SIZE APPEAL OF: ORION MANAGEMENT, LLC, APPELLANT RE: WILLIAMS ELECTRIC COMPANY, INC.

*1 On May 31, 2017, the U.S. Department of Energy, Western Area Power Administration (WAPA), issued Request for Quotations (RFQ) No. 1175378, Physical Security Technical Services, seeking “support to implement, integrate, and maintain security systems and devices at potentially several hundred locations throughout [WAPA's] 15 areas of responsibility.” (RFQ, at RFQ Summary.) The Contracting Officer (CO) set aside the procurement entirely for small business concerns. (Id., at § 1.1.) Quotations were due on July 9, 2017. (Id., at § 8.1.) On July 25, 2017, the CO notified unsuccessful offerors that Williams Electric Company, Inc. (WEC) was awarded the BPA. (E-mail from L. Sayre to M. Britell (July 25, 2017).) On July 28, 2017, Orion Management, LLC (Appellant) filed a size protest, alleging WEC was not an eligible small business.

*1 On August 15, 2017, the U.S. Small Business Administration (SBA), Office of Government Contracting — Area III (Area Office) issued Size Determination No. 3-2017-053, dismissing Appellant's protest against WEC as untimely. (Size Determination, at 1.) The Area Office found the procurement-at-issue is a Blanket Purchase Agreement (BPA) against General Services Administration (GSA) Multiple Award Schedule contract, “which is a long-term contract.” (Id.) The Contracting Officer (CO) did not require recertification. (Id.) The Area Office, therefore, concluded the protest was untimely and “should have been received at the time GSA awarded the contract or at the time GSA requested recertification of size.” (Id.)

*1 On August 30, 2017, Appellant filed the instant size appeal with the SBA Office of Hearings and Appeals (OHA). In its appeal, Appellant concedes the Area Office correctly found the procurement is a BPA against a GSA Schedule contract, but asserts the Area Office erred by not considering “the issuance of up to 4 initial Orders at the time of the award of the BPA.” (Appeal, at 4.) According to Appellant, WAPA's information “clearly and conclusively indicates that a minimum of one Order was part of the overall Award in relation to the [[procurement].” (Id., at 5.) Appellant also asserts the Area Office erred in finding the CO did not require recertification, arguing the procurement clearly requests a certification of size. (Id., at 6.) According to Appellant, the procurement states “a complete quote shall consist of a cover letter, a technical submission, a business size/socioeconomic status submission, a past performance submission, and a price submission.” (Id., at 6.) Appellant argues that a certification request need not be drafted “with perfect clarity”, and that the RFQ here should be construed to include a certification request. (Id. at 8, citing Size Appeal of Metters Industries, Inc., SBA No. SIZ-5456 (2013).

*2 Appellant filed the instant appeal within 15 days of receiving the size determination, and so the appeal is timely. 13 C.F.R. § 134.304(a).

*2 Nevertheless, a timely appeal cannot cure an untimely protest. Size Appeal of AdMed Consulting, Inc., SBA No. SIZ-5355 (2012). After reviewing the record, I conclude that the Area Office did not err in dismissing Appellant's protest as untimely.

*2 It is settled that “there is no regulatory mechanism for [an a]ppellant to bring a size protest based on the award of a BPA under an existing GSA Schedule contract.” Size Appeal of Oxford Gov't Consulting, LLC, SBA No. SIZ-5732, at 2 (2016). A BPA is not, itself, a contract, and BPAs issued against a GSA Schedule are exempted from SBA's regulations mandating a concern is small at the time of initial offer. See 13 C.F.R. § 121.404(a)(2). When enacting this exemption, SBA stated “[it] does not believe that size needs to be determined at the time of the BPA issued against a GSA Schedule because size has already been determined at the time of submission of the offer for the GSA Schedule contract.” Size Appeal of Total Syss. Tech. Corp., SBA No. SIZ-5562, at 5-6 (2014) (citing 78 Fed. Reg. 61,114, 61,120 (Oct. 2, 2013)). Thus, a size protest on a BPA issued against a GSA Schedule contract is treated as a size protest on the GSA Schedule contract. According to SBA regulations, a timely size protest on a long-term contract may be filed at the time of the initial award, the exercise of an option, or recertification at the CO's request in conjunction with an order. 13 C.F.R. § 121.1004(a)(3).

