Federal SBA Size Protest
Sometimes a government contract is awarded to a bidder that has violated the SBA size standard rule. If this is the case, the award can be appealed or protested to the SBA. GAO is not the forum to protest a NAICS size standard.
The NAIC size standard is different for every NAICS code. One must be careful to know the rules and to only state verifiable facts. Hiring a size protest attorney can be beneficial because the legal analysis can be complex. You cannot just state in your protest that you believe two companies are affiliated. You must support your position with factual date. Our lawyers find that many government contractors want to simply allege size standard violations without any data. This approach will more than likely fail.
The SBA area office makes initial size determinations within very tight time constraints (usually within 10 days of receiving a protest). Area office determinations may be appealed to the Office of Hearing and Appeals at SBA headquarters in Washington, D.C. by any of the interested parties.
The goal of a size protest is to join the revenues of the associated contractors in order to violate the NAICS standard.
It is advisable that contractors ensure that they do not unduly rely on a subcontractor or teaming partner to perform the contract. Attention should be paid to using the other contractor’s personnel for key aspects of the solicitation / contract requirement; given the other contractor too much control over the contract; ensure that the awadee was the one that pursued the contract etc.
It is common for contractors to make serious mistakes such as sharing the same office space of a large contractor, relying heavily on the subcontractor’s resourses and giving the sub so much control to generate scrutiny from the government.
Simply having a teaming agreement in place or a subcontract does not in itself cure the problem. The government will dig deeper to examine the true relationship between the parties. This is where the ‘castle’ crumbles. If you are considering teaming or joint venturing with another contractor, you should consider retaining a government contract attorney that can giver concise advice in these matters.
If you need help bringing or defending a size protest, contact our office immediately. You have short deadlines.
