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Size Appeals

 

  1. What is the time limit for filing a size appeal?

You must file your size appeal with OHA within 15 calendar days of receiving the size determination. 13 C.F.R. § 134.304(a).  OHA must receive your appeal by 5 pm EST on the fifteenth day.

  1. Where must I file my appeal?

You must file your appeal with OHA by email at ohafilings@sba.gov or by fax at (202) 205-7059.  Please call us at (202) 401-8200 to verify receipt.

  1. What else must I do?

In addition to filing your appeal at OHA, you must send a copy of the appeal petition and all attachments to:

  • The SBA official who issued the determination
  • The contracting officer for the procurement at issue
  • The business whose size is at issue
  • All persons who filed protests
  • SBA’s Office of Procurement Law, 13 C.F.R. § 134.305(b)
  1. What must I include with my appeal?
  • A certificate of service.  13 C.F.R. § 134.204(d).  The certificate of service shows that you sent a copy of your appeal to the people in the paragraph above.  Here is a sample certificate of service for a size appeal.
  • A copy of the size determination being appealed
  1. What must I put in my appeal?
  • The solicitation number
  • The contracting officer’s name and contact information
  • Your name and contact information
  • The factual basis of your case, legal argument as to why the size determination is in error, and requested relief (how you want OHA to decide the case), 13 C.F.R. §§ 134.203 and 305(a)
  1. What rules and regulations will OHA use when deciding my appeal, and where can I find them?

The regulations governing size appeals are available at 13 C.F.R. part 121.  OHA’s regulations are available at 13 C.F.R. § 134.101-317.  You may search OHA’s decisions interpreting these regulations in our database and cite to these decisions in your appeal.  Here is a list of some of our most frequently cited decisions of size appeals.

  1. I have filed my size appeal. Now what happens?

The OHA judge assigned to your appeal will issue a notice and order setting a date for the close of record.  All arguments and supporting documents must be received at OHA by this date.  If you do not receive a notice and order within a few days, call OHA at (202) 401-8200.  If practicable, the judge will decide the case and issue a written decision within 60 days of the close of record.

 

 

Information About Protective Orders

OHA has regulatory authority to issue protective orders. 13 C.F.R. § 134.205(e).  A protective order allows counsel for an opposing private party (generally a protestor) to have access to the entire appeal file, except for income tax returns and privileged information, while protecting the subject firm’s confidential and proprietary information.

OHA judges issue protective orders when both the protested concern (whose size or status is at issue) and a non-government protestor are parties to the appeal. A protective order is not needed when the only non-governmental party in an appeal is the concern whose status (or eligibility) is at issue, such as in 8(a) Business Development cases.

When an appellant is the protested concern, if it wishes to protect its confidential and proprietary information, it should file both redacted and unredacted versions of the appeal petition with OHA, serve the government parties both versions, and serve the protestor(s) only the redacted version. The protested concern may also request a protective order at that time. If the protestor’s counsel wishes to have access to the unredacted appeal petition and appeal file, protestor’s counsel should file and serve an appearance along with a request for a protective order. After OHA issues the protective order, each attorney representing a protestor should file and serve his or her application for admission under the protective order. After reviewing and approving the application(s), the OHA judge will order counsel admitted. Once admitted, the protestor’s counsel may then arrange to view, copy, or request delivery of the protected material.

When an appellant is the protestor, counsel should request the protective order at the same time the appeal petition is filed if counsel wishes to have access to the unredacted appeal petition and appeal file. After the OHA judge issues the protective order, the appellant’s counsel should apply for admission. Once OHA admits counsel under the protective order, counsel may then arrange to receive the protected material.

Parties must take appropriate safeguards to ensure protected information is not inadvertently released during delivery or transmission. For instance, marking the envelope or transmission page with the legend “PROTECTED INFORMATION ENCLOSED” is encouraged. Additionally, the first page of each document containing protected information must be clearly marked as follows:

CONTAINS PROTECTED INFORMATION NOT TO BE DISCLOSED EXCEPT IN ACCORDANCE WITH OFFICE OF HEARINGS AND APPEALS PROTECTIVE ORDER

 

Here is a sample application for admission under a protective order.  If you have any questions regarding protective orders, please call OHA at (202) 401-8200 and ask to speak with one of the staff attorneys.

 

 

 

 

 

DISCLAIMER: WE PROVIDE THIS LIMITED INFORMATION TO HELP SMALL BUSINESSES FILE AN APPEAL. COMPLETE INFORMATION REGARDING SIZE APPEALS TO OHA IS AVAILABLE AT 13 C.F.R. PART 121 AND 13 C.F.R. §§ 134.101-317.