When a small government contractor gets its hand caught in the “affiliation” cookie jar, the natural reaction is to scramble to fix the problem, even if it means contradicting the contractor’s own proposal. But don’t expect post hoc efforts at fixing a problem with the SBA affiliation rules to pan out. The SBA’s Office of Hearings and Appeals has held that where a contractor’s after-the-fact statements regarding affiliation contradict its proposal, the language of the proposal governs.
In SBA OHA’s decision in Size Appeal of KVA Electric, Inc., SBA No. SIZ-5045 (2009), a contractor indicated in its proposal that it would use two highly experienced subcontractor employees to perform the contract. After the contractor was named as the awardee, a competitor filed a SBA size protest, alleging a violation of the ostensible subcontractor rule. In response, the contractor informed the SBA that it had made a mistake in including the subcontractor’s resumes with its offer and would not use the employees on the contract.
Although the SBA’s Area Office accepted the post hoc representations, SBA OHA reversed on appeal. It wrote that the contractor’s statements “contradict credible evidence in the Record,” namely, the proposal. In evaluating offerors’ size, the SBA must “first credit the pre-dispute representations” of offerors “as opposed to post-offer hearsay representations contradicting unambiguous evidence contained in [the contractor’s] offer.” As SBA OHA noted, had it ruled differently, offerors would, in essence, be able to improperly amend their offers after award.
The KVA Electric case offers a simple lesson for small government contractors: get it right in the proposal. By the time a competitor files a SBA size protest, it will probably be too late to fix an affiliation problem.