Ostensible Subcontractor Affiliation: SBA Must Review Final Proposal

To determine whether ostensible subcontractor affiliation exists between a prime contractor and its subcontractor, the SBA must use the prime contractor’s final proposal revision.

In a recent size appeal decision, the SBA Office of Hearings and Appeals overturned an SBA Area Office affiliation determination that did not contemplate an offeror’s final proposal.

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Nonmanufacturer Rule Class Waivers: SBA OHA Explains How They Work

Under the nonmanufacturer rule, a class waiver applies to a procurement only if the NAICS code, Product Service Code and NAICS code descriptor match the item being procured.

Contrary to a common misconception, a nonmanufacturer rule class waiver is not authorized on the basis of the NAICS code alone.  In a recent size appeal decision, the SBA Office of Hearings and Appeals concisely explained how nonmanufacturer rule class waivers work.

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8(a) Program Denial: Federal Lawsuit Available, Says SBA OHA

An 8(a) Program applicant may challenge the SBA’s denial of its application in federal court if the SBA Office of Hearings and Appeals lacks jurisdiction to hear the case.

According to a recent OHA decision, although OHA’s own jurisdiction in 8(a) denial matters is limited, a rejected applicant “is not utterly without recourse” because relief can be sought in court.

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SBA Size Appeals: Notification Of Deadline Not Required

Government contractors are expected to be aware of appeal deadlines even if an agency does not mention those deadlines in its decision notifications.

As one contractor recently discovered, a size appeal with the SBA Office of Hearings and Appeals must be filed within the regulatory time frame–and no extension will be granted if the SBA does not notify the potential appellant of the deadline.

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Sorry, Subcontractor: No SBA Size Appeal For You

When the SBA found a subcontractor to be affiliated with its prime contractor under the ostensible subcontractor rule, the subcontractor could not appeal the SBA’s finding to the SBA Office of Hearings and Appeals.

In a recent size appeal decision, OHA held that a subcontractor lacks the ability to file a size appeal because the subcontractor is not directly affected by the size determination.

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SBA OHA Size Appeals: Appellants Should Verify Email Receipt

A size appeal filed with the SBA Office of Hearings and Appeals may be submitted by email, but it is up to the appellant to verify that its email was received.

As demonstrated in a recent size appeal decision, OHA will dismiss an appeal that is not received by OHA within 15 days of the appellant’s receipt of a size determination–even if the appellant attempted to send the size appeal by email during the 15-day window.

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SBA Affiliation Rules: “Inter-Affiliate Transactions” Exception Is Narrow

Under the SBA’s affiliation rules, the so-called “inter-affiliate transactions” exception applies only where the companies in question would be eligible to file a consolidated tax return.

In a recent size appeal decision, the SBA Office of Hearings and Appeals held that the inter-affiliate transactions exception does not apply when affiliated companies are ineligible to file a consolidated tax return–a result that seems to authorize “double counting” of affiliated companies’ revenues in the context of SBA size determinations.

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