Tag Archives: size protests

OHA: Sold Corporate Division Isn’t a Former Affiliate

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Affiliation is a dirty word to small business federal government contractors. For good reason: it can turn a small business into a large one and destroy its eligibility for socioeconomic programs and set-aside contracts. Proactive small business contractors, therefore, routinely audit their affiliation risks and, if necessary, take actions to fracture that affiliation.

One of the ways a company might try to fracture affiliation is to sell a division or business line to a third party. Because this division is sold, the company might be tempted to assume that its corresponding revenues are not considered as part of the affiliation analysis (under the former affiliate rule).

A recent OHA decision, however, instructs that a division or line of business does not qualify under the former affiliate rule.

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Years after Expiration of Mentor-Protégé Agreement, Joint Venture Still Small Based on Proposal Date

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SBA regulations say that size is determined as of the date an offeror submits its initial proposal, with price. On its face, this rule seems pretty straight forward. But what happens if the initial proposal was filed six years ago? And what if the joint venture that submitted the proposal has since expired?

Following OHA’s recent logic, the proposal-date rule stands even in these unique circumstances.

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5 Things You Should Know: The Nonmanufacturer Rule

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Editor’s note: For more information, check out our updated post on the nonmanufacturer rule.

To qualify as a small business under most set-aside or sole source contracts seeking manufactured products or supplies, SBA’s regulations require an offeror to be the item’s manufacturer or, alternatively, comply with the nonmanufacturer rule.

In a prior post, we discussed 5 Things You Should Know about being the item’s manufacturer; in this post, we’ll discuss qualifying under the nonmanufacturer rule.

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OHA Rules that Size Protest Wasn’t Five Years Too Late

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As we’ve discussed in previous posts, if you want to initiate a size protest, you generally must do so within 5 business days after the contracting officer notifies you of the prospective awardee’s identity.

But what happens if, after learning that you did not receive the award, the agency does something that suggests its award decision wasn’t final–e.g., reopens discussions with offerors and seeks revised proposals? Would your size protest still be late if didn’t file within the 5-day time frame?

Take a guess. And keep reading to find out the answer!

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Update: SBA Says 5-Year Receipts Calculation Period Not Yet Effective

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On December 17, 2018, the Small Business Runway Extension Act became law. As we’ve previously written, this Act had a single purpose: to extend the measurement period of the SBA’s calculation of average annual receipts, from three years to five.

We opined that the Act became effective with the stroke of the President’s pen. Just a few days ago, however, the SBA disagreed—according to the SBA, the 5-year calculation period will not become effective until its regulations are revised.

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Offeror Unintentionally Files Size Protest, Confuses SBA OHA

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A communication to a contracting officer taking issue with an awardee’s size can be treated as a size protest–even if the offeror making the communication didn’t intend to file a size protest.

That’s what happened in Sea Box, Inc., SBA No. SIZ-5846 (Aug. 7, 2017), when an offeror accidentally initiated a size protest after losing an award. Continue reading →

Kingdomware Doesn’t Affect SBA Size Protest Timeliness, Says SBA OHA

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The Supreme Court’s now-famous Kingdomware decision doesn’t affect the timeliness of SBA size protests of GSA Schedule orders.

In a recent decision, the SBA Office of Hearings and Appeals rejected the notion–based in part on Kingdomware–that an GSA Schedule order is a “contract” for purposes of the SBA’s size protest timeliness rules.  Instead, OHA held, the SBA’s existing rules clearly distinguish between contracts and orders, and often effectively do not permit size protests of individual orders.

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