L’esprit de l’escalier?: OHA Refuses to Consider Argument Raised for the First Time on Appeal; Size Appeal of Bacik Group LLC, RE:DSC-EMI Maintenance Solutions, LLC, SBA No. SIZ-6071

Motion to dismiss size appeal is granted. The appellant asserted two arguments on appeal: (1) the awardee lacked licenses and certifications required by the contract, and (2) the awardee could not perform the work required by the contract. OHA found that the appellant had raised the first argument for the first time on appeal. OHA cannot decide substantive issues raised for the first time on appeal. OHA determined that the second argument considered a matter of contractor responsibility, which fell outside OHA’s jurisdiction.

The Navy posted a solicitation seeking grounds maintenance, pest control, and railroad maintenance at a Marine base. The solicitation was set aside for small businesses. The Navy awarded the contract to DSC-EMI Maintenance Solutions, LLC, a joint venture between an 8(a) protégé firm and a larger, mentor business.

An unsuccessful offeror, Bacik Group, LLC, filed a size protest, alleging that DSC was affiliated under the ostensible subcontractor rule, that the protégé firm was not an 8(a) company, and that the protégé firm could not perform 40% of the work as required by SBA regulations. The SBA Area Office denied the size appeal, finding that DCS was a small business. Bacik appealed to SBA’s Office of Hearing and Appeals.

On appeal, Bacik asserted a new argument: DSC did not have the necessary and licenses and certifications to perform the contract. DSC also reasserted its argument that DSC could not perform 40% of the work under the contract. DSC intervened in the appeal and filed a motion to dismiss, alleging that Bacik's appeal lacked merit.

OHA granted DSC’s motion to dismiss. First, it noted that Bacik had failed to raise the license and certifications argument in the initial protest. OHA cannot decide substantive issues raised for the first time on appeal.

Second, as to the performance of work requirements argument, the determination of what capabilities are necessary to perform a contract and whether the awardee has them is a matter of contract responsibility for the contracting officer to decide. Those matters are not within OHA’s jurisdiction.