SBA size protests must be filed with the contracting officer, who then forwards the size protest to the SBA Area Office for review. The U.S. Government Accountability Office lacks jurisdiction to consider size protests, and filing a SBA size protest with the GAO will be ineffective, as one contractor recently discovered.
Category Archives: SBA Size Protests
Worst SBA Size Appeal Ever? Large Business Files Off-Topic Document with SBA OHA
“No, we’re not a small business, but we could really, really use that small business set-aside contract.”
That, in essence, was the content of a document recently filed with the SBA Office of Hearings and Appeals, which SBA OHA charitably treated as a formal size appeal. Reading this case left me scratching my head and wondering: was this the worst SBA size appeal ever filed?
SBA Size Protest Allegations: Use ‘Em Or Lose ‘Em
SBA size protests should include all of the reasons why the protester believes the protested company is not small. If the protester omits an allegation from its SBA size protest, the allegation may be lost forever, even if the protester files a SBA size appeal.
One protester recently learned this lesson the hard way. On appeal before the SBA Office of Hearings and Appeals, the protester alleged that the awardee was affiliated with the incumbent contractor. The problem? The protester never mentioned any such affiliation in its SBA size protest.
VA CVE: Reconsideration Decisions Will Take 90 Days, Not 60
A decision on a request for reconsideration of a denied SDVOSB verification application will take approximately 90 days instead of 60 days, according to the VA Center for Veterans Enterprise. In a letter emailed recently to one service-disabled veteran, who authorized me to publish an excerpt on SmallGovCon, the VA CVE stated:
The regulation, 38 CFR 74, states that CVE has 60 days, when practicable, to make a final decision associated with the request for reconsideration. Unfortunately we have received an exceptionally large number of requests for reconsideration, and currently almost 600 applications are in the reconsideration process. As a result, it is no longer practicable to process these within 60 days. Historically, 20% of companies receiving an initial denial are requesting reconsideration. We have shifted and added resources in an effort to speed up the process. In order to be fair to all applicants, we continue to process all requests for reconsideration on a first come, first served basis. We currently estimate that we will be able to provide a decision within 90 days of receiving the request for reconsideration, so you can expect a decision no later than [date redacted]. As soon as we can give you a better estimate of the timeframe for decision, we will do so.
It is little wonder that the VA CVE is experiencing reconsideration overload, because the VA CVE is denying 60% of initial SDVOSB verification applications. I am sympathetic to the VA CVE’s overworked employees, but I have much more sympathy for the eligible service-disabled veterans who will suffer from the reconsideration delays.
Ostensible Subcontractor Rule: A Look At A Compliant Team
The ostensible subcontractor rule can be challenging, because there is no magic formula for compliance. When a protester raises an ostensible subcontractor rule allegation, the SBA evaluates all aspects of the prime/subcontractor relationship to see whether the ostensible subcontractor rule was violated. If the SBA concludes that the small prime contractor is unduly reliant on it subcontractor, and/or the subcontractor will perform the primary and vital portions of the contract, it will find the prime affiliated with its subcontractor.
Although there is no single recipe for ostensible subcontractor rule success, it can be useful to examine SBA Office of Hearings and Appeals cases to see exactly what sort of prime/sub relationships SBA OHA deems problematic–and which pass muster. Today’s post is in the latter category: a recent SBA OHA decision finding that the ostensible subcontractor rule had not been violated.
What did the prime and subcontractor in that case do right?
SBA Size Protest Timeliness: Solicitation Doesn’t Extend Filing Deadline
SBA size protests are only timely if received within five business days. The SBA size protest timeliness rule can confuse potential protesters, because it is different than the 10-day rule applicable to most post-award GAO bid protests.
In a recent SBA Office of Hearings and Appeals decision, a would-be protester apparently got tripped up by the different filing periods, incorrectly interpreting a solicitation provision regarding GAO bid protests as establishing an extended SBA size protest filing deadline. SBA OHA held that the protester’s misunderstanding did not entitle it to file a late SBA size protest.
SBA OHA: Not The Place To “File” A SDVOSB Protest
For small government contractors, SBA size and eligibility issues are of critical importance. Recognizing this, the SBA provides an independent forum–the SBA Office of Hearings and Appeals–to review potential mistakes made by the SBA Area Offices, which decide SBA size protests.
Small government contractors must remember, however, that SBA OHA exists to evaluate the decisions made by SBA Area Offices, not to evaluate new allegations raised for the first time in the course of a SBA OHA appeal. Case in point: SBA OHA’s recent decision in Size Appeal of In & Out Valet Co., SBA No. SIZ-5354 (2012), in which the protester apparently attempted to “file” a SDVOSB protest with SBA OHA during the course of its SBA size appeal.