Remember the famous “Soup Nazi” episode of Seinfeld?  The mustachioed title character, brilliantly played by Larry Thomas, will forever be known for barking, “no soup for you!” to anyone who dared break his many rules.  In the SBA size protest arena, as in the Soup Nazia’s restaurant, technical rules abound.  For instance, if your proposal was technically unacceptable, “no SBA size protest for you!”

The decision of the SBA Office of Hearings and Appeals in Size Appeal of Hummingbird Data Systems, LLC, SBA No. SIZ-5311 (2011), shows how the unacceptability rule works in practice.  In that case, Hummingbird Data Systems, Inc. bid on a solicitation that required, among other things, that the successful offeror have a Software Engineering Institute certification.  Hummingbird apparently did not have the certification.

Not surprisingly, the contracting officer kicked Hummingbird out of the competition as technically unacceptable.  The agency then identified Integrated Systems Diagnostics as the apparent awardee.  Hummingbird filed an SBA size protest, complaining that ISD was not an eligible small business.  However, the SBA Area Office dismissed the protest, holding that because Hummingbird had been deemed technically unacceptable, it was not an “interested party.”  In other words, Hummingbird was not entitled to file a size protest.

SBA OHA agreed with the SBA Area Office.  It noted that under the SBA size protest regulations, a size protest may be filed by “any offeror whom the contracting officer has not eliminated for reasons unrelated to size.”  In other words, “the regulation thus specifically excludes protests from firms who have been eliminated from the process for reasons unrelated to size.”  SBA OHA denied the size appeal.

The SBA size protest regulations are not quite as strict as the GAO bid protest regulations.  Unlike in the GAO realm, where an offeror often must be “next in line for award” to file a protest, a small business need not be in line for award to file a SBA size protest.  If the company is, for instance, ranked seventh out of seven offerors, it can still protest the awardee’s size.  The problem comes where, as in Hummingbird’s case, you aren’t ranked at all, but eliminated from the competition as unacceptable.  Then, “no size protest for you!”