Propriety of Solicitation's Failure To Reference Change in Small Business Size Standard Applicable to Procurement

A subcontractor to one of the bidders on a 100 percent small business set-aside procurement protested against the failure of the Navy to reference in the solicitation an applicable Small Business Administration (SBA) regulation used in the determination of small business size status. The change in the SBA's small business size standard was published in the Federal Register prior to bid opening, so all parties were held to be on constructive notice even the procuring agency, especially where the material should have resulted in an amendment to the solicitation's size standards. The agency's unintentional failure to bring the solicitation into line with the SBA's size standard could have had substantial adverse effect on competition, and the solicitation was, therefore, defective. However, even if the contract had not been substantially performed, the harm to the competitive system may not have necessitated a recommendation for contract termination.