C.F.R. » Title 13 » CHAPTER I—SMALL BUSINESS ADMINISTRATION › PART 121—SMALL BUSINESS SIZE REGULATIONS › Subpart A—Size Eligibility Provisions and Standards

13 C.F.R. § 121.1008

What occurs after SBA receives a size protest or request for a formal size determination?

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(a) 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. If the protest pertains to a requirement involving SBA's HUBZone program, the Area Director will also notify the D/HUB of the protest. If the protest pertains to a requirement set aside for WOSBs or EDWOSBs, the Area Director will also notify SBA's Director for Government Contracting of the protest. If the protest pertains to a requirement involving SBA's SBIR or STTR programs, the Area Director will also notify the Associate Administrator, Investment Division. If the protest involves the size status of an SDB concern (see part 124, subpart B of this chapter) the Area Director will notify SBA's Associate Administrator for Business Development. If the protest pertains to a requirement that has been reserved for competition among eligible 8(a) BD program participants, the Area Director will notify the SBA district office servicing the 8(a) concern whose size status has been protested. SBA will provide a copy of the protest to the protested concern together with SBA Form 355, Application for Small Business Size Determination, by certified mail, return receipt requested, or by any overnight delivery service that provides proof of receipt. SBA will ask the protested concern to complete the form and respond to the allegations in the protest.

(b) When SBA receives a request for a formal size determination in accord with § 121.1001(b), SBA will provide a blank copy of SBA Form 355 to the concern whose size is at issue.

(c) 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. The firm must attach to the completed SBA Form 355 its answers to the allegations contained in the protest, where applicable, together with any supporting material.

(d) If a concern whose size status is at issue fails to submit a completed SBA Form 355, responses to the allegations of the protest, or other requested information within the time allowed by SBA, or if it submits incomplete information, SBA may presume that disclosure of the information required by the form or other missing information would demonstrate that the concern is other than a small business. A concern whose size status is at issue must furnish information about its alleged affiliates to SBA, despite any third party claims of privacy or confidentiality, because SBA will not disclose information obtained in the course of a size determination except as permitted by Federal law.

[61 FR 3286, Jan. 31, 1996, as amended at 63 FR 31908, June 11, 1998; 69 FR 29207, May 21, 2004; 73 FR 56948, Oct. 1, 2008; 74 FR 45753, Sept. 4, 2009; 75 FR 62280, Oct. 7, 2010; 77 FR 76227, Dec. 27, 2012]
Notes of Decisions
Cited in 7 cases (3 in the last 5 years), 1998–2026 · leading case: DSE, Inc. v. United States, 169 F.3d 21 (D.C. Cir. 1999).
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DSE, Inc. v. United States, 169 F.3d 21 (D.C. Cir. 1999). · cites it 2× “See 13 C.F.R. § 121.1008 . If the awardee fails to make a timely response, the SBA may employ a negative inference that the missing information would reveal the firm to be other than small.”
DSE, Inc. v. United States, 3 F. Supp. 2d 1464 (D.D.C. 1998). “The negative inference rule is provided in 13 C.F.R. § 121.1008 and § 121.1009. According to § 121.”
Juliet Constr., LLC v. United States (Fed. Cl. 2019). · cites it 6× “The AO’s Formal Size Determination On September 11, 2018, the AO issued its size determination, finding that Juliet was “other than small” based on the SBA’s adverse inference rule, 13 C.F.R. § 121.1008 (d). AR343, AR 346–47.”
Ideogenics LLC v. United States (Fed. Cl. 2018). “at 19–20 (citing Tab 18, AR 799; Tab 44, AR 2775; see also 13 C.F.R. § 121.1008 (d) (permitting adverse inferences where a protested concern does not provide requested information)).”
Darton Innovative Tech., Inc. v. United States (Fed. Cl. 2021). “13 C.F.R. § 121.1008 (c). Darton submitted a provisional response on September 29, 2021, but requested and was granted an extension until October 1, 2020, to submit a revised response.”
Darton Innovative Tech., Inc. v. United States (Fed. Cl. 2021). “13 C.F.R. § 121.1008 (c). Darton submitted a provisional response on September 29, 2021, but requested and was granted an extension until October 1, 2020, to submit a revised response.”
Primary Health Care, LLC v. United States (Fed. Cl. 2026). “13 C.F.R. §§ 121.1008 , 121.1009. That size determination may be appealed to the SBA Office of Hearings and Appeals.”
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