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Offeror Unintentionally Files Size Protest, Confuses SBA OHA

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Koprince Law LLC

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A communication to a contracting officer taking issue with an awardee’s size can be treated as a size protest–even if the offeror making the communication didn’t intend to file a size protest.

That’s what happened in Sea Box, Inc., SBA No. SIZ-5846 (Aug. 7, 2017), when an offeror accidentally initiated a size protest after losing an award.

Sea Box involved a procurement by the GSA for temporary shelters. The procurement was set-aside for small businesses under NAICS code 332311, Prefabricated Metal Building and Component Manufacturing, and carried a 750 employee size standard.

Sea Box was eliminated during GSA’s evaluation because it did not satisfy one of the pass/fail technical evaluation criteria. Tribalco, LLC was subsequently identified as an apparent successful offeror.

After learning that Tribalco had been named the awardee, Sea Box sent a letter to the contracting officer stating that it had “significant evidence” that Tribalco was not small under the procurement and could not satisfy the nonmanufacturer rule. Sea Box’s letter contained specific information regarding Tribalco’s size, including relevant exhibits. Sea Box concluded by requesting that the contracting officer initiate a size protest. In other words, Sea Box didn’t intend to file its own size protest, but rather to convince the contracting officer to file one.

At this point, it’s important to note what is required to initiate a size protest. Under the 13 C.F.R. § 121.1007, a size protest is merely required to identify the basis for the size allegations; there is no particular form the protest must take. The SBA’s website summarizes the size protest requirements as follows:

There is no format for a protest. If submitting a size protest, one must identify the business and its operators and provide additional information to supplement the claim. In addition, a protest should be filed as soon as possible and include the procurement and specific facts that relate to the size of the business.

With this in mind, the contracting officer reasonably interpreted Sea Box’s letter to be a size protest in and of itself. Accordingly, the Contracting Officer forwarded Sea Box’s letter to the SBA for resolution.

The SBA also interpreted Sea Box’s letter as a size protest. Unfortunately, since Sea Box was previously eliminated from the procurement due to technical issues, it was not an interested party, and the SBA subsequently dismissed its protest. The contracting officer, however, adopted the protest and requested the SBA conduct a size determination.

At this point, the case gets a little odd. Sea Box subsequently appealed the dismissal of its size protest to the SBA Office of Hearings and Appeals. Sea Box argued that it never intended to initiate a size protest against Tribalco; therefore, there should be no size protest dismissal attributed to Sea Box.

Given that the size protest had moved forward at the contracting officer’s request, OHA was unsure what Sea Box was requesting in its appeal. As OHA stated, “[t]he [SBA] Area Office did [Sea Box] a favor by treating its letter as a protest.” OHA further explained that “there are no adverse consequences from simply being on record as having filed an unsuccessful size protest. Many protestors have had their size protests dismissed without any lasting prejudice to them.” Because there was no harm to Sea Box in having its letter dismissed as a size protest and that it objectively lacked standing to protest, OHA upheld the Area Office’s decision to dismiss Sea Box’s protest letter.

The somewhat convoluted procedure involved in Sea Box highlights its lesson—when a contractor submits something that looks like a size protest to a contracting officer, it may be treated as such. This is by design. The SBA’s regulations want to allow contractors with relevant size information to be able to file protests without specific formatting constraints. As Sea Box learned, however, the wide net the SBA’s protest regulations cast can result in letters unintentionally being treated as full-blown protests.


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