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.

SBA OHA: 42%-49% Of Revenues Did Not Create Economic Dependence Affiliation

Posted on by

A small business was not affiliated with its largest customer under the SBA’s economic dependence affiliation rule, even though the small business earned as much as 49% of its revenues from the alleged affiliate–and even though the small business’s SEC Annual Report stated that the small business was dependent on its customer.

SBA OHA’s decision indicates that receiving less than 70% of revenues from an alleged affiliate may not, absent other indicia of affiliation, establish affiliation under the economic dependence rule.

Continue reading →

SDVOSB Gets Attorneys’ Fees In SBA OHA Case

Posted on by

A service-disabled veteran-owned small business was awarded its attorneys’ fees for successfully appealing the SBA’s decision that the company was not an eligible SDVOSB.

In what seems to be the first decision of its kind, the SBA Office of Hearings and Appeals held that the prevailing party in a SDVOSB appeal may be entitled to recover attorneys’ fees under the Equal Access to Justice Act.

Continue reading →

SBA Affiliation Rules: Family Ties Plus Business Ties May Equal Affiliation

Posted on by

The SBA affiliation rules are not always intuitive, and perhaps no SBA affiliation rule is as little understood as the so-called “identity of interest” rule under 13 C.F.R. 121.103(f).

Identity of interest affiliation can arise in several ways, including when close family members also have business ties.  As demonstrated in a recent SBA Office of Hearings and Appeals decision, a close family relationship between two business owners, plus significant business ties, may cause affiliation between the businesses.

Continue reading →

GSA Schedule BPA Awards: Size Status Ordinarily Is Based On Underlying GSA Schedule Contract

Posted on by

When a small business submits an offer for a Blanket Purchase Agreement issued against a GSA Schedule contract, the offeror does not automatically recertify its size.  Rather, a new regulation effective December 31, 2013 provides that an offeror’s size status for a BPA issued against a GSA Schedule ordinarily is determined by looking to the offeror’s self-certification for the underlying GSA Schedule contract.

In a recent size appeal decision, the SBA Office of Hearings and Appeals relied, in part, on the new regulation to find that an offeror had not recertified its small business status by submitting a quotation for a BPA to be issued against the offeror’s GSA Schedule contract.

Continue reading →

The Nonmanufacturer Rule: Even “Rich Chicks” Must Supply Small Business End Items

Posted on by

Under the nonmanufacturer rule, qualifying as a nonmanfucturer requires a small business to provide the end products of a small business–and even “Rich Chicks” must comply.

In a recent decision, the SBA Office of Hearings and Appeals held that a company named “Rich Chicks, LLC” had not complied with the nonmanufacturer rule because Rich Chicks’ proposal did not offer the end products of a small business.

Continue reading →

NAICS Code Appeals: No New Challenges To SBA OHA Decisions

Posted on by

A NAICS code appeal cannot validly be filed against a NAICS code designated by the SBA Office of Hearings and Appeals.

In a recent decision, SBA OHA held that when SBA OHA determines the appropriate NAICS code as the result of a NAICS code appeal, that NAICS code cannot itself be attacked in a new NAICS code appeal.  The message to prospective offerors: participate in the initial NAICS code appeal, or hold your peace.

Continue reading →

Newly Organized Concern Affiliation: “Key Employee” Must Influence Entire Company

Posted on by

Newly organized concern affiliation under the SBA’s affiliation rules did not exist when the alleged former key employee of the affiliate did not exercise influence over the entire company.

In a recent decision, the SBA Office of Hearings and Appeals held that no matter the size of the alleged affiliate, a former “key employee” must have had the ability to influence the entire company in order for the newly organized concern affiliation rule to apply.

Continue reading →