SBA OHA: Providing Specifications & Funding Is Not “Manufacturing”

A business was not engaged in “manufacturing” within the meaning of the SBA’s regulations where the firm provided another entity with specifications and financing, and the second entity produced the end item being acquired by the government.

As demonstrated in a recent SBA Office of Hearings and Appeals decision, being a “manufacturer” means engaging in the primary activities of transforming substances into an end item.  Merely providing specifications and financing doesn’t do the trick.

Continue reading

Non-Manufacturer Rule: Foreign-Made Products Didn’t Qualify

A contractor did not qualify as a small business under the non-manufacturer rule where it proposed to sell foreign-made products–even though the contractor itself was well below the solicitation’s 500-employee size standard.

In a recent decision, the SBA Office of Hearings and Appeals held that a contractor was ineligible to be awarded a small business set-aside contract for manufactured products because the products were to be manufactured in Turkey.

Continue reading

8(a)’s Unapproved Mentor-Protege Arrangement Leads To Affiliation

An 8(a) small business was found to be affiliated with its large subcontractor under the ostensible subcontractor rule based in part on the fact that the large subcontractor was providing mentoring services to the small business–even though the SBA had rejected a proposed mentor-protege agreement between the companies.

The recent decision of the SBA Office of Hearings and Appeals in Size Appeal of Brown & Pipkins LLC, SBA No. SIZ-5621 (2014) is a warning to 8(a) firms about the potential dangers of accepting mentoring services outside the confines of a SBA-approved mentor-protege agreement.

Continue reading

SBIR Program: SBA OHA Explains The Ownership Requirements

A firm will not qualify as a small business for a Small Business Innovation Research (SBIR) grant if it does not meet the SBIR program’s regulatory ownership and control requirements–and those requirements can be confusing.

In a recent size appeal decision, the SBA Office of Hearings and Appeals explained how the SBIR program’s ownership and control requirements work in practice.

Continue reading

SDVOSB’s ESOP Caused Ineligibility, Says SBA OHA

A SDVOSB’s Employee Stock Ownership Plan caused the company to be ineligible under the SBA’s SDVOSB rules because the service-disabled veteran did not own 51% of the ESOP class of stock.

A recent SBA Office of Hearings and Appeals decision should serve as a cautionary tale to any SDVOSB contemplating establishing an ESOP–or any other ownership structure consisting of multiple classes of stock.

Continue reading

8(a) Mentor-Protege JVs: Faulty JV Agreement Results In Affiliation

An 8(a) program protege was deemed affiliated with its mentor–and ineligible for a small business set-aside contract–because the joint venture agreement between the mentor and protege failed to comply with certain mandatory 8(a) joint venture requirements.

In a recent decision, the SBA Office of Hearings and Appeals concluded that an 8(a) mentor-protege joint venture was not entitled to take advantage of the special exception from affiliation because of the flaws in its joint venture agreement.  OHA’s decision is an important reminder to 8(a) mentors and proteges of the critical importance of strictly complying with the 8(a) joint venture regulation.

Continue reading

Size Protests: Only SBA Can Grant Extension To Response Deadline

Only the SBA has the power to grant an extension to the short time deadline for a company to respond to a SBA size protest.

As demonstrated in a recent SBA Office of Hearings and Appeals decision, although the SBA’s practice is to require the procuring agency to grant a concurrent extension, the procuring agency’s agreement alone–in the absence of a corresponding SBA extension–will not permit a protested company to file a late response.

Continue reading