Government Contracts Monitor

SBA Reminds Us that Size Protests Must be Sufficiently Specific

April 28, 2014

A recent decision by SBA’s Office of Hearings and Appeals (OHA) serves as an important reminder that size protests must be sufficiently specific to survive dismissal. Jenn-Kans Disposal Service, No. SIZ-5549 (April 11, 2014). While this standard isn’t new, the decision provides important guidance on the kinds of information a protester must include in order to pass muster. It also serves as a warning to protesters to ensure all relevant information is included in the initial protest. There’s no second bite at the apple.

On January 28, 2014, the Air Force selected RPJ Waste Services (“RPJ”) as the awardee for a small business set-aside contract for non-hazardous solid waste refuse collection, transportation, and disposal services at Dover Air Force base. Jenn-Kans Disposal Service (“Jenn-Kans”), an unsuccessful offeror, filed a size protest challenging RPJ’s status as a small business. In this protest, Jenn-Kans alleged that RPJ was other than small because of its “collective ownership and possible affiliation with other companies involved in its collective ownership, such as Kent Construction.” The Area Office dismissed the protest as non-specific. Jenn-Kans appealed.

In its appeal, Jenn-Kans attempted to expand on its initial protest by providing additional information about RPJ’s affiliation and common ownership with Kent Construction. Unfortunately for Jenn-Kans, this additional detail came too late. OHA found that the Area Office properly dismissed the protest because SBA’s regulations require size protests to be “sufficiently specific to provide reasonable notice as to the grounds upon which the protested concern’s size is questioned.” Here, according to OHA, Jenn-Kans’s initial protest essentially requested a size determination because of “possible affiliation” that “may cause” RPJ to exceed the size standard. OHA found this allegation to lack the required specificity.

In discussing what was missing from Jenn-Kans’s protest, OHA provided examples of the types of information protesters should include in size protests:

Designation of a particular violation of SBA’s size regulations
Definitive statement that the protested concern is other than small
Facts, documentation or specific information that supports the allegation
Proper notice to the protested concern of the grounds by which its size is being challenged

Finally, OHA rejected the new information Jenn-Kans presented in its appeal finding that Jenn-Kans had ample opportunity to submit this information in its initial size protest but failed to do so. OHA held, “[A]n insufficiently specific protest cannot be cured on appeal by the submission of new evidence.”

The take away: future size protesters should ensure that their initial size protests have all the necessary information, statements, and allegations to be deemed sufficiently specific.

Katie Calogero is the attorney responsible for the content of this article