SIZE APPEAL OF: VALIANT SOLUTIONS, LLC, APPELLANT RE: VMD SYSTEMS INTEGRATORS, INC.

*1 On January 3, 2023, the U.S. Small Business Administration (SBA) Office of Government Contracting - Area II (Area Office) issued Size Determination No. 02-2023-007 (Size Determination) dismissing a size protest filed by Valiant Solutions, LLC. (Appellant) against VMD Systems Integrators, Inc. (VMD). The Area Office determined that it was an untimely protest, filed against the award of a task order that did not require recertification. On appeal, Appellant contends that the Size Determination was based on a clear error of fact and law, and requests that SBA's Office of Hearings and Appeals (OHA) reverse the Area Office's decision. For the reasons discussed infra, the appeal is DENIED.

*1 OHA decides size determination appeals under the Small Business Act of 1958, 15 U.S.C. § 631 et seq., and 13 C.F.R. parts 121 and 134. Appellant filed the instant appeal within fifteen days of receiving the Size Determination, so the appeal is timely. 13 C.F.R. § 134.304(a). A timely appeal, however, “cannot cure an untimely protest.” Size Appeal of Orion Mgmt., LLC, SBA No. SIZ-5853, at 2 (2017); Size Appeal of Ad Med Consulting, Inc., SBA No. SIZ-5355, at 2 (2012).

*1 On July 19, 2022, the U.S. Department of Energy, National Nuclear Security Administration (NNSA) issued a Request for Quotations (RFQ) No. 89233122QNA000259 for Governance and Oversight Support Services. The Contracting Officer (CO) set the procurement aside for small businesses that hold active Chief Information Officer - Solutions and Partners 3 Small Business² (CIO-SP3 SB) contracts and designated North American Industry Classification System (NAICS) code 541513, Computer Facilities Management Services, with a corresponding $30 million annual receipts size standard as the appropriate code. (RFQ, at 1, 48.) The Solicitation was conducted in two phases. Offers for Phases 1 and 2 were due August 1, 2022, and September 9, 2022, respectively. (RFQ, Amend. 0002, at 1, 45.) The RFQ also invited vendors to submit Phase 1 questions by July 25, 2022, and Phase 2 questions by August 23, 2023. (Id., at 45.)

*2 On July 26, 2022, NNSA published Phase 1 Questions and Answers (Q&A) concerning the procurement. (Appellant's Exh. 4.) The Q&A was released under an NNSA letterhead but was not issued as an Amendment to the RFQ, nor did it bear the signature of the CO or an NNSA official. Most particularly, one of the Q&A was:

*2 (Id., at 1.)

*2 On December 16, 2022, NNSA awarded the Task Order to VMD. On December 21, 2022, Appellant filed a size protest, alleging that VMD was no longer a small business. On the same day, the CO forwarded the protest with a referral letter to the Area Office.³

*2 On January 3, 2023, the Area Office inquired of the CO whether the procuring agency had required offerors to make an explicit size certification. The CO responded that “NNSA did not require a size recertification at the task order level.” (Emails from H. Goza to S. Merritt and S. Merritt to H. Goza (Jan. 3, 2023).) On January 3, 2023, the Area Office issued Size Determination No. 02-2023-007.⁴

*2 The Area Office found the issue here is whether the CO requested recertification for the subject procurement. If the CO requested recertification, the regulations under 13 C.F.R. § 121.1004(a)(3)(iii) would allow protestors to protest a challenged concern's certification in connection with the task order or quote. Upon review of the task order, contract amendments, and information provided by the CO, the Area Office found recertification was not a requirement at the task order level, size was determined at the basic contract level, and consequently, the protest was dismissed as untimely. (Size Determination, at 2.)

