Decision released: DOE National Training Center management and operations protest

SBA No. SIZ-6299, 2024

Background

On September 15, 2020, the U.S. Department of Energy (DOE) issued Request for Proposals (RFP) No. 89303020REA000003 for management and operations of the National Training Center in Albuquerque, New Mexico. (RFP at 1.) The Contracting Officer (CO) set aside the procurement entirely for 8(a) program participants, and assigned North American Industry Classification System (NAICS) code 611519, Other Technical and Trade Schools, which at that time had a corresponding size standard of $16.5 million average annual receipts.

Initial offers were due November 18, 2020, and final proposal revisions were due April 1, 2022. On December 22, 2022, the CO announced that Eagle Harbor was the apparent awardee.

Appellant, an unsuccessful offeror, timely filed a protest with the CO challenging Eagle Harbor’s size. The protest alleged that Eagle Harbor will be unduly reliant upon an ostensible subcontractor to perform the primary and vital contract requirements. The CO forwarded Appellant’s protest to the Area Office for review.

Discussion

It is well-settled that OHA itself lacks authority to issue size determinations. 13 C.F.R. § 121.1002; Size Appeal of Tenax Aerospace, LLC, SBA No. SIZ-5747, at 3 (2016). Consequently, if an area office conducts its review without having access to the correct version of essential documents, OHA will remand the matter to the area office for a new size determination. Size Appeal of Kako’o Spectrum Healthcare Sols., LLC, SBA No. SIZ-6293 (2024); Size Appeal of Size Appeal of GaN Corp., SBA No. SIZ-5658 (2015); Size Appeal of IAP World Servs., Inc., SBA No. SIZ-5480 (2013); Size Appeal of DynaLantic Corp., SBA No. SIZ-5125 (2010).

Here, in Size Determination No. 06-2023-010, the Area Office assessed Eagle Harbor’s compliance with the ostensible subcontractor rule based on Eagle Harbor’s proposal dated April 1, 2022. Section II.C, supra. While this appeal was pending, however, and well after Size Determination No. 06-2023-010 was issued, DOE undertook corrective action on the procurement. Section II.D, supra. As part of this process, DOE permitted offerors to revise their proposals. Id.

SBA regulations require that a concern’s compliance with the ostensible subcontractor rule must be examined as of the date of final proposal revisions. 13 C.F.R. § 121.404(d). Accordingly, because the Area Office assessed Eagle Harbor’s compliance with the ostensible subcontractor rule as of the wrong date, and because the Area Office was unable to review the most current version of Eagle Harbor’s proposal which did not exist at the time Size Determination No. 06-2023-010 was issued, remand is warranted. This result is consistent with OHA’s Order of March 1, 2023, in which OHA explained that, if Eagle Harbor remained the apparent awardee following corrective action, OHA would “remand the matter to the Area Office for a new size determination addressing solely the question of Eagle Harbor’s compliance with the ostensible subcontractor rule.” Section II.D, supra.

Decision

For the above reasons, the question of Eagle Harbor’s compliance with the ostensible subcontractor rule is REMANDED to the Area Office for a new size determination. Size Determination No. 06-2023-010 is otherwise AFFIRMED.

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