Size Protests: Ignorance Doesn’t Excuse Failure to Respond

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.

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Busy Employee “Skims” SBA Size Protest Email–What Could Go Wrong?

A contractor’s “frantically busy” employee, who was listed as the firm’s contact in SAM, skimmed through an email from the SBA containing a size protest, and took no action to respond.

In a recent size appeal decision, the SBA Office of Hearings and Appeals held that the SBA had properly issued an adverse size determination against the contractor in question after receiving no reply to the size protest–and the fact that the employee who received it was “frantically busy” was no excuse.

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Late SBA Size Protest Response Sinks Contractor’s Small Business Eligibility

No matter a company’s actual size, the company will be deemed an ineligible large business if it fails to timely respond to a SBA size protest.

Just ask American Blanching Company, which was recently found ineligible for a small business set-aside contract because it did not respond to a SBA size protest within the short size protest response window.

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No Sick Notes at the SBA: Illness Doesn’t Extend SBA Filing Deadlines

Like many others who went to school in the 1980s, Ferris Bueller was one of my personal heroes.  Ferris took the idea of faking sick from school and turned it into an art form, complete with a moving mannequin in the bed, canned messages playing when the doorbell rang, and even a before-its-time hacking of the school computers to change his attendance records.  And of course, Ferris spent his day off tooling around in a Ferrari, attending a Chicago Cubs game (nice taste, Ferris!), and bringing The Beatles back into style.  What kid wouldn’t want to skip school for that?

Sick days–whether real or not–are a time-honored part of school.  Unfortunately, as one contractor learned the hard way, sick notes may not work at the SBA.

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