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 Office 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 Had No Jurisdiction to Hear VA SDVOSB Status Cases
The argument on appeal before SBA OHA was that the SBA failed to investigate whether the awardee was controlled by a service-disabled veteran under 13 CFR 125.10. The problem here was that the appellant’s lawyer was not aware that VA rules now give the Executive Director of VA’s OSDBU the authority and jurisdiction to decide any status protest regarding a VA SDVOSB set aside. See 48 CFR 819.307.
Under the authority granted in Public Law 109-461, VA is authorized to set aside contracts and/or award sole source contracts, to SDVOSB and VOSB firms.
At the time of this OHA appeal, there was no agreement between the VA and SBA to allow the SBA to have any jurisdiction over VA SDVOSB set-asides.
- The key is to see whether the procurement is one that the VA has set aside.
- The rule likewise suggests the OHA would not have jurisdiction to hear the appeal if the SBA does not have jurisdiction to address issues of VA eligibility.
- Allegations of SDVOSB small businesses size status does rest with the SBA.
For additional questions or help appealing the veteran status for VA SDVOSB set aside, call our bid protest lawyers at 1-866-601-5518. FREE INITIAL CONSULTATION.