When you finally get your contract award, the last thing you want to deal with is a small business size protest case to the SBA. Whether you are the successful offeror or the unsuccessful offer, the impact of having to deal with allegations of violating SBA size standards can seriously impact your bottom line. If you are found to have violated SBA regulations you may want to seriously consider hiring experience size standard protest lawyers to represent you.
- The rules are tricky
- The deadlines are short
- Failure to adequately respond to the SBA could mean being barred from bidding as a small business
- Failure to adequately file a proper size standard protest letter could get the case dismissed right away.
30 YEARS OF FEDERAL PROCUREMENT EXPERIENCE. WE OFFER NATIONWIDE HELP FOR SMALL BUSINESSES.
SBA BID PROTEST LAWYERS HELPING COMPANIES PROTECT THEIR INTERESTS. GET A FREE INITIAL CONSULTATION
As small business owner bidding on federal government contracts, understanding the various legal nuances that come up in an SBA government 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.
- Get immediate help from NAICS attorneys that understand the complex legal issues regarding small business size standards and small business designation in written protests.
- If you are the protestor, our OHA size standard protest law firm helps you to focus on making sure that the important issues in your are raised at the SBA level because you generally cannot admit new evidence on appeal (this important aspect is commonly missed by non-government attorneys.)
- Our SBA size protest lawyers guide you to the facts that are important to the outcome you seek by applying relevant case law (citing legal authority at the SBA level can also bolster your credibility.)
- Get direct and honest answers to the serious issues presented in your 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 government protestors or intervenors facing tough issues with government contracts small business requirements that can cost them the awarded contract (intervenor) or help the protestor get another bite at the apple. See results from cases that our office has handled.
OHA & SBA SIZE PROTEST ATTORNEY & NAICS LEGAL SERVICES
NATIONWIDE HELP WITH SMALL BUSINESS QUALIFICATIONS AND WRITTEN PROTESTS FOR PROTESTORS OR INTERVENORS
Litigating SBA 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 bid protest lawyers and NAICS 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
- 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 in government contract protest or meeting the requirements to file a NAICS Code size protest, call our SBA bid protest lawyers at 1-866-601-5518.
SBA small business size standards lawyers have to use specific techniques and legal strategies to stand a reasonable chance of prevailing in a small business size protest. Depending on the allegation in the initial protest, the path to success can be improved. However, top government contract attorneys that litigate cases involve OHA and SBA size protests also know that the SBA is not just limited to what the protestor alleges. Knowing how to develop the facts, assessing your business documents and applying the case law, sets the stage for your initial impression to the SBA or SBA OHA in a size appeal.
SBA size standards attorneys specializing in small business size determination case must have a very thorough understanding of court procedures, small business rules and regulations, rules of evidence both at the SBA and OHA (The Federal Rules of Evidence are relaxed in SBA size protest cases). The key to keeping the contract as an intervenor or winning the case as the protestor weighs heaving on the facts of each case.
- Before filing or responding to allegations, you must always know the law that applies.
- Understand that the SBA is not only bound by what the protestor alleges in the protest
- In order to respond to a size protest, you must address every area that the SBA can target to find affiliation (most cases are lost due to this critical point
YOU MUST UNDERSTAND SMALL BUSINESS RULES AND SBA SIZE STANDARDS REGULATIONS
Your lawyer should always understand the various issues presented in an SBA size standards protest case. Small business rules and regulations are very confusing when it comes to affiliation or violation of the ostensible subcontractor rules of engagement.
- Some issues that have developed from the recent 2016 SBA small business rules and regulations have not been fully developed by the Courts.
- This is why having the right SBA bid protest attorneys in place can make a substantial difference when litigating what is the size of a small business.
GET HELP WITH VARIOUS SBA REQUIREMENTS, SBA SIZE APPEALS AND NAICS COST SIZE DISPUTES
The SBA has established so many interpretations of the various rules about small business qualifications (new rules in 2016 updates Small Business Administration 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 Code size standards requirements, our SBA size 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.
13 CFR 121 REQUIREMENTS & FILING AN SBA SIZE PROTEST
Understanding Rules Regarding Small Business Qualification Under 13 CFR 121 and 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 government contracts small business 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) , small business size standards bid protests must be sufficiently specific to provide reasonable notice as to the grounds upon which the protested concern’s size is questioned. This is a crucial area where our size standard protest attorneys can help.
- You must give some basis for the belief or allegation stated in the government contract 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 government protest.
- Where materials supporting the protest are available, they should be submitted with the protest.
An SBA size standards government contract 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).
HOW TO FILE AN SBA SIZE PROTEST?
Normally, only an interested party such as an unsuccessful bidder or the contracting officer files an SBA size protest.
Interested parties file the SBA Government Contracting Area office serving the area in which the protested business’ headquarters is located. protest to the contracting officer. The contracting officer then sends the size protest to the
SBA BID PROTEST FILING DEADLINES
SBA small business size standards 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) governs this type of government contract protest timeline. 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 small business 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 BUSINESSES MAKE IN SBA SIZE PROTESTS?
There are a variety of dangerous pitfalls that either intervenor (awardee small business concern 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 of why the awardee violated the SBA size standards. See 13 CFR 121.1007(b).
In addition, small business concerns filing a size protest are not familiar with the nuances and legal analysis required for the various possibilities for affiliation. As a result, the SBA can dismiss the case for not meeting the requirements of a government contract protest.
As the intervenor or small business awardee, common mistakes made when defending the allegations of not meeting small business qualifications 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 small business 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 OR DEFENSES AT THE SBA LEVEL? WHY IS THIS?
As SBA bid protest lawyers and NAICS attorneys, we often see that small business concerns 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 small 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.
SBA Size Definitions & FAQs
What are SBA Size Standards?
Small Business Administration 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.
- A business is considered small by comparing its size to others in the same industry.
- SBA size standards varies 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.
To Meet the SBA Small Business Definition 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 when considering whether or not there is a violation of the SBA small business definition.
- 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 determination protest and SBA affiliation rules, the appeals court will base its analysis on the solicitation and proposal before it.
How Does Affiliation Impact My Small Business Concern 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 small business concern 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).
NATIONWIDE AND OVERSEAS HELP FOR FEDERAL CONTRACTORS
Our Federal SBA size protest appeal lawyers provide legal counsel to defense 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 federal contract termination appeal lawyers today for immediate help. 1-866-601-5518. We help with government contract cases in Dubai, Afghanistan, Iraq contractors and Saudi Arabia.
Cities in which our Washington DC small business size determination appeal attorneys offer legal counsel and government contract litigation include Anchorage, AK; Atlanta, GA; Austin, TX; Chicago, IL; Colorado Springs, CO; Houston, San Antonio, Wichita Falls, Dallas, TX; Denver, Colorado; Indianapolis, IN; Las Vegas, NV; Los Angeles, CA; Miami, FL; Philadelphia, PA; San Antonio, TX; San Diego, CA; San Francisco, CA; San Jose, CA; Santa Clara, CA; and Tampa, FL.
CALL WATSON’S SBA SIZE PROTEST & SMALL BUSINESS SIZE PROTEST LAWYERS
Given the flexibility and expertise to address the various legal issues that come up in 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 size determination regulations that govern small business size standards and government contracting.
Call our size standard protest law firm at 1-866-601-5518 to schedule a FREE Initial Consultation.
More Information About Business Size Standards and NAICS Code Small Business Size Determination Protests
For Help meeting government contract protest timelines about small business qualifications and the SBA size standards 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.