SBA Size Protests: “Bare Allegations” Are Insufficient

A SBA size protest must contain some basis for the belief that the company being protested is not an eligible small business.

As demonstrated in a recent decision of the SBA Office of Hearings and Appeals, a protester’s “bare allegation” that the protested firm does not qualify is insufficient, and will cause the SBA to dismiss the size protest.

SBA OHA’s decision in Size Appeal of Ametek SCP, Inc., SBA No. SIZ-5518 (2013) involved a Navy procurement for connectors and receptacles.  The procurement was a partial small business set-aside under NAICS code 335931, with a corresponding 500-employee size standard.

After evaluating proposals for the small business portion of the procurement, the Navy announced that Seacon Phoenix, LLC was the apparent successful offeror.  An unsuccessful competitor, Ametek SCP, Inc., then filed a SBA size protest.  The size protest stated:

We have reason to believe Seacon Phoenix, LLC is not a small business under the size standard … and request an investigation to confirm the Small Business status of Seacon Phoenix, LLC. If it is determined that Seacon Phoenix, LLC is a large business, we would like to request reissue of the solicitation so that only small businesses may be awarded line items that are set aside for small businesses.

The SBA Area Office determined that the size protest did not meet the regulatory requirement for so-called “specificity.”  Specificity, under the SBA’s size protest regulations, means that a size protest must provide “some basis for the belief” that the protested company is not a small business.  The SBA Area Office dismissed the size protest.

Ametek filed a size appeal with SBA OHA, arguing that the SBA Area Office should not have dismissed the size protest.  With its size appeal, Ametek included a recent magazine article stating that Seacon has 800 employees.

After quoting the specificity regulation, SBA OHA wrote that Ametek’s size protest “provides nothing beyond the bare allegation that Seacon, the protested concern, is not small.”  Accordingly, SBA OHA held, the size protest was insufficient, and the SBA Area Office properly dismissed it.

SBA OHA noted that Ametek had included new information with its size appeal.  However, a protester “cannot cure an insufficiently specific protest on appeal by submitting information it did not present in its protest.”  SBA OHA denied the size appeal.

The Ametek SBA OHA decision demonstrates the importance of providing specific information as part of a SBA size protest.  Had Ametek included the magazine article with its initial size protest, the SBA Area Office likely would have deemed the size protest sufficiently specific, and conducted a full size investigation of Seacon.  However, by submitting a protest containing nothing but a “bare allegation” that Seacon was not small, Ametek lost its opportunity to effectively challenge Seacon’s size.

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