SBA OHA: Contracting Officer Can’t Extend Size Appeal Deadline

When you hear “15 days,” what’s the first thing that comes to mind? Perhaps, you pay your employees every 15 days. Maybe your birthday or favorite holiday happens to be in 15 days. Or if you’re like me, you might think that 15 days is two days fewer than Thirteen Daysa great movie about the Cuban Missile Crisis.

Whatever your brain conjures up, don’t forget this: 15 days is the time limit to appeal an SBA size determination. Period. And nothing the contracting officer says can change it.

A recent OHA decision, Sentient Digital, Inc. d/b/a Entrust Gov’t Solutions, SBA No. SIZ-5963 (2018), proves this point.

Back in March 2018, the U.S. Navy Military Sealift Command issued a solicitation, set aside for small businesses, for information technology engineering support services. In early July, the agency alerted unsuccessful offerors that Entrust Government Solutions was the apparent awardee. Shortly thereafter, on July 10, an unsuccessful offeror filed a size protest against Entrust. While SBA’s decision was pending, the agency awarded the contract to Entrust on August 6.

A few weeks later, on August 23, SBA issued its decision, finding Entrust other than small based on the ostensible subcontractor rule. The next day, the contracting officer (which was deciding whether it was obligated to terminate the contract) asked Entrust whether it planned to appeal the determination. Given that SBA’s decision only impacted this particular procurement, Entrust responded that it would only appeal if the agency intended to terminate. A week later, the contracting officer confirmed that the agency would not terminate the contract. Relying on this representation, Entrust did not appeal.

But two weeks later, and perhaps in a fickle mood, the contracting officer again raised the possibility that the agency might terminate the contract. In fact, the contracting officer stated that unless Entrust appealed SBA’s size determination–even though the deadline had already passed–the agency would likely terminate the contract. As you can imagine, that spurred Entrust into action, and it filed an appeal.

Almost immediately, OHA demanded to know why it should not dismiss the appeal as untimely (given that SBA had issued its size determination over 30 days before). As you might expect, Entrust invoked the contracting officer’s earlier promise not to terminate as the rationale for not filing earlier. And it also argued that once the agency instructed it to appeal, it did so within four days.

How did OHA react? It dropped the merciless hammer of the filing deadline and dismissed the appeal. Here’s OHA’s blunt analysis:

I conclude that I must dismiss the instant appeal. An appellant must file a size appeal within 15 calendar days after receipt of the size determination. . . . Appellant concedes it filed its appeal after the expiration of the deadline. Appellant pleads in mitigation of its actions the long time the Area Office took to issue the size determination and the CO’s initial assurance that MSC would not terminate the award. Neither of these factors is relevant here. The regulation is clear; a size appeal must be filed within 15 days of receipt of the size determination. There are no exceptions. There is nothing in the regulation which permits an appellant to rely upon the word of a procuring agency to extend the time limit for filing a size appeal. Indeed, the regulation prohibits OHA from extending the deadline for filing an appeal. The fact that the CO initially indicated MSC would not terminate the award does not alter the time limit Appellant faced after receiving the size determination. Appellant relied upon the CO’s word to its detriment. The regulation mandates that I dismiss this appeal.

So remember: if SBA issues a size determination that you don’t like, appeal it within 15 days. And even if a well-intentioned contracting officer grants you an “extension” or makes some other representation about the deadline’s flexibility, politely thank her and perform a brain dump, because, you know better.