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.Continue reading
The joint venture two-year rule always generates a lot of questions. But it’s an important one for small business joint venture members to understand and comply with. A recent decision from the Small Business Administration Office of Hearings and Appeals (OHA) shows why. In the case, a joint venture lost an award because it violated the two-year rule.Continue reading
A joint venture agreement must closely follow Small Business Administration rules to be compliant for a small business set-aside. And SBA interprets those rules strictly. If they are not followed, a joint venture that was up for award, can see that award go up in smoke. Here, SBA said that a joint venture involving a Service-Disabled Veteran-Owned Small Business (SDVOSB) was not compliant because it was both (a) not specific enough and (b) too detailed in providing for oversight of actions of the JV partners.Continue reading
SBA administers four socioeconomic programs: Service-Disabled Veteran-Owned Small Business (SDVOSB), 8(a) Business Development Program (8(a)) Women-Owned Small Business Program (WOSB) and HUBZone. The SDVOSB, 8(a), and WOSB programs all require that the key owner generally have control over the long-term decision-making and the day-to-day operations of a company. These same rules apply to the veteran-owned small businesses program (VOSB) as well. A recent decision from the Office of Hearings and Appeals at SBA reveals that the operating agreement or bylaws for these types of companies must be very clear about how they are operated.Continue reading
Writing a social disadvantage narrative for application to SBA’s 8(a) Business Development Program has always been an arduous undertaking–to say the least. And up until a recent Federal District Court decision (which we blogged on here), only a small portion of 8(a) Program applicants had to submit this time-consuming, highly personal, difficult task. But now (as discussed in the above-linked blog and in this blog on SBA’s recent actions in response to the decision), this requirement is being expanded to all individual applicants that haven’t already provided a social disadvantage narrative. You can read much more about SBA’s implementation of this here. But essentially, you will need to write a social disadvantage narrative if you are an individually-owned1 8(a) applicant or program participant who is trying to get into the 8(a) Program or already in the 8(a) Program–even if you were planning to or already had relied on the rebuttable presumption of social disadvantage (which SBA can no longer use).
Fortunately, we have been drafting these narratives for a long time now, meticulously studying and utilizing: (i) SBA’s rules, policies, and guidance on social disadvantage narratives (recent guidance can be found here); (ii) SBA’s feedback on individual narratives; and (iii) SBA’s Office of Hearings and Appeals (OHA) decisions covering the SBA’s initial appealed decisions on applicants’ social disadvantage eligibility–as well as OHA’s final decisions on the appeals. So, while SBA’s current regulations and guidance can guide your pen, they are certainly not the only source of helpful information out there. Let’s take a look at some SBA guidance and recommendations based on SBA’s actual decisions that may increase your chances for success.Continue reading
In a recent decision, the Small Business Administration’s Office of Hearings and Appeals (OHA) reviewed the requirements to establish that a company is a manufacturer of a product under SBA’s rules. In particular, there is a requirement that a company use “its own facilities” in manufacturing the product. But how does a company establish it will use its own facilities?Continue reading
It’s here–the first ever SBA Office of Hearings and Appeals (OHA) HUBZone appeal decision! Sure, it is a very short decision and a dismissal–in fact, one reiterating some of the limitations of the new appeal avenue. But that doesn’t make it any less important. This is still SBA OHA’s first ever HUBZone appeal decision, only made possible by the SBA’s recent issuance of a new rule allowing HUBZone appeals (again, in limited circumstances). Let’s take a closer look.Continue reading