Generally, a size protest must be filed within five business days of when the protester receives notice of the identity of the awardee. But there are some nuances to this rule, such as whether a corrective action will extend the deadline and whether the clock starts running upon notice of the prospective awardee or the actual contract award date (Hint: notice of awardee).
But when does the 5-day protest period start to run in the context of a Blanket Purchase Agreement issued under a GSA Schedule contract? A recent SBA Office of Hearings and Appeals decision is a reminder that the award of a BPA does not trigger a new 5-day period to file a size protest.
In Advanced Management Strategies Group., Inc./Reefpoint Group, LLC, SBA No. SIZ-5905 (2018), OHA considered a protest by Advanced Management Strategies Group of a VA procurement for consulting services. VA issued the RFQ on September 28, 2017. The RFQ contemplated award of one blanket purchase agreement against the awardee’s GSA Schedule contract. A BPA is “a simplified method of filling anticipated repetitive needs for supplies or services by establishing ‘charge accounts’ with qualified sources of supply.”
VA would award a task order once the BPA was established. The procurement was set aside for SDVOSBs with a $15 million size standard under NAICS code 541611, Administrative Management and General Management Consulting Services.
As part of a question and answer, the VA stated that “[t]he Government is not requiring re-certification of size standard; however, Gov’t will review vendor’s SAM Reps and Certs to determine whether small against $15M size standard upon receipt of quote.” Another answer from the VA said that the “Government does not intend to require recertification of size, but Quoter may submit updated Reps and Certs in its Volume V if it does not wish for the Government to rely on its SAM.gov Reps and Certs.”
On February 1, 2018, VA notified ASMG it intended to award the BPA to another company. On February 6, 2018, ASMG filed a size protest challenging the award. When referring the size protest to the area office, the CO stated that the procurement is a BPA and “[t]he Government did not require vendors to recertify size status (but did allow them to do so if the firm desired).”
ASMG argued that the CO should have evaluated the competitor’s size at the time of its quote for the BPA award because VA regulations require the agency to ensure an SDVOSB is “verified” prior to making an award of a BPA.
OHA rejected this argument, reiterating that size protests are determined under SBA regulations, not VA regulations, and VA regulations acknowledge this. “The VAAR clearly indicates that SBA regulations are controlling for purposes of determining a concern’s size status,” OHA wrote.
Under SBA regulations, a size protest relating to a long-term contract, such as the GSA Schedule at issue in this decision, can be filed within five business after any of three events:
(1) when the long-term contract is initially awarded;
(2) when an option is exercised; or
(3) upon award of a task or delivery order that required recertification.
A BPA does not fit any of these three categories, OHA wrote. It is not a “contract,” an “option,” or an “order.” Therefore, “SBA regulations . . . do not contemplate size protests involving such instruments.” Rather, “a size protest on a BPA issued against a Schedule contract is treated as a size protest on the GSA Schedule contract” itself.
Here, ASMG’s size protest “challenged neither the award of the underlying Schedule contract nor the exercise of an option.” While the protest did challenge the award of a BPA, “such a protest is treated as a protest of the GSA Schedule contract.” Because the awardee’s Schedule contract was awarded in 2013, “a protest during 2018 is plainly untimely.” And although the award also included a task order, “that task order did not require recertification.”
OHA denied the size appeal, writing “because [ASMGs’] protest was not filed within 5 business days after the award of a long-term contract, the exercise of an option, or the award of an order requiring recertification, the Area Office properly dismissed the protest as untimely.”
The rules governing size protests can be tricky and confusing. As the Advanced Management Strategies Group decision shows, size protest against the award of a GSA Schedule BPA is likely to be dismissed as an untimely challenge to the award of the underlying Schedule contract itself.
Finally, it’s worth noting that GSA Schedule BPAs are treated differently than “regular” BPAs for purposes of SBA’s size rules. The SBA may, in an appropriate case, entertain a size protest filed against the award of a non-Schedule BPA.