Under SBA (Small Business Administration) regulations, a size protest of a sealed bid procurement is timely if it is received by the contracting officer prior to the close of business on the 5th day, exclusive of weekends and legal holidays, after bid opening (see 13 CFR 121.1004(a)(1)). An untimely protest will be dismissed (see 13 CFR 121.1004(d)).
Last April, VA (Veterans Affairs) issued an invitation for bids for a construction project. The procurement was set aside for service-disabled veteran-owned small business concerns. In May, VA publicly opened bids and determined that a company named C3T was the low bidder.
Subsequent to award, an unsuccessful bidder for the construction project, American Patriot Construction Services files a size protest with the contracting officer challenging C3T's status as a small business. American Patriot alleged that C3T was affiliated with several other concerns through common ownership. The contracting officer forwarded the protest to the SBA Office of Government Contracting (OGC).
The OGC dismissed American Patriot's protest as untimely as it had not been submitted to the contracting officer with five business days after bid opening.
American Patriot was not going to take that dismissal lying down so it filed another appeal, this time to SBA's Officer of Hearings and Appeals (OHA). American Patriot maintained that OGC erred in applying the SBA rules. It should have applied FAR 33.1 which gives it 30 days to file a protest. American Patriot argued that it did not file a challenge to the legality or ability of C3T to bid the solicitation, but rather the legality of awarding this contract to C3T based upon misrepresentation of business size in its Representations and Certifications. American Patriot asserted that C3T illegally obtained the contract by falsely claiming to be a small business and therefore, the contract should be terminated.
OHA affirmed that the size appeal was properly dismissed and gave no credence to the argument that FAR, rather than the SBA rules, applied to the current situation.
Unsuccessful bidders must realize that five days from bid opening rolls around very fast and if there is to be a size protest, they need to act very quickly.