NAICS Code Appeals Allowed On 8(a) Set-Asides, Says SBA OHA

A NAICS code appeal can be filed even after a SBA District Office accepts the procurement for competition in the 8(a) Business Development (BD) Program.

In a recent decision, SBA Office of Hearings and Appeals rejected the argument that acceptance of a procurement into the 8(a) Program results in the approval of the NAICS code assigned to that procurement, thus preventing subsequent NAICS code appeals.  Had SBA OHA reached the opposite conclusion, the decision might have effectively excluded 8(a) contracts from the reach of traditional NAICS code appeals.

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NAICS Code Appeals: No New Challenges To SBA OHA Decisions

A NAICS code appeal cannot validly be filed against a NAICS code designated by the SBA Office of Hearings and Appeals.

In a recent decision, SBA OHA held that when SBA OHA determines the appropriate NAICS code as the result of a NAICS code appeal, that NAICS code cannot itself be attacked in a new NAICS code appeal.  The message to prospective offerors: participate in the initial NAICS code appeal, or hold your peace.

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SBA OHA Lacks Jurisdiction Over Set-Aside Decisions

The SBA Office of Hearings and Appeals does not have jurisdiction to review a contracting officer’s decision not to set aside a procurement for small business.

In a recent decision, SBA OHA dismissed a contractor’s contention that the procuring agency should have set aside a procurement for small business–and rejected the contractor’s underlying legal argument, as well.

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SBA Doesn’t Fix Incorrect NAICS Code Regulation; Protester Pays The Price

A contractor’s NAICS code appeal was dismissed as untimely, even though it was filed within the time frame expressly established in an SBA regulation.

In a recent decision, the SBA Office of Hearings and Appeals confirmed its earlier ruling that a NAICS code appeal must be filed within ten calendar days, despite an SBA regulation establishing a filing deadline of ten business days.

SBA OHA’s decision isn’t surprising in light of its prior ruling.  However, in my mind, the decision raises a question of fundamental fairness: should protesters continue to be penalized for the SBA’s failure to fix its conflicting timeliness regulations?

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SBA OHA: Increased Competition Not Part of NAICS Code Decision

When designating the NAICS code for a solicitation, the procuring agency should not consider which NAICS code will help increase competition and decrease the risks of unsuccessful performance.

According to a recent decision of the SBA Office of Hearings and Appeals, these factors should play no bearing on an agency’s NAICS code designation.  Instead, in most cases, the agency must select the NAICS code that best describes the principal purpose of the product or service being acquired.

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NAICS Codes and GSA Schedule Orders: An Important Exception

A Contracting Officer must designate the NAICS code which best describes the principal purpose of the product or service being acquired, right?

Not always.  As demonstrated in a recent SBA Office of Hearings and Appeals decision, when it comes to picking a NAICS code for a GSA Schedule task order, a Contracting Officer’s choices can be quite limited–and the “best” NAICS code might not be chosen.

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SBA OHA: Agencies Cannot Delay NAICS Code Selection

Perhaps the Department of Education took a cue from Congress, which has a reputation for kicking the can down the road, delaying major decisions until after elections (or month-long recesses).  In a recent SBA Office of Hearings and Appeals NAICS code appeal decision, ED decided to forego picking a NAICS code until after contract award.

SBA OHA was having none of it, and ED’s own lawyers even agreed–an agency’s NAICS code designation cannot be delayed until contract award.

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