Timing truly is everything. In this week’s Bid Protest Beat, Partner Stephanie Wilson explores a recent size appeal decision by the Small Business Administration’s Office of Hearings and Appeals that discusses the SBA’s regulation determining the size of an offeror for a contract as of the date that offeror submits its initial offer, including price, and how one contractor used that regulation to its advantage when competing for a small business set-aside contract.
Size Appeal of DecisionPoint Corp., SBA No. SIZ-6379 (Apr. 8, 2026)
In late 2024, the U.S. Transportation Command (USTRANSCOM) issued an RFP for enterprise architecture, enterprise data management, and information technology engineering services that included a two-phase proposal process. The RFP was competed as a small business set-aside. Phase I proposals were due December 9, 2024, and Phase II proposals, including price, were due on April 10, 2025.
Protestor DecisionPoint Corporation (DecisionPoint) and UNCOMN, LLC (UNCOMN) submitted timely offers in response to the RFP, and DecisionPoint was notified on September 9, 2025, that the agency intended to award the contract to UNCOMN. DecisionPoint filed a timely size protest shortly after, alleging that UNCOMN was ineligible for the award because it was no longer a small business. The protest argued that, because UNCOMN was considered a large business according to its System for Award Management (SAM) data on January 1, 2025, four months before the Phase II proposals and pricing were due on April 10, 2025, it should not have qualified for the small business set-aside.
Under 13 C.F.R. § 121.404(a), an offeror’s size is determined on the date that the initial offer, including price, is submitted. As the protestor did not provide any evidence that UNCOMN was not considered small at any point before submitting its initial offer, the SBA Area Office dismissed the protest as nonspecific.
DecisionPoint appealed the Area Office’s dismissal to the SBA’s Office of Hearings and Appeals (OHA). It argued that, because UNCOMN was no longer small when the Phase II pricing was due in April 2025, UNCOMN’s size determination should have been made when the RFP pricing was final – April 10, 2025. OHA rejected this argument and reaffirmed the Area Office’s dismissal, noting that 13 C.F.R. § 121.404(a) “unambiguously” states that an offeror’s small size status determination is made when a self-certification is provided as part of an initial offer that includes price. OHA asserted that this regulation for size determination for small business set-asides “has been recognized for decades.”
Because UNCOMN submitted its Phase II proposal and pricing in December 2024 (4 months before the RFP’s deadline), and DecisionPoint did not allege that UNCOMN was not small at the time it submitted its initial offer including price, OHA denied the appeal and affirmed the Area Office’s size determination.
What Can Government Contractors Learn From This?
One of the most difficult phases for a government contractor is when it outgrows its small business size status. In preparing for this transition, small businesses often try to maximize the number of small business set-aside contracts they are awarded before they must shift to full-and-open competition. As this decision highlights, contractors can lock in their eligibility for a small business set-aside contract as long as the initial offer of price is submitted while the contractor is still considered small. As this decision highlights, under SBA’s regulations, the offeror who submits its initial offer, with price, while still small will remain eligible for contract award even if it is no longer small at the time of award.
Have questions about how to keep your govcon business competitive when pursuing new contracts? Contact Stephanie Wilson at swilson@berenzweiglaw.com.