The so-called “Exception Paradox” is one of those un-winnable logic games. It goes something like this, “if every rule has an exception, then doesn’t the rule that every rule has an exception have an exception, too?”
These are the sorts of brain teasers that sometimes kept me busy in grade school (what can I say, I wasn’t a very cool fourth grader). Fortunately, when it comes to SBA size protests, the SBA Office of Hearings and Appeals has made it easy to understand an exception to one common rule. In a recent decision, SBA OHA held that the ordinary rule governing when an offeror is deemed “small” for a particular federal procurement does not apply to a SBA size protest filed in connection with an architect-engineer competition conducted under the federal Brooks Act and FAR 36.6.
The Brooks Act is a special federal statute calling for architect-engineer competitions to be based on qualifications, not price. The Brooks Act is implemented in FAR 36.6. When the Brooks Act applies, the contracting officer is to first conduct a competition based solely on qualifications. After selecting the most-qualified contractor, the contracting officer then enters into price negotiations with that contractor.
SBA OHA’s decision in Size Appeal of NMA Architects Planners LEED Consultants, LLC, SBA No. SIZ-5215 (2011), involved the question of how the Brooks Act interacts with the general rule in 13 C.F.R. 121.404(a) that an offeror’s size is determined as of the date of its initial priced offer.
In the NMA Architects SBA size appeal, the Army Corps of Engineers issued a solicitation under the Brooks Act for architect-engineering services. After reviewing the qualifications of offerors, the Corps issued a notice stating that it intended to enter into price negotiations with TTG Schwab, Inc., which the Corps had identified as the most qualified offeror.
NMA Architects, a competitor, filed a SBA size protest. NMA alleged that TTG was not a small business because it was affiliated with another company, with which it shared an address. The SBA Area Office dismissed NMA Architects’ SBA size protest as premature. It held that because TTG had not yet submitted a priced offer, the relevant date for determining TTG’s size for the procurement had not yet occurred.
SBA OHA agreed with NMA Architects, and granted the size appeal. SBA OHA wrote that in Brooks Act procurements, “notification to other offerors of the identity of the offeror selected for negotiation is the equivalent to the notification to offerors of the identity of the prospective awardee in other negotiated procurements. Therefore, the size protest, based upon the notification to offerors of TTG’s identity, was in fact not premature.”
SBA OHA vacated the SBA Area Office’s decision and remanded the case to the Area Office, to conduct an evaluation of NMA Architects’ SBA size protest on its merits.
If every rule has an exception, then the SBA’s rule that a size protest cannot be filed until the company at issue submits a priced offer is no different. According to SBA OHA, in Brooks Act competitions, a SBA size protest can be filed when a competitor receives notification that the agency intends to enter into price negotiations with a particular offeror. That’s a pretty easy exception to remember–no paradoxes or brain teasers involved.