Tag Archives: SBA size appeals

SBA OHA: For Calculating Receipts, Look to Tax Returns

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To calculate a company’s size under a receipts-based NAICS code, the SBA will add the company’s total income to its costs of goods sold, as those amounts are reported on its tax returns. In fact, the SBA’s regulations are clear that it must use these reported amounts to determine a company’s size status.

What happens, then, when a company’s taxes show “income” that might not really reflect money in the company’s accounts? The SBA’s Office of Hearings and Appeals recently considered this question, and affirmed a company’s ineligibility based on the income reported in its tax returns.

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Size Protest Was Untimely Because CO Did Not Require Size Recertification

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Let’s suppose that you, a small business, were previously awarded a long-term contract set aside for small businesses. But over the past few years, business has been good and you’ve outgrown the size standard assigned to the contract. Can you still be awarded a task order under the contract? Yes–if the contracting officer doesn’t require you to recertify your size in connection with the task order request, and no contract-specific terms–like mandatory off-ramps–say otherwise.

This important principle recently played out in DNT Solutions, LLC et al., SBA No. SIZ-5962 (2018).

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SBA OHA: Contracting Officer’s Termination Decision Won’t Change Size Appeal Deadline

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Following a size determination, any person adversely affected by that determination may file an appeal with the SBA’s Office of Hearings and Appeals. To be timely, the appeal has to be filed within 15 calendar days from the date the person receives the determination. If not timely-filed, the appeal will be dismissed.

This 15-day deadline is strict. The OHA doesn’t have the power to extend it, even if good reason exists to do so. In fact, the OHA’s recent decision in Sentient Digital, Inc. dba Entrust Government Solutions, SBA No. SIZ-5963 (2018) makes clear that this deadline applies even when an agency changes its decision to terminate a contract following an adverse size determination.

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Yes, Foreign-Owned Entities Can Be Small Businesses Under SBA Government Contracting Rules

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Government contractors often assume that a foreign-owned company cannot qualify as a small business under the SBA’s government contracting size rules.

Not so.  As demonstrated by a recent SBA Office of Hearings and Appeals size appeal decision, a foreign-owned entity can qualify as a small business, provided that it has a physical location in the United States and contributes to the U.S. economy.

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SBA OHA: Contracting Officer Can’t Extend Size Appeal Deadline

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When you hear “15 days,” what’s the first thing that comes to mind? Perhaps, you pay your employees every 15 days. Maybe your birthday or favorite holiday happens to be in 15 days. Or if you’re like me, you might think that 15 days is two days fewer than Thirteen Days, a great movie about the Cuban Missile Crisis.

Whatever your brain conjures up, don’t forget this: 15 days is the time limit to appeal an SBA size determination. Period. And nothing the contracting officer says can change it.

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GSA Schedule BPA Award Does not Allow for Size Protest

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Generally, a size protest must be filed within five business days of when the protester receives notice of the identity of the awardee.  But there are some nuances to this rule, such as whether a corrective action will extend the deadline and whether the clock starts running upon notice of the prospective awardee or the actual contract award date (Hint: notice of awardee).

But when does the 5-day protest period start to run in the context of a Blanket Purchase Agreement issued under a GSA Schedule contract? A recent SBA Office of Hearings and Appeals decision is a reminder that the award of a BPA does not trigger a new 5-day period to file a size protest.

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5 Things You Should Know: Size Protests and Appeals

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See our updated post on this topic here.

Koprince Law recently gave a presentation on small business size and affiliation issues the Contract Opportunities Center. This presentation got us thinking: “Wouldn’t our loyal SmallGovCon readers want to know 5 Things about size protests and appeals?”

“Of course they would!” we immediately answered our own internal monologue. “After all, who wouldn’t?”

Here are 5 Things You Should Know about size protests and appeals:

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