Task Order Solicitation Didn’t Require Small Businesses to Recertify. But Did a Recent Acquisition Impose a Regulatory Recertification Requirement?

A disappointed bidder filed a size protest in connection with a task order award. The SBA Area Office dismissed the protest. SBA reasoned when, as here, a size protest relates to a task order under a long term contract, the protest is only viable if the agency requested recertification for the task order. Here, the agency had not requested recertification. On appeal, the protester argued even if the agency didn’t request recertification, the awardee had been acquired by another company and thus had a separate duty to recertify under SBA’s regulations. OHA held that while SBA regulations require recertification after an acquisition, post-acquisition recertification is not the equivalent of an agency’s request to recertify in connection with a task order. The protest was still untenable.

Size Appeal of Computer World Services Corporation, RE: VariQ-CV JV, LLC, SBA SIZ-6208

Background

The Department of Energy issued a task order request to holders of the Chief Information Officer—Solutions and Partners 3 (CIO-SP3) contract. The CIO-SP3 is a governmentwide acquisition contract for small businesses. The task order was set aside for HUBZone small businesses. The solicitation did not contain specific language directing offerors to recertify their size for the task order.

After reviewing proposals, the agency selected VariQ for award. VariQ was SBA-approved mentor-protégé joint venture. An unsuccessful offeror, Computer World Services Corporation, filed a size protest. Computer World argued before receiving the task order, one of VariQ’s partners had been acquired by another large multinational company. Computer World argued in light of the acquisition, VariQ no longer had a valid mentor-protégé relationship.

The SBA Area Office dismissed the protest as untimely. SBA reasoned this procurement arose of CIO-SP3, a long term contract. A size protest may only be filed at three points in the life of a long term contract: (1) after initial award, (2) after exercise of an option, or (3) or within five days of award of a task order if the CO requires recertification of size in connection with the order. Here, the CO had not required recertification. Computer World had not filed a protest after issuance of the underling CIO-SP3 contract. Thus, the protest was untimely.

Computer World appealed to SBA’s Office of Hearings and Appeals.

Analysis

Task Order Solicitation Did Not Require Recertification

OHA agreed with the Area Office: CIO-SP3 was a long term contract. Computer World could only file a size protest in connection with CIO-SP3 if the CO sought recertification for the task order. Here, the CO hadn’t requested recertification. The Area Office correctly found the protest untimely.

Regulatory Requirement to Recertify

Computer World argued even if the CO didn’t request recertification VariQ had a regulatory requirement to recertify. Computer World reasoned under 13 C.F.R § 121.404(g)(2)(i), a small business must recertify its size after a merger or acquisition. But OHA rejected this argument. It’s well-settled that § 121.404 does not create an exception to SBA’s protest timeliness rules. A requirement to recertify as the result of a merger is not the equivalent of CO’s request to recertify in connection with a task order.

Computer World is represented by Matthew T. Schoonover, Matthew P. Moriarty, John P. Mattox, II, and Ian P. Patterson of Schoonover & Moriarty LLC. VariQ is represented by Isaisas “Cy” Alba, IV and Daniel J. Figuenick, III of PilieroMazza PLLC.

–Case summary by Craig LaChance, Senior Editor

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