B-298527, Technical Support Services, October 12, 2006

B-298527 Oct 12, 2006 Jump To VIEW DECISION DOWNLOADS RELATED PAGES GAO CONTACTS Highlights Technical Support Services (TSS) protests the award of a contract to Quantell, Inc. under request for proposals (RFP) No. N00421-05-R-0114, issued by the Department of the Navy as a total small business set-aside for administrative and training services. TSS maintains that it is entitled to the award because, although the Small Business Administration (SBA) initially determined that TSS was other than small and thus ineligible for award, SBA's Office of Hearings and Appeal (OHA) reversed that determination. TSS concludes that the Navy, therefore, should be required to terminate Quantell's contract and make award to TSS. We deny the protest. View Decision B-298527, Technical Support Services, October 12, 2006 Decision Matter of: Technical Support Services File: B-298527 Date: October 12, 2006 Ronald S. Perlman, Esq., Ralph C. Thomas, III, Esq., Susan W. Ebner, Esq., and John J. Jacko, III, Esq., Buchanan Ingersoll & Rooney PC, for the protester. Robin Ray Coll, Esq., Naval Air Systems Command, and Lara H. Hudson, Esq., United States Small Business Administration, for the agencies. Mary G. Curcio, Esq., and John M. Melody, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision. DIGEST Where protester's small business size status was challenged in protest to Small Business Administration (SBA), and SBA did not issue size determination within 10 days after filing, but ultimately it determined that protester did not qualify as small business, agency properly proceeded with award to another small business offeror, and was not required by applicable regulations to terminate that contract in order to make award to protester when SBA subsequently reversed size determination on appeal. DECISION Technical Support Services (TSS) protests the award of a contract to Quantell, Inc. under request for proposals (RFP) No. N00421-05-R-0114, issued by the Department of the Navy as a total small business set-aside for administrative and training services. TSS maintains that it is entitled to the award because, although the Small Business Administration (SBA) initially determined that TSS was other than small and thus ineligible for award, SBA's Office of Hearings and Appeal (OHA) reversed that determination. TSS concludes that the Navy, therefore, should be required to terminate Quantell's contract and make award to TSS. We deny the protest. The solicitation was issued on August 15, 2005. On December 19, the Navy announced that TSS was the intended awardee; on December 21, it forwarded protests challenging TSS's size status to the SBA Area 2 regional office; and on January 11, 2006, the regional office issued a determination finding that TSS was not a small business concern eligible for award. Subsequently, on January 24, the Navy announced that it intended to make award to Quantell. On that same date, TSS filed an appeal of the regional office's size status determination with OHA and provided the Navy with notice of the appeal. On February 14, OHA remanded TSS's size determination to the regional office for further deliberation; on March 16 the Navy made award to Quantell; and, on March 20, the SBA regional office again found that TSS was not a small business concern. TSS again filed an appeal with OHA which, on June 20, sustained the appeal, finding that TSS was in fact a small business concern. On July 14, the Navy notified TSS that it would not terminate Quantell's contract in order to make award to TSS. TSS maintains that it is entitled to the award. The Federal Acquisition Regulation (FAR), the principal regulation governing federal procurements, provides as follows regarding situations where a protest challenging the proposed awardee's size status has been filed: After receiving a protest involving an offeror being considered for award, the contracting officer shall not award the contract until (i) the SBA has made a size determination or (ii) 10 business days have expired since SBA's receipt of a protest, whichever occurs first. FAR sect. 19.302(h)(1). SBA's regulations similarly recognize the 10-day period for making a decision. See 13 C.F.R. sect. 121.1009(a) (2006). Here, the protests challenging TSS's size status were forwarded to SBA on December 21, and TSS acknowledges that SBA contacted it for information regarding its size status on December 22. Protester Response to Dismissal Request at 3. This being the case, the Navy was permitted to make an award to Quantell after January 9, that is, 10 business days later. Since the agency made award to Quantell on March 16, which is more than 50 business days after the size protests were received by SBA, the award was permissible under the applicable regulations. FAR sect. 19.302(h)(1); Planned Sys. Int'l, Inc., B-292319.7, Feb. 24, 2004, 2004 CPD para. 43 at 2. In accordance with FAR sect.