2013 Procurement Review: Protests

J. Squared Inc. won its protest because the awardee's quotation failed to comply with a material solicitation requirement and, therefore, could not have formed the basis for an award by the agency. Similarly, in Bahrain Telecommunications, Co., B.S.C., won its protest because the agency's evaluation overlooked the fact that the awardee's quotation did not commit to comply with material solicitation requirements.

Sole Source/Small Business/Restricted Competitions

Desktop Alert, Inc. won its GAO protest because the procuring agency failed to demonstrate a reasonable basis for the brand name restriction in its solicitation for an emergency mass notification system.

In Asiel Enterprises, Inc., the GAO held that 10 U.S.C. 2492 could not be relied on as the authority to justify transferring an appropriated fund mission essential requirement to a nonappropriated fund instrumentality using a memorandum of agreement.

Recovery of Costs

In Wisconsin Physicians Service Insurance Corp.--Costs, the GAO recommended reimbursement of costs related only to the segregable portion of a protest that was clearly meritorious. The same was true in Sizewise Rentals, LLC--Costs. Similarly, in Coulson Aviation (USA) Inc.; 10 Tanker Carrier, LLC--Costs, the GAO recommended an award of costs except for (i) the portion of a protest that was withdrawn, and (ii) protest allegations related to CLINs for which the protester did not compete.

Court of Federal Claims

Timeliness/Standing/Jurisdiction/Automatic Stay 

In the Red River Communications, Inc., protest, the court held that the plaintiff (which was not a party to the underlying ID/IQ contract and thus was not solicited, or eligible to compete, for the task order solicitation at issue in the protest) had not waived its right to protest by waiting until after offers were received, even though the plaintiff knew of the existence of the underlying contract and of the solicitation and knew of its basis for protesting prior to that time. The court reasoned that holding the plaintiff to the Blue & Gold, Fleet standard in these circumstances would result in "time-consuming collateral inquiries."

In Service Disabled Veteran Owned Small Business Network, Inc., the court dismissed (for lack of jurisdiction) the bid protest of a non-profit organization that assists veterans in obtaining government benefits as small businesses because the plaintiff lacked standing (it did not allege a specific procurement violation and did not identify any particular procurements under which any of its members was an actual or potential bidder).

In Beechcraft Defense Co., LLC, the court upheld the Government's decision to override a CICA stay pending the resolution of a protest because the D&F on which the override was based had a rational basis.

In Chameleon Integrated Services, Inc., the court dismissed a post-award protest because, under FASA, the court lacks jurisdiction over the award of a task order under GSA's GWAC STARS II multiple award IDIQ contract.

In Trailboss Enterprises, Inc., the court dismissed a "protest" by the contract awardee against its own award for lack of standing under 28 U.S.C. 1491, noting that the only possible jurisdiction over a claim by a contractor must involve the CDA, whose requirements the awardee had not yet met because it had not obtained a Contracting Officer's decision on a CDA claim.

In Brookfield Relocation Inc., the court held it lacked jurisdiction over a protest essentially asking that the Government be required to take the corrective action it already had decided to take (corrective action that is being challenged by other firms in related protests).

In Mori Assocs., the court held that, under 41 U.S.C. 4106(f)(1), it lacked jurisdiction over a protest by the incumbent against an agency's decision to procure follow-on services through the use of a multiple-award task order contract.

In AquaTerra Contracting, Inc., the court held the protester lacked standing to protest the award to another contractor because the protester's proposed price was more than 25% higher than the Corps of Engineers' IGE, making it ineligible for award under 33 U.S.C. 624(a)(2).

In Eco Tour Adventures, Inc., the court held that, although the Government had erred in concluding that omissions of financial information from the proposals of the protester's competitors were immaterial,  the court lacked jurisdiction to award injunctive relief on a solicitation for a concession contract and, therefore, the protester was limited to recovery of its bid preparation costs.

Solicitation Language

In State of North Carolina Business Enterprises Program, an unsuccessful preaward protest, the court held that a requirement in a solicitation for the provision of dining hall services that offerors bid a fixed price per meal without knowing what the actual headcount (and, therefore, the economies of scale) would be was not contrary to law.

In Qwest Government Services, Inc., the court rejected the plaintiff's contention that the  solicitation did not provide sufficient information to offerors to permit fair and equal competition.

In Jacqueline R. Sims, aka JRS Staffing Services, the court held that the solicitation's requirement that the contractor perform certain start-up tasks related to recruitment and background checks of contract personnel before a task order would be issued was not objectionable.

Evaluations/Discussions

In the Linc Government Services, LLC, and J&J Maintenance, Inc., protests filed separately by two disappointed bidders (each  of which involved a myriad of challenges to multiple aspects of the evaluation), the court granted the preliminary injunction sought by one of those plaintiffs (Linc) and remanded the  case to the agency for additional investigation or explanation of various aspects of its evaluation that were either defective or lacked an explanation in the record, all this despite the fact that the court denied the majority of Linc's protest grounds and all of its co-plaintiff's.

In Plasan North America, Inc., the protester lost mainly due to the deference the court paid to the agency's evaluation of past performance and to its best-value tradeoff analysis.

In G4S Technology CW LLC, an unsuccessful post-award protest, the court held that (i) the agency only engaged in clarifications with the successful offeror and, therefore, was not required to conduct discussions with the protester; and (ii) the agency's decision to exclude the protester from the competition was unobjectionable where statements in its proposal rendered it incomplete and precluded the agency from determining price reasonableness.

