Recently the SBA Office of Hearings and Appeals (OHA) rejected the theory that a GSA Schedule order should be considered a “contract” under size protest timeliness rules. OHA stated that SBA’s existing rules distinguish between contracts and orders, and rarely permit size protests of individual orders.
OHA’s decision involved a GSA request for quotations for transition ordering support assistance. The RFQ was issued under the GSA Professional Services Schedule and set aside for SDVOSBs under NAICS code 541611 (Administrative Management and General Consulting Services), with a $15 million size standard.
After notice of award, one of the unsuccessful offerors filed a size protest, stating that the awardee was not small under the applicable NAICS code size standard.
Pursuant to 13 C.F.R. 121.1004, there are three times that a size protest may be timely filed in connection with a long-term contract (such as a GSA Schedule contract). (1) size can be protested when the long-term contract is initially awarded; (2) size can be protested at the time an option is issued; and (3) size can be protested in response to a contracting officer’s request for size recertifications in connection with an individual order. In all cases the size protest is due within five business days of the event in question.
The awardee’s contract was in the first option period so the option had been exercised before the size protest had been filed and GSA stated that no recertification had been required. As a result, the SBA Area Office dismissed the size protest as untimely.
The protestor filed a size appeal with OHA. They argued that “a task order fits the definition of a contract,” based on the contention that the Supreme Court defined an order as a contract in Kingdomware.
OHA stated that the protestor’s “reliance on Kingdomware is erroneous.” OHA stated that the Kingdomware decision “does nothing to disturb SBA’s regulatory scheme for establishing the times at which size protests may be placed against awards for long-term contracts.” OHA denied the appeal and affirmed the dismissal of the size protest.
So the bottom line is that the Kingdomware decision is still making waves in many related areas, but it does not affect the timeliness rules for a size challenge and a GSA order is not considered a contract.