Size Protest Filed After VA Took Corrective Action is Untimely
In the size appeal of Navarre Corporation, SBA Siz-5492 (July 24, 2018), the SBA Office of Hearing and Appeals ("OHA") dismissed a size protest as untimely. It was filed over a year after the VA awarded the contract to Owl, Inc. During that time, the VA took corrective action twice in response to GAO protests challenging the award to Owl. Each time, the VA decided that the award should still go to Owl. After the last corrective action, Navarre Corp. filed a size protest.
OHA ruled that the size protest was untimely because the VA never cancelled the award to Owl. It just suspended performance of Owl's contract while the VA fought the GAO protests. OHA held that that the size protest should have been filed within 5 days after the contract award over a year ago:
SBA regulations stipulate that, on a negotiated procurement such as found here, “[a] protest must be received by the contracting officer prior to the close of business on the 5th day, exclusive of Saturdays, Sundays, and legal holidays, after the contracting officer has notified the protestor of the identity of the prospective awardee.” 13 C.F.R. § 121.1004(a)(2). Interpreting this rule, OHA has consistently held that the regulation does not contemplate an exception if corrective action occurs after award notification. (citations omitted) Here, in response to the bid protest litigation at GAO, VA undertook corrective action, amended the RFP, and reevaluated proposals. Importantly, though, VA never cancelled or terminated the original award to Owl, instead opting to suspend performance of the contract. It follows, then, that in order to have been timely, any size protest must have been filed within five business days after the original award notification on March 15, 2017. Appellant's second size protest was filed more than a year later, on May 1, 2018, and thus was plainly untimely.
The VA's strategy worked here. By suspending performance for over a year while it took corrective action in response to the GAO protests, the VA did not have to award the contract again and avoided a possible size protest. Keep this into consideration when dealing with the VA in the future. It might be beneficial to insist that the award be cancelled as part of the VA's corrective action, depending on whose side you are on.
