Tag Archives: SBA size appeals

SBA OHA: Tribal Companies Entitled to Broad Affiliation Exceptions

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Indian tribes, their holding companies, and companies owned by those holding companies are entitled to broad exceptions from the ordinary SBA affiliation rules, according to a recent SBA Office of Hearings and Appeals size appeal decision.

SBA OHA’s decision in Size Appeal of Roundhouse PBN, LLC, SBA No. SIZ-5383 (2012), holds that the SBA cannot use non-applicable affiliation rules to circumvent the regulatory exception from affiliation between tribal companies.  In its ruling, SBA OHA also sidestepped an interesting tribal size question: did Congress truly intend for some tribal companies to be “small” for 8(a) program purposes, but “other than small” for all other government contracts?

As you can probably tell, the Roundhouse PBN case is not your run-of-the-mill SBA OHA size appeal decision, meaning a slightly longer-than-normal blog post is in order.  Let’s dive right in.

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VA SDVOSB Protests: VA OSDBU Has Sole Jurisdiction

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SDVOSB protests relating to VA set-aside procurements may only be decided by the VA Office of Small and Disadvantaged Business Utilization.  In a recent decision, the SBA Office of Hearings and Appeals confirmed that the SBA currently lacks jurisdiction to decide SDVOSB protests under VA set-aside procurements.

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SBA Size Protest Allegations: Use ‘Em Or Lose ‘Em

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SBA size protests should include all of the reasons why the protester believes the protested company is not small.  If the protester omits an allegation from its SBA size protest, the allegation may be lost forever, even if the protester files a SBA size appeal.

One protester recently learned this lesson the hard way.  On appeal before the SBA Office of Hearings and Appeals, the protester alleged that the awardee was affiliated with the incumbent contractor.  The problem?  The protester never mentioned any such affiliation in its SBA size protest.

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Ostensible Subcontractor Rule: A Look At A Compliant Team

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The ostensible subcontractor rule can be challenging, because there is no magic formula for compliance.  When a protester raises an ostensible subcontractor rule allegation, the SBA evaluates all aspects of the prime/subcontractor relationship to see whether the ostensible subcontractor rule was violated.  If the SBA concludes that the small prime contractor is unduly reliant on it subcontractor, and/or the subcontractor will perform the primary and vital portions of the contract, it will find the prime affiliated with its subcontractor.

Although there is no single recipe for ostensible subcontractor rule success, it can be useful to examine SBA Office of Hearings and Appeals cases to see exactly what sort of prime/sub relationships SBA OHA deems problematic–and which pass muster.  Today’s post is in the latter category: a recent SBA OHA decision finding that the ostensible subcontractor rule had not been violated.

What did the prime and subcontractor in that case do right?

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SBA Size Protest Timeliness: Solicitation Doesn’t Extend Filing Deadline

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SBA size protests are only timely if received within five business days.  The SBA size protest timeliness rule can confuse potential protesters, because it is different than the 10-day rule applicable to most post-award GAO bid protests.

In a recent SBA Office of Hearings and Appeals decision, a would-be protester apparently got tripped up by the different filing periods, incorrectly interpreting a solicitation provision regarding GAO bid protests as establishing an extended SBA size protest filing deadline.  SBA OHA held that the protester’s misunderstanding did not entitle it to file a late SBA size protest.

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SBA OHA: Not The Place To “File” A SDVOSB Protest

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For small government contractors, SBA size and eligibility issues are of critical importance.  Recognizing this, the SBA provides an independent forum–the SBA Office of Hearings and Appeals–to review potential mistakes made by the SBA Area Offices, which decide SBA size protests.

Small government contractors must remember, however, that SBA OHA exists to evaluate the decisions made by SBA Area Offices, not to evaluate new allegations raised for the first time in the course of a SBA OHA appeal.  Case in point: SBA OHA’s recent decision in Size Appeal of In & Out Valet Co., SBA No. SIZ-5354 (2012), in which the protester apparently attempted to “file” a SDVOSB protest with SBA OHA during the course of its SBA size appeal.

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Small Business Violates Ostensible Subcontractor Rule, Wins Contract Anyway

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The SBA’s ostensible subcontractor rule has tripped up many small businesses over the years.  The rule states that a small prime contractor is affiliated with its subcontractor when the prime is unusually reliant upon the subcontractor and/or the subcontractor will perform the primary and vital portions of the contract work.

It is worth remembering, however, that the ostensible subcontractor rule only matters if affiliation between the prime contractor and subcontractor would cause a size standard problem.  If the sizes of the prime contractor and its ostensible subcontractor, added together, do not exceed the size standard, a violation of the ostensible subcontractor rule doesn’t matter.

That is what happened in one recent decision of the SBA Office of  Hearings and Appeals, in which a small prime contractor had an ostensible subcontractor–but was declared an eligible small business anyway.

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