OHA Confirms Competitors Cannot Protest 8(a) Sole Source Awards

In a decision issued on April 3, 2018, the SBA Office of Hearings and Appeals (“OHA”) confirmed competitors do not have standing to file size protests relating to 8(a) sole source awards. In Size Appeal of GovSmart, Inc., SBA No. SIZ-5894, 2018, OHA stated such protests may only be filed by contracting officers or the SBA itself.

The contract at issue was a Navy procurement for commercial off-the-shelf firmware, software license renewals, and hardware maintenance. The contract was awarded to Cypher Analytics, Inc. d/b/a Crown Point Systems (“Crown Point”) under an 8(a) sole source purchase order. After the award, another 8(a) company, GovSmart, Inc. filed a size protest alleging Crown Point was ineligible for the award for violating the ostensible subcontractor rule.

The SBA Area Office issued a size determination dismissing the protest for lack of standing on the basis the contract was a sole source award. GovSmart appealed the decision to OHA, citing 13 C.F.R. § 121.1001. The regulation identifies who may request a size determination in for an 8(a) sole source award and is limited to: (1) the participant nominated for award of the sole source contract; (2) the SBA program official with the authority to execute the 8(a) contract; (3) the procuring activity contracting officer who has been delegated the SBA’s 8(a) contract execution functions; or (4) the SBA District Director in the district office. As the list does not include 8(a) competitors, OHA upheld the Area Office’s holding.

GovSmart argued it was also “nominated” for the contract and thus had standing for the protest. OHA rejected GovSmart’s argument, citing 13 C.F.R. § 124.517, which affirmatively states that the size status of an 8(a) participant nominated for an 8(a) sole source contract may not be protested by another 8(a) participant or any other party. Based on this regulation, the fact that GovSmart may also have be nominated does not change GovSmart’s lack of standing.