GovCon Blog: SBA Finalizes Safe Harbor Rule for Small Business Size Representations

February 18, 2015

The Small Business Administration (SBA) issued a final rule limiting liability from fraud penalties for firms and individuals who misrepresent their small business size status if they acted in good faith reliance upon a small business status advisory opinion (“Advisory Opinion”) issued by Small Business Development Centers (SBDCs) or Procurement Technical Assistance Centers (PTACs). While not perfect, the final rule provides a process for businesses to receive some guidance from SBA prior to making size representations in connection with award of federal procurements. 

First, the rule establishes certain criteria that Advisory Opinions must meet. For instance, an Advisory Opinion must contain a written analysis explaining the reasoning underlying the determination that a concern meets or exceeds size standards and must contain a copy of an SBA Form 355. Additionally, Advisory Opinions must take into account the principles of affiliation. Furthermore, copies of evidence documenting compliance with size standards must be provided by the business and attached to the Advisory Opinion. Following public comments on the proposed rule, the SBA included in the final rule specific types of evidence a firm may provide including payroll records, time sheets and federal income tax returns. 

Public comments also prompted the SBA to incorporate an appeals type process for review of Advisory Opinions. First, the SBA concurred with public comments and amended its regulations to permit a business that receives a negative advisory opinion (i.e., an opinion concluding that it is not a small business) from an SBDC or PTAC to request that SBA conduct a formal size determination of it. Furthermore, if SBA rejects an Advisory Opinion it will initiate a formal size determination for each firm. Thus, in both situations, firms will be able to take advantage of the normal appeals procedures set forth in 13 C.F.R. 121.1101 if they receive a negative Advisory Opinion or if SBA rejects a positive Advisory Opinion.

Some commenters proposed that the Advisory Opinions also contain an expiration date for reliance. The SBA rejected this suggestion but did determine in the final rule that, consistent with formal size determinations, a firm is not justified in relying on a determination that it is small where it has experienced a material change in circumstances with regard to its average annual receipts or its number or employees. Other commenters requested that the final rule require SBDCs and PTACs to issue an Advisory Opinion within a certain time period of a business’ request, but SBA did not act on this request at this time.

The final rule implements Section 1681 of the FY 2013 National Defense Authorization Act (Pub. L. No. 112-239) and is effective August 10, 2015.

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