To have standing to file a size protest, a company must (generally) have submitted an offer on the procurement that was not “eliminated from consideration for any procurement-related reason.” In other words, the company must be an actual bidder that was not excluded from competition.
What happens to standing, though, if the agency goofs in its award decision?
This issue arose in a recent decision from SBA’s Office of Hearings and Appeals. In a nutshell, Avant-EDGE Solutions protested Reliable Pharmaceutical Returns’ size, alleging ostensible subcontractor affiliation. The Defense Health Agency originally told Avant-EDGE that its proposal was rated as technically acceptable. But when the SBA asked the agency whether Avant-EDGE’s proposal was eliminated from competition, the contracting officer said that it was.
According to the contracting officer, Avant-EDGE’s pricing departed from the Solicitation’s structure. The agency therefore considered Avant-EDGE’s bid to be a prohibited alternate proposal, and excluded it from competition. The contracting officer said that the award notification letter—which told Avant-EDGE that it was technically acceptable—contained a clerical error, and that the proposal wasn’t actually acceptable.
Given this finding, the SBA Area Office dismissed Avant-EDGE’s protest due to a lack of standing.
Unsurprisingly, Avant-EDGE appealed the Area Office’s decision. But to no avail: even though the contracting officer goofed, Avant-EDGE still lacked standing.
Avant-EDGE argued that the agency’s revised award decision was, in effect, an improper reevaluation of its proposal. OHA reiterated that it “lacks jurisdiction over disputes arising from an agency’s conduct of the procurement.” Instead, those disputes must be brought through a bid protest—not a size protest or appeal.
OHA denied Avant-EDGE’s appeal.
This is a tough result for Avant-EDGE. But, in my opinion, it was the correct outcome: because it was technically unacceptable, Avant-EDGE lacked standing to protest Reliable Pharmaceutical’s size under the procurement. And though the contracting officer’s erroneous award decision was unfortunate, any flaw in that decision must be protested in the proper forum.
If you have any questions about SBA’s regulations or size protests, please reach out.