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MDJohn

Concurrent SBA size protest and GAO protest?

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SmallCo bid on a total small business set aside multiple award IQC. Agency issued award to 2 small business concerns. SmallCo was 3rd and did not win an award.

Agency did not send out a pre-award notice to the offerors re: the pending award to the prospective awardee, pursuant to FAR § 15.503(a)(2).

SmallCo has requested a debriefing. It is considering a size protest to the SBA and, depending on what is learned at the debriefing, perhaps a protest on the merits.

I have researched but didn't see anywhere that filing a size protest with SBA has any impact on the 10 day period for protesting with GAO or the agency. Filing a size protest with SBA will stop the procurement process until the SBA makes its decision, but, as far as I can tell, it does not toll the 10 day GAO/agency protest period. An unsuccessful bidder must still file a protest within the protest period.

Is this correct? if not, what is the source/cite? Does the fact that no pre-award notice was provided have any impact on smallco's rights and options?

Thanks,

John

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Don't believe the two are related in any way. Similar situation but was pre-award - We had a procurement released as 8(a) set-aside (no vehicle). Incumbent filed a NAICS code challenge with the SBA as soon as solicitation released (they had graduated 8(a)). Because SBA had not ruled, they files a pre-award protest at GAO on day proposals were due to maintain their rights.

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An unsuccessful bidder must still file a protest within the protest period. Is this correct?

Yes.

Does the fact that no pre-award notice was provided have any impact on smallco's rights and options?

Only if Smallco was prejudiced (i.e., if the SBA actually found the awardee to be other than small). See Jensco Marine, Inc., B-278929.7, February 11, 1999:

However, such a failure to provide pre-award notice is only procedural in nature and we will not sustain a protest of an agency's failure to comply with this pre-award notification requirement absent prejudice to the protester. See FKW Inc. Sys.; ColeJon Mechanical Corp., B-235989, B-235989.2, Oct. 23, 1989, 89-2 CPD ¶ 370 at 7; Automation Management Consultants, Inc., B-231540, Aug. 12, 1988, 88-2 CPD ¶ 145 at 4-5.

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