This post-award size protest appeal addresses whether a protester has standing to challenge an awardee's small business status when the agency found one of the protester's quotes technically unacceptable but never evaluated its other quote. The protester argued it had standing based on its unevaluated quote, which the agency did not eliminate for any technical reason. SBA permits size protests by "any offeror that the contracting officer has not eliminated from consideration for any procurement-related reason, such as non-responsiveness, technical unacceptability or outside of the competitive range." OHA ruled that because the protester's first quote was never evaluated—not rejected for technical reasons—and could still compete for award if the size protest succeeded, the protester had standing to protest.
Size Appeal of Aldevra, LLC, SBA No. SIZ-6399 (Office of Hearings and Appeals 2026)
- Background - The Federal Bureau of Prisons issued a solicitation for 349 ice machines, set aside for small businesses under NAICS code 423440 with a 100-employee size standard. The agency amended the solicitation to allow offerors to submit two quotes. The protester submitted two quotes: Quote #1 (seventh-lowest price) and Quote #2 (lowest price). The agency evaluated quotes using a lowest-price-technically-acceptable approach, starting with the lowest-priced quote. The agency found the protester's Quote #2 technically unacceptable and awarded to the awardee. The protester filed a size protest alleging the awardee exceeded the employee size standard through affiliation with related companies. The Area Office dismissed the protest for lack of standing.
- Standing for Unevaluated Quotes - The protester argued it had standing to file a size protest based on Quote #1, which was never evaluated or eliminated for technical reasons. The Area Office had dismissed the protest because Quote #2 was found technically unacceptable, but the Area Office confirmed Quote #1 "was not evaluated because it was not among the lowest quotes submitted" and that "no competitive range was established." OHA agreed with the protester. The regulation grants standing to "any offeror that the contracting officer has not eliminated from consideration for any procurement-related reason." Because the agency never evaluated or eliminated Quote #1—it simply did not reach it during the lowest-price-first evaluation process—the protester remained in consideration.
- Competitive Potential Equals Standing - The awardee argued the protester lacked standing because Quote #1 was the seventh-lowest quote and therefore could never compete for award under the agency's LPTA evaluation approach. OHA rejected this argument, finding it overlooked the purpose of size protests. SBA policy grants standing to "those concerns whose successful size challenge would enable them to compete for award." If the size protest succeeded, the awardee's quote would be disqualified, forcing the agency to either re-issue the solicitation or continue evaluating submitted quotes. Because no quotes between the protester's Quote #1 and the awardee's quote had been confirmed as both technically acceptable and from a qualified small business, the protester could potentially compete for award.
- NAICS Code Authority - The protester challenged the Area Office's authority to change the solicitation's NAICS code from 423440 (wholesale) to 333415 (manufacturing) while simultaneously dismissing the protest for lack of standing. The protester argued this violated procedural fairness by making a substantive decision on the merits while denying the protester an opportunity to be heard. OHA disagreed, finding the Area Office acted within its regulatory authority. The regulation permits SBA to "clarify, complete, or supply a NAICS code designation or size standard, as appropriate, in connection with a formal size determination or size appeal." A dismissal for lack of standing constitutes a "formal size determination" because it makes a determination based on the record and states written findings and conclusions.
The protester is represented by Jason A. Blindauer of Blindauer Law PLLC. The intervenor, Culinary Depot, Inc., is represented by Meghan F. Leemon and Emily A. Reid of PilieroMazza PLLC. OHA Administrative Judge Christopher Holleman issued the decision.
Pub K obtained this decision in this format from Stan Hinton.