Washington DC SBA Bid Protest Lawyers

When a Small Business Award Is at Risk — Understanding SBA Size Protests

Are you planning on filing an SBA bid protest because of alleged affiliation with the awardee and another company? Or, are you the successful bidder and your competition alleges that you have violated the Ostensible Subcontractor Rule under 13 CFR 121.103? Our Washington, DC SBA bid protest lawyers are help to help clients navigate through the complex SBA regulations, and protect what rights they have in the United States federal procurement process.

Knowing what to do next in either situation can be very tricky. Many protests are dismissed because they do not meet the technical requirements. On the other hand, intervenors may attempt to respond to the size protest but may not fully understand the rules.

For many small federal contractors, winning a government contract can mark a turning point — years of bidding, certifications, and careful growth finally lead to something solid. But for some, that moment is short-lived. A size protest can interrupt everything. You could lose a multimillion-dollar government contract.

A competitor may challenge your small-business eligibility. Or you’ve just lost an award and suspect the winner shouldn’t have been eligible at all. You’re handed a process you didn’t design, with deadlines you didn’t set, and consequences you may not have anticipated. It’s not always about who did something wrong. Often, it’s about who understands how SBA actually works — and who doesn’t.

13 CFR 121.1001 Who may initiate a size status protest or request a formal size determination?

You can file a small business size status protest if you meet any of the following:

(i) Any offeror that the contracting officer has not eliminated from consideration for any procurement-related reason, such as non-responsiveness, technical unacceptability or outside of the competitive range;

(ii) The contracting officer;

(iii) The SBA Government Contracting Area Director having responsibility for the area in which the headquarters of the protested offeror is located, regardless of the location of a parent company or affiliates, the Director, Office of Government Contracting, or the Associate General Counsel for Procurement Law; and

(iv) Other interested parties. Other interested parties include large businesses where only one concern submitted an offer for the specific procurement in question. A concern found to be other than small in connection with the procurement is not an interested party unless there is only one remaining offeror after the concern is found to be other than small.

Two Places Small Business Contractors Usually Stand

1. You won a contract — and someone filed a size protest against you.

You now have days to respond. Not weeks. The SBA will ask for:

• Tax returns

• Payroll and W-2 information

• Ownership and control documents

• Revenue across potentially affiliated entities

If you’ve grown fast, or if your structure has changed, what used to be safe may no longer be.

You don’t get a second chance to submit your response. The size determination becomes binding.

2. You lost a contract — and believe the awardee shouldn’t qualify as small.

This is common in competitive industries. You’ve done the homework, you’ve checked SAM.gov, and you know — or strongly suspect — that the winning business exceeds the SBA size threshold or is backed by a larger firm.

The problem: most size protests fail because of timing, framing, or insufficient evidence — not because the underlying claim was wrong.

When Filing an SBA Size Protest, Mistakes Are Easy to Make — Even With Good Intentions

Many size challenges don’t come from bad actors. They come from misunderstanding affiliation, using outdated size thresholds, or assuming past eligibility applies to a new contract. Some examples:

• A joint venture agreement that doesn’t meet SBA’s formal structure rules

• Family-owned entities with overlapping management are being treated as one business

• Rapid growth across related entities that tips the average receipts over the limit

• Misapplying the wrong NAICS code and certifying small when you’re not

Once flagged, those missteps can become part of a government protest — or worse, a False Claims Act investigation.

What the SBA Actually Looks At

When a protest is filed (or when you’re defending against one), the SBA doesn’t just ask “Are you small?”

It asks:

• What’s your revenue over the last five years?

• Who owns and controls the company — directly and indirectly?

• Do you share resources, office space, personnel, or management with another firm?

• Do you participate in any mentor-protégé agreements or joint ventures?

• Are you subcontracting more than allowed under the limitations on subcontracting rule?

And they measure all of this against the NAICS small business size standard assigned to that particular contract — not just your average standing.

Once the SBA receives a small business bid protest, it will review the request and notify both parties of its decision. If the protest is resolved in your favor, the contracting officer must re-evaluate offers and make a new award to your company. The timeline for processing small business-size protests varies based on a variety of factors.

