Upon receipt of the agency’s pre-award notice that Halvik (or Awardee) was the apparent successful offeror under the solicitation here, Ekagra filed a timely size protest with the contracting officer, alleging that the Awardee was other than small with annual revenues exceeding the $30 million size standard. As required by regulation, the contracting officer forwarded the size protest to the SBA’s Area Office. But the contracting officer also provided the Area Office with a “reference sheet” stating that “the protestor does not have an opportunity to be awarded as their proposal was Unsatisfactory.” Based on this information, the Area Office issued a size determination dismissing the protest based on lack of standing. In its dismissal, the Area Office cited the relevant SBA regulation, which states:
For SBA’s Small Business Set-Aside Program, including the Property Sales Program, or any instance in which a procurement or order has been restricted to or reserved for small businesses or a particular group of small businesses (including a partial set-aside), the following entities may file a size protest in connection with a particular procurement, sale or order: …
During the appeal process, SBA filed an agency comment confirming that the proposed rule the Appellant cited was “an attempt to clarify when and how size protests are stayed in the SBA size protest process.” SBA’s explanation for the policy supported the Appellant’s stance, as SBA said, “if there is a pending parallel bid protest [,] the size protest should be stayed.” But because the GAO protests here had all been dismissed, SBA had to clarify whether the proposed rule extended to pending COFC bid protests. Again favoring the Appellant’s stance, SBA confirmed that “a COFC parallel bid protest is the functional equivalent [of] a GAO bid protest given the stated policy reasons by SBA for this type of stay.” Indeed, according to SBA, “a stay in a COFC protest and a GAO protest serve the same policy objective.” SBA did add that, to qualify for the mandated stay, “the parallel proceedings must be initiated prior to SBA issuing the size determination.” SBA added, “[f]or similar issues, SBA confirms that if the parallel litigation results in correcting the standing issue, then SBA will consider a future size protest and will start the clock for filing a new protest at the time the concern was notified of its standing.” … Read the full article here.