*2 On January 10, 2023, Appellant filed the instant appeal.⁵ Appellant argues that its protest was timely. Appellant points to the Q&A and argues that because they were distributed to all offerors, they became part of the Solicitation. (Appeal at 4, citing HP Enter. Servs, LLC, 104 Fed. Cl., 230, 239 (2012); Size Appeal of Avenge, Inc., SBA No. SIZ-6178, at 16 (2022).) Appellant further points to a GAO precedent that “information disseminated during the course of a procurement that is in writing signed by the contracting officer, and provided to all vendors, contains all of the essential elements of an amendment - even where not designated as an amendment - and is sufficient to operate as such.” (Id., citing Energy Eng'g & Consulting Servs., LLC, B-407352, Dec. 21, 2012, 2012 CPD ¶ 353 at 3 (quoting Linguistic Sys., Inc., B-296221, June 1, 2005, 2005 CPD ¶ 104 at 2.)

*3 Appellant notes that SBA regulations provide that if a business concern is small at the time of offer and contract-level recertification for a Multiple Award Contract, it is small for each order issued against the contract unless a contracting officer requests a size recertification for a specific order. (Id., at 7, citing 13 C.F.R. § 121.404(a)(1)(i)(B).) Here, NNSA had required offerors to recertify their status. NNSA's answer to Question 8 was an explicit “Yes”. Offerors were required to recertify their status and to currently be a small business to qualify for an award. An agency need not utilize the words “certify” or “recertify” in a solicitation in order for recertification to be required. (Id., at 8, citing Size Appeal of 22nd Century Technologies, Inc., SBA No. SIZ-6122, at 16 (2021).)

*3 Further, the RFQ explicitly stated it was set aside for small businesses under NAICS code 541513. Appellant alleges VMD could not have recertified as a small business. Thus, Appellant argues its protest was timely, and that VMD is not an eligible small business. (Id., at 9.)

*3 On January 26, 2023, NNSA responded to the Appeal. NNSA asserts the RFQ had no explicit language requiring offerors to recertify their size for this task order. While NNSA made the Q&A available to all interested vendors, it did not characterize or otherwise designate them as amendments to the RFQ, nor did the CO sign them. Further, NNSA did not amend the RFQ to require recertification as a small business by offerors. When processing the protest, the Area Office inquired whether recertifications were required, and the CO informed the Area Office they were not. (NNSA Response, at 1-2.)

*3 NNSA argues that because no certification was required, the Area Office properly dismissed Appellant's protest as untimely under 13 C.F.R. § 121.1004(a)(3). The RFQ only required offerors to qualify as a small business as of the date of the award of the base contract, the CIO-SP3 Governmentwide acquisition contract, which was awarded in 2018. The CO did not request recertification for this task order. (Id., at 3-4.)

*3 NNSA also argues this case is similar to Size Appeal of CodeLynx, SBA No. SIZ-5720 (2016), where a protest under similar circumstances was found untimely. NNSA points to Size Appeal of EBA Ernest Bland Assoc., P.C., SBA No. SIZ-6139 (2022) as support for SBA attaching weight to the CO's opinion of whether recertification was required. NNSA states the RFQ did not require recertification. NNSA points out that it had issued two amendments to the RFQ prior to issuing the Q&A and could have issued them as an amendment, but it did not. The words “must currently be a small business” meant that the awardee needed to be on the small business track of the CIO-SP3 contract, awarded in 2018. NNSA also points to JSR Services, LLC, B-401500 (2009), which held that Q&A responses did not amend a solicitation where two amendments had been issued earlier and they were not issued as an amendment. (Id. at 5-6.)

*4 While Appellant relies on Size Appeal of Avenge, Inc., SBA No. SIZ-6178 (2022) in support of the Q&A being an amendment, OHA case law relied on a GAO holding that information disseminated during the course of a procurement in writing, signed by the contracting officer, and provided to all vendors has all the essential elements of an amendment, even when not designated as an amendment, is sufficient to operate as such. Here, the CO did not sign the Q&A as an amendment. In Avenge, the CO's actions suggest recertification was required. Here, that is not the case. (Id., at 6.)

*4 NNSA further asserts the inclusion of the NAICS code is not a requirement to recertify status. The inclusion of FAR clauses is not a requirement to recertify. (Id. at 7, citing Size Appeals of Safety and Ecology SBA No. SIZ-5177 (2010).)

*4 On January 27, 2023, VMD also responded to the appeal. VMD asserts this Solicitation was set aside for active CIO-SP3 SB contract holders, but it did not include express language mandating recertification of size by the offerors. (VMD Response at 1.)

