When a small business submits an offer for a Blanket Purchase Agreement issued against a GSA Schedule contract, the offeror does not automatically recertify its size.  Rather, a new regulation effective December 31, 2013 provides that an offeror’s size status for a BPA issued against a GSA Schedule ordinarily is determined by looking to the offeror’s self-certification for the underlying GSA Schedule contract.

In a recent size appeal decision, the SBA Office of Hearings and Appeals relied, in part, on the new regulation to find that an offeror had not recertified its small business status by submitting a quotation for a BPA to be issued against the offeror’s GSA Schedule contract.

SBA OHA’s decision in Size Appeal of Total Systems Technologies Corp., SBA No. SIZ-5562 (2014) involved a Homeland Security RFQ for business management support at the Coast Guard’s C4IT Service Center.  The Coast Guard issued the RFQ under the MOBIS Schedule 874, and stated that the RFQ would result in the award of a single BPA.  The RFQ was set aside for HUBZone firms.

After evaluating quotations, the DHS announced that Java Productions, Inc. was the apparent awardee.  An unsuccessful competitor, Total Systems Technologies Corp., subsequently filed a size protest challenging JPI’s small business status.

The SBA Area Office asked the Contracting Officer whether size recertifications had been requested in the RFQ.  The CO explained that recertification had not been required.  The SBA Area Office then dismissed the size protest, determining that because the BPA was issued under a long-term GSA Schedule contract and because the Contracting Officer had not instructed offerors to submit size recertifications, there was no mechanism for the SBA to decide a size protest regarding the award of the BPA.

Total Systems filed a size appeal with SBA OHA.  Total Systems argued that it was irrelevant that the Contracting officer had not expressly required recertification.  Total Systems contended, in part, that by submitting a quotation in response to a BPA set aside for HUBZone firms, JPI had “effectively” recertified its size.

SBA OHA disagreed.  It wrote that it is “not evident” that Total Systems could have filed a proper size protest because a BPA is an “agreement,” and not a “contract,” “option,” or “order” as described in the relevant size protest regulation, 13 C.F.R. 121.1004.  SBA OHA then pointed out that under 13 C.F.R. 121.404(a)(2), which was effective December 31, 2014, BPAs issued against GSA Schedule contracts are exempt from the requirement that size be determined as of the date of the offer:

With respect to “Agreements” including Blanket Purchase Agreements (BPAs) (except for BPAs issued against a GSA Schedule Contract), Basic Agreements, Basic Ordering Agreements, or any other Agreement that a contracting officer sets aside or reserves awards to any type of small business, a concern must qualify as small at the time of its initial offer (or other formal response to a solicitation), which includes price, for the Agreement. Because an Agreement is not a contract, the concern must also qualify as small for each order issued pursuant to the Agreement in order to be considered small for the order and for an agency to receive small business goaling credit for the order. 

SBA OHA wrote that “although the current rule does stipulate that a concern submitting an offer for a set-aside BPA must qualify as small when it submits an initial offer including price, BPAs issued under GSA Schedule contracts are specifically exempted from this requirement.”  SBA OHA noted that, in the rule adopting the new regulation, the SBA stated that it “does not believe that size needs to be determined at the time of the BPA issued against a GSA Schedule because size has already been determined at the time of submission of the offer for the GSA Schedule contract.”   

SBA OHA rejected Total Systems’ argument that JPI had “effectively” recertified its size by submitting a quotation, and denied the size appeal.

The Total Systems Technologies case demonstrates that, under the new regulation, an offeror does not automatically recertify its size by submitting a quotation for a BPA issued against the GSA Schedule.  Rather, unless the Contracting Officer requests recertification, size is determined as of the date of the offeror’s self-certification for its underlying GSA Schedule contract.

SBA OHA left open the question of whether, even when recertification is required,13 C.F.R. 121.1004 permits an unsuccessful offeror to file a size protest with respect to the award of a BPA.  I will keep you posted.