Size Protest Untimely
On October 9, 2018, the SBA Office of Hearings and Appeals ("SBA OHA") dismissed a size protest as untimely. When a size protest is sent to the Contracting Officer, it is then transmitted to the SBA Area Office. The SBA Area Office has 15 days to issue a size determination. If the contractor does not agree with the size determination, the contractor can file an appeal to SBA OHA within 15 days after receipt of the size determination.
In this case, the Area Office issued a determination finding that the contractor was not a small business. But, the Contracting Officer told the contractor that the contract would not be terminated because the SBA Area Office did not issue a size determination within 15 calendar days. Give this assurance, the contractor saw no need to appeal the size determination.
Unfortunately, the Contracting Officer later flipped flopped and said he would terminate the contract because the SBA Area Office determined that the contractor was not small. The contractor filed an appeal with SBA OHA. SBA OHA, however, dismissed it because it was not filed within the 15-day deadline. SBA OHA held that it had no other choice:
An appellant must file a size appeal within 15 calendar days after receipt of the size determination. 13 C.F.R. § 134.304(a). Filing is the receipt of the appeal at OHA. 13 C.F.R. § 134.204(b). Here, Appellant concedes that it received the size determination no later than August 24, 2018. Appeal at 4. Appellant did not file its appeal until September 26, 2018. Appellant concedes it filed its appeal after the expiration of the deadline. Appellant pleads in mitigation of its actions the long time the Area Office took to issue the size determination and the CO's initial assurance that MSC would not terminate the award. Neither of these factors is relevant here. The regulation is clear; a size appeal must be filed within 15 days of receipt of the size determination. There are no exceptions. There is nothing in the regulation which permits an appellant to rely upon the word of a procuring agency to extend the time limit for filing a size appeal. Indeed, the regulation prohibits OHA from extending the deadline for filing an appeal. 13 C.F.R. § 134.202(d)(2)(i)(A). The fact that the CO initially indicated MSC would not terminate the award does not alter the time limit Appellant faced after receiving the size determination. Appellant relied upon the CO's word to its detriment. The regulation mandates that I dismiss this appeal.
The lesson learned here is do not rely on the Contracting Officer's promise not to terminate the contract. If faced with a adverse SBA Area Office size determination, appeal it within 15 calendar days if you disagree.
