SBA Size Protests Cannot Be Filed With The GAO

SBA size protests must be filed with the contracting officer, who then forwards the size protest to the SBA Area Office for review.  The U.S. Government Accountability Office lacks jurisdiction to consider size protests, and filing a SBA size protest with the GAO will be ineffective, as one contractor recently discovered.

The decision of the SBA Office of Hearings and Appeals in Size Appeal of TLC Catering, Inc., SBA No. SIZ-5388 (2012) involved a Department of Defense solicitation for catering services.  On May 7, 2012, the contracting officer notified offerors that Space Age Engineering, Inc., or SAE, had been selected for award.

On May 14, 2012–five business days after receiving the notification of award–TLC Catering, Inc. filed a protest with the GAO challenging SAE’s status as a small business.  TLC apparently sent a copy of the protest to the contracting officer the following day, May 15.  The contracting officer, correctly identifying the document as a size protest, forwarded it to the SBA.

The SBA Area Office determined that the size protest was untimely because it had not been received by the contracting officer within five business days.  The SBA Area Office dismissed the size protest.  TLC then filed a size appeal with SBA OHA, arguing that because its size protest had been “timely filed” with the GAO, it should have been considered by the SBA.

SBA OHA cited the GAO’s own bid protest regulation at 4 C.F.R. § 21.5(b), which provides that the GAO shall dismiss any protest involving “Small Business Administration Issues,” including “the size status of particular firms.”  SBA OHA found TLC’s argument “meritless” and held that because TLC had not filed its SBA size protest with the contracting officer within five business days, the SBA Area Office properly dismissed it as untimely.

Government contracts protests involve many tricky technical and jurisdictional issues.  TLC Catering is not the first, and will probably not be the last, contractor to incorrectly file a SBA size protest with the GAO, but perhaps a broader knowledge of the TLC Catering SBA OHA size appeal decision in the small business contracting community will help prevent some small contractors from making the same critical mistake.

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