Thursday, April 15, 2021

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Size Protest Barred by “Law of the Case” Doctrine; Size Appeal of Indigo Blue...

Size appeal arguing that SBA misapplied ostensible contractor is precluded by the law of the case doctrine. In a previous size appeal, OHA held that the appellant was affiliated with its subcontractor under the ostensible subcontractor rule. OHA remanded the case to an SBA Area Office to determine whether the two companies’ combined receipts exceeded […]
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SBA Appropriately Drew an Adverse Inference from Business’s Failure to Respond to a Request...

Appeal of an SBA decision finding business other than small is denied. The SBA initiated a size protest against the appellant and asked the appellant to respond. The appellant simply conceded that it was not small and declined to provide any other requested information. The SBA determined the appellant was not small, but the appellant […]
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Opa! ASBCA Finds Pro Se Greek Food Vendor Sufficiently Appealed Termination for Default; Appeal...

Government’s motion to dismiss for lack of subject matter jurisdiction is, for the most part, denied. The contractor filed a pro se appeal of a termination. In the notice of appeal and the complaint, the contractor asked the board to reinstate the contract. The government moved to dismiss arguing that the board lacks jurisdiction to […]
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Proposal Submitted Before SBA Implement Runway Extension Act’s 5-Year Look-Back Period Subject to Previous...

Size protest challenging SBA’s decision finding that protester was not small is denied. The protester was not a small business if one considered its receipts over the last three-year period. But the protester argued that the Small Business Runway Extension Act had changed the look-back period to five years. Under this five-year period, the protester […]
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Agency’s Decision to Terminate Contract Moots Pending Size Appeals; Blueprint Consulting Services, LLC and...

Agency’s motion to dismiss size appeals as moot is granted. Two unsuccessful bidders filed size protests challenging the awardee’s size. One of them also filed a GAO protest challenging the award. In response to the GAO protest, the agency took corrective action and terminated the contract to the awardee. Because the contract had been terminated, […]
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Time for Filing Status Protest Runs from the Notification of Award, Not From When...

Protest challenging SDVOSB status of awardee is dismissed. Protests challenging an awardee’s SDVOSB status must be filed within five business days of the notice of award. Here, the protester filed a protest seventeen days after award. The protester argued that it did not know the basis of its protest until after the five-day period had […]
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Time In Which to File Size Protest Begins to Run When Protester Receives Notice...

Appeal challenging dismissal of size protest as untimely is granted. A size protest must be filed within five business day of the notification of award. The SBA argued that the protest was untimely because the protester filed more than five days after the agency sent notification of award. OHA, however, opined that that notification of […]
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SBA’s Office Hearings and Appeals Lacked Jurisdiction to Hear Appeal Concerning Denial of Admission...

Motion to dismiss appeal of denied application for admission into SBA’s 8(a) Business Development program is granted. An 8(a) applicant may only appeal a denial of its application if the denial is based on a negative finding of social disadvantage, economic disadvantage, or ownership or control. Here, the denial was based on a finding of […]
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OHA Affirms that Nonmanufacturer Rule Does Not Apply to Set-Asides Under Simplified Acquisition Threshold;...

Appeal of a denied size protest is itself denied. The protester alleged the awardee of a small business set-aside was not small because the combined employees of the awardee and its affiliates exceeded the applicable size standard. OHA found that this allegation was based on conjecture. The protester also alleged that the awardee would not […]
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Size Is Determined As of the Date of Proposal Submission—Post Hoc Attempts to Comply...

Appeal of size determination is granted. The protester alleged the awardee was not a small business because it violated the ostensible subcontractor rule—that is, the awardee’s subcontractor appeared to be performing the primary and vital requirements of the contract. In response to the protest, the awardee made changes to its approach to ensure that the […]
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