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Size Protests, Size Determinations, and Certification Appeals SBA 8a Lawyers

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If you have recently submitted a government proposal and have also proposed a teaming partner or subcontractor, you can face a small business size appeal from an unsuccessful bidder. In this form of bid protest, the protestor challenges the size protest lawyers affiliation and bid defense attorneys washington dcsuccessful bidder as being affiliated with another subcontractor. The government contracts attorneys at Watson & Associates, LLC frequently file SBA Size Protests when there is evidence that the successful bidder has unreasonably relied on a subcontractor for the recent procurement. Our attorneys also defend against size protests for contractors in Washington, DC and nationwide. On your behalf, we will litigate, or defend against, a size status bid protest. Contractors are cautioned to now handle this challenge by themselves simply because the case law and regulations are somewhat tricky. Therefore, you should take advantage of our free initial consultation. See examples of recent representative government contracting cases.

Our size protest and affiliation services include:

  • Analysis of the relationship between the two contractors
  • Advising you on the merits of filing a size protest or your defense against this type of bid protest
  • Filing the required documents on your behalf
  • Responding to the SBA on your behalf
  • Appeal of adverse decisions
  • Consulting on teaming agreements and subcontracting relationships

Note: Deadlines for filing a size protest are extremely short. Contact our attorneys to avoid untimeliness or your case being thrown out.

Watson & Associates handles the various aspects of small business procurement to aggressively represent contractors seeking to file a size standard protest / size appeal, or to defend those subject to a bid protest. Our law firm frequently handles matters pertaining to:

  • 8(a) Program
  • HUBZone (Historically Underutilized Business Zone) Program
  • Limitations on Subcontracting
  • Joint Ventures
  • Mentor-Protégé Programs
  • Minority Businesses
  • NAICS Code Changes and Appeals
  • Regulatory & Program Compliance Audits
  • SBA Size Eligibility Protests & Appeals
  • Subcontracting Plans
  • Teaming Agreements & Subcontracts
  • Tribally-Owned Businesses
  • Veteran-Owned & Service-Disabled Veteran-Owned Small Businesses
  • Women-Owned Small Businesses

 

Size Status Determination

An offeror for a Government contract set aside for a small business certifies its status as a small business concern under the size standard applicable to respective NAICS Code. This self-certification may be challenged by the unsuccessful bidder in a size protest to the SBA Area Office. In response to a size protest; the SBA Area Office will make a formal size determination with respect to the protested concern. The adverse size determinations resulting from a size protest may be appealed to OHA. (OHA may use its discretion to not review the appeal.) Watson & Associates has considerable experience with affiliation and size determination protests.

Small Business Size Regulations specifying size standards and governing their use are set forth in Title 13, Code of Federal Regulations, part 121 (13 CFR §121). SBA’s size regulations pertaining to Federal procurement are also found in the Federal Acquisition Regulation, 48 CFR part 19.

Affiliation

Under the SBA size regulations, two business concerns are affiliated if (a) one concern “controls or has the power to control” the other or (b) a third party “controls or has the power to control” both concerns. When a size protest is filed with the SBA, your regional office will investigate the allegation to determine if affiliation exists. Matters reviewed will include:

  • Ownership and management
  • Previous relationships
  • Whether both companies are in the same line of business
  • Whether both companies have identical common investments or share identical economic interests
  • Whether the prime contractor is overly dependent upon the subcontractor to perform the project

 

Avoid the Ostensible Subcontractor Rule

Under the “ostensible subcontractor” rule, a contractor and a subcontractor will be treated as affiliated joint venturers if the subcontractor will perform “primary and vital” requirements of a contract or the contractor is “unusually reliant” on the subcontractor. This rule applies when the dominant firm is “ostensibly” a subcontractor of the small business but in reality has such power over the small firm that it can control contract performance. Under these circumstances, the contractor and the subcontractor will be considered affiliated. The SBA will combine the receipts or amount of employees for the purpose of size determinations. The general factors considered under the Ostensible Subcontractor Rule include:

  • Who will manage the contract?
  • Which party possesses the requisite background and expertise to carry out the contract?
  • Which party “chased the contract?”
  • What degree of collaboration was involved in the bid?
  • Whether the discrete task to be performed by each party or is there a commingling of personnel and material.
  • What is the relative amount of work performed by each contractor?
  • Which party will perform the more complex and costly contract functions?

In addition to the above factors, OHA and the SBA will also look at the “totality of the circumstances.”

 

Nationwide Assistance

 

Watson & Associates can represent small business es with alleged SBA Size standard protests in Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Florida, Georgia, Hawaii, Illinois, Indiana, Kansas, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Mexico, New York, North Carolina, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Carolina, Tennessee, Texas, U.S. Virgin Islands, Utah, Vermont, Virginia, Washington, Washington, DC, West Virginia, Wisconsin, and Wyoming.

Cities in which we represent contractors in size determination protests include Anchorage, AK; Atlanta, GA; Austin, TX; Chicago, IL; Colorado Springs, CO; 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. 

 

Contact us

To retain your government contract, or to file a size determination protest, contact the law firm of Watson & Associates, LLC. Call toll free at 1-866-601-5518.