An unsuccessful bidder filed a size protest. The SBA Area Office dismissed the protest. The agency had found the protester technically unacceptable. Thus, the protester didn’t have standing to file a size protest. But other offers had filed GAO bid protests, challenging the award. The protester noted SBA had proposed a rule to suspend size protests when a GAO bid protest is pending. Citing this proposed rule, the protester appealed to OHA, arguing the Area Office should’ve suspended the size protest, not dismissed it. OHA wasn’t convinced. The SBA may have proposed a rule to suspend size protests, but that rule had no current effect.
Size Appeal of Ekagra Partners, LLC, RE: Halvik Corp., SBA No. SIZ-6189
Background
The Department of Commerce issued a solicitation for IT services. The solicitation contemplated award of multiple IDIQ contracts. The procurement was set aside for small businesses.
Commerce awarded a contract to Halvik Corp. Ekagra Partners filed a size protest, alleging Halvik wasn’t small. The SBA Area Office dismissed the protest. Commerce had found Ekagra’s proposal technically unacceptable. Because Ekagra had been eliminated from the competition, the Area Office determined it lacked standing to protest.
Ekagra appealed to SBA’s Office of Hearing and Appeals. Ekagra argued the Area Office should not have dismissed the protest. Ekagra contended it’s SBA policy to suspend size protests when bid protests have been filed with GAO or the Court of Federal Claims. Indeed, Ekagra noted the SBA had proposed a rule that clarified its intent to suspend size protests when a bid protest is filed with GAO. Several others offerors had filed bid protests, challenging the award to Halvik. Thus, Ekagra concluded, the Area Office should have suspended, not dismissed, the size protest.
Analysis
Standing to Protest
Under SBA regulations, an offeror may file a size protest if they have not been eliminated for a procurement related reason—like technical unacceptability. Here, Ekagra had submitted an unsatisfactory proposal and not been included in the competitive range. Ekagra never had standing to bring a protest
Effect of Proposed Rule
The Area Office may stay a size protest in pending concurrent bid protests. But the Area Office is not required to suspend a protest. While the SBA had proposed a rule to suspend size protest when a bid protest is filed with GAO, that rule did not have any current effect and was not binding SBA.
Ekagra is represented by Antonio R. Franco and Patrick T. Rothwell of PilieroMazza PLLC. Halvik is represented by Alexander H. Brittin of Brittin Law Group P.L.L.C.
–Case summary by Craig LaChance, Senior Editor
