SBA decision dismissing a size protest for lack of specificity is vacated. The protester alleged the awardee of small business set aside was overly reliant on an ostensible subcontract. The SBA Area Office dismissed the protest for lack of specificity because the protest did not identify the alleged ostensible subcontract. OHA vacated the Area Office decision. The failure to name an alleged ostensible subcontractor does not make a protest non-specific.
Background
The Army awarded a contract for portable showers to Althios Anestic, LLC. The contract was set aside for small businesses. An unsuccessful offeror, Critical Contingency Solutions, filed a size protest, alleging Althios was overly reliant on an ostensible subcontractor.
The SBA Area Office dismissed the protest. The Area Office reasoned that a size protest must include specific facts. In this case, Critical Contingency’s protest did not identify the alleged ostensible subcontractor that thus lacked sufficient specificity. Critical Contingency appealed to the SBA’s Office of Hearings and Appeals.
Legal Analysis
OHA found the Area Office erred. A protector’s inability to name an alleged ostensible subcontractor does not render the protest non-specific. The purpose of the specificity regulations is to ensure a protested concern has notice of the grounds of the protest and can craft a meaningful response. But in an ostensible subcontractor protest, the allegations turn largely on the protested concern’s proposal. Thus, the challenged firm is able to prepare a meaningful response even if the ostensible subcontractor is not named.
Critical Contingency is represented by Matthew T. Schoonover, Matthew P. Moriarty, John M. Mattox, and Ian P. Patterson of Schoonover & Moriarity LLC. Alithos is represented by Daniel Needham of the Law Office of William Igbokwe.
