Size Protest Timely Even Though Filed Well After Original Award
In negotiated procurements, a size 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 protester of the identity of the prospective awardee.” 13 C.F.R. § 121.1004(a)(2). Thus, if you are considering a size protest, it is imperative that you prepare ahead if at all possible.
In a recent case , Size Appeal of Global Dynamics, LLC, SIZ-5979 (December 17, 2018), the SBA Area Office rejected a size protest as untimely because it was not filed within 5 business days after the original award to GiaCare and MedTrust JV, LLC ("GiaMed"). The Office of Hearing and Appeals held the SBA was wrong.
Here, the agency took corrective action after original award to GiaMed in response to a GAO bid protest. The agency cancelled the award to GiaMed, reopened discussions and obtained revised proposals. The agency ultimately awarded the contract to GiaMed again. The protester then filed a size protest within 5 days of this second award.
OHA held that the 5-day period to file a protest started after the second award, not the first. OHA noted that "an award notification will not trigger the deadline for filing a size protest if the procuring agency subsequently takes actions that are inconsistent with that award notification." Thus, because the agency had cancelled the first award and obtained revised proposals, these actions demonstrated that the “evaluation process was not complete” and that the original award notification “was no longer valid.”
I find it hard to understand why the SBA rejected the protest as untimely in the first place. After all, once the agency cancelled the first award and rendered a new award decision, it opened the door to a size protest within 5-days of that new award.
Size Appeal of Global Dynamics, SIZ-5979 (December 17, 2018)
