As federal contracts attorneys, we often get questions about what happens in the event of an acquisition of a small business. Reporting requirements, whether before or after an acquisition, tend to vary from one type of small business socioeconomic program to another. And there are other considerations such as whether the small business in question is the one being acquired or the one acquiring another small business and the timing with regard to proposal submission, contract performance, task orders, and other variables. Taking those together, and it can be, well, confusing, to say the least. In the case of Forward Slope, Inc., SBA’s Office of Hearings and Appeals (OHA) took a look at some of these variables to determine how an acquisition can affect the size of a concern awarded a multiple award contract.
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Why File: A Size Protest
We at SmallGovCon are excited to announce this first in a new line of blogs we call Why File. Our firm handles a wide variety of federal procurement and contract litigation matters–from SBA size and status protests to contract claims and appeals, and everything in between. One of the most common and important questions we get in that regard is, should I file? Of course, we can only directly answer that question for our current clients after reviewing the relevant facts giving rise to the potential filing. But through our new Why File series, we will cover some of the most common facts and circumstances that lead contractors to initiate litigation. So, without further adieu, here is the first blog in the series, covering some of the most common reasons contractors file size protests.
Continue readingOHA: A Manufacturer Must Own or Lease Facilities to Qualify
In a recent decision, the Small Business Administration’s Office of Hearings and Appeals (OHA) reviewed the requirements to establish that a company is a manufacturer of a product under SBA’s rules. In particular, there is a requirement that a company use “its own facilities” in manufacturing the product. But how does a company establish it will use its own facilities?
Continue readingBreaking: HUBZone Appeals Coming Soon!
SBA has released its proposed rule allowing for HUBZone appeals to go to the Office of Hearings and Appeals. Below are the key items from this proposed rule, and how it will affect potential and current HUBZone companies.
Continue readingTechnically Unacceptable Offeror Cannot Protest Awardee’s Size, Says OHA
In a recent size determination appeal, OHA confirmed that an offeror found technically unacceptable does not have standing to protest an awardee’s size under SBA’s regulations. As such, OHA denied the appeal and affirmed the Area Office’s size determination dismissing the size protest on such grounds.
Continue readingBreaking: SBA Proposed Rule Gives OHA Jurisdiction over HUBZone Status Protests
The Small Business Administration (SBA) has proposed to amend the rules of practice for its Office of Hearings and Appeals (OHA) and the Historically Underutilized Business Zone (HUBZone) Program to “implement procedures authorizing appeals to OHA” from adverse status determination protests for certified HUBZone small business concerns. Currently, HUBZone status protest determinations are decided by the Associate Administrator of Government Contracting and Business Development per 13 C.F.R. § 126.805. But those appeals, in our experience, are fairly limited and SBA does not publish the appeal decisions, meaning they provide little help for companies and attorneys wishing to understand how SBA interprets its HUBZone This is a big step for SBA and will certainly bring consistency and insights to the protest process and regulatory interpretation for HUBZone participants, bringing that program more in line with other SBA programs.
Federal Court Confirms Strict SDVOSB Unconditional Ownership Requirements
As we’ve discussed, the SBA will soon take the reins over from VA to run the certification process for Veteran-Owned Small Businesses (VOSBs) and Service-Disabled, Veteran-Owned Small Businesses (SDVOSBs). Self-certification for SDVOSBs will go away on December 31, 2023, so be sure to get your SDVOSB ownership and control documents up to snuff in order to stay compliant with the SDVOSB rules. One of those rules concerns unconditional ownership by the veteran. A recent federal court case sheds some additional light on that topic, as explored in this post.
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