Appeal of the agency’s size determination is granted, where the area office erroneously concluded that the contracting officer required offerors to recertify their size status for a task order award, despite strong evidence to the contrary, including the CO’s statement otherwise, the failure of the solicitation to incorporate prescribed language for a recertification request, the CO’s failure to reject any proposal for failing to include a recertification, and the protester’s own failure to recertify its size. Because no recertification was required, OHA found the original protest should have been dismissed as untimely and that the awardee’s size certification for the underlying IDIQ contract should hold.
Alliant Solutions Partner LLC appealed the SBA area office’s determination that it was not a small business, arguing that offerors were not required to recertify their size for the task order at issue, and therefore the area office should have dismissed the protest as untimely. Protester DNT Solutions LLC also appealed, challenging the area office’s conclusion that the task order was not a small business set-aside, and therefore ASP remained eligible for award.
The General Services Administration’s Federal Systems Integration and Management Center issued a task order for database and middleware services. The solicitation made several references to small business certifications that offerors were required to provide, but did not specifically state whether the task order was set aside for small businesses. However, during a pre-award Q&A, a prospective offeror asked: A) If the government was requesting that the offeror certify itself as a current ASB prime contract holder at the time of proposal submission or B) if the government was requesting that the offeror recertify its small business size status at the time of the proposal submission? The CO responded that the answer to both questions was yes.
After ASP was identified as the apparent awardee, DNT filed a size protest. The area office dismissed the protest as untimely, because the solicitation did not required offerors to recertify size. The CO also attested that it was not their intent to initiate an official size re-certification for any offeror at the task order level of the procurement, but merely to request that offerors affirm that they met the size standard. DNT appealed to OHA, which vacated the size determination and remanded the matter back to the area office.
OHA explained that the area office improperly accepted the CO’s post hoc assertions that recertification was not required, when the agency appeared to require recertification in its response to a pre-award Q&A. OHA directed the area office to determine whether the answer to the Q&A amounted to a solicitation amendment and whether any actual offerors recertified in reliance on the CO’s purportedly erroneous answer. OHA further found that the area office did not adequately address the CO’s assertion that the solicitation omitted language that would have been included if recertification had been sought. OHA directed the area office to obtain the underlying contract and determine whether it required explicit language for requesting recertification with a task order request.
On remand, the area office sustained the protest, finding that the agency had required recertification. While the parties acted as though recertification were not required—and in fact, DNT itself did not recertify its size status—the area office concluded that the CO’s response to the Q&A suggested that it was. This response was not incorporated into the solicitation and therefore was not explicit, but the area office resolved this ambiguity by concluding that recertification was required. The area office explained that the only use of the small business certification was to affect the best value determination. As the solicitation was limited to Alliant Small Business GWAC holders, the only logical interpretation is that the agency required recertification as a tradeoff consideration. Without a recertification requirement all firms would get the same benefit, effectively making it moot.
However, the area office also concluded that the solicitation was not a small business set-aside, as the solicitation contained no provisions restricting competition only to small businesses. The area office explained that the fact that the procurement was conducted through the ASB GWAC did not automatically render the procurement a set-aside. Furthermore, the solicitation stated that small business status would be considered as a part of the best value determination, thereby suggesting that large businesses were not barred from competing.
On appeal, ASP argued that the agency did not require recertification. In support, ASP noted that all parties behaved as if recertification were not required; that the CO’s response to the Q&A was never incorporated into the TOR; and that any recertification request was, at a minimum, not explicit. ASP also noted that the contemplated best value tradeoff would take into consideration offerors’ participation in various SBA small business programs, and therefore the request for certification information had bearing on the evaluation even without a recertification requirement.
ASP also argued the area office erroneously relied on the CO’s response to the Q&A. Despite its finding that the Q&A was not incorporated into the solicitation, the area office nonetheless found the response binding. ASP noted the CO made clear the response was not correct and that he did not intend to request recertification. ASP alleged the area office erred in suggesting that a recertification request need not be explicit, and reminded OHA that DNT did not recertify its offer, even though it now argued that recertification was required.
In its appeal, DNT argued the area office incorrectly determined the task order was not set aside for small business and erroneously found that DNT did not recertify its size. DNT argued that the fact that GSA required recertification is a strong indication that the procurement was a set-aside. DNT also noted that none of the parties questioned whether or not the procurement was a set-aside. Regarding its recertification, DNT noted that its submission included a screenshot of its then-current SAM Representations and Certifications showing that it is small for the relevant NAICS code. Because the solicitation did not require any specific wording or method of recertification, DNT argued that this submission was reasonable and compliant.
In response, SBA maintained the solicitation stated that GSA would consider new size certifications in the best-value analysis, rather than restricting competition only to small business. Therefore, the solicitation was not a set-aside, even though recertification was required. SBA relied on the solicitation’s use of the word “certification” to support its determination. When the solicitation asked offerors to provide certifications, this triggered the exception to recertification requirements for holders of IDIQ contracts. SBA explained that there is no distinction between old and new certifications; there is only a certification. Because the solicitation asked for certifications, offerors were required to recertify their size status as of the date of their proposal submissions.
OHA agreed with ASP that the solicitation clearly did not request or require recertification. OHA noted that the area office made numerous factual findings indicating the solicitation did not require recertification, and yet concluded the opposite in the size determination. For example, the area office noted that solicitation contained no language calling for a “new” size certification or a recertification. Further, to the extent there was a requirement, the area office found it was not explicit and, in fact, was not stated anywhere in the solicitation. The parties conducted themselves as if recertification was not required and the CO explicitly stated it was not.
Under a long-term, multiple-award contract, the decision to request recertification for a particular order is reserved to the discretion of the CO, and therefore OHA afforded considerable weight to the CO’s statement and his actions during the procurement. The parties’ offers were not rejected for failure to recertify and therefore it is logical to find the CO did not require it. SBA regulations state that a recertification request must be made explicitly, and the area office found this was not the case.
On remand, OHA directed the area office to determine if the Q&A was incorporated into the solicitation, and the area office found it was not. OHA also directed the area office to determine whether the underlying IDIQ required an explicit notice of a recertification request, and the area office found that it did, and that it had not been incorporated into the solicitation. Nonetheless, against this array of evidence, the area office concluded recertification was required. OHA found this determination flawed.
While the original decision rejecting the size protest as untimely had failed to account for the ambiguity in the agency’s communications nor all the contextual evidence, such as the underlying IDIQ, OHA found the new size determination failed to draw the right conclusions from the surrounding factual circumstances. Viewing the record as a whole, OHA found it evident the CO did not request recertification.
Because the agency did not ask offerors to recertify their size, DNT’s protest was untimely.
DNT Solutions LLC is represented by Richard B. O’Keeffe, Jr. and Cara L. Lasley of Wiley Rein LLP. Alliant Solutions Partner LLC is represented by Rebecca E. Pearson and Christopher G. Griesedieck, Jr. of Venable LLP. The government is represented by Sam Q. Le, Office of General Counsel, Small Business Administration.
