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SIZE APPEAL OF: ODYSSEY SYSTEMS CONSULTING GROUP, LTD., APPELLANT RE: MILLENNIUM ENGINEERING AN...

SBA No. SIZ-6135, 20212021 WL 6499045December 23, 2021

SBA No. SIZ-6135, 2021 (S.B.A.), 2021 WL 6499045
Small Business Administration (S.B.A.)
Office of Hearings and Appeals
[Size Appeal]
*1 SIZE APPEAL OF: ODYSSEY SYSTEMS CONSULTING GROUP, LTD., APPELLANT
*1 RE: MILLENNIUM ENGINEERING AND INTEGRATION LLC
*1 SBA No. SIZ-6135
*1 Appealed from Size Determination No. 2-2021-051-052
*1 December 23, 2021

Appearances

*1 David S. Cohen, Esq.
*1 Laurel A. Hockey, Esq.
*1 Cordatis LLP
*1 Arlington, Virginia
*1 For Odyssey Systems Consulting Group, Ltd.
*1 Damien C. Specht, Esq.
*1 R. Locke Bell, Esq.
*1 Alissandra D. Young, Esq.
*1 Morrison & Foerster LLP
*1 Washington, D.C.
*1 For Millennium Engineering and Integration LLC.
*1 Meagan K. Guerzon, Esq.
*1 Office of General Counsel
*1 U.S. Small Business Administration, Washington, D.C.
 
DECISION1
  
I. Introduction and Jurisdiction
 
*1 On May 5, 2021, the U.S. Small Business Administration (SBA) Office of Government Contracting — Area II (Area Office) issued Size Determination No. 2-2021-051-052, dismissing two size protests filed by Odyssey Systems Consulting Group, Ltd. (Appellant) against Millennium Engineering and Integration LLC (MEI). The Area Office determined that the protests were untimely, because the protests were filed against the award of task orders that did not require recertification. On appeal, Appellant contends that the Area Office erroneously dismissed the protests, and requests that SBA's Office of Hearings and Appeals (OHA) remand the matter for a new size determination. 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).
 
II. Background
  
A. The Solicitations
 
*1 On December 18, 2020, the U.S. General Services Administration (GSA) issued Task Order Request for Proposals (TORFP) Nos. ID09210001 and ID09200105 for task order awards under GSA's One Acquisition Solution for Integrated Services (OASIS) small business pool 5B contracts. OASIS is a group of long-term, multiple-award, indefinite-delivery indefinite-quantity (ID/IQ) contracts, and pool 5B is set aside entirely for small businesses. Both TORFPs stated that GSA would conduct the procurements under the procedures set forth at Federal Acquisition Regulation (FAR) subpart 16.505.
*2 TORFP No. ID09210001 called for a contractor to provide technical and engineering support services for the Space and Missile Systems Center/Portfolio Architect (SMC/ZA) at Air Force bases in California and Colorado. (TORFP No. ID09210001 at 1.) The contractor will “perform a broad range of Advisory and Assistance Services (A&AS), to include but not limited to, systems engineering, engineering management, architecting, modeling and simulation, security, and environmental monitoring”. (Id. at 2.) The TORFP indicated that “[c]ompetition for a task order award is limited to OASIS SB Pool 5B awardees”, but did not expressly state that the order was set aside for small businesses. (Id.) The Contracting Officer (CO) assigned North American Industry Classification System (NAICS) code 541715, Research and Development in the Physical, Engineering, and Life Sciences (except Nanotechnology and Biotechnology). (Id. at 16.) NAICS code 541715 ordinarily is associated with a size standard of 1,000 employees, but the TOFRP indicated that this task order would fall within the exception for Guided Missiles and Space Vehicles, Their Propulsion Units and Propulsion Parts, which utilizes a size standard of 1,250 employees. (Id.) The TORFP did not include any express language requesting or requiring that an OASIS prime contractor must certify or recertify its size for this task order.
*2 TORFP No. ID09200105 called for a contractor to support the Space and Missile Systems Center at Kirtland Air Force Base in Albuquerque, New Mexico. (TORFP No. ID09200105 at 1.) The contractor will perform “engineering, program management and technical support services for the Rocket Systems Launch Program (RSLP), which serves as [the] primary provider of launch activities for the space Research and Development community supporting national security objectives and missile defense programs.” (Id.) The TORFP indicated that “[c]ompetition for a task order award is limited to OASIS SB Pool 5B awardees”, but did not expressly state that the order was set aside for small businesses. (Id.) The assigned NAICS code was 541715 with the exception for Guided Missiles and Space Vehicles, Their Propulsion Units and Propulsion Parts. (Id. at 17.) The TORFP did not include any express language requesting or requiring that an OASIS prime contractor must certify or recertify its size for this task order.
*2 Both TORFPs contained a “flow down” provision indicating that terms from the underlying OASIS contracts would apply to the task orders. The TORFPs stated:
*2 All applicable and required clauses set forth in FAR 52.301 and Offerors' OASIS master contract automatically flow down to all OASIS [task orders (TOs)], based on their specific contract type (e.g., cost, fixed-price, etc.), performance work statement, competition requirements, commercial or not commercial, and dollar value as of the date the TO solicitation is issued and are incorporated by reference into this solicitation and any resultant task order.
*3 (TORFP No. ID09210001, at 18; TORFP No. ID09200105, at 20.)
*3 The OASIS pool 5B contracts contained provisions relating to mergers and acquisitions involving the prime contractor. The contracts stated:
 
G.3.6. Mergers, Acquisitions, Novations, and Change-Of-Name Agreements
 
*3 If a [prime] Contractor merges, is acquired, or recognizes a successor in interest to Government contracts when Contractor assets are transferred; or, recognizes a change in a Contractor's name; or, executes novation agreements and change-of-name agreements by a CO other than the OASIS SB CO, the Contractor must notify the OASIS SB CO and provide a copy of the novation or any other agreement that changes the status of the Contractor. This notification, if applicable, applies once to the OASIS CO and not for each Pool the Contractor has an award under.
 
