GAO Finds Company's BPA BID Remains Eligible for Award Despite a Transaction, Recertification, and Change in Size Status in Connection with Its Underlying Federal Supply Schedule Contract

Small business regulations create one of the stickier wickets in bid protest litigation. Although the Small Business Administration (SBA) has exclusive authority to determine a company’s size and socioeconomic status, the Government Accountability Office (GAO) sometimes must wrestle with size and status questions to adjudicate bid protests. The GAO’s recent decision in Washington Business Dynamics, B-421953, B-421953.2, Dec. 18, 2023, includes a lengthy analysis of a particularly complicated question: the effect of a merger or acquisition on a pending quotation for an order or Blanket Purchase Agreement (BPA) under a Federal Supply Schedule (FSS) contract. In this decision, the GAO held that, although a company recertified its size under an FSS contract following a merger or acquisition, that recertification did not trigger a further recertification in connection with its pending quotation for a BPA under that FSS contract. That, at least, was the outcome under the regulations as they stood at the time and the facts of this particular case.

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