SBA Size Standards and OHA Size Appeal Litigation
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As small business owner bidding on federal government contracts, understanding the various legal nuances that come up in an SBA protest case can make the difference between saving the awarded contract and its revenues or losing to a protesting contractor that has its act together.
When it comes to Small Business Administration SBA Size standards and bid protests, many small businesses lose the case simply because they fall short of being able to put forth the legal analysis that shows that the business is independently owned and operated by disadvantaged persons. Therefore, when the SBA makes its size determination, the company is left fighting an uphill battle.
- We have litigated many cases involving complex issues regarding SBA business size standards
- Given the complexity of the potential issues in a potential appeal, we focus on making sure that issues are raised at the SBA level and not have to worry about trying to admit new evidence on appeal.
- Our size protest lawyers guide you to the facts that are important to the outcome you seek
- We also pride ourselves in providing our clients with direct and honest answers to the serious issues presented in each case.
With law offices in Washington DC and on Denver, Colorado the United States SBA small business size protest lawyers at Watson & Associates provide aggressive legal representation to either protestors or intervenors facing a tough issue that can cause them the contract (intervenor) or help the protestor get another bite at the apple. See results from cases that our office has handled.
SBA Size Protest Attorney Legal Services
HELP FOR PROTESTORS OR INTERVENORS
Litigating SBA size standard protest disputes involve a myriad of legal theories that can be confusing to government contractors when analyzing your opponent’s small business status. With law offices in Washington DC and in Denver, Colorado, Watson & Associates’ SBA size standards attorneys can help you with the following:
- Affiliation and Ostensible Subcontractor Rule violations (13 CFR 121.103)
- Small business status and company classifications for family-owned business relationships
- SBA guidelines with newly formed organizations ( making sure that you meet the independently owned and operated standard)
- Primary and vital contract performance of your small business concern
- Economic dependency other than small business
- The totality of the circumstances
- 8a Program and SBA affiliation rules
- Small business status violations due to an identity of interest
- SBA size determination appeals
- Improper NAICS Code size standard classification decisions
- Formal SBA Size Determination Appeals to SBA OHA
- Appeal of SBA OHA decisions to the US Court of Appeals for the Federal Circuit
For help defending your small business status or meeting the requirements to file a size protest, call our SBA bid protest lawyers at 1-866-601-5518.
Help With Various SBA Size Standards Disputes
The SBA has established so many interpretations of there various rules (new rules in 2016 updates SBA size standards and application of affiliation) that it can put you at risk. There are so many nuances that can cause the SBA to rule against you. We are prepared to help you with them.
When litigating legal issues related to government contract NAICS size standards requirements, our SBA size standard protest attorneys frequently provide legal advice and representation for business size concerns in a wide variety of subcontracting legal theories such as 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.
Requirements for Filing an SBA Small Business Size Protest
Meeting the Initial Size Protest Requirements Can Be a Problem
If you are contemplating filing an SBA size protest, you should first make sure that you understand the legal requirements. For example, making conclusory statements that the awardee “might be affiliated” with another company will more than likely get the protest dismissed as being speculative.
According to 13 CFR 121.1007(b) a small business size standard protest must be sufficiently specific to provide reasonable notice as to the grounds upon which the protested concern’s size is questioned.
- You must give some basis for the belief or allegation stated in the protest.
- A size standard protest that merely alleging that the protested awardee is not small or is affiliated with unnamed other concerns does not specify adequate grounds for the protest.
- No particular form is prescribed for a protest.
- Where materials supporting the protest are available, they should be submitted with the protest.
An SBA size standards protest must provide a factual and legal basis for having the SBA review the merits of the case. Your case must be specific. If either is lacking, the case may be dismissed. See the following examples:
- Size Appeal of Arrow Moving & Storage — Mayflower Transit, SBA No. SIZ-5902 (2018): The SBA dismissed a small business protest as insufficiently specific because it provided no evidence to support its allegation of affiliation through common financial and administrative control. Protestor gave no evidence that, even if there were affiliation, the combined receipts of the affiliated firms exceeded the applicable size standard).
- Size Appeal of NuGate Group, LLC, SBA No. SIZ-5821 (2017)(Area Office correctly dismissed a protest that failed to include any evidence as insufficiently specific).
