anything about the protest for several days and would like

clarification on the protest process with the SBA

Jenny Hi I just wanted to clarify the notification process of the protest It has been five days

since the documents were submitted to the SBA and we have not heard anything as of yet

Connie also gave me this form that I am unfamiliar with I put it in your inbox

Screen 79 Your office Read the SBA Form 355

Screen 80 Your office

Jenny Hey Janet what is the SBA Government Contracting Area Directors process after

receiving a size determination protest

Screen 81 Your office

Janet When SBA receives a size protest the SBA Area Director for Government Contracting or

designee will notify the contracting officer the protested concern and the protestor that the

protest has been received SBA will provide a blank copy of SBA Form 355 Application for Small

Business Determination to the concern whose size is at issue The protested concern or

concern whose size is at issue must return the completed SBA Form 355 and all other requested

information to SBA within 3 working days from the date of receipt of the blank form from SBA

SBA has discretion to grant an extension of time to file the form After receipt of a protest or a

request for a formal size determination the SBA Area Office will issue a formal size

determination within 15 business days if possible or within an extension granted by the

Contracting Officer in accordance with FAR 19302(e)

Screen 82 Your office

Jenny Thank you for clarifying the process Irsquoll see you both later

Screen 83 Your office

Janet Yes I have to get back to the office too Irsquoll see you later

Screen 84 Your office THE NEXT DAY - You re-enter your office from a break and receive a

phone call

Jenny Hello I forgot to ask when the Contracting Officer may award a contract that has a small

business size protest

Activity 84-1 Your office

Question Jenny When may the Contracting Officer award a contract that has been protested

Choice 1 Only after the SBA makes a determination of the small business representation

protest - Proceed to screen 85

Choice 2 When the SBA makes a decision or 15 business days have expired whichever comes

first however the CO may award a contract before an SBA determination is made when he

makes a written determination that award must be made to protect public interest - Proceed

to screen 105

Choice 3 The Contracting Officer does not have to wait for SBA to make the determination -

Proceed to screen 95

Screen 85 Your office

Jenny Ok so I guess we just wait until the SBA makes a determination Thanks

Screen 86 Program Managerrsquos Office THE NEXT DAY - Asha has requested that you come by

her office As you walk into Asharsquos office Connie is already there

Asha Connie was just informing me that she has decided to wait on SBAs decision about the

protest before awarding the contract Just want to inform the both of you that the incumbent

contract expires 18 days after the submittal of the protest to the SBA

Screen 87 Program Managerrsquos Office

Connie That is a good point Asha The risk of me waiting too long will result in expiration of the

contract A lapse between contracts is unacceptable as that may adversely impact the

warfighter

Activity 84-2 Program Managerrsquos Office

Question Connie When may the Contracting Officer award a contract that has been

protested

Choice 1 When the SBA makes a decision or 15 business days have expired whichever comes

first however the CO may award a contract before an SBA determination is made when he

makes a written determination that award must be made to protect public interest - Proceed

to screen 103

Choice 2 The Contracting Officer does not have to wait for SBA to make the determination -

Proceed to screen 88

Screen 88 Program Managerrsquos Office

Connie If that is the case letrsquos wait about a week and then award the contract Thanks

everyone

Screen 90 Your office FIVE DAYS LATER - SBA renders its decision on the required 15th

business day finding that the apparent successful offeror was not eligible for the award

Connie Meeting today at 2 PM

Screen 91 Conference room 2 PM - Connie has called in Asha Jenny and Ian to the

conference room

Connie As you are aware SBA came back with the decision that ELMO was not eligible for the

award Because it is so close to the completion of the source selection we may be able to go

back and award to the offeror that was second in line based on evaluation results

Screen 92 Conference room

Ian We would have to get the acquisition team together with legal SBA and leadership but

we might be able to accomplish that without having to start the procurement over again

Screen 93 Conference room

Connie Thanks everyone I will keep you posted

Screen 94 Conference room CONSEQUENCE OF YOUR ACTIONS Awarding the contract

without waiting for SBA to make a decision on the appeal is a violation of FAR policy (FAR

19302(g)(2) this type of violation could result in significant impacts inclusive of the

Contracting Officer having to terminate the unauthorized contract Additional fallout may occur

by having to re-accomplish the procurement entirely since the source selection was effectively

completed upon award of the unauthorized contract to the ineligible company Reprocurement

risk would be dependent upon the acquisition circumstances timing and viewpoints of the key

stakeholders and decision-makers

FEEDBACK After receiving a size protest involving a new procurement the Contracting Officer

shall not award the contract until the SBA has made a size determination or after 15 business

days have expired whichever comes first However the Contracting Officer may award a

contract before an SBA determination is made when shehe makes a written determination

that award must be made to protect the public interest (FAR 19302(g)(1))

Screen 95 Your office

Jenny Ok I will inform Connie Thanks

Screen 96 COrsquos office LATER THAT DAY - Connie has asked you to come by her office

Connie Hello Thanks for coming by Jenny tells me that you said that we do not need to wait

for SBA to make the determination about the size protest What happens if we award the

contract and then SBA finds the apparent successful offeror was not eligible for the award

Maybe you should double check the regulation

Activity 84-3 COrsquos office

Question Connie When may the Contracting Officer award a contract that has been

protested

Choice 1 Only after the SBA makes a determination of the small business representation

protest - Proceed to screen 97

Choice 2 When the SBA makes a decision or 15 business days have expired whichever comes

first however the CO may award a contract before an SBA determination is made when he

makes a written determination that award must be made to protect public interest - Proceed

to screen 104

Screen 97 COrsquos office

Connie Ok so I guess we just wait until the SBA makes a determination

Screen 98 Program Managerrsquos Office LATER THAT DAY - Asha has requested that you come by

her office As you walk into Asharsquos office Connie is already there

Asha Connie was just informing me that she has decided to wait on SBAs decision about the

protest before awarding the contract Just want to inform the both of you that the current

contract expires 18 days after the submittal of the protest to the SBA

Screen 99 Program Managerrsquos Office

Connie That is a good point Asha The risk of me waiting too long will result in expiration of the

incumbents contract and work stoppage for security guard services

Screen 100 Program Managerrsquos Office

Asha I looked up the regulation and it states that we should wait up to 15 business days and

then we may award the contract

Screen 101 Program Managerrsquos Office

Connie Thanks That is what we will do and hopefully SBA will respond before the 15 days

Screen 102 Program Managerrsquos Office CONSEQUENCE OF YOUR ACTIONS Not thoroughly

understanding the protest procedures and being uninformed of program needs and imp acts

could result in adverse impacts to the warfighter

FEEDBACK After receiving a size protest involving a new procurement the Contracting Officer

shall not award the contract until the SBA has made a size determination or after 15 business

days have expired whichever comes first However the Contracting Officer may award a

contract before an SBA determination is made when shehe makes a written determination

that award must be made to protect the public interest (FAR 19302(g)(1))

Screen 103 Program Managerrsquos Office

Connie Ok we wait for 15 business days That sounds much better Thanks - Proceed to

screen 106

Screen 104 COrsquos office

FEEDBACK After receiving a size protest involving a new procurement the Contracting Officer

shall not award the contract until the SBA has made a size determination or after 15 business

days have expired whichever comes first However the Contracting Officer may award a

contract before an SBA determination is made when shehe makes a written determination

that award must be made to protect the public interest (FAR 19302(g)(1))

Connie Ok we wait for 15 business days That sounds much better Thanks - Proceed to

screen 107

Screen 105 Your office

FEEDBACK After receiving a size protest involving a new procurement the Contracting Officer shall not award the contract until the SBA has made a size determination or after 15 business days have expired whichever comes first However the Contracting Officer may award a contract before an SBA determination is made when shehe makes a written determination that award must be made to protect the public interest (FAR 19302(g)(1))

Jenny Ok we wait for 15 business days Thanks - Proceed to screen 107

Screen 106 Program Managerrsquos office FEEDBACK After receiving a size protest involving a new procurement the Contracting Officer shall not award the contract until the SBA has made a size determination or after 15 business days have expired whichever comes first However the Contracting Officer may award a contract before an SBA determination is made when shehe makes a written determination that award must be made to protect the public interest (FAR 19302(g)(1))

Screen 107 Your office TWO DAYS LATER - Itrsquos been two days since your conversation with Jenny You notice that you have a new e-mail

To Acquisition Team Attachment Appeal Letter

From Grace CDI Contractor

Subject ELMO protest upheld

Hello

I just heard that ELMOs protest was upheld We believe the decision was based on erroneous information so we want to appeal Can you give me some guidance in the process for submitting an appeal

I have attached the appeal and size determination letters

Sincerely

Grace CDI Contractor

Activity 107-1 Your office

Question Grace What is the process for submitting an appeal for a size protest determination

Choice 1 IAW FAR 19302(h) an appeal may be filed with the SBA Office of Hearings and Appeals by any concern or interested party whose protest of the small business representation of another concern has been denied - Proceed to screen 111

Choice 2 An appeal may be filed by any concern or interested party to protest the small business representation of another concern to the Contracting Officer - Proceed to screen 108

Screen 108 Your office THREE DAYS LATER Connie comes by your office

Connie Hello there I just received the appeal from CDI through the mail channels and realized

that the protestor sent it to me in error I am having Jenny mail the appeal package back to CDI

Screen 109 Your office As you get back to your desk you notice that you have a voicemail

Grace Hello this is Grace from CDI Looks like I sent my appeal to the wrong location I was not

supposed to send it to the Contracting Officer I have re-sent the appeal to SBA OHA I hope

that its not too late because they will deny my appeal if untimely

Screen 110 Your office CONSEQUENCES OF YOUR ACTIONS Filing the appeal with the

Contracting Officer would result in lost time for the protestor because the appeal must be filed

with SBA OHA The concern encounters a greater risk of denial by SBA OHA if the appeal is not

filed within the time frame listed in Subpart C of 13 CFR 134

Screen 111 Your office The agency awaits confirmation from SBA OHA as to the standing of

the appeal and related impacts to the ongoing procurement You leave for the weekend

Screen 112 Your office FEEDBACK An appeal may be filed only when the small business

representation protest has been denied by the SBA Government Contracting Area Director and

within the time frames and in accordance with the procedures outlined in Subpart C of 13 CFR

Part 134 (IAW FAR 19302(h)) While a Contracting officer may file an appeal of their own the

concern or interested party must file the appeal to the SBA Office of Hearings and Appeals

(OHA) within the time frame and in accordance with the procedures listed in Subpart C of 13

CFR 134

Screen 113 Your office You return to the office on Monday morning You have a new e-mail

E-mail CDI appeal

To You SBP

From Connie Contracting Officer

Subject CDI Appeal

Hello

I would like to have a meeting with you and our lawyer Ian and Jenny to review the CDI size

appeal to the SBA Office of Hearings and Appeals Please check your calendar to see if you are

free tomorrow afternoon Let me know if you can make it

Sincerely

Connie

Contracting Officer

Screen 114 Conference room THE NEXT DAY - You Connie Jenny and the departmentrsquos

lawyer Ian are in a conference room

Ian Glad you could make the meeting We have been informed that Corporate Defenders is

appealing the SBAs decision Because of the potential impact the appeals process may have on

our current security guard services and before we make a decision on what we should do

about continuation of those services I would like to discuss the basis of the original size protest

by ELMO in the Corporate Defenders appeal to determine whether we think it will be denied

What was the basis of the original size protest by ELMO in the Corporate Defenders appeal

Screen 115 Conference room

Jenny The basis of the original protest is that Corporate Defenders Inc is affiliated with Rivers

under the ostensible subcontracting rule

Screen 116 Conference room

Connie Now that we have determined it is a size representation issue does this fall within the

affiliation under the ostensible subcontracting rule

Screen 117 Conference room

Ian The regulation defines an ostensible subcontractor as a subcontractor that performs

primary and vital requirements or when the prime contractor is unusually reliant upon the

subcontractor In this case CDI would be relying on the workforce and management of Rivers

to fulfill the requirements of the contract Therefore the combined size standards of CDI and

Rivers exceeds the size standard for this procurement according to 13 CFR 121103(h)(4)

Screen 118 Conference room

Connie The SBA Area Office found that under the ostensible subcontracting rule CDI was

considered a large business because of its affiliation with Rivers CDI appealed the ruling to the

SBA Office of Hearings and Appeals stating that CDI was not overly reliant on Rivers for

performing the contract and that CDI will serve as the prime contractor ELMO argued that

there is an ostensible subcontracting affiliation with CDI and Rivers and that Rivers is a large

business and thus CDI is ineligible for award What factors could lead to the appeal being

denied

Activity 118-1 Conference room

Question Connie What factors led to the appeal being denied

Choice 1 Rivers was a large business and thus ineligible for the award - Proceed to screen 119

Choice 2 CFR 121103(h)(4) states only the terms of the proposal are applicable to determining

the teaming agreement between the prime and subcontractor - Proceed to screen 123

Choice 3 There is ostensible subcontracting based on the fact that the proposed subcontractor

is the incumbent contractor and thus ineligible for award the prime contractor proposed to

hire the majority of the workforce from the subcontractor the prime contractors proposed

program manager previously served as program manager for the subcontractor on incumbent

contract and the prime contractor lacked experience with projects of the magnitude required

of this procurement This makes the offeror ineligible for award - Proceed to screen 127

Screen 119 Conference room

Ian I believe that is an incorrect assumption since Rivers was only going to perform 43 percent

of the work for a small business This alone would not make Rivers an ostensible subcontractor

Activity 118-2 Conference room

Question Connie What factors led to the appeal being denied

Choice 1 There is ostensible subcontracting based on the fact that the proposed subcontractor

was the incumbent contractor and thus ineligible for award - Proceed to screen 127

Choice 2 CFR 121103(h)(4) states that only the terms of the proposal are applicable to

determining the teaming agreement between the prime and subcontractor - Proceed to screen

120

Screen 120 Conference room

Ian I believe this is an incorrect assumption All aspects of the relationship between CDI and

Rivers are to be considered

Screen 121 Conference room

Connie Letrsquos reference back to the ruling and the reason why there was an ostensible

subcontract

Screen 122 Conference room

Connie It appears that there was ostensible subcontracting based on the fact that the

proposed subcontractor was the incumbent contractor and thus ineligible for award the prime

contractor proposed to hire the majority of the workforce from the subcontractor the prime

contractors proposed program manager previously served as program manager for the

subcontractor on incumbent contract and the prime contractor lacked experience with

projects of the magnitude required of this procurement - Proceed to screen 127

Screen 123 Conference room

Ian I believe this is an incorrect assumption All aspects of the relationship between CDI and

Rivers are to be considered

Activity 118-3 conference room

Question Ian What factors led to the appeal being denied

Choice 1 Rivers was a large business and thus ineligible for the award - Proceed to screen 124

Choice 2 There is ostensible subcontracting based on the fact that the proposed subcontractor

was the incumbent contractor and thus ineligible for award - Proceed to screen 127

Screen 124 Conference room

Ian I believe that is an incorrect assumption since Rivers was only going to perform 43 percent

of the work for a small business This alone would not make Rivers an ostensible subcontractor

Screen 125 Conference room

Connie Letrsquos reference back to the ruling and the reason why there was an ostensible

subcontract

Screen 126 Conference room

Connie It appears that there was ostensible subcontracting based on the fact that the

proposed subcontractor was the incumbent contractor and thus ineligible for award the prime

contractor proposed to hire the majority of the workforce from the subcontractor the p rime

contractors proposed program manager previously served as program manager for the

subcontractor on incumbent contract and the prime contractor lacked experience with

projects of the magnitude required of this procurement

Screen 127 Conference room

FEEDBACK CFR 121103(h)(4) states all aspects of the relationship between the prime and the

subcontractor are to be considered including but not limited to the terms of the proposal such

as contract management and the percentage of subcontract work agreement between the

prime and subcontractor and whether the subcontractor is the incumbent contractor and is

ineligible to submit a proposal because it exceeds the applicable size standard

Screen 128 Conference room

Connie I think we are good here Thank you for meeting Talk to you later

Screen 129 Conference room

SUMMARY Small Businesses are subject to a size protest on a small business set-aside before

award of a contract The SBA will normally make a determination of size status within 15 days

of receipt of protest To be considered by the SBA it is necessary that the protest be specific

and timely

FAR 19302 and 13 CFR Part 121 provide the specific rules for submitting a size representation

An appeal can be made to the SBA Office of Hearing and Appeals for re-consideration of an SBA

Area Office size protest decision In determining size protests the SBA will consider receipts

number of employees and affiliations of the protested concerns In examining affiliations the

SBA will look for an ostensible subcontracting relationship in which the subcontractor that

performs primary and vital requirements of a contract or a subcontractor upon which the prime

contractor is unusually reliant

If affiliation is found and the prime and the sub are considered large due then award cannot

be made If a size protest is not submitted timely or does not contain sufficient information to

make a size determination the protest will be dismissed The SBP role is to ensure that the

organization is aware of the regulations governing the SBA size protests

When a Small Business size representation protest andor an appeal to a size protest is

received the SBPs role is to advise and assist the acquisition team and Contracting Officer with

interpretation and application of corresponding FAR Part 19 and SBA 13 CFR requirements The

SBP may also advise the offeror or contractor on the procedures for submitting a protest prior

to issuing a solicitation After the solicitation has been issued all communication must be

through the Contracting Officer While this scenario discusses the procedures for a small

business representation protest the SBP needs to be aware that the socio-economic programs

ie HUBZones SDVOSB 8(a) and WOSB each have slightly different procedures which are set-

forth in FAR Part 19 Close attention must be made to both the applicable FAR Part 19 and SBA

13 CFR 121 requirements to provide proper advice and guidance on each type of protest and

appeal

Screen 130 Conference room This concludes the simulation The After Action Report (AAR) has

been created Download the AAR and review your performance in the simulation

After viewing the AAR use the browser close button to close this simulation and return to

screen 3 in the Size Protest lesson to complete this lesson

SBP220 Business Decisions for Small Business lesson 11 - Size Pr otest Simulation RESOURCES I PRINT I HELP

Summary

I Poge 5 of6 I Back Next

SBP220 Business Decisions for Small Business lesson 11 - Size Protest Simulation RESOURCES 1 PRINT 1 HELP

Summary

Closed Captioning Congratulations you have completed the Size Protest Simulation During this simulation you participated in activities common to interpreting data to verify the size of a small business Ensure that you review your After Action Report and if you did not respond correctly to all activities consider going through the simula tion again

I Pogo 5of6 I Back Next

SBP220 Business Decisions for Small Business lesson 11 - Size Protest Simulation RESOURCES I PRINT I HELP

Summary

Poge 5of6 I Back Next

SBP220 Business Decisions for Small Business Lesson 11 - Size Pr otest Simulation RESOURCES j PRINT j HElP

Lesson Completion

You have comple ted the con tent for this lesson

To continue select another lesson from the Table of Con tents on the le f t

If you have closed or hidden the Table of Contents select the Show T OC button at the t op in the Atlas navigation bar