*4 VMD argues the CO's actions prove recertification was not a requirement under the Solicitation. For multiple-award contracts set-aside for small business, such as CIO-SP3 SB, if a concern is small at the time of offer and contract-level certification for the main contract, then it is small for each order issued against the contract, unless a contracting officer requests a size recertification for a specific order. (Id., at 3, citing 13 C.F.R. § 121.404(a)(1)(i)(B).) For a size protest to be timely under 13 C.F.R. § 121.1004(a)((3)(iii), the CO must explicitly require recertification. (Id., citing Size Appeal of CodeLynx, LLC, SBA No. SIZ-5720, at 6 (2016).) VMD notes that OHA gives substantial weight to the CO's view as to whether recertification was requested. (Id., citing Size Appeal of DNT Solutions, LLC & Alliant Solutions, LLC, SBA No. SIZ-5962 at 11 (2018).)

*4 Here, the CO made clear on multiple occasions that he did not request offerors to recertify in connection with the instant task order. In contrast to this case, in Size Appeal of Metters Industries, Inc., SBA No. SIZ-5456 (2013), the CO included that language in the task order (TO) RFQ requesting each offeror to specify its size status and verify whether its size as of the date of its submission of its quote is the same as its underlying GSA schedule. If selected for award, a concern was required to again confirm its size. Here, there is no language even remotely similar requiring each offeror to recertify its size. (Id.) In Size Appeal of Avenge, Inc., SBA No. SIZ-6178 (2022), the CO brought the size protest and her actions strongly suggested certification was required. (Id. at 4.) VMD argues that CodeLnyx is more apposite, where the CO advised OHA, that certification was not required.

*5 VMD asserts that neither the CIO-SP3 SB nor the solicitation required recertification. VMD argues Valiant's reliance upon Size Appeal of 22nd Century Technologies, SBA No. SIZ-6122 (2021) is misplaced. That master contract had specific ground rules for setting task orders aside for small business. Further, that task order solicitation included specific language required by the master contract in order to set the task order aside, and so certification was required at the task order level. Here, the master contract CIO-SP3 SB is restricted to small business, unlike the master contract in 22nd Century. There is no plain language in the solicitation here requiring recertification. (Id., at 5.)

*5 VMD notes Appellant argues the mere assignment of a NAICS code and the setting aside of the task order is a request for recertification. However, OHA has held on numerous occasions that recertification is not required merely because of a NAICS code designation. Just as incorporating mandatory FAR clauses into a solicitation does not give rise to a requirement for recertification, neither does including a NAICS code designation give rise to such a requirement. (Id., citing Size Appeal of Quality Innovation, Inc., SBA No. SIZ-6164 (2022); Size Appeal of EBA Ernest Bland Assoc., P.C., SB No. SIZ-6139 (2022).)

*5 VMD further argues the Q&A was not incorporated into the Solicitation and did not require recertification. Further, the Q&A did not explicitly require recertification. At most, it created an ambiguity which neither Appellant nor any other offeror challenged. There is no plain language requiring recertification. Further, there was no amendment incorporating the Q&A into the Solicitation. The CO could have included the Q&A in one of the formal amendments to the Solicitation, had he intended to incorporate it. Because the Solicitation was amended after the Q&A was released, but the Q&A was not included in the Solicitation, the Q&A is not part of the Solicitation. (Id., at 6, citing Size Appeals of DNT Solutions and Alliant Solutions Partner, LLC, SBA No. SIZ-5962 (2018),)

*5 Lastly, the CO did not sign the Q&A, and it is not even clear the CO issued it. It lacks the essential elements of a formal amendment and cannot be treated as part of the solicitation. VMD points that it was not in writing, signed by the contracting officer, and provided to all vendors. (Id., at 6, citing Size Appeal of Avenge, Inc., SBA No. SIZ-6178 (2022).) If the CO had intended to require recertification, that would have required an amendment to the solicitation, which he did not issue. (Id.)

*5 On February 6, 2023, Appellant replied to the Responses. Appellant argues that the Q&A was included in the Solicitation and that NNSA explicitly and unequivocally stated it would require recertification. By including a NAICS code and indicating the Solicitation was a small business set aside, NNSA required offerors to recertify as to their small business status. (Appellant's Reply, at 1.)