In NCL Logistics Co., the court held that the Army's nonresponsibility determination was reasonable despite a host of challenges from the plaintiff, including its complaints about the vendor vetting process and its allegations that the agency had de facto debarred or blacklisted it.  

In Preferred Systems Solutions, Inc., an unsuccessful post-award protest, the Court of Federal Claims found that, although the third-ranked offeror had standing to protest, the agency's technical evaluation and its price-realism analysis of the low-priced offeror had rational bases.

In Norsat International [America], Inc., an unsuccessful post-award protest by the incumbent against an award to a much lower-priced, but also lower-rated offeror, the court (i) held that, but for an error that did not significantly prejudice the protester, the evaluation had a rational basis, and also (ii) rejected the protester's claims that the awardee had made material misrepresentations in its proposal.

In CW Government Travel, Inc., d/b/a CWTSatoTravel, a successful post-award protest, the court held that, in awarding only one ID/IQ contract in excess of $103 million as a result of a solicitation, (i) the GSA had not satisfied the prerequisite of FAR 16.504(c)(1)(ii)(D)(1)(iii) that it first determine there was only one source qualified and capable of performing the work, but instead had simply chosen the higher ranked offeror; and (ii) the agency had treated offerors unequally in its evaluations.

In Cohen Financial Services, Inc., a successful post-award protest, the court remanded the case to the agency for further investigation or explanation because the agency record was devoid of any documentation of the specifics of a price realism analysis that was required by the regulations. Subsequently, after the agency conducted a new price realism analysis, the court held that the agency's analysis had a rational basis, which resulted in a confirmation of the original award.

In Quest Diagnostics, Inc., an unsuccessful post-award protest, the court held that (i) absent specific instructions to the contrary, the awardee was free to amend parts of its proposal not affected by a change to the solicitation made as corrective action in response to a prior protest; (ii) the agency did not engage in unequal discussions by answering the awardee's procedural question differently than it answered a different procedural question posed by the protester; (iii) the technical and experience evaluations had rational bases; (iv) an error in one aspect of the evaluation had not been shown to be prejudicial; and (v) the best value analysis was adequate, though brief.

In Davis Boat Works, Inc., an unsuccessful post-award protest, the court held that (i) the fact that the Government had downgraded aspects of the protester's proposal during a reevaluation did not constitute bad faith; (ii) the Government's evaluation of the protester's technical and price proposals had a rational basis and complied with the solicitation's evaluation scheme; (iii) the Government did not permit the awardee to substantially revise its proposal, but only sought clarifications from it; and (iv) the Government's error in evaluating the awardee's key personnel did not prejudice the protester.

In Caddell Construction Co., the protester prevailed because, in the court's view, there was no adequate explanation in the administrative record of any one of the following: (i) the reason why the agency reversed its initial decision to disqualify the awardee from proceeding to Phase II of the competition based on a lack of relevant experience by one of its joint venture partners; (ii) the subsequent reversal by the Government of its initial decision to deny the awardee a ten percent Percy Amendment price preference; or (iii) the SSA's  final tradeoff analysis. However, the first two reversals had occurred after the awardee had sent detailed, well-reasoned letters to the agency explaining why the Government should reverse its initial decisions, and the contract was awarded to the firm that (i) was, at worst, tied with the protester in technical merit and (ii) had the lowest price.

In Mil-Mar Century Corp., an unsuccessful post-award protest, the concluded (i) there were rational bases for the agency's past experience evaluation and its price realism analysis, as well as its best value tradeoff analysis, (ii) the agency treated offerors fairly and equally in the past experience evaluation, and (iii) exchanges between the agency and the awardee constituted clarifications rather than prohibited, unequal discussions.

In The McVey Co., an unsuccessful post-award protest, the court found no prejudicial errors by the agency with respect to the plaintiff's contentions regarding (i) the agency's evaluation of organizational conflicts of interest; (ii) the agency's evaluation of mitigation plans; or (iii) the agency's adherence to the solicitation's evaluation scheme.

In Excel Manufacturing, Ltd., an unsuccessful post-award protest, the court rejected the protester's contention that the awardee's proposal indicated it would not comply with the Limitations on Subcontracting clause.

Laerdal Medical Corp. lost its post-award protest against the Government's decision to terminate its contract (and cancel the underlying solicitation) as corrective action in response to a prior GAO protest because the agency's evaluators had evaluated aspects of proposals that were noncompliant with mandatory solicitation requirements as weaknesses instead of treating them as rendering the proposals ineligible for award.

In ST Net, Inc., an unsuccessful post-award protest, the court held that an agency's decision in a negotiated procurement to reject an offer that included material omissions in required information, rather than to seek clarifications from the offeror, had a rational basis.

In Archura LLC, an unsuccessful post-award protest, the court held that, even though the Government erred in rejecting the protester's proposal due to missing brand and model information while accepting other offers with similar deficiencies, the protester was not prejudiced because its price was so high in relation to other offers that it did not have a substantial chance of award.

In its unsuccessful post-award protest, Supreme Foodservice, GmbH attacked multiple aspects of the competition, arguing, inter alia, that (i) the language in the J&A justifying Supreme's bridge contract meant the awardee was incapable of performing the contract on schedule; (ii) the agency's downgrade of one aspect of the eventual awardee's proposal following its responsibility analysis of the awardee must mean the agency had allowed only the awardee to revise its proposal; (iii) the agency committed multiple errors in the evaluation, itself, and (iv) the agency had not adequately investigated the protester's allegations that the awardee had misrepresented its capabilities in its proposal.

