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.
OHA’s decision in NAICS Appeal of Metris, LLC, SBA No. NAICS-5700 (2015) involved a State Department solicitation for certain services. The solicitation was issued on July 7, 2015. The agency designated the solicitation with NAICS code 561210 (Facilities Support Services), with a corresponding $38.5 million size standard.
Metris, LLC, a prospective offeror, disagreed with the agency’s NAICS code selection. Metris contacted the State Department and urged it to change the NAICS code. Although it is not entirely clear from OHA’s decision, it appears that Metris wished the agency to assign NAICS code 541690 (Other Scientific and Technical Consulting Services), with a corresponding $15.0 million size standard.
On November 23, 2015, the State Department issued Amendment A004 to the solicitation. In Amendment 4, the Contracting Officer stated that it had considered Metris’s request but that the NAICS code would not be changed.
On December 11, 2015, Metris filed a NAICS code appeal with OHA. Metris argued that its NAICS code appeal was timely because, until the issuance of Amendment A004, the Contracting Officer had not responded to Metris’s request to amend the NAICS code.
OHA noted 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 a solicitation amendment affecting the NAICS code or size standard.” In this case, the OHA judge wrote, “[b]ecause Amendment A004 did not alter, or affect, the NAICS code assigned to the RFP, I must reject [Metris’s] claim that a NAICS appeal could be brought within 10 calendar days of Amendment A004.”
OHA explained that Metris’s attempt to convince the agency to change the NAICS code did not affect the 10-day time frame. “[D]eliberations with a procuring agency, which do not result in any change to the solicitation, do not extent the [NAICS] appeal deadline,” OHA wrote. OHA dismissed Metris’s NAICS code appeal as untimely.
Challenges to many aspects of a solicitation may be timely if they are filed any time before the initial due date for proposals. Not so for NAICS codes. As the Metris decision demonstrates, a NAICS appeal must be filed within 10 calendar days after issuance of the solicitation (or issuance of an amendment affecting the NAICS code or size standard)–and discussions with the Contracting Officer don’t extend the deadline.