United States Government Accountability Office

Washington, DC 20548

Comptroller General

of the United States

 

Decision

Matter of: Trident3, LLC

File: B-405781.3

Date: July 5, 2012

Allen Perkins, Esq., A. Perkins Law Firm, LLC, for the protester.

Gregory Kreutzberg, Esq., Department of the Navy, Naval Supply Systems 

Command; John W. Klein, Esq., Sam Q. Le, Esq., and Meagan K. Guerzon, Esq., 

Small Business Administration, for the agencies.

Eric M. Ransom, Esq., and Edward Goldstein, Esq., Office of the General Counsel, 

GAO, participated in the preparation of the decision. 

DIGEST

Protest that contract award terminated pursuant to negative size status 

determination should be reinstated following successful appeal to the Small 

Business Administration, Office of Hearings and Appeals, is denied where 

contracting agency followed all applicable regulations in terminating the award, and 

properly solicited revised proposals from all offerors.

DECISION

Trident3

, LLC, protests the solicitation of new proposals by the Department of the 

Navy in connection with request for proposals (RFP) No. N00189-11-R-0027, 

issued as a small business set-aside under the Small Business Administration’s 

8(a) program, for weather observation and forecasting services at 21 naval air 

stations, outlying landing fields, and auxiliary landing fields. 

We deny the protest. 

The Navy originally issued this requirement as RFP No. N00189-10-R-0030 in April 

2010, and made an award in January 2011. Following that award however, another 

competitor filed a size status protest at the SBA, as well as a protest at our Office. 

The Navy ultimately took corrective action in that matter, and our Office dismissed 

the protest. 

The Navy then issued the present RFP for the requirement on May 24, 2011, and 

made an award to Trident on August 30. However, after discovering an error in the 

DOCUMENT FOR PUBLIC RELEASE

The decision issued on the date below was subject to 

a GAO Protective Order. This redacted version has 

been approved for public release.
Page 2 B-405781.3 

procurement during the debriefing process, the Navy informed the offerors that it 

would reevaluate the proposals and make a new award decision. When the 

reevaluation was completed, the Navy again made the award to Trident on 

September 19. Other offerors then filed protests at the SBA challenging Trident’s 

size status, as well as protests at our Office. 

On October 14, the SBA area office determined that Trident was “other than small” 

for the purposes of the procurement, and was ineligible to receive the award. The 

Navy then advised that it would terminate the award to Trident, request revised 

proposals, and conduct a new evaluation. The Navy terminated the contract on 

October 25, and our Office dismissed the protests. Later that day, Trident filed an 

appeal of the SBA area office determination with the SBA’s Office of Hearings and 

Appeals (OHA). 

On December 1, the agency issued amendment 0004, which reopened the 

solicitation for the remaining offerors and revised the performance work statement 

by removing one of the site locations from the solicitation. On December 6, the 

agency issued amendment 0005, to add back the site location removed by 

amendment 0004 as an optional task.

On January 23, 2012, OHA informed the Navy that it had granted Trident’s size 

status appeal--reversing the SBA Area Office’s determination--and that Trident was 

therefore eligible for award under the RFP. Trident then sent the Navy a written 

demand for the reinstatement of Trident’s September 19, 2011 contract award, or a 

new award under the RFP. The Navy ultimately refused, stating that Trident’s 

contract had been terminated and the RFP reopened, that amendments had been 

issued, and that additional amendments were necessary to reflect changed 

requirements and incorporate new evaluation criteria. However, based on the OHA 

ruling, the Navy readmitted Trident to the competition, and provided it with all RFP 

amendments issued during the period of Trident’s appeal. The Navy then issued 

amendment 0006 on March 26, which revised the instructions to offerors, the 

evaluation criteria, the performance work statement, and the wage determinations, 

and added new line items for contingency support. The Navy also issued 

amendment 0007 on March 29, which included a new past performance information 

form, revised the past performance evaluation language, and extended the date for 

offerors to submit revised proposals. 

