Reminder: No NAICS Code Appeals of RFIs

NAICS code appeals can be powerful tools.  A change in a solicitation’s NAICS code–and corresponding change in the small business size standard–can significantly broaden or narrow the competitive playing field.  And statistically speaking, NAICS code appeals are often successful.

But NAICS code appeals are subject to strict rules.  As a recent SBA Office of Hearings and Appeals case confirms, NAICS code appeals cannot be lodged against presolicitations.

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NAICS Code Appeals: Discussions With Agency Don’t Extend Deadline

NAICS code appeals can be powerful, and while they’re infrequent, they often succeed.  But NAICS code appeals are subject to a strict, 10-day deadline–and that deadline isn’t extended by deliberations with the Contracting Officer.

In a recent NAICS code appeal decision, the SBA Office of Hearings and Appeals reiterated that the 10-day deadline isn’t affected by discussions with the procuring agency.

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NAICS Code Appeals: Infrequent, but Often Successful

Because the NAICS code governs the size standard used to determine whether a company qualifies as a small business, the choice of a NAICS code can dramatically affect the competitive landscape for a set-aside acquisition.

The only legal procedure for challenging the NAICS code assigned by the contracting officer is to appeal the assignment to the SBA’s Office of Hearings and Appeals. A NAICS code appeal can be an extraordinarily powerful tool for a business to challenge whether a contracting officer assigned the correct NAICS code in setting aside a procurement.

So how often are NAICS code appeals filed, and how often do these NAICS code appeals succeed? A recent GAO report has some answers.

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Successful NAICS Code Appeal Dramatically Alters Size Standard

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.

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Tick-Tock: NAICS Code Appeal Clock Keeps Running During Discussions

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.

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SBA OHA: NAICS Code Appeals Allowed On Unrestricted Procurements

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.

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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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