nated as a "redevelopment area" in accordance with the Public Works and Economic Development Act of 1965 (Public Law 89-136, sec. 401, 75 Stat. 48).

(v) "Shopping center" means a group of commercial establishments planned, developed, owned, and managed as a unit with off-street parking provided on the property.

(w) "Size determination" means an SBA ruling, in writing, that a concern is or is not, or was or was not, a small business within the meaning of this part. An opinion rendered by SBA to a contracting officer on the basis of published or commonly known information and without the benefit of a formal SBA inquiry, is not a "size determination" as that term is used in this part.

(x) "United States" as used in this regulation includes the several States, the territories and possessions of the United States, the Commonwealth of Puerto Rico, the Trust Territory of the Pacific Islands, and the District of Columbia.

[Rev. 9, 34 F.R. 18585, Nov. 22, 1969, as amended by Amdt. 9, 35 F.R. 19077, Dec. 17, 1970]

NOTE: The amendment at 35 F.R. 19077 is effective 30 days after date of publication. § 121.3–3 Organization—size functions.

The Associate Administrator for Procurement and Management Assistance shall:

(a) Develop and recommend small business size standards to the Administrator of SBA for promulgation;

(b) Conduct industry hearings pertaining to size matters;

(c) In concert with the Office of General Counsel, issue interpretations of the Size Standards Regulation;

(d) Consider and take appropriate action on written petitions objecting to or requesting amendments or recission of a published size standard;

(e) Establish procedures for the implementation of all size programs; and

(f) Perform such other related functions as may be appropriate to administer the SBA size program.

§ 121.3-4 Size determinations.

Original size determinations shall be made by the Area Administrator, or his delegatee, serving the area in which the principal office of the concern (not including its affiliates) whose size is in question is located, except that for lease guarantee reinsurance purposes such determinations shall be made by the Asso

ciate Administrator for Financial Assistance. For the purpose of Government procurements a size determination shall be made only in the event of a protest pursuant to § 121.3-5, a request for a redetermination pursuant to § 121.3-14(e), a request for a Certificate of Competency, or on request by the U.S. General Accounting Office. The Area Administrator, or his delegatee, or the Associate Administrator for Financial Assistance, promptly shall notify, in writing by certified mail, return receipt requested, the concern in question and other interested persons of his decision. Such determination shall be final unless appealed in the manner provided in § 121.3-6.

[Rev. 9, 34 F.R. 18585, Nov. 22, 1969, as amended by Amdt. 4, 35 F.R. 7726, May 20, 1970]

§ 121.3-5 Protest of small business

status.

(a) How to protest: Any bidder or offeror or other interested party may challenge the small business status of any other bidder or offeror on a particular procurement or disposal. Such challenge shall be made by delivering a protest to the contracting officer responsible for the particular procurement involved, such protest must be filed prior to the close of business on the fifth day, exclusive of Saturdays, Sundays, and legal holidays, after bid or proposal opening, except that in the case of negotiated procurements, a protest may be filed by a bidder or offeror within five (5) days, exclusive of Saturdays, Sundays, and legal holidays after receipt of the identity of another bidder or offeror from a contracting officer: Provided, however, That a protest received after such time shall be deemed to be timely for the purpose of the procurement in question, if, in the case of mailed protests, such protest is sent by registered or certified mail and the postmark thereon indicates that the protest would have been delivered within this time limit but for delasy beyond the control of the protestant or, in the case of telegraphed protests, the telegram date and time line indicate that the protest would have been delivered within this time limit but for delays beyond the control of the protestant. Any Contracting Officer who receives a protest shall promptly forward such protest to the SBA regional office serving the geographical area in which the principal office of the protested concern, not including its affiliates, is located. A Con

tracting Officer may question the small business status of any bidder or offeror by filing a protest with the SBA regional office serving the area in which the principal office of the protested concern, not including its affiliates, is located. In order to be applicable to the procurement in question such protest must be filed before contract award. Further, at any time after award, the head of the procuring activity can challenge the eligibility of the awardee as a small business for the purpose of the award by filing a written protest with the SBA regional office serving the area in which the principal office of such concern, not including its affiliates, is located. For the purpose of this section, the "procuring activity" is as defined in § 1-201.14 of the Armed Services Procurement Regulation or § 1-1.205 of the Federal Procurement Regulations. The "head of the procuring activity" is as defined in § 1-201.7 of the Armed Services Procurement Regulation or § 1-1.206 of the Federal Procurement Regulations.

