Government Contracts Monitor

Size Protests Must Be Specific and Factually Supported, and Include Supporting Documentation; Deficiencies Cannot Be Cured on Appeal

May 17, 2017

SBA’s Office of Hearings and Appeals (OHA) recently reiterated an important pleading sufficiency warning that we have discussed previously, most recently here – namely, that, while informal, size protests must be sufficiently specific and factually supported, and protestors should include supporting documentation with their protests.

Specifically, in Size Appeal of Nugate Group, LLC, SBA No. SIZ-5821, a protestor alleged that it “believed” that the awardee exceeded the applicable size standard, stating that “Data pulled from fpds.gov demonstrates contracts with federal agencies that exceed the 7.5 Million size standard, and does not disclose revenue from private sources.” Unfortunately, however, the protestor did not explain this rather cryptic assertion. Moreover, the protestor failed to include any documentation supporting the same. The Area Office sua sponte reviewed information in FPDS-NG in an effort to substantiate protestor’s allegations. However, in the absence of more information from protestor, the Area Office was unable to determine that the protested concern’s average three-year revenues for the relevant period exceeded the specified size standard. The Area Office therefore dismissed the protest for lack of specificity.

The protestor appealed to OHA, and attempted to submit, for the first time on appeal, and without a motion seeking leave to file the same, an 80-page print-out from FPDS, as well as a 24-page spreadsheet analyzing contracts previously awarded to the challenged awardee.

OHA, not surprisingly, denied protestor’s untimely effort to supplement the record. OHA noted that the protestor had not filed a motion seeking leave, nor provided any reason establishing good cause or excusing protestor’s failure to have timely submitted such readily available information to the Area Office. OHA reiterated that “an insufficiently specific protest cannot be cured on appeal by the submission of new evidence.”

Turning to the merits, OHA affirmed the Area Office’s dismissal, and denied the appeal. First, OHA concurred that the protest included no specific facts. The protest thus did not satisfy the requirements of 13 C.F.R. § 121.1007(b), which explicitly states that “[a] protest must include specific facts.” (Emphasis in original.) That provision goes on to state that “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 … does not specify adequate grounds for the protest.” Second, OHA stated that the protestor failed to include the required documentation that it alleged would have supported its protest. In this regard, the same, above-cited, regulation states that “[w]here materials supporting the protest are available, they should be submitted with the protest.”

The bottom line is that, while size protests continue to be a valuable, and low-cost means, of challenging a competitor’s size, an erstwhile size protestor needs to do its homework up-front, and state, and factually support, sufficiently specific protest grounds that the Area Office can understand and that provide adequate notice to the protested concern. The protestor further needs to include any supporting documentation with its protest. The protestor will not be able to cure any initial pleading failures later on appeal.