SBA OHA: No Automatic Size Recertifications For GSA Schedule Task Orders

Submitting a proposal for a GSA Schedule task order does not result in an automatic recertification of the offeror’s size.

In a recent size appeal decision, the SBA Office of Hearings and Appeals rejected the argument that an offeror recertifies its size merely by submitting a proposal for a GSA task order.  Instead, a firm’s size for purposes of a GSA Schedule task order competition is determined based on the underlying GSA Schedule contract, unless the procuring agency requires recertification for the task order.

SBA OHA’s decision in Size Appeal of TISTA Science & Technology Corporation, SBA No. SIZ-5529 (2014) involved a VA procurement for program management support services.  The RFQ stated that the VA planned to award a task order through the GSA Schedule.  The VA set aside the procurement for SDVOSBs under NAICS code 541611 (Administrative Management and General Management Consulting Services).  Quotations were due January 18, 2013.

After reviewing quotations, the VA announced that the task order had been awarded to Addx Corporation.  TISTA Science & Technology Corporation, an unsuccessful competitor, subsequently filed a protest.  TISTA argued that the task order RFQ required resolicitation and that Addx was no longer a small business at the time it submitted its proposal for the task order.

The SBA Area Office determined that Addx had been awarded its GSA Schedule contract on April 17, 2003.  At the time it was awarded its GSA Schedule contract, Addx was a small business.  The contract had a five-year base period and two five-year option periods, for a maximum period of performance of 15 years.  Addx was required to recertify its size every five years, and had recertified as a small business on March 19, 2008.  The 2008 recertification was in effect when Addx submitted its task order proposal in January 2013.

The SBA Area Office examined the task order RFQ, and determined that it did not require recertification.  Accordingly, the Area Office concluded that Addx’s size should be determined as of March 19, 2008, the date Addx most recently recertified on its underlying GSA Schedule contract.  Because Addx was a small business as of that date, the Area Office issued a size determination finding Addx to be eligible for award of the task order.

TISTA filed a size appeal with SBA OHA.  TISTA argued, in part, that the Small Business Act provides that a small business certification is deemed to have occurred any time a firm submits a proposal for a set-aside procurement.  TISTA contended that Addx should be deemed to have self-certified as a small business when it submitted its proposal for the task order, regardless of whether the RFQ expressly required recertification. TISTA argued that as of January 2013, Addx was not a small business.

SBA OHA agreed that Addx would not be a small business if its size was based on its January 2013 proposal date.  However, SBA OHA noted that SBA regulations do not require recertification for every task order competed under a long-term contract, such as a GSA Schedule contract.  Addressing the statutory language cited by TISTA, SBA OHA held that it was “silent on the issue of recertifications,” and that there was “no indication that Congress intended to overrule SBA’s preexisting regulatory approach and replace it with a rule that recertification occurs for every order that is set-aside or restricted to small business.”  SBA OHA continued:

Insofar as the statute is silent as to the timing of certification and/or recertification, the statute is not inconsistent with SBA’s regulatory approach that certification occurs at the contract level and remains in effect for five years, unless and until the procuring agency requests recertification in conjunction with a particular order.

SBA OHA held that a small business is not deemed to have recertified its size simply by submitting a proposal for a task order.  Rather, an offeror’s size is based on its small business status for the underlying contract, unless the agency has requested recertification in connection with the task order. In this case, the VA had not requested recertification in connection with the task order.  Accordingly, Addx’s size was based on its 2008 recertification–when it was a small business.

The TISTA Science & Technology decision is chock full of dry statutory and regulatory citations, but don’t let that fool you: this was a very important case.  Had SBA OHA agreed with TISTA, it would have upended the size rules for GSA Schedule contracts and other long-term contract vehicles. Although some small businesses might favor such an approach, many small businesses (and procuring agencies) prefer the stability of knowing that the underlying self-certification remains valid for five years, barring an explicit request for recertification.

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