Size/Status Protests & Appeals

I recently authored an article for Strategic Consulting Solutions, Inc. (SCS) GovCon Advisor – a monthly news source for the government contracts industry. The article outlines the requirements of the Small Business Administration’s (SBA) All Small Mentor-Protégé Program (ASMPP), focusing on the Mentor-Protégé Agreement (MPA) and the recent Hendall case. As I point out, “The Hendall case is a great example of one of the primary business development benefits under the ASMPP – the ability for a large business and small business to form a joint venture and pursue a small business set aside contract as a team. Without the ASMPP JV affiliation exception – these businesses would normally be considered affiliates and unable to pursue the opportunity as a joint venture.  The case also highlights the importance of carefully drafting the MPA and being very specific as to the benefits the protégé will receive.”

The full article, “SBA’s All Small Mentor-Protégé Program Provides Critical Affiliation Exception for Eligible Joint Ventures,” is available on the SCS website.

According to American Express OPEN, “For the first time in history, the U.S. government has awarded 5 percent of federal government contracting dollars to women-owned small businesses—a big achievement for both the government and the approximately 9.4 million women-owned small businesses across the country.” On Thursday, March 17, I have the honor of presenting “The Impact of New Contracting Rules for WOSBs” at the 5th Annual Small Business Forum in Nashville, Tennessee. The session will address the unique issues related to WOSB size and status protests, as well as how to defend (or challenge) an award at the GAO. To register or learn more, visit the SBA website. Hope to see you there!

A recent size appeal at the Small Business Administration (SBA) serves as a good reminder to government contractors to verify actual receipt of email appeals or risk having their protest dismissed as untimely. The SBA recently dismissed a size appeal for this very reason. Size Appeal of Supplies Now, Inc., SBA No. SIZ 5655 (2015) involved a set-aside procurement for office supplies. Supplies Now, Inc. filed an initial size protest against EZ Print Supplies that was deemed untimely and dismissed at the SBA. After receipt of the initial size determination on February 3, 2015, Supplies Now submitted its appeal the Office of Hearings and Appeals (OHA) via email on February 18, 2015. The SBA rules require a size protest appeal be filed within 15 business days after size notification. While the appeal was sent within the 15 day time period, OHA never actually received the appeal. In order for an appeal to be considered “filed” it must actually be received by OHA. Furthermore, Supplies Now, waited weeks to contact OHA after receiving no response during that period. An acknowledgement from the email system was deemed insufficient. SBA reiterated that an appeal is not considered filed until it is actually received, and while email is a permissive method of delivery, “the sender is responsible for ensuring a successful, virus-free transmission.” For those reasons OHA dismissed the appeal as untimely.

This case serves as an important reminder to those who wish to file a size protest or size appeal via email. Given OHA has no discretion to extend or waive the deadline, it is imperative to ensure your appeal is actually received. In the Supplies Now decision, OHA even encourages senders to contact OHA to verify receipt.

Earlier this year, Geoff Orazem founded Eastern Foundry, an incubator for government contracting companies in Washington, D.C. The veteran-owned business will leverage professional service providers, coaches, mentors, and BD support teams to provide structured and personal coaching for small businesses seeking government contracts.

We had a great time meeting with Geoff and his clients in their brand new building this week. Bryan and I gave a lunch presentation on the nuts and bolts of the bid and size protest processes at SBA, GAO and the Court. We also explained the advance planning and litigation strategy when pursuing and defending against a protest.

If you are interested in hearing our Protest 101 Presentation, contact me at toverman@bassberry.com.

Service-Disabled Veteran-Owned Small Businesses (SDVOSBs) are often protested concerning their eligibility in the small-business program. The VA generally has a great deal of discretion as to the factors it considers in determining eligibility. But can the VA rule a company ineligible as an SDVOSB without any notice or opportunity to address a specific reason for ineligibility? A recent case in the Court of Federal Claims, AmBuild Company, LLC v. United States, No. 14-786C (Oct. 10, 2014), provided an answer to this question.

AmBuild was the apparent lowest-cost bidder on a VA solicitation set-aside for SDVOSBs. The second lowest bidder, Welch Construction Inc., filed a protest challenging AmBuild’s SDVOSB status. Welch alleged that AmBuild was not controlled by a service-disabled veteran due to common ownership or management with other firms and did not meet the size requirements for a SDVOSB. The protest was considered by both the SBA and the VA Center for Verification and Evaluation (CVE), and each rejected Welch’s contentions.

Continue Reading Recent Decision Reinstating Company as SDVOSB

On October 20, Law360 published an article that I authored titled “A Large Loophole in the Ostensible Subcontractor Rule.” In the article, I analyze a contractor’s ability to file an ostensible subcontractor size protest under a task order award, as addressed in two recent cases (Strata-G Solutions and U.S. Information Technologies Corp.) before the Small Business Administration’s Office of Hearings and Appeals. To read the full analysis, click here.

We are dusting off our boots and heading to Tennessee. We’ll be at the SCS Annual Government Contracting Seminar in Oak Ridge, TN on October 28.

The conference is designed specifically for government contractors and will cover various topics relevant to the industry including compliance and proposal writing.

Our presentation, “Bid Protests and SBA Size/Status Protests: Filing and Defense Strategies” will include the following components:

Continue Reading Upcoming Seminar on October 28, 2014: Bid Protests and SBA Size/Status Protests: Filing and Defense Strategies