Joe Whitcomb
Birdon America, Inc. was recently engaged in an appeal process regarding a size determination made by the Small Business Administration (SBA). The SBA determined that Birdon America, Inc. does not qualify as a small business for the purpose of a procurement solicitation. This appeal was made to the SBA Office of Hearings and Appeals.
The original protestors in this case are Master Boat Builders, Inc. and Steiner Construction Company, Inc. Bollinger Shipyards, LLC is also involved in this case, as they are a potential subcontractor. Birdon America, Inc.'s appeal is timely, and the matter was brought before the SBA Office of Hearings and Appeals.
Background
In a previous decision, the SBA Office of Hearings and Appeals granted appeals from Master Boat Builders, Inc. and Steiner Construction Company, Inc., and subsequently sent the size determinations back to the Area Office for further review. The SBA Office of Hearings and Appeals specifically directed the Area Office to conduct a thorough review of three specific issues.
In response, Birdon America, Inc. submitted additional evidence to the Area Office to support their claim that they are not affiliated with Bollinger Shipyards, LLC. After careful consideration, the appeal was denied, and the size determinations were affirmed.
Evidence, Arguments and Counterarguments
During the proceedings, Birdon America, Inc. submitted multiple exhibits, including internal emails and PowerPoint presentations, as evidence to the SBA. The Area Office used the date of Birdon's initial offer to determine their size for the procurement. While the Area Office determined that the number of employees at Birdon did not exceed the size standard, they also found that Birdon failed to meet the requirement of using their own facilities to transform substances into the item being acquired. Additionally, Birdon was found to be non-compliant with the Nonmanufacturer Rule.
In response, Birdon argued that the Area Office made errors by requiring an explicit written agreement to lease the property. They believed that sworn declarations and additional evidence submitted during the remand process should have been considered. Birdon America, Inc. maintained that the Area Office applied incorrect legal standards and disregarded important facts when determining their small business qualification under the non-manufacturer rule.
Master Boat Builders, Inc. also presented their arguments during the proceedings. They contended that the appeal should be denied based on the "Doctrine of Collateral Estoppel" and the "Law of the Case" principles. Master Boat Builders, Inc. supported the Area Office's determination that Birdon America, Inc. did not comply with the nonmanufacturer rule.
Similarly, Steiner Construction Company, Inc. argued that the appeal should be denied under the "Law of the Case" doctrine. They highlighted that the additional evidence presented by Birdon fell short for multiple reasons.
After careful consideration, the administrative judge concluded that Birdon's attempts to relitigate the issues were without merit. It was determined that the Area Office reasonably assessed that Birdon fails to meet all the requirements of the non-manufacturer rule. As such, the appeal was denied, and the size determination was affirmed.
Learn more in our free eBook on Size Protests
As the value of government contracts increases, so does the likelihood your company, as the winning bidder, will face a size and standard protest from a disappointed bidder.
Defending a size and standard protest is at best annoying and, at worst, truly concerning. However, there are several things that can be done to protect your business well before a protest is filed, and few more in the unfortunate event you face a size and standard protest.
We invite you to read our free eBook on Size Protests, "A Summary of Size and Status Protests," and learn more about:
- Avoiding Small Business Association (SBA) Adverse Outcomes
- Small Business Association (SBA) Issues Proposed Rule Change
- Size Status Protest Dismissal Sustained by Office of Hearings and Appeals (OHA)
- HUBZone Program Needs Policing
- Changes Ahead for the Small Business Association (SBA) HUBZone Program
- Small Business Association (SBA) and The Federal Acquisition Regulatory (FAR) Council's Lack of Rule Making Confusing
- Small Business Association (SBA) Protest Regarding Two Classes of Stock
- United States Court of Federal Claims (CoFC) Overturns Center for Verification and Evaluation's (CVE) Revocation of Service-Disabled Veteran-Owned Small Business (SDVOSB) Status