Filing Deadlines for Small Business Size Standard Bid Protests
SBA bid protest regulations require that a size protest on a negotiated procurement normally must be filed within five business days after the protester learns the identity of the apparent awardee. 13 CFR 121.1004(a)(2)(i). A protester may also, however, protest a task or delivery order issued under an existing Multiple Award Contract, “if the contracting officer requested a new size certification in connection with that order.” Id. § 121.1004(a)(2)(ii).
- An untimely size protest must be dismissed. Id., at § 121.1004(d).
- the same rules apply to the various government agencies
We Litigate at Various Forums and Handle A Multitude of Small Business Legal Matters Every Day
As government contract and SBA size protest lawyers with over 30 years of experience, Watson & Associates, LLC frequently litigate and appear before the various forums such as the US Court of Federal Claims, ASBCA, CBCA, SBA Office of Hearings and Appeals, and the US Court of Appeals for the Federal Circuit.
What Are Common Problems That Small Business Make During an SBA Size Protest?
There are a variety of dangerous pitfalls that either intervenor (awardee company alleged to have violated SBA regulations) or bid protestors make. One of the most common mistakes made by the protestor is the inability to articulate the legal and factual basis. 13 CFR 121.1007(b). In addition, companies filing a size protest are not familiar with the nuances and legal analysis required for the various possibilities for affiliation.
As the intervenor or small business awardee, common mistakes made when defending the allegations include:
Only addressing the allegations made by the protestor: This is a costly mistake because the SBA is not bound to make decisions solely on the protestor has alleged. When responding to SBA Investigations, your goals is to provide as much legal and factual reasons why the SBA should not find affiliation based on other reasons.
- Failure to provide a complete response can cause a surprisingly dangerous outcome in the SBA’s size determination.
- Failure to provide a more detailed response can harm your ability to appeal to the SBA Office of Hearings and Appeals (SBA OHA).
Falling Short of Making Your Arguments and Defenses at The SBA Level. Why is This?
As size protest lawyers, we often see that companies fall short at the SBA level. The general rule is that you cannot raise new issues on appeal. Therefore, you want to be very specific and detailed at the lower level.
- Failure to preserve your rights for appeal can cost you the contract
- The SBA business size standards decisions do not have to be perfect, just reasonable.
At Watson & Associates, LLC we provide legal advice and representation to companies that either file or defend SBA size protest cases.
What are SBA Size Standards?
SBA size standards are usually given by the number of employees or average annual receipts which represents the largest size that your business (including subsidiaries and affiliates) may be to remain classified as a legitimate small business for SBA and federal government contracting programs. Business size standards vary by the type of industry that your company is in. Depending on the industry, your size standard could be 500 employees or it could be 1,500 employees.
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 in a size protest cases 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 or the various small business programs.
- In evaluating claims under SBA size protest and SBA affiliation rules, the appeals court will base its analysis on the solicitation and proposal before it.
How Does Affiliation Impact My Company Under the Ostensible Subcontractor Rule?
If your proposed subcontractor is a small, similarly-situated entity that follows the relevant rules, the ostensible subcontractor rule does not apply. See Size Protest Appeal of The Frontline Group, SBA No. SIZ-5860 (2017)
As a Small Business, Are You Found Affiliated When You Hire the Incumbent Employees?
The SBA can find affiliation in its size determination decision under ostensible subcontractor rule if your company plans to hire the large business incumbent’s workforce en masse, and almost entirely rely on that large business as the subcontractor for managing the contract. See Size Protest Appeal of Automation Precision Technology, LLC, SBA No. SIZ-5850 (2017).
Can You Be Found in Violation of the Ostensible Subcontractor Rule If As the Prime You Only Manage the Contract?
More than likely yes. The SBA can find you affiliated with the subcontractor if you are only responsible for management while your subcontractor provides all primary and vital requirements of the contract. See NAICS Code Business Size Appeal of Hamilton Alliance, Inc. SBA No. SIZ-5698 (Dec. 8, 2015).
Call Watson’s Size Protest Lawyers and SBA Business Size Standard Appeal Lawyers
Given the flexibility and expertise to address the various legal issues that come up in SBA size standards appeals and bid protest cases, clients can rely on us potentially resolve legal issues that may involve various moving pieces. There are many commercial attorneys that are not always experienced with SBA regulations that govern business size standards and government contracting.
Call our Law Firm at 1-866-601-5518 to schedule a FREE Initial Consultation.
More Information About Business Size Standards and NAICS Code Size Determination Protests
For Help meeting US Protests and the SBA size standard definition under 13 CFR 121.103, Call our SBA size protest lawyers and NAICS law firm today for help with other than small business size protest litigation and appeals.