Winning a government contract only to have your competition challenge your small business size can be frustrating and confusing. The unique laws governing NAICS small business size standards can also be tricky. How you engage in teaming agreements, joint ventures or subcontracting relationships can seriously impact the SBA’s recognition of your company as a small business.
Watson & Associates’ government contract small business attorneys and SBA size protest lawyers maintain law offices in Washington, DC and Denver, Colorado. The law firm frequently represents small companies throughout the United States to defend and file SBA size standard protest cases when there is a government contract award.
Nationwide SBA Size Protest Lawyer Services
With over 30 years of government service and federal contracting experience, our SBA size protest attorneys can handle disputes related to the totality of the circumstances, size protest based on common management, newly organized concern rule, Ostensible Subcontractor Rule and SBA 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 your SBA bid protest attorneys, we can help with:
- SBA protest review and strategic approach
- Case analysis
- Responding to small business size protests
- Legal briefs and filings
- Size protest defense and representation for intervenors
- Size Appeals to SBA OHA
- Appeals to the US Court of Appeals for the Federal Circuit
Representative Bid Protest Cases at SBA and OHA
- Size Appeal of Mechanix Wear LLC, SBA No. SIZ-6098(2021). Served as Intervenor on Appeal of SBA’s Size Determination. OHA denied the Appeal since the Appellant had
not demonstrated any error in the SBA’s Size Determination.
- Size Appeal of Contego Environmental, LLC, SBA No. SIZ-6073 (2020) (reverses Area Office’s finding concerning compliance with ostensible subcontractor rule because challenged firm’s proposal did not establish that it would be responsible for managing the primary and vital parts of the construction contract (September 22, 2020)- litigated by Watson’s SBA protest lawyers
- Size Appeal of HWI Gear, Inc., SBA No. SIZ-6072 (2020) (returns the case to Area Office because it did not adequately articulate a rationale to support its conclusion about the identity of the manufacturer of the end items) September 16, 2020 – litigated by Watson’s SBA affiliation attorneys.
- SBA Size Appeal: Appeal of SBA size Determination in a Construction Contract. The SBA’s size determination was clearly erroneous and contrary to the prior decision of the Office of Hearings and Appeals (OHA) in Size Appeal of Contego Environmental, LLC, SBA No. SIZ-6054 ). OHA granted the appeal is granted and the size determination was reversed in part and remanded in part. Size Appeal of Contego Environmental, LLC, SBA No. SIZ-6073 (September 2020) – litigated by Watson’s SBA lawyers
- OHA SBA Size Appeal. The appeal of SBA Size Determination concluding that the Awardee is a small business under the size standard associated with the procurement. HWI Gear, Inc. (Appellant), which had previously protested Mechanix’s size, contends that the size determination is clearly erroneous and requests that SBA’s Office of Hearings and Appeals (OHA) reverse or remand. OHA granted the appeal in part and was remanded to the Area Office for further review. (September 2020) – litigated by Watson’s SBA protest lawyers
- OHA Size Appeal. Represented Appellant in an SBA size determination,. SBA ruled that the awardee was small under the procurement. However, successfully challenged Ostensible Subcontractor Rule as to if the subcontractor will perform the “primary and vital” contract requirements. 13 CFR 121.103(h)(4). OHA granted the appeal in part and remained back to the SBA Area Office. (Docket SBA No. SIZ-6054) May 2020- litigated by Watson’s SBA lawyers
What are Costly SBA Size Protest Mistakes to Avoid?
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 relationships are 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
- Transferring 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 SBA bid protest 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.
The time limit for filing SBA Bid Protests
If the contracting officer is filing an SBA bid protest then there is no time limit for filing. This means that the contracting officer file before or after the contract award. This is strikingly different than a traditional bid protest where there are certain time limits for pre-award and post-award bid protests. Any other interested party with legal standing will have a deadline of five business days after unsuccessful bidders are notified. The filing deadline requires the filing party to deliver the written SBA protest to the contracting officer in person, by mail, email, or by fax.
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.
What causes small business size standard bid protest cases 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 an 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. If your company is the target of a bid protest, you must do more than just the bare minimum when responding to the SBA.
What are your options after an adverse formal SBA size determination?
After the SBA issues a formal small business 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 official SBA size determination.
What are the risks of receiving an adverse small business size standards decision?
If the SBA issues an adverse small business size determination decision based upon annual receipts or number of employees, 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. Call Watson’s SBA lawyers today for immediate help.
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 and any evidence that another company does control or even has the ability to control your business.
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. North American Industry Classification System 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. For more information, call Watson’s small business size protest.
Note: After filing the case yourself, it will be difficult to find a small business size protest attorney that will take on the case.
Federal Circuit Court of Appeals Small Business 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. As a size protest appellate law firm, we know that understanding that the future of your business is at risk and that you may be precluded from bidding on small business contracts, our SBA bid protest attorneys and appellate lawyers know the legal issues raised and can aggressively help you on appeal.
For Size Protest and OHA Appeal Cases Call an SBA Size Protest Attorney for a FREE Initial Consultation Today at 1-866-601-5518.