SETA Corporation , No. 4477 (March 1, 2002) Docket No. SIZ-2001-06-01-17 Federal Emergency Management Agency, No. 4477 (March 1, 2002) Docket No. SIZ-2001-06-04-18 UNITED STATES OF AMERICA SMALL BUSINESS ADMINISTRATION OFFICE OF HEARINGS AND APPEALS WASHINGTON, D.C. ) SIZE APPEALS OF: ) ) SETA Corporation ) ) Docket Nos. SIZ-2001-06-01-17 Federal Emergency Management ) SIZ-2001-06-04-18 Agency ) ) Appellants ) ) Solicitation No. ) Decided: March 1, 2002 RFQ EMV-2001-RQ-0013 ) BPA EMV-2001-BP-0075 ) ) Federal Emergency Management ) Agency ) Procurement Office ) Bluemount, Virginia ) APPEARANCES Leslie H. Lepow, Esq. Paul W. Cobb, Jr., Esq. Geoffrey A. Barrow, Esq. Jenner & Block, LLC for Appellant SETA Corporation Edward Broyles, Esq. Office of General Counsel for Appellant Federal Emergency Management Agency Kenneth Dodds, Esq. Office of General Counsel for Appellant Small Business Administration Andrew P. Hallowell, Esq. Piliero, Mazza, & Pargament, PLLC for Intervenor ARTEL, Inc. Thedlus L. Thompson, Esq. Office of General Counsel for Intervenor General Services Administration William L. Walsh, Esq. William Craig Dubishar, Esq. Paul N. Wengert, Esq. Venable, Baetjer and Howard, LLP for Intervenor Applied Computing Technologies, Inc. DIGEST The Small Business Administration's regulations governing the 8(a) program do not apply to a size determination issued in connection with a procurement that is not an 8(a) procurement. A Request for Quotations issued under a Federal Supply Schedule or Multiple Award Schedule contract, with the intention of entering into a Blanket Purchase Agreement, which the procuring agency designates as a small business set-aside, is a new small business set-aside procurement. In a small business set-aside procurement issued as Request for Quotations under a Federal Supply Schedule or Multiple Award Schedule contract, the size of a challenged firm is determined as of the date of its submission of its certification as an eligible small business, with its price quotation in response to the Request for Quotations. DECISION HOLLEMAN, Administrative Judge: Jurisdiction This appeal is decided under the Small Business Act of 1958, 15 U.S.C. Section 631 et seq. and 13 C.F.R. Parts 121 and 134. Issues Whether the Small Business Administration's regulations governing the 8(a) program apply to a size determination issued in connection with a procurement that is not an 8(a) procurement. Whether a Request for Quotations issued under a Federal Supply Schedule or Multiple Award Schedule contract, with the intention of entering into a Blanket Purchase Agreement, which the procuring agency designates as a small business set-aside, is a new small business set-aside procurement. When is the size of a challenged firm determined in a small business set-aside procurement issued as a Request for Quotations under a Federal Supply Schedule or Multiple Award Schedule contract. I. BACKGROUND A. The Procurement On November 18, 1996, Appellant SETA Corporation (SETA) submitted an offer to the General Services Administration (GSA) for a Multiple Award Schedule (MAS) contract for Information Technology (IT) Professional Services on GSA's Group 70 Federal Supply Schedule (FSS) contract. [1] On March 4, 1997, GSA awarded FSS Contract Number GS35F4490G to SETA for a term of two years, with a three-year option period. GSA later modified the contract to a five-year term. On February 1, 2001, Appellant Federal Emergency Management Agency (FEMA) issued a Request for Quotations (RFQ) for IT Professional Services for FEMA's Mount Weather Emergency Assistance Center (and other FEMA sites). The FEMA Contracting Officer (CO) limited the distribution of the RFQ to contractors listed on the GSA Schedule Contract for IT Professional Services, Group 70, Special Item 132-51. FEMA stated its intention to award one Blanket Purchase Agreement (BPA) for the services in the RFQ. The cover letter for the RFQ stated the procurement was totally set aside for small business under North American Industry Classification System (NAICS) code 514210, Data Processing Services, with a corresponding $18 million average annual receipts size standard. The RFQ included FAR clause Section 52-219-1 designating a NAICS code and requiring each quoter to self-certify as to whether it is or is not a small business. On March 1, 2001, SETA submitted its quotation in response to the RFQ. SETA self-certified that it was not a small business. On April 20, 2001, the CO awarded the BPA to SETA and notified the unsuccessful offerors of the award. On April 24, 2001, ARTEL, Inc. (ARTEL), protested the award to SETA because SETA was not a small business when it submitted its quotation. On April 25, 2001, Applied