5 Things You Should Know: Size Protests and Appeals

I’m just back from El Paso, where I had a great time discussing small business size and affiliation issues at the Contract Opportunities Center. This presentation got me thinking: “Wouldn’t our loyal SmallGovCon readers want to know 5 Things about size protests and appeals?”

“Of course they would!” I immediately answered my own internal monologue. “After all, who wouldn’t?”

Here are 5 Things You Should Know about size protests and appeals:

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SBA OHA Rejects “Chain Affiliation” Theory

Ordinarily, a company isn’t affiliated with the affiliates of its affiliates.

That sentence may sound a little silly, but it encapsulates an important principle about the breadth of the SBA’s affiliation rules.  As demonstrated in a recent SBA Office of Hearings and Appeals decision, the SBA doesn’t apply its rules to create “chain affiliation.”

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No Competitor Size Protests of 8(a) Sole Source Awards, Says SBA OHA

The SBA’s regulations do not allow an 8(a) company to file a size protest challenging the award of an 8(a) sole source contract to a competitor.

In a recent size appeal decision, the SBA Office of Hearings and Appeals confirmed that size protests relating to 8(a) sole source awards can be filed by contracting officers or the SBA itself–but not by competitors.

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SBA Size Protests: Subsidiary Couldn’t File for Parent

A subsidiary cannot file an SBA size protest on behalf of its parent company.

Last week, I wrote about an SBA Office of Hearings and Appeals case holding that a parent couldn’t file a size appeal on behalf of its subsidiary.  Unsurprisingly, it turns out that the same principles apply to initial size protests, too.

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SBA Size Appeals: Parent Cannot File for Subsidiary

An SBA size appeal must be filed by someone “adversely affected by a size determination.”  Because parent and subsidiary companies are not directly affected by contracts bid upon by their corporate affiliates, those entities cannot file SBA size appeals on behalf of one another.

In a recent size appeal decisions, OHA confirmed that a parent company cannot file a size appeal on behalf of a subsidiary.

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Nonprofits Not Exempt From Affiliation Rules, Says SBA OHA

A recent SBA Office of Hearings and Appeals decision confirms that there is no exception for nonprofit organizations when it comes to affiliation issues.

In the case, SBA OHA found affiliation between a self-certified small business and a nonprofit organization based on close family members controlling both the business concern and ​the ​nonprofit.​ Adding in the receipts from the affiliated nonprofit made the business in question ineligible for small business status.

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“Similarly Situated Entities” Exempt From Ostensible Subcontractor Affiliation, SBA OHA Confirms

A “similarly situated entity” cannot be an ostensible subcontractor under the SBA’s affiliation rules.

In a recent size appeal decision, the SBA Office of Hearings and Appeals confirmed that changes made to the SBA’s size regulations in 2016 exempt similarly situated entities from ostensible subcontractor affiliation.

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