In Size Appeal of AeroSage, LLC, SBA No. SIZ-5883 (2018)  The SBA Office of Hearings and Withdrawing from Competition Means There is a Lack of Standing to Bring an SBA Size ProtestAppeals (OHA) ruled that the SBA Area Office correctly dismissed the size protest for lack of standing because, by refusing Contracting Officer’s request to extend offer acceptance period, the small business firm had removed itself from competition)

In AeroSage, the company chose not to extend its offer acceptance period in the solicitation. By doing so, it created the legal effect of removing itself from the bidding competition.

Therefore, there was a lack of standing to bring an SBA size protest. When the SBA dismissed the size protest, the contractor filed an appeal to SBA OHA.

Who Can Bring an SBA Size Protest?

Under 13 CFR 121.1001(a)(7), “[a]ny offeror” may bring a size protest on an unrestricted procurement, provided that the challenged firm represented itself as a small business concern. Size Appeals of Pacific Power, LLC, SBA No. SIZ-5520, at 5 (2013). 

When a small business offeror declines, in writing, an agency’s request to extend its offer acceptance period, the offeror has unequivocally removed itself from the competition. Western Star Hospital Authority, Inc., B-414198.2, B-414198.3, June 7, 2017, 2017 CPD ¶ 183 at 18.

  • • Companies simply cannot file a lawsuit if there is lack of standing
  • • When you file SBA Size protests, your company should not have been eliminated from competition for reasons other than size.

When is There Lack of Standing?

Just as for any case, a litigant must be an interested party and have standing to file an SBA size protest. The SBA Office of Hearings and Appeals made it clear that because Appellant would have to be an offeror to bring a size protest, and it declined the agency’s request to extend its offer, the contract lacked standing to bring the size protest. 

For small businesses that e are interested in filing an SBA Size protest, you must always look to see if you are still in the list of considered offeror’s. For example, if you were eliminated for reasons other than size, you may also lose standing. What if your company was not next in line for the contract, would you have the standing to bring an SBA size protest. Many GAO court decisions would say that there is a lack of standing to file a protest. What the SBA says could be different.

Tip: Even though it was the SBA that dismissed the above case for lack of standing, the protested small business could still file a motion to dismiss for lack of standing and get the case thrown out that way.

What is a potential government contractor supposed to learn from this case? A potential federal government contractor should extend its offer acceptance period if it wishes to protest the procurement with an SBA Size protest in the event it does not receive the award. 

Speak to an Attorney & Get a Free Initial Consultation

For immediate filing or defending an SBA Size Protest, call Watson & Associates, LLC lawyers at 1-866-601-5518.