OHA recently confirmed that it lacked jurisdiction to decide a NAICS code appeal regarding a GPO procurement, even though that procurement was conducted on behalf on the VA. OHA’s dismissal was based on the fact that GPO, a legislative branch agency, is not subject to the same rules as the executive agencies.Continue reading
While the SBA’s Office of Hearings and Appeals hears appeals for many of the SBA’s programs, there are certain decisions that remain outside of its purview.
As one protester was surprised to learn, among those items outside of OHA’s jurisdiction are appeals of the HUBZone status determinations.
The SBA has proposed rules to enable contractors to file protests with the SBA Office of Hearings and Appeals challenging the SDVOSB or VOSB status of a company included in the VA’s CVE VetBiz database. The same set of proposed rules would allow a contractor to appeal to OHA if the VA denies the contractor’s application for inclusion in the CVE database, or cancels an existing verification.
The proposed rules, once finalized, will offer important new protections for SDVOSBs and VOSBs and are the first official step in implementing Congress’s mandate that the SBA and VA consolidate their SDVOSB eligibility requirements.
A NAICS code appeal can be a powerful vehicle for influencing the competitive landscape of an acquisition. A successful NAICS code appeal can dramatically alter a solicitation’s size standard, causing major changes in the number (and sizes) of potential competitors.
But a NAICS code appeal cannot be filed until the solicitation is issued. As the SBA Office of Hearings and Appeals recently confirmed, a NAICS code appeal cannot be filed with respect to a presolicitation.
The SBA’s Office of Hearings and Appeals will have authority to hear petitions for reconsideration of SBA size standards under a proposed rule recently issued by the SBA.
Once the proposal becomes a final rule, anyone “adversely affected” by a new, revised or modified size standard would have 30 days to ask OHA to review the SBA’s size standard determination.
The SBA Office of Hearings and Appeals is an appellate forum and lacks jurisdiction to hear initial size protests.
As explained in a recent SBA OHA decision, size protests must be filed with the relevant Contracting Officer, who then refers the matter to the appropriate SBA Area Office. Only after the SBA Area Office issues a size determination does OHA have jurisdiction to consider a size appeal.
A protest challenging a company’s status as a service-disabled veteran-owned small business is not the same as a protest challenging other aspects of an agency’s award decision (such as the evaluation of the protester’s proposal)–and these differences can determine whether a protest is timely and correctly filed.
In a recent case, the SBA Office of Hearings and Appeals provided some clarity on key differences between SDVOSB protests and bid protests, including important limits on the SBA’s jurisdiction.