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 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.
SBA 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.
Continue readingSDVOSB Owner Avoids Brewing Up Trouble with a Second Job
In a recent SBA decision, SBA’s judges had the opportunity to review three different simultaneous challenges to whether a service-disabled veteran controlled a SDVOSB. Because there were three different challenges reviewed at once, SBA took a deep dive into the SDVOSB certification standards around the requirement of control of a SDVOSB. With such a deep dive, SBA provided some explanations of SDVOSB control concepts that could be helpful to contactors looking to certify or re-certify as an SDVOSB. In these cases, a SDVSOB owner had a second job, and job experience in a different field, but SBA found the owner had the necessary control over the SDVOSB to remain certified.
Continue readingFederal Court Confirms Strict SDVOSB Unconditional Ownership Requirements
As we’ve discussed, the SBA will soon take the reins over from VA to run the certification process for Veteran-Owned Small Businesses (VOSBs) and Service-Disabled, Veteran-Owned Small Businesses (SDVOSBs). Self-certification for SDVOSBs will go away on December 31, 2023, so be sure to get your SDVOSB ownership and control documents up to snuff in order to stay compliant with the SDVOSB rules. One of those rules concerns unconditional ownership by the veteran. A recent federal court case sheds some additional light on that topic, as explored in this post.
Continue readingNonprofit Parent Companies do not Automatically Cause Affiliation for SBA Size Determinations
The Office of Hearings and Appeals, more commonly referred to as OHA, is tasked with deciding size determination appeals that arise under the Small Business Act of 1958, as well as 13 C.F.R. parts 121 and 134. When an unsuccessful offeror raises a question, via a size protest, regarding an Awardee’s size under the North American Industry Classification System (NAICS) code on any given solicitation, the SBA Area Office will review the protest and issue a size determination. Then, a losing party can appeal the size determination to OHA.
Affiliation is a common topic that OHA addresses. In a recent decision, OHA looked at the question of how nonprofits fit into the affiliation rules. Since a small business has to be a for-profit entity, can a small business be affiliated with a nonprofit parent company?
Continue readingOHA Remands Size Determination Because Area Office Failed to Provide Due Process to Protested Concern
SBA’s Office of Hearing and Appeals (OHA) recently said that the SBA Area Office should have informed the protested concern of the issues its adverse size determination focused on before ruling against the concern’s size eligibility on that basis. In addition to its lesson on due process, OHA also took this opportunity to distinguish totality of the circumstances affiliation (the basis on which the Area Office found affiliation here) from ostensible subcontractor affiliation (the basis for affiliation alleged in the size protest). OHA vacated and remanded the Area Office’s decision.
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