Size Protest Was Untimely Because CO Did Not Require Size Recertification

Let’s suppose that you, a small business, were previously awarded a long-term contract set aside for small businesses. But over the past few years, business has been good and you’ve outgrown the size standard assigned to the contract. Can you still be awarded a task order under the contract? Yes–if the contracting officer doesn’t require you to recertify your size in connection with the task order request, and no contract-specific terms–like mandatory off-ramps–say otherwise.

This important principle recently played out in DNT Solutions, LLC et al., SBA No. SIZ-5962 (2018).

There, the General Services Administration issued a task order request under the Alliant Small Business Government-Wide Acquisition Contract. Both ASP and DNT submitted an offer. After GSA announced that ASP was the apparent awardee, DNT filed a protest with the Small Business Administration challenging ASP’s size.

SBA initially dismissed the protest as untimely because it found that the task order request did not require offerors to recertify size. DNT appealed and OHA required SBA to conduct further investigation into whether the contracting officer had required recertification.

On remand, SBA assessed two issues. First, it found that the task order was not set aside for small businesses. Thus, the task order did not categorically prohibit large businesses, holding the GWAC, to bid on the task order. Second, it found that the contracting officer required businesses to recertify themselves as small in order to be eligible, thus making DNT’s protest timely.

As you can imagine, ASP appealed SBA’s decision, arguing that the task order request did not require offerors to recertify as small. DNT also appealed the portion of SBA’s decision in which it found that the task order was not set aside for small businesses.

For OHA, the key question was “whether the [task order request] required [offerors] to recertify size for the instant task order.” This issue was critical because “it is well-settled that a size protest against an order under a long-term contract is timely only if the [contracting officer] requested recertification in conjunction with that order.”

In assessing whether the contracting officer required recertification, OHA found that the contracting officer’s statement (disavowing any intent to require recertification) and his actions during the procurement process militated against any finding of such a requirement. In particular, OHA found it significant that the task order request did not expressly require recertification, nor was there any language requesting a new certification or recertification.

In the end, OHA, citing 13 C.F.R. § 121.1004(a)(3), held that DNT’s appeal was untimely because the task order request did not require ASP to recertify its size. It summed up its holding this way:

Under SBA regulations, a size protest on a long-term contract may be filed within five business days after any of three events: when the contract is initially awarded; when an option is exercised; or when there is a request for recertification in connection with an individual order. . . . None of these situations was present here. ASP most recently recertified for the [GWAC] contract in 2014, and the instant TOR did not require recertification. Therefore, DNT’s protest . . . was untimely.

So the simple lesson is this: if a contracting officer doesn’t require recertification for an order under a long-term contract, then a disappointed offeror cannot protest the awardee’s size. But if a recertification request is made, and you suspect the awardee is not small, be sure to file your size protest within 5 business days.