In BCPeabody Construction Services, Inc., a successful post-award protest, the court held that, in a negotiated procurement, where the protester mistakenly submitted two, identical experience sheets for its major subcontractor, instead of separate sheets showing its experience in two different areas, the Government should have sought clarification (even under the discretionary standard of FAR 15.306(a)(2)), rather than rating the proposal as unacceptable, especially because the winning offeror's proposal of the same subcontractor clearly showed it had the requisite experience in both areas.

In Lyon Shipyard, Inc., an unsuccessful protest, the court held that (i) the Government had engaged in meaningful discussions with the protester by advising it that its price was higher than Government's estimate and, later, by providing it an opportunity to revise its proposal, including its price; and (ii) the Government was not also required to advise the protester that its price was higher than that of other offerors or to reopen discussions to remind it that its price was high.

In Eco Tour Adventures, Inc., the court held that the Government had erred in concluding that omissions of financial information from the proposals of the protester's competitors were immaterial.

Sole Source/Small Business/Restricted Competitions

In KWV, Inc., the court held that the the VA OSDBU's prior determination (that a veteran did not control a business because he lived in another state for six months of the year) lacked a rational basis. In Miles Construction, LLC, a successful preaward protest, the Court of Federal Claims held that the VA's ODBSU erred in  handling a protest of the verified SDVOSB status of a firm by (i) misapplying the VA's regulations regarding restrictions on transfer of ownership in determining a service-disabled veteran did not unconditionally own the SDVOSB, and (ii) expanding its review to areas of the SDVOSB's operating agreement not mentioned in protest without affording the protested firm adequate opportunity to address those additional areas of scrutiny. Subsequently, the court made its injunctive relief permanent.

In Innovation Development Enterprises of America, Inc., the court found a sole source award improper on multiple grounds, including, inter alia, the agency's lack of advance planning, the absence of a publicized advance notice of the award, and problems with the J&A.

In the Red River Communications, Inc., protest, the Government had inflated both the duration and scope of an ID/IQ contract to the point that I would have thought the balloon had popped, but the court did not.

In Dynamic Educational Systems, Inc. (a case involving the interpretation of both the "fair proportion" determination required by 15 U.S.C. 644(a) and the Rule of Two requirement of FAR 19.502), the court denied the incumbent's presolicitation protest against the DOL's decision to designate the follow-on procurement for operation of the Montgomery, Alabama Job Corps Center as a small business set-aside. Adams and Associates, Inc., was another unsuccessful pre-solicitation protest by an incumbent contractor of a DOL decision to designate a follow-on procurement (this one for the operation of the Shriver Job Corps Center) as a small business set-aside. Still another in the same line was Management & Training Corp.

Metters Industries, Inc., the apparently successful offeror in response to a task order solicitation set aside for small businesses under the GSA's LOGWORLD schedule contract, who was subsequently determined by the SBA's Area Office to be other than small, won an injunction preventing the agency from awarding the order to any other firm until the protester's appeal of the Area Office's size determination is resolved on appeal by the OHA because of the protester's claim that it was small as of the date it last "updated" its LOGWORLD contract in 2009 and, therefore, should retain that status for five years for LOGWORLD orders.

In Aircraft Charter Solutions, Inc., the court held that a contract modification to add airlift support of cargo and passenger movement throughout Afghanistan 7 days a week, which was not restricted to the counter-narcotics programs contemplated by the original contract, was not a cardinal change outside the scope of the "Changes" clause and, therefore, did not subvert the requirement for competition for new contracts.

In CW Government Travel, Inc., d/b/a CWTSatoTravel, a successful post-award protest, the court held that, in awarding only one ID/IQ contract in excess of $103 million as a result of a solicitation, the GSA had not satisfied the prerequisite of FAR 16.504(c)(1)(ii)(D)(1)(iii) that it first determine there was only one source qualified and capable of performing the work, but instead had simply chosen the higher ranked offeror.

In Arcata Assocs., Inc., a preaward protest, the court upheld the OHA's prior decision in NAICS Appeal of Delphi Research, Inc., that the original NAICS code chosen by the Contracting Officer (541712) was erroneous and that the correct designation for the procurement was NAICS code 541513.

In CMS Contract Management Services, an unsuccessful preaward protest, the court held that HUD's Notice of Funding Availability ("NOFA") for the Performance-Based Contract Administrator ("PBCA") Program (which covers the administration of Project-Based Section 8 Housing Assistance Payment Contracts) is not subject to CICA's competition requirements. 

In Advanced American Construction, Inc., the court held that (i) requirements the plaintiff claimed the awardee could not meet were not special responsibility standards but rather post-award requirements that are not subject to a bid protest; and (ii) in limiting the procurement to 8(a) firms, the Government did not violate (a) FAR 19.805-1 (the requirements such set-asides), (b) FAR 10.001 (conducting market research), or (c) FAR 10.002 (documenting the results of market research). 