(b) Notification of protest: Upon receipt of such protest, the SBA regional director or his delegatee shall immediately notify the Contracting Officer and the protestant of the date such protest has been received and that the size of the concern being protested is being considered by SBA. The regional director or his delegatee shall also advise the protested bidder or offeror of the receipt of the protest and shall forward to the protested bidder or offeror a copy of the protest and a blank SBA Form 355, Application for Small Business Size Determination, by certified mail, return receipt requested. Such bidder must, within three (3) working days after receipt of the copy of the protest and SBA Form 355, file the completed form as directed by SBA, and must attach thereto a statement in answer to the allegations of the letter of protest, together with evidence to support such position. If such bidder or offeror does not submit the completed SBA Form 355 within the filing period provided above, or within any additional period of time granted by SBA for cause, SBA will rule that the protested concern is other than a small business.

(c) Notification of determination: After recepit of a protest and responses thereto, SBA shall determine the small business status of the protested bidder or offeror and, by certified mail, return receipt requested, notify the Contracting

Officer, the protestant, and the protested bidder or offeror of its decision within 10 working days if possible.

(d) If SBA has determined that a concern is ineligible as a small business for the purpose of a particular procurement, it cannot thereafter become eligible for the purpose of such procurement by taking affirmative acts to constitute itself a small business.

§ 121.3-6 Appeals.

(a) Organization. The Size Appeals Board shall review appeals from size determinations made pursuant to §§ 121.3-4 and 121.3-5 and from product classifications made pursuant to § 121.3– 8 and shall make recommendations to the Administrator whether such determinations or classifications should be affirmed, reversed or modified. The Size Appeals Board shall conduct such proceedings as it determines appropriate to enable it to discharge its duties.

(1) The Size Appeals Board shall consist of four members; to wit: The Deputy Administrator (Chairman), the Associate Administrator for Procurement and Management Assistance, the Associate Administrator for Financial Assistance, and the Assistant Administrator for Planning, Research and Analysis.

(2) Each member of the Size Appeals Board may, in writing, designate one or more alternates to serve in his stead in the event of absence or disability.

(b) Method of appeal—(1) Who may appeal. An appeal may be filed by:

(i) Any concern or other interested party which has protested the small business status of another concern pursuant to § 121.3-5 and whose protest has been denied by an Area Administrator or his delegatee;

(ii) Any concern or other interested party which has been adversely affected by a decision of an Area Administrator, or his delegatee, or of the Associate Administrator for Financial Assistance, pursuant to §§ 121.3-4 and 121.3-5.

(iii) Any concern or other interested party which has been adversely affected by a decision of a Contracting Officer regarding product classification pursuant to 121.3-8; and

(iv) The Small Business Administration Associate Administrator for the Small Business Administration program involved.

(2) Where to appeal. Written notices of appeal shall be addressed to the

Chairman, Size Appeals Board, Small Business Administration, Washington, D.C. 20416.

(3) Time for appeal. (i) An appeal from a size determination or product classification by an Area Administrator or his delegatee or by the Associate Administrator for Financial Assistance, may be taken at any time, except that, because of the urgency of pending procurements or disposals, appeals concerning the small business status of a bidder or offeror in a pending procurement may be taken within five (5) days, exclusive of Saturdays, Sundays, and legal holidays, after receipt of a decision by an Area Administrator or his delegatee. Unless written notice of such appeal is received by the Size Appeals Board before the close of business on the fifth day, the appellant will be deemed to have waived its rights of appeal insofar as the pending procurement or disposal is concerned.

(ii) An appeal from a product classification determination by a Contracting Officer may be taken: (a) Not less than 10 days, exclusive of Saturdays, Sundays, and legal holidays, before bid opening day or deadline for submitting proposals or quotations, in cases wherein the bid opening date or last date to submit proposals or quotations is more than 30 days after the issuance of the invitation for bids or request for proposals or quotations, or (b) not less than five (5) days, exclusive of Saturdays, Sundays, and legal holidays, before the bid opening day or deadline for submitting proposals or quotations, in cases wherein the bid opening date or last date to submit proposals or quotations is 30 or less days after the issuance of the invitation for bids or request for proposals or quotations, and

(iii) The timeliness of an appeal under subdivisions (i) and (ii) of this subparagraph shall be determined by the time of receipt of the appeal by the Size Appeals Board: Provided, however, That an appeal received after such time limits have expired shall be deemed to be timely and shall be considered if, in the case of mailed appeals, such appeal is sent by registered or certified mail and the postmark thereon indicates that the appeal would have been received within the requisite time limit but for delays beyond the control of the appellant, or in the case of telegraphed appeals, the telegram date and time line indicates that the appeal would have been received

within the requisite time limit but for delays beyond the control of the appellant.

