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.
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.
Don’t Forget the Attachments: A Quick Reminder from SBA’s OHA
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.
Continue readingStrings Attached? Don’t Put Conditions on SDVOSB Ownership, Cautions OHA
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.
Continue readingYouTube Tuesday: Procedures & Pitfalls of Size Protests & Appeals Handbook Now Available
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?
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.
Continue readingBack to Basics: SBA’s OHA Reminds SBA Area Offices How to Apply the Ostensible Subcontractor Rule
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.
Continue readingSBA OHA confirms 3-year look-back period for economic dependence affiliation
Under the SBA’s regulations, affiliation between two companies might exist where one company derives 70% or more of its receipts from the other over the preceding three fiscal years. See 13 C.F.R. § 121.103(f)(2).
This economic dependence affiliation, as it is called, can be tricky to identify in practice—it is, after all, a rebuttable presumption of affiliation. That is, a company might be able to demonstrate that economic dependence doesn’t exist if, for example, it has only been in business for a limited amount of time and has only been awarded a limited number of contracts.
Recently, the SBA’s Office of Hearings and Appeals considered the bounds of the economic dependence affiliation rule and interpreted the three-year look-back period.
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