The SBA asked a company to respond to a size protest. The company didn’t respond. SBA drew an adverse inference and found the company was not small. The company appealed , aguing SBA had sent the request to an email account that wasn’t “monitored.” OHA denied. The SBA rightly used the email address listed on the company’s SAM registration.
Size Appeal of Red Orange, LLC, SBA No. SIZ-6290
- Size Determination and Adverse Inference – The government awarded Red Orange a contract set aside for small businesses. The SBA initiated a size protest, suspecting that Red Orange may be affiliated. The SBA asked Red Orange to provide financial information. Red Orange didn’t provide the information. SBA drew an adverse inference and determined Red Orange was not small.
- Appeal Argument– Red Orange appealed to OHA. The company argued the adverse inference was improper because SBA had used an email account that was only used for accounts receivable and was not regularly monitored.
- Appeal Denied – OHA rejected Red Orange’s argument. Red Orange may have subjectively intended that its email account only be used for accounts received. But that account was the one listed in the company’s SAM.gov registration. Thus, Red Orange had publicly represented that the account was the appropriate method for contacting the company. The adverse inference and the subsequent size determination were appropriate.
Red Orange is represented by Jon A. Thielen. Jennifer M. Samela represents the Army Corps of Engineers. Christopher R. Clarke represents the Small Business Administration
--Case summary by Craig LaChance, Editor in Chief