*6 Appellant asserts the Q&A was distributed to all offerors via the online portal “e-Gos”, the system used to administer the CIO-SP3 procurement. The Q&A, if not signed by the CO, had to have been distributed with his approval, and therefore his signature is superfluous. Information distributed during the course of a procurement can modify a solicitation, even if not done in the form of a formal amendment. Here, NNSA did so. Posting the Q&A constitutes the requisite elements for them to become part of the solicitation. (Id., at 3, citing Linguistic Systems, Inc., B-296221, June 1, 2005, 2005 CPD ¶ 104 at 1.) Information disseminated during the course of a procurement to all offerors in writing, and signed by the CO, meets all the essential element of an amendment and even where not designated is sufficient to operate as such. GAO did not state whether the Q&A had the CO's signature. Appellant argues the posting of the Q&As was sufficient to modify the Solicitation. Appellant also points to H.P. Enter. Servs. LLC v. U.S. 104 Fed. Cl. 230 (2012), as supporting this argument.

*6 Even if the Q&A did not modify the Solicitation, Appellant claims it is evidence of NNSA's contemporaneous intent. The Solicitation on its face is set aside for small business with the requisite NAICS code. The Q&A clarifies that only actual current small businesses are eligible. Q&A, even if not formally part of the solicitation, can clarify an agency's interpretation of it. (Id., at 4, citing U.S. Dept. of State, et al., SBA No. SIZ-5627 (2014); AT&T Corp., B-417107.4, July 2, 2020, 2020 CPD ¶ 283 at 13; Sikorsky Aircraft Corp., B-416027, May 22, 2018, 2018 CPD ¶ 177; Allied Signal, Inc. Elec. Sys., B-275032, et al. Jan. 17, 1997, 97-1 CPD ¶ 136.) Here, the unequivocal Q&A indicated that NNSA explicitly meant to state contemporaneously that it would require recertification. (Id., at 4-5.)

*6 Appellant argues VMD and NNSA advocate an absurd result, claiming that certification would not be required when NNSA made an unequivocal indication that certification would be required. The Q&A must be interpreted to mean an actual current small business must receive the contract, not one that qualified as a small business years ago. Appellant argues NNSA is disingenuous, and that there is no other way to read the Q&A but as inquiring whether offerors would be required to recertify as a small business at time of submission, and the answer was “Yes”. NNSA's current position is inconsistent with the contemporaneous record. In DNT Solutions, SBA No. SIZ-5962, the relevant question contained two parts and referenced a solicitation provision the question was meant to clarify. The convoluted phrasing of the question led to an administrative error, which led the offeror to believe the question required recertification. Appellant argues here there is no convoluted phrasing, the question is clear and leads to only one interpretation, that recertification is required. (Id., at 5-7.)

*7 Appellant has the burden of proving, by a preponderance of the evidence, all elements of the appeal. Specifically, Appellant must prove the size determination is based upon a clear error of fact or law. 13 C.F.R. § 134.314. OHA will disturb an area office's size determination only if, after reviewing the record, the administrative judge has a definite and firm conviction that the area office erred in making its key finding of fact or law. Size Appeal of Taylor Consultants, Inc., SBA No. SIZ-4775, at 11 (2006).

*7 Upon review of the record and the arguments of the parties, I find that Appellant has not shown that the Area Office clearly erred in dismissing Appellant's protest as untimely. I must therefore deny this appeal.⁶

*7 The underlying contract here is the CIO SP3 SB long-term multiple award contract (MAC), awarded to a small business pool against which orders may be issued. SBA regulations governing size protests permit a protestor to file a size protest relating to such a contract at only three times. First, an interested party may protest a size certification within five business days after the long-term contract is initially awarded. 13 C.F.R. § 121.1004(a)(3)(i). Second, an interested party may protest a size certification within five business days after an option is exercised. 13 C.F.R. § 121.1004(a)(3)(ii). Third, an interested party may protest a size certification made “in response to a contracting officer's request for size certifications in connection with an individual order.” 13 C.F.R. § 121.1004(a)(3)(iii). Interpreting these provisions, OHA has repeatedly held that “SBA will not entertain a size protest against the award of an order under a long-term contract, unless the procuring agency requested recertification in conjunction with the order.” Size Appeal of CodeLynx, LLC, SBA No. SIZ-5720, at 6 (2016) (quoting Size Appeal of RX Joint Venture, LLC, SBA No. SIZ-5683, at 3 (2015)); see also Size Appeal of Ernest Bland Associates, P.C., SBA No. SIZ-6139(2022).

