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SBA Size Protests: Investigation Not Required Outside Of Protest Allegations

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Koprince Law LLC

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When the SBA evaluates a size protest, it is not required to investigate issues outside of those raised in the size protest itself.

A recent decision of the SBA Office of Hearings and Appeals demonstrates the importance of submitting a thorough initial size protest–and confirms that the SBA need not investigate issues outside of the allegations raised in the protest.

OHA’s decision in Size Appeal of K4 Solutions, Inc., SBA No. SIZ-5775 (2016) involved a TSA procurement.  The TSA acquisition in question contemplated the award of a single BPA to a business holding a GSA Schedule 70 contract.  The RFQ was issued as a total small business set-aside.

After evaluating quotations, the TSA announced that Systems Integration, Inc. was the apparent successful offeror.  K4 Solutions, Inc., an unsuccessful competitor, then filed a size protest.  K4 alleged that SII had been acquired by Rimhub Holdings, Inc. in 2014, and thus was affiliated with Rimhub.  The size protest did not address the question of whether SII had been required to recertify its size under its Schedule 70 contract upon the acquisition by Rimhub.

The SBA Area Office dismissed the size protest as untimely.  The Area Office stated that, for a long-term contract like Schedule 70, a size protest may be challenged at three points in time: (1) when the long-term contract itself is initially awarded; (2) when an option is exercised; or (3) upon the award of an order, if the Contracting Officer specifically requests size recertification in conjunction with the order. (OHA has held in an earlier case that merely bidding on a set-aside order does not constitute a recertification under this rule).

In this case, the TSA had not requested a recertification in connection with the order, and there was no option at issue.  Therefore, the Area Office determined, “size was determined from the date of SII’s self-certification for the GSA Schedule Contract,” and there was “no available mechanism for [K4] to challenge SII’s size in connection with” the TSA RFQ.

K4 filed a size appeal with OHA. K4 argued that, under 13 C.F.R. 124.404(g)(2), SII had been required to recertify its size within 30 days of being acquired by Rimhub. K4 argued that its protest was timely because it was filed within five business days of when K4 learned that SII had continued to represent itself as a small business following the acquisition.

OHA wrote that an Area Office “has no obligation to investigate issues beyond those raised in the protest.”  In this case, the recertification issue raised by K4 on appeal “was not raised in [K4’s] underlying size protest.”  Accordingly, “given that [K4’s] protest did not allege that SII was required to recertify its size . . . the Area Office could reasonably choose not to explore this issue n the size determination, and [K4] has not demonstrated that the Area Office committed any error in its review.”

OHA denied K4’s size appeal.

An unsuccessful offeror doesn’t have much time to file a size protest–just five business days from receiving notice of the prospective awardee, in most cases.  But even with such a short time frame, a size protester must submit the most thorough protest possible.  As the K4 Solutions case demonstrates, the SBA has no obligation to investigate an issue that the protester didn’t raise.


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