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 bid protests in addition to providing legal representation in size appeals to the SBA Office of Hearings and Appeals (SBA OHA). The law firm also represents federal government contractors in All States and helps them to avoid the most costly legal mistakes seen in SBA protest litigation.
Any interested party to a government contract award may dispute the winning firm’s small business size status. Generally, the company or its SBA bid protest lawyer must file the protest no later than five business days after unsuccessful bidders are notified. The protest must be submitted to the contracting officer who will then submit it to the SBA. Developing a sound small business size protest can be challenging for bidders. Mistakes that our attorneys help with include avoiding speculation and failing to provide sufficient information to meet SBA regulations. A protest that is insufficient or speculative in nature will be dismissed. Directions on how to file an SBA bid size protest can be found in 13 CFR 13 Part 121.1001-1008
Nationwide SBA Size Protest Lawyer Services
We Represent Both Protestors and Intervenors in SBA Size and Status Bid Protests
SBA size protest case analysis and review: Part of legal counsel and support includes the initial analysis of your SBA size protest. If you are filing the case, we look for the basic elements to avoid dismissal. The other key points include assessing the allegations and facts for proving affiliation under SBA regulations. Our is to also help clients to make the proper arguments that could convince the SBA that the awardee is other than small.
Representation for the successful awardee: As an interested party to the awarded contract, the awardee has to respond to the size protest. Our SBA size protest lawyers assist with the respective legal arguments and brief the SBA Area Office in addition to showing why the awardee’s arguments regarding affiliation should be disregarded. Another important aspect of our legal representation is to preserve any rights that our clients have for appeal. Many law firms miss this important aspect of an SBA-size protest.
SBA Size protest defense (Intervenor): As SBA bid protest attorneys, our primary goal is to defend against meritless claims and suspicion. This is grounds for filing a sine standard protest.
SBA protest affiliation analysis: The bedrock of any SBA size protest is proving affiliation under 13 CFR 121.103. Companies enter into teaming agreements, mentor-protege arrangements, and joint ventures but fail to properly assess the contractual relationship to see if the parties are violating SBA affiliation rules. Our SBA bid protest lawyers frequently litigate these disputes and are well-versed in this critical part of a government contract protest.
Appeals to SBA OHA: When the Area Office issues an adverse small business size determination, you will have to file a size appeal to SBA OHA. Our SBA bis protest lawyers can help you to assess the merits of the appeal.
Experienced with the various aspects of small business size protest litigation: 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 protests 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; family-owned businesses and affiliation; size appeal protest cases based on mentor protégé affiliation; and small business designation argument when rebutting legal presumptions by showing clear lines of fracture.
Drafting and Preparation of SBA Protests
Filing an SBA bid protest requires a thorough understanding. Sometimes government contractors make the mistake of crafting legal arguments and making allegations that fall short of SBA regulations and the legal requirements of a small business bid protest. Our SBA protest lawyers help you to reduce the chances of your case being dismissed as being untimely, speculative or failing to include facts sufficient to support the allegations of affiliation with the ostensible subcontractor. we help our clients to draft and prepare size protest letters and bid protest responses in a way that can increase your likelihood of prevailing. The facts of each case are different. Therefore, we help you to say the legal issues present in the case in a way that makes sense and more than likely meet the SBA bid protest requirements.
Who can file? Under SBA regulations, a size protest may be filed by “[a]ny offeror that the contracting officer has not eliminated from consideration for any procurement-related reason.” See13 CFR 121.1001(a)(1)(i). Your area office “must dismiss a protest filed by a party without standing to protest.” Size Appeal of Conrad Shipyard, LLC, SBA No. SIZ-5873, at 6 (2017) (citing Size Appeal of KAES Enters., LLC, SBA No. SIZ-5425 (2012), recons. denied, SBA No. SIZ-5435 (2013) (PFR)). Further, if an area office fails to dismiss such a protest and proceeds to issue a size determination, OHA “will vacate a size determination issued in response to a protest by a party without standing.” Size Appeal of A & H Contractors, Inc., SBA No. SIZ-5417, at 5 (2012)(quoting Size Appeal of MBI Corp., SBA No. SIZ-4356, at 4 (1999)). Find out from one of our SBA bid protest attorneys if you can file a size protest.