(4) Notice of appeal. No particular form is prescribed for the notice of appeal. However, the appellant shall submit to the Board an original and four legible copies of such notice and, to avoid timeconsuming correspondence, the notice should include the following information:

(i) Name and address of concern on which the size determination was made; (ii) The character of the determination from which appeal is taken and its date;

(iii) If applicable, the IFB or contract number and date, and the name and address of the contracting officer;

(iv) A concise and direct statement of the reasons why the decision of an Area Administrator or his delegatee, the contracting officer or the Associate Administrator for Financial Assistance is alleged to be erroneous.

(v) Documentary evidence in support of such allegations; and

(vi) Action sought by the appellant. (c) Notice to interested parties. The Size Appeals Board shall promptly acknowledge receipt of the notice of appeal and shall send a copy of such notice of appeal to the appropriate Area Administrator or his delegatee, the contracting officer (if a pending procurement is involved) and to other parties known to be interested in the appeal, or, if the appeal was from a decision of the Associate Administrator for Financial Assistance, to the Associate Administrator for Financial Assistance.

(d) Statement of interested parties. After receipt of a copy of appellant's notice of appeal, interested parties may file with the Board a signed statement, together with four legible copies thereof, as to why the appeal should or should not be denied. Such statement shall be accompanied by appropriate evidence. Copies of such statements and appropriate evidence will be furnished to the appellant. Such statements and supporting evidence shall be mailed or delivered to the Chairman, Size Appeals Board, Small Business Administration, Washington, D.C. 20416, within five (5) days of the receipt of the copy of the notice of appeal unless an extension is for cause granted by the Chairman of the Size Appeals Board.

(e) Consideration by the Size Appeals Board. The Size Appeals Board shall consider the appeal on the written submission of the appellant, or may, in its discretion, permit oral presentations by interested parties. The Board shall promptly recommend in writing to the Administrator a proposed decision which shall state the reasons for the recommendation.

(f) Decision of the Administrator. The Administrator's decision shall be predicated upon the entire record after giving such weight to the recommendation of the Size Appeals Board as he shall deem appropriate: Provided, however, That, should he not concur with the recommendation of the Size Appeals Board, he shall state in writing the basis for his findings and conclusions.

(g) Notification of final decision. The Chairman shall promptly notify, in writing, the appellant and the other interested parties of the Administrator's decision together with the reasons therefor. [Rev. 9, 34 F.R. 18585, Nov. 22, 1969, as amended by Amdt. 2, 35 F.R. 355, Jan. 9, 1970; Amdt. 4, 35 F.R. 7726, May 20, 1970; Amdt. 4, 35 F.R. 10431, June 26, 1970]

§ 121.3-7 Differentials.

(a) Alaska. If an applicant for a size determination is a concern which has fifty percent (50%) or more of its annual receipts attributable to business activity within Alaska then, whenever "annual receipts" are used in any size definition contained in this part, said dollar limitation is increased by twentyfive percent (25%) of the amount set forth therein.

(b) Substantial or persistent unemployment areas; areas of concentrated unemployment or underemployment; certified eligible concerns; and redevelopment areas-(1) Assistance under sections 7(a) and 8(a) of the Small Business Act. Notwithstanding any other provision of this part, the applicable size standards for the purposes of assistance under sections 7(a) and 8(a) of the Act are increased by twenty-five percent (25%) whenever the concern maintains or operates a plant, facility, or other business establishment within an Area of Substantial Unemployment or Underemployment or Redevelopment Area as defined in § 121.3-2 (d) and (u) or is designated as a Certified Eligible concern by the Department of Labor and agrees to use the assistance within such area or, if it does not maintain a plant, fa

cility, or other business establishment within such area, agrees to utilize the assistance for the establishment and/or operation of a plant, facility, or other business establishment within such area. (2) Small business investment companies and development companies. Notwithstanding any other provision of this part, the size standard for a small business concern receiving assistance from a small business investment company or receiving assistance from a development company in connection with a section 501 or section 502 loan is increased by twenty-five percent (25%) whenever such concern qualifies for a similar differential under subparagraph (1) of this paragraph.

(3) Government procurement assistance, sales of Government property and Government subcontracting. Except as is provided in subparagraphs (1) and (2) of this paragraph, this paragraph is not applicable to size determinations for the purpose of Government procurement assistance, sales of Government property or Government subcontracting. § 121.3-8

Definition of small business for Government procurement.

