On May 22, 2013, the Small Business Administration Office of Hearings and Appeals ruled against the Appellant is a SBA Size Protest. (Size Appeal of The Trevino Group, Inc., SBA No. SIZ-5472 (2013). The size appeal was untimely because it was filed more than 15 days after the SBA made the Size determination.
In accordance with 13 CFR 134.304(a), an SBA size protest appeal must be filed at OHA within fifteen days of after you receive the size determination from the SBA.On February 14, 2013, the U.S. Department of Veterans Affairs (VA) issued solicitation VA257-13-B-0123 (IFB) for roof replacement at the VA Medical Center in Dallas, Texas.
The Contracting Officer set aside the procurement entirely for Service-Disabled Veteran-Owned Small Business Concerns, and assigned North American Industry Classification System (NAICS) code 238160, Roofing Contractors, with a corresponding size standard of $14 million in average annual receipts.
Small Business Size Protest Time Lines are Very Short Under 13 CFR 134.304
When you are challenging the size of a small business, timeliness cannot be based upon a traditional bid protest. SBA size protest appeal rules are very specific. Having a government contract and size protest lawyer can save you the distress of having your case dismissed.
In a small business size protest appeal OHA has no discretion to waive or extend, the deadline for filing an appeal. 13 CFR 134.202(d)(2)(i)(A), 134.304(c); Size Appeal of Autonomic Resources, LLC, SBA No. SIZ-5453 (2013). SBA regulations specifically state that a size protest filed prior to bid opening “will be dismissed as premature.” 13 CFR 121.1004(e).
Although OHA does not have the ability to waive small business size protest deadlines, if you are asked to “show cause why the size appeal should not be dismissed, you want to focus on finding a mistake from the SBA or some other viable reason. In such a situation, you may be granted the ability to proceed with the appeal. However, OHA decisions are very sparse in favor of an appellant.