SBA Proposes New Rules for Office of Hearings and Appeals to Contemplate CVE Appeals and Protests


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New rules have been proposed to enable contractors the ability to file protests with the Small Business Administration Office of Hearing and Appeals in order to challenge the Service-Disabled Veteran Owned Small Business or the Veteran Owned Small Business status of the company in the VetBiz database. These rules would permit a contractor to appeal a denial.
When the rules have been finalized and implemented, there will be more protections in place for the SDVOSBs and VOSBs. This will also consolidate eligibility requirements for the SDVOSB as mandated by Congress. The regulations were published in the current Federal Register for SBA’s proposals and rules on September 28, 2017. The rules that have been proposed for changes are in two categories of Centers for Veteran Enterprises protests and appeals. This is to protest certain aspects of these businesses and rules as well as appeal when a denial for inclusion has been received by a veteran or service-disabled veteran.

The SBA has proposed to provide the Office of Hearing and Appeals the decision for SDVOSB and VOSB eligibility protests for Veteran Affairs findings. The existing rules and not the new ones will apply for the SDVOSV protests with non-VA findings. These are and will continue to be evaluate under previous rules regarding these matters. Some issues that govern these concerns has to do with who is permitted to protest. Both the Secretary of the VA, his or her designated person or the contracting officer that has been awarded a VA contract are all permitted to protest these new rules.

Protests and Stipulations

While a VA is permitted to file a CVE protest at any point, if one has been filed for a VA contract, it must be within five business days from the point of notification of the awardee’s identity. However, a contracting officer is given permission to file whenever during the lifetime of the VA contract. The protests must be filed with the corresponding contracting officer when done so by private parties. Contracting officer and those of the VA are able to file directly with the OHA. If these matters change, it is important to contact the correct authority so that the appropriate point of contact is made.

For a CVE protest to be valid, it must be submitted in writing. There is not necessary format for the protest, but it needs the solicitation or contract number attached, name and information for the contact, signature of the protestor and the lawyer connected as well as the allegations that may be help by credible and viable evidence of the protest not meeting eligibility requirements for inclusion in the CVE database and structure. If any of these pieces of information are left out, the OHA will reject or deny the protest and return the document to the protestor.

Appeals with the Database Inclusion

The SBA’s proposed rules would permit companies to appeal directly to the OHA when veteran-owned entities are denied inclusion in the CVE database or if their inclusion has been cancelled. To do so, the owner may appeal per the new rules, but he or she must do so within ten business days from the time the denial or cancellation has been received. Any that are received by the OHA after this time are rejected. Copies must be sent to the VA and the appeals may be filed directly to the OHA when they are ready and include all necessary information.

Appeals are similar to the protests and must be filed with the OHA within the ten business days in writing, but there is no actual format needed. The appeal itself must have a copy of the denial or cancellation that was received and the date it was received, a statement why this cancellation or denial is incorrect or in error and the contract data with the signature of the appellant or lawyer that has been hired to assist with these matters. For a successful appeal, the appellant has the burden of proof set upon him to demonstrate that the denial or cancellation was due to an error of fact or the law.

Legal Support in an Appeal or Protest
Many rules that existed before and after the changes and proposed alterations may be confusing to the veterans that own a small business. It is important to hire a lawyer to clear up confusion, ensure the protest or appeal is filed correctly and assist through these difficult matters.

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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer.

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