Computing Technologies, Inc. (ACT) also filed a protest, alleging SETA was not a small business based on news accounts that described it as having receipts in excess of the applicable size standard. On May 2, 2001, the CO forwarded the two protests to the Small Business Administration's (SBA) Area II Office of Government Contracting (Area Office), in Philadelphia, Pennsylvania. On May 7, 2001, the Area Office informed SETA of the protests and requested that it file an SBA Form 355, together with its financial statements for its last three completed fiscal years and certain other information. On May 10, 2001, SETA responded with its financial information for fiscal years 1993, 1994, and 1995, while arguing that the BPA is not a new contract, and that SBA must determine size as of the date of SETA's initial offer on the original FSS contract, not the date of any subsequent orders, including BPAs. SETA cited 13 C.F.R. Section 124.503(h) in support of its argument. SETA also argued that any size determination would have only prospective effect, because the underlying procurement is the FSS contract awarded in 1997. In a letter dated May 15, 2001, the Area Office stated that it would determine SETA's size as of its March 1, 2001 response to the RFQ, because it considered the RFQ to be a new procurement, set aside for small business. The Area Office also stated that because the protests were timely filed, its size determination would apply to the instant procurement. On May 17, 2001, SETA replied, reiterating its argument that the only contract involved in the procurement was the underlying FSS contract. SETA further argued that the BPA could not be a contract, because it lacked mutual consideration, an essential element for formation of a contract, because FEMA was not obligated to order any minimum quantity of services. SETA also stipulated that it was other than small as of March 1, 2001. B. The Size Determination On May 21, 2001, the Area Office issued its size determination finding SETA other than small. The Area Office found that ARTEL's and ACT's protests were timely filed within five days of their notification of the award and, thus, they are timely and apply to the instant procurement. Therefore, the size determination applies to the instant procurement. The Area Office then addressed the issue of what date it would use to determine SETA's size. The Area Office concluded that 13 C.F.R. Section 124.503(h) and 48 C.F.R. Section 19.804-6, relied on by SETA, are not applicable here because they apply to the 8(a) program -- this is not an 8(a) procurement, nor SETA is an 8(a) firm. [2] The Area Office found that the RFQ required the firms responding to it to provide a technical quote reflecting their organizational structure, background, and past performance and to offer a discount on the price listed on the GSA Schedule. Firms were required to self-certify their small business status with their response. (SETA certified it was not small.) The RFQ established FEMA would award a BPA. The BPA was a separate vehicle against which FEMA would place Task Orders. The Area Office found FEMA was using the list of contractors on the schedule as a preferred vendor's list or a source list. FEMA initiated its own vehicle for contracting for services by issuing the RFQ and requiring the concerns to respond according to its evaluation criteria and to provide a new price. The Area Office also concluded that, although the BPA might not be a contract, a contract need not be in effect to make a size determination. Rather, the underlying protest must pertain to a particular procurement, and the concern's size must be determined as of the date of its written self-certification as part of its initial offer, including price. The Area Office thus concluded it would determine SETA's size as of the date of its response to the RFQ, March 1, 2001. Accordingly, drawing an adverse inference against SETA based on its refusal to supply the requested information and relying on SETA's admission that was not a small business as of March 1st, the Area Office found SETA other than small. On May 23, 2001, SETA and FEMA received the size determination. C. The Appeals On June 1, 2001, SETA filed an appeal, essentially reiterating the arguments it made to the Area Office. On June 4, 2001, FEMA also filed an appeal. FEMA argues that it solicited no sources outside the GSA Schedules for the BPA and that the process was in accordance with FAR procedures on BPAs. The set- aside and small business certification language was superfluous and was included in the RFQ cover letter due only to administrative error. FEMA did not consider the self- certifications as to size because it assumed the