WOSB Status & Task Orders: Underlying Contract Usually Governs

Under a multiple award contract, the underlying contract ordinarily governs whether a contractor qualifies as a woman-owned small business for purposes of task or delivery orders.

As demonstrated in a recent SBA Office of Hearings and Appeals decision, if a company qualifies as a WOSB or EDWOSB at the time of its initial offer on the underlying multiple-award contract, it will also qualify as a WOSB or EDWOSB for each order issued against the contract, unless the contracting officer requests recertification in connection with a particular order.

OHA’s decision in Island Creek Associates, LLC, SBA No. WOSB-110 (2018) involved a Marine Corps solicitation for services in support of the Global Combat Support Systems-Marine Corps/Logistics Chain Management Program.  The solicitation was issued as a competitive task order procurement under the SeaPort-e multiple-award IDIQ contract.  The agency issued the solicitation as a WOSB set-aside, but did not request that SeaPort-e contractors recertify their WOSB status for purposes of the task order competition.

After evaluating proposals, the agency announced that ReMilNet, LLC was the apparent successful offeror.  An unsuccessful competitor, Island Creek Associates, LLC, then filed a WOSB status protest challenging ReMilNet’s eligibility.

The SBA Director of Government Contracting issued a decision finding ReMilNet to be an eligible WOSB.  Island Creek appealed the determination.

OHA asked the parties to address whether the SBA should have dismissed the initial WOSB status protest as untimely.  OHA pointed out that in a 2017 case involving SBA’s similar SDVOSB rules, OHA held that a protest of a task order was untimely because it wasn’t filed within five business days of the award of the underlying multiple-award contract or an option under that contract.  In that case, OHA noted that the contracting officer hadn’t requested recertification at the task order level, and thus there was no new SDVOSB certification to protest with respect to the task order.

OHA wrote that “with regard specifically to orders under a Multiple Award Contract, SBA regulations state that a concern will retain its status as a WOSB or EDWOSB for the entire duration of the contract, unless the CO requests recertification in connection with a particular order.”

In this case, “ReMilNet self-certified as a WOSB when it submitted its offer for the SeaPort-e contract in 2014, and no status protest was filed at that time.”  Moreover, “it is undisputed that the CO here did not request recertification for the instant task order.”  Accordingly, “Appellant’s protest was untimely because it was not filed within five days after award of ReMilNet’s SeaPort-e contract or an order requiring recertification.”

OHA vacated the SBA’s decision and dismissed the appeal.

When it comes to multiple-award contracts, there is a lot of confusion about when a company must qualify by size and/or socioeconomic status.  As the Island Creek Associates case demonstrates, in the WOSB and EDWOSB context, the self-certification made in connection with the underlying contract ordinarily governs.