Of all the many “protest” tools available to small government contractors, NAICS code appeals can be one of the most powerful. Unfortunately, many contractors don’t fully understand the NAICS appeal process, or how it can help them reach their procurement goals. The decision of the SBA Office of Hearings and Appeals in NAICS Appeal of 1st American Systems & Services, LLC, SBA No. NAICS-5119 (2010) provides a compelling example of how a savvy small business contractor can use the NAICS appeal process to vastly narrow the competitive playing field.
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.
Amended Bylaws Can’t Rescue Ineligible SDVOSB
The regulations governing the SBA’s service-disabled veteran-owned small business program are clear: to qualify as an SDVOSB, a business must ensure that a service-disabled veteran serves as its highest officer.
The SBA will examine a SDVOSB’s bylaws to see whether the provision is met. If not, belatedly amending the bylaws won’t save the business’s eligibility for a contract it bid upon before the amendment, as demonstrated by a SDVOSB appeal decision of the SBA Office of Hearings and Appeals.
Contradictory, Post Hoc Statements Don’t “Fix” Ostensible Subcontractor Rule Problem
When a small government contractor gets its hand caught in the “affiliation” cookie jar, the natural reaction is to scramble to fix the problem, even if it means contradicting the contractor’s own proposal. But don’t expect post hoc efforts at fixing a problem with the SBA affiliation rules to pan out. The SBA’s Office of Hearings and Appeals has held that where a contractor’s after-the-fact statements regarding affiliation contradict its proposal, the language of the proposal governs.
SBA Size Protests, Timeliness, and After Hours Notifications
An SBA size protest on a negotiated procurement must be submitted within five business days “after the contracting officer has notified the protester of the identity of the prospective awardee.” But what happens if the contracting officer’s notice arrives after normal working hours? Does the clock start ticking anyway?
SBA Affiliation Rules: SBA OHA Says Control is the Key
The SBA affiliation regulation, 13 C.F.R. § 121.103, states that all affiliation is premised on the notion of control. In other words, two companies are affiliated when the same person or entity controls or has the power to control both.
The size appeal decision of the SBA’s Office of Hearings and Appeals in Size Appeal of Manroy, USA, LLC, SBA No. SIZ-5244 (2011), explains that when there is no overlapping control, there is no affiliation, even if one or more of the indicia of affiliation described in the regulation might arguably be present.
SBA OHA: Capital Contributions Not a Factor in Determining Affiliation
A small government contractor needs to keep a close eye on its relationships with large businesses, as almost any type of interaction between the companies, such as contracts, bonding assistance, and overlaps in employees or officers may be considered evidence of SBA affiliation in a size appeal. But, at least in one opinion issued by the SBA’s Office of Hearings and Appeals, the capital contributions of a large business member were irrelevant to an affiliation analysis.
SBA Affiliation and Joint Ventures: SBA OHA Explains the Rules
Is a small business affiliated with its joint venture partner? Forgive the stereotypical lawyerly response, but the answer is “yes and no.” A small business is affiliated with its joint venture partner on a procurement-specific basis, but typically is not affiliated with its joint venture partner on an ongoing basis. The SBA’s Office of Hearings and Appeals succinctly explained the basic rules relating to joint ventures and affiliation in Size Appeal of Innovative Resources, SBA No. SIZ-5238 (2011).