Avoiding Common Bid Protest Mistakes, Part 6: Bid Protests vs. Size/Status Protests

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This will be the final installment of our series on the most common protest mistakes. So far, we have covered pre- vs. post-award protests, the impact of required debriefings on protest deadlines, competitive range protests, best practices for debriefings, and the limitations on task order bid protests. Now for our final topic: the differences between bid protests and size/status protests. 

This is a common cause for confusion. We frequently hear from our small business clients that they want to file a “bid protest” because one of their competitors for a set-aside contract does not actually meet the size or status requirements to bid on the contract. Maybe the client believes that the competitor is not, in fact “small,” or that the competitor is a “pass through” company, which is affiliated with a large company. Maybe the client thinks the competitor isn’t really controlled by that veteran or woman owner, as the regulations require. Our clients will say they want to file a “bid protest.” But in reality, what they want to file is not technically a “bid protest”. Bid protests concern a challenge to the agency’s actions during source selection – like the terms of a solicitation, or the evaluation procedures used by the agency when selecting an awardee. In contrast, protests that focus on a competitor’s eligibility to compete as a small business or as a special status contractor (HUBZone, 8(a), Service Disabled Veteran Owned Small Business (“SDVOSB”) woman-owned small business, etc.) are called size protests or status protests, and they are quite different from bid protests.  So, let’s break down the key differences.

First, you file these protests with different government entities. You file a bid protest with the contracting agency, the Government Accountability Office (GAO), or the U.S. Court of Federal Claims. A size or status protest, however, is filed with the contracting officer, who will then forward it to the Small Business Administration’s (SBA) Government Contracting Area Office or, in the case of certain SDVOSB eligibility questions on Department of Veterans Affairs (“VA”) procurements, the VA’s Center for Verification and Evaluation (“CVE”), for an initial decision. Appeals are heard by the SBA’s Office of Hearings and Appeals. In other words, it is the SBA and/or VA that is the final arbiter of size and status protest decisions, not the government agency involved or any other government agency or court.

Second, the deadlines to file size and status protests are different than the deadlines to file bid protests. We discussed the different deadlines for bid protests in detail in our previous posts. To recap: A pre-award protest based on errors in the solicitation must be filed before the deadline to respond to that solicitation. Competitive range and post-award protest deadlines depend on a number of factors (including forum, and whether a debriefing was required and timely requested) but the 10-day countdown clock is generally triggered either by the date of award or the date of the debriefing. Size and status protests have a different trigger date. If the contract is a small business set-aside, the contracting officer is supposed to provide a notice of intent to award to a small business prior to making the award.  Size and status protests must be filed with the contracting officer within five business days after the contracting officer issues this notice and identifies the potential awardee.  Don’t fall into the trap of thinking the 10-day after debriefing bid protest deadline applies here, when you really have only five business days from the notice of intent to award to a small business. Size and status protests filed any later than five business days after identification of the potential awardee will be dismissed as untimely. 

Third, when filing a bid protest, the protestor should expect to participate in multiple rounds of briefing before the GAO or the Court of Federal Claims before the protest will be resolved. The awardee will usually intervene, but the primary fight in a bid protest is between the protestor and the procuring agency.  In size and status protests, the burden falls on the protested entity to justify its status as a small and/or disadvantaged business. The protested business will have to fill out an SBA Form 355, and provide such other documentation and briefing the SBA requests. Most of the time, once the initial size/status protest is filed, the protestor will not have to file anything else.  It is the SBA/VA that carry the laboring oar of analyzing the documents the protested awardee is required to file.

Fourth, when filing a bid protest at the GAO one can expect that it will take at least 60 days to get a decision. Bid protests at the Court of Federal Claims can take far longer. The SBA endeavors to provide a decision on size and status protests within 15 business days, though this is often extended. Even with such extensions, a decision in a size or status protest is typically issued much faster than a decision in a bid protest.

Finally, one of the principal concerns in filing a post-award bid protest is to obtain a stay of contract performance during the pendency of the protest. In a size or status protest, the contracting officer is not generally permitted to make a contract award during the 15 business days that SBA has to consider the protest. So, in most circumstances, a stay of contract performance is not necessary during a size or status protest.

If your size or status has been protested, or if you believe that the government is about to award a set-aside contract to a competitor that is ineligible, give us a call. 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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