quoters' size status was governed by the status listed on the GSA Schedule. FEMA further argues that, absent the erroneous language in the cover letter, FEMA's actions were wholly consistent with contracting under FAR Part 8, which governs FSS procurements. FEMA also argues that, if the provisions of FAR Part 19 (Small Business Programs) apply to this procurement, then it would have been required to use the procedures in FAR Parts 14 (Sealed Bidding) or 15 (Contracting by Negotiation), because this procurement exceeds the thresholds for acquisitions under FAR Part 13 (Simplified Acquisition Procedures). Further, if the procurement is not being conducted under FAR Part 8, then it must meet the publication and competition requirements of FAR Parts 5 and 6. Therefore, FEMA argues, the Area Office's interpretation undermines the legality not merely of the procedure used in this procurement, but of all contracting under the GSA Schedules program. Finally, FEMA asserts in support of its argument that small business designation was a mistake that the RFQ itself does not contain a set-aside clause or a "Limitations on Subcontracting" clause. D. Responses to the Appeals On June 6, 2001, SBA moved to intervene in the instant appeals. On June 14, 2001, the Administrative Judge granted this motion, consolidated the two appeals, and set June 29, 2001, as the date the record would close. On June 11, 2001, ARTEL filed a response to the two appeals. ARTEL argues that FAR requires that the small business requirements in FAR Part 19 be applied to FSS contractors. ARTEL argues this Office has issued size determinations in cases where the contracting vehicles were BPAs, citing Size Appeal of DX Distributors, Inc., SBA No. SIZ-3905 (1994), and Size Appeal of Good Food Distributor Corporation, SBA No. SIZ-3360 (1990). ARTEL also argues FEMA decided to conduct this procurement as a small business set-aside and should not be permitted now to claim the set-aside language in the RFQ cover letter was inserted in error. Further, ARTEL argues the BPA is, by its terms, not an order, but the contract vehicle against which orders will be placed. On June 29, 2001, ACT also filed a response to the two appeals, arguing FEMA conducted its own small business set-aside procurement by issuing the RFQ, and that therefore the size determination was properly issued. ACT also requests this Office order FEMA to produce a number of documents. On June 29, 2001, SBA filed a response to the appeals. SBA argues that, when a size protest is filed with respect to an order placed under an FSS contract, SBA's regulations generally require SBA to look at the size of the protested concern as of the date of its written self-certification for the FSS contract, not at any date corresponding to an order placed under the contract. However, SBA further argues that, when a procuring agency conducts its own separate small business set-aside competition among FSS contractors and requests written certifications of small business size status, the general rule with respect to FSS contracts does not apply, and the date for determining a concern's size in that situation is the date the concern submits its written self-certification of its small business size status to that procuring agency. An RFQ is a procurement and may be set aside for exclusive small business competition. FEMA is the procuring agency here, and the only written certification submitted to it here was SETA's March 1, 2001 certification it was other than small. SBA disputes SETA's contention that, because the FAR provides that responses to RFQ quotes are not offers, the date for determining size is the date of the initial offer on the FSS contract. FAR definitions do not apply to SBA's regulations, and SBA's regulations are meant to determine size in all procurements where size is relevant, regardless of whether a response to a solicitation in that procurement constitutes a binding obligation. SBA also argues that 13 C.F.R. Section 124.503(h) does not apply to this procurement, because it is a regulation for the 8(a) program, this is not an 8(a) procurement, and SETA is no longer an 8(a) firm. Finally, on June 29, 2001, the GSA filed a Motion to Intervene. GSA argues in support of the appeals. GSA argues that, in FSS procurements, size is routinely determined as of the date the offer for the FSS contract is submitted. GSA further argues that this Office has held that SBA will determine size status as of the date of the challenged firm's initial self- certification to the procuring agency as part of its initial offer, citing Size Appeal of Whitecraft Industries, Inc., SBA No. SIZ-2016, at 11-13 (1984); Size Appeal of Alphanumeric Systems, Inc., SBA