VOSB and SDVOSB protest and appeals

If a Veteran-Owned Small Business (VOSB) or Service-Disabled Veteran-Owned Small Business (SDVOSB) is awarded a Federal Government procurement (awardee), the following parties can file a protest:

• For sole source procurements
  SBA, VA, or the contracting officer may protest the proposed awardee’s VOSB or SDVOSB status.
• For all other procurements
  Any interested party may protest the successful business VOSB or SDVOSB status.  An interested party includes the contracting officer, SBA, or an unsuccessful small business concern that bid on a solicitation but did not win (offeror). 

Veteran status

In cases where the protest is based on service-connected disability, permanent and severe disability, or veteran status, the Judge will only consider a protest that presents specific allegations supporting the contention that the owner(s) cannot provide documentation from the VA, Department of Defense, or the U.S. National Archives and Records Administration to show that they meet the definition of veteran, service-disabled veteran, or service-disabled veteran with a permanent and severe disability.

Veteran ownership and control

In cases where the protest is based on ownership and/or control, the Judge will consider a protest only if the protester presents credible evidence that the concern is not at least 51% owned and controlled by one or more veterans or service-disabled veterans.

Ostensible subcontractor

The protestor may challenge that the prime contractor appears unduly reliant on one or more, non-VOSB or non-SDVOSB subcontractors, or that a non-VOSB or non-SDVOSB subcontractor is performing the primary and vital requirements of the contract. 

Joint ventures

A VOSB or SDVOSB joint venture may be protested regarding the status of the managing VOSB or SDVOSB joint venture partner or for failure to meet the requirements of § 128.402.

If the joint venture is found to be ineligible solely based on failure to meet the requirements of that section, the joint venture will be ineligible for the contract at issue. The finding of ineligibility is limited to that contract and will not affect the underlying eligibility of the VOSB or SDVOSB joint venture partner.

SBA and VA may file a VOSB or SDVOSB status protest at any time.

The contracting officer, SBA, or VA may file a VOSB or SDVOSB status protest at any time after the apparent awardee has been identified or after bid opening, whichever applies. 

For negotiated acquisitions, an interested party may protest the apparent successful offeror’s VOSB or SDVOSB status within five business days after notification by the contracting officer of the identity of the apparent successful offeror.  An interested party means the contracting officer, SBA, VA, any concern that submits an offer for a specific set-aside VOSB or SDVOSB contract or order, or any concern that submitted an offer in full and open competition and its opportunity for award will be affected by a reserve of an award given to VOSB or SDVOSB. 

For sealed bid acquisitions, an interested party must submit its protest by close of business on the fifth business day after bid opening.  Where the identified low bidder is determined to be ineligible for award, a protest of any other identified low bidder must be received prior to the close of business on the 5th business day after the contracting officer has notified interested parties of the identity of that low bidder.

The rule for counting days is in § 134.202(d).  Saturday, Sundays, and federal holidays do not count as business days.

Any protest received after the time limit is untimely, unless it is from SBA, VA, or the contracting officer. An untimely protest will be dismissed.

An interested party, other than SBA, VA, or the contracting officer, must deliver a VOSB or SDVOSB status protest to the contracting officer in person, by email, facsimile, by express delivery service, or by U.S. mail (postmarked within the applicable time period).

The VA, SBA, or the contracting officer must submit a VOSB or SDVOSB status protest directly to OHA in accordance with the procedures in § 134.204. The protest should include in the referral letter the information set forth in this section.

The contracting officer must forward to OHA any VOSB or SDVOSB status protest received, notwithstanding whether the contracting officer believes it is premature, sufficiently specific, or timely. The contracting officer must send all VOSB or SDVOSB status protests, along with a referral letter, directly to OHA, by email at OHAfilings@sba.gov, marked “Attn: VOSB Status Protest” or “Attn: SDVOSB Status Protest”.

