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.
No matter a company’s actual size, the company will be deemed an ineligible large business if it fails to timely respond to a SBA size protest.
Just ask American Blanching Company, which was recently found ineligible for a small business set-aside contract because it did not respond to a SBA size protest within the short size protest response window.
When it comes to SBA 8(a) termination appeals, failing to follow technical filing requirements can be fatal, as one contractor recently learned the hard way.
In James Kelly Construction Co., SBA No. BDPT-459 (2012), the SBA terminated James Kelly Construction Company from the 8(a) program, alleging that the company’s owner owed outstanding taxes. The company filed a SBA 8(a) termination appeal with the SBA Office of Hearings and Appeals, arguing that the owner did not, in fact, owe taxes.
Unfortunately, the company–which prepared and filed its appeal without a lawyer–failed to include with its appeal a copy of the SBA’s termination determination and the date the determination was received. Because both of these items are required by regulation, SBA OHA dismissed the company’s SBA 8(a) termination appeal, and subsequently denied the company’s request that SBA OHA reconsider its dismissal.
SBA OHA appeals, including 8(a) termination appeals, come with a variety of technical requirements. As the James Kelly Construction Co. case demonstrates, meeting those technical requirements is imperative, or the appeal could be lost before SBA OHA ever reaches the merits of the matter.
In a case that ought to make 8(a) participants sit up and take notice, an 8(a) company was terminated from the 8(a) program for failing to obtain the SBA’s prior approval of its teaming agreement for an 8(a) contract–and the SBA Office of Hearings and Appeals upheld the termination.
A minority owner with a mere 21.2% stake in a government contractor controlled that contractor for SBA size and affiliation purposes, according to a recent SBA Office of Hearings and Appeals decision.
SBA OHA’s decision in Size Appeal of Civitas Group, LLC, SBA No. SIZ-5424 (2012) is an important reminder that a contractor’s single largest minority shareholder may be deemed to control the company under the SBA size and affiliation rules–even if the contractor’s governing documents do not grant that shareholder actual legal control.
You would think a company as large as Northrop Grumman would know how to avoid ostensible subcontractor affiliation with a small prime, wouldn’t you?
You’d be wrong. In a recent SBA Office of Hearings and Appeals decision, a Northrop Grumman entity entered into a teaming arrangement with a small prime, in which all three key employees identified in the proposal were employed by the large subcontractor. The result: ostensible subcontractor affiliation.
Affiliation based on family relationships is perhaps one of the least understood SBA affiliation rules, and continues to trip up many small government contractors. Case in point: a recent SBA Office of Hearings and Appeals decision finding a small business affiliated with a company controlled by the mother of the small business’s owner, based on the family relationship and subcontracts between the companies.
The SBA Office of Hearings and Appeals will reject a contractor’s attempt to submit new evidence in a SBA size appeal unless the contractor shows “good cause” to admit the new evidence.
And, as demonstrated by a recent SBA OHA size appeal decision, when the evidence was publicly available at the time the size protest was filed, but was not submitted with the size protest, it will be very difficult to convince SBA OHA to review the new evidence.