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.

SDVOSB Protests Versus Bid Protests: SBA OHA Provides Some Clarity

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A protest challenging a company’s status as a service-disabled veteran-owned small business is not the same as a protest challenging other aspects of an agency’s award decision (such as the evaluation of the protester’s proposal)–and these differences can determine whether a protest is timely and correctly filed.

In a recent case, the SBA Office of Hearings and Appeals provided some clarity on key differences between SDVOSB protests and bid protests, including important limits on the SBA’s jurisdiction.

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SBA Size Protests: SBA Need Not Seek “Outside Sources” Of Information

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When the SBA evaluates a size protest, it need not obtain and consider “outside sources” of information–that is, information that is not provided by the protester or the protested business.

A recent decision of the SBA Office of Hearings and Appeals highlights the need for a size protest to include specific, detailed information about why the protested firm is alleged to be “other than small.”  If the protester does not include information from outside sources, the SBA is not required to seek out such information on its own.

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Ostensible Subcontractor Rule: Hiring Subcontractor’s Project Manager Didn’t Create Affiliation

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Ostensible subcontractor affiliation was not created when the small prime contractor proposed to hire its subcontractor’s current employee to serve as the prime contractor’s project manager.

In a recent size appeal decision, the SBA Office of Hearings and Appeals held that, where the prime contractor would retain supervision and control of contract performance, the prime contractor was not dependent on its subcontractor for contract management.

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Nonmanufacturer Rule: Large Manufacturers OK’d For Certain Simplified Acquisitions

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In a small business set-aside simplified acquisition of $25,000 or less, small business offerors may propose using large business manufacturers while still complying with the requirements of the nonmanufacturer rule.

In a recent decision, the SBA’s Office of Hearings and Appeals held that an apparent ambiguity contained in the nonmanufacturer regulation for certain simplified acquisitions should be resolved in favor of exempting offerors from the requirement that the manufacturer be a small business concern.

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SBA Size Protests: FAR Part 33 Doesn’t Affect Timeliness

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A SBA size protest related to a sealed bid must be filed within five business days of bid opening–and the bid protest rules under FAR Part 33 do not provide for a longer protest window.

In a recent decision, the SBA Office of Hearings and Appeals confirmed that, when it comes to size protests, the timeliness rules for bid protests (which allow many protests to be filed within 10 days after the basis of protest was known or should have been known) simply do not apply.

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Ostensible Subcontractor Affiliation: SBA Must Review Final Proposal

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To determine whether ostensible subcontractor affiliation exists between a prime contractor and its subcontractor, the SBA must use the prime contractor’s final proposal revision.

In a recent size appeal decision, the SBA Office of Hearings and Appeals overturned an SBA Area Office affiliation determination that did not contemplate an offeror’s final proposal.

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Nonmanufacturer Rule Class Waivers: SBA OHA Explains How They Work

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Under the nonmanufacturer rule, a class waiver applies to a procurement only if the NAICS code, Product Service Code and NAICS code descriptor match the item being procured.

Contrary to a common misconception, a nonmanufacturer rule class waiver is not authorized on the basis of the NAICS code alone.  In a recent size appeal decision, the SBA Office of Hearings and Appeals concisely explained how nonmanufacturer rule class waivers work.

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