After the agency’s refusal to reinstate the previous award and issuance of 

amendments 0006 and 0007, Trident filed this protest on March 30, arguing that the 

Navy is required to award it the contract in accordance with Federal Acquisition 

Regulation (FAR) § 19.302(i), that the Navy issued multiple minor RFP 

amendments as a pretext for denying the reinstatement of Trident’s prior award, 
Page 3 B-405781.3 

and that issuance of amendments changing the evaluation criteria improperly 

favored the incumbent. 1

 

In relevant parts, FAR § 19.302(i) states that:

An appeal from an SBA size determination may be filed by any 

concern or other interested party whose protest of the small 

business representation of another concern has been denied by 

an SBA Government Contracting Area Director, any concern or 

other interested party that has been adversely affected by a 

Government Contracting Area Director’s decision, or the SBA 

Associate Administrator for the SBA program involved. . . . The 

SBA will inform the contracting officer of its ruling on the appeal. 

The SBA decision, if received before award, will apply to the 

pending acquisition. SBA rulings received after award shall not 

apply to that acquisition.

Trident argues that because the SBA OHA decision was received before the agency 

made a new contract award under the RFP, the OHA decision applies to the 

pending acquisition. Trident further asserts that “[i]f the Navy would now apply the 

SBA decision to the current solicitation an award to Trident should be immediately 

forthcoming because [Trident] has already twice been found the successful offeror.” 

Protest at 3. 

Our Office contacted the SBA in connection with this protest in order to solicit its 

opinion on the Navy’s actions in this case. In response, the SBA argued that the 

Navy had not violated applicable regulations. According to the SBA, upon learning 

that OHA had reversed the area office determination that Trident was ineligible, the 

agency’s “only obligation is to allow Trident to submit an offer for the current award 

and evaluate Trident’s eligibility as of the date of its offer for the current award.” 

SBA Opinion, at 4. By taking this action, the SBA maintains that the Navy has 

complied with applicable regulations, and that Trident’s protest should be denied. 

We agree with the SBA. 

The duties of a contracting agency following a size status protest determination are 

set forth in the SBA’s regulations at 13 C.F.R. § 121.1009 (2012). As relevant here, 

the regulations state: 

 1 The agency noted in a request for dismissal that the incumbent firm is not, in fact, 

an offeror under the current RFP. We also note that, as explained below, there is 

no authority requiring the agency to reinstate an award under these circumstances. 

We therefore treat the protester’s arguments in this area as a general allegation of 

bias in deciding to issue these amendments. 
Page 4 B-405781.3 

(2) A contracting officer shall not award a contract to a protested 

concern that the Area Office has determined is not an eligible 

small business for the procurement in question.

(i) If a contracting officer receives such a determination after 

contract award, and no OHA appeal has been filed, the 

contracting officer shall terminate the award.

(ii) If a timely OHA appeal is filed after contract award, the 

contracting officer must consider whether performance can be 

suspended until an appellate decision is rendered.

(iii) If OHA affirms the size determination finding the protested 

concern ineligible, the contracting officer shall either terminate the 

contract or not exercise the next option.

13 C.F.R. § 121.1009(g)(2). 

In this case, the Navy properly followed the SBA’s regulations by terminating 

Trident’s award, when it learned that the SBA area office determined that Trident 

was ineligible, and Trident had not yet filed an OHA appeal. Further, because a 

contract award under the RFP no longer existed at the time Trident’s OHA appeal 

was filed, 13 C.F.R. §§ 121.1009(g)(2)(ii) and 121.1009(g)(2)(iii) had no application 

in this case. The above regulations, therefore, did not preclude the agency from 

proceeding with a reopened RFP while Trident’s size status appeal was pending at 

OHA, and then reinstating Trident in the ongoing competition once OHA reached its 

decision. 

Moreover, we are not aware of, nor has Trident cited, any statute or regulation that 

expressly requires an agency to reinstate a terminated contract on the basis of an 

SBA OHA reversal of a negative size status determination.2

 2 The protester argues that language in 75 Fed. Reg. 9129 supports its claim for the 

award. This Federal Register notice concerns SBA proposed rules amending its 

regulations, and states that “if the SBA issues an initial decision that a concern is 

ineligible, award should not be made to that concern, unless and until the decision 

is overturned on appeal.” We do not read this language as mandating 

reinstatement of a terminated award, and conclude that the agency in this case 

followed the applicable SBA and FAR regulations, as discussed. 

