OHA will hear your appeal now
SBA's Office of Hearing and Appeals is adding a judge as a thousand 8(a) firms could appeal their suspensions
SBA suspended 1,091 businesses from the 8(a) program last week, in the aftermath of the data-call deadline on January 19, a Federal holiday. Hundreds of those suspended firms are expected to appeal to SBA’s Office of Hearings and Appeals. To say that OHA is a small office is an understatement: The office has only one full-time judge.
But, just in time for the flood of 8(a) appeals, OHA is expanding capacity. Administrative Law Judge Brian J. Haring has started to hear SBA cases. Haring is an ALJ with the Office of Medicare Hearings and Appeals, part of the Department of Health and Human Services. He is working on SBA cases through an interagency agreement between SBA and HHS.
Haring supplements the work of longtime SBA OHA Judge Christopher Holleman. Holleman has been deciding cases for OHA for over 30 years. Holleman became SBA’s lone full-time judge in 2025 when another judge left Federal service and was not back-filled.
OHA has had these surges before.
During the COVID pandemic, SBA routed appeals of the Paycheck Protection Program to OHA. Borrowers could appeal SBA loan review decisions and loan-forgiveness decisions. The scale of PPP appeals dwarfs what could come out of SBA’s 8(a) suspensions.
For PPP appeals, SBA created a standalone website, appeals.sba.gov, but that is not being used for 8(a) suspension appeals. Instead, 8(a) appeals need to be emailed to OHA or submitted through their Hearings and Appeals Submission Upload. That HASU application is a rudimentary upload page hosted at Box.com.
I started doing OHA appeals 18 years ago. Back then, I would walk upstairs to OHA and file in person. I had to hand in the filing by 4:30 p.m. The clerk there, Pat Lee, would stamp the filing with the date and sign to confirm receipt. Now everything is electronic. The basic operation and function of the office, however, is unchanged.
What does OHA do
OHA has limited jurisdiction, meaning it can only hear cases that are specifically assigned to it in a Congressional law or in an SBA regulation. For 8(a) suspensions, OHA’s jurisdiction is in a law. The Small Business Act deems an 8(a) suspension to be a “termination” and requires a termination to include an “opportunity for a hearing” before OHA.
That same law provides that one reason for a termination or suspension is “a demonstrated pattern of failing to make required submissions or responses to the Administration on time.”
Other areas where OHA can hear cases are: appeals of SBA size determinations; appeals of protest decisions in the HUBZone, women-owned small business, and service-disabled veteran-owned small business programs; and appeals of declines in the SDVOSB and VOSB programs. Those are appeals of SBA decisions. OHA also decides appeals of any agency’s assignment of a NAICS code to a contract. And, in one area, OHA makes the initial determination. That’s in protests of veteran-owned or SDVOSB status on set-aside contracts.
Veterans cases make up the largest portion of OHA’s docket. Last week, OHA issued decisions on three SDVOSB protests, all involving the Polaris GWAC pool for service-disabled veteran-owned small businesses. OHA rejected all three protests. In one of them, Sugarloaf Technologies, OHA approved the use of a “conformity clause” in a joint-venture agreement. Those conformity clauses state that the agreement’s provisions must be interpreted to comply with SBA regulations. The clause read:
Conflict with SBA’s Rules. If any provision contained in this Agreement is in conflict with or prohibited by SBA rules, regulations, information notices, or guidance concerning joint ventures, such provision(s) shall be null and void ab initio or interpreted in a manner that is consistent with SBA rules, regulations, information notices or guidance.
In the Sugarloaf case, that clause saved the joint-venture agreement from being noncompliant.
Cases about the 8(a) program are relatively rare. Of the 96 cases that OHA has decided in the past year, only 12 were about 8(a). And all but two of those were dismissals because of a settlement, withdrawal, or deficiency. OHA only issued two substantive cases about the 8(a) program last year. In both cases, OHA denied the appeal.
What to expect at OHA
Firms in the 8(a) program might be concerned about whether they will get a fair hearing at OHA, given SBA’s public statements. The SBA Administrator has called the 8(a) program a “vehicle for massive fraud and abuse.” And, as the acting Assistant Administrator for OHA, Judge Holleman reports directly to the SBA Administrator.
But OHA’s mission is to be impartial, objective, and independent. Congressional statute provides that OHA is to “impartially decide matters.” The office’s mission statement is to “provide an independent, quasi-judicial appeal of certain SBA program decisions.”
