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 Doesn’t Fix Incorrect NAICS Code Regulation; Protester Pays The Price

Posted on by

A contractor’s NAICS code appeal was dismissed as untimely, even though it was filed within the time frame expressly established in an SBA regulation.

In a recent decision, the SBA Office of Hearings and Appeals confirmed its earlier ruling that a NAICS code appeal must be filed within ten calendar days, despite an SBA regulation establishing a filing deadline of ten business days.

SBA OHA’s decision isn’t surprising in light of its prior ruling.  However, in my mind, the decision raises a question of fundamental fairness: should protesters continue to be penalized for the SBA’s failure to fix its conflicting timeliness regulations?

Continue reading →

SBA OHA Decision Highlights Joint Venture “Individual Size Treatment” Rule

Posted on by

The SBA misevaluated a joint venture by basing its ineligibility decision on the joint venture’s revenues, rather than determining whether each joint venturer, individually, qualified as a small business, according to a recent decision of the SBA’s Office of Hearings and Appeals.

SBA OHA’s decision highlights what I like to call the “individual size treatment rule,” a special regulation requiring the SBA to deem a joint venture “small” under certain circumstances, even when the combined sizes of the joint venture’s members exceed the applicable size standard.

Continue reading →

SBA OHA: Increased Competition Not Part of NAICS Code Decision

Posted on by

When designating the NAICS code for a solicitation, the procuring agency should not consider which NAICS code will help increase competition and decrease the risks of unsuccessful performance.

According to a recent decision of the SBA Office of Hearings and Appeals, these factors should play no bearing on an agency’s NAICS code designation.  Instead, in most cases, the agency must select the NAICS code that best describes the principal purpose of the product or service being acquired.

Continue reading →

NAICS Codes and GSA Schedule Orders: An Important Exception

Posted on by

A Contracting Officer must designate the NAICS code which best describes the principal purpose of the product or service being acquired, right?

Not always.  As demonstrated in a recent SBA Office of Hearings and Appeals decision, when it comes to picking a NAICS code for a GSA Schedule task order, a Contracting Officer’s choices can be quite limited–and the “best” NAICS code might not be chosen.

Continue reading →

8(a) Contractor Terminated For Subcontracting Limit Violations

Posted on by

A contractor was recently terminated from the SBA’s 8(a) Program for failing to comply with the subcontracting limits applicable to its 8(a) contracts.

The SBA Office of Hearings and Appeals upheld the termination, writing that the SBA had properly terminated the 8(a) contractor for “willfully violating SBA regulations.”  SBA OHA rejected the contractor’s argument that it was exempt from the subcontracting limits under the so-called non-manufacturer rule.

Continue reading →

Verified SDVOSB Found Ineligible For Navy SDVOSB Set-Aside

Posted on by

Despite its VA VetBiz verification, a small business was recently found ineligible for a Navy SDVOSB set-aside, in a decision issued by the SBA’s Office of Hearings and Appeals.

The SBA’s decision stands as a warning that SDVOSB verification does not guarantee SDVOSB eligibility–especially when an eligibility protest arises under a non-VA procurement.

Continue reading →

SBA Size Protests: Agency’s Corrective Action Did Not Extend Deadline

Posted on by

A procuring agency’s decision to take corrective action in response to a GAO bid protest did not extend the standard five-business day deadline to file a SBA size protest.

This was the decision of the SBA Office of Hearings and Appeals in a recent SBA size appeal case, in which SBA OHA held that a size protest was untimely when it was filed within five business days of the agency’s notification, after taking corrective action, that it would reaffirm its award to the protested contractor.

Continue reading →