 As noted above, FAR 

§ 19.302(i), merely provides that “[t]he SBA [OHA] decision, if received before 

award, will apply to the pending acquisition.” Thus, in the absence of any such 

regulation, the agency did not err in simply readmitting Trident to the ongoing 

procurement and providing all offerors, including Trident, with an opportunity to

submit revised proposals in response to solicitation amendments incorporating 
Page 5 B-405781.3 

changed agency requirements, a new wage determination, and new evaluation 

criteria. 

The remainder of Trident’s protest essentially argues that the agency’s 

amendments were issued in bad faith. According to Trident, the agency issued 

multiple minor amendments to the solicitation as a pretext for denying the 

reinstatement of Trident’s award. Trident also asserts that the changes to the past 

performance evaluation criteria set forth in amendments 0006 and 0007 were 

designed to improperly influence the outcome of the procurement. We see no 

evidence of bad faith or bias in the agency’s actions here. Government officials are 

presumed to act in good faith and a protester’s claim that an agency official was 

motivated by bias or bad faith must be supported by convincing proof. Brian X. 

Scott, B-310970, B-310970.2, Mar. 26, 2008, 2008 CPD ¶ 59 at 4. Our Office will 

not attribute unfair or prejudicial motives to procurement officials on the basis of 

inference or supposition. Id. 

As noted above, following the termination of Trident’s September 19 contract award, 

the agency issued amendment 0004 to the RFP to reopen the competition. This 

amendment also updated the performance work statement and removed one site 

location. Five days later, the agency issued amendment 0005, which added back 

as an option task the site location removed by amendment 0004. The agency 

explained that the location was initially removed because the Navy anticipated 

transitioning that requirement to performance by government personnel. However, 

the location was then added back to the RFP as an optional task after [DELETED]. 

Trident has provided no evidence to rebut the agency’s explanation of the purpose 

of these amendments; thus, we have no basis to conclude that they were improper. 

After OHA notified the Navy of its determination that Trident was eligible for award 

under the RFP and Trident was readmitted to the competition, the Navy issued 

amendments 0006 and 0007, which revised the instructions to offerors, the 

evaluation criteria, the performance work statement, and the wage determinations, 

and added new line items for contingency support. Concerning the changes to the 

past performance evaluation criteria, the agency explains that the changes were 

dictated by mandatory source selection plan criteria included in a March 4, 2011 

Department of Defense (DOD) memorandum, and a February 28, 2012 update to 

the Naval Supply Systems Command, Fleet Logistics Center Norfolk’s (FLCN) 

source selection plan template. 

In previous acquisitions processed by FLCN, the agency noticed that while small 

business offerors may have past performance references that are relevant in some 

areas of scope, complexity, and magnitude, the references may not be relevant in 

all three areas. To foster as much competition as possible, FLCN therefore 

instituted standard language in the source selection plan template to allow past 

performance references to be aggregated, such that small businesses with some 

relevant past performance on a single contract will have the opportunity to have 
Page 6 B-405781.3 

their entire past performance submission combined to determine relevancy. The 

past performance evaluation criteria set forth in amendments 0006 and 0007 to the 

RFP, issued after the February 28 update to the FLCN source selection plan 

template, reflect this new approach to past performance evaluation. 

In its comments, Trident argues that while the protested changes are set forth in the 

FLCN source selection template, the agency has not connected the change in the 

source selection template to the DOD memorandum. However, where the agency 

has identified the source of the updated past performance evaluation criteria and 

the reasoning for its inclusion in the RFP, we see no evidence of bias in the 

agency’s issuance of the challenged amendments. Further, agencies enjoy broad 

discretion in the selection of evaluation criteria, and we will not object to the use of 

particular evaluation criteria so long as they reasonably relate to the agency's needs 

in choosing a contractor that will best serve the government's interests. SML 

Innovations, B-402667.2, Oct. 28, 2010, 2010 CPD ¶ 254 at 2. 

The protest is denied. 

Lynn H. Gibson

General Counsel