If a prospective contractor wishes to file a size protest, it must act quickly: the protester ordinarily has five business days to initiate its protest. But does the deadline get extended if the agency takes corrective action in response to a bid protest?
Maybe, maybe not. A recent SBA Office of Hearings and Appeals decision examines that question.
The case of Chenega Support Services, LLC, SBA No. SIZ-5874 (Dec. 12, 2017) involved a solicitation for an Air Force contract for operating certain medical centers. The Solicitation was assigned NAICS Code 621399, Office of All Other Miscellaneous Health Practitioners, with a corresponding size standard of $7.5 million.
On December 19, 2016, the Air Force awarded the contract to Prairie Quest, Inc. and notified Chenega Support Services, LLC of the award. Chenega and another party then filed timely GAO bid protests.
In response to the bid protests, the Air Force issued a stop work order on January 10, 2017, and indicated on January 18, 2017, it would undertake corrective action by conducting a new past performance evaluation and new source selection decision. However, the Air Force did not terminate the award to Prairie Quest. Instead, the Air Force said that the award would remain in place pending the reevaluation, and would only be terminated if the reevaluation led to a different outcome.
On October 3, 2017, the Air Force confirmed award to Prairie Quest. Chenega filed a size protest on October 10, 2017. The size protest was filed within five business days of the October 3 confirmation but was filed long after the initial award in December 2016.
The SBA Area Office dismissed the size protest as untimely. The Area Office held that because the award had never been terminated, any viable size protest was due five business days after the award in December 2016–not five business days after the October 2017 confirmation of award.
Chenega appealed to OHA. On appeal, Chenega argued that, because there had been a new source selection, “Prairie Quest could not have been the apparent awardee while the corrective action was ongoing, and no prospective awardee existed until the Air Force made its new selection decision in October 2017.”
OHA looked at the underlying regulation regarding timeliness of size protests, which states in relevant part that “[a] protest must be received by the contracting officer prior to the close of business on the 5th day, exclusive of Saturdays, Sundays, and legal holidays, after the contracting officer has notified the protestor of the identity of the prospective awardee.” 13 C.F.R. § 121.1004(a)(2). OHA reasoned that “the regulations do not contemplate any exception if corrective action occurs after the award notification.”
In making this decision, OHA reaffirmed the holding of EFT Architects, Inc., which we examined on the blog in 2013. The recent decision confirms that this timing issue is still coming up. But five years later, OHA is not inclined to reconsider its earlier ruling.
That takes us back to to the underlying question: how does corrective action impact a size protest? As the Chenega Support Services case demonstrates, the answer is “it depends on the scope of the corrective action.”
If the corrective action results in a termination of the original award, it seems clear that a new five-day window opens when a new award is announced. But where, as here, the agency does not terminate the original award while it undertakes a reevaluation, and then confirms the award to the original awardee, there is no new size protest window.