~ I P o ge 6 of6 I Back Next

Screen 74 Your office It has been several days since you spoke to Connie about the small

business representation protest requirements As you sit down to start your day you notice you

have a voicemail

Jenny Hello Can you stop by the conference room when you get this message Thanks

Screen 75 Conference room

Connie Hello Thanks for coming I just wanted to inform you that the protest package has

been completed and sent back to the SBA Everything should be in order and now we just wait

to hear back from the SBA I brought in copies of the referral letter and the CDI representation

letter for everyone to take a look at

Screen 76 Conference room Read the Referral Letter CDI Representation and Size

Determination documents

Screen 77 Conference room

FEEDBACK According to FAR 19302(c)(3) a small business representation protest shall include

the basis of the protest and include a referral letter signed by the Contracting Officer with

information pertaining to the solicitation and include (i) the protest and any accompanying

materials (ii) a copy of the size self-certification (iii) Identification of applicable size standard

(iv) a copy of the electronic link to the solicitation and any amendments (v) the name address

telephone number email address and number of the Contracting Officer (vi) identification of

the bid opening date or date of notification provided to unsuccessful offerors (vii) the date the

Contracting Officer received the protest (viii) a complete address and point of contact for the

protested concern An offeror the SBA or another interested party may protest the small

business representation of an offeror in a specific offer (FAR 19302(a)(2)) For competitive 8(a)

contracts the filing of a protest is limited to the Contracting Officer an offeror or the SBA The

Contracting Officer may also submit a small business representation protest at any time before

or after award (FAR 19302(a) and (b))

Screen 78 Your office A WEEK LATER - As you come back from lunch with Janet you get a visit

from Jenny She has not heard anything about the protest for several days and would like

clarification on the protest process with the SBA

Jenny Hi I just wanted to clarify the notification process of the protest It has been five days

since the documents were submitted to the SBA and we have not heard anything as of yet

Connie also gave me this form that I am unfamiliar with I put it in your inbox

Screen 79 Your office Read the SBA Form 355

Screen 80 Your office

Jenny Hey Janet what is the SBA Government Contracting Area Directors process after

receiving a size determination protest

Screen 81 Your office

Janet When SBA receives a size protest the SBA Area Director for Government Contracting or

designee will notify the contracting officer the protested concern and the protestor that the

protest has been received SBA will provide a blank copy of SBA Form 355 Application for Small

Business Determination to the concern whose size is at issue The protested concern or

concern whose size is at issue must return the completed SBA Form 355 and all other requested

information to SBA within 3 working days from the date of receipt of the blank form from SBA

SBA has discretion to grant an extension of time to file the form After receipt of a protest or a

request for a formal size determination the SBA Area Office will issue a formal size

determination within 15 business days if possible or within an extension granted by the

Contracting Officer in accordance with FAR 19302(e)

Screen 82 Your office

Jenny Thank you for clarifying the process Irsquoll see you both later

Screen 83 Your office

Janet Yes I have to get back to the office too Irsquoll see you later

Screen 84 Your office THE NEXT DAY - You re-enter your office from a break and receive a

phone call

Jenny Hello I forgot to ask when the Contracting Officer may award a contract that has a small

business size protest

Activity 84-1 Your office

Question Jenny When may the Contracting Officer award a contract that has been protested

Choice 1 Only after the SBA makes a determination of the small business representation

protest - Proceed to screen 85

Choice 2 When the SBA makes a decision or 15 business days have expired whichever comes

first however the CO may award a contract before an SBA determination is made when he

makes a written determination that award must be made to protect public interest - Proceed

to screen 105

Choice 3 The Contracting Officer does not have to wait for SBA to make the determination -

Proceed to screen 95

Screen 85 Your office

Jenny Ok so I guess we just wait until the SBA makes a determination Thanks

Screen 86 Program Managerrsquos Office THE NEXT DAY - Asha has requested that you come by

her office As you walk into Asharsquos office Connie is already there

Asha Connie was just informing me that she has decided to wait on SBAs decision about the

protest before awarding the contract Just want to inform the both of you that the incumbent

contract expires 18 days after the submittal of the protest to the SBA

Screen 87 Program Managerrsquos Office

Connie That is a good point Asha The risk of me waiting too long will result in expiration of the

contract A lapse between contracts is unacceptable as that may adversely impact the

warfighter

Activity 84-2 Program Managerrsquos Office

Question Connie When may the Contracting Officer award a contract that has been

protested

Choice 1 When the SBA makes a decision or 15 business days have expired whichever comes

first however the CO may award a contract before an SBA determination is made when he

makes a written determination that award must be made to protect public interest - Proceed

to screen 103

Choice 2 The Contracting Officer does not have to wait for SBA to make the determination -

Proceed to screen 88

Screen 88 Program Managerrsquos Office

Connie If that is the case letrsquos wait about a week and then award the contract Thanks

everyone

Screen 90 Your office FIVE DAYS LATER - SBA renders its decision on the required 15th

business day finding that the apparent successful offeror was not eligible for the award

Connie Meeting today at 2 PM

Screen 91 Conference room 2 PM - Connie has called in Asha Jenny and Ian to the

conference room

Connie As you are aware SBA came back with the decision that ELMO was not eligible for the

award Because it is so close to the completion of the source selection we may be able to go

back and award to the offeror that was second in line based on evaluation results

Screen 92 Conference room

Ian We would have to get the acquisition team together with legal SBA and leadership but

we might be able to accomplish that without having to start the procurement over again

Screen 93 Conference room

Connie Thanks everyone I will keep you posted

Screen 94 Conference room CONSEQUENCE OF YOUR ACTIONS Awarding the contract

without waiting for SBA to make a decision on the appeal is a violation of FAR policy (FAR

19302(g)(2) this type of violation could result in significant impacts inclusive of the

Contracting Officer having to terminate the unauthorized contract Additional fallout may occur

by having to re-accomplish the procurement entirely since the source selection was effectively

completed upon award of the unauthorized contract to the ineligible company Reprocurement

risk would be dependent upon the acquisition circumstances timing and viewpoints of the key

stakeholders and decision-makers

FEEDBACK After receiving a size protest involving a new procurement the Contracting Officer

shall not award the contract until the SBA has made a size determination or after 15 business

days have expired whichever comes first However the Contracting Officer may award a

contract before an SBA determination is made when shehe makes a written determination

that award must be made to protect the public interest (FAR 19302(g)(1))

Screen 95 Your office

Jenny Ok I will inform Connie Thanks

Screen 96 COrsquos office LATER THAT DAY - Connie has asked you to come by her office

Connie Hello Thanks for coming by Jenny tells me that you said that we do not need to wait

for SBA to make the determination about the size protest What happens if we award the

contract and then SBA finds the apparent successful offeror was not eligible for the award

Maybe you should double check the regulation

Activity 84-3 COrsquos office

Question Connie When may the Contracting Officer award a contract that has been

protested

Choice 1 Only after the SBA makes a determination of the small business representation

protest - Proceed to screen 97

Choice 2 When the SBA makes a decision or 15 business days have expired whichever comes

first however the CO may award a contract before an SBA determination is made when he

makes a written determination that award must be made to protect public interest - Proceed

to screen 104

Screen 97 COrsquos office

Connie Ok so I guess we just wait until the SBA makes a determination

Screen 98 Program Managerrsquos Office LATER THAT DAY - Asha has requested that you come by

her office As you walk into Asharsquos office Connie is already there

Asha Connie was just informing me that she has decided to wait on SBAs decision about the

protest before awarding the contract Just want to inform the both of you that the current

contract expires 18 days after the submittal of the protest to the SBA

Screen 99 Program Managerrsquos Office

Connie That is a good point Asha The risk of me waiting too long will result in expiration of the

incumbents contract and work stoppage for security guard services

Screen 100 Program Managerrsquos Office

Asha I looked up the regulation and it states that we should wait up to 15 business days and

then we may award the contract

Screen 101 Program Managerrsquos Office

Connie Thanks That is what we will do and hopefully SBA will respond before the 15 days

Screen 102 Program Managerrsquos Office CONSEQUENCE OF YOUR ACTIONS Not thoroughly

understanding the protest procedures and being uninformed of program needs and imp acts

could result in adverse impacts to the warfighter

FEEDBACK After receiving a size protest involving a new procurement the Contracting Officer

shall not award the contract until the SBA has made a size determination or after 15 business

days have expired whichever comes first However the Contracting Officer may award a

contract before an SBA determination is made when shehe makes a written determination

that award must be made to protect the public interest (FAR 19302(g)(1))

Screen 103 Program Managerrsquos Office

Connie Ok we wait for 15 business days That sounds much better Thanks - Proceed to

screen 106

Screen 104 COrsquos office

FEEDBACK After receiving a size protest involving a new procurement the Contracting Officer

shall not award the contract until the SBA has made a size determination or after 15 business

days have expired whichever comes first However the Contracting Officer may award a

contract before an SBA determination is made when shehe makes a written determination

that award must be made to protect the public interest (FAR 19302(g)(1))

Connie Ok we wait for 15 business days That sounds much better Thanks - Proceed to

screen 107

Screen 105 Your office

FEEDBACK After receiving a size protest involving a new procurement the Contracting Officer shall not award the contract until the SBA has made a size determination or after 15 business days have expired whichever comes first However the Contracting Officer may award a contract before an SBA determination is made when shehe makes a written determination that award must be made to protect the public interest (FAR 19302(g)(1))

Jenny Ok we wait for 15 business days Thanks - Proceed to screen 107

Screen 106 Program Managerrsquos office FEEDBACK After receiving a size protest involving a new procurement the Contracting Officer shall not award the contract until the SBA has made a size determination or after 15 business days have expired whichever comes first However the Contracting Officer may award a contract before an SBA determination is made when shehe makes a written determination that award must be made to protect the public interest (FAR 19302(g)(1))

Screen 107 Your office TWO DAYS LATER - Itrsquos been two days since your conversation with Jenny You notice that you have a new e-mail

To Acquisition Team Attachment Appeal Letter

From Grace CDI Contractor

Subject ELMO protest upheld

Hello

I just heard that ELMOs protest was upheld We believe the decision was based on erroneous information so we want to appeal Can you give me some guidance in the process for submitting an appeal

I have attached the appeal and size determination letters

Sincerely

Grace CDI Contractor

Activity 107-1 Your office

Question Grace What is the process for submitting an appeal for a size protest determination

Choice 1 IAW FAR 19302(h) an appeal may be filed with the SBA Office of Hearings and Appeals by any concern or interested party whose protest of the small business representation of another concern has been denied - Proceed to screen 111

Choice 2 An appeal may be filed by any concern or interested party to protest the small business representation of another concern to the Contracting Officer - Proceed to screen 108

Screen 108 Your office THREE DAYS LATER Connie comes by your office

Connie Hello there I just received the appeal from CDI through the mail channels and realized

that the protestor sent it to me in error I am having Jenny mail the appeal package back to CDI

Screen 109 Your office As you get back to your desk you notice that you have a voicemail

Grace Hello this is Grace from CDI Looks like I sent my appeal to the wrong location I was not

supposed to send it to the Contracting Officer I have re-sent the appeal to SBA OHA I hope

that its not too late because they will deny my appeal if untimely

Screen 110 Your office CONSEQUENCES OF YOUR ACTIONS Filing the appeal with the

Contracting Officer would result in lost time for the protestor because the appeal must be filed

with SBA OHA The concern encounters a greater risk of denial by SBA OHA if the appeal is not

filed within the time frame listed in Subpart C of 13 CFR 134

Screen 111 Your office The agency awaits confirmation from SBA OHA as to the standing of

the appeal and related impacts to the ongoing procurement You leave for the weekend

Screen 112 Your office FEEDBACK An appeal may be filed only when the small business

representation protest has been denied by the SBA Government Contracting Area Director and

within the time frames and in accordance with the procedures outlined in Subpart C of 13 CFR

Part 134 (IAW FAR 19302(h)) While a Contracting officer may file an appeal of their own the

concern or interested party must file the appeal to the SBA Office of Hearings and Appeals

(OHA) within the time frame and in accordance with the procedures listed in Subpart C of 13

CFR 134

Screen 113 Your office You return to the office on Monday morning You have a new e-mail

E-mail CDI appeal

To You SBP

From Connie Contracting Officer

Subject CDI Appeal

Hello

I would like to have a meeting with you and our lawyer Ian and Jenny to review the CDI size

appeal to the SBA Office of Hearings and Appeals Please check your calendar to see if you are

free tomorrow afternoon Let me know if you can make it

Sincerely

Connie

Contracting Officer

Screen 114 Conference room THE NEXT DAY - You Connie Jenny and the departmentrsquos

lawyer Ian are in a conference room

Ian Glad you could make the meeting We have been informed that Corporate Defenders is

appealing the SBAs decision Because of the potential impact the appeals process may have on

our current security guard services and before we make a decision on what we should do

about continuation of those services I would like to discuss the basis of the original size protest

by ELMO in the Corporate Defenders appeal to determine whether we think it will be denied

What was the basis of the original size protest by ELMO in the Corporate Defenders appeal

Screen 115 Conference room

Jenny The basis of the original protest is that Corporate Defenders Inc is affiliated with Rivers

under the ostensible subcontracting rule

Screen 116 Conference room

Connie Now that we have determined it is a size representation issue does this fall within the

affiliation under the ostensible subcontracting rule

Screen 117 Conference room

Ian The regulation defines an ostensible subcontractor as a subcontractor that performs

primary and vital requirements or when the prime contractor is unusually reliant upon the

subcontractor In this case CDI would be relying on the workforce and management of Rivers

to fulfill the requirements of the contract Therefore the combined size standards of CDI and

Rivers exceeds the size standard for this procurement according to 13 CFR 121103(h)(4)

Screen 118 Conference room

Connie The SBA Area Office found that under the ostensible subcontracting rule CDI was

considered a large business because of its affiliation with Rivers CDI appealed the ruling to the

SBA Office of Hearings and Appeals stating that CDI was not overly reliant on Rivers for

performing the contract and that CDI will serve as the prime contractor ELMO argued that

there is an ostensible subcontracting affiliation with CDI and Rivers and that Rivers is a large

business and thus CDI is ineligible for award What factors could lead to the appeal being

denied

Activity 118-1 Conference room

Question Connie What factors led to the appeal being denied

Choice 1 Rivers was a large business and thus ineligible for the award - Proceed to screen 119

Choice 2 CFR 121103(h)(4) states only the terms of the proposal are applicable to determining

the teaming agreement between the prime and subcontractor - Proceed to screen 123

Choice 3 There is ostensible subcontracting based on the fact that the proposed subcontractor

is the incumbent contractor and thus ineligible for award the prime contractor proposed to

hire the majority of the workforce from the subcontractor the prime contractors proposed

program manager previously served as program manager for the subcontractor on incumbent

contract and the prime contractor lacked experience with projects of the magnitude required

of this procurement This makes the offeror ineligible for award - Proceed to screen 127

Screen 119 Conference room

Ian I believe that is an incorrect assumption since Rivers was only going to perform 43 percent

of the work for a small business This alone would not make Rivers an ostensible subcontractor

Activity 118-2 Conference room

Question Connie What factors led to the appeal being denied

Choice 1 There is ostensible subcontracting based on the fact that the proposed subcontractor

was the incumbent contractor and thus ineligible for award - Proceed to screen 127

Choice 2 CFR 121103(h)(4) states that only the terms of the proposal are applicable to

determining the teaming agreement between the prime and subcontractor - Proceed to screen

120

Screen 120 Conference room

Ian I believe this is an incorrect assumption All aspects of the relationship between CDI and

Rivers are to be considered

Screen 121 Conference room

Connie Letrsquos reference back to the ruling and the reason why there was an ostensible

subcontract

Screen 122 Conference room

Connie It appears that there was ostensible subcontracting based on the fact that the

proposed subcontractor was the incumbent contractor and thus ineligible for award the prime

contractor proposed to hire the majority of the workforce from the subcontractor the prime

contractors proposed program manager previously served as program manager for the

subcontractor on incumbent contract and the prime contractor lacked experience with

projects of the magnitude required of this procurement - Proceed to screen 127

Screen 123 Conference room

Ian I believe this is an incorrect assumption All aspects of the relationship between CDI and

Rivers are to be considered

Activity 118-3 conference room

Question Ian What factors led to the appeal being denied

Choice 1 Rivers was a large business and thus ineligible for the award - Proceed to screen 124

Choice 2 There is ostensible subcontracting based on the fact that the proposed subcontractor

was the incumbent contractor and thus ineligible for award - Proceed to screen 127

Screen 124 Conference room

Ian I believe that is an incorrect assumption since Rivers was only going to perform 43 percent

of the work for a small business This alone would not make Rivers an ostensible subcontractor

Screen 125 Conference room

Connie Letrsquos reference back to the ruling and the reason why there was an ostensible

subcontract

Screen 126 Conference room

Connie It appears that there was ostensible subcontracting based on the fact that the

proposed subcontractor was the incumbent contractor and thus ineligible for award the prime

contractor proposed to hire the majority of the workforce from the subcontractor the p rime

contractors proposed program manager previously served as program manager for the

subcontractor on incumbent contract and the prime contractor lacked experience with

projects of the magnitude required of this procurement

Screen 127 Conference room

FEEDBACK CFR 121103(h)(4) states all aspects of the relationship between the prime and the

subcontractor are to be considered including but not limited to the terms of the proposal such

as contract management and the percentage of subcontract work agreement between the

prime and subcontractor and whether the subcontractor is the incumbent contractor and is

ineligible to submit a proposal because it exceeds the applicable size standard

Screen 128 Conference room

Connie I think we are good here Thank you for meeting Talk to you later

Screen 129 Conference room

SUMMARY Small Businesses are subject to a size protest on a small business set-aside before

award of a contract The SBA will normally make a determination of size status within 15 days

of receipt of protest To be considered by the SBA it is necessary that the protest be specific

and timely

FAR 19302 and 13 CFR Part 121 provide the specific rules for submitting a size representation

An appeal can be made to the SBA Office of Hearing and Appeals for re-consideration of an SBA

Area Office size protest decision In determining size protests the SBA will consider receipts

number of employees and affiliations of the protested concerns In examining affiliations the

SBA will look for an ostensible subcontracting relationship in which the subcontractor that

performs primary and vital requirements of a contract or a subcontractor upon which the prime

contractor is unusually reliant

If affiliation is found and the prime and the sub are considered large due then award cannot

be made If a size protest is not submitted timely or does not contain sufficient information to

make a size determination the protest will be dismissed The SBP role is to ensure that the

organization is aware of the regulations governing the SBA size protests

When a Small Business size representation protest andor an appeal to a size protest is

received the SBPs role is to advise and assist the acquisition team and Contracting Officer with

interpretation and application of corresponding FAR Part 19 and SBA 13 CFR requirements The

SBP may also advise the offeror or contractor on the procedures for submitting a protest prior

to issuing a solicitation After the solicitation has been issued all communication must be

through the Contracting Officer While this scenario discusses the procedures for a small

business representation protest the SBP needs to be aware that the socio-economic programs

ie HUBZones SDVOSB 8(a) and WOSB each have slightly different procedures which are set-

forth in FAR Part 19 Close attention must be made to both the applicable FAR Part 19 and SBA

