SBA Size Appeals and Confidential Information

Clients thinking about filing a SBA size appeal with the SBA Office of Hearings and Appeals are sometimes nervous when they find out that SBA size appeal decisions are publicly published.  “What if the judge publishes our confidential information?” they ask.

As a small business in a competitive market, it is always wise to think about protecting your proprietary and confidential business information, including by having employees and teaming partners sign non-disclosure agreements.  But what do you do when the person with your confidential information is an administrative judge, like the ones at SBA OHA?

I haven’t asked, but my guess is that Judges Holleman and Hyde at SBA OHA are not about to sign your standard NDA.  Fortunately, SBA OHA understands the need for parties to protect their confidential and proprietary information, and will typically allow parties to a published decision to see it in advance and propose redactions.

The judges aren’t bound to accept the suggestions, of course, but as long as you do not go overboard (after all, the decisions need to be useful to the public, and not just several sheets of blacked-out type), they tend to be accommodating.  For instance, my prior cases, the SBA OHA judges have agreed to redact such information as my client’s line item pricing, the names of its proposed employees, and direct quotes from a proposal or teaming agreement.

In addition to my personal experiences, published SBA OHA cases (and I have read waaaaaaaaay too many of them) indicate that the SBA OHA judges are open to reasonable suggestions when it comes to redacting confidential information.  In one fairly recent SBA size appeal decision, Size Appeal of M1 Support Services, LP, SBA No. SIZ-5297 (2011), SBA OHA even agreed to redact the name of the appellant’s proposed subcontractor, which appeared in several places in the decision.  Next time I have the chance, I may request a similar redaction.

However, although the judge in M1 Support Services did not mention it, the fact that the appellant lost the size appeal—and was ineligible for the contract—was probably an important consideration in agreeing to redact the subcontractor’s name.  Had the appellant won the contract, it would likely have been required to disclose its subcontractor’s identity under FAR 52.204-10 (Reporting Subcontract Awards), and the subcontracting relationship would have been disclosed publicly on the website.  In such a case, it would be difficult for the appellant to argue with a straight face that the name of its subcontractor was “confidential” and should be redacted.

Here’s the bottom line: in my opinion, don’t let a fear of public disclosure of your confidential information dissuade you from filing a size appeal with SBA OHA.  The judges understand the need to balance their obligation to publish their decisions against your need to protect your confidential and proprietary information, and will likely agree to redact the most sensitive information from the published decision.

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