In my experience, OHA takes great pains to be impartial. The judges are textualists. This means they hew closely to the strict wording of the law. I’ve even been on the wrong side of that. My SBA colleagues and I lost a number of OHA cases by arguing that the law should say something as a matter of policy, when in fact the law was ambiguous. That’s actually how we ended up with the small-business M&A cliff earlier this month:
One area where OHA is reliably strict is timelines. For 8(a) suspensions, appeals must be filed within 45 days. It’s worth knowing what a “day” is in OHA practice. If an appeal arrives past that 45 days, OHA is very likely to dismiss it.
OHA also has detailed rules about service. In the old days, that used to mean faxing copies of every filing to the opposing party. Now it just requires cc-ing specified email addresses on your appeal and other submissions. The service rules are 13 CFR 134.403. For 8(a) suspensions, you need to send copies to 8aBD2@sba.gov and OPLService@sba.gov.
How OHA will handle the 8(a) suspensions
If you file at OHA, your appeal or protest goes first to a clerk. Clerks play a much bigger role than their title suggests. The clerk is an attorney who works closely with the judge to review facts, communicate with parties, and even write the decision. OHA usually has had three clerks. The number fluctuates based on caseload and staffing churn. You’re more likely to interact with the clerk than with the judge. And how you treat them may get back to the judge.
You also might wonder whether you should have a lawyer for your OHA appeal. Answering that verges on legal advice, so I’ll just say this. The other side has lawyers too (to paraphrase a Tony Kornheiser line). A lawyer in SBA’s Office of Procurement Law will receive an appeal of the 8(a) suspension.
Sometimes the OPL lawyer will review the case and find an error, and SBA will reverse the suspension. In other cases, the case will go to a decision. SBA’s recent track record on pure suspension cases is actually not very good. (“Pure” here means the suspension was not accompanied by a termination, as 8(a) terminations go through a slightly different process.) In one case, OHA lifted a suspension because SBA had apparently misplaced “23 pounds” of the participant’s documentation. In another, the SBA attorney failed to file an adequate record with OHA.
That said, OHA upheld a suspension and termination where the 8(a) firm failed to file documents “due to system malfunctions.”
For an 8(a) suspension, OHA’s legal standard is “whether the Government's interests need to be protected.” SBA noted in its press release this week that “about half” of the suspended firms have received contracts since 2021. The contracts total over $5 billion, SBA stated. (I confirmed that calculation; it’s $5.15 billion to be exact.)
That is a minuscule amount. The government issued $3 trillion in contracts over the past five years, $800 billion of which went to small businesses. So the suspended firms received only 0.1% of overall contracts, or just 0.6% of small-business contracts.
The distribution of contracts among the suspended firms is even more striking.
As SBA noted, 50% of the suspended firms did not receive a contract in the past 5 years. A vast majority of them—72%—received less than $1 million in contracts. And just 16 of the suspended firms won $50 million over those 5 years (an average of $10 million per year). Those 16 firms accounted for more than half of the $5 billion that SBA reported.
So, for the vast majority of the suspended firms, government contracting isn’t a big money-maker—if it makes them any money at all. That is a factor in whether they decide to appeal the suspension. And it might play into what “Government’s interests” need protecting.
One last note on the 8(a) suspensions: These are not governmentwide suspensions under FAR Part 9.4. Governmentwide suspensions—like what SBA levied on ATI Government Solutions—are far more serious. A governmentwide suspension prevents a contractor from receiving most types of contract actions, including new awards, options, and subcontracts that require approval. They aren’t limited to 8(a) contracts. The 8(a) suspensions, by contrast, do not prevent a company from receiving non-8(a) government contracts.
Given those stakes, some companies might decide not to appeal their suspensions. For those that do, be sure to follow OHA’s requirements. As my experience with the 4:30 deadline taught me years ago, OHA respects the letter of the law above all else.
With 20 years of Federal legal experience, Sam Le counsels small businesses through government contracting matters, including bid protests, contract compliance, small business certifications, and procurement disputes. His website is www.samlelaw.com.
This article is for informational purposes only and does not constitute legal advice.
Great article Sam! I remember those OHA days ....
Excellent article!
I'm glad to hear that OHA now has the service of another ALJ, although I worry that two judges still may not be enough to handle what is likely to be a massive influx of 8(a) suspension appeals.
Like you, my experience with the OHA judges is that they are fairminded, work hard to be impartial, and focus on the black-and-white letter of the rules whenever those will answer the question.