13 CFR 121 requirements to provide proper advice and guidance on each type of protest and

appeal

Screen 130 Conference room This concludes the simulation The After Action Report (AAR) has

been created Download the AAR and review your performance in the simulation

After viewing the AAR use the browser close button to close this simulation and return to

screen 3 in the Size Protest lesson to complete this lesson

SBP220 Business Decisions for Small Business lesson 11 - Size Pr otest Simulation RESOURCES I PRINT I HELP

Summary

I Poge 5 of6 I Back Next

SBP220 Business Decisions for Small Business lesson 11 - Size Protest Simulation RESOURCES 1 PRINT 1 HELP

Summary

Closed Captioning Congratulations you have completed the Size Protest Simulation During this simulation you participated in activities common to interpreting data to verify the size of a small business Ensure that you review your After Action Report and if you did not respond correctly to all activities consider going through the simula tion again

I Pogo 5of6 I Back Next

SBP220 Business Decisions for Small Business lesson 11 - Size Protest Simulation RESOURCES I PRINT I HELP

Summary

Poge 5of6 I Back Next

SBP220 Business Decisions for Small Business Lesson 11 - Size Pr otest Simulation RESOURCES j PRINT j HElP

Lesson Completion

You have comple ted the con tent for this lesson

To continue select another lesson from the Table of Con tents on the le f t

If you have closed or hidden the Table of Contents select the Show T OC button at the t op in the Atlas navigation bar

~ I P o ge 6 of6 I Back Next

Screen 81 Your office

Janet When SBA receives a size protest the SBA Area Director for Government Contracting or

designee will notify the contracting officer the protested concern and the protestor that the

protest has been received SBA will provide a blank copy of SBA Form 355 Application for Small

Business Determination to the concern whose size is at issue The protested concern or

concern whose size is at issue must return the completed SBA Form 355 and all other requested

information to SBA within 3 working days from the date of receipt of the blank form from SBA

SBA has discretion to grant an extension of time to file the form After receipt of a protest or a

request for a formal size determination the SBA Area Office will issue a formal size

determination within 15 business days if possible or within an extension granted by the

Contracting Officer in accordance with FAR 19302(e)

Screen 82 Your office

Jenny Thank you for clarifying the process Irsquoll see you both later

Screen 83 Your office

Janet Yes I have to get back to the office too Irsquoll see you later

Screen 84 Your office THE NEXT DAY - You re-enter your office from a break and receive a

phone call

Jenny Hello I forgot to ask when the Contracting Officer may award a contract that has a small

business size protest

Activity 84-1 Your office

Question Jenny When may the Contracting Officer award a contract that has been protested

Choice 1 Only after the SBA makes a determination of the small business representation

protest - Proceed to screen 85

Choice 2 When the SBA makes a decision or 15 business days have expired whichever comes

first however the CO may award a contract before an SBA determination is made when he

makes a written determination that award must be made to protect public interest - Proceed

to screen 105

Choice 3 The Contracting Officer does not have to wait for SBA to make the determination -

Proceed to screen 95

Screen 85 Your office

Jenny Ok so I guess we just wait until the SBA makes a determination Thanks

Screen 86 Program Managerrsquos Office THE NEXT DAY - Asha has requested that you come by

her office As you walk into Asharsquos office Connie is already there

Asha Connie was just informing me that she has decided to wait on SBAs decision about the

protest before awarding the contract Just want to inform the both of you that the incumbent

contract expires 18 days after the submittal of the protest to the SBA

Screen 87 Program Managerrsquos Office

Connie That is a good point Asha The risk of me waiting too long will result in expiration of the

contract A lapse between contracts is unacceptable as that may adversely impact the

warfighter

Activity 84-2 Program Managerrsquos Office

Question Connie When may the Contracting Officer award a contract that has been

protested

Choice 1 When the SBA makes a decision or 15 business days have expired whichever comes

first however the CO may award a contract before an SBA determination is made when he

makes a written determination that award must be made to protect public interest - Proceed

to screen 103

Choice 2 The Contracting Officer does not have to wait for SBA to make the determination -

Proceed to screen 88

Screen 88 Program Managerrsquos Office

Connie If that is the case letrsquos wait about a week and then award the contract Thanks

everyone

Screen 90 Your office FIVE DAYS LATER - SBA renders its decision on the required 15th

business day finding that the apparent successful offeror was not eligible for the award

Connie Meeting today at 2 PM

Screen 91 Conference room 2 PM - Connie has called in Asha Jenny and Ian to the

conference room

Connie As you are aware SBA came back with the decision that ELMO was not eligible for the

award Because it is so close to the completion of the source selection we may be able to go

back and award to the offeror that was second in line based on evaluation results

Screen 92 Conference room

Ian We would have to get the acquisition team together with legal SBA and leadership but

we might be able to accomplish that without having to start the procurement over again

Screen 93 Conference room

Connie Thanks everyone I will keep you posted

Screen 94 Conference room CONSEQUENCE OF YOUR ACTIONS Awarding the contract

without waiting for SBA to make a decision on the appeal is a violation of FAR policy (FAR

19302(g)(2) this type of violation could result in significant impacts inclusive of the

Contracting Officer having to terminate the unauthorized contract Additional fallout may occur

by having to re-accomplish the procurement entirely since the source selection was effectively

completed upon award of the unauthorized contract to the ineligible company Reprocurement

risk would be dependent upon the acquisition circumstances timing and viewpoints of the key

stakeholders and decision-makers

FEEDBACK After receiving a size protest involving a new procurement the Contracting Officer

shall not award the contract until the SBA has made a size determination or after 15 business

days have expired whichever comes first However the Contracting Officer may award a

contract before an SBA determination is made when shehe makes a written determination

that award must be made to protect the public interest (FAR 19302(g)(1))

Screen 95 Your office

Jenny Ok I will inform Connie Thanks

Screen 96 COrsquos office LATER THAT DAY - Connie has asked you to come by her office

Connie Hello Thanks for coming by Jenny tells me that you said that we do not need to wait

for SBA to make the determination about the size protest What happens if we award the

contract and then SBA finds the apparent successful offeror was not eligible for the award

Maybe you should double check the regulation

Activity 84-3 COrsquos office

Question Connie When may the Contracting Officer award a contract that has been

protested

Choice 1 Only after the SBA makes a determination of the small business representation

protest - Proceed to screen 97

Choice 2 When the SBA makes a decision or 15 business days have expired whichever comes

first however the CO may award a contract before an SBA determination is made when he

makes a written determination that award must be made to protect public interest - Proceed

to screen 104

Screen 97 COrsquos office

Connie Ok so I guess we just wait until the SBA makes a determination

Screen 98 Program Managerrsquos Office LATER THAT DAY - Asha has requested that you come by

her office As you walk into Asharsquos office Connie is already there

Asha Connie was just informing me that she has decided to wait on SBAs decision about the

protest before awarding the contract Just want to inform the both of you that the current

contract expires 18 days after the submittal of the protest to the SBA

Screen 99 Program Managerrsquos Office

Connie That is a good point Asha The risk of me waiting too long will result in expiration of the

incumbents contract and work stoppage for security guard services

Screen 100 Program Managerrsquos Office

Asha I looked up the regulation and it states that we should wait up to 15 business days and

then we may award the contract

Screen 101 Program Managerrsquos Office

Connie Thanks That is what we will do and hopefully SBA will respond before the 15 days

Screen 102 Program Managerrsquos Office CONSEQUENCE OF YOUR ACTIONS Not thoroughly

understanding the protest procedures and being uninformed of program needs and imp acts

could result in adverse impacts to the warfighter

FEEDBACK After receiving a size protest involving a new procurement the Contracting Officer

shall not award the contract until the SBA has made a size determination or after 15 business

days have expired whichever comes first However the Contracting Officer may award a

contract before an SBA determination is made when shehe makes a written determination

that award must be made to protect the public interest (FAR 19302(g)(1))

Screen 103 Program Managerrsquos Office

Connie Ok we wait for 15 business days That sounds much better Thanks - Proceed to

screen 106

Screen 104 COrsquos office

FEEDBACK After receiving a size protest involving a new procurement the Contracting Officer

shall not award the contract until the SBA has made a size determination or after 15 business

days have expired whichever comes first However the Contracting Officer may award a

contract before an SBA determination is made when shehe makes a written determination

that award must be made to protect the public interest (FAR 19302(g)(1))

Connie Ok we wait for 15 business days That sounds much better Thanks - Proceed to

screen 107

Screen 105 Your office

FEEDBACK After receiving a size protest involving a new procurement the Contracting Officer shall not award the contract until the SBA has made a size determination or after 15 business days have expired whichever comes first However the Contracting Officer may award a contract before an SBA determination is made when shehe makes a written determination that award must be made to protect the public interest (FAR 19302(g)(1))

Jenny Ok we wait for 15 business days Thanks - Proceed to screen 107

Screen 106 Program Managerrsquos office FEEDBACK After receiving a size protest involving a new procurement the Contracting Officer shall not award the contract until the SBA has made a size determination or after 15 business days have expired whichever comes first However the Contracting Officer may award a contract before an SBA determination is made when shehe makes a written determination that award must be made to protect the public interest (FAR 19302(g)(1))

Screen 107 Your office TWO DAYS LATER - Itrsquos been two days since your conversation with Jenny You notice that you have a new e-mail

To Acquisition Team Attachment Appeal Letter

From Grace CDI Contractor

Subject ELMO protest upheld

Hello

I just heard that ELMOs protest was upheld We believe the decision was based on erroneous information so we want to appeal Can you give me some guidance in the process for submitting an appeal

I have attached the appeal and size determination letters

Sincerely

Grace CDI Contractor

Activity 107-1 Your office

Question Grace What is the process for submitting an appeal for a size protest determination

Choice 1 IAW FAR 19302(h) an appeal may be filed with the SBA Office of Hearings and Appeals by any concern or interested party whose protest of the small business representation of another concern has been denied - Proceed to screen 111

Choice 2 An appeal may be filed by any concern or interested party to protest the small business representation of another concern to the Contracting Officer - Proceed to screen 108

Screen 108 Your office THREE DAYS LATER Connie comes by your office

Connie Hello there I just received the appeal from CDI through the mail channels and realized

that the protestor sent it to me in error I am having Jenny mail the appeal package back to CDI

Screen 109 Your office As you get back to your desk you notice that you have a voicemail

Grace Hello this is Grace from CDI Looks like I sent my appeal to the wrong location I was not

supposed to send it to the Contracting Officer I have re-sent the appeal to SBA OHA I hope

that its not too late because they will deny my appeal if untimely

Screen 110 Your office CONSEQUENCES OF YOUR ACTIONS Filing the appeal with the

Contracting Officer would result in lost time for the protestor because the appeal must be filed

with SBA OHA The concern encounters a greater risk of denial by SBA OHA if the appeal is not

filed within the time frame listed in Subpart C of 13 CFR 134

Screen 111 Your office The agency awaits confirmation from SBA OHA as to the standing of

the appeal and related impacts to the ongoing procurement You leave for the weekend

Screen 112 Your office FEEDBACK An appeal may be filed only when the small business

representation protest has been denied by the SBA Government Contracting Area Director and

within the time frames and in accordance with the procedures outlined in Subpart C of 13 CFR

Part 134 (IAW FAR 19302(h)) While a Contracting officer may file an appeal of their own the

concern or interested party must file the appeal to the SBA Office of Hearings and Appeals

(OHA) within the time frame and in accordance with the procedures listed in Subpart C of 13

CFR 134

Screen 113 Your office You return to the office on Monday morning You have a new e-mail

E-mail CDI appeal

To You SBP

From Connie Contracting Officer

Subject CDI Appeal

Hello

I would like to have a meeting with you and our lawyer Ian and Jenny to review the CDI size

appeal to the SBA Office of Hearings and Appeals Please check your calendar to see if you are

free tomorrow afternoon Let me know if you can make it

Sincerely

Connie

Contracting Officer

Screen 114 Conference room THE NEXT DAY - You Connie Jenny and the departmentrsquos

lawyer Ian are in a conference room

Ian Glad you could make the meeting We have been informed that Corporate Defenders is

appealing the SBAs decision Because of the potential impact the appeals process may have on

our current security guard services and before we make a decision on what we should do

about continuation of those services I would like to discuss the basis of the original size protest

by ELMO in the Corporate Defenders appeal to determine whether we think it will be denied

What was the basis of the original size protest by ELMO in the Corporate Defenders appeal

Screen 115 Conference room

Jenny The basis of the original protest is that Corporate Defenders Inc is affiliated with Rivers

under the ostensible subcontracting rule

Screen 116 Conference room

Connie Now that we have determined it is a size representation issue does this fall within the

affiliation under the ostensible subcontracting rule

Screen 117 Conference room

Ian The regulation defines an ostensible subcontractor as a subcontractor that performs

primary and vital requirements or when the prime contractor is unusually reliant upon the

subcontractor In this case CDI would be relying on the workforce and management of Rivers

to fulfill the requirements of the contract Therefore the combined size standards of CDI and

Rivers exceeds the size standard for this procurement according to 13 CFR 121103(h)(4)

Screen 118 Conference room

Connie The SBA Area Office found that under the ostensible subcontracting rule CDI was

considered a large business because of its affiliation with Rivers CDI appealed the ruling to the

SBA Office of Hearings and Appeals stating that CDI was not overly reliant on Rivers for

performing the contract and that CDI will serve as the prime contractor ELMO argued that

there is an ostensible subcontracting affiliation with CDI and Rivers and that Rivers is a large

business and thus CDI is ineligible for award What factors could lead to the appeal being

denied

Activity 118-1 Conference room

Question Connie What factors led to the appeal being denied

Choice 1 Rivers was a large business and thus ineligible for the award - Proceed to screen 119

Choice 2 CFR 121103(h)(4) states only the terms of the proposal are applicable to determining

the teaming agreement between the prime and subcontractor - Proceed to screen 123

Choice 3 There is ostensible subcontracting based on the fact that the proposed subcontractor

is the incumbent contractor and thus ineligible for award the prime contractor proposed to

hire the majority of the workforce from the subcontractor the prime contractors proposed

program manager previously served as program manager for the subcontractor on incumbent

contract and the prime contractor lacked experience with projects of the magnitude required

of this procurement This makes the offeror ineligible for award - Proceed to screen 127

Screen 119 Conference room

Ian I believe that is an incorrect assumption since Rivers was only going to perform 43 percent

of the work for a small business This alone would not make Rivers an ostensible subcontractor

Activity 118-2 Conference room

Question Connie What factors led to the appeal being denied

Choice 1 There is ostensible subcontracting based on the fact that the proposed subcontractor

was the incumbent contractor and thus ineligible for award - Proceed to screen 127

Choice 2 CFR 121103(h)(4) states that only the terms of the proposal are applicable to

determining the teaming agreement between the prime and subcontractor - Proceed to screen

120

Screen 120 Conference room

Ian I believe this is an incorrect assumption All aspects of the relationship between CDI and

Rivers are to be considered

Screen 121 Conference room

Connie Letrsquos reference back to the ruling and the reason why there was an ostensible

subcontract

Screen 122 Conference room

Connie It appears that there was ostensible subcontracting based on the fact that the

proposed subcontractor was the incumbent contractor and thus ineligible for award the prime

contractor proposed to hire the majority of the workforce from the subcontractor the prime

contractors proposed program manager previously served as program manager for the

subcontractor on incumbent contract and the prime contractor lacked experience with

projects of the magnitude required of this procurement - Proceed to screen 127

Screen 123 Conference room

Ian I believe this is an incorrect assumption All aspects of the relationship between CDI and

Rivers are to be considered

Activity 118-3 conference room

Question Ian What factors led to the appeal being denied

Choice 1 Rivers was a large business and thus ineligible for the award - Proceed to screen 124

Choice 2 There is ostensible subcontracting based on the fact that the proposed subcontractor

was the incumbent contractor and thus ineligible for award - Proceed to screen 127

Screen 124 Conference room

Ian I believe that is an incorrect assumption since Rivers was only going to perform 43 percent

of the work for a small business This alone would not make Rivers an ostensible subcontractor

Screen 125 Conference room

Connie Letrsquos reference back to the ruling and the reason why there was an ostensible

subcontract

Screen 126 Conference room

Connie It appears that there was ostensible subcontracting based on the fact that the

proposed subcontractor was the incumbent contractor and thus ineligible for award the prime

contractor proposed to hire the majority of the workforce from the subcontractor the p rime

contractors proposed program manager previously served as program manager for the

subcontractor on incumbent contract and the prime contractor lacked experience with

projects of the magnitude required of this procurement

Screen 127 Conference room

FEEDBACK CFR 121103(h)(4) states all aspects of the relationship between the prime and the

subcontractor are to be considered including but not limited to the terms of the proposal such

as contract management and the percentage of subcontract work agreement between the

prime and subcontractor and whether the subcontractor is the incumbent contractor and is

ineligible to submit a proposal because it exceeds the applicable size standard

Screen 128 Conference room

Connie I think we are good here Thank you for meeting Talk to you later

Screen 129 Conference room

SUMMARY Small Businesses are subject to a size protest on a small business set-aside before

award of a contract The SBA will normally make a determination of size status within 15 days

of receipt of protest To be considered by the SBA it is necessary that the protest be specific

and timely

FAR 19302 and 13 CFR Part 121 provide the specific rules for submitting a size representation

An appeal can be made to the SBA Office of Hearing and Appeals for re-consideration of an SBA

Area Office size protest decision In determining size protests the SBA will consider receipts

number of employees and affiliations of the protested concerns In examining affiliations the

SBA will look for an ostensible subcontracting relationship in which the subcontractor that

performs primary and vital requirements of a contract or a subcontractor upon which the prime

contractor is unusually reliant

If affiliation is found and the prime and the sub are considered large due then award cannot

be made If a size protest is not submitted timely or does not contain sufficient information to

make a size determination the protest will be dismissed The SBP role is to ensure that the

organization is aware of the regulations governing the SBA size protests

When a Small Business size representation protest andor an appeal to a size protest is

received the SBPs role is to advise and assist the acquisition team and Contracting Officer with

interpretation and application of corresponding FAR Part 19 and SBA 13 CFR requirements The

SBP may also advise the offeror or contractor on the procedures for submitting a protest prior

to issuing a solicitation After the solicitation has been issued all communication must be

through the Contracting Officer While this scenario discusses the procedures for a small

business representation protest the SBP needs to be aware that the socio-economic programs

ie HUBZones SDVOSB 8(a) and WOSB each have slightly different procedures which are set-

forth in FAR Part 19 Close attention must be made to both the applicable FAR Part 19 and SBA

13 CFR 121 requirements to provide proper advice and guidance on each type of protest and

appeal

Screen 130 Conference room This concludes the simulation The After Action Report (AAR) has

been created Download the AAR and review your performance in the simulation

After viewing the AAR use the browser close button to close this simulation and return to

screen 3 in the Size Protest lesson to complete this lesson

SBP220 Business Decisions for Small Business lesson 11 - Size Pr otest Simulation RESOURCES I PRINT I HELP

Summary

I Poge 5 of6 I Back Next

SBP220 Business Decisions for Small Business lesson 11 - Size Protest Simulation RESOURCES 1 PRINT 1 HELP