No. SIZ-3152, at 5 (1989). GSA further argues that the procurement remains a FSS procurement despite FEMA's issuing the RFQ with intent to award the BPA. GSA argues FEMA was not using the GSA Schedule as a source list; rather, issuing an RFQ resulting in a BPA is an integral feature of FSS ordering procedures, authorized by regulation and encouraged by the program. BPAs are accounts that agencies establish with FSS contractors to fulfill recurring requirements. The contract language of all FSS and MAS contracts makes clear that BPAs are authorized for use in placing recurring orders and are not new procurements. Although FEMA erroneously included set aside language in the RFQ cover letter, it is clear from the original contract, the RFQ, and the BPA taken as a whole that FEMA was conducting an FSS procurement. When the FSS contract conflicts with the terms and conditions of an order issued under it, the FSS contract controls. Accordingly, the BPA is not a new procurement. GSA concludes by arguing that affirming the size determination could adversely impact the small business initiatives in which GSA partners with SBA. GSA submits as exhibits six attachments on the FSS program and its impact on SBA's programs. Most of these memoranda are addressed to SBA and discuss the impact of the FSS program on SBA's programs. E. Interim Orders On August 3, 2001, the Administrative Judge issued an Order granting GSA's Motion to Intervene, excluding FEMA's argument that its cover letter to the RFQ contains errors, denying ACT's request for an order directing the production of documents, reopening the record, ordering GSA to file SETA's original FSS contract, and ordering SBA to respond to GSA's argument, and to certain issues raised by the Administrative Judge. The Order gave the other parties the opportunity to reply to SBA's response. On August 15, 2001, at the request of SETA and GSA, the Administrative Judge issued a Protective Order, covering the GSA FSS contract No. GS35F4490G with SETA. Counsel for the parties were admitted under the Protective Order. [3] SBA filed its response on August 27, 2001. On September 5, 2001, Appellants SETA and FEMA, and Intervenors GSA, ACT, and ARTEL replied to SBA's Response. F. SBA's Response to the Interim Order SBA argues that it has not accepted GSA's practice of considering the size determination valid for the whole term of an FSS contract. SBA argues that SETA's size should be determined as of the date the most recent option was exercised, relying on Alphanumeric and Whitecraft. SBA further argues that because this contract is not in its base period, SETA's size should be determined as of the date of the option exercised on March 31, 1999. SBA goes on, however, to argue that Alphanumeric and Whitecraft are not fully apposite, because neither involved a small business set-aside contract solicitation issued to FSS contractors. SBA argues that it has the sole responsibility for determining a firm's size when a small business set-aside procurement is at issue. Further, SBA argues the term "procurement" is broadly defined to include all stages of the process of acquiring goods or services. SBA relies upon Federal Court of Claims and General Accounting Office (GAO) precedent that an action of the type at issue here, an RFQ to award a BPA, is a procurement. SBA further argues that it must determine a firm's size as of the date its submits its written self- certification of size in response to the solicitation. SBA further points out that the RFQ is a solicitation, and the size regulations require a concern to meet the size standard for the NAICS code specified in the solicitation. SBA has no authority to ignore express terms of a solicitation, and the fact it is an FSS procurement makes no difference. SBA also argues that the 8(a) regulations are inapplicable here, as this not an 8(a) procurement. Finally, SBA argues that its position is not inconsistent with the regulations governing the FSS program, as these regulations do not prohibit the use of small business set-asides. G. Replies to SBA's Response FEMA argues that FAR Subpart 8.4, which authorizes FSS ordering without regard to FAR Part 19, Small Business Procedures, controls here. FEMA further argues that FAR Section 19.502-1(b) provides that small business set-asides do not apply to FSS purchases. FEMA simply states that it erred in requesting a small business certification and designating the RFQ as a set- aside, and that this procedural defect does not convert the buy into a set-aside. FEMA argues it was fair in its evaluation, and that SBA's argument lacks a rational basis for distinguishing 8(a) concerns from small businesses under the FSS program. SETA argues that Whitecraft