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.
The SBA’s Office of Hearings and Appeals will have authority to hear petitions for reconsideration of SBA size standards under a proposed rule recently issued by the SBA.
Once the proposal becomes a final rule, anyone “adversely affected” by a new, revised or modified size standard would have 30 days to ask OHA to review the SBA’s size standard determination.
Government contractors are expected to be aware of appeal deadlines even if an agency does not mention those deadlines in its decision notifications.
As one contractor recently discovered, a size appeal with the SBA Office of Hearings and Appeals must be filed within the regulatory time frame–and no extension will be granted if the SBA does not notify the potential appellant of the deadline.
A size appeal filed with the SBA Office of Hearings and Appeals may be submitted by email, but it is up to the appellant to verify that its email was received.
As demonstrated in a recent size appeal decision, OHA will dismiss an appeal that is not received by OHA within 15 days of the appellant’s receipt of a size determination–even if the appellant attempted to send the size appeal by email during the 15-day window.