• Joshua Duvall

SBA OHA Reaffirms Short Deadline (and Place) for Filing NAICS Code Appeals

A recent Small Business Administration ("SBA") Office of Hearings and Appeals ("OHA") decision reaffirms the short timeliness window for filing North American Industry Classification Systems ("NAICS") code appeals at OHA. Because a successful NAICS code appeal can shape the competitive landscape (i.e., by changing the size standard for a procurement), contractors should be mindful of the quick deadline in order to take advantage of the process.


The NAICS Appeal of Regency Consulting, Inc., SBA No. NAICS-6101 (2021) involved a challenge to the Department of Veterans Affairs' ("agency") decision to assign NAICS code 561320, Temporary Help Services ($30 million size standard), to a solicitation for specialty nursing services in support of the Eastern Colorado Healthcare System. [1] The appellant thought the NAICS code should be 621399, Offices of All Other Miscellaneous Health Practitioners ($8.0 million size standard).


The timeline is as follows:


  • April 14 – the agency issued the solicitation.

  • April 24 – the appellant e-mailed the CO and requested the agency change the NAICS code to 621399 – with an $8.0 million size standard – because "NAICS codes beginning with 62 apply to Healthcare and Social Assistance, while codes beginning with 52 apply to Administrative and Support and Waste Management and Remediation Services."

  • April 28 – the appellant forwarded the April 24 e-mail to OHA, requesting that it “Please see the attached certificate of service for NAICS change request.”

  • May 13 – the the agency issued Amendment 0003, which provided the following answer as part of the Q&A process: "[the agency] will allow proposals from both NAICS 561320 and 621399."

  • May 25 – appellant certified to OHA that it submitted its NAICS code appeal on April 28.

  • May 26 – because the appeal appeared to have been filed more than 10 days after the agency issued the RFP or any amendment affecting the RFP, OHA ordered appellant to show cause why its NAICS code appeal should not be dismissed as untimely.


Here, OHA dismissed the appellant's NAICS code appeal as untimely because it was filed at OHA more than 10 calendar days after the agency issued the solicitation. [2] In so doing, OHA also reiterated two important points worth noting: NAICS code appeals may be filed only at OHA [3] and "deliberations with a procuring agency, which do not result in any change to the solicitation, do not extend the [NAICS] appeal deadline." [4]


To be sure, however, OHA also discussed whether Amendment 0003 (Q&As) invoked a timeliness exception; specifically, where an amendment puts into question the original NAICS code selection. [5] In that regard, OHA explained that the type of changes that could affect the NAICS code or size standard are “a change in the NAICS code designation itself, a change in the stated size standard, or a change in the Performance Work Statement (PWS) that called into question whether the NAICS code designation was still appropriate.” [6]


Ultimately, OHA determined an exception did not apply because Amendment 0003 "did not expressly change the NAICS code or size standard assigned to the solicitation and did not make revisions to the Statement of Work." As a result, OHA concluded that the shot clock for filing the NAICS code appeal started on the date the agency issued the solicitation.


Takeaway


NAICS code appeals are a powerful tool for contractors because the process can be used to shape the field of competition (i.e., $30 million size standard vs. $8 million size standard). But, to take advantage of the appeal process, contractors must be mindful of the quick filing deadline and remember that the proper place for filing a NAICS code appeal is at OHA.


__________


[1] According to the appeal decision and information on the solicitation at www.SAM.gov.


[2] 13 C.F.R. § 121.1103(b)(1) ("An appeal from a contracting officer's NAICS code or size standard designation must be served and filed within 10 calendar days after the issuance of the solicitation or amendment affecting the NAICS code or size standard.").


[3] 13 C.F.R. §§ 121.402(d), 121.1102, and 121.1103(b)(2)(i); NAICS Appeal of Trans Aero Ltd., SBA No. NAICS-5443 (2013).


[4] NAICS Appeal of Metris, LLC, SBA No. NAICS-5700, at 2 (2015) (quoting NAICS Appeal of R. Christopher Goodwin & Assocs., Inc., SBA No. NAICS-5382, at 2 (2012)).


[5] NAICS Appeal of Kalotech, SBA No. NAICS-5665, at 2 (2015) (citing NAICS Appeal of Stephen Coakley, SBA No. NAICS-4754 (2006)).


[6] 13 C.F.R. § 134.304(b); NAICS Appeal of Kalotech, SBA No. NAICS-5665, at 2 (2015); see also NAICS Appeal of DCX/CHOL, SBA No. NAICS-4925 (2008) (citing SIC Appeal of Jing Xing Technologies, Inc., SBA No. SIC-4396, at 4 (2000)).


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#govcon #bidprotest #matross #naicsappeals



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