...
  
G.3.10. Post Award Small Business Program Re-Representation
 
*3 Subject to FAR 52.219-28, Post-Award Small Business Program Re-Representation; the Contractor shall re-represent its size status upon the occurrence of any of the following:
*3 1. Within 30 days after execution of a novation agreement
*3 2. Within 30 days after a merger or acquisition that does not require a novation, and
*3 3. Within 60 to 120 days prior to the end of the fifth year and prior to exercising Option I
*3 The Contractor shall re-represent its size status in accordance with the size standard in effect at the time of this rerepresentation that corresponds to the [NAICS] code assigned to the Pool(s) that corresponds to the Contractor's respective OASIS SB Multiple Award Contract Number(s).
*3 The Contractor shall make the re-representation by validating and updating all its representations in the Representations and Certifications section of the System for Award Management (SAM) and its other data in SAM, as necessary, to ensure that they reflect the Contractor's current status. The Contractor shall also notify the OASIS SB Contracting Officer in writing, within the timeframes specified above, as follows:
*3 The Contractor represents that it Empty Checkboxis, Empty Checkboxis not a small business concern under POOL 5B.
 
Novation Agreements or Mergers or Acquisitions that do[] not require a Novation:
 
*3 After the execution of a novation agreement or, after a merger or acquisition that does not require a novation, if the Contractor's size standard changes from a small business concern to other than a small business concern and the Contractor has active task orders, including the exercise of options and modifications at the task order level, the Contractor shall be placed in Dormant Status immediately in accordance with Section H.16. After all the active task orders are closed out, the Contractor shall be Off-Ramped in accordance with Section H.17. Furthermore, if a Contractor's size standard changes from a small business concern to other than a small business concern after a novation agreement or, after a merger or acquisition that does not require a novation, the Contractor shall not be eligible for Lateral Pool Ramping in accordance with Section H.15.1. or, Vertical Contract On-Ramping in accordance with Section H.15.2.
*4 Upon a novation, merger, or acquisition, if the successor Contractor's size standard remains a small business concern, the successor Contractor will automatically inherit the duties and responsibilities of the predecessor Contractor under the NAICS code assigned to the Pool(s) that corresponds to the Contractor's respective OASIS SB Multiple Award Contract Number(s).
*4 (OASIS pool 5B contract, at 34-35.)
*4 Proposals for both TORFPs were due January 19, 2021. Appellant and MEI submitted timely offers.
 
B. Protests
 
*4 On April 1, 2021, Appellant learned that MEI was the apparent awardee of both task orders. On April 8, 2021, Appellant filed two separate protests challenging MEI's size.2
*4 In the protests, Appellant observed that, in a press release dated February 10, 2021, QuantiTech LLC (QuantiTech) announced its merger with MEI. (Protest at 1.) QuantiTech is a “portfolio company” of Sagewind Capital LLC, a New-York based private equity firm, and is not small under a 1,250-employee size standard. (Id.) Appellant argued that, in accordance with SBA's revised size recertification rules at 13 C.F.R. § 121.404(g)(2), which became effective November 16, 2020, MEI was required to notify the CO of its merger with QuantiTech and to recertify its size. (Id. at 2.) Due to the merger with QuantiTech, MEI could not recertify as small, so MEI therefore should be ineligible for the instant awards. (Id.)
*4 Appellant argued that the protests were timely filed under 13 C.F.R. § 121.1004(a)(2)(ii). That regulation states that, if the CO requested a size recertification in connection with an order under a Multiple Award Contract (MAC), a size protest relating to that order is due within five business days after the protestor is notified of the identity of the apparent awardee. (Id., citing 13 C.F.R. § 121.1004(a)(2)(ii).) The instant protests involve the award of a task orders under the OASIS SB Pool 5B contracts, a MAC. Further, the protests were filed on April 8, 2021, five business days after Appellant learned that MEI had been selected for award of the orders. (Id.)
*4 Appellant then addressed the issue of whether the TORFP required recertification. According to Appellant, the recertification requirements at 13 C.F.R. § 121.404(g)(2) “triggered” a CO's “request” for size recertification in connection with the task order awards to MEI under the OASIS SB Pool contract. (Id. at 3-4.)
*5 Appellant asserted that SBA's new recertification regulations require MEI to recertify its size within 30 days of the merger with QuantiTech. (Id. at 6.) The TORFPs, issued December 18, 2020, are subject to the new regulations at 13 C.F.R. § 121.404(g)(2), which were issued October 16, 2020 and became effective November 16, 2020. (Id. at 6, 8.) Offers were due on January 19, 2021, and MEI was awarded the orders on or about April 1, 2021. (Id. at 8.) The updated regulations provide, in pertinent part:
*5 (g) Effect of size certification and recertification. 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. Similarly, a concern that represents itself as a small business and qualifies as small after a required recertification under paragraph (g)(1), (2), or (3) of this section is generally considered to be a small business[[] throughout the life of that contract. Where a concern grows to be other than small, the procuring agency may exercise options and still count the award as an award to a small business, except that a required recertification as other than small under paragraph (g)(1), (2), or (3) of this section changes the firm's status for future options and orders. The following exceptions apply to this paragraph (g):
 
...
 
*5 (2)(i) In the case of a merger, sale, or acquisition, where contract novation is not required, the contractor must, within 30 days of the transaction becoming final, recertify its small business size status to the procuring agency, or inform the procuring agency that it is other than small. If the contractor is other than small, the agency can no longer count the options or orders issued pursuant to the contract, from that point forward, towards its small business goals. The agency and the contractor must immediately revise all applicable Federal contract databases to reflect the new size status.
 
...
 
