SBA Size Protests: Timeliness Mistake Proves Costly

SBA size protests are often dismissed when contractors misunderstand the size protest timeliness rules.

A recent SBA Office of Hearings and Appeals decision offers an important reminder that for negotiated procurements, the clock starts ticking on a potential SBA size protest upon notification of the prospective awardee–not when the contract is actually awarded.

SBA OHA’s decision in Size Appeal of Absolute  Staffers LLC, SBA No. SIZ-5441 (2013) involved a Treasury Department small business set-aside solicitation for temporary help services.  On September 17, 2012, the agency notified offerors that HealthCare Resource Network, LLC was the apparent awardee.

Absolute Staffers LLC was one of the unsuccessful offerors.  Although Absolute received the September 17 notice, Absolute did not file a SBA size protest within five business days of the notification.

On November 30, the agency awarded the contract to HCRN.  Absolute filed a size protest on December 7, 2012–five business days after award.

The SBA Area Office issued a size determination dismissing Absolute’s size protest as untimely.  Absolute then filed a size appeal with SBA OHA.  Absolute argued, in part, that the window in which to file a size protest should have begun on November 30.

In a brief decision, SBA OHA rejected Absolute’s contention.  SBA OHA wrote, “[u]nder SBA regulations, a size protest of a negotiated procurement is timely if ‘received by the contracting officer prior to the close of business on the 5th day, exclusive of Saturdays, Sundays, and legal holidays, after the contracting officer has notified the protestor of the identity of the prospective awardee.'”

SBA OHA concluded that Absolute’s timeliness argument was “meritless” and “contrary to the plain language” of the regulation.  SBA OHA affirmed the SBA Area Office’s dismissal of Absolute’s size protest.

The Absolute Staffers case illustrates the importance of understanding when the window in which to file a SBA size protest begins.  As Absolute Staffers discovered, wait for award of the contract, and it may be too late.

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