Tag Archives: SDVOSB appeals

Somewhat Appealing: Which SBA Certifications Can You Appeal From?

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The U.S. Small Business Administration (SBA) runs four socioeconomic programs aimed at providing equal opportunity to participate in federal contracting. And one would think that all of them have similar options if a contractor is denied certification. One would be wrong. SBA’s Office of Hearings and Appeals (OHA) recently dismissed an appeal for lack of jurisdiction, showcasing the different options in the various programs. The contractor was decertified from the Women Owned Small Business Program (WOSB). Its owners ran afoul of an important distinction in OHA’s appeals jurisdiction, particularly the substantial difference between appealing a competitor’s protest of a contractor’s SBA certification and the government’s initial denial of a program certification. This provides an excellent opportunity to assess the regulatory differences in appellate jurisdiction between the four programs, with an eye toward successfully navigating future encounters with the OHA.

Editor’s Note: Special thanks to our law clerk Will Orlowski for his immense help in drafting this post.

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Franchise-Type Agreement Sinks SDVOSB Application

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One of the key criteria for being a Service-Disabled Veteran-Owned Small Business (SDVOSB) is, as you might expect, that a service-disabled veteran control the company. Under Small Business Administration rules, an agreement similar to a franchise agreement can render an SDVOSB applicant ineligible, because the franchisor restrictions on the actions of the company are too strong. A recent case reminds us of the control imposed by these types of arrangements.

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Control Matters: For SDVOSB Companies, Pay Attention to Appearances as Well as Realities

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The case of Superior Optical Labs, Inc. (Superior) v. United States focuses on the control of a Service-Disabled Veteran Owned Small Business (SDVOSB) and how that control, or more precisely, lack of control, can disqualify an SDVOSB with 69% service-disabled veteran ownership from a solicitation set aside for SDVOSBs. This particular Solicitation was set aside entirely for an SDVOSB to provide prescription eyeglasses and related services through the Veterans Integrated Services Network (VISN). Superior was awarded the contract, which was then protested by PDS Consultants, Inc. (PDS) challenged the SDVOSB eligibility of Superior. In the end, OHA held that Superior did not qualify as a SDVOSB for purposes of the procurement due to a lack of control as required by SBA rules. PDS then challenged OHA’s decision at the Court of Federal Claims.

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OHA: CVE Appeals Go Directly to Us, Not CVE

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OHA recently confirmed it lacked jurisdiction over a CVE appeal mistakenly filed with CVE, not OHA, by the deadline. You might be thinking: “Oh come on, the CVE appeal was filed with CVE on time!” But OHA’s strict timeliness rules make no exception for any such mistakes in the CVE appeal process. In fact, OHA disclaims the authority to even consider a late appeal, regardless of whether or not it was timely (but improperly) filed with CVE itself.

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OHA: Multiple Service-Disabled Veterans Control Company, Despite Internal Dispute

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Control over a Service-Disabled Veteran-Owned Small Business can be held by multiple service-disabled veterans. Having control reside in multiple individuals can make things a little more complicated, though. SBA Office of Hearings and Appeals recently examined a situation where multiple service-disabled veterans shared control of a company, but did not have a united front when responding to information requests concerning a company’s eligibility.

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SDVOSB Eligibility Update: SBA Issues New Rule

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Earlier this week, Steve updated SmallGovCon readers on a very important SDVOSB eligibility change: beginning October 1, the VA will begin using the SBA’s eligibility rules to verify SDVOSBs and VOSBs.

The SBA has now followed suit—in a final rule published today, the SBA has amended its eligibility rules for SDVOSBs. These rules provide important clarity into SDVOSB eligibility going forward.

Let’s take a look at some of the most important changes.

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SBA CVE Protests and Appeals: Coming October 1

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The SBA will begin hearing protests and appeals related to inclusion in the VA’s SDVOSB/VOSB CVE database on October 1, 2018.

On March 30, the SBA published a final rule, which responded to public comments made on the proposed rule issued last year.  SBA’s Office of Hearings and Appeals will begin deciding these cases in the fall.

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