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.

OHA’s decision in NAICS Appeal of AMEL Technologies, Inc., SBA No. NAICS-5892 (2018) involved a NAVFAC solicitation for construction management services.  NAVFAC issued the solicitation as a small business set-aside and assigned NAICS Code 236220 (Commercial and Institutional Building Construction), with an associated $36.5 million size standard.  The solicitation was issued on January 25, 2018.

AMEL Technologies, Inc. believed that the correct NAICS code was 541330 (Engineering Services), which ordinarily carries a $15 million size standard. AMEL apparently initiated discussions with the Contracting Officer shortly after the solicitation was issued, asking the Contracting Officer to change the NAICS code to 541330.

The Contracting Officer didn’t respond to the request until March 1, 2018.  The Contracting Officer didn’t address the merits of AMEL’s request, but simply stated that she considered the matter closed because AMEL had not filed a formal NAICS code appeal with OHA.  AMEL subsequently filed a NAICS code appeal on March 6.

OHA wrote that “[u]nder applicable regulations, a NAICS code appeal must be filed within 10 calendar days after issuance of the solicitation, or within 10 calendar days of an amendment affecting the NAICS code or size standard.”  OHA “has no discretion to extend, or waive, the deadline for filing an appeal.”

OHA continued, “deliberations with a procuring agency which do not result in any change to the solicitation, do not extend the [NAICS] appeal deadline.”  Therefore, “the fact that [AMEL] requested that the CO reconsider the NAICS code does not alter [AMEL’s] deadline for bringing a NAICS code appeal at OHA.”

AMEL “filed this appeal 40 calendar days after issuance of the RFP.”  Thus, “[t]he instant appeal is untimely and must be dismissed.”

OHA dismissed AMEL’s NAICS code appeal.

When an agency assigns an apparently erroneous NAICS code, it’s not a bad idea to approach the Contracting Officer about a change, as AMEL did.  Doing so can avoid unnecessary administrative litigation.  Additionally, giving the Contracting Officer the chance to reconsider before filing a NAICS code appeal may be beneficial from a “relationship standpoint.” However, as the AMEL Technologies case demonstrates, informal discussions about NAICS codes don’t extend the strict NAICS code appeal deadline–the 10-day clock keeps ticking.

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