Tag Archives: economic dependence affiliation

OHA Says: For a Size Protest, Bring the Receipts or Face Dismissal

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Filing a size protest requires more than just pointing the finger at the protested concern and hoping SBA decides to investigate further. The protest must contain at least some level of specific information that demonstrates why the protested concern is other than small.

SBA regulations, in particular, require that the size protest be “sufficiently specific to provide reasonable notice as to the grounds upon which the protested concern’s size is questioned.” 13 C.F.R. § 121.1007(b). The protest should provide a basis for the belief or allegation. In other words, the protester can’t simply allege a concern is other than small or affiliated without providing specific information to support the claim. SBA warns that a protest lacking “sufficient specificity” will be dismissed.

Now, it doesn’t happen too often, but a recent decision shows that SBA will dismiss protests when it finds the initial support to be lacking.

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Economic Dependence Affiliation: A One-Way Street

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Under the SBA’s economic dependence affiliation rule, two companies can be deemed affiliated when one company is responsible for a large portion of the other company’s revenues over time.  But must both companies count one another as affiliates—or does the rule only apply when the recipient’s size is challenged?

A recent SBA Office of Hearings and Appeals case answers these questions: when a company is economically dependent upon another company, it is affiliated with the company on which it depends, but the opposite is not true. In other words, economic dependence affiliation is a one-way street.

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SBA Clarifies Family Relationship & Economic Dependence Affiliation Rules

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The SBA has changed its affiliation regulations to clarify when a presumption of affiliation exists due to family relationships or economic dependence.

In its major final rulemaking published today, the SBA clears up some longstanding confusion regarding affiliation based on a so-called “identity of interest.”

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SBA OHA Reaffirms 70% Threshold For Economic Dependence Affiliation

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Under the SBA’s affiliation rules, one of the many ways a small business can be deemed affiliated with another is through the economic dependence rule: where a small business derives 70% or more of its revenues from another entity, the SBA ordinarily considers it to be economically dependent upon—and thus subject to the control of—that other entity.

So it was in a recent decision from the SBA’s Office of Hearings and Appeals (“OHA”), which confirmed the so-called “70% rule” for economic dependence.

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SBA OHA Reaffirms (Some) Leniency to Start-Ups in Size Determinations

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Under the SBA’s small business affiliation regulations, an otherwise small business can be deemed affiliated with a larger business when the firms share “substantially identical business or other interests.” Under this rule, affiliation will be typically be found, as a matter of law, when a small business concern derives 70% or more of its revenue from another firm.

Because most new businesses don’t start up with numerous clients or contracts, a mechanical application of the 70% rule could be disastrous for a new small business faced with an SBA size determination. Thus, the “start-up” exception to the SBA’s affiliation rules—which applies to relatively new businesses whose revenues from its alleged affiliate are insufficient to sustain business operations—can be the saving grace for a small business trying to earn business from the government.

So it was in a recent case decided by the SBA Office of Hearings and Appeals.

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SBA OHA: 42%-49% Of Revenues Did Not Create Economic Dependence Affiliation

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A small business was not affiliated with its largest customer under the SBA’s economic dependence affiliation rule, even though the small business earned as much as 49% of its revenues from the alleged affiliate–and even though the small business’s SEC Annual Report stated that the small business was dependent on its customer.

SBA OHA’s decision indicates that receiving less than 70% of revenues from an alleged affiliate may not, absent other indicia of affiliation, establish affiliation under the economic dependence rule.

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SBA OHA: Prime Contractor Not Economically Dependent On Subcontractor

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A prime contractor was not economically dependent on its subcontractor for purposes of the SBA affiliation rules because a prime contractor “has the power to choose whatever subcontractor it desires.”

In a recent size appeal decision, the SBA Office of Hearings and Appeals stopped short of holding that a prime contractor could never be economically dependent on a subcontractor, but SBA OHA’s decision indicates that if such dependence ever existed, it would be in an unusual case.

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