Georgia Tech Procurement Assistance Center

Five things you should know about responding to size protests

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There are many things to know about responding to size protests.  One could probably fill a book with the information.  But if you need to know just the basics, here are five things you should know about size protests that can help you be prepared if your company is facing a size protest.

1. The response time is short.

Normally, your company only gets three business days to respond.  So, be sure to work quickly to put together as much information as possible in that short amount of time to respond to the size protest allegations and any additional questions from SBA, while also completing the Form 355.  It’s also a good idea to have these records (such as tax returns or employee count documents) handy so that you can respond quickly.

2. But you can ask for an extension.

The SBA Area Office will often grant an extension and allow you to submit your response electronically.  Indeed, the SBA’s rules state that SBA may grant an extension.  It used to be that the SBA Area Office would require a paper copy of the response, but many Area Offices will accept submission by electronic means.  Regardless, be sure to reach out to the Area office as soon as possible to request a specific extension and to confirm that electronic submission is allowed.  While not required, the Area Office will often grant these short extension requests.

Continue reading at:  SmallGovCon

In a size protest, respond to SBA’s requests or there could be an adverse inference

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The Small Business Administration (“SBA”) Office of Hearings and Appeals (“OHA”) has a very clear-cut set of guidelines for deciding appeals of contractor’s size protests in connection with set-asides or other size issues.  In response to a size protest, an Area Office of SBA requests the protested concern to submit an SBA Form 355 (detailed information on the protested concern) and other information, including a response to a protest.  Contractors are required to respond or are likely to suffer from their nonresponse.  Size Appeal of Apogee Engineering, LLC, SBA No. SIZ-6078, Nov. 5, 2020, is an excellent example of the fate of a protested concern that failed to respond and was unable to successfully defend against a size appeal because of an adverse inference.

Continue reading at:  Public Contracting Institute

SBA OHA: for calculating receipts, look to tax returns

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To calculate a company’s size under a receipts-based NAICS code, the SBA will add the company’s total income to its costs of goods sold, as those amounts are reported on its tax returns.  In fact, the SBA’s regulations are clear that it must use these reported amounts to determine a company’s size status.

What happens, then, when a company’s taxes show “income” that might not really reflect money in the company’s accounts?  The SBA’s Office of Hearings and Appeals recently considered this question, and affirmed a company’s ineligibility based on the income reported in its tax returns.

Continue reading at:  SmallGovCon Blog

 

New OHA decision regarding class waivers of the non-manufacturer rule creates uncertainty

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Those familiar with Federal procurements know the general rule: If you submit a proposal against a solicitation despite disagreeing with one of its provisions, you usually waive the right to challenge that provision in the future.  That rule applies to bid protests at both the Government Accountability Office (“GAO”) and the Court of Federal Claims.  In Size Appeal of Cypher Analytics, Inc. d/b/a Crown Point Systems, SBA No. SIZ-5986 (2019), the Small Business Administration’s (“SBA”) Office of Hearings and Appeals (“OHA”) recently showed that the general rule does not necessarily apply to SBA size protests.

Continue reading the article at: Government Contracts Insights

5 questions answered about size protests

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Wouldn’t you like to know five things about size protests and appeals?

Matthew Schoonover, partner at Koprince Law LLC, recently wrote an interesting article about size protests, specifically answering five questions you need to know about.  These are the questions he posed:

  1. What is a size protest?
  2. Who can challenge a company’s size?
  3. How are size protests decided?
  4. Can I appeal an adverse size determination?
  5. What else should I know about size protests and appeals?

Click here to read the answers to these questions: http://smallgovcon.com/five-things/size-protests-and-appeals/

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