McAfee, Inc. "won" its preaward protest because the Air Force did not have any proper justification for a sole source procurement for its network security needs under a NETCENTS ID/IQ task order contract. The decision is strange for several reasons. First, McAfee was not qualified to bid as a prime contractor for the work because it did not have a NETCENTS contract, so it was complaining it had been deprived of the opportunity to compete as a subcontractor. Secondly, the court conceded that the Government had various strong arguments that McAfee did not have standing to complain about any specific event in the chain that had led up to issuing the task order solicitation, including that task order solicitation, itself, but, nevertheless, found (to my mind, at least) a sort of nebulous jurisdiction because McAfee was complaining about the extended decision process as a whole, rather than any one specific event. Finally, the court held McAfee's victory came without any remedy because (i) since it did not submit a bid on the task order solicitation, it could not recover bid and proposal costs, and (ii) the Government's security needs weighed against issuing an injunction.  

In Colonial Press International, Inc., an unsuccessful post-award protest, the court held that (i) the GPO is not subject to SBA's COC requirements, and (ii) the Contracting Officer had a reasonable basis for determining that the low bidder was nonresponsible.

In NEIE, Inc., a successful protest, the court held that the Contracting Officer's determination that an otherwise successful offeror on an SDVOSB set-aside was nonresponsible solely because it had not informed the Government that its service-disabled owner had died after it had submitted its offer lacked a rational basis because (i) SDVOSB status is determined as of the date of submission of an offer; (ii) the solicitation did not require the owner's performance on the contract; (iii) his identity was not one of the evaluation factors; and (iv) he was nowhere identified in the offer as one of the offeror's key personnel.

Responsiveness/Late Bids

In Laboratory Corp. of America, a successful preaward protest, the court held that the VA erred in rejecting a quotation the protester attempted to submit online in accordance with the solicitation's instructions and within the time required by the solicitation (because the VA's website was incorrectly set to a different time and improperly rejected the proposal for that reason).

In Insight Systems Corp., a decision important for its detailed analysis of FAR's late bid rules as they should be applied in the context of electronic bid submissions, the court held that electronically submitted quotations that were  addressed correctly and received by the initial government mail server before the time permitted by the solicitation should not have been rejected simply because a subsequent internal government server malfunctioned, which prevented them from being received on time in the government office designated for receipt of quotations.

Corrective Action

In McTech Corp., the court (over the protester's objections) dismissed a protest as moot because the agency's corrective action plan (canceling the solicitation and moving the procurement to another office) adequately mitigated the original problems (improper conduct of the procurement and a possible bias against the plaintiff).

In Supreme Foodservice, GmbH, the court issued a declaratory judgment that an agency's override of (actually, its failure to implement) CICA's automatic stay during a GAO protest of the results of corrective action in response to a prior protest was not adequately justified in the D&F under either the "best interests of the Government" or the "urgent and compelling circumstances" tests.

In Dyncorp International LLC and Kellogg, Brown & Root Services, Inc., the court held that the Government's decision to override a CICA stay during a bid protest was based on a "best interests" analysis that was neither arbitrary nor capricious.

Laerdal Medical Corp. lost its post-award protest against the Government's decision to terminate its contract (and cancel the underlying solicitation) as corrective action in response to a prior GAO protest because the agency's evaluators had evaluated aspects of proposals that were noncompliant with mandatory solicitation requirements as weaknesses instead of treating them as rendering the proposals ineligible for award.

In Amazon Web Services, Inc., the court sustained a protest against the proposed corrective action in response to a successful GAO protest. Specifically, the court held that (i) the original awardee's proposal was so far superior to the original protester's proposal that there was no basis for the GAO to find any prejudice to the original protester from the limited flaws it found in the evaluation, and (ii) the GAO's recommendation that negotiations should be re-opened was overbroad. 

EAJA

In 360Training.com, Inc., the court  granted an EAJA motion for attorneys fees and expenses incurred in a successful bid protest (including attorneys fees incurred for several unsuccessful motions filed by the protester during its protest) except for fees associated with an ultimately unsuccessful government motion to dismiss for lack of jurisdiction (because the jurisdictional issue was one of first impression) and fees the protester incurred in connection with related district court litigation by another protester on the same procurement.

In Miles Construction, LLC, the court held that the contractor was entitled to attorneys' fees under the EAJA because the agency's position in the underlying bid protest was not substantially justified.

In KWV, Inc., the court denied a successful protester's application for attorneys fees under the EAJA because the Government's (losing) position was substantially justified, "albeit barely." 

Miscellaneous

In Command Management Services, Inc., an unsuccessful post-award protest, the court found no evidence that a former government official, who had been cleared to work for the awardee after his retirement from the Government, violated any post-employment restrictions or conflict-of-interest rules.

In MVS USA, Inc., an unsuccessful post-award protest, the court held that the Government did not violate FAR 8.405-2 in its evaluation of the contractor's eligibility for a facility security clearance even though the Government's approval came too late for the contractor to receive a task order award.

Court of Appeals for the Federal Circuit

Jurisdiction/Standing

In Orion Technology, Inc., the CAFC held that, although the Court of Federal Claims erred in finding that a firm protesting the rejection of its initial proposal (on the basis of missing data) lacked standing, the lower court was, nevertheless, correct in noting that there was a rational basis for the Government's decision to reject the initial proposal because it failed to include required subcontractor cost or pricing data when the solicitation stated proposals might be rejected for being incomplete and the missing data was material to the Government's evaluation.

Evaluations

In Glenn Defense Marine (Asia) PTE LTD., the CAFC affirmed the Court of Federal Claims' prior decision denying a protest because: (i) the protester did not allege prejudicial error; (ii) the Past Performance evaluations of the protester and the awardee had a rational basis; and (iii) the best value determination was not arbitrary or capricious.

