While every federal government contractor is likely familiar with bid protests, whether directly involved in one or not, it is far less likely that those same contractors are as familiar with NAICS code appeals. This is probably due to the infrequent nature of NAICS code appeals, with roughly 20 being filed each year. However, even if so few are filed annually, they tend to have a relatively high success rate, with appeals decided on the merits being decided in favor of the Appellant about 50% of the time. Below, I will take a look at a recent NAICS code appeal to help demonstrate what the Small Business Administration’s (SBA) Office of Hearings and Appeals (OHA) takes into account when reviewing NAICS code appeals, and why you, as a contractor, should review a solicitation’s classification to potentially give you a leg up.
Continue readingCategory 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.
OHA: Ill-Defined Joint Venture Agreement and State Law Requirements Means JV was Invalid
As readers of SmallGovCon know, SBA interprets its small business joint venture rules very strictly. A small business joint venture must follow all of SBA’s requirements down to the letter, or risk being found noncompliant. In a recent case, SBA’s Office of Hearings and Appeals (OHA) examined how a joint venture was managed under the state law of Michigan and found that the joint venture was noncompliant with small business rules.
Continue readingTechnically Unacceptable Offeror Cannot Protest Awardee’s Size, Says OHA
In a recent size determination appeal, OHA confirmed that an offeror found technically unacceptable does not have standing to protest an awardee’s size under SBA’s regulations. As such, OHA denied the appeal and affirmed the Area Office’s size determination dismissing the size protest on such grounds.
Continue readingThe Dog Ate my Addendum: Don’t Neglect your Joint Venture Addendum, says OHA
Spring is upon us, and for many of us, it evokes thoughts of friendly weather, and new life. In the world of federal contracting, new life is often seen through the forming of new joint ventures. As most contractors and readers of this blog know, there are many requirements placed on a joint venture that intends to bid on set-asides, and most deal with the content of a joint venture agreement between the joint venture members. In a recent case, the SBA Office of Hearings and Appeals (OHA) reviewed a joint venture agreement and addendums. Through its decision, OHA sent a clear warning to the industry to complete and sign both the joint venture agreement and any addendums, and make sure to have all items completed and signed prior to proposal submission deadlines, at the latest, the date of final proposal revisions.
Continue readingSBA: NAICS Code Must Match the Work Sought, not the Offeror’s Work
We here at SmallGovCon like to spend our free time pondering the intricacies around how and why certain NAICS codes are assigned to the myriad of contracting opportunities posted every day. But we realize others may not have the same appetite for the intricacies of Federal Contracting as us. Luckily, the SBA’s Office of Hearings and Appeals (OHA) recently issued a great roadmap for understanding NAICS code assignments in a NAICS code appeal decision, which serves as a great refresher for how NAICS codes are applied to a procurement.
Continue readingSBA to Small Businesses: Be Careful with Ostensible Subcontractors on SBIR Awards
In a recent decision, the Small Business Administration (SBA) Office of Hearings and Appeals (OHA) examined a company that received two Small Business Innovation Research (SBIR) grant awards. The SBA Area Office had determined that the awardee was not an eligible small business due to ostensible subcontractor affiliation and other reasons. This decision is an important reminder for SBIR candidates on how they should structure subcontracting teams, as SBA will examine SBIR awardee eligibility.
Continue readingOpen to Interpretation? Don’t Guess if Your Joint Venture Agreement Plays by the Rules
A recent SBA decision showcased the strict manner in which SBA interprets its joint venture agreement rules. After an agency awarded a contract to a joint venture entity, SBA determined the joint venture was ineligible due to fairly small deficiencies in a joint venture agreement. It’s a situation that no federal contractor wants to encounter. SBA requires strict adherence to the requirements that must be contained in nearly all joint venture agreements. Unfortunately, one company learned this lesson the hard way.
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