stands for the proposition that a concern's size is determined as of the date of the initial offer, or, if applicable, the date the most recent option was exercised. In addition, SETA argues that GSA had not exercised an option here, but modified the FSS contract soon after it was awarded to make it a five-year term, and, unlike the concern in Whitecraft, SETA did not submit a new offer under an option. Finally, in Whitecraft, the parties entered into new contracts for each renewal period, which they did not do here. SETA further argues that SBA's position that this action is a new procurement is unsupported by legal authority, and is contrary to the rule expressed in Whitecraft. SETA also argues that 13 C.F.R. Section 124.503 is applicable here, as the provision's regulatory history shows that it was deliberately modified to distinguish Basic Ordering Agreements from FSS contracts. SETA argues that the size appeal decisions SBA relies on are inapposite here, as they do not examine the appropriate time for assessing affiliation under an FSS contract. Finally, SETA argues that GAO has held that a response to an RFQ that reflects FSS prices is not an offer which can be accepted by the Government. ACT argues that FEMA clearly designated this action as a small business set-aside procurement, and that the 8(a) regulations do not apply to a procurement outside of the 8(a) program. ARTEL argues SBA properly determined SETA's size under SBA regulations, and that the 8(a) regulations are not relevant here. II. DISCUSSION A. Threshold Issues The instant appeals were filed within 15 days of receipt of the size determination, and they are thus timely for this procurement. 13 C.F.R. Section 134.304(a)(1). While SETA concedes that the protests filed here were timely, it argues that the size determination may only apply prospectively, since they must apply to the FSS, citing FAR Section 19.302(j). Because the Administrative Judge finds below that this contracting action was a procurement, and that the protests apply to the RFQ and not the original FSS, he rejects this argument, and finds that this size determination applies to the RFQ. While the other parties did not object to the new evidence submitted by GSA in its Motion to Intervene, after reviewing it, the Administrative Judge finds these are documents outlining GSA policies, copy of agreements with SBA regarding the 8(a) program, and a letter seeking guidance from SBA regarding the FSS program. The documents largely go to policy questions between the two agencies as to whether the position GSA urges here is good procurement policy, a determination beyond the scope of this Office's jurisdiction. The Administrative concludes that this new evidence is not relevant or probative to the issues in this appeal, and that GSA has failed to establish good cause for its admission. 13 C.F.R. Section 134.308(a)(2). Accordingly, he EXCLUDES it from consideration. B. The Merits of the Appeals Appellant has the burden of proving, by a preponderance of the evidence, that the Area Office based its size determination on a clear error of fact or law. 13 C.F.R. Section 134.314; Size Appeal of Rebmar, Inc., SBA No. SIZ-4173, at 4 (1996). The principal issue in this case centers on the time that SETA's size is to be determined. This, in turn, is determined by whether the procurement at issue is the original FSS contract, against which the BPA entered into as a result of the RFQ is merely an order, or whether the RFQ represents a whole new small business set-aside procurement. When a government procurement is at issue, SBA determines the size of a concern as of the date the concern submits a written self-certification that it is small to the procuring agency as part of its initial offer, including price. 13 C.F.R. Section 121.404. [4] A size determination need not be made in connection with a contract, but must be made in connection with a particular procurement. 13 C.F.R. Section 121.1007(a). Here, Appellants argue that SETA's size should be determined as of the date of its offer in response to the initial FSS solicitation. The Area Office determined SETA's size as of the date of its response to the RFQ, and SBA argues that this is correct. [5] Appellants rely on 13 C.F.R. Section 124.503(h), which provides that in procurements conducted under the 8(a) program, SBA's acceptance of FSS and FSS contracts is valid for the duration of the contract, separate offers and acceptance are not required for task orders under such contracts, and a concern may continue to accept new orders under the contract even after its program term expires, or it has become other than small. However, 13 C.F.R. Section 124.503(h) is found in SBA's regulations governing the 8(a) program, and it is undisputed that the contracting action at issue here is not an 8(a) procurement, and that SETA is no longer an 8(a) program participant. As SBA notes in its brief, the 8(a) program is a unique government contracting program with unique features. In order for a procurement to be an 8(a) procurement, the procuring agency must offer it to SBA, and SBA must accept it into the program. 