Clearing Things Up: OHA Remands Matter for Unclear Veteran-Owned Bylaws

SBA administers four socioeconomic programs: Service-Disabled Veteran-Owned Small Business (SDVOSB), 8(a) Business Development Program (8(a)) Women-Owned Small Business Program (WOSB) and HUBZone. The SDVOSB, 8(a), and WOSB programs all require that the key owner generally have control over the long-term decision-making and the day-to-day operations of a company. These same rules apply to the veteran-owned small businesses program (VOSB) as well. A recent decision from the Office of Hearings and Appeals at SBA reveals that the operating agreement or bylaws for these types of companies must be very clear about how they are operated.

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Amended Bylaws Can’t Rescue Ineligible SDVOSB

The regulations governing the SBA’s service-disabled veteran-owned small business program are clear: to qualify as an SDVOSB, a business must ensure that a service-disabled veteran serves as its highest officer.

The SBA will examine a SDVOSB’s bylaws to see whether the provision is met.  If not, belatedly amending the bylaws won’t save the business’s eligibility for a contract it bid upon before the amendment, as demonstrated by a SDVOSB appeal decision of the SBA Office of Hearings and Appeals.

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Quorum Provision Defeats SDVOSB Status

If someone asked me to play a word association game with the phrase “quorum provision,” one of my first responses might be “boring.”  After all, who really cares about some arcane paragraph tucked away in a company’s governing documents, describing how many people must attend company meetings?

Well, SDVOSBs should care.  If your small business is pursuing service-disabled veteran-owned small business set-aside opportunities, you better make sure your governing documents are airtight.  As demonstrated in one recent SBA Office of Hearings and Appeals decision, even something as mundane and boring as a quorum provision can defeat SDVOSB status, if the provision does not allow service-disabled veterans to unconditionally control the company.

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