Filing or Intervening SBA Small Business Size Protests

Filing or Intervening SBA Size Standards Protests

Oftentimes government contractors may want to file SBA size standards protest because they have reason to believe that the awardee does not meet the definition of a small business. However, given the short deadlines, companies have a difficult time explaining why the competitor is not a small business. This procedural requirement must be met.

Making allegations without facts to support the case will probably get the case dismissed.

  • Simply exceeding the size standard is not enough
  • You must show a factual and legal basis to withstand a motion to dismiss your case
  • Filing or intervening SBA size protests requires an understanding of the legal procedure
  • Meeting deadlines is critical

What is Legally Required When Filing SBA Size Protests? 

SBA small business size protest litigation requires you to show, under the set legal standard for government contract protests, why the awardee is not a small business. A sound SBA protest should align the supported allegations with relevant SBA regulations and case law. This makes the protest letter stronger and less subject to the government’s motion to dismiss.

Supporting information can be a challenge: Your small business-size protest must have as many supporting facts as possible. This can be challenging because you do not have internal financials or specific agreements with other contractors or alleged affiliates. See information about nonmanufacturer rule issues for small businesses.

No guesswork allowed: When you file an SBA size standards protest, you have to provide more than just conjecture or speculation. Providing credible facts is essential to getting a favorable result. Merely stating that you “believe” that another company is affiliated will get your case dismissed.

Factual and legal basis required for filing:  Your SBA size protest must meet the “legal and factual basis” requirements. This is where most small businesses acting without an experienced government contract law attorney fail at the very beginning.

  • You cannot submit additional information after a small business-size protest is filed.
  • You also cannot introduce new evidence on appeal that you did not originally file with your protest.

Intervening in SBA Size Standards Protests

As the successful Awardee, you have to defend your award and company revenues. When government contract protests are filed, the SBA will initiate an investigation. You only have a short time to respond. This can put government contractors in a tough position. To become an intervenor, you should promptly file a motion to intervene in the case. See information about standing to file a size protest. Not only do you have to promptly respond to the SBA inquiries, but you should also make legal arguments as to why the protestor’s position has no legal merit. Getting the proper legal representation can be helpful. If you are contemplating entering a case as an interested party, be sure to find an SBA Protest intervenor attorney to represent you.

The other side may file a motion to dismiss for lack of standing.  There are many reasons why contractors that intervene in an SBA-size protest might now be allowed to participate. A common example is if the intervenor did not submit a bid. If this fact is true then the court or SBA may deem that you are not an interested party and cannot be “adversely affected” by the size determination within the meaning of 13 CFR 134.302(a). OHA has repeatedly held that an affiliate, subcontractor, or subsidiary lacks standing to bring a size appeal on behalf of an actual offeror, because such entities have no “direct stake” in the outcome of the appeal. (Id. at 3-4, citing Size Appeal of Ma-Chis Lower Creek Indian Tribe

Enters., Inc., SBA No. SIZ-5333 (2012); Size Appeal of Doss Aviation, Inc., SBA No. SIZ-5648 (2015).

The federal  SBA Size Standards Protest Lawyer at Watson & Associates has over 30 years of experience with small business programs. We can help you to intervene or file your SBA size protests. Call us at 1-866-601-5518 for a FREE initial consultation.

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