Summary

Closed Captioning Congratulations you have completed the Size Protest Simulation During this simulation you participated in activities common to interpreting data to verify the size of a small business Ensure that you review your After Action Report and if you did not respond correctly to all activities consider going through the simula tion again

I Pogo 5of6 I Back Next

SBP220 Business Decisions for Small Business lesson 11 - Size Protest Simulation RESOURCES I PRINT I HELP

Summary

Poge 5of6 I Back Next

SBP220 Business Decisions for Small Business Lesson 11 - Size Pr otest Simulation RESOURCES j PRINT j HElP

Lesson Completion

You have comple ted the con tent for this lesson

To continue select another lesson from the Table of Con tents on the le f t

If you have closed or hidden the Table of Contents select the Show T OC button at the t op in the Atlas navigation bar

~ I P o ge 6 of6 I Back Next

Screen 86 Program Managerrsquos Office THE NEXT DAY - Asha has requested that you come by

her office As you walk into Asharsquos office Connie is already there

Asha Connie was just informing me that she has decided to wait on SBAs decision about the

protest before awarding the contract Just want to inform the both of you that the incumbent

contract expires 18 days after the submittal of the protest to the SBA

Screen 87 Program Managerrsquos Office

Connie That is a good point Asha The risk of me waiting too long will result in expiration of the

contract A lapse between contracts is unacceptable as that may adversely impact the

warfighter

Activity 84-2 Program Managerrsquos Office

Question Connie When may the Contracting Officer award a contract that has been

protested

Choice 1 When the SBA makes a decision or 15 business days have expired whichever comes

first however the CO may award a contract before an SBA determination is made when he

makes a written determination that award must be made to protect public interest - Proceed

to screen 103

Choice 2 The Contracting Officer does not have to wait for SBA to make the determination -

Proceed to screen 88

Screen 88 Program Managerrsquos Office

Connie If that is the case letrsquos wait about a week and then award the contract Thanks

everyone

Screen 90 Your office FIVE DAYS LATER - SBA renders its decision on the required 15th

business day finding that the apparent successful offeror was not eligible for the award

Connie Meeting today at 2 PM

Screen 91 Conference room 2 PM - Connie has called in Asha Jenny and Ian to the

conference room

Connie As you are aware SBA came back with the decision that ELMO was not eligible for the

award Because it is so close to the completion of the source selection we may be able to go

back and award to the offeror that was second in line based on evaluation results

Screen 92 Conference room

Ian We would have to get the acquisition team together with legal SBA and leadership but

we might be able to accomplish that without having to start the procurement over again

Screen 93 Conference room

Connie Thanks everyone I will keep you posted

Screen 94 Conference room CONSEQUENCE OF YOUR ACTIONS Awarding the contract

without waiting for SBA to make a decision on the appeal is a violation of FAR policy (FAR

19302(g)(2) this type of violation could result in significant impacts inclusive of the

Contracting Officer having to terminate the unauthorized contract Additional fallout may occur

by having to re-accomplish the procurement entirely since the source selection was effectively

completed upon award of the unauthorized contract to the ineligible company Reprocurement

risk would be dependent upon the acquisition circumstances timing and viewpoints of the key

stakeholders and decision-makers

FEEDBACK After receiving a size protest involving a new procurement the Contracting Officer

shall not award the contract until the SBA has made a size determination or after 15 business

days have expired whichever comes first However the Contracting Officer may award a

contract before an SBA determination is made when shehe makes a written determination

that award must be made to protect the public interest (FAR 19302(g)(1))

Screen 95 Your office

Jenny Ok I will inform Connie Thanks

Screen 96 COrsquos office LATER THAT DAY - Connie has asked you to come by her office

Connie Hello Thanks for coming by Jenny tells me that you said that we do not need to wait

for SBA to make the determination about the size protest What happens if we award the

contract and then SBA finds the apparent successful offeror was not eligible for the award

Maybe you should double check the regulation

Activity 84-3 COrsquos office

Question Connie When may the Contracting Officer award a contract that has been

protested

Choice 1 Only after the SBA makes a determination of the small business representation

protest - Proceed to screen 97

Choice 2 When the SBA makes a decision or 15 business days have expired whichever comes

first however the CO may award a contract before an SBA determination is made when he

makes a written determination that award must be made to protect public interest - Proceed

to screen 104

Screen 97 COrsquos office

Connie Ok so I guess we just wait until the SBA makes a determination

Screen 98 Program Managerrsquos Office LATER THAT DAY - Asha has requested that you come by

her office As you walk into Asharsquos office Connie is already there

Asha Connie was just informing me that she has decided to wait on SBAs decision about the

protest before awarding the contract Just want to inform the both of you that the current

contract expires 18 days after the submittal of the protest to the SBA

Screen 99 Program Managerrsquos Office

Connie That is a good point Asha The risk of me waiting too long will result in expiration of the

incumbents contract and work stoppage for security guard services

Screen 100 Program Managerrsquos Office

Asha I looked up the regulation and it states that we should wait up to 15 business days and

then we may award the contract

Screen 101 Program Managerrsquos Office

Connie Thanks That is what we will do and hopefully SBA will respond before the 15 days

Screen 102 Program Managerrsquos Office CONSEQUENCE OF YOUR ACTIONS Not thoroughly

understanding the protest procedures and being uninformed of program needs and imp acts

could result in adverse impacts to the warfighter

FEEDBACK After receiving a size protest involving a new procurement the Contracting Officer

shall not award the contract until the SBA has made a size determination or after 15 business

days have expired whichever comes first However the Contracting Officer may award a

contract before an SBA determination is made when shehe makes a written determination

that award must be made to protect the public interest (FAR 19302(g)(1))

Screen 103 Program Managerrsquos Office

Connie Ok we wait for 15 business days That sounds much better Thanks - Proceed to

screen 106

Screen 104 COrsquos office

FEEDBACK After receiving a size protest involving a new procurement the Contracting Officer

shall not award the contract until the SBA has made a size determination or after 15 business

days have expired whichever comes first However the Contracting Officer may award a

contract before an SBA determination is made when shehe makes a written determination

that award must be made to protect the public interest (FAR 19302(g)(1))

Connie Ok we wait for 15 business days That sounds much better Thanks - Proceed to

screen 107

Screen 105 Your office

FEEDBACK After receiving a size protest involving a new procurement the Contracting Officer shall not award the contract until the SBA has made a size determination or after 15 business days have expired whichever comes first However the Contracting Officer may award a contract before an SBA determination is made when shehe makes a written determination that award must be made to protect the public interest (FAR 19302(g)(1))

Jenny Ok we wait for 15 business days Thanks - Proceed to screen 107

Screen 106 Program Managerrsquos office FEEDBACK After receiving a size protest involving a new procurement the Contracting Officer shall not award the contract until the SBA has made a size determination or after 15 business days have expired whichever comes first However the Contracting Officer may award a contract before an SBA determination is made when shehe makes a written determination that award must be made to protect the public interest (FAR 19302(g)(1))

Screen 107 Your office TWO DAYS LATER - Itrsquos been two days since your conversation with Jenny You notice that you have a new e-mail

To Acquisition Team Attachment Appeal Letter

From Grace CDI Contractor

Subject ELMO protest upheld

Hello

I just heard that ELMOs protest was upheld We believe the decision was based on erroneous information so we want to appeal Can you give me some guidance in the process for submitting an appeal

I have attached the appeal and size determination letters

Sincerely

Grace CDI Contractor

Activity 107-1 Your office

Question Grace What is the process for submitting an appeal for a size protest determination

Choice 1 IAW FAR 19302(h) an appeal may be filed with the SBA Office of Hearings and Appeals by any concern or interested party whose protest of the small business representation of another concern has been denied - Proceed to screen 111

Choice 2 An appeal may be filed by any concern or interested party to protest the small business representation of another concern to the Contracting Officer - Proceed to screen 108

Screen 108 Your office THREE DAYS LATER Connie comes by your office

Connie Hello there I just received the appeal from CDI through the mail channels and realized

that the protestor sent it to me in error I am having Jenny mail the appeal package back to CDI

Screen 109 Your office As you get back to your desk you notice that you have a voicemail

Grace Hello this is Grace from CDI Looks like I sent my appeal to the wrong location I was not

supposed to send it to the Contracting Officer I have re-sent the appeal to SBA OHA I hope

that its not too late because they will deny my appeal if untimely

Screen 110 Your office CONSEQUENCES OF YOUR ACTIONS Filing the appeal with the

Contracting Officer would result in lost time for the protestor because the appeal must be filed

with SBA OHA The concern encounters a greater risk of denial by SBA OHA if the appeal is not

filed within the time frame listed in Subpart C of 13 CFR 134

Screen 111 Your office The agency awaits confirmation from SBA OHA as to the standing of

the appeal and related impacts to the ongoing procurement You leave for the weekend

Screen 112 Your office FEEDBACK An appeal may be filed only when the small business

representation protest has been denied by the SBA Government Contracting Area Director and

within the time frames and in accordance with the procedures outlined in Subpart C of 13 CFR

Part 134 (IAW FAR 19302(h)) While a Contracting officer may file an appeal of their own the

concern or interested party must file the appeal to the SBA Office of Hearings and Appeals

(OHA) within the time frame and in accordance with the procedures listed in Subpart C of 13

CFR 134

Screen 113 Your office You return to the office on Monday morning You have a new e-mail

E-mail CDI appeal

To You SBP

From Connie Contracting Officer

Subject CDI Appeal

Hello

I would like to have a meeting with you and our lawyer Ian and Jenny to review the CDI size

appeal to the SBA Office of Hearings and Appeals Please check your calendar to see if you are

free tomorrow afternoon Let me know if you can make it

Sincerely

Connie

Contracting Officer

Screen 114 Conference room THE NEXT DAY - You Connie Jenny and the departmentrsquos

lawyer Ian are in a conference room

Ian Glad you could make the meeting We have been informed that Corporate Defenders is

appealing the SBAs decision Because of the potential impact the appeals process may have on

our current security guard services and before we make a decision on what we should do

about continuation of those services I would like to discuss the basis of the original size protest

by ELMO in the Corporate Defenders appeal to determine whether we think it will be denied

What was the basis of the original size protest by ELMO in the Corporate Defenders appeal

Screen 115 Conference room

Jenny The basis of the original protest is that Corporate Defenders Inc is affiliated with Rivers

under the ostensible subcontracting rule

Screen 116 Conference room

Connie Now that we have determined it is a size representation issue does this fall within the

affiliation under the ostensible subcontracting rule

Screen 117 Conference room

Ian The regulation defines an ostensible subcontractor as a subcontractor that performs

primary and vital requirements or when the prime contractor is unusually reliant upon the

subcontractor In this case CDI would be relying on the workforce and management of Rivers

to fulfill the requirements of the contract Therefore the combined size standards of CDI and

Rivers exceeds the size standard for this procurement according to 13 CFR 121103(h)(4)

Screen 118 Conference room

Connie The SBA Area Office found that under the ostensible subcontracting rule CDI was

considered a large business because of its affiliation with Rivers CDI appealed the ruling to the

SBA Office of Hearings and Appeals stating that CDI was not overly reliant on Rivers for

performing the contract and that CDI will serve as the prime contractor ELMO argued that

there is an ostensible subcontracting affiliation with CDI and Rivers and that Rivers is a large

business and thus CDI is ineligible for award What factors could lead to the appeal being

denied

Activity 118-1 Conference room

Question Connie What factors led to the appeal being denied

Choice 1 Rivers was a large business and thus ineligible for the award - Proceed to screen 119

Choice 2 CFR 121103(h)(4) states only the terms of the proposal are applicable to determining

the teaming agreement between the prime and subcontractor - Proceed to screen 123

Choice 3 There is ostensible subcontracting based on the fact that the proposed subcontractor

is the incumbent contractor and thus ineligible for award the prime contractor proposed to

hire the majority of the workforce from the subcontractor the prime contractors proposed

program manager previously served as program manager for the subcontractor on incumbent

contract and the prime contractor lacked experience with projects of the magnitude required

of this procurement This makes the offeror ineligible for award - Proceed to screen 127

Screen 119 Conference room

Ian I believe that is an incorrect assumption since Rivers was only going to perform 43 percent

of the work for a small business This alone would not make Rivers an ostensible subcontractor

Activity 118-2 Conference room

Question Connie What factors led to the appeal being denied

Choice 1 There is ostensible subcontracting based on the fact that the proposed subcontractor

was the incumbent contractor and thus ineligible for award - Proceed to screen 127

Choice 2 CFR 121103(h)(4) states that only the terms of the proposal are applicable to

determining the teaming agreement between the prime and subcontractor - Proceed to screen

120

Screen 120 Conference room

Ian I believe this is an incorrect assumption All aspects of the relationship between CDI and

Rivers are to be considered

Screen 121 Conference room

Connie Letrsquos reference back to the ruling and the reason why there was an ostensible

subcontract

Screen 122 Conference room

Connie It appears that there was ostensible subcontracting based on the fact that the

proposed subcontractor was the incumbent contractor and thus ineligible for award the prime

contractor proposed to hire the majority of the workforce from the subcontractor the prime

contractors proposed program manager previously served as program manager for the

subcontractor on incumbent contract and the prime contractor lacked experience with

projects of the magnitude required of this procurement - Proceed to screen 127

Screen 123 Conference room

Ian I believe this is an incorrect assumption All aspects of the relationship between CDI and

Rivers are to be considered

Activity 118-3 conference room

Question Ian What factors led to the appeal being denied

Choice 1 Rivers was a large business and thus ineligible for the award - Proceed to screen 124

Choice 2 There is ostensible subcontracting based on the fact that the proposed subcontractor

was the incumbent contractor and thus ineligible for award - Proceed to screen 127

Screen 124 Conference room

Ian I believe that is an incorrect assumption since Rivers was only going to perform 43 percent

of the work for a small business This alone would not make Rivers an ostensible subcontractor

Screen 125 Conference room

Connie Letrsquos reference back to the ruling and the reason why there was an ostensible

subcontract

Screen 126 Conference room

Connie It appears that there was ostensible subcontracting based on the fact that the

proposed subcontractor was the incumbent contractor and thus ineligible for award the prime

contractor proposed to hire the majority of the workforce from the subcontractor the p rime

contractors proposed program manager previously served as program manager for the

subcontractor on incumbent contract and the prime contractor lacked experience with

projects of the magnitude required of this procurement

Screen 127 Conference room

FEEDBACK CFR 121103(h)(4) states all aspects of the relationship between the prime and the

subcontractor are to be considered including but not limited to the terms of the proposal such

as contract management and the percentage of subcontract work agreement between the

prime and subcontractor and whether the subcontractor is the incumbent contractor and is

ineligible to submit a proposal because it exceeds the applicable size standard

Screen 128 Conference room

Connie I think we are good here Thank you for meeting Talk to you later

Screen 129 Conference room

SUMMARY Small Businesses are subject to a size protest on a small business set-aside before

award of a contract The SBA will normally make a determination of size status within 15 days

of receipt of protest To be considered by the SBA it is necessary that the protest be specific

and timely

FAR 19302 and 13 CFR Part 121 provide the specific rules for submitting a size representation

An appeal can be made to the SBA Office of Hearing and Appeals for re-consideration of an SBA

Area Office size protest decision In determining size protests the SBA will consider receipts

number of employees and affiliations of the protested concerns In examining affiliations the

SBA will look for an ostensible subcontracting relationship in which the subcontractor that

performs primary and vital requirements of a contract or a subcontractor upon which the prime

contractor is unusually reliant

If affiliation is found and the prime and the sub are considered large due then award cannot

be made If a size protest is not submitted timely or does not contain sufficient information to

make a size determination the protest will be dismissed The SBP role is to ensure that the

organization is aware of the regulations governing the SBA size protests

When a Small Business size representation protest andor an appeal to a size protest is

received the SBPs role is to advise and assist the acquisition team and Contracting Officer with

interpretation and application of corresponding FAR Part 19 and SBA 13 CFR requirements The

SBP may also advise the offeror or contractor on the procedures for submitting a protest prior

to issuing a solicitation After the solicitation has been issued all communication must be

through the Contracting Officer While this scenario discusses the procedures for a small

business representation protest the SBP needs to be aware that the socio-economic programs

ie HUBZones SDVOSB 8(a) and WOSB each have slightly different procedures which are set-

forth in FAR Part 19 Close attention must be made to both the applicable FAR Part 19 and SBA

13 CFR 121 requirements to provide proper advice and guidance on each type of protest and

appeal

Screen 130 Conference room This concludes the simulation The After Action Report (AAR) has

been created Download the AAR and review your performance in the simulation

After viewing the AAR use the browser close button to close this simulation and return to

screen 3 in the Size Protest lesson to complete this lesson

SBP220 Business Decisions for Small Business lesson 11 - Size Pr otest Simulation RESOURCES I PRINT I HELP

Summary

I Poge 5 of6 I Back Next

SBP220 Business Decisions for Small Business lesson 11 - Size Protest Simulation RESOURCES 1 PRINT 1 HELP

Summary

Closed Captioning Congratulations you have completed the Size Protest Simulation During this simulation you participated in activities common to interpreting data to verify the size of a small business Ensure that you review your After Action Report and if you did not respond correctly to all activities consider going through the simula tion again

I Pogo 5of6 I Back Next

SBP220 Business Decisions for Small Business lesson 11 - Size Protest Simulation RESOURCES I PRINT I HELP

Summary

Poge 5of6 I Back Next

SBP220 Business Decisions for Small Business Lesson 11 - Size Pr otest Simulation RESOURCES j PRINT j HElP

Lesson Completion

You have comple ted the con tent for this lesson

To continue select another lesson from the Table of Con tents on the le f t

If you have closed or hidden the Table of Contents select the Show T OC button at the t op in the Atlas navigation bar

~ I P o ge 6 of6 I Back Next

Screen 93 Conference room

Connie Thanks everyone I will keep you posted

Screen 94 Conference room CONSEQUENCE OF YOUR ACTIONS Awarding the contract

without waiting for SBA to make a decision on the appeal is a violation of FAR policy (FAR

19302(g)(2) this type of violation could result in significant impacts inclusive of the

Contracting Officer having to terminate the unauthorized contract Additional fallout may occur

by having to re-accomplish the procurement entirely since the source selection was effectively

completed upon award of the unauthorized contract to the ineligible company Reprocurement

risk would be dependent upon the acquisition circumstances timing and viewpoints of the key

stakeholders and decision-makers

FEEDBACK After receiving a size protest involving a new procurement the Contracting Officer

shall not award the contract until the SBA has made a size determination or after 15 business

days have expired whichever comes first However the Contracting Officer may award a

contract before an SBA determination is made when shehe makes a written determination

that award must be made to protect the public interest (FAR 19302(g)(1))

Screen 95 Your office

Jenny Ok I will inform Connie Thanks

Screen 96 COrsquos office LATER THAT DAY - Connie has asked you to come by her office

Connie Hello Thanks for coming by Jenny tells me that you said that we do not need to wait

for SBA to make the determination about the size protest What happens if we award the

contract and then SBA finds the apparent successful offeror was not eligible for the award