The SBA area office will make a small business size determination in approximately 15 business days of receiving the protest.If the SBA determines that the protested business is small, or dismisses the protest, you may award the contract.

If the SBA determines that the winning business is not small, the business is not eligible for that contract. The ineligible business can’t become eligible for the contract by reducing its size after the SBA’s determination.

Timeline for SBA to Make a Small Business Size Determination

Meet Our Team: Top Small Business Size Protest Lead Attorneys

Theodore Watson – Managing Attorney (Former Federal Contracting Official)

Theodore Watson (Former Contracting Official, Retired Air Force Veteran, Government Contracts Attorney and U.S. Supreme Court -Admitted Attorney) leads the firm’s nationwide government contract litigation team to develop and respond to small business size protests or appeals. He understands the various nuances and adeptly handles legal issues in the U.S. government space. He has argued SBA cases before the United States Court of Appeals for the Federal Circuit.

Theodore Watson is a former federal contracting official with years of hands-on experience across multiple agencies. 22 years of government contact litigation experience size protest lawyer, he provides critical insight into:

• How contracting officers evaluate size protest allegations

• What evidence procurement officials rely on when making award decisions

• The practical realities of federal procurement operations

• Strategic considerations for both protesters and intervenors

Theodore is admitted to practice before the U.S. Supreme Court and leads our nationwide government contract litigation team.. Read more..

Cheryl E. Adams, Esq. (Former Federal Contracting Officer)

Cheryl E. Adams, Esq (Former Contracting Officer) is an Associate Attorney with Watson and Associates, LLC.  She is a former federal Contracting Officer with years of hands-on experience with all phases of federal procurement.  She brings to clients an intimate understanding of the Federal Acquisition Regulation (FAR) and T for C contract FAR termination for convenience government contract clauses, as an insider perspective on the SBA procurement processes of a federal government headquarters. 

Cheryl brings years of hands-on experience with all phases of federal procurement. She brings:

• Intimate understanding of the Federal Acquisition Regulation (FAR)

• Insider perspective on government procurement processes

• Experience working with government auditors

• Hands-on knowledge of how the government evaluates contractor compliance

When giving legal advice in SBA small business cases, She has worked side by side with government auditors and personally conducted government property audits.  She has handled contract awards ranging from micropurchases to major systems. Read more..

Jennifer N. Higgins, Esq. (Former SBA Senior Attorney 2016-2020)

Jennifer N. Higgings ( Former SBA Senior Attorney). From 2016 to 2020, Jennifer served as a senior attorney at the U.S. Small Business Administration. In this role, she was the singular point of contact for loan contract matters, communicating with borrowers on all legal and business issues. She drafted a wide range of commercial agreements, including contracts, and oversaw compliance with SBA regulations. Her work ensured strict compliance with relevant state and federal laws and governmental policies.

Jennifer served as a senior attorney at the U.S. Small Business Administration, where she was the singular point of contact for loan contract matters and oversaw compliance with SBA regulations. As a former SBA attorney, she brings:

• Insider knowledge of SBA policies and regulatory interpretation

• Experience drafting commercial agreements under SBA regulations

• Deep understanding of how SBA Area Offices and OHA apply size standards

• Strategic advantage in 13 CFR 121.103 affiliation attorney disputes

This combination of insider experience is why clients hire us instead of general litigation firms. See the rest of our team here.

For Those Under Small Business Fraud Scrutiny — The Concern Grows Quickly

Some small-business size protests reveal more than an eligibility issue. The SBA might refer your matter to an Inspector General or U.S. Attorney’s Office if they believe:

• A size certification was knowingly false

• You used a front company or pass-through to win an award

• You concealed relationships that should have been disclosed

• The same team is controlling “separate” companies bidding in the same industry

Even if there’s no intent to defraud, the False Claims Act doesn’t require criminal standards to apply. Violations tied to the NAICS size standard can trigger years of civil exposure or criminal liability — and damage reputations that took decades to build. Our SBA small business government contract fraud attorneys frequently address these types of cases.