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ji20874

Size Standard Protests -- Stay of Performance

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I'm interested in feedback...

My Assertion No. 1:

A size standard protest under FAR 19.302 is not a protest to the agency under FAR 33.103. It's not a protest to the agency because the agency cannot decide the protest.

My Assertion No. 2:

Accordingly, FAR 33.103( f ) (with its prohibition on awarding the not-yet-awarded contract or requirement to suspend performance of the already-awarded contract) does not apply to size standard protests. Rather, for size standard protests, FAR 19.302( h ) applies.

This seems so simple and self-evident to me. But others tell me that FAR Subpart 33.1 applies simply because of the word "protest." Has anyone else faced this question?

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Assertion 1:

See the definition of protest at FAR 33.101.

“Protest” means a written objection by an interested party to any of the following:

(1) A solicitation or other request by an agency for offers for a contract for the procurement of property or services.

(2) The cancellation of the solicitation or other request.

(3) An award or proposed award of the contract.

(4) A termination or cancellation of an award of the contract, if the written objection contains an allegation that the termination or cancellation is based in whole or in part on improprieties concerning the award of the contract.

A protest pursuant to FAR 19.302 is not any of those things. See FAR 19.302(a)(2). It is a protest against a size representation. Thus, a protest under FAR 19.302 does not meet the definition of protest at FAR 33.101 and is not a protest to the agency within the meaning of FAR Subpart 33.103. See also Executive Order 12979, Sec. 1, which describes a protest as a protest '"to the award of [agency] procurement contracts." A size protest is not a protest of a contract award, language in the protest to the contrary notwithstanding. It is not a protest of anything that the government has done, but of what an offeror has done.

Assertion 2:

See the above with respect to Assertion 1. Thus, the suspension requirement of FAR 33.103( f ) does not apply.

The requirement to suspend award following a size protest is at FAR 19.302(g)(1), not FAR 33.103( f ).

The "others" that you are dealing with are idiots. Explain to them that regulatory definitions matter.

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Vern, you crack me up! 😂 I looked the definition of "idiot" in the Merriam-Webster On-line Dictionary at Merriam-Webster.com and these are the synonyms listed:

"Synonyms

airhead, birdbrain, blockhead, bonehead, bubblehead, chowderhead, chucklehead, clodpoll (or clodpole), clot [british], cluck, clunk, cretin, cuddy (or cuddie) [british dialect], deadhead, dim bulb [slang], dimwit, dip, dodo, dolt, donkey, doofus [slang], dope, dork [slang], dullard, dumbbell, dumbhead, dum-dum, dummkopf, dummy, dunce, dunderhead, fathead, gander, golem, goof, goon, half-wit, hammerhead, hardhead, ignoramus, imbecile, jackass, know-nothing, knucklehead, lamebrain, loggerhead [chiefly dialect], loon, lump, lunkhead, meathead, mome [archaic], moron, mug [chiefly British], mutt, natural, nimrod [slang], nincompoop, ninny, ninnyhammer, nit [chiefly British], nitwit, noddy, noodle, numskull (or numbskull), oaf, pinhead, prat [british], ratbag [chiefly Australian], saphead, schlub (also shlub) [slang], schnook [slang], simpleton, stock, stupe, stupid, thickhead, turkey, woodenhead, yahoo, yo-yo, dumb cluck"

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What FAR and the SBA regulations call a "size protest" should be called a challenge, because that's what it really is. The "protester" is not complaining about some act of the government, It is challenging an offeror's representation that it's a small business and asking SBA, through the contracting officer, to make a formal size determination.

If an interested party want to challenge an award on the ground that the procurement was set aside and the selectee is not a small business, they have to protest to the agency, in accordance with FAR 33.103, the GAO, in accordance with FAR 33.104, or the Court of Federal Claims in accordance with the rules of the court. SBA can determine size, but it cannot do anything about the award decision, even if it determines that the selectee is not small.

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In addition, FAR 33.102( a ) directs the reader to FAR part 19 for size status protests:

Without regard to the protest venue, contracting officers shall consider all protests and seek legal advice, whether protests are submitted before or after award and whether filed directly with the agency or the Government Accountability Office (GAO), or the U.S. Court of Federal Claims. (See19.302 for protests of small business status, 19.305 for protests of disadvantaged business status,19.306 for protests of HUBZone small business status, and 19.307 for protests of service-disabled veteran-owned small business status and 19.308 for protests of the status of an economically disadvantaged women-owned small business concern or of a women-owned small business concern eligible under the Women-Owned Small Business Program.)

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FAR 15.503(a)(2)(ii)(C ) calls it a "challenge," not a "protest." It would be helpful if FAR 19.302 used wording consistent with this. 19.302 is basically there as a warning to offerors not to misrepresent their size because others are watching. It's basically a notice to industry that they will police themselves.

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last week, I saw a notice posted to FBO that said a particular sole source award to a fortune 500 company was also a SBSA.

I cannot provide the services called for, but emailed the CO to point out that this company, whose name is known to everyone in the USA, had over $ 30 Billion in turnover last year, while the relevant size standard was under $ 30 Million. I sent her a link to back that up.

