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.

OHA and the Ostensible Subcontractor Rule: A Two-Prong Test You Can’t Fix After the Fact

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In a recent decision, OHA ruled that the ostensible subcontractor rule requires a two-prong evaluation before SBA can find affiliation. The SBA Area Office took a look at only one prong, which resulted in a remand from OHA. Ultimately, OHA found affiliation, reversed the SBA Area Office and found the concern ineligible. As OHA made clear, entities can’t fix deficiencies after the fact.

Think of the ostensible subcontractor rule like the preferred go-to move (other than line dancing) at a Country/Western Dance Hall, it is the ostensible subcontractor two-step. Follow along as I lead you through the dance you need to get right to avoid stepping on the toes of your proposal.

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OHA: CVE Appeals Go Directly to Us, Not CVE

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OHA recently confirmed it lacked jurisdiction over a CVE appeal mistakenly filed with CVE, not OHA, by the deadline. You might be thinking: “Oh come on, the CVE appeal was filed with CVE on time!” But OHA’s strict timeliness rules make no exception for any such mistakes in the CVE appeal process. In fact, OHA disclaims the authority to even consider a late appeal, regardless of whether or not it was timely (but improperly) filed with CVE itself.

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Don’t Forget the Attachments: A Quick Reminder from SBA’s OHA

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Did you remember to staple the cover sheet to your TPS report? And, more importantly, if you recently filed a CVE Appeal with the Small Business Administration’s Office of Hearings and Appeals, did you remember to attach a copy of your CVE denial or cancellation?

In OHA’s recent, and very short, decision, Joy Corporation, SBA No. CVE-155-A (Aug. 13, 2020), it reminded appellants that failure to do so will result in almost instant dismissal. To ensure you avoid this fate, read on.

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Strings Attached? Don’t Put Conditions on SDVOSB Ownership, Cautions OHA

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Ownership of a Service-Disabled Veteran-Owned Business has to be unconditional. As the owner of an SDVOSB recently found out, unconditional ownership generally means there can be no restrictions on the service-disabled veteran owner’s ability to sell the ownership interest. Let’s explore the details.

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YouTube Tuesday: Procedures & Pitfalls of Size Protests & Appeals Handbook Now Available

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I’m proud to announce that the new GovCon Handbook, Procedures & Pitfalls of Size Protests & Appeals, is now available! This video highlights some of the main topics from the book.

You can order the book here. I’m also conducting a webinar on August 5 to explore some of the key insights. Be sure to check out the webinar or contact me if you have questions.

Joint Ventures: Is “Unequivocal Control” Required?

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Fans of the blog know that we’re wild about joint ventures: they allow small business contractors to use their size status while, at the same time, leveraging their joint venture partner’s experience and capabilities.

But joint ventures—particularly joint ventures under one of the SBA’s socioeconomic programs—can be tricky to create. For joint ventures between a small and a large company, the venturers first need an approved mentor-protégé agreement. And regardless, for the joint venture to qualify under a socioeconomic designation, that joint venture must have a compliant agreement.

But that’s still not enough to create a compliant joint venture. As a recent SBA Office of Hearings and Appeals decision explains, the small business venturer must unequivocally control the joint venture.

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Back to Basics: SBA’s OHA Reminds SBA Area Offices How to Apply the Ostensible Subcontractor Rule

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We’ve discussed the “ostensible subcontractor rule” quite a few times on the blog (including most recently here and here) because it is one of the most frequent grounds for size protests. It’s also frequently misunderstood. A recent SBA Office of Hearings and Appeals decision, Contego Environmental, LLC, SBA No. SIZ-6054 (May 19, 2020), demonstrates how even SBA Area Offices can misapply the rule and provides useful reminders to contractor looking to avoid violating it.

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