SDVOSB Protests Versus Bid Protests: SBA OHA Provides Some Clarity

A protest challenging a company’s status as a service-disabled veteran-owned small business is not the same as a protest challenging other aspects of an agency’s award decision (such as the evaluation of the protester’s proposal)–and these differences can determine whether a protest is timely and correctly filed.

In a recent case, the SBA Office of Hearings and Appeals provided some clarity on key differences between SDVOSB protests and bid protests, including important limits on the SBA’s jurisdiction.

OHA’s decision in Brandt Group, Inc., SBA No. VET-249 (2015) involved a DoD solicitation for keel blocks.  The agency issued the procurement as a total SDVOSB set-aside.

After evaluating competitive proposals, the DoD announced that TFAM Solutions, LLC was the apparent successful offeror.  After receiving notice of the award, Brandt Group Inc. engaged in “daily communications” with the contracting officer regarding the award decision.  Among its contentions, Brandt apparently argued that the DoD had failed to properly apply the solicitation’s requirement that the awardee be certified by the Precase/Pre-Stressed Concrete Institute, or PCI.  In response to these communications, the Contracting Officer admitted that he was unaware that the awardee was required to be PCI certified, and promised to hold a debriefing.

Eleven days after it received the pre-award notice, Brandt sent an email to the contracting officer.  In this email, Brandt first raised the question of TFAM’s SDVOSB eligibility.  In that email, Brandt did not use the word “protest” or formally challenge TFAM’s SDVOSB status.  Four days later, Brandt filed a formal protest of TFAM’s SDVOSB status.

The SBA’s Director of Government Contracting dismissed the protest as untimely.  Brandt then appealed the dismissal to OHA.  In its appeal, Brandt stated that it “is the lowest price technically acceptable submitter and should be awarded the project forthwith.”  (Editorial note: using unnecessary legalese like “forthwith” does not improve the quality of one’s protest, and often just makes the protester sound silly).

OHA noted that the SBA’s SDVOSB protest regulation “explicitly requires protests of a firm’s SDVO SBC status be filed by the close of business on the fifth business day after notification by the contracting officer of the identity of the apparent successful offeror.”  Accordingly, “[a]ny protest submitted later than that is untimely, unless it is made by SBA or the contracting officer.”

In this case, Brandt’s formal protest, which was filed well after the expiration of the five-day period, was plainly untimely.  OHA then turned to the question of whether Brandt’s earlier email communications constituted a timely SDVOSB protest.

OHA wrote that Brandt’s earlier communications, which involved matters like the PCI certification, “could not be considered” by the SBA.  By raising issues like these, “[i]t appears [Brandt] is confused as to the nature of a bid protest and a SDVO status protest.  OHA explained, “[t]he SBA does not review issues concerning the administration of an SDVO contract . . . [t]herefore, [Brandt’s] claims that the CO did not properly evaluate TFAM or that [Brandt] should be awarded the contract are not issues that can be considered in an SDVO status protest.”

OHA continued:

I conclude [Brandt’s] argument that its earlier communications should be considered timely protests, even though they did not use the word “protest”, is meritless.  The regulation requires that a protest be in writing and must specify all the grounds upon which the protest is based; merely asserting the protested concern is not an eligible SDVO SBC is not enough.  That is, the protest, in addition to being in writing, must make a specific allegation related to one of the grounds for an SDVO SBC protest in SBA’s regulations.  Other complaints about the procurement process, such as [Brandt] made in its emails, are not the basis for a protest, just as a conclusory assertion that a protested concern is not eligible cannot be the basis for a protest.  None of [Brandt’s] emails raised the question of TFAM’s certification as a SDVO SBC until August 31, 2015, 11 days after [Brandt] received notice of award.  Even this communication is no more than a reminder to the CO that an awardee has to be a certified SDVO SBC, and he should check TFAM’s certifications.

OHA held that Brandt’s SDVOSB protest was “too late,” and denied Brandt’s SDVOSB appeal.

The world of government contracts protests can be confusing.  As the Brandt Group case demonstrates, a SDVOSB status protest is not the same as a bid protest–and challenging other aspects of an agency’s award decision does not establish a timely SDVOSB protest.

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