January 2023 Bid Protest Roundup: Size Protests, Blue & Gold, Sole Source

• Jurisdiction: United States,Federal
• Law Firm: Morrison & Foerster LLP
• Subject Matter: Government, Public Sector, Government Contracts, Procurement & PPP
• Author: Mr Lyle Hedgecock
• Published date: 08 February 2023

Since the January Bid Protest Roundup marks the beginning of February, we begin with a takeaway that needs no supporting authority beyond common sense: if you have not already done so, get your Valentine's Day gift now. And, like a box of chocolates desperately procured at the last minute, this Roundup has a bit of everything: a case from the Federal Circuit on bid protest jurisdiction, a Court of Federal Claims case exploring the nuances of the Blue & Gold Fleet rule, and a capstone from the GAO on the Small Business Innovative Research ("SBIR") program. We begin with a case from the Federal Circuit concerning the bid protest jurisdiction of the Court of Federal Claims.

22nd Century Techs., Inc. v. United States, No. 22-1275 (Fed. Cir. Jan. 10, 2023)

In 22nd Century Technologies, the U.S. Court of Appeals for the Federal Circuit ("Federal Circuit") affirmed a Court of Federal Claims ("CoFC") decision that it lacked jurisdiction to review a Small Business Administration size determination made in connection with a task order procurement.22nd Century Technologies ("22nd Century") was the recipient of an IDIQ contract, "RS3," which provides "knowledge-based support services for requirements with Command, Control, Communications, Computers, Intelligence, Surveillance, and Reconnaissance related needs."¹ Although the RS3 IDIQ was itself not limited to small businesses, task orders issued under it could be set aside for small business, and in such set-aside procurements, only small businesses could submit a bid and receive award. When 22nd Century submitted its proposal for the RS3 IDIQ contract, it was a small business and represented itself as such. However, by the time it submitted its task order proposal submission on February 8, 2021, it had outgrown its small business status. The agency awarded 22nd Century the task order.

After 22nd Century received the task order, two disappointed offerors filed size protests, arguing that the awardee was not small when it submitted the task order bid, as the relevant Request for Proposal ("RFP") required. The SBA Area Office determined that, during the procurement, the contracting officer issued a request that offerors indicate whether they are a small business on a form. The Area Office held that this request effectively constituted a request for recertification of size status in connection with task order proposals, and thus 22nd Century was "other than small," and ineligible, for award. 22nd Century appealed this decision, and three months later, the SBA's Office of Hearing Appeals ("OHA") affirmed the Area Office's determination. The agency then terminated its award to 22nd Century.

22nd Century filed a bid protest at the CoFC to enjoin the termination of the task order, arguing that, because the RFP lacked an explicit size recertification request, the termination was invalid. The government moved to dismiss pursuant to the Federal Acquisition Streamlining Act of 1994 ("FASA"), 10 U.S.C. ' 3406(f), which bars review of certain task order procurements at the CoFC. The court granted the government's motion on the ground that the challenged actions were connected to the issuance of a task or delivery order that did not fall within an exception to FASA sufficient to confer jurisdiction. The court noted that, although it would ordinarily have jurisdiction to review an SBA size determination in connection with a bid protest, jurisdiction here was barred under FASA. 22nd Century subsequently appealed to the Federal Circuit.

The protester argued that FASA's bar on bid protests did not affect protests arising from an OHA size determination; in other words, that a "size protest" is different from a standard bid protest. Relying on Harmonia Holdings Group, LLC v. United States, 999 F.3d 1397, 1402-03 (Fed. Cir. 2021), the protester asserted that the Federal Circuit had distinguished size protests from bid protests, and accordingly, the CoFC could exercise jurisdiction over the matter. Alternatively, the protester argued that, although its protest relied on CoFC bid protest jurisdiction, the case was, in essence, a challenge to the agency's decision to te...