*7 Here, the instant case does not deal with the award of the underlying MAC contract or the exercise of an option. The remaining question is whether the instant Solicitation included a request for recertification. When assessing size for task order contracts, SBA's longstanding rule is that a concern which represents itself as small at the time of contract award remains small for the lifetime of the contract, including orders issued under the contract. Ernest Bland Associates, supra; Size Appeal of Odyssey Sys. Consulting Grp., SBA No. SIZ-6135, at 16-17 (2021); see also Size Appeals of: DNT Sols., LLC and Alliant Sols. Partner, LLC, SBA No. SIZ-5962, at 7 (2018). For MACs set aside for small businesses, SBA regulations state, “[a] concern that represents itself as a small business and qualifies as small at the time it submits its initial offer (or other formal response to a solicitation) which includes price is generally considered to be a small business throughout the life of that contract.” 13 C.F.R. § 121.404(g).

*8 Nevertheless, a CO has the discretion to request recertification of a concern's size for an individual order. The determination of whether an individual order required recertification is made primarily on the basis of the task order solicitation and relevant provisions in the underlying contracts. Ernest Bland Associates, supra; Size Appeal of 22nd Century Techs., Inc., SBA No. SIZ-6122, at 15-16 (2021); Size Appeal of Advanced Mgmt. Strategies Group, Inc./ReefPoint Group, LLC, SBA No. SIZ-5905, at 6 (2018); CodeLynx, SBA No. SIZ-5720, at 6. OHA also will attach weight to the CO's opinion of whether recertification was requested, although the CO's views are not dispositive. Size Appeal of Metters Indus., Inc., SBA No. SIZ-5456 (2013). Further, OHA has long held that “merely setting [a] task order aside for small businesses” does not constitute a request for recertification. RX Joint Venture, SBA No. SIZ-5683, at 4 (quoting Size Appeals of Safety and Ecology Corp., SBA No. SIZ-5177, at 23 (2010).) Likewise, “recertification does not occur simply because mandatory FAR clauses were incorporated.” Size Appeal of ReliaSource, SBA No. SIZ-5536, at 4 (2014); see also CodeLynx, SBA No. SIZ-5720, at 6; AIS Eng'g, SBA No. SIZ-5614, at 5.

*8 Here, the CO firmly stated that “NNSA did not require a size recertification at the task order level.” NNSA's Response and e-mail from S. Merritt to H. Goza (Jan. 3, 2023), supra. As for the Q&A, they were not a formal amendment and were not signed by a CO, although it was in writing and disseminated to all vendors. Thus, I cannot find that a Q&A was or constituted an amendment to the solicitation, requiring recertification. Section II.A, supra.

*8 Appellant's argument relying on a number of OHA cases is inapposite. In Size Appeal of 22nd Century Technologies, SBA No. SIZ-6122 (2021), the underlying MAC contract explicitly required that any offers submitted for a task order restricted to small business include a certification that the offeror was a small business, and that only contractors eligible to compete as a small business may submit a proposal. The task order solicitation even required offerors to represent that they were an eligible small business. While the word “certify” was not used, OHA concluded the CO's statements were equivalent to a requirement for certification. Id., citing 15 U.S.C. § 632(w)(3) (indicating that “certification generally consists of a representation by an authorized presentative that “a business concern qualifies as a small business concern of the exact size and status claimed by the business concern for purposes of bidding on Federal contract or subcontract”); 71 Fed. Reg. 66,434, 66,438 (Nov. 15, 2006) (observing that certification “occurs when an offeror represents that it is small as part of its offer”, and it is synonymous with “representation”.)

