SBA Size Protests: Expressing “Concerns” Is Not Enough

An unsuccessful offeror’s email to the Contracting Officer, in which the offeror expressed “concerns” about the awardee’s small business size status, was too vague to constitute an SBA size protest.

According to a recent decision of the SBA Office of Hearings and Appeals, a viable size protest must be explicit enough to alert the Contracting Officer that the offeror is protesting the awardee’s size.

SBA OHA’s decision in Size Appeal of Enviroservices & Training Center, LLC, SBA No. SIZ-5517 (2013) involved a Defense Logistics Agency solicitation for hazardous waste removal and disposal.  The solicitation was issued as a total small business set-aside.

After evaluating proposals, the Contracting Officer notified offerors that Alpha Technical Services had been selected for award.  Four days later, Enviroservices & Training Center, LLC (an unsuccessful offeror) emailed the Contracting Officer to ask whether DLA had verified ATS’s small business size.  Two days after that, ETC emailed the Contracting Officer as follows:

We have concerns regarding ATS qualifications as an eligible small business for this solicitation. Attached are a couple of articles we found while researching ATS. These articles do not mention ATS small or large business status and are a couple of years old. However, it does imply that ATS may have income that exceeds the dollar threshold specified in the solicitation and may be majority owned by a much larger company (Rock Hill Capital). Hopefully your office can address our reasonable concerns and fully validate the ATS small business qualifications.

The Contracting Officer responded, “[w]e will look into it.”

Approximately two weeks later, ETC received a debriefing.  In the debriefing, ETS learned that ATS was still the apparent awardee.  Six days later, ATS wrote an email to the Contracting Officer stating that it was making a protest of ATS’s small business status.  The Contracting Officer forwarded the email to the SBA Area Office.  However, the SBA Area Office dismissed the size protest as untimely because it was filed more than five business days after ETC was notified of the proposed award.

ETC filed a size appeal with SBA OHA.  ETC did not argue that the email it sent after its debriefing was timely.  Rather, ETC argued that the emails it sent four and six days after notice of the proposed award constituted a size protest, and should have been forwarded to the SBA Area Office for an investigation.  (The second email, although sent six days after notice of award, was sent within five business days).

SBA OHA disagreed.  It wrote that the earlier emails were “too vague to rise to the level of a protest.”  OHA wrote that the contents of the emails “lack the necessary explicitness to alert the CO that Appellant was filing a protest.”  OHA continued, “[ETC’s] statement that it had concerns does not amount to a protest because a protester could plausibly voice concerns regarding the awardee’s size, but decide against filing a protest.”  Similarly, asking the Contracting Officer to look into the awardee’s size does not constitute a size protest because a Contracting Officer “has authority to initiate his own protest” if he or she so wishes.  SBA OHA denied the size appeal.

The Enviroservies & Training Center SBA OHA size appeal decision should serve as a warning to prospective size protesters: vagueness or equivocation can sink a protest.  In ETC’s case, its failure to explicitly state that it was protesting ATS’s size proved fatal.

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