Large Business Does Not Have Standing to Protest Small Business Set-Aside Award

In Creative Computing Solutions, Inc., B-408704; B-408704.2 (Comp. Gen.  Nov.  6,  2013),  the  Government Accountability Office (GAO) dismissed protester Creative Computing Solutions, Inc.’s (CCSI) post-award protest on the basis that CCSI, as a large business, did not qualify as an “interested party” pursuant to 4 C.F.R. § 21.0(a)(1) (2013).

The protest concerned a  Department  of  Homeland  Security  (DHS)  blanket  purchase  agreement  award  for compliance support services for DHS’s information technology services office. In order to obtain these services, DHS issued a request for quotations (RFQ) under the General Services Administration’s (GSA) Federal Supply Schedule. The RFQ was set aside for small businesses. An amendment to the RFQ incorporated solicitation questions and answers that clarified that offerors must certify as a small business at the time of proposal submission. CCSI submitted a quote that did not include a certification of its small-business-size status; however, CCSI’s quote did state that it was based on CCSI’s underlying GSA Schedule 70 contract, which had been awarded to CCSI as a woman-owned small business.

Upon losing the award, CCSI filed a protest with GAO challenging the award on grounds that DHS misevaluated the quotes and made an unreasonable source-selection decision. DHS moved to dismiss CCSI’s protest on the basis that CCSI was not an “interested party,” and therefore, did not have standing to challenge the award based on 4 C.F.R. § 21.0(a)(1) (2013). DHS argued that not only did CCSI fail to submit the required small-business certification with its quote, CCSI had not certified that it was a small business on its GSA System for Award Management profile for the North American Industry Classification System code applicable to the current acquisition. Accordingly, DHS argued that CCSI was not an interested party because it was no longer a small business. In response, CCSI argued that at the time it submitted its quote, it properly relied on a certification of its size status as a small business that it previously had submitted to GSA, and that it was improper for DHS to require CCSI to recertify its size status at the time it submitted its quote because the solicitation was for a blanket purchase agreement, and pursuant to 13 C.F.R. 121.404(g) (3)(vi) (2013), “a concern’s size may not be determined based on its size at the time of a response to a solicitation for a BPA.”

The GAO sustained DHS’s motion to dismiss CCSI’s protest. As an initial matter, GAO held that CCSI’s argument concerning the propriety of DHS requiring certification of the offerors’ size status at the time of quote submission was untimely. GAO explained, “Under our Bid Protest Regulations, 4 C.F.R. § 21.2 (a)(1), to be timely, any challenge to the agency’s inclusion of that requirement had to be raised prior to the deadline for submitting quotations.” Further, GAO determined that there was “no doubt” as to CCSI’s size status. GAO reasoned that because “CCSI characterizes itself—and indeed has certified its size status—as a large business for purposes of the applicable NAICS code under which this acquisition was conducted,” CCSI “would be ineligible for award of this BPA should its protest be successful.” Accordingly, CCSI does not have standing because it is “not an interested party for purposes of maintaining its protest.”