The referral letter must include information pertaining to the solicitation that may be necessary for OHA to determine timeliness and standing, including:

• The solicitation number;
• The name, address, telephone number, and email address of the contracting officer;
• Whether the contract was a sole source or set-aside VOSB or SDVOSB procurement;
• Whether the protester submitted an offer;
• Whether the protested concern was the apparent successful offeror;
• Whether the procurement was conducted using sealed bid or negotiated procedures;
• The bid opening date, if applicable;
• When the protested concern submitted its initial offer which included price;
• When the protest was submitted to the contracting officer;
• When the protester received notification of the apparent successful offeror, if applicable; and
• Whether a contract has been awarded.

Your appeal should contain:

• The solicitation number
• The contracting officer’s name and contact information
• Your name and contact information
• A statement explaining why the protest determination is based on a clear error of fact or law

A protester seeking access to the SBA case file should request a protective order under § 134.205 in its initial protest.  Except for good cause shown, a protester must request a protective order within five days of filing the protest.  Even after issuance of a protective order, OHA will not disclose income tax returns or privileged information.

If, after viewing documents in the SBA case file for the first time under a protective order, a protester wishes to supplement a protest with additional argument, the protester may do so. Any such supplement is due at OHA no later than 15 days from the date the protester receives or reviews the SBA case file.

The offeror must file the VOSB/SDVOSB protest with the contracting officer, either in person, U.S. mail, or by email. The contracting officer must then forward the VOSB/SDVOSB protest to SBA’s Office of Hearings and Appeals.

A contracting officer must forward to OHA any VOSB or SDVOSB status protest received along with the referral letter to OHA by email at OHAfilings@sba.gov, marked “Attn: VOSB Status Protest” or “Attn: SDVOSB Status Protest”.

If the Judge determines that the protest is timely, sufficiently specific, and based upon protestable allegations, the Judge will issue a notice and order, notifying the protester, the protested concern, the Director, Office of Government Contracting (D/GC), SBA Counsel, and, if applicable, the contracting officer of the date OHA received the protest, and order a due date for responses.

If the Judge determines that the protest is premature, untimely, nonspecific, or is based on non-protestable allegations, the Judge will dismiss the protest and will send the contracting officer, D/GC, SBA's Associate General Counsel for Procurement Law, and the protester a notice of dismissal, citing the reason(s) for the dismissal.

The dismissal is a final agency action.

The protested concern, the D/GC, the contracting officer, and any other interested party (see § 134.1002(b)) may respond to the protest and supplemental protest, if one is filed. The response is due no later than 15 days from the date the protest or supplemental protest was filed with OHA. The record closes the date the final response is due.

The respondent must serve its response upon the protester or its counsel and upon each of the persons identified in the certificate of service attached to the notice and order or, if a protective order is issued, in accordance with the terms of the protective order.

No reply to a response will be permitted unless the Judge directs otherwise.

The Administrative Judge’s decision will be based on the case file and information provided by the parties.  The Administrative Judge reserves the right to request further information if necessary. The Administrative Judge will give greater weight to specific, signed, factual evidence over unsupported allegations and opinions.  The decision will be based on a preponderance of the evidence.  The protested concern has the burden of proving its eligibility.

The contracting officer may award a contract before the Judge issues a decision only if the contracting officer determines that an award must be made to protect the public interest and notifies the Judge and D/GC in writing of such determination.

A contracting officer may award a contract to a protested concern after the Judge either has determined that the protested concern is an eligible VOSB or SDVOSB, or has dismissed all protests against it.

A contracting officer shall not award a contract to a protested concern that the Judge has determined is not an eligible VOSB or SDVOSB.  If the contract has already been awarded, then the awarded contract shall be deemed void ab initio (invalid from the outset), and the contracting officer shall rescind the contract and award the contract to the next eligible concern in line for the award.

The contracting officer must update the Federal Procurement Data System (or successor system) and other procurement reporting databases to reflect the Judge's decision.

If the Judge finds the protested concern is not an eligible VOSB or SDVOSB, the D/GC must immediately remove the protested concern from the certification database.

A concern found to be ineligible may not submit an offer on a future VOSB or SDVOSB procurement until the protested concern reapplies to the Veteran Small Business Certification Program and has been designated by SBA as a VOSB or SDVOSB into the certification database.

