NAICS Code Challenges Must Show why the Code Chosen is Incorrect, OHA Says

We’ve all seen cases of agencies assigning NAICS codes to solicitations that just seem…off. But, unless a contractor can show that the code chosen was clearly erroneous, government contractors will simply have to make do with what they’ve been given. The OHA recently handed down a decision confirming this.

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OHA: Engine Repair Isn’t the Same as Engine Overhaul for NAICS Code Purposes

Contracting officers are given significant discretion in choosing NAICS codes for procurements. But, as decision makers, they aren’t infallible. As a recent OHA case shows, using the NAICS Manual can help small business contractors challenge an incorrect NAICS code.

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Yes, An Agency Can Change the NAICS Code from One Iteration of a Contract to the Next

As the incumbent contractor, you’re excited to bid on the successor contract. The day it’s posted, you dash to fbo.gov, pull up the solicitation, and breathe a sigh of relief: the contract is still exclusively a small business set-aside. But wait! Under the assigned NAICS code your business doesn’t fall below the size standard.

Can the agency change the NAICS code from one iteration of the contract to another? Sure, so long as the selected NAICS code meets the regulatory standard.

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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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GAO Reports on How Contracting Officers Select NAICS Codes

A newly released Government Accountability Office report provides a rare peek behind the curtain of how contracting officers assign North American Industry Classification System codes.

Contracting officers are required by 13 C.F.R. § 121.402(b) to designate the NAICS code that “best describes” the work to be performed. It sounds simple enough, but the report reveals that it can be tricky.

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