Appeal of the SBA area office’s dismissal of a size protest is denied, where the protester refused to extend its offer when the agency requested more time to evaluate proposals, and therefore removed itself from the competition and had no standing to challenge the awardee’s size.
AeroSage LLC appealed the SBA area office’s dismissal of its protest challenging the size of Foster Fuels Inc., arguing the area office incorrectly concluded that AeroSage lacked standing to protest.
The case involved a Defense Logistics Agency RFP for the delivery of petroleum distillates and residuals. The RFP listed eleven items as set-asides for service-disabled veteran-owned small businesses and stated that the remaining items were issued under full and open competition. The contracting officer assigned NAICS code 324110, Petroleum Refineries, with a corresponding size standard of 1,500 employees.
AeroSage and Foster Fuels submitted timely offers. During the process, the CO asked AeroSage to extend its offer because DLA had not yet completed its evaluation of proposals. AeroSage declined, stating that it believed the procurement was improper and that certain requirements of the RFP were unreasonable, and urging DLA to cancel the RFP. The agency declined to cancel the RFP, and eventually awarded Foster Fuels 12 contract line items, none of which were SDVOSB set-asides. Because it had not extended its offer, AeroSage received no awards.
AeroSage then filed a size protest, arguing that Foster Fuels is not a small business, because it is dominant in the industry; will not provide fuel from a domestic source; and likely underreported its revenues and employees, and failed to disclose affiliates. The area office dismissed the protest for lack of standing, because its offer had expired and would therefore not be in line for award should the protest prove successful.
On appeal, AeroSage argued that because the procurement was mostly unrestricted, any offeror may initiate a size protest under 13 C.F.R. § 121.1001(a)(7), if the challenged party represented itself as a small business. AeroSage also argued it was never formally notified that the agency excluded it from the competition.
OHA agreed in part. Because the awards in question were unrestricted, OHA found that the area office should have applied § 121.1001(a)(7), rather than the portion of the regulation related to procurements that are partial or total small business set-asides. However, OHA found that AeroSage had removed itself from the competition when it expressly refused to extend its offer. Because AeroSage discontinued its participation in the procurement, OHA agreed it lacked standing to protest.
AeroSage LLC is represented by its president, David M. Snyder.
