Written by Marci Love Thomas, a Senior Counsel in the Government Contracts Practice
Football has quarters, baseball has innings, and professional soccer has halves. All are much loved sports, arguably with some similarities, but each with its own set of timing rules.
Similarly, in government contracting, there are multiple forums in which a contractor may choose to challenge a procurement—an agency-level protest, a Government Accountability Office (GAO) protest, a Small Business Administration (SBA) protest, and a Court of Federal Claims bid protest may all be possibilities. The forums have some similarities and may overlap on some issues, but it is crucial for a contractor to rely on the rules of the forum in which it is filing.
SBA’s Office of Hearings and Appeals (OHA) reminded contractors of the dire importance of using the rules of the selected forum when it recently affirmed a dismissal of a contractor’s size protest in Size Appeal of American Patriot Construction Services, Inc., SBA No. SIZ-5671 (2015).
American Patriot Construction Services, Inc., an unsuccessful offeror, filed a size protest with a U.S. Department of Veterans Affairs (VA) contracting officer (CO) alleging the successful offeror for a procurement set aside for service-disabled veteran-owned small businesses was not a small business due to affiliation with several other concerns through common ownership. The CO forwarded the size protest to SBA where it was dismissed as untimely pursuant to 13 C.F.R. § 121.1004(a)(1). In accordance with 13 C.F.R. § 121.1004(a)(1), “A protest must be received by the contracting officer prior to the close of business on the 5th day, exclusive of Saturdays, Sundays, and legal holidays, after bid opening.”
In this case, VA opened bids on May 22, 2015. The protestor, American Patriot Construction Services, Inc., filed its size protest with the CO on June 8, 2015, beyond the five-day deadline. Thus, the SBA Area Office dismissed the size protest.
On appeal to OHA, the protestor argued the SBA Area Office erred in relying on the small business regulations found in 13 C.F.R. § 121 and, instead, should have decided timeliness based on Federal Acquisition Regulation (FAR) Subpart 33.1, which provides a ten-day deadline for bid protests filed with the procuring agency or GAO. In essence, protestor’s argument was akin to relying on Major League Baseball rules to argue for extra innings in a soccer match. Moreover, FAR § 33.102, the regulation the protestor was citing, specifically directs potential small business eligibility protestors to FAR § 19.302, which recites the five-day deadline for a size protest provided in SBA regulation 13 C.F.R. § 121.1004(a)(1).
Due to the protestor’s unfortunate reliance on rules for another forum, the substance of protestor’s small business eligibility allegations were never considered. The protest was summarily dismissed by the Area Office and OHA affirmed on appeal. Government contractors protesting a procurement do not just have to play by the rules, they have to insure they are relying the right rules for the forum.
If you have any questions or comments about the discussed content, please contact General Counsel, P.C’s Government Contracts Practice Group.