SBA OHA Small Business Size Determination Protest

The situation

Patricia, 51, is the CEO of Clearview Technology Solutions LLC, an 8-year-old IT services firm in Arlington, Virginia with $3.2M in annual revenue and 22 employees. In January 2026 Clearview won a $4.8M IT support services contract from the Department of Energy under NAICS 541511 (Custom Computer Programming Services, $34M revenue size standard). Two weeks later, Patricia received an SBA Size Determination letter: "Based on the information provided, Clearview Technology Solutions LLC is NOT a small business under NAICS 541511 for this procurement. Clearview is found to be affiliated with TechPath Partners LLC and Innovacore Inc. through identity of interest and the ostensible subcontractor rule. Combined 3-year average receipts of the affiliated entities exceed the $34M size standard."

(a) The identity of interest finding is contestable. Patricia and her former business partner David Kowalski co-founded Clearview in 2018. They split in 2020, David now owns TechPath Partners. SBA found "identity of interest" because they share a former business relationship and Patricia testified in a deposition that she and David "still collaborate occasionally." Under 13 CFR 121.103(f), family members and former associates are affiliated when their interests align. But the regulation requires that they "act in concert", occasional collaboration without a shared economic interest is NOT sufficient. Patricia has documentation showing the two companies have independent operations, separate facilities, and no shared employees.

(b) The ostensible subcontractor finding may also be wrong. Clearview proposed using Innovacore Inc. as a subcontractor for 30% of the work (database administration). SBA found this triggered the OSR because the subcontractor performs "vital requirements" of the contract. The OSR generally applies when the subcontractor performs the primary and vital work, not when it performs 30% of a clearly defined sub-task. Recent OHA decisions have distinguished between "vital" (OSR applies) and "substantial but not vital" (OSR doesn't apply).

(c) She has 15 calendar days from receipt, and OHA accepts email filing. The OHA appeal can be filed by email ([email protected]). The filing must include: the appealing party's name and address, identification of the size determination being appealed, and a brief explanation of why the determination is clearly erroneous. The factual rebuttal is more important than legal argument at this stage.

Who receives this

Small government contractors (annual revenue $500k–$15M) receiving adverse SBA size determinations threatening to strip a contract award. Primary segments: (1) IT services and professional services contractors (NAICS 541xxx) where affiliation analysis is most complex (former partners, joint ventures, 8(a) mentors); (2) construction contractors where the ostensible subcontractor rule applies to major subcontractors; (3) manufacturing contractors where employee headcount affiliation (aggregating employees across related entities) is the key issue.

Why the agency will not advise you

SBA's Area Office that issued the size determination is represented by SBA General Counsel at OHA, the Area Office cannot advise the respondent firm on how to appeal. SBA's size standards and affiliation rules (13 CFR Part 121) are published regulations. OHA publishes its decisions (available on sba.gov), the body of OHA decisions shows the precise factual showings that succeed in overturning affiliation findings. The appeal brief template is structurally identical across cases (cite the CFR provision, provide the factual rebuttal with documentary evidence).

Key facts, with sources

• SBA size protests and appeals to OHA are filed under 13 CFR Part 121. A size protest must be filed with the contracting officer within 5 business days of bid opening (or, for negotiated procurements, within 5 business days of notification that a concern has been identified as a prospective awardee). The SBA Area Office issues its size determination within 15 business days of receipt of a complete protest. Either the protested concern or the protester may appeal to SBA's Office of Hearings and Appeals within 15 calendar days after receipt of the size determination. OHA accepts appeal filings by email at [email protected]. The most contested affiliation rules in OHA appeals: (1) Identity of Interest, do two individuals with an 'identity of interest' control both the protested firm and another entity, triggering affiliation? (2) The Ostensible Subcontractor Rule, does the proposed subcontractor perform primary and vital requirements of the contract, making the prime contractor appear to be an affiliate of the subcontractor? (3) Control, does an investor, lender, board member, or key individual have the power to control the protested firm, even without majority stock ownership? Size determination attorneys at Koprince McCall Pottroff LLC, Oles Morrison, and Rogers Joseph O'Donnell charge $3,000–$8,000 per appeal. Source: Size Appeals — U.S. Small Business Administration OHA · OHA Says: For a Size Protest, Bring the Receipts or Face Dismissal — SmallGovCon · SBA OHA Size Appeals — Koprince McCall Pottroff LLC

When to bring in a professional

Self-serve responses fit routine cases: clear facts, amounts a business can absorb, and a deadline still ahead of you. Bring in a licensed professional when the amount at stake is large relative to their fee, the facts are genuinely disputed, criminal exposure is possible, or the deadline has already passed. A short paid consultation to sanity-check your plan is often worth it even when you handle the filing yourself.

All sources for this guide

1. Size Appeals — U.S. Small Business Administration OHA
2. OHA Says: For a Size Protest, Bring the Receipts or Face Dismissal — SmallGovCon
3. SBA OHA Size Appeals — Koprince McCall Pottroff LLC