SBA Size Protest

BCTW"s government contract lawyers have decades of experience successfully assisting client's with their SBA size protests and status protests.   Many small businesses will eventually face a protest challenging their eligibility for a set-aside government contract. These are often filed in conjunction with a protest to the GAO.

A size protest will allege that your company is not small under the applicable NAICS code. The size protest will often claim that your company is not small because of ownership and control issues, affiliation with a larger company, as well as the ostensible subcontractor rule.  

Unlike protests to the GAO or the Court of Federal Claims where the protester has the burden to prove its allegations, in a size protest, your company will have the burden to prove that it qualifies as a small business for the procurement.  Understanding the SBA's regulations and case law interpreting the regulations will be vital to responding to the size protest.   

When faced with an SBA size protest, it is critical to have an experienced government contracts lawyer on your side.  If you lose the size protest, you will likely lose your contract award, and potentially be excluded from other set-aside procurements as well. 

The timeframe to respond to a size protest is very short.  Per the SBA regulations, a company has three business days to respond to the size protest, unless additional time is granted.  The response will include the submission of a completed Form 355, a slew of documents (e.g., bylaws, operating agreements, tax returns, teaming agreements, etc.), and a response to each of the protest's allegations. 

The SBA's Area Office will review all of the information it receives from your company, the protester, and from the contracting agency.  It will then make a size determination of whether your company qualifies under the SBA regulations for the set-aside.  The Area Office's size determination may be appealed to the SBA's Office of Hearings and Appeals (OHA).

The impact of losing your contract award because of a size protest can be monumental.  Let us help you defend your award.