In Croman Corp., the CAFC affirmed the prior decision by the Court of Federal Claims denying a protest because (i) the protester failed to meet the high burden of proof required to establish that the agency had canceled four CLINs from the original solicitation in bad faith; and (ii) the documentation evidenced an adequate price/technical tradeoff analysis by the SSA.

Small Business Issues/Set-Asides

In Res-Care, Inc., the CAFC affirmed the CoFC's prior decision that the DOL acted within its statutory authority and in compliance with applicable regulations in setting aside a Job Corps Center procurement for small businesses.

SBA Office of Hearings and Appeals

Jurisdiction/Standing/Timeliness/Procedure

In Size Appeal of AutoFlex AFC, Inc., the OHA held that the Area Office erred in dismissing a protest as untimely because the protester did not receive the notice of award until after close of business and, therefore, it was deemed not to have been notified until the following business day.

In Size Appeal of EASTCO Building Services, Inc., the OHA affirmed the Area Office's finding that a firm was other than small because the firm had not timely presented the Area Office with evidence that management fees were inter-affiliate transfers, which, therefore, should have been excluded in calculating the firm's "receipts." 

In Size Appeal of EFT Architects Inc., the OHA affirmed the dismissal of a size protest as untimely because the filing of an intervening GAO protest did not toll the time limit for filing the size protest.

In Matter of Veterans Contractors Group JV, LLC, the OHA affirmed the SBA's dismissal, as insufficiently specific, of a protest alleging (without supporting evidence or facts) only that the protested firm did not "appear" to meet the requirements for forming an SDVOSB JV and "appeared" to have exceeded the maximum allowable number of contracts in a two-year period.

In Size Appeal of Autonomic Resources, LLC , the OHA dismissed an untimely appeal file more than 15 days after the firm's receipt of its size determination.

In Size Appeal of EFT Architects Inc., the OHA affirmed the dismissal of a size protest as untimely because the filing of an intervening GAO protest did not toll the time limit for filing the size protest.

In Size Appeal of Navarro Research and Engineering, Inc., the OHA dismissed (as moot) an appeal from a negative size determination related to a task order award under an FSS contract because the agency already had canceled the petitioner's task order and awarded it to another firm.

In Size Appeal of HAL-PE Associates Engineering Services, Inc., the OHA affirmed the Area Office's determination that a size protest was untimely because the agency's issuance of a corrected notice of the apparently successful offerors did not toll the time period for protesting where the original notice contained the information on the basis of which the protest was filed.

In Size Appeal of IAP World Services, Inc., the OHA held that, in an unrestricted procurement, a large business offeror was an interested party with standing to allege that an award was based in part on the allegedly erroneous assumption that a joint venture partner of the successful offeror was a small business.

In NAICS Appeal of RhinoCorps, Ltd., the OHA dismissed, as untimely, another NAICS appeal filed more than 10 calendar days after the RFP was issued. Don't be fooled by the typo in the regs that states the limit in "business" days. 

In Size Appeal of Mali, Inc., the OHA affirmed the Area Office's authority to issue its size determination because the solicitation was for a requirements contract, not a BPA, as the appellant had contended.

In Size Appeal of Pacific Power, LLC, the OHA reversed the Area Office's dismissal of a protest because (i) the protester presented sufficient evidence that it had made a timely telephonic protest; and (ii) the protester had standing pursuant to the regulation applicable to procurements that are not set aside for small businesses (13 C.F.R. 121.1001(a)(7)).

In Size Appeal of NiSUS Technologies Corp., the OHA dismissed a size appeal as untimely, even though it was timely served on all the interested parties except the OHA.

In Size Appeal of Continental Solutions, Inc., the OHA dismissed an appeal filed more than 15 days after the firm was sent an  emailed notice of a size determination.

In Size Appeal of EnviroServices & Training Center, LLC, the OHA affirmed the Area Office's dismissal of a size protest as untimely because emails sent within the required five-day period were not sufficiently specific to notify the Contracting Officer that a protest was intended.

In Size Appeal of NiSUS Technologies Corp., the OHA dismissed a size appeal as untimely, even though it was timely served on all the interested parties except the OHA.

In Size Appeal of Continental Solutions, Inc., the OHA dismissed an appeal filed more than 15 days after the firm was sent an  emailed notice of a size determination.

In Matter of National Sourcing Specialists, LLC, the OHA held it lacked jurisdiction over an appeal involving an 8(a) issue by a joint venture that was not an 8(a) participant, even though one of the JV members was an 8(a) firm.

Ostensible Subcontractor

In Size Appeal of Shoreline Services, Inc., the OHA affirmed the Area Office's finding that two firms were not affiliated through the ostensible subcontractor rule in part because there was no evidence the second firm would be a subcontractor on the challenged procurement. However, in another protest by Shoreline Services, Inc., the OHA sustained an appeal and found that the challenged firm was affiliated with its proposed subcontractor under the ostensible subcontractor rule because the subcontractor would be performing all the primary and vital contract requirements.

In Size Appeal of Logistics & Technology Services, the OHA reversed the Area Office's finding of affiliation under the ostensible subcontractor rule because the Area Office failed to consider which firm was managing, and performing the primary and vital requirements of, the contract at issue.

