A procuring agency’s decision to take corrective action in response to a GAO bid protest did not extend the standard five-business day deadline to file a SBA size protest.
This was the decision of the SBA Office of Hearings and Appeals in a recent SBA size appeal case, in which SBA OHA held that a size protest was untimely when it was filed within five business days of the agency’s notification, after taking corrective action, that it would reaffirm its award to the protested contractor.
A history of close ties between companies does not mean that the companies are presently affiliated, according to a recent size appeal decision of the SBA Office of Hearings and Appeals.
In Size Appeal of A&H Contractors, Inc., SBA No. SIZ-5459 (2013), SBA OHA overturned a finding of affiliation because most of the ties relied upon by the SBA Area Office had been severed before the applicable date for determining size.
In a recent SBA Office of Hearings and Appeals size decision, a service-disabled veteran-owned small business’s operating agreement caused affiliation under the SBA’s affiliation rules, despite the fact that the majority owner was also labeled as the 51% manager.
SBA OHA’s decision in Size Appeal of Washington Patriot Construction, LLC, SBA No. SIZ-5447 (2013) shows the importance of carefully drafting a small business’s corporate operating agreements or bylaws to prevent affiliation with other companies controlled by the small business’s minority owners.
A contractor is not economically dependent upon another firm where it receives only a small proportion of its revenues from the other firm as of the self-certification date for a set-aside contract–even if the contractor previously received more than 70% of its annual revenues from the other firm.
This was the commonsense decision of the SBA Office of Hearings and Appeals in a recent size appeal case, in which SBA OHA held that a contractor’s prior economic dependence on another company does not necessarily mean that the companies are still affiliated under the SBA’s affiliation rules.
If a contractor ends up on the losing end of a SBA size protest, the contractor has the right to appeal to the SBA Office of Hearings and Appeals. The problem is that SBA OHA size appeals can take months. A contracting officer may be unwilling to wait, and simply award the contract to the next company in line.
Neither the FAR nor the SBA’s regulations require the contracting officer to suspend award or performance pending SBA OHA’s decision. However, as a recent case demonstrates, if the SBA OHA appeal has a reasonable likelihood of success, the U.S. Court of Federal Claims may issue an injunction prohibiting the procuring agency from awarding the contract pending the result of the SBA OHA size appeal.
SBA size protests are often dismissed when contractors misunderstand the size protest timeliness rules.
A recent SBA Office of Hearings and Appeals decision offers an important reminder that for negotiated procurements, the clock starts ticking on a potential SBA size protest upon notification of the prospective awardee–not when the contract is actually awarded.
Can an SBA 8(a) program mentor and protege be affiliated, notwithstanding their 8(a) mentor-protege arrangement, if the firms engage in extensive employee sharing?
Maybe.
In a recent decision, the SBA Office of Hearings and Appeals suggested that extensive employee sharing between an 8(a) protege and its mentor might be outside the bounds of protected “assistance” under the 8(a) mentor-protege program. And in the same case, SBA OHA raised an interesting question: does a mentor-protege relationship protect the mentor from affiliation, as well as the protege?