Submitting a proposal for a task order under an 8(a) Government Wide Acquisition Contract does not result in automatic recertification of the offeror’s small business size status.

In a recent decision, the SBA Office of Hearings and Appeals held that unless the Contracting Officer expressly requires recertification, an offeror’s size for an 8(a) set-aside task order is governed by that offeror’s size status for the underlying GWAC.

SBA OHA’s decision in Size Appeal of Reliasource, SBA No. SIZ-5536 (2014) involved a Homeland Security RFQ for IT support services.  The RFQ stated that DHS intended to award the contract as a task order under the 8(a) STARS II GWAC.  The RFQ was set aside for 8(a) participants under NAICS code 541513.

After evaluating quotations, the Contracting Officer announced that KNEWEBS, Inc., d/b/a Consulting Services Inc. was the apparent awardee.  An unsuccessful offeror, Reliasource, filed a SBA size protest.

The SBA Area Office determined that DHS had not requested size recertification in connection with the 8(a) task order competition.  The Area Office found that CSI’s size was based on the date it self-certified for the underlying STARS II GWAC.  Because there was no separate size recertification requested in connection with the task order, the only possible challenge to CSI’s size would be based on that initial self-certification date.  Reliasource’s size protest, which was filed two years after the initial self-certification, was dismissed as untimely.

Reliasource filed a size appeal with SBA OHA.  Reliasource argued, in part, that by setting aside the procurement for 8(a) participants, DHS had implicitly required recertification.  Reliasource pointed out that in 2010, Congress had amended the Small Business Act to specify that a size certification occurs each time a concern submits an offer for a set-aside procurement.

Citing its prior case law, SBA OHA wrote that it has “specifically rejected the notion that merely setting [a] task order aside for small business is a request for recertification.”  SBA OHA explained that the amendment to the Small Business Act “does not . . . refer to orders,” and that SBA OHA has previously determined that the amendment “applies only to contracts and the other types of instruments specifically identified in the statute, and not to task orders.”  As a result, “CSI is not deemed to have recertified by submitting a proposal for this RFQ.”  SBA OHA denied the appeal.

The Reliasource size appeal follows on the heels of a similar decision issued in February, in which SBA OHA held that no automatic size recertification occurs when an offeror submits a proposal for a GSA task order.  Like that February decision, the Reliasource size appeal may seem dry at first blush, but is very important.  Had SBA OHA reached a different result, it would have upended the size rules for the 8(a) STARS II GWAC and other long-term contracts set aside for 8(a) participants.