Maybe you should double check the regulation

Activity 84-3 COrsquos office

Question Connie When may the Contracting Officer award a contract that has been

protested

Choice 1 Only after the SBA makes a determination of the small business representation

protest - Proceed to screen 97

Choice 2 When the SBA makes a decision or 15 business days have expired whichever comes

first however the CO may award a contract before an SBA determination is made when he

makes a written determination that award must be made to protect public interest - Proceed

to screen 104

Screen 97 COrsquos office

Connie Ok so I guess we just wait until the SBA makes a determination

Screen 98 Program Managerrsquos Office LATER THAT DAY - Asha has requested that you come by

her office As you walk into Asharsquos office Connie is already there

Asha Connie was just informing me that she has decided to wait on SBAs decision about the

protest before awarding the contract Just want to inform the both of you that the current

contract expires 18 days after the submittal of the protest to the SBA

Screen 99 Program Managerrsquos Office

Connie That is a good point Asha The risk of me waiting too long will result in expiration of the

incumbents contract and work stoppage for security guard services

Screen 100 Program Managerrsquos Office

Asha I looked up the regulation and it states that we should wait up to 15 business days and

then we may award the contract

Screen 101 Program Managerrsquos Office

Connie Thanks That is what we will do and hopefully SBA will respond before the 15 days

Screen 102 Program Managerrsquos Office CONSEQUENCE OF YOUR ACTIONS Not thoroughly

understanding the protest procedures and being uninformed of program needs and imp acts

could result in adverse impacts to the warfighter

FEEDBACK After receiving a size protest involving a new procurement the Contracting Officer

shall not award the contract until the SBA has made a size determination or after 15 business

days have expired whichever comes first However the Contracting Officer may award a

contract before an SBA determination is made when shehe makes a written determination

that award must be made to protect the public interest (FAR 19302(g)(1))

Screen 103 Program Managerrsquos Office

Connie Ok we wait for 15 business days That sounds much better Thanks - Proceed to

screen 106

Screen 104 COrsquos office

FEEDBACK After receiving a size protest involving a new procurement the Contracting Officer

shall not award the contract until the SBA has made a size determination or after 15 business

days have expired whichever comes first However the Contracting Officer may award a

contract before an SBA determination is made when shehe makes a written determination

that award must be made to protect the public interest (FAR 19302(g)(1))

Connie Ok we wait for 15 business days That sounds much better Thanks - Proceed to

screen 107

Screen 105 Your office

FEEDBACK After receiving a size protest involving a new procurement the Contracting Officer shall not award the contract until the SBA has made a size determination or after 15 business days have expired whichever comes first However the Contracting Officer may award a contract before an SBA determination is made when shehe makes a written determination that award must be made to protect the public interest (FAR 19302(g)(1))

Jenny Ok we wait for 15 business days Thanks - Proceed to screen 107

Screen 106 Program Managerrsquos office FEEDBACK After receiving a size protest involving a new procurement the Contracting Officer shall not award the contract until the SBA has made a size determination or after 15 business days have expired whichever comes first However the Contracting Officer may award a contract before an SBA determination is made when shehe makes a written determination that award must be made to protect the public interest (FAR 19302(g)(1))

Screen 107 Your office TWO DAYS LATER - Itrsquos been two days since your conversation with Jenny You notice that you have a new e-mail

To Acquisition Team Attachment Appeal Letter

From Grace CDI Contractor

Subject ELMO protest upheld

Hello

I just heard that ELMOs protest was upheld We believe the decision was based on erroneous information so we want to appeal Can you give me some guidance in the process for submitting an appeal

I have attached the appeal and size determination letters

Sincerely

Grace CDI Contractor

Activity 107-1 Your office

Question Grace What is the process for submitting an appeal for a size protest determination

Choice 1 IAW FAR 19302(h) an appeal may be filed with the SBA Office of Hearings and Appeals by any concern or interested party whose protest of the small business representation of another concern has been denied - Proceed to screen 111

Choice 2 An appeal may be filed by any concern or interested party to protest the small business representation of another concern to the Contracting Officer - Proceed to screen 108

Screen 108 Your office THREE DAYS LATER Connie comes by your office

Connie Hello there I just received the appeal from CDI through the mail channels and realized

that the protestor sent it to me in error I am having Jenny mail the appeal package back to CDI

Screen 109 Your office As you get back to your desk you notice that you have a voicemail

Grace Hello this is Grace from CDI Looks like I sent my appeal to the wrong location I was not

supposed to send it to the Contracting Officer I have re-sent the appeal to SBA OHA I hope

that its not too late because they will deny my appeal if untimely

Screen 110 Your office CONSEQUENCES OF YOUR ACTIONS Filing the appeal with the

Contracting Officer would result in lost time for the protestor because the appeal must be filed

with SBA OHA The concern encounters a greater risk of denial by SBA OHA if the appeal is not

filed within the time frame listed in Subpart C of 13 CFR 134

Screen 111 Your office The agency awaits confirmation from SBA OHA as to the standing of

the appeal and related impacts to the ongoing procurement You leave for the weekend

Screen 112 Your office FEEDBACK An appeal may be filed only when the small business

representation protest has been denied by the SBA Government Contracting Area Director and

within the time frames and in accordance with the procedures outlined in Subpart C of 13 CFR

Part 134 (IAW FAR 19302(h)) While a Contracting officer may file an appeal of their own the

concern or interested party must file the appeal to the SBA Office of Hearings and Appeals

(OHA) within the time frame and in accordance with the procedures listed in Subpart C of 13

CFR 134

Screen 113 Your office You return to the office on Monday morning You have a new e-mail

E-mail CDI appeal

To You SBP

From Connie Contracting Officer

Subject CDI Appeal

Hello

I would like to have a meeting with you and our lawyer Ian and Jenny to review the CDI size

appeal to the SBA Office of Hearings and Appeals Please check your calendar to see if you are

free tomorrow afternoon Let me know if you can make it

Sincerely

Connie

Contracting Officer

Screen 114 Conference room THE NEXT DAY - You Connie Jenny and the departmentrsquos

lawyer Ian are in a conference room

Ian Glad you could make the meeting We have been informed that Corporate Defenders is

appealing the SBAs decision Because of the potential impact the appeals process may have on

our current security guard services and before we make a decision on what we should do

about continuation of those services I would like to discuss the basis of the original size protest

by ELMO in the Corporate Defenders appeal to determine whether we think it will be denied

What was the basis of the original size protest by ELMO in the Corporate Defenders appeal

Screen 115 Conference room

Jenny The basis of the original protest is that Corporate Defenders Inc is affiliated with Rivers

under the ostensible subcontracting rule

Screen 116 Conference room

Connie Now that we have determined it is a size representation issue does this fall within the

affiliation under the ostensible subcontracting rule

Screen 117 Conference room

Ian The regulation defines an ostensible subcontractor as a subcontractor that performs

primary and vital requirements or when the prime contractor is unusually reliant upon the

subcontractor In this case CDI would be relying on the workforce and management of Rivers

to fulfill the requirements of the contract Therefore the combined size standards of CDI and

Rivers exceeds the size standard for this procurement according to 13 CFR 121103(h)(4)

Screen 118 Conference room

Connie The SBA Area Office found that under the ostensible subcontracting rule CDI was

considered a large business because of its affiliation with Rivers CDI appealed the ruling to the

SBA Office of Hearings and Appeals stating that CDI was not overly reliant on Rivers for

performing the contract and that CDI will serve as the prime contractor ELMO argued that

there is an ostensible subcontracting affiliation with CDI and Rivers and that Rivers is a large

business and thus CDI is ineligible for award What factors could lead to the appeal being

denied

Activity 118-1 Conference room

Question Connie What factors led to the appeal being denied

Choice 1 Rivers was a large business and thus ineligible for the award - Proceed to screen 119

Choice 2 CFR 121103(h)(4) states only the terms of the proposal are applicable to determining

the teaming agreement between the prime and subcontractor - Proceed to screen 123

Choice 3 There is ostensible subcontracting based on the fact that the proposed subcontractor

is the incumbent contractor and thus ineligible for award the prime contractor proposed to

hire the majority of the workforce from the subcontractor the prime contractors proposed

program manager previously served as program manager for the subcontractor on incumbent

contract and the prime contractor lacked experience with projects of the magnitude required

of this procurement This makes the offeror ineligible for award - Proceed to screen 127

Screen 119 Conference room

Ian I believe that is an incorrect assumption since Rivers was only going to perform 43 percent

of the work for a small business This alone would not make Rivers an ostensible subcontractor

Activity 118-2 Conference room

Question Connie What factors led to the appeal being denied

Choice 1 There is ostensible subcontracting based on the fact that the proposed subcontractor

was the incumbent contractor and thus ineligible for award - Proceed to screen 127

Choice 2 CFR 121103(h)(4) states that only the terms of the proposal are applicable to

determining the teaming agreement between the prime and subcontractor - Proceed to screen

120

Screen 120 Conference room

Ian I believe this is an incorrect assumption All aspects of the relationship between CDI and

Rivers are to be considered

Screen 121 Conference room

Connie Letrsquos reference back to the ruling and the reason why there was an ostensible

subcontract

Screen 122 Conference room

Connie It appears that there was ostensible subcontracting based on the fact that the

proposed subcontractor was the incumbent contractor and thus ineligible for award the prime

contractor proposed to hire the majority of the workforce from the subcontractor the prime

contractors proposed program manager previously served as program manager for the

subcontractor on incumbent contract and the prime contractor lacked experience with

projects of the magnitude required of this procurement - Proceed to screen 127

Screen 123 Conference room

Ian I believe this is an incorrect assumption All aspects of the relationship between CDI and

Rivers are to be considered

Activity 118-3 conference room

Question Ian What factors led to the appeal being denied

Choice 1 Rivers was a large business and thus ineligible for the award - Proceed to screen 124

Choice 2 There is ostensible subcontracting based on the fact that the proposed subcontractor

was the incumbent contractor and thus ineligible for award - Proceed to screen 127

Screen 124 Conference room

Ian I believe that is an incorrect assumption since Rivers was only going to perform 43 percent

of the work for a small business This alone would not make Rivers an ostensible subcontractor

Screen 125 Conference room

Connie Letrsquos reference back to the ruling and the reason why there was an ostensible

subcontract

Screen 126 Conference room

Connie It appears that there was ostensible subcontracting based on the fact that the

proposed subcontractor was the incumbent contractor and thus ineligible for award the prime

contractor proposed to hire the majority of the workforce from the subcontractor the p rime

contractors proposed program manager previously served as program manager for the

subcontractor on incumbent contract and the prime contractor lacked experience with

projects of the magnitude required of this procurement

Screen 127 Conference room

FEEDBACK CFR 121103(h)(4) states all aspects of the relationship between the prime and the

subcontractor are to be considered including but not limited to the terms of the proposal such

as contract management and the percentage of subcontract work agreement between the

prime and subcontractor and whether the subcontractor is the incumbent contractor and is

ineligible to submit a proposal because it exceeds the applicable size standard

Screen 128 Conference room

Connie I think we are good here Thank you for meeting Talk to you later

Screen 129 Conference room

SUMMARY Small Businesses are subject to a size protest on a small business set-aside before

award of a contract The SBA will normally make a determination of size status within 15 days

of receipt of protest To be considered by the SBA it is necessary that the protest be specific

and timely

FAR 19302 and 13 CFR Part 121 provide the specific rules for submitting a size representation

An appeal can be made to the SBA Office of Hearing and Appeals for re-consideration of an SBA

Area Office size protest decision In determining size protests the SBA will consider receipts

number of employees and affiliations of the protested concerns In examining affiliations the

SBA will look for an ostensible subcontracting relationship in which the subcontractor that

performs primary and vital requirements of a contract or a subcontractor upon which the prime

contractor is unusually reliant

If affiliation is found and the prime and the sub are considered large due then award cannot

be made If a size protest is not submitted timely or does not contain sufficient information to

make a size determination the protest will be dismissed The SBP role is to ensure that the

organization is aware of the regulations governing the SBA size protests

When a Small Business size representation protest andor an appeal to a size protest is

received the SBPs role is to advise and assist the acquisition team and Contracting Officer with

interpretation and application of corresponding FAR Part 19 and SBA 13 CFR requirements The

SBP may also advise the offeror or contractor on the procedures for submitting a protest prior

to issuing a solicitation After the solicitation has been issued all communication must be

through the Contracting Officer While this scenario discusses the procedures for a small

business representation protest the SBP needs to be aware that the socio-economic programs

ie HUBZones SDVOSB 8(a) and WOSB each have slightly different procedures which are set-

forth in FAR Part 19 Close attention must be made to both the applicable FAR Part 19 and SBA

13 CFR 121 requirements to provide proper advice and guidance on each type of protest and

appeal

Screen 130 Conference room This concludes the simulation The After Action Report (AAR) has

been created Download the AAR and review your performance in the simulation

After viewing the AAR use the browser close button to close this simulation and return to

screen 3 in the Size Protest lesson to complete this lesson

SBP220 Business Decisions for Small Business lesson 11 - Size Pr otest Simulation RESOURCES I PRINT I HELP

Summary

I Poge 5 of6 I Back Next

SBP220 Business Decisions for Small Business lesson 11 - Size Protest Simulation RESOURCES 1 PRINT 1 HELP

Summary

Closed Captioning Congratulations you have completed the Size Protest Simulation During this simulation you participated in activities common to interpreting data to verify the size of a small business Ensure that you review your After Action Report and if you did not respond correctly to all activities consider going through the simula tion again

I Pogo 5of6 I Back Next

SBP220 Business Decisions for Small Business lesson 11 - Size Protest Simulation RESOURCES I PRINT I HELP

Summary

Poge 5of6 I Back Next

SBP220 Business Decisions for Small Business Lesson 11 - Size Pr otest Simulation RESOURCES j PRINT j HElP

Lesson Completion

You have comple ted the con tent for this lesson

To continue select another lesson from the Table of Con tents on the le f t

If you have closed or hidden the Table of Contents select the Show T OC button at the t op in the Atlas navigation bar

~ I P o ge 6 of6 I Back Next

Screen 98 Program Managerrsquos Office LATER THAT DAY - Asha has requested that you come by

her office As you walk into Asharsquos office Connie is already there

Asha Connie was just informing me that she has decided to wait on SBAs decision about the

protest before awarding the contract Just want to inform the both of you that the current

contract expires 18 days after the submittal of the protest to the SBA

Screen 99 Program Managerrsquos Office

Connie That is a good point Asha The risk of me waiting too long will result in expiration of the

incumbents contract and work stoppage for security guard services

Screen 100 Program Managerrsquos Office

Asha I looked up the regulation and it states that we should wait up to 15 business days and

then we may award the contract

Screen 101 Program Managerrsquos Office

Connie Thanks That is what we will do and hopefully SBA will respond before the 15 days

Screen 102 Program Managerrsquos Office CONSEQUENCE OF YOUR ACTIONS Not thoroughly

understanding the protest procedures and being uninformed of program needs and imp acts

could result in adverse impacts to the warfighter

FEEDBACK After receiving a size protest involving a new procurement the Contracting Officer

shall not award the contract until the SBA has made a size determination or after 15 business

days have expired whichever comes first However the Contracting Officer may award a

contract before an SBA determination is made when shehe makes a written determination

that award must be made to protect the public interest (FAR 19302(g)(1))

Screen 103 Program Managerrsquos Office

Connie Ok we wait for 15 business days That sounds much better Thanks - Proceed to

screen 106

Screen 104 COrsquos office

FEEDBACK After receiving a size protest involving a new procurement the Contracting Officer

shall not award the contract until the SBA has made a size determination or after 15 business

days have expired whichever comes first However the Contracting Officer may award a

contract before an SBA determination is made when shehe makes a written determination

that award must be made to protect the public interest (FAR 19302(g)(1))

Connie Ok we wait for 15 business days That sounds much better Thanks - Proceed to

screen 107

Screen 105 Your office

FEEDBACK After receiving a size protest involving a new procurement the Contracting Officer shall not award the contract until the SBA has made a size determination or after 15 business days have expired whichever comes first However the Contracting Officer may award a contract before an SBA determination is made when shehe makes a written determination that award must be made to protect the public interest (FAR 19302(g)(1))

Jenny Ok we wait for 15 business days Thanks - Proceed to screen 107

Screen 106 Program Managerrsquos office FEEDBACK After receiving a size protest involving a new procurement the Contracting Officer shall not award the contract until the SBA has made a size determination or after 15 business days have expired whichever comes first However the Contracting Officer may award a contract before an SBA determination is made when shehe makes a written determination that award must be made to protect the public interest (FAR 19302(g)(1))

Screen 107 Your office TWO DAYS LATER - Itrsquos been two days since your conversation with Jenny You notice that you have a new e-mail

To Acquisition Team Attachment Appeal Letter

From Grace CDI Contractor

Subject ELMO protest upheld

Hello

I just heard that ELMOs protest was upheld We believe the decision was based on erroneous information so we want to appeal Can you give me some guidance in the process for submitting an appeal

I have attached the appeal and size determination letters

Sincerely

Grace CDI Contractor

Activity 107-1 Your office

Question Grace What is the process for submitting an appeal for a size protest determination

Choice 1 IAW FAR 19302(h) an appeal may be filed with the SBA Office of Hearings and Appeals by any concern or interested party whose protest of the small business representation of another concern has been denied - Proceed to screen 111

Choice 2 An appeal may be filed by any concern or interested party to protest the small business representation of another concern to the Contracting Officer - Proceed to screen 108

Screen 108 Your office THREE DAYS LATER Connie comes by your office

Connie Hello there I just received the appeal from CDI through the mail channels and realized

that the protestor sent it to me in error I am having Jenny mail the appeal package back to CDI

Screen 109 Your office As you get back to your desk you notice that you have a voicemail

Grace Hello this is Grace from CDI Looks like I sent my appeal to the wrong location I was not

supposed to send it to the Contracting Officer I have re-sent the appeal to SBA OHA I hope

that its not too late because they will deny my appeal if untimely

Screen 110 Your office CONSEQUENCES OF YOUR ACTIONS Filing the appeal with the

Contracting Officer would result in lost time for the protestor because the appeal must be filed

with SBA OHA The concern encounters a greater risk of denial by SBA OHA if the appeal is not

filed within the time frame listed in Subpart C of 13 CFR 134

Screen 111 Your office The agency awaits confirmation from SBA OHA as to the standing of

the appeal and related impacts to the ongoing procurement You leave for the weekend

Screen 112 Your office FEEDBACK An appeal may be filed only when the small business

representation protest has been denied by the SBA Government Contracting Area Director and

within the time frames and in accordance with the procedures outlined in Subpart C of 13 CFR

Part 134 (IAW FAR 19302(h)) While a Contracting officer may file an appeal of their own the

concern or interested party must file the appeal to the SBA Office of Hearings and Appeals

(OHA) within the time frame and in accordance with the procedures listed in Subpart C of 13

CFR 134

Screen 113 Your office You return to the office on Monday morning You have a new e-mail

