Watson & Associates’ government contract small business size protest lawyers, with law offices in Washington, DC and Denver, Colorado, frequently represent companies throughout the United States to defend and file SBA size protest cases when there is a government contract award.
After the Area Office issues a formal SBA size determination, our law office also provides legal representation is small business size standard appeals to the SBA Office of Hearings and Appeals (SBA OHA).
We represent both government contract protest plaintiffs and intervenors nationwide. Free initial consultation. 1-866-601-5518.
Experience with specific SBA size protest topics
With over 30 years of government service and federal contracting experience we can handle disputes related to the totality of the circumstances, size protest based on common management, newly organized concern rule, Ostensible Subcontractor Rule and Affiliation, meeting the SBA small business definition by showing subcontractors performing primary and vital contract requirements; and identity of interest appeal cases; size appeal protest cases based on mentor protégé affiliation; and small business designation argument when rebutting legal presumptions by showing clear lines of fracture.
As SBA bid protest lawyers, we also submit and reply to motions and briefs from the opposing counsels or required by the courts. Because the risks and amounts involved are so high, our size standards protest lawyers also assess the facts under 13 CFR 121 Part 103 for affiliation analysis. We understand what the SBA looks for.
If you have to file a size appeal to SBA OHA, our appeal lawyers are prepared to present aggressive litigation on your behalf. If the OHA issues and adverse size protest decision, our law can also prepare for appeal at the U.S. Court of Appeals for the Federal Circuit.
Get a Free Initial Consultation. Over 20 Years Experience With the Federal Government. Call our SBA bid protest attorneys Toll Free at 1-866-601-5518.
What is a Small Business?
SBA small business size standard regulations define the largest size your business can bid for projects in federal government contracting programs. If you don’t meet the statutory requirements, then your company cannot compete for small business set-asides. Size standards requirements vary by industry groups. Your company’s size will be generally based on the number of employees working for your firm or the amount of annual receipts the business has. You can find small business size regulations in Title 13 Part 121 of the Electronic Code of Federal Regulations (eCFR).
When you are involved in small business size standard litigation, the SBA may look for affiliation, in addition to what the protestor may allege under 13 CFR 121.103.
Small Business Size Based on Annual receipts
One of the central issues when determining whether your company meets the government contracts small business requirements is to ultimately look at your annual receipts (if the NAICS Code looks at revenues)
The requirements look “total income” (or “gross income”) of your company plus the “cost of goods sold.” Currently, company receipts are calculated as averaged over revenues of the latest three complete fiscal years or (except in the Business Loan and Disaster Loan Programs) five complete fiscal years to determine the average annual receipts. The SBA will consider your size based on annual receipts in accordance with 13 CFR 121.104.
Small Business size Based on Employee Calculation
During an SBA size protest, the Area Office will look at the average number of people employed by your company for each pay period over the business’s latest 12 calendar months. Whether a person is temporary or regardless of the amount of hours worked must be counted. If you have been in business for less than 12 months, the number of employees in the business less than 12 months will be calculated as the average for each pay period that it has been in business.
What is an SBA size protest?
Government contract law allows the contracting office to set aside procurements solely for small businesses. To qualify as a small business, you must also certify and actually meet SBA NAICS size standards regulations. An SBA size protest allows an unsuccessful bidder to challenge the winning contractor’s small business status.
What are Common Mistakes to Watch For as a Government Contractor?
When your company is facing litigation or being targeted for a government investigation about your small business size, the critical points of interest to the SBA or IG are your business relationships with other individuals or companies. Entities that merely met to do business on the instant procurement, but have no previous business relationship sare fertile targets for a small business size protest. When these relationships form, watch for common mistakes such as :
- Getting a substantial amount of revenues from another company
- Not showing in your agreements that you make the final decisions
- Transfering prohibited decision-making authority to your subcontractors (common in construction contracts)
- Teaming with companies that also own other entities
- Failing to realize that the SBA only has to reasonably believe that control of your business can exist – whether or not it actually exists is not the legal standard.
Who can file a small business size protest?
If you are a small business that submitted a bid, you are often presumed to be an interested party. If you have an economic interest or stake in the outcome of the case, you are an interested party and can challenge the awardee’s small business size status.
You must have what most attorneys and courts refer to as legal standing to file an SBA size protest. See 13 CFR 121.1001(a)(7)(i), “[a]ny offeror” may initiate a size protest on an unrestricted procurement.
Where are small business size standard protests filed?
If you are contemplating filing a small business size standards protest, you must file it with the contracting officer within five business days after receipt of notification of the awardee. He or she will then refer it to the Small Business Administration for investigation.
