Government Contracts Monitor

Do Your Homework Before Filing the Size Protest, Not After

December 16, 2013

By: Eric Whytsell

The recent case of Ametek SCP, Inc., SBA No. SIZ-5518 (Dec. 4, 2013) underscores the importance of presenting sufficient evidence in support of a size protest. As the decision by the Small Business Administration (SBA) Office and Hearings and Appeals (OHA) makes clear, you will not have the opportunity to go back and supplement later.

Ametek involved a partial small business set-aside for the procurement of various connectors and receptacles under North American Industry Classification System (NAICS) code 335931, with a corresponding size standard of 500 employees. After the Contracting Officer (CO) notified unsuccessful offerors that he had awarded the contract for the small business items to Seacon Phoenix, LLC (Seacon), Ametek timely filed a size protest against Seacon. That protest stated:

We have reason to believe Seacon Phoenix, LLC is not a small business under the size standard ... and request an investigation to confirm the Small Business status of Seacon Phoenix, LLC. If it is determined that Seacon Phoenix, LLC is a large business, we would like to request reissue of the solicitation so that only small businesses may be awarded line items that are set aside for small businesses.

The CO referred the size protest to the SBA Office of Government Contracting, Area I (the “Area Office”), which dismissed it as non-specific. Ametek appealed the decision and supported its original assertion with an August 2013 magazine article stating that Seacon has 800 employees.

OHA held that the Area Office properly dismissed the size protest, noting that the applicable regulation provides:

A protest must include specific facts. A protest must be sufficiently specific to provide reasonable notice as to the grounds upon which the protested concern's size is questioned. Some basis for the belief or allegation stated in the protest must be given. A protest merely alleging that the protested concern is not small or is affiliated with unnamed other concerns does not specify adequate grounds for the protest.

13 C.F.R. § 121.1007(b) (emphasis added). The decision also notes that an Area Office must dismiss protests that are not sufficiently specific. 13 C.F.R. § 121.1007(c). Here, the protest lacked the necessary specificity because it provided only the bare allegation that Seacon, the protested concern, is not small. Moreover, as OHA makes clear, Ametek cannot cure that lack by submitting new information with its appeal. The specifics and supporting evidence must be submitted with the size protest itself.

From one perspective this decision is a blinding glimpse of the obvious: if you want to pursue a size protest, make sure you find specific facts to support your arguments and include them in the protest!

Eric Whytsell is the attorney responsible for the content of this article.

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