In Size Appeal of Mission Critical Technologies, Inc., the OHA denied a size protest and affirmed the Area Office's finding that the protested firm was a small business because (i) the Area Office properly relied on the protested firm's tax returns rather than possibly conflicting information from other sources cited by the protester, and (ii) employing the large business incumbent as a subcontractor was not a violation of the ostensible subcontractor rule where the protested firm would perform a majority of the contract work and would be responsible for managing the entire project.

In Size Appeal of Maywood Closure Co., LLC & TPMC-EnergySolutions Environmental Services 2009, LLC, the OHA affirmed  the Area Office's finding that the challenged firm did not run afoul of the ostensible subcontractor rule because it would (i) perform the primary and vital contract requirements as the prime contractor, (ii) manage the project, and (iii) provide 10 of the 16 key employees.

In Size Appeal  of Bell Pottinger Communications USA, LLC, the OHA affirmed the Area Office's finding that two firms were affiliated under the ostensible subcontractor rule because (i) the subcontractor would perform the primary and vital contract requirements and 90% of the contract work, and (ii) seven of the ten key contract employees were the subcontractor's. 

In Size Appeal of Red River Computer Co., the OHA affirmed the Area Office's finding that the protested concern was affiliated with its large business subcontractor under the ostensible subcontractor rule because the subcontractor would be performing all the primary and vital contract requirements.

In Size Appeal of Iron Sword Enterprises, LLC, the OHA affirmed the Area Office's finding of affiliation under the ostensible subcontractor rule because the prime construction contractor would not be the manager of the construction project. 

In Size Appeal of Combat Readiness Health Services, Inc., the OHA affirmed the Area Office's finding that the prime contractor was not unduly reliant on its subcontractor and, therefore, was not affiliated under the ostensible subcontractor rule.

Other Affiliation Issues

 In Size Appeal of Saint George Industries, LLC, the OHA reversed the Area Office's finding of a violation of the newly-organized concern rule and remanded the dispute for further proceedings because the Area Office had not adequately analyzed whether the founder of the new firm had ever been an officer or key employee of the predecessor firm.

In Size Appeal of Patriot Construction, Inc., although the OHA found that an approved mentor-protégé agreement established the clear fracture required to rebut the presumption of identity of interest between family members, the OHA nevertheless remanded the issue of affiliation to the Area Office for further review concerning whether the assistance provided by the mentor to its protégé went beyond the scope of the mentor-protégé agreement.

In Size Appeal of Trailboss Enterprises, Inc., the OHA held that the Area Office erred by automatically concluding married individuals had an identity of interest instead of giving the challenged firm a chance to rebut the presumption by showing a clear fracture.

In Size Appeal of Environmental Quality Management, Inc., the OHA reversed the Area Office's size determination because, under the applicable state law, the majority stockholder could simply remove the directors who otherwise might appear to have the power to control the firm.

In Size Appeal of OBXtek, Inc., the OHA reversed the Area Office's finding of affiliation through economic dependence because, as of the date of its self-certification as small, the challenged firm had established its economic autonomy from a firm on which it previously relied.

In Size Appeal of Heard Construction, Inc., the OHA remanded the case to the Area Office to consider the possible effects of a recent merger on affiliation and, therefore, size.

In Size Appeal of A & H Contractors, Inc., the OHA reversed the Area Office's finding of affiliation primarily because the historic association between, and the personal friendship of, two individuals was not sufficient to find such affiliation.

In Size Appeal of Washington Patriot Construction, LLC, the OHA affirmed the Area Office's finding of affiliation through the power of negative control.

In Size Appeal of Global, A 1st Flagship Company, the OHA reversed the Area Office's finding of affiliation between the protested firm and a large business that had been the parent of an affiliate the protested firm had recently acquired because: (i) under the totality of the circumstances analysis, the 10 interactions between the companies cited as support by the Area Office were either irrelevant or were no longer in effect as of the relevant date; and (ii) the Area Office improperly analyzed the situation under the successor-in-interest rule instead of the newly acquired affiliate rule.

In Size Appeal of Alares, LLC, the SBA's OHA affirmed the Area Office's finding that the protested firm was not affiliated with others by virtue of negative control by the minority owners or otherwise.

In Size Appeal of Marple Fleet Leasing, LLC, the SBA's OHA upheld the Area Office's determination that two firms were affiliated because the same individual was the majority owner of both.

In Size Appeal of AudioEye, Inc., the OHA held that, although the Area Office erred in finding two firms affiliated by virtue of the  newly organized concern rule and the totality of the circumstances, it was correct (i) in finding affiliation with another firm through common management and (ii) in drawing an adverse inference from the protested firm's failure to provide requested tax returns for that affiliate.

In Size Appeal of Saint George Industries, LLC, the OHA affirmed the Area Office's determination that two firms were affiliated under the newly organized concern rule because a key employee  of the predecessor firm (albeit for only 90 days) founded the new firm.

In Size Appeal of Willowheart, LLC, the SBA's OHA reversed the Area Office's finding of affiliation between two firms because the former affiliate was dissolved in bankruptcy prior to the date of the size determination, and the new firm took over the assets involved in the performance of only one of the former affiliate's contracts.

In Size Appeal of Step Construction, Inc., the OHA affirmed the Area Office's finding of affiliation through identity of interest because the protested firm refused to provide sufficient information to permit the Area Office to investigate the issue. 

In Size Appeal of Washington Patriot Construction, LLC, the OHA overturned the Area Office's finding of affiliation because the Area Office did not explain how the buyout of the former 49% owner at substantially more than the fair market price enabled the former owner to continue to control the firm after the buyout.

