HUBZone Appeals at OHA Are One Step Closer to Reality

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The House of Representatives passed H.R. 8229, the “Parity for HUBZone Appeals Act,” by voice vote on December 3, 2020. It would allow appeal of HUBZone protest decisions to the SBA Office of Hearings and Appeals.

What has long been a thorn in the side of HUBZone companies is, hopefully, on its way out the door.

Currently, if a HUBZone status protest is sustained, the only “appeal” process is to request a review by the SBA’s Associate Administrator, Office of Government Contracting & Business Development. There is no opportunity to seek a decision from an administrative judge, no way to seek prior published decisions to use as precedent, and no ability to obtain any sort of discovery from SBA.

The Parity for HUBZone Appeals Act would give the SBA Office of Hearings and Appeals jurisdiction to decide appeals relating to whether a protested company qualifies as a HUBZone small business concern. The Act states:

Not later than 1 year after the date of the enactment of this Act, the Administrator of the Small Business Administration shall issue a rule authorizing the Office of Hearings and Appeals of the Administration to decide all appeals from formal protest determinations in connection with the status of a concern as qualified HUBZone small business concern (as such term is defined in section 31(b) of the Small Business Act (15 U.S.C. 657a(b))).

This is welcome news.

As we blogged about previously, OHA’s current lack of jurisdiction sets the HUBZone Program apart from the other three major socioeconomic contracting programs (SDVOSB/VOSB, WOSB/EDWOSB and 8(a)), all of which allow OHA appeals in some circumstances.  (There are no status protests in the 8(a) program, but 8(a) appeals are sometimes allowed for companies whose applications are denied).

Allowing a HUBZone appeals process will not only allow the parties to HUBZone protests get the chance to make their cases in front of a judge, but will also allow for a body of publicly available HUBZone case law to be developed. This will greatly improve transparency, let HUBZone applicants and participants know how the SBA applies the rules, and help ensure that all HUBZone applicants and participants are treated fairly and equally. 

For HUBZone participants, OHA appeals could be a game changer. The bill now heads off to the Senate, where we hope it will pass just as easily. Even in times where it is seemingly difficult to agree on anything, this is one where agreement just makes sense.

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