OHA Holds Faulty Agency Guidance Does Not Excuse Untimely Protest

The appellant argued its late size protest should be excused because it was misled by communications with the contracting officer (CO). OHA held that guidance from a procuring agency, even if faulty, does not override or alter the regulatory size protest process.

Size Appeal of Tribologik Corp., SBA No. SIZ-6353 (2025)

• Appeal – The appellant challenged the dismissal of its size protest as untimely and nonspecific. The appellant claimed the area office erred because it did not consider the communications between the appellant and the CO in which the CO expressed that the appellant “[didn’t] need to make a formal request” for a size investigation. Its delay in filing a size protest should be excused because it reasonably believed, based on conversations with the CO, that the CO would undertake her own investigation of VPS’s size.
• Decision – OHA ruled that the appellant’s argument failed because the procedures governing size protests are outlined in federal regulations. OHA has held, and continues to hold, that guidance from a procuring agency—even if faulty—”cannot override or alter” the regulatory size protest process.

Nicholas Reich of Tribologik Corporation appeared for the appellant. Denise C. Clarke of U.S. Maritime Administration appeared for the government.

— Case summary by Joshua Lim, Assistant Editor.

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