In Size Appeal of Aerospace Engineering Spectrum, the OHA held that the Area Office erred in finding general affiliation between the two members of a joint venture because it incorrectly applied the "3-in-2" rule that was in effect at the time of the size determination.

In Size Appeal of Advanced Projects Research, Inc., the SBA's OHA remanded the case to the Area Office to determine whether an oral operating agreement existed between the members of firm to limit one individual's power to control it. 

In Size Appeal of AcelRx Pharmaceuticals, Inc., the OHA upheld the Area Office's finding of affiliation through identity of interest.

In Size Appeal of Cambridge International Systems, Inc., the SBA's OHA affirmed the Area Office's finding that there was no affiliation through common management among various firms.

In Size Appeal of Alterity Management & Technology Solutions, the OHA affirmed the Area Office's finding of affiliation under the newly organized concern rule.  

In Size Appeal of US Builders Group, the OHA held that the Area Office erred finding firms affiliated through common management and identity of interest even though husband, wife, and daughter held various ownership interests and positions in the firms. However, in Size Appeal of Seacon Phoenix, LLC, the OHA affirmed the Area Office's finding of affiliation through identity of interest because two individuals shared common investments in a group of companies.

In Size Appeals of Real Estate Resource Services, Inc. and OneSource REO, LLC, the OHA held that (i) the Area Office properly concluded firms were not affiliated because the former affiliation ended well before the date of size certification; and (ii) the Area Office had no obligation to investigate a possible affiliation issue not raised in the original protests.

Other Miscellaneous Size Issues

In Size Appeal of Metters Industries, Inc., the OHA affirmed the Area Office's determination that the appellant was other than small, holding that the Contracting Officer had the authority to protest the firm's size because the BPA task order solicitation required recertification, and the firm had failed to provide it. (The firm's argument had been that the solicitation did not clearly require submission of a recertification.)

In Size Appeal of Dawson Technical, LLC, the OHA held that the protester was large under the size standard included in the original solicitation because the solicitation was never formally amended to revise it even though the agency (i) stated repeatedly (both in the original solicitation and afterwards) that it intended to revise the standard to reflect an increased size standard that everyone knew was to become effective shortly after the solicitation was first published, and (ii) repeatedly tried to do just that, including issuing an administrative solicitation amendment to "correct" the original size standard. 

In Size Appeal of Altendorf Transport, Inc., the OHA vacated a determination by the SBA's Disaster Office that an applicant for an economic injury disaster loan was not a small business because the Disaster Office had not adequately investigated the firm's contention as to the appropriate NAICS code for its primary industry.

In Size Appeal of Jackson and Tull, the OHA rejected the protester's contention that the awardee and the subject of a size determination were two different firms because the record was clear that two different names referred to the same underlying company.

In Size Appeal of Ramcor Services Group, Inc., the OHA held that the Area Office correctly determined a firm's size status as of the date of its initial priced offer, as opposed to the date of a subsequent proposal revision.

In Size Appeal of BA Urban Solutions, LLC, et al., the OHA affirmed the Area Office's denial of size protests because (i) the protested firm's size was correctly determined as of date of its initial offer; (ii) the Area Office correctly based its calculation of receipts on the period of measurement specified in 13 C.F.R. 121.104(c)(3) rather than (c)(2) because the protested firm had been in business for three complete fiscal years, one of which was a "short year"; and (iii) the Area Office correctly concluded there was no affiliation through negative control.

8(a) / SDVOSB Status

In Matter of Career Personnel, Inc., the OHA held it lacked jurisdiction to consider an appeal from a determination that a firm was ineligible for the 8(a) program, which was based in part on the firm's failure to disclose the existence of a trust in its initial application. The version of the decision accessible from the SBA's website includes the following sentence: "Contrary to Petitioner's arguments, I do not read SBA's final determination as relying on the feet that the existence of the trust remained undisclosed throughout the application and reconsideration process." I assume "feet" was supposed to be "fact" and have made that correction. :)

In Matter of JA Harris Trucking , the OHA upheld a firm's termination from the 8(a) program for failure to submit required documents.

In Matter of NOVA Training & Technology Solutions, LLC , the OHA held that the SBA had rational bases for terminating a firm from the 8(a) program based on unresolved ownership and control issues.

In Matter of Striker Enterprises, the OHA remanded the case to the SBA so that it could address three alleged incidents of disability-related bias that it neglected to consider originally in denying an application for admission to the 8(a) program.

In Matter of 347 Construction Group, the OHA affirmed the SBA's dismissal of an SDVOSB protest because (under 13 C.F.R. 125.24(b)), the SBA lacked jurisdiction over the protester's complaint about its own elimination from an SDVOSB set-aside competition by the Air Force's Contracting Officer after he discovered the firm was not listed in VetBiz database. The Contracting Officer lacked the authority to make this determination on his own, but, according to the OHA, the protest of his action should have been treated as a bid protest and handled by an appropriate bid protest forum (e.g., the GAO). Interestingly, the protester originally sent its protest to the Contracting Officer, and, from the description of that document in the OHA's decision, the Contracting Officer could well have treated its as an agency-level bid protest. Instead, he forwarded it to the SBA, which resulted in the dismissal for lack of jurisdiction. 

In Matter of Agile Tek Solutions, the OHA upheld the decision to terminate a firm from the 8(a) program for failure to timely submit its annual review materials or to timely respond to allegations in the notice of intent to terminate.

