In ELB Services, LLC v. United States, the Court of Federal Claims considered a challenge brought by an SDVOSB contractor regarding a contract award issued by the Department of Veterans Affairs (VA). ELB Services objected to the award based on the eligibility status of the selected vendor, JRS Staffing Services, LLC, and raised concerns about how its protest was handled by the Small Business Administration (SBA).
Contract Award and Initial Status Protest
The VA issued a solicitation for emergency HVAC repairs as a set-aside under the Service-Disabled Veteran-Owned Small Business (SDVOSB) program. ELB Services submitted a timely proposal. The VA awarded the contract to JRS Staffing Services, another SDVOSB-listed business.
After learning the awardee’s identity, ELB submitted a protest to the contracting officer and subsequently filed a status protest with the SBA, asserting that JRS did not meet SDVOSB eligibility criteria. ELB alleged deficiencies related to ownership and control. The SBA dismissed the protest on procedural grounds, citing a missed filing deadline under 13 C.F.R. § 128.402.
Review of Protest Timing and Regulatory Discretion
The Court of Federal Claims reviewed the SBA’s dismissal, focusing on whether the protest had been submitted within the five-business-day limit that begins once the apparent awardee is identified. ELB argued that it needed more time to evaluate the awardee’s structure. The court found that the timing requirement was not dependent on when ELB gathered supporting information, but rather on the notice of the awardee itself.
ELB also questioned why the SBA did not initiate its own review of JRS’s status. The court referred to regulations permitting such reviews but noted that they do not impose an obligation on the agency to act without a protest that meets procedural standards.
Standing and Agency Conduct
ELB was found to have standing because it submitted a proposal and was directly affected by the award. The court upheld the SBA's decision to dismiss the protest based on when it was filed and declined to second-guess the agency’s response given the regulatory procedures in place.
SDVOSB Protest and Verification Compliance Support
If your business needs guidance with CVE registration, eligibility criteria, or filing requirements under the SDVOSB program, our team at Whitcomb, Selinsky, PC provides support with the certification process and related government contracting procedures.
Joe Whitcomb
