ARTICLE
5 November 2015

Agencies Need Not Recertify Small Business Status At Task Order Level

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Morrison & Foerster LLP

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On October 8, 2015, GAO upheld a $46.5 million IT task order awarded to OBXtek, Inc., finding that the U.S. Department of the Air Force was not required to recertify the contractor...
United States Government, Public Sector
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On October 8, 2015, GAO upheld a $46.5 million IT task order1 awarded to OBXtek, Inc., finding that the U.S. Department of the Air Force was not required to recertify the contractor as a qualifying small business because OBXtek had small business status on the date of its proposal submittal.

OBXtek was listed in the System for Award Management (SAM) as a small business when it submitted its proposal for the task order  on December 19, 2014, but in February 2015, it changed its status in SAM to "other than small." This change came after OBXtek had properly qualified under the Alliant government-wide acquisition contract, a service-disabled, veteran-owned small business (SDVOSB) indefinite-delivery/indefinite-quantity contract from the General Services Administration.

The Air Force issued a pre-award notice for OBXtek in May 2015. On May 29, Software Engineering Services (SES) filed a protest with the contracting officer challenging the company's SDVOSB status. The Air Force forwarded the challenge to the Small Business Administration (SBA), which found SES's protest to be untimely. Specifically, the SBA determined that the solicitation did not require recertification at the task order level, and therefore any size-status protest was required to be filed at the time the underlying government-wide acquisition contract was awarded.

The SBA also explained that an agency's decision to request—or, as in this case, not to request—recertification at the task order level is left to the discretion of the contracting officer. Since OBXtek was certified as small when the agency exercised the option on the underlying contract, OBXtek will be treated as small for the remainder of the contract or until the contracting officer requests recertification in connection with a task order.

Contractors should be aware of the SBA's pronouncement that it is within the contracting officer's discretion whether to request recertification of size status at the task order level and should file a size-status protest at the time a contract is awarded to be sure the protest is timely.

Footnotes

1 With an estimated value of $46.5 million, this task order is well in excess of the $10 million threshold for GAO to hear protests related to the issuance of task orders under indefinite-delivery/indefinite-quantity contracts. See 10 U.S.C. § 2304c(e)(1)(B); 41 U.S.C. § 4106(f)(1).

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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