The CO replied that the company had self-certified as small, so she was covered.

So I copied the SBA PCR in the town where that corporation was based. Noting the self-certification, If I had a problem with that, she told me to take it up with the SBA IG.

That's how some agencies get their 23%, I guess.

I copied the Agency SADBU, who contacted me Monday to thank me for catching the false claim. He said it was a simple error by a low-level clerk.

That company has a presence in over 20% of all US homes. They are in a niche where SB's cannot compete. And yet, for 20 years, Agencies have been giving themselves SB credit for awards to this company.

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There is something else wrong with the synopsis for the services you describe. Small Business Set Asides are not used to award sole source contracts:

19.502-2 -- Total Small Business Set-Asides.

(a) Before setting aside an acquisition under this paragraph, refer to 19.203(b ). Each acquisition of supplies or services that has an anticipated dollar value exceeding $3,000 ($15,000 for acquisitions as described in 13.201(g)(1)), but not over $150,000, ($300,000 for acquisitions described in paragraph (1) of the Simplified Acquisition Threshold definition at 2.101), is automatically reserved exclusively for small business concerns and shall be set aside for small business unless the contracting officer determines there is not a reasonable expectation of obtaining offers from two or more responsible small business concerns that are competitive in terms of market prices, quality, and delivery.

(b ) Before setting aside an acquisition under this paragraph, refer to 19.203©. The contracting officer shall set aside any acquisition over $150,000 for small business participation when there is a reasonable expectation that:

(1) Offers will be obtained from at least two responsible small business concerns offering the products of different small business concerns (but see paragraph (c ) of this section); and

(2) Award will be made at fair market prices. Total small business set-asides shall not be made unless such a reasonable expectation exists (see 19.502-3 as to partial set-asides). Although past acquisition history of an item or similar items is always important, it is not the only factor to be considered in determining whether a reasonable expectation exists. In making R&D small business set-asides, there must also be a reasonable expectation of obtaining from small businesses the best scientific and technological sources consistent with the demands of the proposed acquisition for the best mix of cost, performances, and schedules.

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I guess I'll play the role of Vern's idiot. Couldn't a size protest be considered, "a written objection by an interested party to an award or proposed award of the contract" ? Aren't they in fact protesting the award of the contract because they assert that the awardee does not meet the size criteria?

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Aren't they in fact protesting the award of the contract because they assert that the awardee does not meet the size criteria?

No, and that's why the term "size protest" is inappropriate, because it confuses contracting people who haven't been taught how to research, read, and interpret their own regulations.

This isn't even a close question.

I am showing amazing self-restraint.

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I appreciate the discussion.

My acquisition was an 8(a) competitive acquistion under FAR 19.805. We obtained a determination of eligibility from the SBA before award for the successful offeror, and made award without any preaward notices to unsuccessful offerors under FAR 15.503( a )( 2 ). However, we did provide postaward notices to unsuccessful offerors under FAR 15.503( b ) and debriefings under 15.505. I note the following text from FAR 19.805-2(d)—

The eligibility of an 8(a) firm for a competitive 8(a) award may not be challenged or protested by another 8(a) firm or any other party as part of a solicitation or proposed contract award.

I also note the following text from FAR 19.302(j)—

A protest received by a contracting officer after award of a contract shall be forwarded to the SBA Government Contracting Area Office with a notation that award has been made. The protester shall be notified that the award has been made and that the protest has been forwarded to SBA for consideration in future actions.

I forwarded the protest to the SBA. That's all I did. I did not stay performance of the awarded contract because of the size standard protest.

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I also note the following text from FAR 19.302(j)—

A protest received by a contracting officer after award of a contract shall be forwarded to the SBA Government Contracting Area Office with a notation that award has been made. The protester shall be notified that the award has been made and that the protest has been forwarded to SBA for consideration in future actions.

I found a different text for FAR 19.302(j):

19.302 -- Protesting a Small Business Representation or Rerepresentation.

(j) When a concern is found to be other than small under a protest concerning a size status rerepresentation made in accordance with the clause at 52.219-28, Post-Award Small Business Program Rerepresentation, a contracting officer may permit contract performance to continue, issue orders, or exercise option(s), because the contract remains a valid contract.

Did you mean to provide another cite?

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Vern, as some of these "protests" are filed with GAO, there is a belief among the lawyers at my agency that 33.1 applies.

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Vern, as some of these "protests" are filed with GAO, there is a belief among the lawyers at my agency that 33.1 applies.

I'm not sure what you mean by "these" protests. But 33.1 does apply when a protest is filed with GAO. But if by "these" you mean size status protests, then they won't be at GAO for long, and 33.1 won't apply for long, because GAO will dismiss them, because they are not within GAO's jurisdiction.

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Another citation that may be helpful for this discussion. From GAO's Bid Protest Regulations.

".21.5 Protest issues not for consideration.........(B ) Small Business Administration issues. (1) Small business size standards and North American Industry Classification System (NAICS) standards. Challenges of established size standards or the size status of particular firms, and challenges of the selected NAICS code may be reviewed solely by the Small Business Administration. 15 U.S.C. 637(B )(6)."

Or in other words its the law!

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