The SBA refused to address a vague SDVOSB protest on its merits–even when the protester attempted to introduce new supporting evidence as part of its appeal.
In a recent decision, the SBA Office of Hearings and Appeals upheld the SBA’s decision to toss out the vague SDVOSB protest. SBA OHA held that in order for a SDVOSB protest to be viable, it must set forth information or evidence supporting the protester’s allegations.
SBA OHA’s decision in Veterans Contractors Group JV, LLC, SBA No. VET-233 (2013) involved an Army Corps of Engineers solicitation for flood protection construction work. The solicitation was set-aside for SDVOSBs.
After reviewing competitive bids, the Corps identified Industria Paschen JV, LLC, or IPJV, as the lowest bidder and apparent successful awardee. An unsuccessful competitor, Veterans Contractors Group JV, LLC, subsequently filed a SDVOSB protest.
The SDVOSB protest stated that IPJV “does not appear to meet the requirements of forming a valid [SDVOSB joint venture] under 13 C.F.R. § 125.15 and that IPJV “appears to have exceeded the [maximum] number of contracts [allowed] in a two year period” under 13 C.F.R. § 121.103(h). Although the protester quoted from the SBA’s regulations, it did not offer any specific facts, explanation or evidence as to why it “appeared” that IPJV did not satisfy the eligibility requirements.
The SBA’s Office of Government Contracting dismissed the protest as insufficiently specific. The protester then appealed to SBA OHA.
In its appeal, the protester sought to introduce new evidence, primarily related to IPJV’s size status. The protester did not explain why this new evidence was not included in its original protest.
SBA OHA agreed with the SBA’s decision to dismiss the protest. The protest “at no point explained why [the protester] believed IPJV to be an ineligible bidder for the procurement at issue,” SBA OHA wrote. “Accordingly, the [SBA] correctly determined that [the protester’s] protest was insufficiently specific, as the protest amounted to no more than bare assertions and did not provide the [SBA] with any basis upon which to initiate an investigation.”
SBA OHA rejected the protester’s effort to submit new evidence with its appeal. “[T]his information was not provided” in the protest, SBA OHA wrote, “and it is well-settled that an insufficiently specific protest cannot be cured by submitting more specific information on appeal.” SBA OHA denied the appeal.
The Veterans Contractors Group SBA OHA decision is a good reminder that SDVOSB protests must contain specific evidence or information supporting the allegations. If, as here, the protest vaguely alleges that the awardee does not meet the eligibility requirements, the SBA is likely to dismiss it without an investigation.