Tag Archives: SBA size determinations

8(a) Mentor Protege Agreements And Shared Employees: A Risk Of Affiliation?

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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?

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SBA OHA: 21.2% Minority Owner Controlled Contractor

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A minority owner with a mere 21.2% stake in a government contractor controlled that contractor for SBA size and affiliation purposes, according to a recent SBA Office of Hearings and Appeals decision.

SBA OHA’s decision in Size Appeal of Civitas Group, LLC, SBA No. SIZ-5424 (2012) is an important reminder that a contractor’s single largest minority shareholder may be deemed to control the company under the SBA size and affiliation rules–even if the contractor’s governing documents do not grant that shareholder actual legal control.

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Worst SBA Size Appeal Ever? Large Business Files Off-Topic Document with SBA OHA

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“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?

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8(a) Mentor-Protege Agreements Cannot Be Protested, Says SBA OHA

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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.

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Small Business Wins SBA OHA Size Appeal–But Contract Not Reinstated

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A SBA size protest can be a matter of life and death for a small business, which may find it impossible to effectively compete if it is found “other than small.”  If a protested contractor loses a size protest, it is not necessarily the end of the road: it has the option of filing a size appeal with the SBA Office of Hearings and Appeals.

Winning a SBA OHA size appeal often results in “small” status once again, but a SBA OHA victory may have its limits.  As one contractor recently discovered, if the procuring agency terminates a contract award following an adverse SBA size protest decision, the agency is not required to reinstate the contract if the contractor subsequently prevails in its SBA OHA size appeal.

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SBA OHA: SBA Cannot Belatedly Oppose Size Appeal

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No matter your political persuasion, it’s hard to forget the image of Senator John Kerry windsurfing in the famous 2004 Bush-Cheney ad.  The ad attacked Kerry for supposedly changing his mind too often–“flip-flopping,” in political parlance.

It turns out that the dangers of flip-flopping are not limited to politics.  In a recent SBA size appeal decision of the SBA Office of Hearings and Appeals, SBA OHA held that if the SBA’s Office of Government Contracting, or OGC elects not to formally oppose a SBA size appeal, it cannot later change its mind and ask SBA OHA to revisit the size appeal decision.  Because the SBA OGC does not formally oppose most SBA size appeals, SBA OHA’s decision forces the SBA OGC to make up its mind quickly about whether it will play a role in the SBA size appeal process.

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