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.

Groundhog Day is Here: SBA OHA Shoots Down Another 8(a) Program Rejection

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In the 1990s comedy Groundhog Day, Bill Murray played a weatherman who found himself living the same day over and over again.  I am having the same feeling reading SBA Office of Hearings and Appeals cases these days (yes, this is what qualifies as my reading material of choice; don’t judge).

As it has at least five other times since December, SBA OHA has shot down the SBA’s rejection of an 8(a) application under the “social disadvantage” factor.  As was the case in several other recent decisions, the latest volley from SBA OHA states that the SBA failed to properly consider the evidence and explain its rationale for denying an 8(a) applicant.

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SBA OHA: Contractor Successfully Fractured Economic Dependence Affiliation

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A contractor is not economically dependent upon another firm where it receives only a small proportion of its revenues from the other firm as of the self-certification date for a set-aside contract–even if the contractor previously received more than 70% of its annual revenues from the other firm.

This was the commonsense decision of the SBA Office of Hearings and Appeals in a recent size appeal case, in which SBA OHA held that a contractor’s prior economic dependence on another company does not necessarily mean that the companies are still affiliated under the SBA’s affiliation rules.

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SBA OHA Overturns Another 8(a) Program Denial

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The SBA’s Office of Hearings and Appeals has overturned yet another SBA 8(a) Program denial decision–at least the fifth such instance since December 2012.

As with the four previous cases, SBA OHA’s most recent 8(a) appeal decision indicates that the SBA improperly evaluated the applicant’s evidence of social disadvantage, both by misapplying the regulatory test for social disadvantage and by requiring the applicant to meet a higher standard of proof than called for by law.

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After Successful 8(a) Appeal, Veteran-Owned Firm Gains 8(a) Certification

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After prevailing in its SBA OHA 8(a) appeal, a St. Louis-based communications and electrical construction contractor has been certified as a participant in the SBA’s 8(a) program.

The SBA’s decision to certify Innovet, Inc. shows the importance of pursuing an appeal of an unreasonable SBA 8(a) denial–and offers hope that the SBA is learning from its recent string of defeats at SBA OHA.

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Another 8(a) Appeal Upheld: Is The 8(a) Evaluation Process Fundamentally Flawed?

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For the fourth time since December, and second time involving a woman-owned business, the SBA Office of Hearings and Appeals has held that the SBA misevaluated an 8(a) applicant on the “social disadvantage” requirement.

In the most recent case, Black Horse Group, LLC, SBA No. BDPE-468 (2013), SBA OHA again found that the SBA committed multiple errors in its 8(a) evaluation, including holding the applicant to an impermissible high standard of proof, failing to consider all evidence in the record, and drawing erroneous conclusions from the evidence it did consider.

Following on the heels of recent SBA OHA 8(a) appeal decisions involving a disabled veteran, a physically disabled man, and a woman business owner, it is fair to ask: is the SBA’s 8(a) social disadvantage evaluation process fundamentally flawed?

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Air Force Solicitation Requires SDVOSB VetBiz Verification

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VetBiz verification is only required for VA SDVOSB set-aside solicitations (and FAA SDVOSB set-asides), right?  Not in the eyes of one Air Force contracting officer, who apparently inserted a VetBiz verification requirement in a recent SDVOSB set-aside solicitation.

After being excluded from the competition, a contractor challenged the legality of the VetBiz requirement, and asked the SBA to declare it invalid.  Unfortunately for the protester, as the SBA Office of Hearings and Appeals held, the SBA lacks authority to rule on such a protest.

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Federal Court Enjoins Contract Award Pending SBA OHA Size Appeal

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If a contractor ends up on the losing end of a SBA size protest, the contractor has the right to appeal to the SBA Office of Hearings and Appeals.  The problem is that SBA OHA size appeals can take months.  A contracting officer may be unwilling to wait, and simply award the contract to the next company in line.

Neither the FAR nor the SBA’s regulations require the contracting officer to suspend award or performance pending SBA OHA’s decision.  However, as a recent case demonstrates, if the SBA OHA appeal has a reasonable likelihood of success, the U.S. Court of Federal Claims may issue an injunction prohibiting the procuring agency from awarding the contract pending the result of the SBA OHA size appeal.

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