OHA Reminder: Compliance with SBA Joint Venture Requirements is Determined at Final Proposal Revisions

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In most size and status protests, SBA’s Office of Hearings and Appeals (OHA) will determine an offeror’s eligibility for a procurement as of the date of initial offer including price for that procurement. Indeed, with regards to SDVOSBs and VOSBs specifically, 13 C.F.R § 134.1003(e)(1) states that “[i]f the VOSB or SDVOSB status protest pertains to a procurement, the Judge will determine a protested concern’s eligibility as a VOSB or SDVOSB as of the date of its initial offer or response which includes price for a competitively awarded VOSB/SDVOSB contract, order, or agreement, and as of the date of award for any sole source VOSB or SDVOSB award.” But there is an important exception to this rule (something another company found out regarding its mentor-protégé joint venture recently) in that very clause, and, recently, OHA pointed this out in a GSA-led protest of an SDVOSB joint venture (VSBC-459-P, January 15, 2026). Today, we’ll look at that decision.

On September 15, 2022, GSA issued a solicitation that originally did not require price in the initial offers. However, after a Court of Federal Claims protest, price was added in Amendment 0004 on November 3, 2023. This amendment allowed those who had submitted proposals by November 18, 2022, to submit proposal revisions by January 12, 2024. One such offeror was MindVen LLC (Mindven), an SDVOSB joint venture comprised of Mind Computing, Inc., and Venesco, LLC. MindVen apparently was initially successful and received an award.

However, on September 8, 2025, GSA filed a status protest against MindVen claiming MindVen’s joint venture agreement lacked language stating that quarterly financial statements were to be submitted to SBA no later than 45 days after each operating quarter and that a project-end profit and loss statement was to be submitted to SBA no later than 90 days after completion of the contract, both required by 13 C.F.R. § 128.402(c). GSA stated that 13 C.F.R. § 121.404(a)(1)(iv) applied to the procurement. That provision, as of the date of initial offers, stated that a concern’s size and status would be determined as of the date of the initial offer regardless of price, which would be November 18, 2022.

In response, MindVen produced a copy of its joint venture agreement, which it had amended to comply with the very requirements in question. However, this amendment took place on December 7, 2022, after it submitted its initial offer for the procurement. But MindVen noted recent OHA decisions that found that with regard to an SDVOSB joint venture’s compliance with 13 C.F.R. § 128.402(c), OHA determines the joint venture’s eligibility as of the date of the joint venture’s final proposal revisions.

OHA agreed with MindVen, and not just because of the case law. 13 C.F.R. § 134.1003(e)(1) expressly states, in its second sentence: “For a protest challenging an ostensible subcontractor or a joint venture’s compliance with the joint venture agreement requirements set forth in § 128.402(c), the Judge will determine eligibility as of the date of the final proposal revision for negotiated acquisitions or as of final bid for sealed bidding.” As such, there was no need for OHA to discuss the matter any further. Looking at the matter, the question is whether MindVen’s joint venture agreement complied with 13 C.F.R. § 128.402(c) as of the date it submitted its final proposal revisions. In this case, that day was January 4, 2024, well over a year after MindVen had amended its joint venture agreement. OHA denied GSA’s protest.

It is worth noting here how greatly this one provision changed things for MindVen. Without it, Mindven likely would have lost the protest. As such, if you have a joint venture and an agency gives you the opportunity to revise your proposal, it would be prudent to take a quick check at your joint venture agreement to be sure it complies with the joint venture regulations and amend it if need be before submitting the revisions. In some cases, there is no opportunity for a revised proposal, so the best practice is to always make sure your joint venture is compliant at time of initial proposal.

The above rule does not just apply to SDVOSB joint ventures. It applies to mentor-protégé, 8(a), WOSB, and HUBZone joint ventures as well per 13 C.F.R. § 121.404(d):

“Compliance with the nonmanufacturer rule set forth in § 121.406(b)(1), the ostensible subcontractor rule set forth in § 121.103(h)(2), and the joint venture agreement requirements in § 124.513(c) and (d), § 125.8(b) and (c), § 125.18(b)(2) and (3), § 126.616(c) and (d), or § 127.506(c) and (d) of this chapter, as appropriate, is determined as of the date of the final proposal revision for negotiated acquisitions and final bid for sealed bidding.”

Checking is wise practice not only in case your original joint venture agreement was non-compliant, but also in case the regulations have changed since your original submission. After all, the rule is that compliance is determined at the time of the final proposal revision. That means that if the rule changed in the meantime such that a joint venture agreement that was originally compliant is no longer compliant, it could disqualify your offer.

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