SBA Size Standards Small Business Size Protest SBA OHA Size Appeals
Protecting the legal rights of federal small businesses in ALL States.
SBA size standards are sometimes forgotten until a competitor files an SBA small business size protest after award of a government contract. As the successful awardee, you now have to defend the allegations aggressively by intervening and responding to the SBA investigation.
On the other hand, as the unsuccessful offeror, deciding to file a size protest alleging a violation of the SBA small business size standard means that you have to respond to short deadlines.
What are the deadlines for filing?
Depending on who files the dispute, there are various facts that one must consider for SBA size protest timeliness. If the contracting officer wants to challenge your small business size status, there are no deadlines. A contracting officer’s size protest is always timely. Sometimes when an actual awardee is not named, contractors should refrain from filing unless the apparent offeror is clearly discussed. For contractors, the deadline for filing is 5 business days after bidding has opened. Government contractors must must deliver the size protest to the contracting officer by hand, mail, fax, or telephone. Our SBA attorneys suggest that bidders should refrain from delivering the protest by phone. There could be some disputes as to whether you have the legal requirements under size protest regulations.
As a protestor, what level of proof do I need that the awardee is other than small?
Specificity: Small businesses often make costly legal mistakes by not given enough facts or legal reasons why the awardee is other than small. According to 13 CFR 121.1007(b), your protest must include specific facts. A protest merely alleging that the protested concern is not small or is affiliated with unnamed other concerns does not specify adequate grounds for the protest. An example of this would be to assert that the awardee might have violated the Ostensible Subcontractor Rule but with no facts to back it up.
SBA OHA has no problem dismissing appeals for this reason. See Size Appeal of DataSavers of Jacksonville, Inc., SBA No. SIZ-5795 (2016). The facts must be sufficiently specific to provide reasonable notice as to the grounds upon which the protested small business is questioned. Companies often find themselves litigating the procedural aspects of the case and not get to the merits. These are all reasons why having an experienced SBA attorney to handle your case important.
Excluded from further consideration due to reasons other than size?
If you are contemplating filing a bid protest alleging that the other side violates size standards, make sure that you have standing to bring the lawsuit. This but one of the many costly mistakes that protestors make. An example would be if you were excluded from the competitive range at the agency level.
How do you defend allegations that You are affiliated?
The first plan of action to defend allegations of affiliation would be to see if your company fits under any of the statutory exemptions. Knowing the various SBA eligibility requirements is just as important. Every case is fact specific. Therefore, defending against violations of SBA small business size standards can problematic for companies seeking to represent themselves as an intervenor. When defending a size protest, you already have a very short time to respond to the SBA’s inquiries and request for documents.
Do I have to find a small business attorney near me?
It depends on your comfort level. SBA size determinations are based on federal procurement law and not state law. However, your company may want to focus more on finding a small business attorney that understands the varying nuances of federal contract law. For example, the Watson & Associates law firm represent clients across the United States.
SBA Small Business Size Protest Attorney Services
Litigating SBA size standards and bid protest disputes involve a myriad of legal theories. Our small business size protest lawyers provide legal representation by:
- Assessing the merits of each case;
- Analyzing the filing documents to see if statutory requirements are met;
- Analyzing solicitation requirements to teaming relationships and bid responses;
- Providing help in responding to SBA size bid protest inquiries;
- Preparing the size protest documents with legal sufficiency;
- Preserving rights at the SBA level for potential appeal (you cannot bring up new issues on appeal to OHA).
- Representing clients in size appeal cases to SBA OHA.
Call 1-866-601-5518 for a FREE INITIAL CONSULTATION.
Note: SBA has issued its new rules about small business size determination protests and affiliation.
Experience: With more than 30 years experience in government contracts law and with law offices in Washington, D.C. and Colorado, the government contract law attorneys at Watson & Associates, LLC offer aggressive legal representation to small businesses across the United States. Whether seeking to defend and intervene in a case for alleged violations of SBA size standards, appealing an SBA size determination, or simply compiling your case for filing, Watson & Associates can help.
Clients: Our clients come from various industry groups including construction, IT, medical and professional services and have varying business standard requirements for each NAICS code. See some of our favorable results.
See our performance in a landmark appeal against SBA. See Size Appeal of Argus and Black, Inc. now cited by SBA OHA.
Expertise in Various Small Business Legal Theories
The law firm also represents small businesses in SBA size protest litigation under totality of the circumstances, SBA small business size protests based on common management, newly organized concern rule, Ostensible Subcontractor Rule and Affiliation , meeting the small business definition by showing subcontractors performing primary and vital contract requirements; and identity of interest size appeal cases; size appeal protest cases based on mentor protégé affiliation; and defeating SBA bid protest litigation when rebutting legal presumptions by showing clear lines of fracture.
SBA Size Standards & Small Business Definition
Under SBA size standards and procurement regulations, you have to be a small business to receive a government contract that is procured under the Small Business Set-Aside Program. The small business definition becomes a problem when the competition challenges your company to meet the SBA’s size definition.
