When a contractor believes an agency assigned the wrong North American Industry Classification System (NAICS) code to a solicitation, it can file an appeal with the SBA’s Office of Hearings and Appeals (OHA). However, for OHA to correct the NAICS code, the contractor must show the contracting officer’s assignment was clearly erroneous. As we’ve discussed, counting just those NAICS code appeals decided on the merits, about 45% were granted, per a GAO report.
Continue readingTag Archives: SBA OHA decisions
OHA Reminder: Don’t ignore Program Examination Questions from SBA . . . or Else
Most of SBA’s socioeconomic programs (woman-owned small business, veteran-owned small business, HUBZone) have a requirement for the contractor to go through a recertification process, or program examination, every three years. 8(a) Participants have an annual review process, so they are reviewed even more frequently. But between these routine program recertifications, there is a possibility that the SBA will choose to perform an additional program examination to “verify the accuracy” of certification. And, as one SDVOSB firm found out, failing to cooperate with these interim program examinations can lead to decertification—a fate that no small business wants to risk.
Continue readingSBA Confirms GSA Schedule-Holders Who Outgrow Size Standard Can Still Get Awarded Set-Aside TOs and Options
Many contractors utilize a GSA schedule contract to provide the Government with their products and/or services. After all the effort it takes to get on a GSA schedule contract, a contractor would certainly not want to lose its chance at a small business task orders issued under it, just because it’s circumstances have changed since it first got the schedule contract as a small business. In a recent decision, the SBA’s Office of Hearings and Appeals (“OHA”) confirmed that even if a business changes size after being awarded a GSA schedule contract, it can still compete for small business task orders from a Blanket Purchase Agreement (“BPA”) awarded under it.
Continue readingEven Rules have their Limits, Says SBA OHA about the Nonmanufacturer Rule
In a recent size appeal, the SBA OHA made it clear that the nonmanufacturer rule has it limits, and will not apply depending on the dollar value of the acquisition. OHA reminded contractors that the nonmanufacturer rule applies only to acquisitions over the simplified acquisition threshold.
Continue readingClearing 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.
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 readingGAO Sustains Protest to Best Value Trade Off Where Agency Only Considers “Outstanding” Proposals, Without Weighing Price/Non-Price Factors
The federal government contracting solicitation, proposal, and selection processes are something that all federal government contractors should strive to know. These methods, found in FAR parts 14 and 15, respectively, can be boiled down to two methods: sealed bidding and contracting by negotiation. Contracting by negotiation can occur either through a competitive award or a sole source award. When used effectively, the parts of the FAR clue contractors into the methods that agencies use to evaluate proposals and can help contractors tailor their proposals to better target agencies’ needs, thereby increasing chances of award. Of particular importance is the method an agency will use to evaluate proposals, and the weight given to technical components of the proposal against the weight given to price. In KPMG LLP, B-420949 (Nov. 7, 2022), GAO takes a look at how agencies evaluate technical proposals and price, and how those evaluations work together in a best-value tradeoff decision.
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