In Matter of Innovet, Inc., the OHA, in an opinion highly critical of the SBA, remanded the case for further proceedings because the SBA had ignored, misread, and misstated significant portions of the evidence provided by an applicant for admission to the 8(a) program and had failed to explain the rationales for its conclusion that the applicant had not demonstrated harm resulting from his acknowledged physical and mental handicaps. Similarly, in Matter of Black Horse Group, LLC, the OHA remanded the case to the SBA for further proceedings because, in denying a firm's application for 8(a) status, the SBA had (i) improperly employed a "clear and convincing proof" standard instead of the correct "preponderance of the evidence" standard; (ii) improperly applied an improper "chronic and substantial gender bias" standard instead of the correct "chronic and substantial social disadvantage to which gender has contributed" test; (iii) reached conclusions contrary to the applicant's evidence; and (iv) ignored other evidence. Continuing the trend, in Matter of Mill Mike Mfg. Corp., the OHA remanded to the SBA for further proceedings because the SBA failed to explain its reasons for rejecting the applicant's claims and evidence and completely ignored other evidence. In Matter of Gearhart Construction Services, the OHA remanded for further consideration because the agency had (i) applied an improper "chronic and substantial bias" standard instead of requiring only a showing of "chronic and substantial social disadvantage" brought about by the alleged bias; and (ii) required "conclusive proof" rather than simply a "preponderance of the evidence." 

In Matter of Harris Grant, LLC, the  OHA affirmed the prior denial of a firm's application for admission to the 8(a) program pursuant to 13 C.F.R. 124.106(g)(4) because of business relationships with non-disadvantaged individuals or entities that result in an inability to exercise independent business judgment without great economic risk.

In Matter of Allcon LLC, the OHA affirmed the agency's denial of a firm's application for admission to the 8(a) program because of ongoing contractual relationships between the applicant and another firm. 

In Matter of ME Cubed Engineering, LLC, the SBA's OHA upheld the termination of a firm from the 8(a) program because the disadvantaged individual on whom its program eligibility was based was employed by another firm and did not devote himself fulltime to 8(a) firm.

In Matter of SOF Associates--JV (and a companion case), the OHA affirmed a finding that a firm was not an eligible SDVOSB JV because the JV agreement did not include several provisions required by the regulations, e.g., provisions establishing that the 51% owner SDVOSB was the managing venturer and designating an employee of of the 51% owner as the project manager.

In Matter of Golden Key Group, LLC, the OHA upheld a determination that a firm did not qualify as an SDVOSB because only one of the three individuals who controlled it was a service-disabled veteran. [UPDATE: Golden Key's counsel informs me that the firm has since corrected this administrative issue and now is a fully-qualified SDVOSB]

G. M. Hill Engineering, Inc.'s application for admission to the 8(a) program was originally denied by the SBA. On appeal, the OHA directed the SBA (i) to reexamine the evidence and (ii) to issue a new determination. Subsequently, after the SBA again determined the firm was ineligible, the firm appealed once more, and, in Matter of G. M. Hill Engineering, Inc., SBA No. BDPE-485 (2013), the OHA directed the SBA to admit the firm into the 8(a) program because the SBA had failed to comply fully with the prior remand order. The SBA subsequently requested reconsideration, arguing vociferously that it had complied with the prior order and that the OHA did not have the authority to direct it to admit an applicant to the program. In Matter of G. M. Hill Engineering, Inc., SBA No. BDPE-496 (2013), the OHA denied the SBA's request for reconsideration and delivered a lengthy lecture on the history and powers of the OHA. 

In Matter of MillenniumSoft, Inc., the OHA upheld the SBA's decision to terminate a firm from the 8(a) program for failure to provide required annual report information. Similarly, in Matter of Brighter Days & Nites, the OHA held it was proper to  terminate a firm from the from 8(a) program for failing to obtain prior written approval from the SBA for changing its business structure from a limited liability company to a corporation.

In  Matter of Sunrise Staffing , the OHA remanded the case to the SBA for further investigation because, in rejecting an application for admission to the 8(a) program, the SBA failed to consider some evidence submitted by the applicant, including video evidence, and misread other evidence. Likewise, in Matter of Boblits Services, LLC, the OHA remanded the case to the SBA for further proceedings because, in denying an application for admission into the 8(a) program, the SBA made numerous errors and failed to follow applicable regulations in examining the evidence.

In Matter of NAMO, LLC, the OHA upheld a decision denying a firm admission into the 8(a) program because the applicant had a contractual relationship with another 8(a) firm in the same line of business, which was owned by the applicant's brother.  

In Matter of KRR Partners Joint Venture, the OHA affirmed the SBA's determination that a JV was not a qualified SDVOSB because the joint venture agreement did not specify the parties' contract responsibilities.

In Matter of Alpha Terra Engineering, Inc., the OHA held the SBA erred in finding that, because the minority directors could block a quorum, the SDV majority owner did not have control. The OHA noted that the overriding fact was that the SDV majority owner could remove the other directors for any reason.

In Matter of Y & S Technologies, Inc., the OHA affirmed the SBA's decision denying a firm's entrance into the 8(a) program because the individual upon whom its application was based had not presented sufficient specific evidence of social disadvantage as a result of his appearance and practice as an Hasidic Jew.

In Matter of Battalion, LLC, the OHA affirmed a finding that a protested firm was not an eligible SDVOSB because its SDV and majority owner was a full time employee of another firm controlled by the protested firm's minority owner.