Category Archives: SBA OHA Decisions

Includes decisions of the SBA Office of Hearings and Appeals, including size appeal decisions, service-disabled veteran-owned small business appeal decisions, NAICS code appeal decisions, and women-owned small business appeal decisions.

OHA Says: Compliance with SBA Joint Venture Requirements is Determined at the Time of Final Proposal Revisions

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Navigating the U.S. Small Business Administration (SBA) regulations can sometimes feel like navigating through a room filled with laser tripwires. One wrong decision or misstep could result in the company’s disqualification. A company might make a decision relying on its understanding of one SBA regulation, unaware of the application of an entirely different SBA regulation. While a miscalculation in complying with the regulations doesn’t trigger the same disasters shown in an action-packed spy movie, the effects can still be costly.

In Primary Health Care, LLC d/b/a Anglin Distinctive Health Care JV, LLC, SBA No. SIZ-6370 (2025), a joint venture’s misapplication of SBA’s timing rules for size determination standards resulted in the company’s ineligibility for award.

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OHA Finds Totality of the Circumstances Affiliation Based on Loans and Close Oversight of Operations

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Long-time SmallGovCon readers are probably aware of the thorny issues presented by an SBA finding of affiliation. When set aside contracts are dependent on a small business size status, an allegation of affiliation with a large business can be a crisis for a small business contractor. SBA’s affiliation doctrine is large and complex (so much so that we have an entire handbook dedicated to the subject).  But there is one catch-all affiliation provision that is perhaps the murkiest area of all, meaning the hardest to predict). If SBA does not find affiliation based on things like common ownership or common management (relatively straightforward concepts), it can nonetheless find affiliation based on “the totality of the circumstances.”

A recent OHA decision found affiliation based on totality of the circumstances, in part based on loans causing economic dependence, heavy reliance on infrastructure of an affiliate, and involvement in banking and operations.

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OHA: Contractor Learns from Earlier OHA Decision to Show Me the Money on Ostensible Subcontracting Issue

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Compliance with the ostensible subcontractor rule is essential for companies seeking small business and socioeconomic set-asides. Yet many contractors learn the hard way that there is a difference between simply claiming compliance and proving it.

Earlier this year, we blogged on an SBA Office of Hearings and Appeals (OHA) decision (here) that examined whether a subcontractor was an ostensible subcontractor or not. Ultimately, the awardee failed to sufficiently demonstrate that its subcontractor was not performing the primary and vital parts of the contract.  

In a recent OHA decision, the same parties went head-to-head again for round two, on a different procurement with a different proposal. But this time, one party brought the receipts. In reviewing the proposal, SBA found that the prime contractor had properly outlined its tasks and work in alignment with the solicitation and showed its compliance with the limitations on subcontracting. These two cases work in tandem to help show federal contractors how to demonstrate compliance with the ostensible subcontractor rule.

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SBA OHA: On Second Thought, Managing Venturer Must Still be in Charge of JV

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A few months back, we discussed a case at SBA’s Office of Hearings and Appeals that took a closer look at the actions that a Non-Managing Venturer in a small business joint venture is permitted to have negative control over—that is, those actions which the Non-Managing Venturer’s disapproval can block from happening. It also addressed what happens when a joint venture agreement does not include all of the provisions that the SBA rules require for a mentor-protégé joint venture agreement under the SBA’s Mentor-Protégé Program to avoid affiliation. Following that decision, the matter was brought to the Court of Federal Claims. Below, we discuss Multimedia Environmental Compliance Group JV v. United States, 178 Fed. Cl. 129 (2025) which covers the COFC’s review of the OHA decision. 

That case reaffirmed that just having required control language in a JV isn’t enough, other provisions in the JVA cannot give inordinate control to the Non-Managing Venturer.

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OHA: Size Protest Review Must be More Than a Rubber Stamp

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As Federated Maritime, LLC, SBA SIZ-6360, 2025 demonstrates, an agency’s review of a size protest must be more than just a surface-level review and a rubber stamp. This size appeal started with a disappointed bidder (here, the Appellant) that questioned the relationship between Schuyler Line Navigation Company, LLC (or Awardee), a company that won two cargo charter contracts, and its alleged affiliates. The contracts were 100% set-aside for small businesses under NAICS Code 483111 – Deep Sea Freight Transportation.

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SBA OHA Says: Claiming Social Disadvantage? Prove it!

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Many individuals who have gone through SBA’s 8(a) Business Development Program (the 8(a) Program) will tell you that the application process is not for the faint of heart. One of the most time-consuming, and often frustrating hurdles of the application is the Social Disadvantage Narrative (or SDN).  

Applicants are asked to revisit painful moments where they experienced discrimination. Sharing these deeply personal experiences is what makes it so upsetting for an applicant when SBA pushes back on their narrative – or worse, when SBA questions the bias, finding “legitimate alternative grounds” for the mistreatment.

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SBA OHA: A Joint Venture Agreement Can’t Step on the Managing Venturer’s Toes

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Joint ventures created between a small business protégé and a large mentor are without a doubt a very alluring and popular aspect of the SBA’s Mentor-Protégé Program. It provides an incentive to potential mentors to share their connections, resources, experience, and industry knowledge with small businesses, many of whom are not only small, but participants in one of the various SBA programs such as the 8(a) Program and Woman-Owned Small Business Program, to name a couple. But, as appealing as mentor protégé joint ventures are, a recent decision demonstrates (yet again) there are a number of joint venture requirements that must be met if you want to experience their benefits. And failure to do so can result in some undesirable consequences.

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