E-mail CDI appeal

To You SBP

From Connie Contracting Officer

Subject CDI Appeal

Hello

I would like to have a meeting with you and our lawyer Ian and Jenny to review the CDI size

appeal to the SBA Office of Hearings and Appeals Please check your calendar to see if you are

free tomorrow afternoon Let me know if you can make it

Sincerely

Connie

Contracting Officer

Screen 114 Conference room THE NEXT DAY - You Connie Jenny and the departmentrsquos

lawyer Ian are in a conference room

Ian Glad you could make the meeting We have been informed that Corporate Defenders is

appealing the SBAs decision Because of the potential impact the appeals process may have on

our current security guard services and before we make a decision on what we should do

about continuation of those services I would like to discuss the basis of the original size protest

by ELMO in the Corporate Defenders appeal to determine whether we think it will be denied

What was the basis of the original size protest by ELMO in the Corporate Defenders appeal

Screen 115 Conference room

Jenny The basis of the original protest is that Corporate Defenders Inc is affiliated with Rivers

under the ostensible subcontracting rule

Screen 116 Conference room

Connie Now that we have determined it is a size representation issue does this fall within the

affiliation under the ostensible subcontracting rule

Screen 117 Conference room

Ian The regulation defines an ostensible subcontractor as a subcontractor that performs

primary and vital requirements or when the prime contractor is unusually reliant upon the

subcontractor In this case CDI would be relying on the workforce and management of Rivers

to fulfill the requirements of the contract Therefore the combined size standards of CDI and

Rivers exceeds the size standard for this procurement according to 13 CFR 121103(h)(4)

Screen 118 Conference room

Connie The SBA Area Office found that under the ostensible subcontracting rule CDI was

considered a large business because of its affiliation with Rivers CDI appealed the ruling to the

SBA Office of Hearings and Appeals stating that CDI was not overly reliant on Rivers for

performing the contract and that CDI will serve as the prime contractor ELMO argued that

there is an ostensible subcontracting affiliation with CDI and Rivers and that Rivers is a large

business and thus CDI is ineligible for award What factors could lead to the appeal being

denied

Activity 118-1 Conference room

Question Connie What factors led to the appeal being denied

Choice 1 Rivers was a large business and thus ineligible for the award - Proceed to screen 119

Choice 2 CFR 121103(h)(4) states only the terms of the proposal are applicable to determining

the teaming agreement between the prime and subcontractor - Proceed to screen 123

Choice 3 There is ostensible subcontracting based on the fact that the proposed subcontractor

is the incumbent contractor and thus ineligible for award the prime contractor proposed to

hire the majority of the workforce from the subcontractor the prime contractors proposed

program manager previously served as program manager for the subcontractor on incumbent

contract and the prime contractor lacked experience with projects of the magnitude required

of this procurement This makes the offeror ineligible for award - Proceed to screen 127

Screen 119 Conference room

Ian I believe that is an incorrect assumption since Rivers was only going to perform 43 percent

of the work for a small business This alone would not make Rivers an ostensible subcontractor

Activity 118-2 Conference room

Question Connie What factors led to the appeal being denied

Choice 1 There is ostensible subcontracting based on the fact that the proposed subcontractor

was the incumbent contractor and thus ineligible for award - Proceed to screen 127

Choice 2 CFR 121103(h)(4) states that only the terms of the proposal are applicable to

determining the teaming agreement between the prime and subcontractor - Proceed to screen

120

Screen 120 Conference room

Ian I believe this is an incorrect assumption All aspects of the relationship between CDI and

Rivers are to be considered

Screen 121 Conference room

Connie Letrsquos reference back to the ruling and the reason why there was an ostensible

subcontract

Screen 122 Conference room

Connie It appears that there was ostensible subcontracting based on the fact that the

proposed subcontractor was the incumbent contractor and thus ineligible for award the prime

contractor proposed to hire the majority of the workforce from the subcontractor the prime

contractors proposed program manager previously served as program manager for the

subcontractor on incumbent contract and the prime contractor lacked experience with

projects of the magnitude required of this procurement - Proceed to screen 127

Screen 123 Conference room

Ian I believe this is an incorrect assumption All aspects of the relationship between CDI and

Rivers are to be considered

Activity 118-3 conference room

Question Ian What factors led to the appeal being denied

Choice 1 Rivers was a large business and thus ineligible for the award - Proceed to screen 124

Choice 2 There is ostensible subcontracting based on the fact that the proposed subcontractor

was the incumbent contractor and thus ineligible for award - Proceed to screen 127

Screen 124 Conference room

Ian I believe that is an incorrect assumption since Rivers was only going to perform 43 percent

of the work for a small business This alone would not make Rivers an ostensible subcontractor

Screen 125 Conference room

Connie Letrsquos reference back to the ruling and the reason why there was an ostensible

subcontract

Screen 126 Conference room

Connie It appears that there was ostensible subcontracting based on the fact that the

proposed subcontractor was the incumbent contractor and thus ineligible for award the prime

contractor proposed to hire the majority of the workforce from the subcontractor the p rime

contractors proposed program manager previously served as program manager for the

subcontractor on incumbent contract and the prime contractor lacked experience with

projects of the magnitude required of this procurement

Screen 127 Conference room

FEEDBACK CFR 121103(h)(4) states all aspects of the relationship between the prime and the

subcontractor are to be considered including but not limited to the terms of the proposal such

as contract management and the percentage of subcontract work agreement between the

prime and subcontractor and whether the subcontractor is the incumbent contractor and is

ineligible to submit a proposal because it exceeds the applicable size standard

Screen 128 Conference room

Connie I think we are good here Thank you for meeting Talk to you later

Screen 129 Conference room

SUMMARY Small Businesses are subject to a size protest on a small business set-aside before

award of a contract The SBA will normally make a determination of size status within 15 days

of receipt of protest To be considered by the SBA it is necessary that the protest be specific

and timely

FAR 19302 and 13 CFR Part 121 provide the specific rules for submitting a size representation

An appeal can be made to the SBA Office of Hearing and Appeals for re-consideration of an SBA

Area Office size protest decision In determining size protests the SBA will consider receipts

number of employees and affiliations of the protested concerns In examining affiliations the

SBA will look for an ostensible subcontracting relationship in which the subcontractor that

performs primary and vital requirements of a contract or a subcontractor upon which the prime

contractor is unusually reliant

If affiliation is found and the prime and the sub are considered large due then award cannot

be made If a size protest is not submitted timely or does not contain sufficient information to

make a size determination the protest will be dismissed The SBP role is to ensure that the

organization is aware of the regulations governing the SBA size protests

When a Small Business size representation protest andor an appeal to a size protest is

received the SBPs role is to advise and assist the acquisition team and Contracting Officer with

interpretation and application of corresponding FAR Part 19 and SBA 13 CFR requirements The

SBP may also advise the offeror or contractor on the procedures for submitting a protest prior

to issuing a solicitation After the solicitation has been issued all communication must be

through the Contracting Officer While this scenario discusses the procedures for a small

business representation protest the SBP needs to be aware that the socio-economic programs

ie HUBZones SDVOSB 8(a) and WOSB each have slightly different procedures which are set-

forth in FAR Part 19 Close attention must be made to both the applicable FAR Part 19 and SBA

13 CFR 121 requirements to provide proper advice and guidance on each type of protest and

appeal

Screen 130 Conference room This concludes the simulation The After Action Report (AAR) has

been created Download the AAR and review your performance in the simulation

After viewing the AAR use the browser close button to close this simulation and return to

screen 3 in the Size Protest lesson to complete this lesson

SBP220 Business Decisions for Small Business lesson 11 - Size Pr otest Simulation RESOURCES I PRINT I HELP

Summary

I Poge 5 of6 I Back Next

SBP220 Business Decisions for Small Business lesson 11 - Size Protest Simulation RESOURCES 1 PRINT 1 HELP

Summary

Closed Captioning Congratulations you have completed the Size Protest Simulation During this simulation you participated in activities common to interpreting data to verify the size of a small business Ensure that you review your After Action Report and if you did not respond correctly to all activities consider going through the simula tion again

I Pogo 5of6 I Back Next

SBP220 Business Decisions for Small Business lesson 11 - Size Protest Simulation RESOURCES I PRINT I HELP

Summary

Poge 5of6 I Back Next

SBP220 Business Decisions for Small Business Lesson 11 - Size Pr otest Simulation RESOURCES j PRINT j HElP

Lesson Completion

You have comple ted the con tent for this lesson

To continue select another lesson from the Table of Con tents on the le f t

If you have closed or hidden the Table of Contents select the Show T OC button at the t op in the Atlas navigation bar

~ I P o ge 6 of6 I Back Next

Screen 105 Your office

FEEDBACK After receiving a size protest involving a new procurement the Contracting Officer shall not award the contract until the SBA has made a size determination or after 15 business days have expired whichever comes first However the Contracting Officer may award a contract before an SBA determination is made when shehe makes a written determination that award must be made to protect the public interest (FAR 19302(g)(1))

Jenny Ok we wait for 15 business days Thanks - Proceed to screen 107

Screen 106 Program Managerrsquos office FEEDBACK After receiving a size protest involving a new procurement the Contracting Officer shall not award the contract until the SBA has made a size determination or after 15 business days have expired whichever comes first However the Contracting Officer may award a contract before an SBA determination is made when shehe makes a written determination that award must be made to protect the public interest (FAR 19302(g)(1))

Screen 107 Your office TWO DAYS LATER - Itrsquos been two days since your conversation with Jenny You notice that you have a new e-mail

To Acquisition Team Attachment Appeal Letter

From Grace CDI Contractor

Subject ELMO protest upheld

Hello

I just heard that ELMOs protest was upheld We believe the decision was based on erroneous information so we want to appeal Can you give me some guidance in the process for submitting an appeal

I have attached the appeal and size determination letters

Sincerely

Grace CDI Contractor

Activity 107-1 Your office

Question Grace What is the process for submitting an appeal for a size protest determination

Choice 1 IAW FAR 19302(h) an appeal may be filed with the SBA Office of Hearings and Appeals by any concern or interested party whose protest of the small business representation of another concern has been denied - Proceed to screen 111

Choice 2 An appeal may be filed by any concern or interested party to protest the small business representation of another concern to the Contracting Officer - Proceed to screen 108

Screen 108 Your office THREE DAYS LATER Connie comes by your office

Connie Hello there I just received the appeal from CDI through the mail channels and realized

that the protestor sent it to me in error I am having Jenny mail the appeal package back to CDI

Screen 109 Your office As you get back to your desk you notice that you have a voicemail

Grace Hello this is Grace from CDI Looks like I sent my appeal to the wrong location I was not

supposed to send it to the Contracting Officer I have re-sent the appeal to SBA OHA I hope

that its not too late because they will deny my appeal if untimely

Screen 110 Your office CONSEQUENCES OF YOUR ACTIONS Filing the appeal with the

Contracting Officer would result in lost time for the protestor because the appeal must be filed

with SBA OHA The concern encounters a greater risk of denial by SBA OHA if the appeal is not

filed within the time frame listed in Subpart C of 13 CFR 134

Screen 111 Your office The agency awaits confirmation from SBA OHA as to the standing of

the appeal and related impacts to the ongoing procurement You leave for the weekend

Screen 112 Your office FEEDBACK An appeal may be filed only when the small business

representation protest has been denied by the SBA Government Contracting Area Director and

within the time frames and in accordance with the procedures outlined in Subpart C of 13 CFR

Part 134 (IAW FAR 19302(h)) While a Contracting officer may file an appeal of their own the

concern or interested party must file the appeal to the SBA Office of Hearings and Appeals

(OHA) within the time frame and in accordance with the procedures listed in Subpart C of 13

CFR 134

Screen 113 Your office You return to the office on Monday morning You have a new e-mail

E-mail CDI appeal

To You SBP

From Connie Contracting Officer

Subject CDI Appeal

Hello

I would like to have a meeting with you and our lawyer Ian and Jenny to review the CDI size

appeal to the SBA Office of Hearings and Appeals Please check your calendar to see if you are

free tomorrow afternoon Let me know if you can make it

Sincerely

Connie

Contracting Officer

Screen 114 Conference room THE NEXT DAY - You Connie Jenny and the departmentrsquos

lawyer Ian are in a conference room

Ian Glad you could make the meeting We have been informed that Corporate Defenders is

appealing the SBAs decision Because of the potential impact the appeals process may have on

our current security guard services and before we make a decision on what we should do

about continuation of those services I would like to discuss the basis of the original size protest

by ELMO in the Corporate Defenders appeal to determine whether we think it will be denied

What was the basis of the original size protest by ELMO in the Corporate Defenders appeal

Screen 115 Conference room

Jenny The basis of the original protest is that Corporate Defenders Inc is affiliated with Rivers

under the ostensible subcontracting rule

Screen 116 Conference room

Connie Now that we have determined it is a size representation issue does this fall within the

affiliation under the ostensible subcontracting rule

Screen 117 Conference room

Ian The regulation defines an ostensible subcontractor as a subcontractor that performs

primary and vital requirements or when the prime contractor is unusually reliant upon the

subcontractor In this case CDI would be relying on the workforce and management of Rivers

to fulfill the requirements of the contract Therefore the combined size standards of CDI and

Rivers exceeds the size standard for this procurement according to 13 CFR 121103(h)(4)

Screen 118 Conference room

Connie The SBA Area Office found that under the ostensible subcontracting rule CDI was

considered a large business because of its affiliation with Rivers CDI appealed the ruling to the

SBA Office of Hearings and Appeals stating that CDI was not overly reliant on Rivers for

performing the contract and that CDI will serve as the prime contractor ELMO argued that

there is an ostensible subcontracting affiliation with CDI and Rivers and that Rivers is a large

business and thus CDI is ineligible for award What factors could lead to the appeal being

denied

Activity 118-1 Conference room

Question Connie What factors led to the appeal being denied

Choice 1 Rivers was a large business and thus ineligible for the award - Proceed to screen 119

Choice 2 CFR 121103(h)(4) states only the terms of the proposal are applicable to determining

the teaming agreement between the prime and subcontractor - Proceed to screen 123

Choice 3 There is ostensible subcontracting based on the fact that the proposed subcontractor

is the incumbent contractor and thus ineligible for award the prime contractor proposed to

hire the majority of the workforce from the subcontractor the prime contractors proposed

program manager previously served as program manager for the subcontractor on incumbent

contract and the prime contractor lacked experience with projects of the magnitude required

of this procurement This makes the offeror ineligible for award - Proceed to screen 127

Screen 119 Conference room

Ian I believe that is an incorrect assumption since Rivers was only going to perform 43 percent

of the work for a small business This alone would not make Rivers an ostensible subcontractor

Activity 118-2 Conference room

Question Connie What factors led to the appeal being denied

Choice 1 There is ostensible subcontracting based on the fact that the proposed subcontractor

was the incumbent contractor and thus ineligible for award - Proceed to screen 127

Choice 2 CFR 121103(h)(4) states that only the terms of the proposal are applicable to

determining the teaming agreement between the prime and subcontractor - Proceed to screen

120

Screen 120 Conference room

Ian I believe this is an incorrect assumption All aspects of the relationship between CDI and

Rivers are to be considered

Screen 121 Conference room

Connie Letrsquos reference back to the ruling and the reason why there was an ostensible

subcontract

Screen 122 Conference room

Connie It appears that there was ostensible subcontracting based on the fact that the

proposed subcontractor was the incumbent contractor and thus ineligible for award the prime

contractor proposed to hire the majority of the workforce from the subcontractor the prime

contractors proposed program manager previously served as program manager for the

subcontractor on incumbent contract and the prime contractor lacked experience with

projects of the magnitude required of this procurement - Proceed to screen 127

Screen 123 Conference room

Ian I believe this is an incorrect assumption All aspects of the relationship between CDI and

Rivers are to be considered

Activity 118-3 conference room

Question Ian What factors led to the appeal being denied

Choice 1 Rivers was a large business and thus ineligible for the award - Proceed to screen 124

Choice 2 There is ostensible subcontracting based on the fact that the proposed subcontractor

was the incumbent contractor and thus ineligible for award - Proceed to screen 127

Screen 124 Conference room

Ian I believe that is an incorrect assumption since Rivers was only going to perform 43 percent

of the work for a small business This alone would not make Rivers an ostensible subcontractor

Screen 125 Conference room

Connie Letrsquos reference back to the ruling and the reason why there was an ostensible

subcontract

Screen 126 Conference room

Connie It appears that there was ostensible subcontracting based on the fact that the

proposed subcontractor was the incumbent contractor and thus ineligible for award the prime

contractor proposed to hire the majority of the workforce from the subcontractor the p rime

contractors proposed program manager previously served as program manager for the

subcontractor on incumbent contract and the prime contractor lacked experience with

projects of the magnitude required of this procurement

Screen 127 Conference room

FEEDBACK CFR 121103(h)(4) states all aspects of the relationship between the prime and the

subcontractor are to be considered including but not limited to the terms of the proposal such

as contract management and the percentage of subcontract work agreement between the

prime and subcontractor and whether the subcontractor is the incumbent contractor and is

ineligible to submit a proposal because it exceeds the applicable size standard

Screen 128 Conference room

Connie I think we are good here Thank you for meeting Talk to you later

Screen 129 Conference room

SUMMARY Small Businesses are subject to a size protest on a small business set-aside before

award of a contract The SBA will normally make a determination of size status within 15 days

of receipt of protest To be considered by the SBA it is necessary that the protest be specific

and timely

FAR 19302 and 13 CFR Part 121 provide the specific rules for submitting a size representation

An appeal can be made to the SBA Office of Hearing and Appeals for re-consideration of an SBA

Area Office size protest decision In determining size protests the SBA will consider receipts

number of employees and affiliations of the protested concerns In examining affiliations the

SBA will look for an ostensible subcontracting relationship in which the subcontractor that

performs primary and vital requirements of a contract or a subcontractor upon which the prime

contractor is unusually reliant

If affiliation is found and the prime and the sub are considered large due then award cannot

be made If a size protest is not submitted timely or does not contain sufficient information to

make a size determination the protest will be dismissed The SBP role is to ensure that the

organization is aware of the regulations governing the SBA size protests

When a Small Business size representation protest andor an appeal to a size protest is

received the SBPs role is to advise and assist the acquisition team and Contracting Officer with

interpretation and application of corresponding FAR Part 19 and SBA 13 CFR requirements The

SBP may also advise the offeror or contractor on the procedures for submitting a protest prior

to issuing a solicitation After the solicitation has been issued all communication must be

through the Contracting Officer While this scenario discusses the procedures for a small

business representation protest the SBP needs to be aware that the socio-economic programs

ie HUBZones SDVOSB 8(a) and WOSB each have slightly different procedures which are set-

forth in FAR Part 19 Close attention must be made to both the applicable FAR Part 19 and SBA

13 CFR 121 requirements to provide proper advice and guidance on each type of protest and

appeal

Screen 130 Conference room This concludes the simulation The After Action Report (AAR) has

been created Download the AAR and review your performance in the simulation

After viewing the AAR use the browser close button to close this simulation and return to

screen 3 in the Size Protest lesson to complete this lesson

SBP220 Business Decisions for Small Business lesson 11 - Size Pr otest Simulation RESOURCES I PRINT I HELP

Summary

I Poge 5 of6 I Back Next

SBP220 Business Decisions for Small Business lesson 11 - Size Protest Simulation RESOURCES 1 PRINT 1 HELP