*5 (iii) If the merger, sale or acquisition occurs after offer but prior to award, the offeror must recertify its size to the contracting officer prior to award. If the merger, sale or acquisition (including agreements in principal) occurs within 180 days of the date of an offer and the offeror is unable to recertify as small, it will not be eligible as a small business to receive the award of the contract. If the merger, sale or acquisition (including agreements in principal) occurs more than 180 days after the date of an offer, award can be made, but it will not count as an award to small business.
*5 (Id. at 6-7, quoting 13 C.F.R. § 121.404(g)(2) (emphasis added by Appellant).) Here, MEI submitted its offers for the TORFPs on January 19, 2021, announced the merger with QuantiTech on February 10, 2021, and received the awards on or about April 1, 2021. (Id. at 3, 8.) Since the merger occurred within 180 days after the submission of proposals and prior to award, MEI was required to recertify its size under 13 C.F.R. § 121.404(g)(2)(iii). (Id. at 8.) The record does not reflect that MEI actually did recertify its size. (Id.) According to Appellant, the revised regulation “triggers” the CO's request for recertification “by operation of law”. (Id.) Recertification as a result of a merger logically must be a “requirement” for every solicitation, since a CO only would become aware of such a transaction when it is revealed by the contractor. (Id.)
*6 As a result of the merger with QuantiTech, MEI's total number of employees swelled to “over 2000” as of the date of its required recertification. (Id.) In accordance with 13 C.F.R. § 121.106(b)(4)(ii), MEI's size is determined by combining its own average number of employees with the average number of employees for its affiliates, including QuantiTech. (Id. at 8-9.) Because the combined total exceeds the applicable size standard of 1,250 employees, MEI is no longer a small business. (Id. at 9.)
*6 Appellant also argued that the TORFPs themselves required MEI to recertify its size within 30 days of its merger with QuantiTech. (Id.) The TORFPs made clear that:
*6 All applicable and required clauses set forth in FAR 52.301 and Offerors' OASIS master contract automatically flow down to all OASIS TOs ....
*6 (Id. at 9, quoting TORFPs.) As a result, Appellant argued, the re-representation clause at G.3.10 of the OASIS SB Pool 5B contracts was incorporated into the TORFPs. (Id. at 9-10.) Based on the TORFPs' requirement for recertification within 30 days of a merger, Appellant maintained, the date for determining size under the TORFPs was the same as the date set forth under 13 C.F.R. § 121.404(g)(2). (Id. at 10.)
*6 Further, Appellant argued that, even if SBA were to determine size as of the date that MEI submitted its offer on January 19, 2021, MEI still should be other than small because “it is evident” that MEI and QuantiTech must already have reached an agreement in principle to merge by that date. (Id. at 10-11.) The corporate transaction process “necessarily takes more than one month” and the merger was publicly announced on February 10, 2021. (Id. at 10.) SBA regulations at 13 C.F.R. § 121.103(d)(1) stipulate that “agreements to merge (including agreements in principle)” will have present effect on the power of one concern to control another. (Id. (emphasis added by Appellant).) OHA thus has held that a letter of intent will have present effect even if it is not legally binding. (Id. at 10-11, citing Size Appeal of Enhanced Vision Sys., Inc., SBA No. SIZ-5978 (2018).) Applying the present effect rule here, Appellant urges that MEI should already be deemed affiliated with QuantiTech as of January 19, 2021, and thus, would be other than small as of that date. (Id. at 11.)
 
C. Contracting Officer's Referral
 
*7 The CO forwarded the protests to the Area Office for review. Accompanying the size protests, the CO stated that the instant TORFPs contemplated the award of task orders under a group of long-term contracts, OASIS SB Pool 5B, and that “[n]o explicit size certification [was] required” for either task order. (Size Protest Checklist at 1.)
 
D. Size Determination
 
*7 On May 5, 2021, the Area Office issued Size Determination No. 2-2021-051-052, dismissing Appellant's size protests as untimely. The Area Office explained that both TORFPs were for task orders under a long-term contract, GSA's OASIS SB ID/IQ contracts. (Size Determination at 1.) SBA regulations at 13 C.F.R. § 121.1004(a)(3) provide that a size protest related to a long-term contract may be filed only at three stages:
*7 First, an interested party may protest a size certification made at the time the long-term contract is initially awarded. 121.1004(a)(3)(i).
*7 Second, an interested party may protest a size certification made at the time an option is exercised. 121.1004(a)(3)(ii). Third, an interested party may protest a size certification made ‘in response to a [CO's] request for size certifications in connection with an individual order.’ 121.1004(a)(3)(iii).
*7 (Id.) The instant protests were not timely filed at either of the first two stages, so the sole issue presented is whether the CO requested recertification in conjunction with the TORFPs. (Id. at 2.) After reviewing the TORFPs and the information provided by the CO, the Area Office determined that recertification was “not a requirement at the task order level” for either TORFP. (Id.) Instead, size is determined as of the date MEI submitted its offer for the underlying OASIS prime contract, and as a result, MEI remains a small business for these task orders. (Id.)
*7 Citing OHA case law, the Area Office stated that, when a CO does not request recertification for a task order under a long-term contract, there is “no regulatory mechanism” for a private party to challenge a successful offeror's size in connection with that order, and any such size protest must therefore be dismissed. (Id., citing Size Appeals of Safety and Ecology Corp., SBA No. SIZ-5177 (2010) and Size Appeal of Quantum Prof'l Servs., Inc., SBA No. SIZ-5207 (2011), recons. denied, SBA No. SIZ-5225 (2011) (PFR).) Language in a solicitation indicating that an award is limited to small businesses does not constitute a recertification requirement. (Id., citing Safety and Ecology Corp., SBA No. SIZ-5177, at 23.) OHA also has found that “recertification does not occur simply because mandatory FAR clauses were incorporated.” (Id., quoting Size Appeal of ReliaSource, SBA No. SIZ-5536, at 4 (2014).) Absent an explicit requirement for recertification, or confirmation from the CO that recertification was required, a size protest against a task order is untimely. (Id., citing Size Appeal of CodeLynx, LLC, SBA No. SIZ-5720 (2016).)
*8 The Area Office also noted that the recent regulatory changes to recertification requirements for MACs have no effect on the timeliness of the size protests. (Id. at 1-2.) For the instant procurements, offerors were required to certify as small at the time of their initial offer for the underlying OASIS base contracts. (Id. at 2.) SBA regulations for MACs:
*8 do not require recertification where the order is set-aside exclusively for a discrete category on the MAC for which it certified as small at the time of offer such as is the case in the instant solicitation, which was set-aside for OASIS SB Pool 5(B) which is classified under NAICS Code 541715, Exception C — Research and Development in Guided Missiles and Space Vehicles, Their Propulsion Units and Propulsion Parts.
*8 (Id. at 1-2, citing 13 C.F.R. § 121.404(a)(1).) Because there was no requirement that MEI recertify its size for individual task orders after submitting its initial offer for the OASIS prime contract, the size protests are untimely. (Id. at 2.)
 
