The GSA instituted a program that would allow 8(a) Program participants to enter into an 8(a) pool for GSA schedules (AKA, GSA Multiple Award Schedule) called the MAS 8(a) Pool. This program would allow 8(a) GSA schedule holders to maintain their 8(a) eligibility for a limited time even after they had graduated from the 8(a) Program. GSA described it this way in 2023:
“MAS 8(a) pool contractors will be eligible for sole source awards for as long as they remain active in the 8(a) Program, and continue to qualify as small for the size standard corresponding to the NAICS code assigned to the sole source order, at the time of award. 8(a) pool contractors will continue to remain eligible for competitive set aside awards for up to five (5) years from the date of award, or until rerepresentation in accordance with FAR 19.301-2(b) (whichever is first), even after the contractor has exited the 8(a) Program.”
In this case, the agency requested a check on 8(a) eligibility, despite the existence of the MAS 8(a) Pool, and GAO was asked to decide if an agency had the discretion to check 8(a) eligibility, even if regulations did not require it.
As another point, The Government Accountability Office (GAO) and the U.S. Small Business Administration (SBA) both provide oversight for federal procurements but over different areas. Generally, GAO reviews protests of agency compliance with federal procurement regulations and statutes and solicitation criteria, and SBA hears protests regarding the size and status of federal contractors for set-aside procurements. This can create, however, some confusion where their activities overlap. This is something that we have, over the years, addressed in other blog posts. Today, we look at a GAO protest where GAO and SBA crossed paths again and this MAS 8(a) Pool issue arose.
On April 30, 2025, the Department of Energy (DOE) issued a request for quotations (RFQ) under a GSA Multiple Award Schedule contract for technical support services. The procurement was set aside for participants in the 8(a) Program. As part of this process, DOE submitted an 8(a) offering letter to the SBA to get the procurement accepted as an 8(a) procurement. SBA accepted the procurement as an 8(a) procurement in a letter to DOE on June 27, 2025, stating that the agency could “announce the acquisition as 8(a) Competitive utilized [sic] the GSA MAS 8(a) pool and issue a solicitation.” This letter also stated that, upon awarding the contract, DOE needed to notify SBA of the offeror’s identity so that SBA could assess the offeror’s eligibility for award. SBA would then let DOE know whether the offeror was eligible or ineligible for award.
On July 30, 2025, DOE awarded the contract to The Building People, LLC (TBP) and notified SBA of the same. However, on August 13, SBA responded and informed DOE that TBP was ineligible for award. After multiple requests for clarification from DOE, SBA sent two further notices stating that TBP was ineligible for award. As such, DOE retracted the award from TBP and gave it to the next highest rated offeror. TBP then protested this decision to GAO.
Although TBP described its protest in a number of ways, GAO observed that the majority of its challenges were challenging the propriety of the SBA’s determination of ineligibility. GAO has no power to review such determinations under 4 C.F.R. § 21.5(b). However, GAO was less certain about a couple arguments which, at first glance, appear to attack DOE’s conduct rather than SBA’s. The first argument was that neither the FAR nor SBA regulations required DOE to submit the order to SBA for review. The second argument was that, as the solicitation provided that offerors didn’t need to recertify their 8(a) status at the time of award, the fact the agency conditioned the award on SBA’s determination of eligibility was the application of unstated evaluation criteria.
GAO found that both arguments were unfounded. With regards to the first argument, it’s true that nothing required DOE to seek SBA’s acceptance of individual orders where the multiple-award contract was itself set aside under the 8(a) Program. But, nothing forbid DOE from seeking such acceptance either. As GAO put it, “while 13 C.F.R. § 124.503 provides that an agency is not required to seek SBA’s acceptance of individual orders when a multiple award contract was set-aside exclusively for 8(a) small businesses, partially set aside for 8(a) small businesses or reserved solely for 8(a) small businesses, and the individual order is to be competed among all 8(a) contract holders, nothing in that provision–or any other authority identified by the protester– prohibits the agency from seeking the SBA’s acceptance.” Additionally, SBA itself ordered DOE to obtain an eligibility determination from SBA prior to making the award as part of SBA’s acceptance of the procurement into the 8(a) Program. As noted previously, under the MAS 8(a) Pool. “8(a) pool contractors will continue to remain eligible for competitive set aside awards for up to five (5) years from the date of award, or until rerepresentation in accordance with FAR 19.301-2(b) (whichever is first), even after the contractor has exited the 8(a) Program.”
As for the second argument, GAO noted that the solicitation did not limit SBA’s involvement in the procurement. In fact, the RFQ expressly stated that the procurement had been submitted to SBA for review and that SBA had accepted it into the 8(a) Program. In any case, the agency did not require or request that TBP recertify. It just notified SBA of the award to TBP in accordance with SBA’s acceptance instructions. Thus, the agency itself did not apply an unstated evaluation criteria as it was following the acceptance instructions and vendors were on notice that SBA had accepted the procurement.
Summary
It bears repeating that any time SBA makes a conclusive determination, GAO is not the route to challenge that determination. While here, it did make sense to attack the agency’s decision to abide by SBA’s determination, this case makes it clear that even there, the issue is SBA, not the agency. However, it’s not clear that this decision could be challenged at SBA either, at least formally. After all, a “Participant cannot appeal SBA’s determination not to award it a specific 8(a) contract because the concern lacks an element of responsibility or is ineligible for the contract, other than the right set forth in § 124.501(h) to request a formal size determination where SBA cannot verify it to be small.” 13 C.F.R. § 124.517. Perhaps the Court of Federal Claims would have been more hospitable to such a challenge, or a challenge could have been raised informally through SBA.
Another takeaway is that, because the GSA MAS 8(a) pool concept is not required by regulation, an agency has discretion to question 8(a) eligibility even under this program. While the GSA MAS 8(a) pool specifically applies to this situation, SBA and the procuring agency was allowed to do an end run around the pool concept. This case is a good reminder that it’s not just the arguments you want to make that matter; where you bring the arguments (and whether you can even bring such arguments) matters just as much, if not more so, in many cases.
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