SBA OHA Now Has Jurisdiction to Hear VA SDVOSB Status Cases

In December 2015, the Small Business Administration Office of Hearings and Appeals (SBA OHA) decided a case and ruled that it did not have jurisdiction to hear a size appeal of the SBA’ Area OHA Has No Jurisdiction to Hear VA SDVOSB Status AppealsOffice Size Determination. The procurement was a VA SDVOSB set aside but the protestor had no idea that OHA could not hear the appeal.

In that case, the Area of Office made a size determination finding that a company was affiliated under the newly organized concern rule, 13 CFR 121.103(g). The small business had no other affiliates but the combined average revenues of the two companies did not exceed the NAICS small business standard.

SBA OHA Now Has Jurisdiction to Hear VA SDVOSB Status Cases

Beginning on October 1, 2018, the U.S. Small Business Administration’s (“SBA”) Office of Hearings and Appeals (“OHA”) has jurisdiction over all service-disabled veteran-owned small business (“SDVOSB”) status protests when the purchasing agency is the. Department of Veterans Affairs (“VA”).  The VA does not decide SDVOSB status protests anymore. SBA OHA adjudicates SDVOSB status protests pursuant to 38 USC 8127(f)(8)(B) and 13 C.F.R. part 134 subpart J. 

Procedural Issues

The key point is that SBA OHA has original subject matter jurisdiction to hear the initial bid protest.

  • Does it have appellate jurisdiction over its own decisions?
  • Which court hears an appeal from OHA on SDVOSB status bid protest cases?

  • When there is a size protest to the SBA and a simultaneous SDVOSB protest to OHA on the issue usually reliance on a subcontractor non- SDVOSB subcontractor in contravention of 13 CFR 125.18(f) and 13 CFR 134.1003(c) who decides the issue?

Common Mistakes Made in SBA SDVOSB Status Cases

Corporate status and timely submission of VA Form 0877

Small business must timely submit their VA Form 0877 concerning change of ownership or the VA will cancel the firm’s SBA SDVOSB Status. See. Matter of Warrior Service Co., LLC, SBA No. CVE-214-A (2021).  If you fail to timely file the required documentation for your change in corporate status, the OHA will agree that the VA can cancel the firm’s SDVOSB Status.  See Matter of Greenwater Marine Sciences Offshore, Inc., SBA No. CVE-212-A (2021)

Franchise Agreements and Operating Agreements

SDVOSB franchise agreement and operating agreement should not contain contain provisions that restrict SDV’s ability to control the company

Status Changes Due to Criminal Convictions

The VA Amy choose to remove firm from VIP database of eligible SDV companies because firm failed to respond adequately to inquiry under 38 CFR 74.21 regarding its present responsibility due to conviction of two of its senior officials for bribery followed by consent judgment agreed to by firm to settle allegations in False Claims Act suit). See CVE Appeal of First State Mfg., Inc., SBA No. CVE-184-A (2021).

SBA SDVOSB Status Working Full Time for Another Company

Your status can be revoked if you fail to rebut presumption that your eligible member works full time for another firm due to lack of control the SDVOSB.

The above are but a few common mistakes made by veteran-owned small businesses at the certification stage. When there is a vet status protest filed, it may be too late to correct problems.

See How to Defend Against Service Disabled Veteran Owned Status

See How We Can Help You in Bid Protest Cases

For additional questions or help appeal the veteran status for VA SDVOSB set aside, call our service disabled status bid protest lawyers at 1-866-601-5518. FREE INITIAL CONSULTATION.

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