E. Appeal
 
*8 On May 20, 2021, Appellant filed the instant appeal. Appellant asserts that the Area Office committed three main errors in reaching its decision. (Appeal at 7.) OHA should therefore remand the matter to the Area Office for a new size determination.
*8 Appellant contends, first, that the Area Office incorrectly applied the protest timeliness rules applicable to long-term contracts, rather than the rules applicable to MACs. Appellant explains that the instant TORFPs involved task orders to be awarded under the OASIS Pool 5B contracts, “a family of 7 separate Government-wide Multiple Award, Indefinite Delivery, Indefinite Quantity (MA-IDIQ) task order contracts”. (Id. at 8, emphasis Appellant's).) OASIS thus satisfies SBA's definition of a “Multiple Award Contract”, as set forth at 13 C.F.R. § 125.1. The Area Office itself similarly acknowledged that OASIS is a group of ID/IQ contracts, and referenced SBA regulations at 13 C.F.R. § 121.404(a)(1), which pertain specifically to MACs. (Id. at 8-9.) While the Area Office “seems to agree [with Appellant] that the OASIS Pool Contract is a MAC”, the Area Office nevertheless applied the protest timeliness rules governing long-term contracts. (Id. at 9.)
*8 Next, Appellant highlights that the protest timeliness regulations applicable to MACs permit a size protest to be filed within five business days after award of a task order that requires recertification. (Id., citing 13 C.F.R. § 121.1004(a)(2)(ii).) Appellant did, in fact, file the instant protests by the fifth business day after receiving notification of the awards to MEI. (Id.) The Area Office erred, however, in concluding that the CO did not request recertification for these orders. (Id. at 7, 9.)
*9 Appellant contends that, contrary to the size determination, both TORFPs did include express requirements to recertify following a merger. (Id. at 9.) In particular, the TORFPs stated that “All applicable and required clauses set forth in FAR 52.301 and Offerors' OASIS master contract automatically flow down to all OASIS TOs” and “are incorporated by reference into this solicitation and resultant task order.” (Id. at 9-10, quoting TORFPs (emphasis added by Appellant).) Appellant explains that the underlying OASIS contracts in turn contained clause G.3.10, requiring that the contractor must re-represent its size and socio-economic status “within 30 days after a merger or acquisition that does not require a novation”. (Id. at 10, quoting clause G.3.10 (emphasis added by Appellant).) In the instant case, MEI submitted its offers for the task orders on January 19, 2021 and was acquired by QuantiTech on February 4, 2021. (Id. at 11.) In accordance with clause G.3.10, then, MEI was required to recertify as a large business no later than March 4, 2021. (Id.) Further, according to clause G.3.10, MEI's inability to recertify as small should have immediately put MEI into “Dormant Status”. (Id. at 11-12.)
*9 Appellant maintains that the OHA decisions relied upon by the Area Office are not analogous to the situation presented here. (Id. at 12.) OASIS contract clause G.3.10, which flowed down to the TORFPs, is an explicit requirement for recertification, and means that a contractor's eligibility for task orders is contingent on its ability to recertify as a small business. (Id.) Unlike the cases cited in the size determination, the TORFPs “did not merely limit competition to small businesses or include general FAR clauses applicable to small businesses.” (Id.) Furthermore, these OHA decisions pre-date SBA's new recertification requirements, which became effective November 16, 2020. (Id.)
*9 Appellant argues that, in accordance with SBA's new recertification rules pertaining to mergers, MEI was required to recertify its size within 30 days of its merger with QuantiTech. Appellant maintains that the TORFPs, issued on December 18, 2020, are subject to SBA's new regulations providing:
*9 in the case of a merger, sale, or acquisition, where contract novation is not required, the contractor must, within 30 days of the transaction becoming final, recertify its small business size status to the procuring agency, or inform the procuring agency that it is other than small.
*10 (Id. at 13, quoting 13 C.F.R. § 121.404(g)(2)(iii) (emphasis added by Appellant).) The revised regulations at 13 C.F.R. § 121.404(g)(2)(iii) rendered MEI unable to recertify as small, because the merger occurred within 180 days of the date of offer. A CO will not learn about a corporate transaction until it is revealed by the contractor, so Appellant reasons that a “request for recertification must occur by operation of law in every solicitation.” (Id. at 15.) Otherwise, there would be “no mechanism” for a competitor to challenge an “offeror's certification (or lack thereof, as in this case)” to ensure that small business set-asides are awarded to genuine small businesses. (Id.) In its commentary accompanying the proposed rule, SBA indicated that it “would accept size protests with specific facts showing that an apparent awardee of a set-aside has recertified or should have recertified as other than small due to a merger or acquisition before award.” (Id., quoting 84 Fed. Reg. 60,846, 60,851 (Nov. 8, 2019).)
*10 In the instant case, QuantiTech acquired MEI on February 4, 2021, which was less than 180 days after offers for the task orders were due on January 19, 2021. (Id. at 16.) SBA regulations mandate recertification in this situation, which “necessarily satisfied the requirement for a ‘request’ for recertification as used in SBA's timeliness rules”. (Id.) Consequently, the Area Office should have “provide[d] interested parties with an opportunity to file timely protests challenging another offeror's recertification following a corporate acquisition or merger as [Appellant] did here”. (Id.)
*10 Lastly, Appellant disputes the Area Office's finding that 13 C.F.R. § 121.404(a)(1)(ii)(B) applies to the instant procurement. (Id. at 17.) That particular provision is relevant only to MACs with multiple assigned NAICS codes. (Id. at 18.) The OASIS SB Pool 5B contracts, however, are assigned only one NAICS code, 541715. (Id.) Even if § 121.404(a)(1)(ii)(B) were applicable here, that rule “makes clear that if a CO required recertification at the TO level, size is then determined at the time the TO proposal is submitted.” (Id.) Appellant reiterates its view that, under § 121.404(g)(2)(iii), the TORFPs did include “requests” for recertification. (Id.) Moreover, the regulation expressly acknowledges an exception when paragraph (g)(2), relating to mergers, is applicable. (Id.)
 