The SBA’s upward revisions of the size standards allow some small businesses that are close to exceeding their current size standards to retain small business eligibility under new higher size standards and give federal contracting agencies a larger selection of small businesses to choose from for small business procurement opportunities.
|NAICS code||NAICS industry title||Current Size Standards
|Proposed Size Standard
|512110||Motion Picture and Video Production||$29.5||$30.0|
|512131||Motion Picture Theaters (except Drive-Ins)||$7.0||$35.5|
|512199||Other Motion Picture and Video Industries||$7.0||$19.0|
|512290||Other Sound Recording Industries||$7.0||$10.0|
|515210||Cable and Other Subscription Programming||$15.0||$35.5|
|517919||All Other Telecommunications||$25.0||$30.0|
|518210||Data Processing, Hosting, and Related Services||$25.0||$30.0|
|519120||Libraries and Archives||$7.0||$14.0|
|519190||All Other Information Services||$7.0||$25.5|
|NAICS code||NAICS industry title||Current Size Standards
|Proposed Size Standard
|561311||Employment Placement Agencies||$7.0||$25.5|
|561312||Executive Search Services||$7.0||$25.5|
|561320||Temporary Help Services||$13.5||$25.5|
|561330||Professional Employer Organizations||$13.5||$25.5|
|561410||Document Preparation Services||$7.0||$14.0|
|561421||Telephone Answering Services||$7.0||$14.0|
|561422||Telemarketing Bureaus and Other contact Centers||$7.0||$14.0|
|561431||Private Mail Centers||$7.0||$14.0|
|561439||Other Business Service Centers (including Copy Shops)||$7.0||$14.0|
|561492||Court Reporting and Stenotype Services||$7.0||$14.0|
|561499||All Other Business Support Services||$7.0||$14.0|
|561591||Convention and Visitors Bureaus||$7.0||$19.0|
|561599||All Other Travel Arrangement and Reservation Services||$7.0||$19.0|
|561612||Security Guards and Patrol Services||$18.5||$19.0|
|561613||Armored Car Services||$12.5||$19.0|
|561621||Security Systems Services (except Locksmiths)||$12.5||$19.0|
|561710||Exterminating and Pest Control Services||$7.0||$10.0|
|561740||Carpet and Upholstery Cleaning Services||$4.5||$5.0|
|561910||Packaging and Labeling Services||$7.0||$10.0|
|561920||Convention and Trade Show Organizers||$7.0||$10.0|
|561990||All Other Support Services||$7.0||$10.0|
|562111||Solid Waste Collection||$12.5||$35.5|
|562112||Hazardous Waste Collection||$12.5||$35.5|
|562119||Other Waste Collection||$12.5||$35.5|
|562211||Hazardous Waste Treatment and Disposal||$12.5||$35.5|
|562212||Solid Waste Landfill||$12.5||$35.5|
|562213||Solid Waste Combustors and Incinerators||$12.5||$35.5|
|562219||Other Nonhazardous Waste Treatment and Disposal||$12.5||$35.5|
|562920||Materials Recovery Facilities||$12.5||$19.0|
Definition: The SBA small business definition standard ( See SBA Website) is that your company has to be a “..small business that is not dominant in the field of operation for which it is bidding on a government contract, in addition to qualifying as a small business under the criteria and size standards in Title 13, Code of Federal Regulations, part 121 (13 CFR 121).
SBA size standards have been established for types of economic activity, or industry, generally under the North American Industry Classification System (NAICS). SBA size protest regulations pertaining to federal procurement are also found in the Federal Acquisition Regulation, 48 CFR part 1.
Avoid mistakes made with SBA size bid protest filing: If an area office finds a size not specific it will dismiss the case under 13 CFR 121.1007(c). Small business bid protests must sufficiently specific to provide notice of the grounds upon which the protestor was contesting the challenged firm’s size. Another commonly made mistake is that the bid protest does not include factual allegations as a basis for alleged grounds.
Follow the proper procedure in small business size appeals. OHA will not consider new evidence on appeal unless the Judge orders its submission or a motion is filed and served that establishes good cause for the submission under 13 CFR 134.308(a) Failure to file the proper motion can severely damage the outcome of your case.
Intervening in SBA Small Business Size Protest Cases
Whether you are intervening into an existing case or filing a small business size protest alleging affiliation or violation of the Ostensible Subcontractor Rule, the ability to prevail depends on having a clear understanding of the various size standards, SBA size protest regulations and case law that interprets them. This is where most small businesses fail when not represented by experienced legal counsel.
See our SBA size protest FAQs.
Note: When filing an SBA bid protest, you must file within five days, not including Saturdays, Sundays and federal holidays.
Our Government Contracts and SBA size protest attorneys 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 small business size protest attorneys today for immediate help.
Call an SBA Attorney for Immediate Help
Call us if you need experienced legal advocates to help you avoid the costly legal landmines with SBA size standard protests. We aggressively litigate to make sure the SBA’s small business definition and that the legal requirements are met. On appeal, the law firm litigates SBA small business size determination decisions, affiliation decisions, NAICs violations, and small business size standard violations.
Call our government small business lawyers at 1-866-601-5518 to schedule a FREE Initial Consultation.
More Information About SBA Standards and NAICS Code Size Protests
Find out about HUBZone Price Preference When Bidding.
Call our NAICS Code Size protest lawyers today for help with SBA size standards protest and small business size protest litigation.