Based on new rules that take effect on May 10, 2023, the U.S. Small Business Administration (SBA) Office of Hearings and Appeals (OHA) will now hear appeals from Historically Underutilized Business Zone (HUBZone) status protests. PilieroMazza and others advocated for this change for some time, and it is now a reality. This is a welcome development to put the HUBZone program on par with the other small business programs and allow HUBZone firms to avail themselves of the appeal process at OHA.
The new appeal rules are limited to HUBZone status protest decisions. That means HUBZone firms cannot appeal HUBZone applications or recertification determinations to OHA. Nevertheless, the new appeal process at OHA for HUBZone status protests is a significant development because it means firms that disagree with a HUBZone status protest decision will have the ability to seek an independent review from the administrative law judges at OHA. Additionally, as OHA begins to issue rulings on HUBZone status protest appeals in the coming months, the HUBZone community will benefit from the development of case law precedent and regulatory interpretations from OHA on the often-confusing and complex HUBZone rules.
Some of the key characteristics of the new HUBZone appeal process are similar to appeals of status protests under SBA’s other socioeconomic programs. Regarding timeliness, interested parties must file their appeal within ten business days after receipt of the HUBZone status protest determination. Once the record closes, OHA will issue its decision “insofar as practicable” within forty-five days. The scope of OHA’s jurisdiction includes appeals from any HUBZone status protest challenging:
- an apparent successful offerors’ (including joint ventures) status as a HUBZone firm on a HUBZone contract,
- whether a HUBZone prime contractor is unduly reliant on a non-similarly situated entity subcontractor, or
- if a non-similarly situated subcontractor is performing the primary and vital requirements of the prime contract.
If you have questions regarding the Final Rule or need assistance in filing or defending a HUBZone status protest or OHA appeal, please contact the authors of this client alert, Jon Williams or Daniel Figuenick, III in our Government Contracts Group.
