According to the GAO, a business qualifies as small for purposes of a task order competition under a Governmentwide Acquisition Contract so long as the business was small for purposes of the underlying GWAC, and the Contracting Officer does not request size recertification in connection with the task order. And even if recertification is required for the task order, the operative date to determine small business status is the date of the task order offer–not the date the task order is awarded.
In a recent bid protest decision, the GAO and SBA both weighed in on the question of small business size status for task order competitions, providing some helpful clarity on this often-confusing topic.
GAO’s decision in Software Engineering Services Corporation, B-411739 (Oct. 8, 2015) involved an Air Force task order competition under the GSA Alliant GWAC. The Air Force set aside the task order for SDVOSBs. The Air Force did not require that offerors recertify as small businesses in connection with the task order.
Effective February 4, 2014, GSA exercised the five-year options on the Alliant small business GWAC contracts. In connection with the exercise of the option, OBXtek, Inc. self-certified that it was a small business.
OBXtek subsequently submitted a proposal for the Air Force task order. When OBXtek submitted its proposal in December 2014, it was listed in SAM as a self-certified small business. In February 2015, OBXtek updated its SAM registration to self-certify as “other than small.”
On May 26, 2015, the Air Force announced that OBXtek was the apparent successful offeror. An unsuccessful competitor, Software Engineering Services Corporation, filed a SBA size protest. The SBA concluded that recertification had not been required at the task order level. The SBA dismissed the size protest as untimely, holding that any challenge to OBXtek’s size was required to have been filed after OBXtek self-certified as small in connection with the GSA’s exercise of the Alliant option.
SES then filed a bid protest with the GAO. SES argued, in part, that the Air Force contracting officer failed to exercise due diligence with respect to verifying OBXtek’s status as a small business in light of OBXtek’s changed SAM self-certification.
The GAO sought the SBA’s input on the protest. The SBA, in turn, stated that OBXTek’s small business status should be determined by reference to the underlying Alliant contract:
SBA explains that an agency’s decision to request–or not to request–recertification at the task order level is at the discretion of the contracting officer. The SBA states that, since OBXtek certified as small at the time the option on the underlying GWAC was exercised, OBXtek should be treated as small for the remainder of the Alliant GWAC or, as relevant here, until the contracting officer requests recertification in connection with an order. With respect to the instant RFP, the SBA concludes that the solicitation did not require offerors to recertify their small business status.
The GAO then wrote that even if recertification had been required, “an offeror’s size status is determined at the time that it submitted its proposal, not at the time that it is issued a task order.” Here, “[w]hile OBXtek’s size status changed after it submitted its initial proposal, the record shows–and SES does not disagree–that OBXtek was listed as small on the date that its proposal was submitted.” The GAO denied this portion of SES’s protest.
The GAO’s decision in Software Engineering Services Corporation provides some helpful clarity on the question of small business status for purposes of task order competitions. As the case demonstrates, unless the contracting officer requests size recertification in connection with the task order, an offeror’s size is determined by reference to the underlying GWAC. And, in a case where recertification is required, an offeror’s size ordinarily is determined as of the date of its initial priced offer for the task order, not as of the award date.