Link: GAO Decision
Protestor: Trident3, LLC
Agency: Small Business Administration
Disposition: Protest Denied.
Protest that contract award terminated pursuant to negative size status determination should be reinstated following successful appeal to the Small Business Administration, Office of Hearings and Appeals, is denied where contracting agency followed all applicable regulations in terminating the award, and properly solicited revised proposals from all offerors.
General Counsel PC Highlight:
Trident3, LLC protested the solicitation of new proposals under an RFP issued as a small business set-aside under the 8(a) program, for weather observation and forecasting services at 21 naval air stations, outlying landing fields, and auxiliary landing fields. After award was made to Trident, several offerors protested both to the SBA regarding Trident’s size as well as to the GAO. The SBA determined that Trident was “other than small,” and the agency terminated award to Trident. Trident appealed the SBA’s decision to its Office of Hearings and Appeals, which reversed the SBA Area Office’s determination. The agency refused to reinstate award to Trident, but readmitted Trident to the competition and provided it with all RFP amendments issued during the period of its appeal.
The GAO agreed with the SBA that the agency’s only obligation following the reversal of the size determination for Trident was to allow Trident to submit an offer for the current award. It pointed out that there was no statute or regulation expressly requiring an agency to reinstate a terminated contract on the basis of an SBA OHA reversal of a negative size status determination; FAR § 19.302(i) merely provides that the OHA decision “will apply to the pending acquisition.” The GAO also found no bad faith in the agency’s multiple amendments issued to the RFP while Trident’s size appeal was ongoing.
Awardees in small business set-asides will often find themselves subject to a size protest from other disappointed offerors. If the SBA area office determines that the awardee is “other than small,” the agency may terminate award to that company. While the awardee may ultimately end up successfully appealing to OHA, the agency is not obligated to reinstate a terminated contract. Awardees may find themselves recompeting for the contract they were previously awarded.