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.

8(a) Program: SBA OHA Holds Applicant May Work Second Full-Time Job

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The 8(a) program regulations require the disadvantaged individual upon whom 8(a) program eligibility is based to manage the firm on a full-time basis, during normal working hours of firms in the same or similar line of business.  When 8(a) program applicants learn about 8(a) program’s “full time devotion” requirement, many ask: “can I work a second job?”

Maybe.  As seen in a recent decision of the SBA Office of Hearings and Appeals, an 8(a) program applicant may be able to engage in outside employment–even a second full-time job–so long as the applicant can demonstrate that the outside employment will not interfere with the applicant’s ability to manage the 8(a) firm full-time during normal working hours.

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Ostensible Subcontractor Rule: A Look At A Compliant Team

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The ostensible subcontractor rule can be challenging, because there is no magic formula for compliance.  When a protester raises an ostensible subcontractor rule allegation, the SBA evaluates all aspects of the prime/subcontractor relationship to see whether the ostensible subcontractor rule was violated.  If the SBA concludes that the small prime contractor is unduly reliant on it subcontractor, and/or the subcontractor will perform the primary and vital portions of the contract, it will find the prime affiliated with its subcontractor.

Although there is no single recipe for ostensible subcontractor rule success, it can be useful to examine SBA Office of Hearings and Appeals cases to see exactly what sort of prime/sub relationships SBA OHA deems problematic–and which pass muster.  Today’s post is in the latter category: a recent SBA OHA decision finding that the ostensible subcontractor rule had not been violated.

What did the prime and subcontractor in that case do right?

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NAICS Code Appeals: Deadline Is Ten Calendar Days, Not Ten Business Days

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A federal regulation states that NAICS code appeals are timely if filed within ten business days.  So why was one small business’s NAICS code appeal dismissed even though it filed the appeal within the time period called for by the regulation?

According to SBA OHA, the regulation was erroneous, and the actual NAICS code appeal deadline is ten calendar days.  I don’t know about you, but to me, the result doesn’t seem particularly fair to the contractor.

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NAICS Code Appeals: Sometimes, Filing Is All It Takes

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NAICS code appeals can be powerful competitive weapons–either shrinking or expanding the competitive playing field if they are successful.  Sometimes, simply filing a NAICS code appeal can convince the procuring agency that the wrong NAICS code was assigned, leading to a successful outcome before the SBA Office of Hearings and Appeals even has the opportunity to rule on the merits.

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SBA Size Protest Timeliness: Solicitation Doesn’t Extend Filing Deadline

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SBA size protests are only timely if received within five business days.  The SBA size protest timeliness rule can confuse potential protesters, because it is different than the 10-day rule applicable to most post-award GAO bid protests.

In a recent SBA Office of Hearings and Appeals decision, a would-be protester apparently got tripped up by the different filing periods, incorrectly interpreting a solicitation provision regarding GAO bid protests as establishing an extended SBA size protest filing deadline.  SBA OHA held that the protester’s misunderstanding did not entitle it to file a late SBA size protest.

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Successful NAICS Code Appeal Turns Large Company Into Small Business

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A little more than a week ago, I blogged about the SBA Office of Hearings and Appeals decision in NAICS Appeal of Delphi Research Inc., SBA No. NAICS-5377 (2012), in which a small business used the NAICS code appeal process to change the relevant size standard from 1,500 employees to $25.5 million.  The Delphi NAICS code appeal decision effectively lowered the solicitation’s size standard, increasing the ability of smaller companies like the protester to compete.

However, it is important to remember that the NAICS code appeal process works both ways.  If a company is too large for the size standard the procuring agency assigns to a solicitation, it may be able to use the NAICS code appeal process to replace the agency’s preferred NAICS code with a NAICS code carrying a higher size standard.  This is precisely what happened in a recently-decided SBA OHA case, NAICS Appeal of CHP International, Inc., SBA No. NAICS-5367 (2012).

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SBA OHA: Not The Place To “File” A SDVOSB Protest

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For small government contractors, SBA size and eligibility issues are of critical importance.  Recognizing this, the SBA provides an independent forum–the SBA Office of Hearings and Appeals–to review potential mistakes made by the SBA Area Offices, which decide SBA size protests.

Small government contractors must remember, however, that SBA OHA exists to evaluate the decisions made by SBA Area Offices, not to evaluate new allegations raised for the first time in the course of a SBA OHA appeal.  Case in point: SBA OHA’s recent decision in Size Appeal of In & Out Valet Co., SBA No. SIZ-5354 (2012), in which the protester apparently attempted to “file” a SDVOSB protest with SBA OHA during the course of its SBA size appeal.

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