SBA has issued a final rule, effective December 30, that will now provide an avenue to protest situations where the prime contractor on a SDVOSB, HUBZone, or WOSB set-aside contract is subcontracting most or all of the work to a non-similarly situated—but still small business—concern. It will also allow SBA to review eligibility for 8(a) Program contracts on this ground as well.Continue reading
So, your company has made it past the first big hurdle and got on a GSA schedule. You see a small business task order pop up that you believe your company would be perfect for, but another company gets the award. Based on information you have heard or read, you believe something fishy may be going on and the awarded company may be a big fish that found its way into the small pond. But can you timely protest the task order award?Continue reading
As we’ve discussed in previous posts, if you want to initiate a size protest, you generally must do so within 5 business days after the contracting officer notifies you of the prospective awardee’s identity.
But what happens if, after learning that you did not receive the award, the agency does something that suggests its award decision wasn’t final–e.g., reopens discussions with offerors and seeks revised proposals? Would your size protest still be late if didn’t file within the 5-day time frame?
Take a guess. And keep reading to find out the answer!Continue reading
Following a size determination, any person adversely affected by that determination may file an appeal with the SBA’s Office of Hearings and Appeals. To be timely, the appeal has to be filed within 15 calendar days from the date the person receives the determination. If not timely-filed, the appeal will be dismissed.
This 15-day deadline is strict. The OHA doesn’t have the power to extend it, even if good reason exists to do so. In fact, the OHA’s recent decision in Sentient Digital, Inc. dba Entrust Government Solutions, SBA No. SIZ-5963 (2018) makes clear that this deadline applies even when an agency changes its decision to terminate a contract following an adverse size determination.
Generally, a size protest must be filed within five business days of when the protester receives notice of the identity of the awardee. But there are some nuances to this rule, such as whether a corrective action will extend the deadline and whether the clock starts running upon notice of the prospective awardee or the actual contract award date (Hint: notice of awardee).
But when does the 5-day protest period start to run in the context of a Blanket Purchase Agreement issued under a GSA Schedule contract? A recent SBA Office of Hearings and Appeals decision is a reminder that the award of a BPA does not trigger a new 5-day period to file a size protest.
I’m just back from El Paso, where I had a great time discussing small business size and affiliation issues at the Contract Opportunities Center. This presentation got me thinking: “Wouldn’t our loyal SmallGovCon readers want to know 5 Things about size protests and appeals?”
“Of course they would!” I immediately answered my own internal monologue. “After all, who wouldn’t?”
Here are 5 Things You Should Know about size protests and appeals:
If you’ve ever responded to an SBA size protest, you know that the process is quite involved: SBA will require your company to provide a complete response to the protest (including production of corporate, financial, and tax records for all implicated concerns) within only a few business days. The consequences for not providing all of the requested information can be quite severe, as the SBA can presume that the responsive information would demonstrate that the concern is not a small business (through its “adverse inference” rule).
A recent OHA appeal shows the dangers of failing to adequately respond to a size protest. In Size Appeal of Perry Johnson & Associates, SBA No. SIZ-5943 (2018), the OHA affirmed the SBA’s reliance on an adverse inference and, as a result, found the protested company was not an eligible small business.