Almost a year ago, on July 19, 2017, the SBA’s Office of Hearings and Appeals (OHA) re-affirmed the SBA regulations, derived from statute, pertaining to Alaska Native Corporations (ANCs), Tribes, and Native Hawaiian Organizations (NHOs). Specifically, in Size Appeal of Synergy Solutions, Inc., SIZ-5843, Synergy Solutions, an individually owned business, alleged, through its law firm, Piliero Mazza, that an ANC subsidiary was affiliated with its sister subsidiary because it relied on select past performance in its family of companies within the confines of the solicitation. This assertion was made despite the fact that both the GAO and OHA have allowed this as a fully acceptable practice without affiliation. OHA found that the two companies, as part of the family of companies, may use the past performance, especially when allowed by the solicitation, as a part of the common ownership and management exception to affiliation for ANCs, Tribes, and NHOs, and, accordingly, are not affiliated.
OHA seemed to take particular exception to the arguments made by Synergy Solutions/Piliero Mazza against the ANC, finding that “Appellant’s are wholly without merit.” Id. at 8 (emphasis added). While not explicitly considering the previous GAO protest by Synergy Solutions, which was lost against the ANC, the arguments posed to OHA seemed to be related to the losing arguments posed in the GAO forum as well. Namely, the GAO found an argument untimely and also found that the Synergy Solutions, again represented by Piliero Mazza, allegations regarding the past performance reliance were ill-founded. As the GAO stated, “[i]n any event, the solicitation specifically allowed for the consideration of corporate experience and past performance. . . We therefore find no basis to question the agency’s determinations in this regard.” In the Matter of Synergy Solutions, Inc., B-413974.3 at 14 (emphasis added).