How can Watson’s SBA size protest lawyers help you?
Any type of government contract bid protest creates a risk to the intervenor (awardee) of losing the contract. As an unsuccessful offeror, you run the risk of not getting a second chance to be considered for the contract.
Watson’s small business size protest attorneys provide meaningful insight into whether the protest has merit; our contract protest lawyers will then draft the protest letter on your behalf and assemble the necessary preparations for filing.
What causes small business size standard bid protest case to be dismissed?
SBA size small business size protests do not have rigid filing requirements. However, the stated procedural rules, if not followed, will cause the SBA (or OHA) to dismiss your case.
- SBA small business size regulations make clear that, constitute a proper size protest, you must allege some factual or legal basis for the protest. See 13 CFR 121.1007(b). If you simply state that the awardee is not small, without anything else, then your case will get dismissed.
- Failing to file your case within the five business day requirement
- Your proposal was rejected for reasons other than size
What happens after you file and SBA size protest?
After you file your small business size standard bid protest, the SBA will notify the awardee and allow the awarded company to respond to the allegations in the bid protest. The SBA will also launch its own investigation. The awarded company will be required to submit SBA Form 355 and provide tax records and any other document requested.
What are your options after an adverse formal SBA size determination?
After the SBA issues a formal size determination, you can appeal the decision to the SBA Office of Hearings and Appeals (OHA). You cannot file a size appeal more than 15 days after you receive the Area Office’s size determination.
What are the risks of receiving an adverse small business size standards decision?
If the SBA issues an adverse size determination decision, it means that your company will be barred from submitting proposals for federal contracts under the NAICS code for the procurement at issue. Unless the appeals case is reversed by OHA, federal contracting agencies will consider your company as other than small for that NAICS code.
What does the SBA look for when conducting a small business size protest investigation?
When a small business size protest reaches the SBA’s office, there is an immediate investigation. The office immediately looks for evidence of affiliation with other companies, violation of the Ostensible Subcontractor rule.
Do you have to hire an SBA bid protest lawyer?
There are no rules that mandate you to retain SBA bid protest lawyers. Nevertheless, taking on your own case pro se can be very risky. NAICS size standards rules are confusing and complicated. The SBA can find reasons for size violations other than those stated by the protestor. As such, the risk of getting an adverse decision without legal counsel can be devastating.
Note: After filing the case, it will be difficult to find a small business status attorney that will take on the case.
How do you appeal a formal SBA size determination?
If you receive an adverse formal SBA size determination, you must file your size appeal with SBA Office of Hearings and Appeals (OHA) within 15 calendar days of receiving your size determination. See 13 CFR 134.304(a). SBA OHA must receive your appeal by 5 p.m. EST on the 15th day. OHA decides size determination appeals under the Small Business Act of 1958, 15 U.S.C. § 631 et seq., and 13 C.F.R. parts 121 and 134.
When filing an appeal, you must show legal and factual errors in the formal SBA size determination decision. Also, you want to stay from trying to admit new evidence on appeal.
Federal Circuit Court of Appeals Size Protest Appellate Cases
If you are contemplating filing an appeal of your small business size protest case to the US Court of Appeals for the Federal Circuit, you will have to allege the errors and mistakes that the lower court made. Understanding that the future of your business is at risk and that you may be precluded from bidding on small business contracts, our government contract appellate lawyers know the legal issues raised and can aggressively help you on appeal.
When should I call an SBA bid protest attorney?
When you get word of the apparent successful offeror or a formal notice of non-selection, that would be the best time to call an SBA bid protest attorney.
Waiting until after you submit your own SBA protest will cause an attorney to not take on the case because you have already submitted what could be a legally deficient protest letter.
After the Area Office issues a formal SBA size determination, you can also retain a qualified SBA size protest lawyer to file the appeal of SBA OHA.
- SBA size protests have very short filing deadlines
- You have to be an interested party with standing to file the case
- Once the SBA rules against you, then you cannot claim your small business status unless OHA reverses your appeal case
Tips to help you get the most from a Free Initial Consultation with your SBA size protest lawyer:
- Find a small business size protest attorney who has litigated these types of cases and write down questions that you want to be answered.
- During the initial consultation have someone that can help you ask questions and take notes
- Always have the company’s decision-maker on the call.
- You must act immediately after receiving notice from the contracting agency
- Consider the risks of not having government contract attorneys that understand small business regulations or the common issues raised in size protests.
Call an SBA Affiliation Attorney for a FREE Initial Consultation Today at 1-866-601-5518.