Dividing key contract work among several subcontractors will not necessarily allow a small business to avoid affiliation under the SBA’s ostensible subcontractor rule, according to a recent decision issued by the SBA Office of Hearings and Appeals. In that case, the prime contractor divided the primary and vital contract work among four subcontractors–and according to SBA OHA, was affiliated under the ostensible subcontractor rule with all four subs.
Tag Archives: SBA size appeals
Non-Manufacturer Rule: SBA OHA OK’s Drop Shipments
The SBA’s non-manufacturer rule allows a drop shipper to qualify as a small business, so long as the drop shipper takes legal ownership of the items in question, according to the SBA Office of Hearings and Appeals. In an important decision interpreting recent amendments to the non-manufacturer rule, SBA OHA rejected the argument that a company must take physical possession of the items in question in order to qualify as a non-manufacturer–which would have essentially prohibited drop shipments.
Newly Organized Concern Affiliation Rule: GovCon Manager Not a “Key Employee”
The SBA’s newly organized concern affiliation rule is designed to prevent former officers, directors, principal stockholders or “key employees” of a large business from evading the SBA size rules by spinning off a new company.
But who is a “key employee” for purposes of the newly organized concern affiliation rule? As demonstrated in a recent SBA Office of Hearings and Appeals decision, the mere fact that an employee has the word “manager” in his or her title does not necessarily make that person a key employee under the newly organized concern rule.
SBA OHA Size Appeals: The Critical Difference Between “Filing” and “Serving”
SBA size appeals must be filed with the SBA Office of Hearings and Appeals and a copy given to (or “served”) on another SBA Office, the Office of Government Contracting (known as SBA OGC). Both steps must be taken, because as one small contractor recently discovered, serving a SBA size appeal on the SBA OGC is not the same as filing the size appeal with SBA OHA.
SBA Size Protests Cannot Be Filed With The GAO
SBA size protests must be filed with the contracting officer, who then forwards the size protest to the SBA Area Office for review. The U.S. Government Accountability Office lacks jurisdiction to consider size protests, and filing a SBA size protest with the GAO will be ineffective, as one contractor recently discovered.
Worst SBA Size Appeal Ever? Large Business Files Off-Topic Document with SBA OHA
“No, we’re not a small business, but we could really, really use that small business set-aside contract.”
That, in essence, was the content of a document recently filed with the SBA Office of Hearings and Appeals, which SBA OHA charitably treated as a formal size appeal. Reading this case left me scratching my head and wondering: was this the worst SBA size appeal ever filed?
8(a) Mentor-Protege Agreements Cannot Be Protested, Says SBA OHA
8(a) mentor-protege agreements cannot be protested by competitors, according to a recently-issued decision by the SBA’s Office of Hearings and Appeals. In Size Appeal of Professional Performance Development Group, Inc., SBA No. SIZ-5398 (2012), SBA OHA held that the SBA’s decision to approve an 8(a) mentor-protege agreement is outside the scope of the SBA size protest process.