Appellant Argued CO Was Required to Recertify Size at the Task Order Level. OHA Agreed.

The appellant argued the awardee had to be re-certified as a small business to qualify for a task order. The SBA Area Office denied the protest, opining that the contracting officer (CO’s) had discretion to decide whether recertification was required at the task order level. But OHA sided with the appellant, granted the appeal, and remanded for a new size determination.

Size Appeal of Future Technologies, Inc., SBA No. SIZ-6318

• Protest – The appellant filed a size protest. The appellant noted the instant task order request for proposals (TORFP) was restricted to small business. The appellant contended that 13 C.F.R. § 121.404(a)(1)(i)(A) mandated that contractors re-certify their size status at the task order level even though the contractor was initially certified for the IDIQ contract. The appellant reasoned that if the awardee had re-certified its size for the task order, it would no longer qualify as small.
• Area Office – The Area Office denied the protest, reasoning that, “OHA case law has consistently held both a CO’s choice to require recertification.” Because the CO did not request recertification for the task order, none was needed. The appellant appealed, insisting that the Area Office committed clear errors that would allow COs to circumvent SBA regulations.
• Decision – OHA sided with the appellant. Under 15 U.S.C. § 632(w)(2)(A), the awardee subjected itself to the recertification requirement once it submitted its bid. Since the recertification requirement occurred automatically by operation of law, it was irrelevant whether the CO requested recertification or not. Therefore, the appeal was granted, and the matter was remanded for a new size determination.

Elizabeth N. Jochum and Shane Hannon of Blank Rome LLP appeared for the appellant. Joel R. Nied of Price Benowitz LLP appeared for the intervenor.

— Case summary by Joshua Lim, Assistant Editor

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