GAO Dismissed Post-Award Protest After the Agency Took Corrective Action. Why Didn’t OHA Dismiss a Size Protest Arising from the Same Award?

GAO dismissed a protest as academic because the agency intended to take corrective action. As a result, SBA dismissed the protester’s concurrent size protest because the contracting officer told SBA the corrective action involved cancelling the award. However, OHA found that the agency had told GAO that the agency intended to amend the RFQ. This would require SBA to suspend the protester’s size protest rather than dismiss. Thus, OHA vacated and remanded.

• Background – The agency, DISA, released a procurement to remove, procure, install, program, and test equipment for audio/video equipment and materials in Pearl Harbor, Hawaii. The protester filed a size protest arguing the prospective awardee failed to comply with the nonmanufacturer rule. On top of this, the protester filed a GAO protest.
• SBA Dismissal – SBA dismissed the protester’s appeal after the CO confirmed cancellation of the award. SBA regulation, 13 CFR § 121.1009(a)(2)(ii), requires that SBA dismiss a size protest as moot if a GAO decision results in a cancellation of an award. OHA ruled this would be the proper ruling IF the award was indeed cancelled.
• Inconsistent Action – In this case, the record was inconsistent as to the agency’s action. The CO informed SBA that the award was cancelled, but the agency informed GAO that it was instead amending the RFQ and would reevaluate proposals to make a new award. According to 13 C.F.R. § 121.1009(a)(2)(iii), this latter action would call for suspension of the protest.
• Conclusion – Because of the unclear record, OHA vacated the size determination and remanded the matter to SBA. SBA was to determine whether the award was cancelled or subject to a stop work order pending the reevaluation of proposals.

Mike Winters, President, appeared for MissionAnalytics, LLC. Roy Cabibbo, Manager, and Timothy Swindall, Executive Director, appeared for ModTech Solutions.

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