A small business concern for the purpose of Government procurement is a concern, including its affiliates, which is independently owned and operated, is not dominant in the field of operation in which it is bidding on Government contracts and can further qualify under the criteria set forth in this section. When computing the size status of a bidder or offerer, the number of employees, annual sales or receipts, or other applicable standards of the bidder or offerer and all of its affiliates shall be included. In the submission of a bid or proposal on a Government procurement, a concern which meets the criteria provided in this section may represent that it is a small business. In the absence of a written protest or other information which would cause him to question the veracity of the self-certification, the Contracting Officer shall accept the self-certification at face value for the particular procurement involved. If a procurement calls for more than one item and the bidder can bid on any or all items, the bidder must meet the size standard for each item for which it submits a bid. If the procurement calls for more than one item and a bidder is required to bid on all or none of such items, the bidder can qualify as small business for such procurement if

it meets the size standard for the item accounting for the greatest percentage of the total contract value. The determination of the appropriate classification of a product or service shall be made by the contracting officer and his determination shall be final unless appealed in the manner provided in § 121.3-6. If no standard for an industry field of operation or activity (e.g., animal specialty; fin fish; anthracite mining; management-logistics support to be performed outside of the several States, Commonwealth of Puerto Rico, Virgin Islands, the Trust Territory of the Pacific Islands, or the District of Columbia) has been set forth in this section, a concern bidding on a Government contract is a small business if, including its affiliates, it is independently owned and operated, is not dominant in the field of operation in which it is bidding on Government contracts, and has 500 employees or less.

(a) Construction. Any concern bidding on a contract for work which is classified in Division C, Contract Construction of the Standard Industrial Classification Manual, as amended, prepared and published by the Bureau of the Budget, Executive Office of the President, is:

(1) Small if its average annual receipts for its preceding three (3) fiscal years do not exceed $72 million.

(2) Small if it is bidding on a contract for dredging and its average annual receipts for its preceding three (3) fiscal years do not exceed $5 million.

(b) Manufacturing. Any concern bidding on a contract for a product it manufactured is classified:

(1) As small if it is bidding on a contract for food canning and preserving and its number of employees does not exceed 500 persons, exclusive of agricultural labor as defined in section (k) of the Federal Unemployment Tax Act, 68A Stat. 454, 26 U.S.C. (I.R.C. 1954) 3306.

(2) As small if it is bidding on a contract for a product classified within an industry set forth in Schedule B of this part and its number of employees does not exceed the size standard established for that industry.

(3) As small if it is bidding on a contract for a product classified within an industry not set forth in Schedule B of this part and its number of employees does not exceed 500 persons.

(4) As small if it is bidding on a contract for pneumatic tires within Census Classification Codes 30111 and 30112:

Provided, That (i) the value of the pneumatic tires within Census Classification Codes 30111 and 30112 which it manufactured in the United States during the preceding calendar year is more than 50 percent of the value of its total worldwide manufacture, (ii) the value of the pneumatic tires within Census Classification Codes 30111 and 30112 which it manufactured worldwide during the preceding calendar year was less than five percent (5%) of the value of all such tires manufactured in the United States during said period, and (iii) the value of the principal products which it manufactured or otherwise produced or sold worldwide during the preceding calendar year is less than ten percent (10%) of the total value of such products manufactured or otherwise produced or sold in the United States during said period.

(5) As small if it is bidding on a contract for passenger cars within Census Classification Code 37171: Provided, That (1) the value of the passenger cars within Census Classification Code 37171 which it manufactured or otherwise produced in the United States during the preceding calendar year is more than fifty percent (50%) of the value of its total worldwide manufacture or production of such passenger cars, (ii) the value of the passenger cars within Census Classification Code 37171, which it manufactured or otherwise produced during the preceding calendar year was less than five percent (5%) of the total value of all such cars manufactured or produced in the United States during the said period, and (iii) the value of the principal products which it manufactured or otherwise produced or sold during the preceding calendar year is less than ten percent (10%) of the total value of such product manufactured or otherwise produced or sold in the United States during said period.

(6) Rebuilding on a factory basis or equivalent: As small if it is bidding on a contract for rebuilding machinery or equipment on a factory basis, the purpose of which is to restore such machinery or equipment to as serviceable and as like new condition as possible and its number of employees does not exceed the number of employees specified for the classification code applicable to the manufacturer of the original item.

NOTE: The size standard contained herein is not limited to concerns who are manufacturers of the original item but is applicable to all bidders or offerers. The term "rebuild