*9 Similarly, in Size Appeal of Avenge, Inc., SBA No. SIZ-6178 (2022), an RS3 MAC involved the same MAC as in 22nd Century. The underlying MAC included provisions explicitly requiring recertification in situations where the contract was set aside for small business. The TORFQ in that case repeatedly stated the order was “Restricted”, and thus was found to be restricted to offerors that were small businesses. The procuring agency also issued a Q&A stating the order was restricted to small business primes in accordance with the RS3 contract clauses. OHA relied upon GAO precedent that information disseminated during the course of a procurement that is in writing, signed by the CO, and provided to all vendors, contains all of the essential elements of an amendment, even when not designated as such, and is sufficient to operate as such. Id., at 16, citing Energy Eng'g & Consulting Servs., LLC, B-407352, Dec. 21, 2012, 2012 CPD ¶ 353 at 3. (quoting Linguistic Sys., Inc., B-296221, June 1, 2005, 2005 CPD ¶ 104 at 2.) Further, OHA found this Q&A merely clarified language already in the TORFQ. Thus, OHA found that certification was required in this case, and the protest was timely filed.

*9 In Size Appeal of Metter Industries, Inc. SBA No. SIZ-5456 (2013), the TORFQ in question instructed each offeror to specify its size with its task order proposal and to verify whether its size as of the date of its proposal was the same as on its underlying GSA schedule. In such a case, the procuring agency was asking offerors to recertify for the task order and the CO requested recertification. Id., at 8-10.

*9 Therefore, OHA has consistently found that where the underlying MAC makes clear that firms competing for small business awards under it must make a representation as to their size, and where the TORFQs specify require offerors to specify their size with their proposals, the CO has requested recertification, and thus a size protest may be filed within five days after the procuring agency awards the task order in question.

*9 In contrast to 22nd Century and Avenge, the instant MAC did not require the offerors for small business set aside task orders to explicitly represent themselves as small businesses. Rather, CIO SP3 SB is itself set aside for small business, and in accordance with SBA policy, the small businesses are small for the life of the contract, unless an explicit recertification is requested on particular task order. Here, the Q&A is certainly ambiguous and does not clearly state whether the affirmation is for requesting a new recertification or simply reminding offerors that they must be recipients of a CIO SO3 SB award, which was set aside for small business. As the Q&A was not part of any amendment, I cannot find that it was. Finally, I must consider the position of the CO, which indicated that recertification was not required, and while not itself dispositive, it is entitled to some weight.

*10 As for Linguistic, Appellant's argument that GAO held a signature was not required appears to be misleading.⁷ GAO clearly referred to “information disseminated during the course of a procurement that is in writing, signed by the contracting officer, and provided to all vendors, meets all of the essential elements of an amendment and--even where not designated as an amendment--is sufficient to operate as such.” Id., at 2, citing Stabro Labs., B-256921 (1994) 94-2 CPD ¶ 66 at 4, n.4. In applying the 3-element standard to the protest in Linguistic, GAO found the Q&A “met this this standard, and therefore became a part of the solicitation.” Id. There is nothing in GAO's decision which states the Q&A in that case was not signed by the contracting officer, and therefore nothing which supports Appellant's interpretation that an actual signature was not required. Linguistic therefore does not support Appellant's argument that the CO's signature is not required to categorize a Q&A, not issued as an amendment, as part of it. This unsigned Q&A lacks one of the elements to qualify as an amendment. Therefore, I find the Q&A was not an amendment to the instant Solicitation and lacks the force of requiring offerors for the task order to explicitly recertify their size status when submitting offers.

*10 In summary, I thus conclude that Q&A No. 8, was not an amendment to the Solicitation, and this TORFQ did not require offerors to recertify their size status. Neither did the inclusion of a NAICS code designation or references to a set aside for small business, make it a requirement to recertify. As a result, I further conclude the Area Office properly dismissed Appellant's protest as untimely. Appellant has failed to meet its burden of establishing that the Area Office's size determination was based upon clear error of fact or law.

*10 Appellant has not demonstrated clear error of fact or law in the Area Office's size determination. Accordingly, the appeal is DENIED, and the size determination is AFFIRMED. This is the final decision of the Small Business Administration. See 13 C.F.R. § 134.316(d).