The GAO has confirmed that procuring agencies may require contractors to re-certify their “small” sizes in connection with task order competitions under a small business multiple-award contract. The GAO’s recent decision in The Ross Group Construction Corporation, B-405180.3 (Aug. 7, 2012) demonstrates that procuring agencies have broad discretion to request size re-certification–even for task order competitions for which re-certification was not initially requested.
The Ross Group GAO bid protest decision involved an Army Corps of Engineers multiple-award task order contract, or MATOC, which was set-aside for small businesses. The Ross Group Construction Corporation, which was a small business when it submitted its proposal on the MATOC, was one of the contract holders.
In 2011, the Corps issued a task order solicitation for the construction of a battle command training center. The task order solicitation did not call for offerors to re-certify their “small” sizes.
The Ross Group had outgrown the size standard, but because no re-certification was required, its size was determined as of the date of its initial proposal for the MATOC, making The Ross Group eligible to bid. The Ross Group submitted an offer on the task order.
The Corps awarded the task order to a competitor, and The Ross Group filed a GAO bid protest. In November 2011, the GAO sustained the protest, in The Ross Group Construction Corporation, B-405180.2 (Nov. 28, 2011). The GAO recommended that the Corps amend the task order solicitation to correct certain flaws, and then re-issue the solicitation.
The Corps amended the solicitation, and in the process, added a requirement that offerors re-certify their “small” status–even though adding such a requirement was not part of the GAO’s recommendation. The Ross Group, which was no longer small, was understandably upset because by requesting re-certification, the Corps had essentially removed it from the competition.
The Ross Group filed another GAO protest, this time asking the GAO to recommend that the Corps reimburse the costs incurred by The Ross Group in pursuing a task order for which it was no longer eligible.
This time, the GAO ruled against The Ross Group. The GAO held, “the agency acted reasonably within its discretion in requiring re-certification of small business size status from the offerors when it requested revised task order proposals under a MATOC that was restricted to small business concerns.” The GAO denied The Ross Group’s bid protest.
The Ross Group GAO bid protest decision illustrates the wide discretion afforded small business MATOC contracting officers to request re-certification of “small” size. Even, as here, when the agency initially does not request re-certification for a particular task order, it may request re-certification as part of a later amendment. And if re-certification is requested, contractors like The Ross Group, which have outgrown the size standard since winning the underlying MATOC, are simply out of luck.