Category Archives: 8(a) Program

Posts dealing with the 8(a) business development program, including 8(a) admissions and eligiblity, requests for reconsideration, ongoing eligibility and compliance, and related matters.

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

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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

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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 →

8(a) Mentor Protege Agreements And Shared Employees: A Risk Of Affiliation?

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Can an SBA 8(a) program mentor and protege be affiliated, notwithstanding their 8(a) mentor-protege arrangement, if the firms engage in extensive employee sharing?

Maybe.

In a recent decision, the SBA Office of Hearings and Appeals suggested that extensive employee sharing between an 8(a) protege and its mentor might be outside the bounds of protected “assistance” under the 8(a) mentor-protege program.  And in the same case, SBA OHA raised an interesting question: does a mentor-protege relationship protect the mentor from affiliation, as well as the protege?

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SBA Improperly Evaluated Disabled Individual’s 8(a) Program Application, Says SBA OHA

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The SBA failed to properly evaluate the 8(a) Program application of a small business owned by a disabled individual, according to a recent decision of the SBA Office of Hearings and Appeals.

SBA OHA’s decision in Striker Electric, SBA No. BDPE-465 (2013) comes on the heels of a December 2012 case in which SBA OHA held that the SBA had improperly evaluated the 8(a) Program application of a woman-owned business.  Together, the two decisions may suggest that SBA OHA is holding the SBA to a higher standard than may previously have been the case when it comes to the SBA’s evaluation of the “social disadvantage” factor.  If so, it is good news indeed for 8(a) applicants.

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New SBA Mentor-Protege Program: Clearing Up The NDAA Confusion

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True or false: the FY 2013 National Defense Authorization Act requires the SBA to create a mentor-protege program for all small businesses?

Contrary to published information issued by at least three large law firms, the answer is “false.”  In fact, although the NDAA authorizes the SBA to create a mentor-protege program for all small businesses, it does not require the SBA to create such a program.

Moreover, the erroneous statement that the NDAA requires the SBA to adopt a mentor-protege program for all small businesses is just one of three pieces of misinformation being circulated by one or more of these law firms.  Let’s take a quick look at the text of Section 1641 of the NDAA itself and put the confusion to rest.

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SBA Improperly Denied Woman’s Gender-Based 8(a) Application, Says SBA OHA

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Anyone who works with SBA 8(a) program applications will tell you that it can be very difficult for a woman to demonstrate gender bias to the extent necessary to gain admission to the program.

But for a woman-owned small business business, the road to SBA 8(a) program admission may have just gotten a little easier, as the result of a recent decision by the SBA Office of Hearings and Appeals.  In Strategygen Co., SBA No. BDPE-460 (2012), SBA OHA held that the SBA’s 8(a) admissions office had repeatedly erred in evaluating a woman’s claims of gender bias, and ordered the woman-owned firm admitted to the 8(a) program.

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Ostensible Subcontractor Rule: SBA 8(a) Mentor-Protege “Shield” Does Not Apply

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The SBA 8(a) mentor-protege affiliation “shield” does not prevent a mentor and protege from being affiliated under the so-called ostensible subcontractor rule, according to a recent decision of the SBA Office of Hearings and Appeals.

In Size Appeal of InGenesis, Inc., SBA No. SIZ-5436 (2013), SBA OHA held that the broad exception from affiliation for 8(a) proteges and their mentors does not prevent the SBA from deeming the companies affiliated under the ostensible subcontractor rule.

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