F. MEI's Response
 
*11 On June 7, 2021, MEI responded to the appeal. MEI asserts that the Area Office properly found that the TORFPs did not contain a requirement to recertify size. The appeal therefore should be denied since Appellant has shown no clear error of fact or law in the size determination. (MEI Response at 1.)
*11 As a preliminary matter, MEI acknowledges that it currently is no longer a small business. (Id. at 2.) The issue is immaterial, however, because MEI was a small business at the time MEI submitted its proposal for the OASIS contract. (Id.) MEI highlights that it submitted its proposal for both TORFPs on January 19, 2021, and subsequently was acquired, via a stock transfer, by QuantiTech, a large business, on February 4, 2021. (Id.) MEI survived as a subsidiary of QuantiTech, remaining a separate legal entity, but was converted from a corporation to a limited liability company. (Id.) MEI's name also was changed into its current form: Millennium Engineering and Integration LLC. (Id.) On February 26, 2021, MEI notified GSA of its change of size and sent letters to the COs responsible for the respective TORFPs. (Id. at 2-3.) As such, MEI met the requirements of contract clause G.3.10 and FAR clause 52.219-28, by re-representing its size as other than small to GSA. (Id. at 10.) On March 26, 2021, GSA awarded a task order to MEI under each solicitation. (Id. at 3.)
*11 MEI argues, first, that the Area Office correctly dismissed Odyssey's size protests under the timeliness rules applicable to long-term contracts. (Id. at 5.) While Appellant complains that the timeliness standards for MACs should have been applied by the Area Office, Appellant has not shown that the timeliness standards for MACs differ from those for long-term contracts. (Id.) The applicable regulations at 13 C.F.R. § 121.1004(a)(3) define a MAC as a type of long-term contract, stating:
*11 (3) Long-Term Contracts. For contracts with durations greater than five years (including options), including all existing long-term contracts, Multi-agency contracts, Governmentwide Acquisition Contracts and Multiple Award Contracts
*11 (Id., quoting 13 C.F.R. § 121.1004(a)(3) (emphasis added by MEI).) Appellant's arguments, then, are not supported by the “actual language” of the applicable SBA regulation. (Id. at 6.)
*12 MEI next argues that the Area Office correctly determined that the CO did not require recertification of size in connection with the task orders. (Id. at 6.) In reaching this decision, the Area Office reviewed the TORFPs as well as other information provided by the CO, and found no indication that recertification was required. (Id. at 7.) In addition, OASIS contract clause G.3.10 did not create a requirement for size recertification in connection with particular task orders. (Id.) Rather, this contract clause serves to incorporate the re-representation requirements of FAR 52.219-28 into the OASIS prime contracts. (Id. at 8.) The re-representation clause at FAR 52.219-28 requires a contractor to:
*12 re-represent its size and socio-economic status ... within 30 days after a merger or acquisition that does not require a novation.
*12 (Id. at 10.) Contrary to Appellant's suggestions, the clause does not require size recertifications in connection with individual task orders. (Id.) MEI argues that both clause G.3.10 and FAR 52.219-28 pertain to matters of contract administration and “say nothing about any individual order, much less request a size certification in connection with one.” (Id. at 8.) Similarly, none of the other provisions cited by Appellant pertain to recertification of size for individual task orders. Section B.1 “speaks only to performance of work under the awarded task order and says nothing about the clauses applicable to the solicitation” while Section I, entitled “TASK ORDER CLAUSES” merely explains that apposite OASIS contract clauses “are incorporated by reference into this solicitation and any resultant task order” without any suggestion that G.3.10 or FAR 52.219-28 are “applicable and required”. (Id. at 8-9.) MEI maintains that any “flowdowns” are not “intended in any way to limit or guide GSA's evaluation of task order proposals.” (Id. at 9.) Moreover, as the Area Office observed in the size determination, OHA has previously rejected claims that general references to FAR clauses, or to a procurement being restricted to small businesses, constitute a request for recertification. (Id. at 9-10.)
*12 MEI argues that despite Appellant's arguments, re-representation at the contract level does not preclude a firm from being eligible for pending task order awards. (Id. at 11.) Clause G.3.10 of the OASIS contracts stipulates that if a prime contractor's size has changed to “other than a small business concern” then it will be placed into “Dormant Status” as described in clause H.16, which states:
*13 If Dormant Status is activated, the Contractor shall not be eligible to participate or compete in any subsequent task order solicitations while the Contractor is in Dormant Status; however, Contractors placed in Dormant Status shall continue performance on previously awarded and active task orders, including the exercise of options and modifications at the task order level.
*13 (Id., quoting OASIS contract clause H.16 (emphasis added by MEI).) As such, MEI argues, its “change in size affected its eligibility only for “subsequent task order solicitations,' not past ones, like these, for which proposals had already been received and are clearly not subsequent to the recertification.” (Id., emphasis MEI's.) The CO's determination of how and when to place a contractor in “Dormant Status” is a question of contract administration “wholly within GSA's discretion, so long as that discretion does not conflict with the SBA's regulations.” (Id.)
*13 MEI asserts that “recertification in connection with an acquisition does not alter an offeror's eligibility for award under SBA's regulations” specifically in the case of task order eligibility. (Id. at 12, citing Matter of Analytic Strategies, Inc., SBA No. VET-268 (2018) and Size Appeal of Mistral, Inc., SBA No. SIZ-5737 (2016).) As a result, the key question presented in this case is whether the CO requested recertification in connection with the task order awards. (Id.) OHA case law supports the finding that the CO made no such request. (Id.)
*13 Turning to Appellant's next allegation, MEI maintains that SBA's revised recertification rules at 13 C.F.R. § 121.404(g)(2)(iii) do not create an obligation to recertify in connection with all task order proposals. (Id.) The regulation discusses the eligibility of offerors for “‘the award of [a] contract’ and not the issuance of ‘task or delivery orders.”D’ (Id. at 13 (emphasis MEI's).) In accordance with 13 C.F.R. § 121.404(g)(4), in the case where a MAC is set-aside for small businesses, like the OASIS contracts, a contractor undergoing a merger will continue to be eligible for “new orders” issued under the MAC, however, the agency will not be allowed to count those new orders towards its small business goals if the firm is other than small. (Id. at 14.) If Appellant's interpretation of § 121.404(g)(4) were correct, then the prohibition on goaling credit for “new orders” would be meaningless, as contractors would never have been eligible for those new orders in the first instance. (Id.)
*14 MEI asserts that the preamble to the revised § 121.404(g)(4) reiterates that, for purposes of determining size for task order proposals, a contracting officer has “discretion on whether to request size recertification as he or she deems appropriate at any point only for a long-term MAC.” (Id. at 15-16, quoting 85 Fed. Reg. 66,146, 66,154 (Oct. 16, 2020).) As such, there cannot be any “universal recertification request” for all task order solicitations. (Id. at 16.)
 
