Size protests help protect the integrity of small business contract awards. But SBA’s regulations have strict deadlines to file a size protest: a protest must generally be filed within five business days from when the disappointed offeror is notified of the awardee’s identity.
This regulation sounds simple enough. But a recent SBA OHA case showed that isn’t always the case. Reaching its decision, the OHA provided helpful guidance on size protest timeliness.
The underlying facts of the OHA’s decision in Glen/Mar-Hensel Phelps Joint Venture, SBA No. SIZ-6079 (Nov. 6, 2020) show some of the issues that can arise when determining timeliness.
There, the National Guard Bureau issued a solicitation for construction work at Joint Base Pearl Harbor-Hickam, as a total small business set-aside. On August 3, the agency notified Glen/Mar-Hensel Phelps that another company (Pacific Federal Contractors) was the apparent awardee.
The notice was sent from Hawaii late in the afternoon. Because it was sent to the Joint Venture’s office in Oregon, however, the Joint Venture did not receive the notice until after hours.
The Joint Venture filed a size protest on August 11. The SBA Area Office dismissed the protest as untimely, however, saying it should have been filed on August 10. The Area Office counted August 4 as day one; five business days, therefore, would land on August 10.
The Joint Venture appealed this dismissal. The Office of Hearings and Appeals agreed with the Joint Venture and provided two helpful points when assessing size protest timeliness:
First, “notification occurs when a protester actually receives the notification and thereby learns the identity of the apparent awardee.”
OHA considered it “immaterial” that the agency sent the notice during normal business hours in Hawaii or that the solicitation expressed deadlines under Hawaii Standard Time. Given the time zone difference, the Joint Venture did not receive the August 3 notice until after hours. Thus, the Joint Venture received the notice on August 4.
Second, the “five-day window for filing a size protest began on the business day after Appellant received the notification.” In other words, the day the notification was received does not count as one of the five days. In this case, August 5 (the day after notice was received) counted as day one, and August 11 was day five.
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Knowing the SBA’s protest timeliness rules certainly helped the Joint Venture in this appeal. But as this decision shows, those rules are not always straightforward. And, even still, SBA’s five business day deadline means that disappointed offerors must act quickly to challenge a would-be offeror’s size.
If you have any questions about small business size issues—including protests—please reach out.