We Help You to Avoid Costly Legal Mistakes With SBA Affiliation Rules.
The SBA definition of Ostensible Subcontractor Rule under 13 CFR Part 121 is a subtle provision in government contracting that can impact the award decision by the agency. Many small businesses find themselves defending violation allegations during a size standard bid protest. The legal analysis includes a variety of approaches that companies may not be familiar with during the litigation stage. At Watson & Associates, LLC, our SBA lawyers frequently help small businesses to deal with legal challenges to the relationships between prime and subcontractors doing business with the Federal Government.
Having a deep understanding of the SBA subcontracting rules and ostensible definition can make the difference between keeping the award and losing it. The SBA has issued new rules that limit the possibility of affiliation for similarly situated small businesses.
When filing or intervening in a size protest, contractors should be well informed about the nuances of hiring incumbent employees. When considering a subcontracting work, contractors should consider what the primary and vital requirements of the subcontractor contract and how to navigate through the various allegations at the litigation and appeals stage.
Our goal is to help small businesses in various industry groups, and even DOD contractors, to understand SBA affiliation regulations and to overcome the complex rules involving the Ostensible Subcontractor Rule and how it can impact the facts of the case. We help clients to seek out certain challenges that can potentially defeat or prove SBA affiliation allegations. See some of our top cases.
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SBA Affiliation and Litigation Services
- Filing and intervening in small business size protest cases
- Litigation SBA size appeals at the SBA Office of Hearings and Appeals (SBA OHA)
- Legal counsel on legal issues to avoid affiliation under the Ostensible Subcontractor Rule
To avoid costly legal mistakes and speak with an attorney, call 1-866-601-5518 for a FREE initial consultation.
13 CFR Part 121 Ostensible Subcontractor Definition
How Does the SBA Affiliation Rules Analyze Potential Violations Under the Ostensible Subcontractor Definition? Under 13 CFR Part 121.103, the ostensible definition extends to a subcontractor that is not a similarly situated entity. The SBA definition also suggests that the subcontractor performs the primary and vital requirements the contract. If you are a subcontractor upon which the prime is unusually reliant, your company can also be subject to the ostensible definition.
The SBA affiliation rules and size standards regulation suggests that an ostensible subcontractor determination solely on the relationship between the parties at that time, which is best evidenced by the offeror’s proposal and anything submitted in addition to that. In federal contract bid protest litigation, Courts look at any assertions not in accord with the proposal as being immaterial.
- The Ostensible definition often comes into play if your company serves as a government subcontractor, or is in involved with any contractor and subcontractor relationship at the bidding stage.
Under the “ostensible subcontractor” rule definition, 13 CFR Part 121.103 (h)(4), affiliation also suggests that the subcontractor is performing the primary and vital contract requirements, or the prime contractor is unusually reliant upon the subcontractor, then the two firms are affiliated for purposes of the procurement at issue. See also 13 CFR Part 121.102.
Under SBA affiliation rules, to determine whether the relationship between a prime contractor and a subcontractor violates the textbook ostensibly affiliation meaning and ostensible definition, the SBA Area Office must examine all aspects of the relationship, including the terms of the proposal and any subcontractor contract agreements between the firms.
For a Small Business Set Aside, Are You Performing Primary and Vital Requirements? The SBA Office of Hearings and Appeals has recognized that the “primary and vital” contract requirements are those associated with the principal purpose of the acquisition. Not all the requirements identified in a solicitation can be primary and vital. When there is a small business set aside, courts look at each case’s facts.
- The mere fact that a requirement is a substantial part of the solicitation does not make it primary and vital under the SBA size standards rule.
- In evaluating claims under SBA affiliation rules, the appeals court will base its analysis on the solicitation and proposal before it.
Management Mistakes: As prime contractor, making sure that you hire key personnel is import, the subcontracting work assigned to your subcontractor should not be filled with what the SBA and agency consider “key personnel.” This is a likely reason for the SBA to decide that your are ostensibly affiliated with your subcontractor. See, e.g., ACCESS, 2007 SBA LEXIS 22, *36 (“Appellant does not propose to its own current personnel for any of the key positions”). OHA has rules that if you cannot manage your contractor without key subcontractor employees, then you may be given up control in violation of the OStensible Subcontractor Rule. Size Appeal of TKC Tech. Solutions, LLC, SBA No. SIZ-4783, 2006 SBA LEXIS 32, *23 (2006).
OHA SBA Small Business Affiliation Appeal Lawyers
With law offices in Washington DC and Colorado, the government contract law attorneys at Watson & Associates, LLC frequently file or defend SBA affiliation cases under the Ostensible Subcontractor Rule both at the SBA level and appeals at SBA OHA. Our SBA subcontracting lawyers frequently represent clients before the SBA, and SBA Office of Hearings and Appeals when there is an adverse decision or disputes about the ostensible definition.
Our SBA attorneys have a deep understanding of government small business affiliation rules and how small business ostensible subcontractor affiliation applies when looking at bidding opportunities.
Serving Federal Government Contractors in Washington, DC, VA, MD and All States
Watson & Associates can represent and defend small businesses that are claimed to be ostensibly affiliated or size appeal allegations at SBA OHA. We litigate size bid protest for government contractors in all states.
Our Government Contracts and SBA Ostensible Subcontractor Rule lawyers provide legal counsel to contractors throughout the United States and overseas including Alabama, Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Florida, Georgia, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Utah, Vermont, Virginia, Washington, Washington DC, West Virginia, Wisconsin, Wyoming, and Virgin Islands. Call our SBA Ostensible contracting attorneys today for immediate help.
Cities in which our law firm helps small businesses with SBA affiliation and Ostensible Subcontractor Rule size protests include Anchorage, AK; Atlanta, GA; Austin, TX; Chicago, IL; Colorado Springs, CO; Dallas, TX; Denver, Colorado; Indianapolis, IN; Las Vegas, NV; Los Angeles, CA; Miami, FL; Philadelphia, PA; San Antonio, TX; San Diego, CA; San Francisco, CA; San Jose, CA; Santa Clara, CA; and Tampa, FL.
Call Our Ostensible Subcontractor Rule & SBA Affiliation Rule Lawyers
To preserve your rights under the SBA’s legal Ostensible meaning, 13 CFR Part 121, and Ostensible Subcontractor Rule, affiliation appeals, and adverse SBA decision, Call Watson & Associates at 1866-601-5518 for a Free Initial Consultation.