The protester argued it was eligible for an 8(a) task order even though it had graduated from the 8(a) program. The protester reasoned the FAR provided a safe harbor provision that allowed former 8(a) firms to still compete for 8(a) task orders. But the COFC found that safe harbor provision didn’t apply.
Karthik Consulting v. United States, COFC No. 23-944
- Solicitation – The agency issued a solicitation for a task order under a GSA multiple award schedule contract. The agency issued the solicitation as a competition for businesses in SBA's 8(a) Business Development program.
- Award and Protest – The agency received a quotation from the protester. The protester was listed as an 8(a) business under the GSA MAS contract. The agency asked SBA to determine the protester's eligibility. SBA said the protester graduated from the 8(a) program in 2018 and was ineligible for an 8(a) contract. The protester filed suit with the COFC objecting to the eligibility determination.
- Safe Harbor – FAR 19.804-6 governs how the 8(a) Business Development Program applies to multiple award contracts. The protester argued this FAR clause has a safe harbor provision for companies that have graduated from the 8(a) program. Specifically, the FAR clause states an 8(a) contractor may receive new orders under an MAS contact even if it’s no longer part of the 8(a) program.
- Safe Harbor Didn’t Apply – FAR 19.804-6 clearly states a company that’s no longer and 8(a) business can only continue to receive order if the MAS contract itself is set aside for 8(a) businesses. If the MAS is not exclusive to 8(a) businesses, then a holder that has graduated from the 8(a) program cannot continue to qualify as an 8(a) business. Here, the MAS was not exclusive to 8(a) businesses. The safe harbor provision was not applicable.
- SBA Rule – The protester also pointed to an SBA rule that allows an 8(a) holder of a MAS contract to remain an 8(a) participant for the life of the contract. But the court noted this SBA rule only applies if the agency does not request an eligibility determination for a new order. In this case, the agency specifically requested that SBA conduct an eligibility determination.
The protester is represented by Abram John Pafford, Edwin O. Childs, and Jessica L. Nejberger of McGuire Woods LLP. The intervenor is represented by C. Peter Dungan, Adam A. Bartolanzo and Lauren S. Fleming of Miles & Stockbridge P.C. The government is represented by Rebecca Sarah Kruser and Richard W. Postma, Jr. of the Department of Justice,
--Case summary by Craig LaChance, Senior Editor