SBA Size Protest Defense – Responding to Bid Protest Allegations
Responding to an SBA bid protest is an important aspect of defending against allegations that your company does not meet SBA size standards. Understanding that the SBA Area Office can find affiliation in other areas that the protestor may not allege is very important. Our law firm helps you to cover these bases and to avoid some of the legal landmines that can get the contract award revoked. Therefore, our small business size protest lawyers always analyze your response arguments to avoid this common trap. As a successful awardee, it is your goal to protect your business interests and bottom line. You must convince the SBA through factual and legal approaches to show why the protestor has not met its burden of proof.
SBA Size Status Disputes and SBA Affiliation Compliance
Almost all SBA protest cases allege some form of affiliation or Ostensible Subcontractor Rule violation. Our SBA small business attorneys help clients to assess compliance with SBA affiliation rules and the requirements of 13 CFR 121. Many small firms find out too late that the arguments made in the protest letter, or in response to the SBA’s inquiries do not address the central legal issues. SBA affiliation compliance is one of our many highlights when litigation SBA size protest cases.
Avoid Costly Mistakes With Ostensible Subcontractor Rule Analysis
The Ostensible Subcontractor Rule is a very common topic in SBA bid protest litigation. An ostensible subcontractor is a subcontractor that is not a similarly situated entity, as that term is defined in 13 CFR § 125.1 , and performs primary and vital requirements of a contract, or is a subcontractor upon which the prime contractor is unusually reliant. As SBA size protest lawyers, we frequently deal with this complex topic during litigation.
SBA Size Appeals to SBA OHA
When the Area Office issues a size determination, you may believe that there are grounds for filing an appeal at the SBA Office of Hearings and Appeals in Washington DC. Watson & Associates SBA bid protest attorneys help clients file and intervene in size protest appellate cases. We represent both intervenors and protestors during SBA OHA size appeal litigation. We help by preparing the legal authority and legal briefs to advocate our client’s position and why the Area Office may or may not have committed reversible errors when making a size determination. When OHA makes an unlawful decision in a size appeal case, our government contract appellate lawyers will assess the decision and help you to decide whether there is merit to appeal to the U.S. Court of Federal Claims or the US Court of Appeals for the Federal Circuit.
Representative SBA Bid Protest Lawyer Cases
- 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 the 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 concludes 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 the 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
Deadlines & 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. A size protest must be received by the contracting officer prior to the close of business on the 5th day, exclusive of Saturdays, Sundays, and legal holidays, after the contracting officer has notified the protestor of the identity of the prospective awardee for the contract.
The filing deadline for a NAICS code small business size standard protest requires the filing party to deliver the written SBA protest to the contracting officer in person, by mail, email, or by fax.
NAICS Size Standards Protests FAQs
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 revenue from another company
- Not showing in your agreements that you make the final decisions
- Being unusual reliant on your subcontractor
- Hiring all management from incumbent contractors that could not qualify for the challenged contract
- 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. Contracting offices and SBA officials can initiate a small business bid protest without a deadline. When it comes to NAICS code size standards litigation, you must have what most SBA small business 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.
Where are Small Business Size 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 NAICS size standard bid protest cases to be dismissed? SBA NAICS size standard 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 on annual receipts or the 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 bid protest lawyers today for immediate help.
What does the SBA look for when conducting an investigation? When a 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.
Can affiliated companies still receive the contract? Yes. Simply because two contractors are deemed affiliated is not the end of the legal analysis. If the combined annual revenues between the two firms are less than the NAICS size standard amount, then the two companies will be still deemed as small for the current contract.
Do you have to hire an SBA 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 protest.
COFC & Federal Circuit Court of Appeals Small Business Size Protest AppellateCases
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 SBA bid protest lawyers, we understand that the future of your business is at risk and that you may be precluded from bidding on small business contracts. Our SBA protest lawyers and OHA appellate lawyers know the legal issues raised during the appeal process and can aggressively help you to file an appeal.
For Size Protest Litigation and OHA Appeal Cases, Call an SBA Size Protest Lawyers for a FREE Initial Consultation Today at 1-866-601-5518.