The FDA issued a Request for Proposals (RFP) for a small business set-aside. That set-aside was protested, and the agency took corrective action. Subsequently, when it issued the new RFP, as a part of that RFP, the agency required offerors to (re)-certify their size status as small. One firm that had previously qualified as small had been acquired during the initial protest period and could no longer certify as small. As a result, that firm protested the RFP (found premature) and award. As to the award, the GAO found that as a large business at award, the firm no longer had standing to protest the award. As a general rule, a large business is not an interested party to challenge an award under a solicitation for small business, while recognizing that under very specific and limited circumstances a large business may challenge the award to a small business under a small business set-aside. Those circumstances did not exist here.
Takeaways:
- When going through a merger or acquisition be aware of re-certification requirements; especially for those firms in SBA Programs;
- Businesses that become large through novation or acquisition/change of name cannot protest either the requirement put on by an agency to recertify its size; and
- Only under extremely limited circumstances may a large business protest a small business set-aside award.
Synchrogenix Information Strategies, LLC, B-414068.6. Click here for case: Synchrogenix