So, your company has made it past the first big hurdle and got on a GSA schedule. You see a small business task order pop up that you believe your company would be perfect for, but another company gets the award. Based on information you have heard or read, you believe something fishy may be going on and the awarded company may be a big fish that found its way into the small pond.
But can you timely protest the task order award?
This matter arises from a task order issued in response to a US Navy Request for Quotations issue October 2, 2018. The contracting officer set aside a task order under GSA schedule 84 exclusively for small businesses with a size standard of $11 million in average annual receipts. It is important to note that the contracting officer did not request recertifications of size with this task order.
SigNet was awarded the task order on February 25, 2019. After the award of the task order, TIC Security filed a size protest alleging that that task order awardee, SigNet, was acquired by a “nearly billion-dollar entity” in July 2017, consequently no longer meeting the size standard at the time of its quotation for the task order.
On March 26, 2019, the SBA Area Office dismissed the size protest as untimely. In the Area office’s decision, they reiterated that the US Navy request for quotations sought a task order on a long-term GSA Schedule contract. In this circumstance, a protestor may only protest size at three instances:
1) Upon long-term contract award;
2) When an option is exercised; and
3) When the contracting officer requests a size rectification for an individual order.
13 C.F.R. § 121.1004. The task order at issue did not fall into one of those three categories.
TIC Security then appealed this decision to OHA.
OHA affirmed the area office. The contracting officer for this task order did not request a recertification of size for the task order, no contract option was exercised, and an award of a task order is not a long-term contract award. Therefore, the size protest was untimely and properly dismissed.
OHA went on to address the size evidence presented by TIC Security. Regardless of how strong TIC Security’s evidence of SigNet’s size may have been, OHA would not consider the evidence of it because “the underlying protest was untimely.” If the protest doesn’t meet one of the three occasions to file a size protest on a long-term contract, none of your other arguments or evidence matter, and your size protest will be dismissed.
Size protest for task orders have come before OHA repeatedly and the result is generally same, the protests are untimely. This case is a good reminder that if you believe a rival company may be violating size limits, the options for protesting size for a task order are limited to three specific instances. A protest outside outside of these three instances might be dismissed.
Questions about this post? Or need help with a government contracting legal issue? Email us or give us a call at 785-200-8919.