SBA Size Protests: COs Not Required To Assist Protesters

Contracting Officers are not required to assist potential protesters by furnishing them with information to use in SBA size protests.

According to a recent size appeal decision of the SBA Office of Hearings and Appeals, the SBA properly dismissed a size protest for lack of support, notwithstanding the protester’s allegation that the Contracting Officer had failed to provide information needed to support the size protest.

SBA OHA’s decision in Size Appeal of RELM Communications, Inc., SBA No. SIZ-5524 (2013) involved a Navy procurement for wireless communications equipment.  The request for quotations was set-aside for small businesses.

After evaluating competitive proposals, the Navy announced that ACG Systems, Inc. was the apparent successful offeror.  RELM Communications, Inc., an unsuccessful competitor, filed a SBA size protest.  RELM’s email summarized the non-manufacturer rule but did not provide any information to suggest that ACG had violated the non-manufacturer rule.

The SBA Area Office determined that the size protest “provided no information or evidence that [ACG] exceeded the size standard for the procurement.”  In addition, “no information/evidence was provided that would suggest that [ACG] was not the actual manufacturer of the end-items being procured or didn’t meet the requirements for a non-manufacturer.”  The SBA Area Office dismissed the size protest as insufficiently specific.

RELM filed a size appeal with SBA OHA.  RELM contended, in part, that the Contracting Officer did not provide RELM with information about the products that ACG would deliver, so it was impossible for RELM to provide any details about whether or how ACG had violated the non-manufacturer rule.

After noting that the size protest did not contain “any supporting facts or evidence” to suggest that ACG had violated the non-manufacturer rule, OHA wrote, “[RELM’s] contention that it was unable to prepare a detailed size protest against ACG because the CO was not forthcoming with information is wholly unpersuasive.”  OHA suggested that the specificity requirement did not require RELM to provide the type of information that it sought from the Contracting Officer and that, in any event, “a dearth of information from the procuring agency would not have prevented [RELM] from investigating, or attempting to explain, how ACG might have violated the non-manufacturer rule.”  SBA OHA denied the size appeal.

As the RELM Communications case makes clear, contractors cannot rely on Contracting Officers to provide them with information that might support a size protest–nor should they expect that Contracting Officers will release information that might be considered proprietary and confidential to the awardee.  Rather, the burden is on the protester to produce sufficient information to meet the SBA’s “specificity” threshold, regardless of whether the agency provides supporting information.

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