Category Archives: SBA OHA Decisions

Includes decisions of the SBA Office of Hearings and Appeals, including size appeal decisions, service-disabled veteran-owned small business appeal decisions, NAICS code appeal decisions, and women-owned small business appeal decisions.

Recent SBA OHA Decision Offers NAICS Code Appeal Guidance

Posted on by

As we’ve noted here on SmallGovCon, appealing the assignment of a NAICS code for a solicitation is often successful. But the time frame for doing so is short, and there are other procedural limitations. Given the short deadlines and procedural hurdles, are there any signals to help identify when a NAICS code appeal might be in order?

Recently, SBA’s Office of Hearings and Appeals provided some guidelines in discussing the assignment of NAICS codes in the Computer Facilities Management Services, Research and Development, and Engineering Services codes.

Continue reading →

Size Protests: Ignorance Doesn’t Excuse Failure to Respond

Posted on by

If you’ve ever responded to an SBA size protest, you know that the process is quite involved: SBA will require your company to provide a complete response to the protest (including production of corporate, financial, and tax records for all implicated concerns) within only a few business days. The consequences for not providing all of the requested information can be quite severe, as the SBA can presume that the responsive information would demonstrate that the concern is not a small business (through its “adverse inference” rule).

A recent OHA appeal shows the dangers of failing to adequately respond to a size protest. In Size Appeal of Perry Johnson & Associates, SBA No. SIZ-5943 (2018), the OHA affirmed the SBA’s reliance on an adverse inference and, as a result, found the protested company was not an eligible small business.

Continue reading →

Once Again, SBA Strictly Interprets SDVOSB Joint Venture Agreement Requirements

Posted on by

The SBA takes its SDVOSB joint venture requirements very seriously, and even a relatively minor deviation or omission can be enough to render a joint venture ineligible.

Time and time again, the SBA’s Office of Hearing and Appeals has shown that it will strictly enforce the rules governing SDVOSB status. OHA’s stance on SDVOSB joint venture agreements is no different. A recent OHA ruling reinforces that SDVOSB joint venture agreements must abide by the letter of the regulation when it comes to required items in the agreement.

Continue reading →

OHA Lacks Jurisdiction to Hear HUBZone Status Appeals

Posted on by

While the SBA’s Office of Hearings and Appeals hears appeals for many of the SBA’s programs, there are certain decisions that remain outside of its purview.

As one protester was surprised to learn, among those items outside of OHA’s jurisdiction are appeals of the HUBZone status determinations.

Continue reading →

SBA OHA Rejects “Chain Affiliation” Theory

Posted on by

Ordinarily, a company isn’t affiliated with the affiliates of its affiliates.

That sentence may sound a little silly, but it encapsulates an important principle about the breadth of the SBA’s affiliation rules.  As demonstrated in a recent SBA Office of Hearings and Appeals decision, the SBA doesn’t apply its rules to create “chain affiliation.”

Continue reading →

SBA Affiliation Rules: Owner of One Share (of 120) Controlled Company

Posted on by

The owner of a 1/120th interest was presumed to control a company under the SBA’s affiliation rules.

You read that right.  In a recent size appeal decision, the SBA Office of Hearings and Appeals held that where 120 owners each held one share of stock in a company, all 120 were presumed to control the company for size purposes.

Continue reading →

No Competitor Size Protests of 8(a) Sole Source Awards, Says SBA OHA

Posted on by

The SBA’s regulations do not allow an 8(a) company to file a size protest challenging the award of an 8(a) sole source contract to a competitor.

In a recent size appeal decision, the SBA Office of Hearings and Appeals confirmed that size protests relating to 8(a) sole source awards can be filed by contracting officers or the SBA itself–but not by competitors.

Continue reading →