Summary

Closed Captioning Congratulations you have completed the Size Protest Simulation During this simulation you participated in activities common to interpreting data to verify the size of a small business Ensure that you review your After Action Report and if you did not respond correctly to all activities consider going through the simula tion again

I Pogo 5of6 I Back Next

SBP220 Business Decisions for Small Business lesson 11 - Size Protest Simulation RESOURCES I PRINT I HELP

Summary

Poge 5of6 I Back Next

SBP220 Business Decisions for Small Business Lesson 11 - Size Pr otest Simulation RESOURCES j PRINT j HElP

Lesson Completion

You have comple ted the con tent for this lesson

To continue select another lesson from the Table of Con tents on the le f t

If you have closed or hidden the Table of Contents select the Show T OC button at the t op in the Atlas navigation bar

~ I P o ge 6 of6 I Back Next

Screen 108 Your office THREE DAYS LATER Connie comes by your office

Connie Hello there I just received the appeal from CDI through the mail channels and realized

that the protestor sent it to me in error I am having Jenny mail the appeal package back to CDI

Screen 109 Your office As you get back to your desk you notice that you have a voicemail

Grace Hello this is Grace from CDI Looks like I sent my appeal to the wrong location I was not

supposed to send it to the Contracting Officer I have re-sent the appeal to SBA OHA I hope

that its not too late because they will deny my appeal if untimely

Screen 110 Your office CONSEQUENCES OF YOUR ACTIONS Filing the appeal with the

Contracting Officer would result in lost time for the protestor because the appeal must be filed

with SBA OHA The concern encounters a greater risk of denial by SBA OHA if the appeal is not

filed within the time frame listed in Subpart C of 13 CFR 134

Screen 111 Your office The agency awaits confirmation from SBA OHA as to the standing of

the appeal and related impacts to the ongoing procurement You leave for the weekend

Screen 112 Your office FEEDBACK An appeal may be filed only when the small business

representation protest has been denied by the SBA Government Contracting Area Director and

within the time frames and in accordance with the procedures outlined in Subpart C of 13 CFR

Part 134 (IAW FAR 19302(h)) While a Contracting officer may file an appeal of their own the

concern or interested party must file the appeal to the SBA Office of Hearings and Appeals

(OHA) within the time frame and in accordance with the procedures listed in Subpart C of 13

CFR 134

Screen 113 Your office You return to the office on Monday morning You have a new e-mail

E-mail CDI appeal

To You SBP

From Connie Contracting Officer

Subject CDI Appeal

Hello

I would like to have a meeting with you and our lawyer Ian and Jenny to review the CDI size

appeal to the SBA Office of Hearings and Appeals Please check your calendar to see if you are

free tomorrow afternoon Let me know if you can make it

Sincerely

Connie

Contracting Officer

Screen 114 Conference room THE NEXT DAY - You Connie Jenny and the departmentrsquos

lawyer Ian are in a conference room

Ian Glad you could make the meeting We have been informed that Corporate Defenders is

appealing the SBAs decision Because of the potential impact the appeals process may have on

our current security guard services and before we make a decision on what we should do

about continuation of those services I would like to discuss the basis of the original size protest

by ELMO in the Corporate Defenders appeal to determine whether we think it will be denied

What was the basis of the original size protest by ELMO in the Corporate Defenders appeal

Screen 115 Conference room

Jenny The basis of the original protest is that Corporate Defenders Inc is affiliated with Rivers

under the ostensible subcontracting rule

Screen 116 Conference room

Connie Now that we have determined it is a size representation issue does this fall within the

affiliation under the ostensible subcontracting rule

Screen 117 Conference room

Ian The regulation defines an ostensible subcontractor as a subcontractor that performs

primary and vital requirements or when the prime contractor is unusually reliant upon the

subcontractor In this case CDI would be relying on the workforce and management of Rivers

to fulfill the requirements of the contract Therefore the combined size standards of CDI and

Rivers exceeds the size standard for this procurement according to 13 CFR 121103(h)(4)

Screen 118 Conference room

Connie The SBA Area Office found that under the ostensible subcontracting rule CDI was

considered a large business because of its affiliation with Rivers CDI appealed the ruling to the

SBA Office of Hearings and Appeals stating that CDI was not overly reliant on Rivers for

performing the contract and that CDI will serve as the prime contractor ELMO argued that

there is an ostensible subcontracting affiliation with CDI and Rivers and that Rivers is a large

business and thus CDI is ineligible for award What factors could lead to the appeal being

denied

Activity 118-1 Conference room

Question Connie What factors led to the appeal being denied

Choice 1 Rivers was a large business and thus ineligible for the award - Proceed to screen 119

Choice 2 CFR 121103(h)(4) states only the terms of the proposal are applicable to determining

the teaming agreement between the prime and subcontractor - Proceed to screen 123

Choice 3 There is ostensible subcontracting based on the fact that the proposed subcontractor

is the incumbent contractor and thus ineligible for award the prime contractor proposed to

hire the majority of the workforce from the subcontractor the prime contractors proposed

program manager previously served as program manager for the subcontractor on incumbent

contract and the prime contractor lacked experience with projects of the magnitude required

of this procurement This makes the offeror ineligible for award - Proceed to screen 127

Screen 119 Conference room

Ian I believe that is an incorrect assumption since Rivers was only going to perform 43 percent

of the work for a small business This alone would not make Rivers an ostensible subcontractor

Activity 118-2 Conference room

Question Connie What factors led to the appeal being denied

Choice 1 There is ostensible subcontracting based on the fact that the proposed subcontractor

was the incumbent contractor and thus ineligible for award - Proceed to screen 127

Choice 2 CFR 121103(h)(4) states that only the terms of the proposal are applicable to

determining the teaming agreement between the prime and subcontractor - Proceed to screen

120

Screen 120 Conference room

Ian I believe this is an incorrect assumption All aspects of the relationship between CDI and

Rivers are to be considered

Screen 121 Conference room

Connie Letrsquos reference back to the ruling and the reason why there was an ostensible

subcontract

Screen 122 Conference room

Connie It appears that there was ostensible subcontracting based on the fact that the

proposed subcontractor was the incumbent contractor and thus ineligible for award the prime

contractor proposed to hire the majority of the workforce from the subcontractor the prime

contractors proposed program manager previously served as program manager for the

subcontractor on incumbent contract and the prime contractor lacked experience with

projects of the magnitude required of this procurement - Proceed to screen 127

Screen 123 Conference room

Ian I believe this is an incorrect assumption All aspects of the relationship between CDI and

Rivers are to be considered

Activity 118-3 conference room

Question Ian What factors led to the appeal being denied

Choice 1 Rivers was a large business and thus ineligible for the award - Proceed to screen 124

Choice 2 There is ostensible subcontracting based on the fact that the proposed subcontractor

was the incumbent contractor and thus ineligible for award - Proceed to screen 127

Screen 124 Conference room

Ian I believe that is an incorrect assumption since Rivers was only going to perform 43 percent

of the work for a small business This alone would not make Rivers an ostensible subcontractor

Screen 125 Conference room

Connie Letrsquos reference back to the ruling and the reason why there was an ostensible

subcontract

Screen 126 Conference room

Connie It appears that there was ostensible subcontracting based on the fact that the

proposed subcontractor was the incumbent contractor and thus ineligible for award the prime

contractor proposed to hire the majority of the workforce from the subcontractor the p rime

contractors proposed program manager previously served as program manager for the

subcontractor on incumbent contract and the prime contractor lacked experience with

projects of the magnitude required of this procurement

Screen 127 Conference room

FEEDBACK CFR 121103(h)(4) states all aspects of the relationship between the prime and the

subcontractor are to be considered including but not limited to the terms of the proposal such

as contract management and the percentage of subcontract work agreement between the

prime and subcontractor and whether the subcontractor is the incumbent contractor and is

ineligible to submit a proposal because it exceeds the applicable size standard

Screen 128 Conference room

Connie I think we are good here Thank you for meeting Talk to you later

Screen 129 Conference room

SUMMARY Small Businesses are subject to a size protest on a small business set-aside before

award of a contract The SBA will normally make a determination of size status within 15 days

of receipt of protest To be considered by the SBA it is necessary that the protest be specific

and timely

FAR 19302 and 13 CFR Part 121 provide the specific rules for submitting a size representation

An appeal can be made to the SBA Office of Hearing and Appeals for re-consideration of an SBA

Area Office size protest decision In determining size protests the SBA will consider receipts

number of employees and affiliations of the protested concerns In examining affiliations the

SBA will look for an ostensible subcontracting relationship in which the subcontractor that

performs primary and vital requirements of a contract or a subcontractor upon which the prime

contractor is unusually reliant

If affiliation is found and the prime and the sub are considered large due then award cannot

be made If a size protest is not submitted timely or does not contain sufficient information to

make a size determination the protest will be dismissed The SBP role is to ensure that the

organization is aware of the regulations governing the SBA size protests

When a Small Business size representation protest andor an appeal to a size protest is

received the SBPs role is to advise and assist the acquisition team and Contracting Officer with

interpretation and application of corresponding FAR Part 19 and SBA 13 CFR requirements The

SBP may also advise the offeror or contractor on the procedures for submitting a protest prior

to issuing a solicitation After the solicitation has been issued all communication must be

through the Contracting Officer While this scenario discusses the procedures for a small

business representation protest the SBP needs to be aware that the socio-economic programs

ie HUBZones SDVOSB 8(a) and WOSB each have slightly different procedures which are set-

forth in FAR Part 19 Close attention must be made to both the applicable FAR Part 19 and SBA

13 CFR 121 requirements to provide proper advice and guidance on each type of protest and

appeal

Screen 130 Conference room This concludes the simulation The After Action Report (AAR) has

been created Download the AAR and review your performance in the simulation

After viewing the AAR use the browser close button to close this simulation and return to

screen 3 in the Size Protest lesson to complete this lesson

SBP220 Business Decisions for Small Business lesson 11 - Size Pr otest Simulation RESOURCES I PRINT I HELP

Summary

I Poge 5 of6 I Back Next

SBP220 Business Decisions for Small Business lesson 11 - Size Protest Simulation RESOURCES 1 PRINT 1 HELP

Summary

Closed Captioning Congratulations you have completed the Size Protest Simulation During this simulation you participated in activities common to interpreting data to verify the size of a small business Ensure that you review your After Action Report and if you did not respond correctly to all activities consider going through the simula tion again

I Pogo 5of6 I Back Next

SBP220 Business Decisions for Small Business lesson 11 - Size Protest Simulation RESOURCES I PRINT I HELP

Summary

Poge 5of6 I Back Next

SBP220 Business Decisions for Small Business Lesson 11 - Size Pr otest Simulation RESOURCES j PRINT j HElP

Lesson Completion

You have comple ted the con tent for this lesson

To continue select another lesson from the Table of Con tents on the le f t

If you have closed or hidden the Table of Contents select the Show T OC button at the t op in the Atlas navigation bar

~ I P o ge 6 of6 I Back Next

Screen 114 Conference room THE NEXT DAY - You Connie Jenny and the departmentrsquos

lawyer Ian are in a conference room

Ian Glad you could make the meeting We have been informed that Corporate Defenders is

appealing the SBAs decision Because of the potential impact the appeals process may have on

our current security guard services and before we make a decision on what we should do

about continuation of those services I would like to discuss the basis of the original size protest

by ELMO in the Corporate Defenders appeal to determine whether we think it will be denied

What was the basis of the original size protest by ELMO in the Corporate Defenders appeal

Screen 115 Conference room

Jenny The basis of the original protest is that Corporate Defenders Inc is affiliated with Rivers

under the ostensible subcontracting rule

Screen 116 Conference room

Connie Now that we have determined it is a size representation issue does this fall within the

affiliation under the ostensible subcontracting rule

Screen 117 Conference room

Ian The regulation defines an ostensible subcontractor as a subcontractor that performs

primary and vital requirements or when the prime contractor is unusually reliant upon the

subcontractor In this case CDI would be relying on the workforce and management of Rivers

to fulfill the requirements of the contract Therefore the combined size standards of CDI and

Rivers exceeds the size standard for this procurement according to 13 CFR 121103(h)(4)

Screen 118 Conference room

Connie The SBA Area Office found that under the ostensible subcontracting rule CDI was

considered a large business because of its affiliation with Rivers CDI appealed the ruling to the

SBA Office of Hearings and Appeals stating that CDI was not overly reliant on Rivers for

performing the contract and that CDI will serve as the prime contractor ELMO argued that

there is an ostensible subcontracting affiliation with CDI and Rivers and that Rivers is a large

business and thus CDI is ineligible for award What factors could lead to the appeal being

denied

Activity 118-1 Conference room

Question Connie What factors led to the appeal being denied

Choice 1 Rivers was a large business and thus ineligible for the award - Proceed to screen 119

Choice 2 CFR 121103(h)(4) states only the terms of the proposal are applicable to determining

the teaming agreement between the prime and subcontractor - Proceed to screen 123

Choice 3 There is ostensible subcontracting based on the fact that the proposed subcontractor

is the incumbent contractor and thus ineligible for award the prime contractor proposed to

hire the majority of the workforce from the subcontractor the prime contractors proposed

program manager previously served as program manager for the subcontractor on incumbent

contract and the prime contractor lacked experience with projects of the magnitude required

of this procurement This makes the offeror ineligible for award - Proceed to screen 127

Screen 119 Conference room

Ian I believe that is an incorrect assumption since Rivers was only going to perform 43 percent

of the work for a small business This alone would not make Rivers an ostensible subcontractor

Activity 118-2 Conference room

Question Connie What factors led to the appeal being denied

Choice 1 There is ostensible subcontracting based on the fact that the proposed subcontractor

was the incumbent contractor and thus ineligible for award - Proceed to screen 127

Choice 2 CFR 121103(h)(4) states that only the terms of the proposal are applicable to

determining the teaming agreement between the prime and subcontractor - Proceed to screen

120

Screen 120 Conference room

Ian I believe this is an incorrect assumption All aspects of the relationship between CDI and

Rivers are to be considered

Screen 121 Conference room

Connie Letrsquos reference back to the ruling and the reason why there was an ostensible

subcontract

Screen 122 Conference room

Connie It appears that there was ostensible subcontracting based on the fact that the

proposed subcontractor was the incumbent contractor and thus ineligible for award the prime

contractor proposed to hire the majority of the workforce from the subcontractor the prime

contractors proposed program manager previously served as program manager for the

subcontractor on incumbent contract and the prime contractor lacked experience with

projects of the magnitude required of this procurement - Proceed to screen 127

Screen 123 Conference room

Ian I believe this is an incorrect assumption All aspects of the relationship between CDI and

Rivers are to be considered

Activity 118-3 conference room

Question Ian What factors led to the appeal being denied

Choice 1 Rivers was a large business and thus ineligible for the award - Proceed to screen 124

Choice 2 There is ostensible subcontracting based on the fact that the proposed subcontractor

was the incumbent contractor and thus ineligible for award - Proceed to screen 127

Screen 124 Conference room

Ian I believe that is an incorrect assumption since Rivers was only going to perform 43 percent

of the work for a small business This alone would not make Rivers an ostensible subcontractor

Screen 125 Conference room

Connie Letrsquos reference back to the ruling and the reason why there was an ostensible

subcontract

Screen 126 Conference room

Connie It appears that there was ostensible subcontracting based on the fact that the

proposed subcontractor was the incumbent contractor and thus ineligible for award the prime

contractor proposed to hire the majority of the workforce from the subcontractor the p rime

contractors proposed program manager previously served as program manager for the

subcontractor on incumbent contract and the prime contractor lacked experience with

projects of the magnitude required of this procurement

Screen 127 Conference room

FEEDBACK CFR 121103(h)(4) states all aspects of the relationship between the prime and the

subcontractor are to be considered including but not limited to the terms of the proposal such

as contract management and the percentage of subcontract work agreement between the

prime and subcontractor and whether the subcontractor is the incumbent contractor and is

ineligible to submit a proposal because it exceeds the applicable size standard

Screen 128 Conference room

Connie I think we are good here Thank you for meeting Talk to you later

Screen 129 Conference room

SUMMARY Small Businesses are subject to a size protest on a small business set-aside before

award of a contract The SBA will normally make a determination of size status within 15 days

of receipt of protest To be considered by the SBA it is necessary that the protest be specific

and timely

FAR 19302 and 13 CFR Part 121 provide the specific rules for submitting a size representation

An appeal can be made to the SBA Office of Hearing and Appeals for re-consideration of an SBA

Area Office size protest decision In determining size protests the SBA will consider receipts

number of employees and affiliations of the protested concerns In examining affiliations the

SBA will look for an ostensible subcontracting relationship in which the subcontractor that

performs primary and vital requirements of a contract or a subcontractor upon which the prime

contractor is unusually reliant

If affiliation is found and the prime and the sub are considered large due then award cannot

be made If a size protest is not submitted timely or does not contain sufficient information to

make a size determination the protest will be dismissed The SBP role is to ensure that the

organization is aware of the regulations governing the SBA size protests

When a Small Business size representation protest andor an appeal to a size protest is

received the SBPs role is to advise and assist the acquisition team and Contracting Officer with

interpretation and application of corresponding FAR Part 19 and SBA 13 CFR requirements The

SBP may also advise the offeror or contractor on the procedures for submitting a protest prior

to issuing a solicitation After the solicitation has been issued all communication must be

through the Contracting Officer While this scenario discusses the procedures for a small

business representation protest the SBP needs to be aware that the socio-economic programs

ie HUBZones SDVOSB 8(a) and WOSB each have slightly different procedures which are set-

forth in FAR Part 19 Close attention must be made to both the applicable FAR Part 19 and SBA

13 CFR 121 requirements to provide proper advice and guidance on each type of protest and

appeal

Screen 130 Conference room This concludes the simulation The After Action Report (AAR) has

been created Download the AAR and review your performance in the simulation

After viewing the AAR use the browser close button to close this simulation and return to

screen 3 in the Size Protest lesson to complete this lesson

SBP220 Business Decisions for Small Business lesson 11 - Size Pr otest Simulation RESOURCES I PRINT I HELP

Summary

I Poge 5 of6 I Back Next

SBP220 Business Decisions for Small Business lesson 11 - Size Protest Simulation RESOURCES 1 PRINT 1 HELP

Summary

Closed Captioning Congratulations you have completed the Size Protest Simulation During this simulation you participated in activities common to interpreting data to verify the size of a small business Ensure that you review your After Action Report and if you did not respond correctly to all activities consider going through the simula tion again

I Pogo 5of6 I Back Next

SBP220 Business Decisions for Small Business lesson 11 - Size Protest Simulation RESOURCES I PRINT I HELP

Summary

Poge 5of6 I Back Next

SBP220 Business Decisions for Small Business Lesson 11 - Size Pr otest Simulation RESOURCES j PRINT j HElP

Lesson Completion

You have comple ted the con tent for this lesson

To continue select another lesson from the Table of Con tents on the le f t

If you have closed or hidden the Table of Contents select the Show T OC button at the t op in the Atlas navigation bar

~ I P o ge 6 of6 I Back Next

Activity 118-1 Conference room

Question Connie What factors led to the appeal being denied

Choice 1 Rivers was a large business and thus ineligible for the award - Proceed to screen 119