G. SBA's Comments
 
*14 On July 16, 2021, SBA submitted comments on the instant appeal. SBA maintains that the Area Office properly dismissed the size protests as untimely. (SBA Comments at 2.) Appellant's protests were not filed “within five business days of a CO's request for size recertification in connection with an individual order against a long-term contract.” (Id. at 3, citing 13 C.F.R. § 121.1004(a)(3)(iii).) Rather, there was no request from the CO for a size recertification in connection with the particular orders at issue. (Id. at 3, 8.) Further, the timeliness deadlines at 13 C.F.R. § 121.1004(a)(3)(i) and (ii) are not applicable because Appellant's protests did not challenge the award of the underlying OASIS contract or the exercise of an option. (Id. at 3.)
*14 SBA asserts that the updated size recertification rules at 13 C.F.R. § 121.404(g)(2) do not alter the timelines for filing a size protest. (Id.) Contrary to Appellant's claims that the TORFPs contained “an express request for recertification” based on changes to SBA regulations at 13 C.F.R. § 121.404(g)(2)(iii), the “amended recertification rule did not impact the timelines for protest at 13 C.F.R. § 121.1004(a)(3)(iii) nor did the change automatically create a CO requested size recertification in connection with individual task order solicitations.” (Id.) The regulation at 13 C.F.R. § 121.404(g)(2)(i) explains how a recertification that a business is other than small following a “merger, sale, or acquisition” affects an agency's goaling. (Id. at 4-5.) Effective November 16, 2020, SBA amended the language of 13 C.F.R. § 121.404(g)(2)(iii), but Appellant's reliance on this provision is misplaced because it “does not apply to orders against small business set-aside or reserved contracts”. (Id. at 5, citing 86 Fed. Reg. 66,146 (Oct. 16, 2020), as corrected at 85 Fed. Reg. 72,916 (Nov. 16, 2020); 86 Fed. Reg. 2,957, 2,959 (Jan. 14, 2021), and 86 Fed. Reg. 10,732, 10,732 (Feb. 23, 2021).) Rather, because Pool 5B of the OASIS contracts was set aside for small businesses, the regulation applicable here is found at 13 C.F.R. § 121.404(g)(4):
*15 (4) The requirements in paragraphs (g)(1), (2), and (3) of this section apply to Multiple Award Contracts. However, if the Multiple Award Contract was set-aside for small businesses, partially set-aside for small businesses, or reserved for small business, then in the case of a contract novation, or merger or acquisition where no novation is required, where the resulting contractor is now other than small, the agency cannot count any new orders issued pursuant to the contract, from that point forward, towards its small business goals. This includes set-asides, partial set-asides, and reserves for 8(a) BD Participants, certified HUBZone small business concerns, SDVO SBCs, and ED/WOSBs.
*15 (Id. at 6.) In interpreting 13 C.F.R. § 121.404(g)(4), SBA explains:
*15 This exception makes clear that when the underlying multiple award contract is set-aside for small business, and a firm recertifies as other than small within 180 days of offer, the firm is still eligible for pending and future order awards, but the agency cannot count those awards towards its small business goals.
*15 (Id.) Here, because the instant task orders were issued under Pool 5B of the OASIS contracts, which were set aside for small businesses, § 121.404(g)(4) is applicable. (Id.) Even if the size protests were timely, then, MEI still would be eligible to receive the orders, but those orders could not be counted toward the procuring agency's small business goals. (Id.) SBA reiterates its view that the “regulatory requirement to recertify size following a merger, sale, or acquisition is not a CO request for size certification in connection with an individual order.” (Id. at 8.)
*15 Next, SBA disputes Appellant's contention that language in the TORFPs themselves amounted to a CO's request for recertification. The TORFPs merely “referenced the inclusion of OASIS contract clauses without actually including the text of any size recertification requirements that may be part of those contract-level terms.” (Id. at 7.) MEI did recertify as other than small following the merger, and the OASIS Pool 5B contracts appear to indicate that MEI should then have been placed in dormant status. (Id.) However, contract-level provisions relating to the effects of dormant status were not specifically included in the TORFPs “other than through a reference that the OASIS contract level terms would flow through to the task orders.” (Id. at 8.) Given the TORFPs, the Area Office properly found that this required “flow-down” of contract clauses into subsequent task order awards, including the recertification requirement following an acquisition, “did not equate to an explicit CO request for size recertification in connection with the individual orders at issue.” (Id.)
*16 SBA highlights that OHA case law instructs that “recertification does not occur simply because mandatory FAR clauses were incorporated.” (Id., quoting Size Appeal of ReliaSource, SBA No. SIZ-5536, at 4 (2014).) Instead, OHA has previously concluded that a “task order solicitation must contain an explicit request for size recertification” and the facts here do not support such a finding. (Id.) If OHA were to hold that recertification at the task order level was required in the instant case by operation of law, OHA would effectively eliminate a CO's discretion to choose whether or not to request recertification at the task order level. (Id.) Moreover, in past cases, OHA has attached significant weight to the CO's view of whether or not recertification was required. (Id., citing Size Appeal of Advanced Mgmt. Strategies Group, Inc./ReefPoint Group, LLC, SBA No. SIZ-5905, at 6 (2018); Size Appeal of CodeLynx, LLC, SBA No. SIZ-5720, at 6 (2016).) The CO here confirmed that “there was no intent to request a size recertification in connection with the task orders at issue.” (Id.)
 
