Shopping for a New Small Business: How Acquisitions Affect Size Status for Multiple-Award Contracts

As federal contracts attorneys, we often get questions about what happens in the event of an acquisition of a small business. Reporting requirements, whether before or after an acquisition, tend to vary from one type of small business socioeconomic program to another. And there are other considerations such as whether the small business in question is the one being acquired or the one acquiring another small business and the timing with regard to proposal submission, contract performance, task orders,  and other variables. Taking those together, and it can be, well, confusing, to say the least. In the case of Forward Slope, Inc., SBA’s Office of Hearings and Appeals (OHA) took a look at some of these variables to determine how an acquisition can affect the size of a concern awarded a multiple award contract.

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OHA: Respond to SBA Size Determination Questions, or Risk an Adverse Inference

SBA’s size protest rules contain a stick to force companies to respond to SBA as part of size determination. That stick is called the adverse inference rule. The adverse inference rule says that, if SBA requests specific information and a protested company refuses to provide it, SBA may assume that the missing information would show that the company is not a small business. In a recent decision, SBA’s Office of Hearings and Appeals (OHA) upheld the use of the adverse inference.

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Technically Unacceptable Offeror Cannot Protest Awardee’s Size, Says OHA

In a recent size determination appeal, OHA confirmed that an offeror found technically unacceptable does not have standing to protest an awardee’s size under SBA’s regulations. As such, OHA denied the appeal and affirmed the Area Office’s size determination dismissing the size protest on such grounds.

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OHA Reiterates that Filing Deadlines Cannot be Extended

As I’m sure most other attorneys can commiserate with, I often have a recurring nightmare that I miss a filing deadline. Doing so can lead to terrible results: dismissed cases and, in some cases, sanctions against the attorney. For this reason, we always check, double-check, and triple-check our filing deadlines, and strive to file documents early, when possible.

Given my fear, I gain no pleasure in reading about missed filing deadlines, especially when the goof is the subject of a matter outside the attorney’s control.

But as a recent decision by the SBA’s Office of Hearings and Appeals demonstrates, even the most sympathetic of excuses won’t excuse a late appeal filing.

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SBA OHA: Contracting Officer Can’t Extend Size Appeal Deadline

When you hear “15 days,” what’s the first thing that comes to mind? Perhaps, you pay your employees every 15 days. Maybe your birthday or favorite holiday happens to be in 15 days. Or if you’re like me, you might think that 15 days is two days fewer than Thirteen Daysa great movie about the Cuban Missile Crisis.

Whatever your brain conjures up, don’t forget this: 15 days is the time limit to appeal an SBA size determination. Period. And nothing the contracting officer says can change it.

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