Appealing the NAICS code a procuring agency assigns to a set-aside solicitation can be a powerful tool: after all, if the NAICS code and corresponding size standard change, it can dramatically alter the competitive playing field. But if a company wants to file a NAICS code appeal, it must file with the SBA Office of Hearings and Appeals, not the GAO, which lacks jurisdiction to hear challenges to NAICS code designations—something the protester in BlueStar Energy Solutions, B-405690 (Dec. 12, 2011) learned too late.
In the BlueStar Energy Solutions case, the protester filed a GAO bid protest, alleging various errors in an evaluation. One of the protester’s arguments was that the agency had improperly designated NAICS code 221112 (Fossil Fuels Electric Power Generation) instead of NAICS code 221122 (Electric Power Distribution).
The GAO held that it lacked jurisdiction to decide the matter, writing “questions regarding an agency’s designation of a NAICS code is a matter for resolution for the SBA, which has exclusive authority over NAICS code determination appeals.” The GAO refused to consider the argument.
Even within the SBA, the procedures for filing a NAICS code appeal are often misunderstood. Unlike a size protest, which must be filed with the contracting officer for the procurement, a NAICS code appeal must be filed directly with SBA OHA. Filing with GAO (as occurred in BlueStar Energy Solutions) or with the contracting officer won’t get the job done.