SBA has issued a final rule, effective December 30, that will now provide an avenue to protest situations where the prime contractor on a SDVOSB, HUBZone, or WOSB set-aside contract is subcontracting most or all of the work to a non-similarly situated—but still small business—concern. It will also allow SBA to review eligibility for 8(a) Program contracts on this ground as well.Continue reading
The SBA recently proposed a rule that would amend the infamous three-in-two (AKA 3-in-2) rule for joint ventures. SBA’s current regulations provide that a joint venture can be awarded no more than three contracts over a two-year period. While SBA plans to keep the two-year lifespan for joint venture awards, it plans to get rid of the three contract maximum.Continue reading
With little fanfare, the SBA has updated the template for agreements under the All Small Mentor-Protégé Program (ASMPP). The new template adds a series of check box-style questions, mainly about potential affiliation between the mentor and protege. Be sure to check out the new template if you are working on a mentor-protégé agreement.Continue reading
Common investment affiliation can arise when SBA believes that two individuals’ common investments in multiple entities may make the individuals in question act with a common purpose. As few as two common investments can form the basis for affiliation.
A recent SBA Office of Hearings and Appeals opinion examines the argument that the number of common investments should be counted the same way the number of entities is treated for tax purposes. OHA’s answer: Nope.Continue reading
I’m just back from El Paso, where I had a great time discussing small business size and affiliation issues at the Contract Opportunities Center. This presentation got me thinking: “Wouldn’t our loyal SmallGovCon readers want to know 5 Things about size protests and appeals?”
“Of course they would!” I immediately answered my own internal monologue. “After all, who wouldn’t?”
Here are 5 Things You Should Know about size protests and appeals:
If you’ve ever responded to an SBA size protest, you know that the process is quite involved: SBA will require your company to provide a complete response to the protest (including production of corporate, financial, and tax records for all implicated concerns) within only a few business days. The consequences for not providing all of the requested information can be quite severe, as the SBA can presume that the responsive information would demonstrate that the concern is not a small business (through its “adverse inference” rule).
A recent OHA appeal shows the dangers of failing to adequately respond to a size protest. In Size Appeal of Perry Johnson & Associates, SBA No. SIZ-5943 (2018), the OHA affirmed the SBA’s reliance on an adverse inference and, as a result, found the protested company was not an eligible small business.