Forward Slope, Inc. recently appealed a size determination made by the U.S. Small Business Administration (SBA). The SBA determined that Forward Slope, Inc. is not a small business for the specific procurement. However, the company strongly disputes this determination and has requested a reversal or remand of the decision. This appeal is timely and properly before the Office of Hearings and Appeals (OHA).

Background of the Dispute: The Contract Award and Change in Dynamics

The dispute between Forward Slope, Inc. and the SBA emerged as a result of a contract awarded to Forward Slope, Inc. by the U.S. Department of the Navy. At the time of the contract award, Forward Slope, Inc. met the small business criteria under the $41.5 million size standard, making it eligible for the contract. However, the dynamics changed when Trive Capital, an investment firm, acquired a controlling interest in Forward Slope, Inc.

Following the acquisition, the size status of Forward Slope, Inc. came into question. A protest was filed, asserting that Forward Slope, Inc. no longer qualified as a small business. In response, the SBA dismissed the protest but decided to initiate its own size investigation to determine the company's eligibility. Forward Slope, Inc. acknowledged that its small business status had changed, yet it contested the SBA's determination.

Recertification Requirements: Examining Forward Slope, Inc.'s Argument

Forward Slope, Inc. contests the SBA's size determination, arguing that the Request for Quotation (RFQ) did not mandate offerors to recertify their size for the specific task order in question. The company firmly believes that the contracting officer (CO) did not intend for offerors to recertify their size and therefore disputes the SBA's finding.

According to regulations, a small business that certifies itself as such during the initial offer remains small for the entire duration of the contract, unless the CO explicitly requests a recertification for a particular order. Forward Slope, Inc. asserts that no such requirement for recertification was outlined in the RFQ.

The Area Office's determination was based on the fact that Trive Capital acquired a controlling interest in Forward Slope, Inc., leading them to conclude that the size status of Forward Slope, Inc. must be determined as of the date of its offer on the Task Order. However, Forward Slope, Inc. maintains that there was no explicit requirement for size determination on that date, and therefore challenges the Area Office's decision. Furthermore, Forward Slope, Inc. emphasizes that in cases of merger or acquisition, the consequence is not the prime contractor becoming ineligible for award, but rather the agency being unable to claim goaling credit.

Conclustion: OHA's Ruling

After reviewing the case, the Administrative Judge found that the Area Office's size determination was based on an error of law. As a result, the judge concluded that Forward Slope, Inc. is indeed an eligible small business for the procurement in question. The appeal was granted, and the size determination was reversed. This decision is considered final.

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