Any party to the case may file a Petition for Reconsideration with OHA within twenty (20) calendar days of receiving the OHA decision.  The Petition for Reconsideration must show that the Administrative Judge made a clear error of fact or law in the decision.

One may appeal to OHA the denial of Certification and Decertification (VSBC status) in the SBA Veteran Small Business Certification Program (VOSB or SDVOSB). 

A denial of certification or decertification based on the failure to provide sufficient evidence of the qualifying individual's status as a veteran, or a service-disabled veteran are VA decisions and not subject to appeal to OHA.

Ownership and control of the business concern will be the only two issues that OHA will consider.

A business concern may file an appeal with OHA within ten (10) business days of receiving the VSBC denial or cancellation.

OHA will dismiss an appeal filed more than 10 days after the VSBC denial or cancellation.

The rule for counting days is in § 134.202(d).

OHA will dismiss an untimely appeal.

VSBC appeals must be in writing.  There is no required format for an appeal petition; however, it must include the following:

• A copy of the denial of certification or decertification and the date the appellant received it;
• A statement of why the denial of certification or decertification is in error;
• Any other pertinent information the Judge should consider; and
• The name, address, telephone number, and email address, if available, and signature of the appellant or its attorney.

In addition to filing the appeal with OHA, the appellant must serve copies of the entire appeal petition upon the Director, Office of Government Contracting (D/GC) and SBA Counsel at OPLservice@sba.gov.

The appellant must attach to the appeal petition a signed certificate of service meeting the requirements of § 134.204(d). Sample Certificate of Service for VSBC Appeals.

An appeal petition that does not meet all the requirements of this section may be dismissed by the Judge at his/her own initiative or upon motion of a respondent.

Once a VSBC appeal is filed, the D/GC must deliver to OHA the entire case file relating to the denial or decertification. The Judge will issue a notice and order establishing the timetable for transmitting the case file to OHA. The D/GC must certify and authenticate that the case file, to the best of his/her knowledge, is a true and correct copy of the case file.

Who may respond: The D/GC (or designee) or counsel for SBA may respond to the VSBC appeal.  The response should present arguments to the issues presented on appeal.

Time limits: The notice and order will inform the parties of the filing of the appeal petition, establish the close of record as 15 days after service of the notice and order, and inform the parties that OHA must receive any responses to the appeal petition no later than the close of record.

Service: The respondent must serve its response upon the appellant and upon each of the persons identified in the certificate of service attached to the appeal petition pursuant to § 134.1105.

Reply to a response: No reply to a response will be permitted unless the Judge directs otherwise.

The Administrative Judge will determine whether the denial of certification or decertification was based on clear error of fact or law.

The burden is upon the appellant to show, by a preponderance of the evidence, that an error has occurred.

However, the Administrative Judge will not allow evidence beyond the case file, unless the appellant has shown good cause.

The Administrative Judge’s decision will be based on the case file and information provided by the parties, while also reserving the right to request further information. The Administrative Judge will give greater weight to specific, signed, factual evidence over unsupported allegations and opinions. The Administrative Judge may also consider issues that were not raised in the pleading, the denial or cancellation letter.

An OHA decision is final. 

Where OHA dismisses an appeal of a D/GC denial or decertification, the D/GC determination remains in effect.

If the Judge grants the appeal and finds the appellant eligible for inclusion in the SBA VSBC certification database, the D/GC must immediately include the appellant in the VSBC certification database.

If the Judge finds the appellant is not an eligible VOSB or SDVOSB, the D/GC must immediately remove the protested concern from the VSBC certification database.

OHA’s decision on a VSBC appeal may not be further appealed.

However, any party that has appeared in the proceeding, or SBA, may request reconsideration by filing with OHA and serving a petition for reconsideration on all the parties within 20 calendar days after service of the written decision. The request for reconsideration must clearly show an error of fact or law material to the decision. The Judge also may reconsider a decision on his or her own initiative.