13 C.F.R. Section 124.503(a). That has not happened here. Appellants' attempts to apply the 8(a) regulations to a procurement that was not within the 8(a) program are unsupported by law or regulation. The 8(a) program's regulations apply to a size determination or size appeal only when the procurement is an 8(a) procurement, and are otherwise not relevant to the case. Size Appeal of IMDT, Inc., SBA No. SIZ-4121, at 4 (1995). In the Interim Order, the Administrative Judge raised the question of whether 13 C.F.R. Section 124.503(h) has any applicability as SBA's recognition of the state of the law regarding FSS procurements. SBA clearly says it does not, and its interpretation of its own regulation is entitled to some respect. Size Appeal of Uniband, Inc., SBA No. SIZ-4326, at 8 (1998). Further, Appellants' arguments concentrate on arguing the regulation is applicable as a whole to this contracting action, and do not really address this issue. After reviewing the provision, the Administrative Judge concludes that its clear reference to SBA's acceptance of the 8(a) contract makes it clear that this provision applies exclusively to 8(a) procurements. Appellants' arguments that the FAR supports their appeal are also misplaced. Appellants rely on language in FAR Sections 2.101 and 13.004(a) defining "offer" and "quotes." However, the definitions in FAR are not necessarily applicable in construing the meaning of SBA's size regulations and thus cannot be determinative here. FAR Section 2.101(a). [6] SBA alone has the responsibility for determining a concern's size in connection with a particular procurement. 15 U.S.C. Section 632(a)(2); 13 C.F.R. Sections 121.101, 121.401, 121.1001(a). Appellants rely on other FAR provisions (FAR Sections 8.401 et seq., especially Section 8.404, and Section 19.502-1(b)), which deal with the requirements imposed on procuring agencies to consider small business set-asides and the fact that these requirements and other small business acquisition procedures of FAR Part 19 are not required for MAS and FSS contracts. However, these provisions are not prohibitions against issuing an RFQ as a small business set-aside. Here, FEMA elected to issue an RFQ totally set-aside for small businesses. FEMA issued the document containing the key provisions necessary to designate a procurement as a small business set-aside, e.g., a statement the RFQ was set aside, and FAR clause Section 52.219-1 designating a NAICS code with the applicable size standard. After taking such clear actions, FEMA cannot now argue that these actions were mistaken. (FEMA could have canceled the RFQ and issued a new, were this truly a mistake.) If FEMA made a mistake in issuing the RFQ, it would appear to have been neglecting to include the few provisions associated with small business set-asides to which Appellants point in their pleadings. Had FEMA merely issued SETA an order against the FSS contract, the question of SETA's size would not have arisen. Instead, FEMA conducted its own small business set- aside procurement, limited to firms on the GSA Schedule, and nothing in the FAR prohibits this. When a procuring agency uses an RFQ, a responding contractor, or quoter, does not make an offer, it provides a quote, and the Government provides the offer in the form of an order. FAR Section 13.004(a). Appellants' argument is that SBA is bound by the term "offer" in a context where the word is not used in connection with the responding contractor and leaving unspecified the time at which size must be determined. This is not a rational interpretation of the regulation. In this context, "quotes," are analogous to offers, and a more coherent interpretation of the regulation would find "offer" to mean a prospective contractor's response to the RFQ, including its certification. In determining what 13 C.F.R. Section 121.404 means in the context of a response to an RFQ issued under an FSS, this Office holds that the date to determine size, when by definition the contractor does not make an "offer," is the date the concern submits its written self-certification of size in its response to the procuring agency's solicitation. This holding is consistent with the broad interpretation of "procurement," finding that issuing an RFQ in this context is a procurement. This