Award Enjoined Pending Appeal of Size Status Determination

The Court of Federal Claims enjoined the government from awarding a task order for logistic support services because all of the relevant factors favored allowing the protester to first appeal an adverse Small Business Administration size status determination. The protester was the apparent awardee of the TO, which was set aside for small businesses. However, the SBA subsequently determined the protester was “not a small business concern for the subject procurement.” The protester appealed the determination to the SBA’s Office of Hearings and Appeals, and in the CFC, sought to prevent the government from making another award before OHA decided the appeal.

Success Sufficiently Likely

In granting the protester’s motion for a preliminary injunction, the court first found the protester’s likelihood of success was at least sufficient to make it eligible for the relief it sought. Under SBA 121.404 (g), which applies to orders under multiple-award schedule contracts like the protester’s, size status is determined as of the time the offer for the schedule contract is submitted, and here, the protester maintained it had over a year before it was required to recertify. Although SBA 121.404 (g) also provides “[w]here the contracting officer explicitly requires concerns to recertify their size status in response to a solicitation for an order, SBA will determine size as of the date the concern submits its self-representation as part of its response to the solicitation for the order,” it was not clear whether the solicitation here “explicitly required” recertification. Further, the SBA’s determination used “opaque reasoning,” so it was difficult to assess whether the OHA would find the determination was based “on clear error of fact or law” ( SBA 134.314). The three remaining factors also favored the protester: the protester was the apparent awardee and would lose the $13 million TO if another offeror received the award, so it would suffer irreparable injury without an injunction; the work could continue under a bridge contract with the incumbent, so the balance of the hardships favored the protester; and the public interest would be served by allowing OHA to consider the protester’s appeal. ( Metters Industries, Inc. v. U.S., FedCl, 57 CCF ¶80,016).