III. Discussion
  
A. Standard of Review
 
*16 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).
 
B. Analysis
 
*16 Having reviewed 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 protests as untimely. This appeal must therefore be denied.
*16 As the Area Office correctly observed, the TORFPs here contemplated the award of task orders under GSA's OASIS Pool 5B contracts. Section II.A, supra. OASIS is a group of long-term, multiple-award ID/IQ contracts, and Pool 5B is set aside entirely for small businesses. Id.
*16 SBA's long-standing approach to assessing size for task and delivery order contracts has been that a concern which represents itself as small at the time of contract award will remain small throughout the life of the contract, including for any orders issued under the contract. A contracting officer may, however, at his or her discretion, request recertification of size for an individual order. In adopting this approach, SBA rejected calls to require a new size certification for each order, explaining:
*17 [R]equiring a business to certify its size at the time of offer for a multiple award contract, and not for each order issued against the contract, strikes the right balance and is consistent with SBA's current policy. If the contract were not a multiple award contract, then the business would represent its size at the time of offer and if it were small, it would be considered small for the life of the contract up to and including the fifth year. This policy should be the same for multiple award contracts. If a business is small for a size standard assigned to a NAICS code at the time of offer for a multiple award contract, then it is small for all orders with that same NAICS code and size standard for the life of the contract up to and including the fifth year of the multiple award contract.
*17 78 Fed. Reg. 61,114, 61,119 (Oct. 2, 2013).
*17 SBA has amended and refined the applicable regulations in subsequent years, but the fundamental approach to examining size for task and delivery order contracts has remained intact. Thus, with regard to multiple award contracts (MACs) where the MAC itself was set aside for small businesses, and which have a single assigned NAICS code, such as the instant OASIS Pool 5B contracts, SBA regulations now provide:
*17 Set-aside Multiple Award Contracts. For a Multiple Award Contract that is set aside for small business (i.e., small business set-aside, 8(a) small business, service-disabled veteran-owned small business, HUBZone small business, or women-owned small business), if a business concern (including a joint venture) is small at the time of offer and contract-level recertification for the Multiple Award Contract, it is small for each order or Blanket Purchase Agreement issued against the contract, unless a contracting officer requests a size recertification for a specific order or Blanket Purchase Agreement.
*17 13 C.F.R. § 121.404(a)(1)(i)(B).
*17 Consistent with the notion that the prime contractor of a long-term task or delivery order contract “is small for each order” unless a contracting officer chooses to request recertification for a particular order, SBA regulations governing size protests permit that a protestor may bring a size protest relating to such a contract only in three situations.3First, 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. Id. § 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.” Id. § 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 AIS Eng'g, Inc., SBA No. SIZ-5614, at 4 (2014); Size Appeal of Tyler Constr. Group, Inc., SBA No. SIZ-5323 (2012); Size Appeal of Quantum Prof'l Servs., Inc., SBA No. SIZ-5207 (2011), recons. denied, SBA No. SIZ-5225 (2011) (PFR).
*18 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. 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). 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.
*18 In the instant case, the Area Office reviewed the TORFPs and the underlying OASIS contracts, and reasonably concluded that there was no request for recertification at the task order level. The TORFPs did not instruct OASIS contractors to recertify size, nor to otherwise represent or re-represent their size. Section II.A, supra. The CO similarly informed the Area Office that recertification was not requested for these particular task orders. Section II.C, supra. Although Appellant highlights that OASIS contract clause G.3.10 contains language requiring recertification in the event of a merger, the TORFPs made no specific reference to clause G.3.10, and clause G.3.10 itself says nothing about recertification in conjunction with any individual orders. Section II.A, supra. Furthermore, clause G.3.10 largely implements standard FAR clause 52.219-28, and as noted above, OHA has repeatedly declined to find that references to standard FAR provisions constitute a request for recertification. Appellant also observes that the TORFPs included a provision indicating that ““applicable and required” clauses from the OASIS contracts would be incorporated into the resulting task orders. Id. While this is true, the TORFPs did not state that clause G.3.10 was among those “applicable and required” provisions, and again, even if clause G.3.10 had been incorporated into the TORFPs, clause G.3.10 does not address recertification at the task order level. Id. Given this record, then, the Area Office appropriately concluded that Appellant's protests were not timely filed within five business days after award of orders that required recertification.