Choice 2 CFR 121103(h)(4) states only the terms of the proposal are applicable to determining

the teaming agreement between the prime and subcontractor - Proceed to screen 123

Choice 3 There is ostensible subcontracting based on the fact that the proposed subcontractor

is the incumbent contractor and thus ineligible for award the prime contractor proposed to

hire the majority of the workforce from the subcontractor the prime contractors proposed

program manager previously served as program manager for the subcontractor on incumbent

contract and the prime contractor lacked experience with projects of the magnitude required

of this procurement This makes the offeror ineligible for award - Proceed to screen 127

Screen 119 Conference room

Ian I believe that is an incorrect assumption since Rivers was only going to perform 43 percent

of the work for a small business This alone would not make Rivers an ostensible subcontractor

Activity 118-2 Conference room

Question Connie What factors led to the appeal being denied

Choice 1 There is ostensible subcontracting based on the fact that the proposed subcontractor

was the incumbent contractor and thus ineligible for award - Proceed to screen 127

Choice 2 CFR 121103(h)(4) states that only the terms of the proposal are applicable to

determining the teaming agreement between the prime and subcontractor - Proceed to screen

120

Screen 120 Conference room

Ian I believe this is an incorrect assumption All aspects of the relationship between CDI and

Rivers are to be considered

Screen 121 Conference room

Connie Letrsquos reference back to the ruling and the reason why there was an ostensible

subcontract

Screen 122 Conference room

Connie It appears that there was ostensible subcontracting based on the fact that the

proposed subcontractor was the incumbent contractor and thus ineligible for award the prime

contractor proposed to hire the majority of the workforce from the subcontractor the prime

contractors proposed program manager previously served as program manager for the

subcontractor on incumbent contract and the prime contractor lacked experience with

projects of the magnitude required of this procurement - Proceed to screen 127

Screen 123 Conference room

Ian I believe this is an incorrect assumption All aspects of the relationship between CDI and

Rivers are to be considered

Activity 118-3 conference room

Question Ian What factors led to the appeal being denied

Choice 1 Rivers was a large business and thus ineligible for the award - Proceed to screen 124

Choice 2 There is ostensible subcontracting based on the fact that the proposed subcontractor

was the incumbent contractor and thus ineligible for award - Proceed to screen 127

Screen 124 Conference room

Ian I believe that is an incorrect assumption since Rivers was only going to perform 43 percent

of the work for a small business This alone would not make Rivers an ostensible subcontractor

Screen 125 Conference room

Connie Letrsquos reference back to the ruling and the reason why there was an ostensible

subcontract

Screen 126 Conference room

Connie It appears that there was ostensible subcontracting based on the fact that the

proposed subcontractor was the incumbent contractor and thus ineligible for award the prime

contractor proposed to hire the majority of the workforce from the subcontractor the p rime

contractors proposed program manager previously served as program manager for the

subcontractor on incumbent contract and the prime contractor lacked experience with

projects of the magnitude required of this procurement

Screen 127 Conference room

FEEDBACK CFR 121103(h)(4) states all aspects of the relationship between the prime and the

subcontractor are to be considered including but not limited to the terms of the proposal such

as contract management and the percentage of subcontract work agreement between the

prime and subcontractor and whether the subcontractor is the incumbent contractor and is

ineligible to submit a proposal because it exceeds the applicable size standard

Screen 128 Conference room

Connie I think we are good here Thank you for meeting Talk to you later

Screen 129 Conference room

SUMMARY Small Businesses are subject to a size protest on a small business set-aside before

award of a contract The SBA will normally make a determination of size status within 15 days

of receipt of protest To be considered by the SBA it is necessary that the protest be specific

and timely

FAR 19302 and 13 CFR Part 121 provide the specific rules for submitting a size representation

An appeal can be made to the SBA Office of Hearing and Appeals for re-consideration of an SBA

Area Office size protest decision In determining size protests the SBA will consider receipts

number of employees and affiliations of the protested concerns In examining affiliations the

SBA will look for an ostensible subcontracting relationship in which the subcontractor that

performs primary and vital requirements of a contract or a subcontractor upon which the prime

contractor is unusually reliant

If affiliation is found and the prime and the sub are considered large due then award cannot

be made If a size protest is not submitted timely or does not contain sufficient information to

make a size determination the protest will be dismissed The SBP role is to ensure that the

organization is aware of the regulations governing the SBA size protests

When a Small Business size representation protest andor an appeal to a size protest is

received the SBPs role is to advise and assist the acquisition team and Contracting Officer with

interpretation and application of corresponding FAR Part 19 and SBA 13 CFR requirements The

SBP may also advise the offeror or contractor on the procedures for submitting a protest prior

to issuing a solicitation After the solicitation has been issued all communication must be

through the Contracting Officer While this scenario discusses the procedures for a small

business representation protest the SBP needs to be aware that the socio-economic programs

ie HUBZones SDVOSB 8(a) and WOSB each have slightly different procedures which are set-

forth in FAR Part 19 Close attention must be made to both the applicable FAR Part 19 and SBA

13 CFR 121 requirements to provide proper advice and guidance on each type of protest and

appeal

Screen 130 Conference room This concludes the simulation The After Action Report (AAR) has

been created Download the AAR and review your performance in the simulation

After viewing the AAR use the browser close button to close this simulation and return to

screen 3 in the Size Protest lesson to complete this lesson

SBP220 Business Decisions for Small Business lesson 11 - Size Pr otest Simulation RESOURCES I PRINT I HELP

Summary

I Poge 5 of6 I Back Next

SBP220 Business Decisions for Small Business lesson 11 - Size Protest Simulation RESOURCES 1 PRINT 1 HELP

Summary

Closed Captioning Congratulations you have completed the Size Protest Simulation During this simulation you participated in activities common to interpreting data to verify the size of a small business Ensure that you review your After Action Report and if you did not respond correctly to all activities consider going through the simula tion again

I Pogo 5of6 I Back Next

SBP220 Business Decisions for Small Business lesson 11 - Size Protest Simulation RESOURCES I PRINT I HELP

Summary

Poge 5of6 I Back Next

SBP220 Business Decisions for Small Business Lesson 11 - Size Pr otest Simulation RESOURCES j PRINT j HElP

Lesson Completion

You have comple ted the con tent for this lesson

To continue select another lesson from the Table of Con tents on the le f t

If you have closed or hidden the Table of Contents select the Show T OC button at the t op in the Atlas navigation bar

~ I P o ge 6 of6 I Back Next

Screen 122 Conference room

Connie It appears that there was ostensible subcontracting based on the fact that the

proposed subcontractor was the incumbent contractor and thus ineligible for award the prime

contractor proposed to hire the majority of the workforce from the subcontractor the prime

contractors proposed program manager previously served as program manager for the

subcontractor on incumbent contract and the prime contractor lacked experience with

projects of the magnitude required of this procurement - Proceed to screen 127

Screen 123 Conference room

Ian I believe this is an incorrect assumption All aspects of the relationship between CDI and

Rivers are to be considered

Activity 118-3 conference room

Question Ian What factors led to the appeal being denied

Choice 1 Rivers was a large business and thus ineligible for the award - Proceed to screen 124

Choice 2 There is ostensible subcontracting based on the fact that the proposed subcontractor

was the incumbent contractor and thus ineligible for award - Proceed to screen 127

Screen 124 Conference room

Ian I believe that is an incorrect assumption since Rivers was only going to perform 43 percent

of the work for a small business This alone would not make Rivers an ostensible subcontractor

Screen 125 Conference room

Connie Letrsquos reference back to the ruling and the reason why there was an ostensible

subcontract

Screen 126 Conference room

Connie It appears that there was ostensible subcontracting based on the fact that the

proposed subcontractor was the incumbent contractor and thus ineligible for award the prime

contractor proposed to hire the majority of the workforce from the subcontractor the p rime

contractors proposed program manager previously served as program manager for the

subcontractor on incumbent contract and the prime contractor lacked experience with

projects of the magnitude required of this procurement

Screen 127 Conference room

FEEDBACK CFR 121103(h)(4) states all aspects of the relationship between the prime and the

subcontractor are to be considered including but not limited to the terms of the proposal such

as contract management and the percentage of subcontract work agreement between the

prime and subcontractor and whether the subcontractor is the incumbent contractor and is

ineligible to submit a proposal because it exceeds the applicable size standard

Screen 128 Conference room

Connie I think we are good here Thank you for meeting Talk to you later

Screen 129 Conference room

SUMMARY Small Businesses are subject to a size protest on a small business set-aside before

award of a contract The SBA will normally make a determination of size status within 15 days

of receipt of protest To be considered by the SBA it is necessary that the protest be specific

and timely

FAR 19302 and 13 CFR Part 121 provide the specific rules for submitting a size representation

An appeal can be made to the SBA Office of Hearing and Appeals for re-consideration of an SBA

Area Office size protest decision In determining size protests the SBA will consider receipts

number of employees and affiliations of the protested concerns In examining affiliations the

SBA will look for an ostensible subcontracting relationship in which the subcontractor that

performs primary and vital requirements of a contract or a subcontractor upon which the prime

contractor is unusually reliant

If affiliation is found and the prime and the sub are considered large due then award cannot

be made If a size protest is not submitted timely or does not contain sufficient information to

make a size determination the protest will be dismissed The SBP role is to ensure that the

organization is aware of the regulations governing the SBA size protests

When a Small Business size representation protest andor an appeal to a size protest is

received the SBPs role is to advise and assist the acquisition team and Contracting Officer with

interpretation and application of corresponding FAR Part 19 and SBA 13 CFR requirements The

SBP may also advise the offeror or contractor on the procedures for submitting a protest prior

to issuing a solicitation After the solicitation has been issued all communication must be

through the Contracting Officer While this scenario discusses the procedures for a small

business representation protest the SBP needs to be aware that the socio-economic programs

ie HUBZones SDVOSB 8(a) and WOSB each have slightly different procedures which are set-

forth in FAR Part 19 Close attention must be made to both the applicable FAR Part 19 and SBA

13 CFR 121 requirements to provide proper advice and guidance on each type of protest and

appeal

Screen 130 Conference room This concludes the simulation The After Action Report (AAR) has

been created Download the AAR and review your performance in the simulation

After viewing the AAR use the browser close button to close this simulation and return to

screen 3 in the Size Protest lesson to complete this lesson

SBP220 Business Decisions for Small Business lesson 11 - Size Pr otest Simulation RESOURCES I PRINT I HELP

Summary

I Poge 5 of6 I Back Next

SBP220 Business Decisions for Small Business lesson 11 - Size Protest Simulation RESOURCES 1 PRINT 1 HELP

Summary

Closed Captioning Congratulations you have completed the Size Protest Simulation During this simulation you participated in activities common to interpreting data to verify the size of a small business Ensure that you review your After Action Report and if you did not respond correctly to all activities consider going through the simula tion again

I Pogo 5of6 I Back Next

SBP220 Business Decisions for Small Business lesson 11 - Size Protest Simulation RESOURCES I PRINT I HELP

Summary

Poge 5of6 I Back Next

SBP220 Business Decisions for Small Business Lesson 11 - Size Pr otest Simulation RESOURCES j PRINT j HElP

Lesson Completion

You have comple ted the con tent for this lesson

To continue select another lesson from the Table of Con tents on the le f t

If you have closed or hidden the Table of Contents select the Show T OC button at the t op in the Atlas navigation bar

~ I P o ge 6 of6 I Back Next

Screen 127 Conference room

FEEDBACK CFR 121103(h)(4) states all aspects of the relationship between the prime and the

subcontractor are to be considered including but not limited to the terms of the proposal such

as contract management and the percentage of subcontract work agreement between the

prime and subcontractor and whether the subcontractor is the incumbent contractor and is

ineligible to submit a proposal because it exceeds the applicable size standard

Screen 128 Conference room

Connie I think we are good here Thank you for meeting Talk to you later

Screen 129 Conference room

SUMMARY Small Businesses are subject to a size protest on a small business set-aside before

award of a contract The SBA will normally make a determination of size status within 15 days

of receipt of protest To be considered by the SBA it is necessary that the protest be specific

and timely

FAR 19302 and 13 CFR Part 121 provide the specific rules for submitting a size representation

An appeal can be made to the SBA Office of Hearing and Appeals for re-consideration of an SBA

Area Office size protest decision In determining size protests the SBA will consider receipts

number of employees and affiliations of the protested concerns In examining affiliations the

SBA will look for an ostensible subcontracting relationship in which the subcontractor that

performs primary and vital requirements of a contract or a subcontractor upon which the prime

contractor is unusually reliant

If affiliation is found and the prime and the sub are considered large due then award cannot

be made If a size protest is not submitted timely or does not contain sufficient information to

make a size determination the protest will be dismissed The SBP role is to ensure that the

organization is aware of the regulations governing the SBA size protests

When a Small Business size representation protest andor an appeal to a size protest is

received the SBPs role is to advise and assist the acquisition team and Contracting Officer with

interpretation and application of corresponding FAR Part 19 and SBA 13 CFR requirements The

SBP may also advise the offeror or contractor on the procedures for submitting a protest prior

to issuing a solicitation After the solicitation has been issued all communication must be

through the Contracting Officer While this scenario discusses the procedures for a small

business representation protest the SBP needs to be aware that the socio-economic programs

ie HUBZones SDVOSB 8(a) and WOSB each have slightly different procedures which are set-

forth in FAR Part 19 Close attention must be made to both the applicable FAR Part 19 and SBA

13 CFR 121 requirements to provide proper advice and guidance on each type of protest and

appeal

Screen 130 Conference room This concludes the simulation The After Action Report (AAR) has

been created Download the AAR and review your performance in the simulation

After viewing the AAR use the browser close button to close this simulation and return to

screen 3 in the Size Protest lesson to complete this lesson

SBP220 Business Decisions for Small Business lesson 11 - Size Pr otest Simulation RESOURCES I PRINT I HELP

Summary

I Poge 5 of6 I Back Next

SBP220 Business Decisions for Small Business lesson 11 - Size Protest Simulation RESOURCES 1 PRINT 1 HELP

Summary

Closed Captioning Congratulations you have completed the Size Protest Simulation During this simulation you participated in activities common to interpreting data to verify the size of a small business Ensure that you review your After Action Report and if you did not respond correctly to all activities consider going through the simula tion again

I Pogo 5of6 I Back Next

SBP220 Business Decisions for Small Business lesson 11 - Size Protest Simulation RESOURCES I PRINT I HELP

Summary

Poge 5of6 I Back Next

SBP220 Business Decisions for Small Business Lesson 11 - Size Pr otest Simulation RESOURCES j PRINT j HElP

Lesson Completion

You have comple ted the con tent for this lesson

To continue select another lesson from the Table of Con tents on the le f t

If you have closed or hidden the Table of Contents select the Show T OC button at the t op in the Atlas navigation bar

~ I P o ge 6 of6 I Back Next

Screen 130 Conference room This concludes the simulation The After Action Report (AAR) has

been created Download the AAR and review your performance in the simulation

After viewing the AAR use the browser close button to close this simulation and return to

screen 3 in the Size Protest lesson to complete this lesson

SBP220 Business Decisions for Small Business lesson 11 - Size Pr otest Simulation RESOURCES I PRINT I HELP

Summary

I Poge 5 of6 I Back Next

SBP220 Business Decisions for Small Business lesson 11 - Size Protest Simulation RESOURCES 1 PRINT 1 HELP

Summary

Closed Captioning Congratulations you have completed the Size Protest Simulation During this simulation you participated in activities common to interpreting data to verify the size of a small business Ensure that you review your After Action Report and if you did not respond correctly to all activities consider going through the simula tion again

I Pogo 5of6 I Back Next

SBP220 Business Decisions for Small Business lesson 11 - Size Protest Simulation RESOURCES I PRINT I HELP

Summary

Poge 5of6 I Back Next

SBP220 Business Decisions for Small Business Lesson 11 - Size Pr otest Simulation RESOURCES j PRINT j HElP

Lesson Completion

You have comple ted the con tent for this lesson

To continue select another lesson from the Table of Con tents on the le f t

If you have closed or hidden the Table of Contents select the Show T OC button at the t op in the Atlas navigation bar

~ I P o ge 6 of6 I Back Next

SBP220 Business Decisions for Small Business lesson 11 - Size Pr otest Simulation RESOURCES I PRINT I HELP

Summary

I Poge 5 of6 I Back Next

SBP220 Business Decisions for Small Business lesson 11 - Size Protest Simulation RESOURCES 1 PRINT 1 HELP

Summary

Closed Captioning Congratulations you have completed the Size Protest Simulation During this simulation you participated in activities common to interpreting data to verify the size of a small business Ensure that you review your After Action Report and if you did not respond correctly to all activities consider going through the simula tion again

I Pogo 5of6 I Back Next

SBP220 Business Decisions for Small Business lesson 11 - Size Protest Simulation RESOURCES I PRINT I HELP

Summary

Poge 5of6 I Back Next

SBP220 Business Decisions for Small Business Lesson 11 - Size Pr otest Simulation RESOURCES j PRINT j HElP

Lesson Completion

You have comple ted the con tent for this lesson

To continue select another lesson from the Table of Con tents on the le f t

If you have closed or hidden the Table of Contents select the Show T OC button at the t op in the Atlas navigation bar

~ I P o ge 6 of6 I Back Next

SBP220 Business Decisions for Small Business lesson 11 - Size Protest Simulation RESOURCES 1 PRINT 1 HELP

Summary

Closed Captioning Congratulations you have completed the Size Protest Simulation During this simulation you participated in activities common to interpreting data to verify the size of a small business Ensure that you review your After Action Report and if you did not respond correctly to all activities consider going through the simula tion again

I Pogo 5of6 I Back Next

SBP220 Business Decisions for Small Business lesson 11 - Size Protest Simulation RESOURCES I PRINT I HELP

Summary

Poge 5of6 I Back Next

SBP220 Business Decisions for Small Business Lesson 11 - Size Pr otest Simulation RESOURCES j PRINT j HElP

Lesson Completion

You have comple ted the con tent for this lesson

To continue select another lesson from the Table of Con tents on the le f t

If you have closed or hidden the Table of Contents select the Show T OC button at the t op in the Atlas navigation bar

~ I P o ge 6 of6 I Back Next

SBP220 Business Decisions for Small Business lesson 11 - Size Protest Simulation RESOURCES I PRINT I HELP

Summary

Poge 5of6 I Back Next

SBP220 Business Decisions for Small Business Lesson 11 - Size Pr otest Simulation RESOURCES j PRINT j HElP

Lesson Completion

You have comple ted the con tent for this lesson

To continue select another lesson from the Table of Con tents on the le f t

If you have closed or hidden the Table of Contents select the Show T OC button at the t op in the Atlas navigation bar

~ I P o ge 6 of6 I Back Next

SBP220 Business Decisions for Small Business Lesson 11 - Size Pr otest Simulation RESOURCES j PRINT j HElP

Lesson Completion

You have comple ted the con tent for this lesson

To continue select another lesson from the Table of Con tents on the le f t

If you have closed or hidden the Table of Contents select the Show T OC button at the t op in the Atlas navigation bar

~ I P o ge 6 of6 I Back Next