SBA Size Protests, Timeliness, and After Hours Notifications

An SBA size protest on a negotiated procurement must be submitted within five business days “after the contracting officer has notified the protester of the identity of the prospective awardee.”  But what happens if the contracting officer’s notice arrives after normal working hours?  Does the clock start ticking anyway?

The SBA’s Office of Hearings and Appeals discussed this issue in Size Appeal of Falcon, Inc., SBA No. SIZ-5239 (2011).  In that case, the contracting officer transmitted the notice of award to an unsuccessful small business, Falcon, Inc., after normal business hours on a Friday evening.   The question arose: did the small business “receive” the notice, for SBA size protest purposes, on Friday?

SBA OHA, in a commonsense opinion, found that the notice was deemed to have been received the following Monday.  Because the date the notice is received is not counted, “day one” of the five-day period was Tuesday.  Unfortunately, Falcon waited four more days to file, and OHA held that the SBA properly dismissed its SBA size protest.

Given the short time frame in which SBA size protests must be filed, every day counts.  OHA’s “after hours” rule makes sense, as contractors cannot be expected to know about a protestable award after they have gone home for the evening.  Of course, many contractors work odd hours and/or check their email remotely, so SBA OHA’s rule may give size protesters a little more time to file.

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