PilieroMazza represented an appellant in its successful appeal of an Small Business Administration (SBA) Area Office's determination that its proposal violated the ostensible subcontractor rule.  The ostensible subcontractor rule provides that when a subcontractor is actually performing the primary and vital requirements of the contract, or the prime contractor is unusually reliant upon the subcontractor, the two firms must be found to be affiliated.  In making its determination, the Area Office relied primarily on the the fact that the subcontractor had greater experience in the field.

In overturning the Area Office's finding of affiliation, the Office of Hearings and Appeals (OHA) stated that the Area Office "comes perilously close to making a responsibility determination, in making its own judgments as to Appellant's capacity to perform the contract."  OHA specifically states that these judgments should be left to the contracting officer and are outside the purview of the size appeal process.  Notably, OHA recognized that "[t]o place too much emphasis on the challenged firm's prior experience in making an ostensible subcontractor determination runs the risk of closing the door on new small firms entirely."