In negotiated procurements set aside for small businesses, agencies are required to provide a pre-award notice of award to all offerors stating the name and address of the apparently successful offeror to permit size protests with the Small Business Administration (SBA). Upon receiving the pre-award notice, unsuccessful offerors have five business days to file a size protest with the contracting officer (CO), who must then forward it to the SBA Government Contracting Area office in the area where the successful offeror is headquartered. The relevant SBA Area office typically makes a size determination within 15 business days of receiving the protest. However, if the CO fails to provide a pre-award notice of award, the size protest must still be submitted to the CO within five business days of the oral notification or other public announcements regarding the identity of the apparently successful offeror. The Government Accountability Office (GAO) will not consider an award improper due to procedural deficiencies, such as a lack of pre-award notice, unless a timely post-award size protest is filed and the awardee is found to be other than small.

In B-419149.3, a decision issued on January 4, 2021, the GAO found the award proper, notwithstanding the agency’s lack of pre-award notice to offerors due to the protester’s failure to file a timely post-award size protest with the SBA. The Navy issued the underlying request for proposals (RFP) for transportation management and logistics support services at the Anderson Air Force Base in Guam. The agency received proposals from five offerors before the closing date, with the protester and the awardee both submitting revised final proposals following the seventh amendment. During the best-value evaluation, the source selection evaluation board assigned identical adjectival ratings to the protester and the awardee on all non-price factors. Eventually, the awardee was selected for the award due to its proposed price of $22.3 million, which was roughly $5 million less than the protester’s. Notably, the Navy failed to provide a pre-award notice to the protester, who only learned the awardee’s identity following the award. Among other arguments in its GAO protest, the protester argued that the Navy violated FAR 15.403(a)(2) by failing to provide it a pre-award notice regarding the agency’s intent to award the contract to the awardee.

In sealed bidding procurements, an invitation for bid (IFB) provides all non-price terms and conditions of the prospective contract. Bidders responding to IFBs must acknowledge its terms, including all amendments. Failure to acknowledge an amendment may result in the bid being found nonresponsive if the amendment is deemed material to the IFB. An amendment is considered material if it imposes legal obligations on the bidders that were not contained in the original solicitation. Furthermore, an amendment is material if it has more than a negligible impact on price, quality, or delivery. If a bidder fails to acknowledge a non-material amendment, the procuring agency may waive the lack of acknowledgment as a minor informality. Alternatively, if it is more advantageous to the agency, the bidder may be given an opportunity to cure the deficiency and acknowledge the non-material amendment. However, a lack of acknowledgment of a material amendment is not waivable because, without the acknowledgment, the bidder is not legally obligated to meet the government’s needs even after the government accepts its bid. Thus, an awardee’s failure to acknowledge a material amendment is a protestable issue post-award. Notably, whether an amendment is material is a fact-specific inquiry resolved based on the circumstances of each case.

Under the Federal Acquisition Regulation (FAR) limitations on subcontracting clause, small business contractors may not subcontract out more than a specified percentage of work to non-similarly situated entities, depending on the NAICS code assigned to the contract. For instance, the clause at FAR 52.219-14 obligates the contractor not to pay more than 50% of the amount paid to it by the government for the performance of services and supply contracts to non-similarly situated entities. In this regard, a similarly situated entity is one that, like the prime contractor, possesses the necessary socioeconomic designations required by the contract. Notably, a procuring agency’s judgment on whether a contractor can comply with the limitations on subcontracting clause is a question of responsibility, which is reviewed by the Small Business Administration (SBA). Meanwhile, the contractor’s actual compliance with the clause is a matter of contract administration. Thus, both these issues are not considered by the Government Accountability Office (GAO) under its bid protest function. However, where a proposal, on its face, should lead an agency to conclude that an offeror has not agreed to comply with the limitations on subcontracting clause, the matter is of the proposal’s responsiveness or acceptability. The GAO reviews such matters to determine whether a proposal affirmatively takes an exception to the limitations on subcontracting or otherwise demonstrates that the offeror does not intend to comply with them.