How to appeal a VA SDVOSB certification denial or cancellation

We’ve written a few blogs about how to file various appeals at SBA’s Office of Hearings and Appeals: PPP eligibility/forgiveness appeals, 8(a) denial appeals, size appeals, and NAICS appeals.

Today, we continue that series by discussing appeals from an SDVOSB CVE denial or cancellation.

Not too long ago, VA and SBA merged their separate SDVOSB regulations (yes, for years certain SDVOSBs had to comply with two sets of rules) into a single regulatory framework at 13 C.F.R. Part 125. But that consolidation was not absolute: the VA still runs its own separate SDVOSB program. VA still requires any SDVOSB wishing to contract with the agency to be formally certified by VA’s Center for Verification and Evaluation (CVE). (Whereas, for the time being, SBA’s SDVOSB program relies on self-certification.) In the certification process, CVE assesses an SDVOSB applicant against the eligibility requirements in 13 C.F.R. Part 125.

But what happens if CVE declines to certify an SDVOSB applicant (or cancels its certification) because, for example, it believes that the firm does not meet one of the ownership or control requirements? That’s where an appeal comes in.

You might reasonably think that some office at VA takes care of those appeals. But think again. Somewhat counterintuitively, if CVE denies or cancels an SDVOSB certification, the aggrieved applicant must appeal at SBA’s Office of Hearings and Appeals (OHA). (And, although, not the subject of this blog, if a firm wants to protest the status of another SDVOSB certified by CVE, it must also do so at OHA.)

Before talking procedure, it’s important to note that OHA does not review decisions based on an individual’s veteran or service-disabled veteran status. So, if CVE denies to certify a firm because the owner (holding at least a 51% ownership interest) does not him or herself qualify as a veteran or service-disabled veteran, that issue cannot be appealed at OHA. OHA will only consider eligibility issues related to the ownership and control requirements outlined in 13 C.F.R. Part 125.

Now for some nuts and bolts.

First, and foremost, timing: the appeal must be filed within 10 business days of receiving the denial or cancellation. OHA will mercilessly dismiss any late appeal.

The appeal itself should explain in detail why CVE’s decision was wrong. Depending on the issue, the arguments can get quite nuanced and typically require a firm grasp of the relevant regulations. It also helps to cite helpful OHA cases that have decided the same or analogous issues. Simply put, because the OHA judges are legally trained, they expect to see well-reasoned legal arguments showing a clear error of fact or law–the standard they use to assess an appeal’s merits.

After an appeal is submitted, CVE then has a relatively brief window to transfer its file–i.e., all the documents it used to reach its denial or cancellation decision–to OHA. CVE will also likely submit a written response to the appeal defending its decision.

Once OHA has the appeal, the case file, and CVE’s response in hand, it will render a decision. OHA has a soft target of issuing its decision within 60 days, but it could be more or less depending on the appeal’s complexity. If the OHA judge finds that the firm is an eligible SDVOSB, CVE must immediately include or reinstate the firm its its database of verified firms.

If you have questions about CVE appeals or any other kind of OHA appeals (size appeals, NAICS code appeals, 8(a) denial appeals, PPP eligibility/loan forgiveness appeals), give us a call at 913-354-2630.