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.

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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SBA Misevaluated Disabled Vet’s 8(a) Application, Says SBA OHA

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For the third time in as many months, the SBA Office of Hearings and Appeals has ruled that the SBA erroneously evaluated an 8(a) applicant’s evidence of social disadvantage.

In Innovet, Inc., SBA No. BDPE-466 (2013), SBA OHA held that the SBA’s evaluation of a disabled veteran’s 8(a) application was flawed because the SBA relied on broad, conclusory statements, failed to consider all of the veteran’s evidence of social disadvantage, and made conclusions contrary to the evidence in the record.

The Innovet case is part of a heartening trend of recent SBA OHA decisions holding that 8(a) evaluations must be fair, reasonable and thorough.  The case also highlights that the SBA continues to make flawed analyses of social disadvantage, potentially preventing some eligible companies from obtaining 8(a) certification. Continue reading →

SBA Size Protests: Timeliness Mistake Proves Costly

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SBA size protests are often dismissed when contractors misunderstand the size protest timeliness rules.

A recent SBA Office of Hearings and Appeals decision offers an important reminder that for negotiated procurements, the clock starts ticking on a potential SBA size protest upon notification of the prospective awardee–not when the contract is actually awarded.

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8(a) Mentor Protege Agreements And Shared Employees: A Risk Of Affiliation?

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Can an SBA 8(a) program mentor and protege be affiliated, notwithstanding their 8(a) mentor-protege arrangement, if the firms engage in extensive employee sharing?

Maybe.

In a recent decision, the SBA Office of Hearings and Appeals suggested that extensive employee sharing between an 8(a) protege and its mentor might be outside the bounds of protected “assistance” under the 8(a) mentor-protege program.  And in the same case, SBA OHA raised an interesting question: does a mentor-protege relationship protect the mentor from affiliation, as well as the protege?

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NAICS Code Appeal Cannot Be Based On Sources Sought Notice

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A NAICS code appeal cannot be based on a sources sought notice, according to a recent NAICS appeal decision issued by the SBA Office of Hearings and Appeals.

In NAICS Appeal of Integrated Laboratory Systems, Inc., SBA No. NAICS-5406 (2012), SBA OHA held that under the FAR and SBA’s regulations, a viable NAICS code appeal cannot be filed until the solicitation itself is issued.

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