Office's precedent supports this holding. In Size Appeal of Whitecraft Industries, Inc., SBA No. SIZ-2016 (1984), this Office held that in an FSS procurement, a concern's size status is determined as of the date of its self-certification on the primary contract, or the date of its submission of a renewal for a subsequent contract, whichever is applicable. Whitecraft, at 13-14. In that case, we found that by renewing its contract, Whitecraft had made a new small business certification, and that its size should be determined as of the later date. None of our later cases dealing with FSS, MAS or BPA contracts have disturbed this holding. Size Appeal of Alphanumeric Systems, Inc., SBA No. SIZ-3152 (1989); Size Appeal of Good Food Distributor Corporation, SBA No. SIZ-3360 (1990); Size Appeal of DX Distributors, Inc., SBA No. SIZ-3905 (1994). Here, while there is no renewal of the contract, there is instead an RFQ, which required a self-certification as a small business. FEMA undertook a procurement as a small business set- aside. SETA certified that it was not a small business when it submitted its response to the RFQ. Under Whitecraft, it is this later certification that is applicable to the procurement, and which controls. [7] Finally, the Administrative Judge also notes that the Court of Federal Claims, after reviewing Intelligent Decisions, supra at fn. 7, has held that the issuance of an RFQ prior to the award of a BPA is a procurement, and the procuring agencies' actions must be reasonable and in accordance with the terms of the solicitation. Labat-Anderson, Inc. v. United States, 50 Fed. Cl. 99, 103-04 (2001); Ellsworth Associates, Inc. v. United States, 45 Fed. Cl. 388, 395-96 (1999). The Administrative Judge concludes that this precedent answers definitively the issue of whether an RFQ issued under an FSS contract with a view to concluding a BPA is a procurement. Here, FEMA conducted a new procurement with an RFQ set aside for small business. The firms which responded to the RFQ had to be eligible small businesses, as of their date the submitted their self-certifications with their quotes. Accordingly, the Administrative Judge finds that the Appellants have failed to meet their burden of establishing clear error by the Area Office, and their appeals must be denied. III. CONCLUSION For the above reasons, the Administrative Judge AFFIRMS the Area Office size determination and DENIES the instant appeal. This is the final decision of the Small Business Administration. See 13 C.F.R. Section 134.316(b). ___________________________________________ CHRISTOPHER HOLLEMAN Administrative Judge _________________________ [1] The Federal Acquisition Regulation (48 C.F.R. or FAR), at Subpart 8.4, uses the terms Federal Supply Schedule (FSS) and Multiple Award Schedule (MAS) interchangeably. [2] SETA graduated from the 8(a) program on November 15, 1998. [3] Nevertheless, the Administrative Judge notes that none of the subsequent pleadings filed, including those of SETA and GSA, were identified by counsel as containing protected material. Accordingly, the Administrative Judge is not issuing this decision under the Protective Order. [4] "Procurement" is defined broadly, as including all stages of the process for acquiring property or services. 41 U.S.C. Section 403(2). [5] SBA's argument in the alternative is that SETA's size should be determined as of the date of GSA's exercise of its option under the FSS contract. However, the record reflects that GSA modified the contract rather than exercised an option, and so SBA's argument is not apposite. [6] SBA's size regulations contain definitions of terms used within those regulations, but they do not define "offer" or "quote". See, e.g. 13 C.F.R. Section 121.104. [7] The Administrative Judge directed the parties to discuss the GAO decision in Intelligent Decisions, Inc., 97-1 CPD Paragraph 19 (Comp. Gen. B-274626, December 23, 1996), recons. denied, 97-1 CPD Paragraph 185 (Comp. Gen. B-274626.3, May 15, 1997). There, the Department of Justice entered into a BPA after issuing an RFQ. GAO held that such a contracting action was a procurement and a purchase off the FSS. GAO further stated that quotations in response to an RFQ were not offers that could be accepted, but are informational responses. However, it is clear that while the prices were subject to negotiation, the contracting action itself was a new procurement. That is also the case here. A review of Intelligent Decisions leads the Administrative Judge to conclude that there is nothing there which contradicts a holding here that FEMA's RFQ was a new procurement, a small business set-aside which required new certifications from the quoters. Posted: March, 2002