PilieroMazza represented an intervenor in its successful size protest against Smart Data Solutions, LLC (Smart Data).  After the Small Business Administration (SBA) Area Office determined Smart Data to be other than small for an Air Force Air Combat Command procurement based on the ostensible subcontractor rule, Smart Data appealed to the SBA’s Office of Hearings and Appeals (OHA).  On appeal, Smart Data sought to overturn the Area Office’s decision by asserting, among other arguments, that Smart Data’s ostensible subcontractors were not the incumbents and that Smart Data would provide the key personnel and perform the project’s primary and vital requirements.  PilieroMazza intervened in the appeal on behalf of the intervenor, reviewed the Area Office record, and filed a response to the appeal noting several reasons why the Area Office’s decision did not contain clear errors of fact or law. 

In agreeing with PilieroMazza’s arguments, OHA held that Smart Data was affiliated with its ostensible subcontractors because those firms were the incumbents and would perform the primary and vital requirements.  Based on Smart Data’s proposal, OHA found unusual reliance because the primary and vital weather forecasting and maintenance requirements would be performed by the subcontractors, not Smart Data, and all of the key personnel are employed by the subcontractors.  OHA also noted that Smart Data’s lack of experience with the primary and vital requirements, and the proposal’s repeated references to “we” and “our” when discussing the Smart Data “team’s” capabilities and experience, indicated that Smart Data “knew it did not have the requisite experience to gain award of the contract . . . unless it took credit for the experience of or combined with [the ostensible subcontractors.]”

Another reason OHA upheld the Area Office’s decision was because Smart Data’s teaming agreements with the ostensible subcontractors indicated that Smart Data did not have sufficient bargaining power.  This was because the teaming agreements permitted the subcontractors to walk away from the arrangement if the procurement’s NAICS code changed.  Furthermore, OHA found that Smart Data’s proposal was indicative of a joint venture, and thus affiliation, due to Smart Data’s repeated and overbroad references to “we” and “our,” the establishment of an “Executive Committee,” and because the proposal failed to specifically describe the work each party would perform.