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Disqualified Small Business Could Not Challenge New Award

A protester lacked standing to contest a contract award for program management services, according to the Court of Federal Claims, because the procurement was set aside for service-disabled veteran-owned small businesses, and the Small Business Administration determined the protester was not a small business. The contract was initially awarded to the protester. However, in resolving a post-award size protest, the SBA determined the protester "was "other than small," with respect to "the subject procurement and for all revenue based size standards."" SBA's Office of Hearings and Appeals later affirmed the size determination. After the procuring agency canceled the initial contract and awarded the contract to another offeror, the protester filed suit, contending the "attack" on its size was "too late and moot."

No Standing


However, the protester was not an interested party with standing to challenge the new contract award. Under SBA's size regulations, a timely protest "applies to the procurement in question[,] even though a contracting officer awarded the contract prior to receipt of the protest" (SBA 121.1004(c)). Further, an SBA size determination becomes effective immediately and "remains in full force and effect unless and until reversed by [SBA's] OHA" (SBA 121.1009(g)(1)). Once SBA determined the protester was "other than small," the protester was not eligible for an award of a contract of the same or lesser size until it was recertified. Since the protester did not have a substantial chance of receiving a contract award, it could not challenge the award.

Non-Justiciable Decisions


The court also found two OHA decisions affecting the procurement were not justiciable. The protester sought to challenge the OHA decision that affirmed SBA's determination the protester was "other than small," as well as a second that affirmed SBA's dismissal of a protest of the ultimate awardee's size status. The protester did not appeal its size determination to the OHA until after award was made to the ultimate awardee, so as a matter of law, a presumptively valid contract was created and the court could not invalidate the contract. (Taylor Consultants, Inc. v. U.S., FedCl, 53 CCF 79,188)






 






 

 

(The news featured above is a selection from the news covered in the Government Contracts Report Letter, which is published weekly and distributed to subscribers of the Government Contracts Reporter. )

     
  
 

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