*2 Here, Appellant concedes the instant procurement is a BPA against a GSA Schedule contract. The RFQ also specifically indicates the RFQ was issued “to establish a single-award [BPA] under [a] GSA Schedule.” (RFQ, at § 1.1; see id., at § 2.1.) WEC's GSA Schedule contract was initially awarded nearly ten years ago, the instant procurement was not the exercise of an option, and recertification was not requested by the CO in conjunction with the instant procurement. In fact, the CO stated “I did not require recertification.” (Letter from L. Sayre to I. Mesa Bascumbe (Aug. 1, 2017) (containing “Size Protest Checklist”).) Moreover, SBA regulations state “[a] request for a size re-certification shall include the size standard in effect at the time of re-certification that corresponds to the [North American Industry Classification System (NAICS)] code that was initially assigned to the contract.” 13 C.F.R. § 121.404(g)(3)(iii). The RFQ here did not.

*3 While Appellant argues certain parts of the procurement hint that the CO requested recertification, the CO “did not indicate a NAICS code on the BPA Request for Quote” and stated the “NAICS code will be assigned at the task order level.” (E-mail from I. Mesa Bascumbe to L. Sayre (Aug. 15, 2017); E-mail from L. Sayre to S. Nirk (Aug. 7, 2017).) Further, in response to questions about the required “business size/socioeconomic status submission,” the CO stated “[t]his is the size standard corresponding to your NAICS code under [the GSA Schedule]. This information can be included in your submission of a cover letter.” (RFQ, at Modification 8.)

*3 Appellant relies on Size Appeal of Metters Industries, Inc., SBA No. SIZ-5456 (2013) (Metters) for the proposition that a certification request need not be drafted “with perfect clarity”. However, in Metters, the RFQ stated “Only quotes submitted by small business concerns will be accepted” and instructed offerors to “provide the socio-economic status for yourself ... [and y]our submission of this information serves as confirmation that your status shown is the same as that identified in the applicable GSA schedule ... as of the date of your task order quotation submission.” Metters, at 2. The RFQ in Metters further stated “your signature on the task order award serves as confirmation that the socio-economic status provided ... is the same as that identified in the applicable GSA schedule ... as of the date of your signature on the task order award”. Id.; see id., at 9. The request in Metters was far more clearly seeking recertification than the RFQ language Appellant relies upon here. I conclude, therefore, that Metters is inapposite here. Thus, it is clear the CO intended for offerors to rely on their size certifications under that GSA Schedule and did not request recertification.

*3 Further, even if the procurement-at-issue involved an order against WEC's GSA Schedule contract through the BPA, the protest still appears to be untimely. SBA regulations dictate “[a] concern that represents itself as a small business and qualifies as small at the time of the initial offer ... is considered to be a small business throughout the life of that contract ... [and] for each order issued against the contract ... unless a contracting officer requests a new certification.” 13 C.F.R. § 121.404(g). OHA has consistently held a protest on an order against a long-term contract is timely only if the CO requested recertification in conjunction with that order. Size Appeal of Oxford Gov't Consulting, LLC, SBA No. SIZ-5732, at 2 (2016); 13 C.F.R. § 121.1004(a)(3)(iii). As discussed infra, the CO for the instant procurement did not request recertification. Thus, it is clear Appellant's size protest is untimely, and the Area Office properly dismissed it.

*4 For the above reasons, I hereby DISMISS the instant appeal. This is the final decision of the U.S. Small Business Administration. See 13 C.F.R. § 134.316(d).