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.
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The Dog Ate my Addendum: Don’t Neglect your Joint Venture Addendum, says OHA
Spring is upon us, and for many of us, it evokes thoughts of friendly weather, and new life. In the world of federal contracting, new life is often seen through the forming of new joint ventures. As most contractors and readers of this blog know, there are many requirements placed on a joint venture that intends to bid on set-asides, and most deal with the content of a joint venture agreement between the joint venture members. In a recent case, the SBA Office of Hearings and Appeals (OHA) reviewed a joint venture agreement and addendums. Through its decision, OHA sent a clear warning to the industry to complete and sign both the joint venture agreement and any addendums, and make sure to have all items completed and signed prior to proposal submission deadlines, at the latest, the date of final proposal revisions.
Continue readingLeaving OHA Email on “Unread” still Counts as Receipt For Appeal Timing Rules
The SBA’s OHA administrative judges recently sent a warning to all small business contractors that they need to keep an eye on their email inboxes no matter how late in the business day it is. In a size appeal decision, OHA found that even an unread email could derail a contractor’s plans for a size appeal, depending on when it arrived in your inbox.
Continue readingSBA Confirms that Size Status Relates Back to Time of Offer, Even After Sale of Small Business
Over the years, SBA size regulations have included the general rule that the size status of a business generally relates back the time of initial offer on a contract. Therefore, a small business generally stays small for the duration of a federal contract, with some exceptions. However, there was also language in the rule that required small businesses to recertify their size status after being acquired or going through similar transactions. The effect of this recertification requirement was always a little unclear. If you recertify as large, does that have any effect on your small business status for orders under contracts awarded when the business was small? Now, OHA has answered that concern.
Continue readingNo Protests of SBA Mentor-Protégé Agreements, Says OHA
The SBA’s mentor-protégé program offers powerful benefits. To help ensure that only legitimate small businesses take advantage of the program, the SBA asks applicants a series of questions about potential affiliation between the prospective mentor and protégé.
But once the SBA signs off on a mentor-protégé agreement, that’s that. As the SBA Office of Hearings and Appeals recently confirmed, competitors cannot use the size protest process to challenge whether an SBA mentor-protégé agreement should have been approved in the first place.
Continue readingNo Ostensible Subcontractor Rule for Manufactured Product Procurements, SBA OHA Confirms
The SBA’s ostensible subcontractor rule can be a minefield for small prime contractors, who must be careful to avoid risk factors for affiliation with their large subcontractors.
But not every small prime need worry about ostensible subcontractor affiliation. As a recent SBA Office of Hearings and Appeals decision confirms, the ostensible subcontractor rule does not apply to procurements for manufactured products.
Continue readingOHA and the Ostensible Subcontractor Rule: A Two-Prong Test You Can’t Fix After the Fact
In a recent decision, OHA ruled that the ostensible subcontractor rule requires a two-prong evaluation before SBA can find affiliation. The SBA Area Office took a look at only one prong, which resulted in a remand from OHA. Ultimately, OHA found affiliation, reversed the SBA Area Office and found the concern ineligible. As OHA made clear, entities can’t fix deficiencies after the fact.
Think of the ostensible subcontractor rule like the preferred go-to move (other than line dancing) at a Country/Western Dance Hall, it is the ostensible subcontractor two-step. Follow along as I lead you through the dance you need to get right to avoid stepping on the toes of your proposal.
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