After Successful 8(a) Appeal, Company Gains 8(a) Certification

Last month, I wrote about the successful 8(a) program appeal filed by Gearhart Construction Services.  In its decision, SBA OHA held that the SBA had misevaluated Gearhart on the “social disadvantage” factor, including by holding Gearhart to a too-high standard of proof.  SBA OHA ordered the SBA to correct its errors and take another look at Gearhart’s application.

Now I can report that Gearhart’s story has a happy ending.  On April 11, the SBA notified Gearhart that it had been admitted to the 8(a) program.  SBA OHA then dismissed Gearhart’s appeal as moot, because Gearhart and achieved its goal.

Sometimes, gaining admission to the 8(a) program requires tenacity and a continued belief in one’s case, even when the SBA’s 8(a) office has repeatedly denied the application.  Gearhart’s perseverance paid off, and the company now has nine years to reap the rewards.

Economic Dependence and the SBA 8(a) Program

A contractor’s economic dependence on another company can cause affiliation under the SBA affiliation rules, but economic dependence can also be a major problem when a company applies for 8(a) program certification.

As demonstrated in a recent decision of the SBA Office of Hearings and Appeals, if an 8(a) program applicant has received most of its revenues from another company, the SBA may find that the applicant is economically dependent on the other company–and therefore, ineligible for admission to the 8(a) program.

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Groundhog Day is Here: SBA OHA Shoots Down Another 8(a) Program Rejection

In the 1990s comedy Groundhog Day, Bill Murray played a weatherman who found himself living the same day over and over again.  I am having the same feeling reading SBA Office of Hearings and Appeals cases these days (yes, this is what qualifies as my reading material of choice; don’t judge).

As it has at least five other times since December, SBA OHA has shot down the SBA’s rejection of an 8(a) application under the “social disadvantage” factor.  As was the case in several other recent decisions, the latest volley from SBA OHA states that the SBA failed to properly consider the evidence and explain its rationale for denying an 8(a) applicant.

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SBA OHA Overturns Another 8(a) Program Denial

The SBA’s Office of Hearings and Appeals has overturned yet another SBA 8(a) Program denial decision–at least the fifth such instance since December 2012.

As with the four previous cases, SBA OHA’s most recent 8(a) appeal decision indicates that the SBA improperly evaluated the applicant’s evidence of social disadvantage, both by misapplying the regulatory test for social disadvantage and by requiring the applicant to meet a higher standard of proof than called for by law.

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After Successful 8(a) Appeal, Veteran-Owned Firm Gains 8(a) Certification

After prevailing in its SBA OHA 8(a) appeal, a St. Louis-based communications and electrical construction contractor has been certified as a participant in the SBA’s 8(a) program.

The SBA’s decision to certify Innovet, Inc. shows the importance of pursuing an appeal of an unreasonable SBA 8(a) denial–and offers hope that the SBA is learning from its recent string of defeats at SBA OHA.

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Another 8(a) Appeal Upheld: Is The 8(a) Evaluation Process Fundamentally Flawed?

For the fourth time since December, and second time involving a woman-owned business, the SBA Office of Hearings and Appeals has held that the SBA misevaluated an 8(a) applicant on the “social disadvantage” requirement.

In the most recent case, Black Horse Group, LLC, SBA No. BDPE-468 (2013), SBA OHA again found that the SBA committed multiple errors in its 8(a) evaluation, including holding the applicant to an impermissible high standard of proof, failing to consider all evidence in the record, and drawing erroneous conclusions from the evidence it did consider.

Following on the heels of recent SBA OHA 8(a) appeal decisions involving a disabled veteran, a physically disabled man, and a woman business owner, it is fair to ask: is the SBA’s 8(a) social disadvantage evaluation process fundamentally flawed?

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SBA Misevaluated Disabled Vet’s 8(a) Application, Says SBA OHA

For the third time in as many months, the SBA Office of Hearings and Appeals has ruled that the SBA erroneously evaluated an 8(a) applicant’s evidence of social disadvantage.

In Innovet, Inc., SBA No. BDPE-466 (2013), SBA OHA held that the SBA’s evaluation of a disabled veteran’s 8(a) application was flawed because the SBA relied on broad, conclusory statements, failed to consider all of the veteran’s evidence of social disadvantage, and made conclusions contrary to the evidence in the record.

The Innovet case is part of a heartening trend of recent SBA OHA decisions holding that 8(a) evaluations must be fair, reasonable and thorough.  The case also highlights that the SBA continues to make flawed analyses of social disadvantage, potentially preventing some eligible companies from obtaining 8(a) certification. Continue reading