A NAICS code appeal can be a powerful vehicle for influencing the competitive landscape of an acquisition. A successful NAICS code appeal can dramatically alter a solicitation’s size standard, causing major changes in the number (and sizes) of potential competitors.
But a NAICS code appeal cannot be filed until the solicitation is issued. As the SBA Office of Hearings and Appeals recently confirmed, a NAICS code appeal cannot be filed with respect to a presolicitation.
NAICS code appeals, while little known, can be an extraordinarily powerful tool when it comes to affecting the competitive landscape of government acquisitions.
Case in point: in a recent NAICS code appeal decision issued by the SBA Office of Hearings and Appeals, the appellant prevailed–and obtained an order requiring the contracting officer to change the solicitation’s size standard from 500 employees to $15 million.
A NAICS code appeal ordinarily must be filed within ten days of the issuance of a solicitation–and a prospective offeror’s discussions with the Contracting Officer do not extend the deadline.
In a recent NAICS code appeal decision, the SBA Office of Hearings and Appeals confirmed that the ten-day clock keeps moving even while a prospective offeror is working behind the scenes in an effort to convince the procuring agency to change the NAICS code.
Federal agencies must classify procurements for supplies under the appropriate manufacturing or supply NAICS code, not under a wholesale trade or retail trade NAICS code.
In a recent NAICS code appeal decision, the SBA Office of Hearings and Appeals confirmed that supply procurements should not be classified under wholesale or retail trade NAICS codes–and rejected a prospective offeror’s claim that the agency should have assigned a wholesale trade NAICS code to the solicitation.
NAICS code appeals are now allowed on unrestricted procurements, so long as a change in NAICS code would affect the offeror’s size status for the procurement.
In a recent size appeal decision, the SBA Office of Hearings and Appeals confirmed that recent SBA regulatory amendments have overturned prior OHA case law prohibiting most NAICS code appeals on unrestricted procurements.
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.
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.