A SBA size protest related to a sealed bid must be filed within five business days of bid opening–and the bid protest rules under FAR Part 33 do not provide for a longer protest window.

In a recent decision, the SBA Office of Hearings and Appeals confirmed that, when it comes to size protests, the timeliness rules for bid protests (which allow many protests to be filed within 10 days after the basis of protest was known or should have been known) simply do not apply.

OHA’s decision in Size Appeal of American Patriot Construction Services, Inc., SBA No. SIZ-5671 (2015) involved a VA IFB for a construction project.  The IFB was set aside for SDVOSBs under NAICS code 236220 (Commercial and Institutional Building Construction).

The VA publicly opened bids on May 22, 2015 and determined that C3T, Inc. was the apparent low bidder.  On June 8, 2015, American Patriot Construction Services, Inc. filed a size protest with the VA Contracting Officer challenging C3T’s small business status.  APCS alleged that C3T was affiliated with several other entities through common ownership.

The SBA Area Office dismissed the size protest as untimely.  The SBA Area Office explained that, in order to be timely, the protest should have been filed with the Contracting Officer within five days of bid opening, as required by 13  C.F.R. 121.1004.

APCS filed a size appeal with OHA.  APCS argued that its protest was timely filed pursuant to FAR subpart 33.1.  Although it is not clear from OHA’s decision, APCS may have believed that its protest (which was filed with the Contracting Officer) was a “protest to the agency” as defined in FAR 33.103.  Under FAR 33.103, a post-award agency protest is generally timely if filed “no later than 10 days after the basis of protest is known or should have been known, whichever is earlier.”

After repeating the rule set forth in 13 C.F.R. 121.1004, OHA wrote that “it is undisputed that VA publicly opened bids on May 22, 2015.”  Excluding weekends and the Memorial Day holiday, APCS “was required to file any size protest by June 1, 2015,” but did not file until a week later.

OHA wrote that APCS’s argument regarding FAR 33.1 “has not merit.”  OHA continued: “FAR subpart 33.1 does not apply to size protests, but rather pertains to bid protests filed with the procuring agency or the U.S. Government Accountability Office.”  OHA affirmed the SBA Area Office’s dismissal and denied the appeal.

Confusing timeliness rules have tripped up countless would-be protesters.  As the American Patriot Construction Services case demonstrates, a size protest is not subject to the FAR 33.1 timeliness rules for bid protests.  Instead, the timeliness of a size protest is governed by the SBA’s regulations at 13 C.F.R. 121.1004 (and a related FAR section, FAR 19.302).