SBA size protests are only timely if received within five business days.  The SBA size protest timeliness rule can confuse potential protesters, because it is different than the 10-day rule applicable to most post-award GAO bid protests.

In a recent SBA Office of Hearings and Appeals decision, a would-be protester apparently got tripped up by the different filing periods, incorrectly interpreting a solicitation provision regarding GAO bid protests as establishing an extended SBA size protest filing deadline.  SBA OHA held that the protester’s misunderstanding did not entitle it to file a late SBA size protest.

SBA OHA’s decision in Size Appeal of AdMed Consulting, Inc., SBA No. SIZ-5355 (2012), involved a FEMA small business set-aside solicitation for a maintenance and deactivation contract for FEMA housing units.  On March 21, 2012, FEMA issued a notice that Mi-Ty Contracting and Bluestone Construction were the apparent successful offerors.

Ten days later, on March 31, AdMed Consulting, Inc. filed a SBA size protest, challenging the sizes of both awardees.  The SBA Area Office dismissed AdMed’s SBA size protest as untimely, holding that AdMed had failed to file the size protest within five business days of March 21, 2012.

AdMed filed a size appeal with SBA OHA, arguing in part that the solicitation permitted AdMed to file a SBA size protest within ten days of notice of award.

SBA OHA disagreed, finding that the solicitation provision in question explained the timeliness requirements for GAO bid protests, not SBA size protests.  In addition, SBA OHA pointed out that the solicitation incorporated by reference a FAR provision establishing the five-day timeliness rule for SBA size protests.  SBA OHA dismissed the size appeal.

It is worth pointing out that even if the solicitation had incorrectly stated that AdMed could file a SBA size protest within ten days, the provision likely would have been ineffective, because prior SBA OHA decisions have held that contracting officers lack authority to waive or modify the SBA’s size regulations.

The AdMed SBA size appeal decision is a good reminder that small government contractors should know the difference between the GAO bid protest timeliness rules and the SBA size protest timeliness rules.  For the latter, the operative time period is five business days–no matter what the solicitation seems to say.