*19 Citing SBA's revised recertification rules pertaining to mergers and acquisitions at 13 C.F.R. § 121.404(g)(2), Appellant contends that recertification was constructively “requested” for the instant task orders through operation of law. This argument, though, lacks foundation in the regulatory text. There is no indication in § 121.404(g)(2) that a requirement to recertify as a result of a merger, sale, or acquisition is, without specific language in the task order solicitation, equivalent to a CO's request for size recertification in connection with a particular task order. Indeed, such an approach would be contrary to SBA's long-standing regulatory scheme, discussed above, whereby a prime contractor that is small at the time of contract award remains small for all orders issued under the contract, unless the CO, in his or her sole discretion, chooses to request recertification on an individual order-by-order basis. Appellant also urges that, from a policy perspective, a request to recertify as a result of a merger, sale, or acquisition should be implicit in all task order solicitations, because a protestor otherwise may be unable to challenge a competitor's size following a merger, sale, or acquisition. Such arguments should be directed to SBA policy officials, not to OHA, as OHA does not establish SBA policy and lacks authority to disturb SBA regulations. Size Appeal of ADVENT Envtl., Inc., SBA No. SIZ-5325, at 9 (2012) (citing Size Appeal of Condor Reliability Servs., Inc., SBA No. SIZ-5116, at 6 (2010)). It is worth noting, however, that a size protest brought by a CO or by SBA is not subject to the time limitations that apply to protests filed by private parties. 13 C.F.R. § 121.1004(b). Contrary to Appellant's suggestions, then, existing regulations may already provide mechanisms for a timely size protest relating to such a merger, sale, or acquisition to be filed, albeit perhaps by a CO or by SBA rather than by a private party.
*19 Lastly, SBA and MEI contend that, even if OHA were to conclude that recertification was required for the instant TORFPs, such that Appellant's size protests were timely, MEI would remain eligible for award of the task orders. In support, SBA and MEI highlight that, according to SBA regulations:
*19 The requirements in paragraphs (g)(1), (2), and (3) of this section [[121.404] apply to Multiple Award Contracts. However, if the Multiple Award Contract was set-aside for small businesses, partially set-aside for small businesses, or reserved for small business, then in the case of a contract novation, or merger or acquisition where no novation is required, where the resulting contractor is now other than small, the agency cannot count any new orders issued pursuant to the contract, from that point forward, towards its small business goals. This includes set-asides, partial set-asides, and reserves for 8(a) BD Participants, certified HUBZone small business concerns, SDVO SBCs, and ED/WOSBs.
*20 13 C.F.R. § 121.404(g)(4). Appellant counters that, under the express language of § 121.404(g)(2)(iii), a prime contractor which recertifies as other than small as a result of a merger or acquisition “will not be eligible as a small business to receive the award of the contract”. Thus, in Appellant's view, following its merger with QuantiTech, MEI no longer was eligible for award of the instant task orders.
*20 I agree with SBA and MEI that the most reasonable interpretation of § 121.404(g)(4) is that, when, as here, the underlying MAC itself was set aside for small businesses, the consequence of a merger or acquisition involving a prime contractor is not that the prime contractor becomes ineligible for award of pending or future task orders, but rather that the procuring agency cannot claim goaling credit for those orders. If Appellant's interpretation were correct, § 121.404(g)(4) would become largely meaningless, as there would be no need to clarify that a procuring agency could not claim goaling credit for new orders issued to a prime contractor following a merger or acquisition, if the prime contractor were not eligible for such orders in the first instance. In any event, though, because Appellant has not shown that the Area Office improperly dismissed Appellant's size protests as untimely, this appeal must fail, as interpretation of § 121.404(g)(4) would only further bolster the Area Office's decision.
 
IV. Conclusion
 
*20 Appellant has not demonstrated clear error in the 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).
*20 Kenneth M. Hyde
*20 Administrative Judge

Footnotes

This decision was originally issued under a protective order. Pursuant to 13 C.F.R. § 134.205, OHA afforded the parties an opportunity to request redactions if desired. After reviewing the decision, the parties informed OHA that they had no requested redactions. Therefore, OHA now issues the entire decision for public release.
The protests were substantively identical. For convenience, citations are to the protest filed in conjunction with TORFP No. ID09200105.
In its appeal petition, Appellant observes that SBA protest regulations contain separate provisions relating to size protests involving negotiated procurements, a term which encompasses set-asides of orders against Multiple Award Contracts, and size protests involving long-term contracts, which includes all existing long-term contracts, Multi-agency contracts, Governmentwide Acquisition Contracts and Multiple Award Contracts. 13 C.F.R. § 121.1004(a)(2) and (3). Because the OASIS Pool 5B contracts are MACs, as defined at 13 C.F.R. § 125.1, with a cumulative period of performance of 10 years, and because the task orders here were not themselves set aside for small businesses, the Area Office properly applied the protest regulations pertaining to long-term contracts rather than negotiated procurements.
Even assuming the Area Office had referenced the wrong set of protest rules, though, any such error would be harmless. As OHA has previously explained, the two sets of protest rules do not substantively differ in their treatment of size protests involving task orders, as a size protest may be timely filed under either set of rules only if the CO requested recertification for the particular order(s) in question. Size Appeal of Universal Strategy Group, Inc., SBA No. SIZ-5840, at 5 (2017).
SBA No. SIZ-6135, 2021 (S.B.A.), 2021 WL 6499045
End of Document