The SBA Office of Hearings and Appeals is an appellate forum and lacks jurisdiction to hear initial size protests.
As explained in a recent SBA OHA decision, size protests must be filed with the relevant Contracting Officer, who then refers the matter to the appropriate SBA Area Office. Only after the SBA Area Office issues a size determination does OHA have jurisdiction to consider a size appeal.
Ostensible subcontractor affiliation can arise for many reasons–but a small business may be in grave danger of affiliation with its subcontractor when four specific factors are present.
In a recent size appeal decision, the SBA Office of Hearings and Appeals held that a small prime contractor was unusually reliant on its large subcontractor where “four key factors” indicated that the small prime contractor was bringing little to the table but its small business status.
A contractor’s “frantically busy” employee, who was listed as the firm’s contact in SAM, skimmed through an email from the SBA containing a size protest, and took no action to respond.
In a recent size appeal decision, the SBA Office of Hearings and Appeals held that the SBA had properly issued an adverse size determination against the contractor in question after receiving no reply to the size protest–and the fact that the employee who received it was “frantically busy” was no excuse.
When the SBA evaluates a size protest, it need not obtain and consider “outside sources” of information–that is, information that is not provided by the protester or the protested business.
A recent decision of the SBA Office of Hearings and Appeals highlights the need for a size protest to include specific, detailed information about why the protested firm is alleged to be “other than small.” If the protester does not include information from outside sources, the SBA is not required to seek out such information on its own.
Ostensible subcontractor affiliation was not created when the small prime contractor proposed to hire its subcontractor’s current employee to serve as the prime contractor’s project manager.
In a recent size appeal decision, the SBA Office of Hearings and Appeals held that, where the prime contractor would retain supervision and control of contract performance, the prime contractor was not dependent on its subcontractor for contract management.
A SBA size protest related to a sealed bid must be filed within five business days of bid opening–and the bid protest rules under FAR Part 33 do not provide for a longer protest window.
In a recent decision, the SBA Office of Hearings and Appeals confirmed that, when it comes to size protests, the timeliness rules for bid protests (which allow many protests to be filed within 10 days after the basis of protest was known or should have been known) simply do not apply.
To determine whether ostensible subcontractor affiliation exists between a prime contractor and its subcontractor, the SBA must use the prime contractor’s final proposal revision.
In a recent size appeal decision, the SBA Office of Hearings and Appeals overturned an SBA Area Office affiliation determination that did not contemplate an offeror’s final proposal.