Leaving OHA Email on “Unread” still Counts as Receipt For Appeal Timing Rules

The SBA’s OHA administrative judges recently sent a warning to all small business contractors that they need to keep an eye on their email inboxes no matter how late in the business day it is. In a size appeal decision, OHA found that even an unread email could derail a contractor’s plans for a size appeal, depending on when it arrived in your inbox.

As avid readers of SmallGovCon may recall, timeliness with emails is somewhat of a recurring topic in Federal Government Contracting. Well, in RBVETCO, LLC , SBA No. SIZ-6154 (2022), OHA added its voice to the group of recent decisions related to timeliness of emails received by contractors.

In RBVETCO, OHA dismissed a size appeal as late, relying on when the email of the size determination was received in the contractor’s email inbox, not when the email was actually opened by the recipient. (For those of you pulling out your calendars and calculators in fervent anticipation of reading the rest of this post, do not fear, we here at SmallGovCon will break down the dates and times involved.)

The SBA sent notification of the size determination to the company on Thursday March 24, 2022 at 3:38 p.m. CST/4:38 p.m. EST and SBA received an automated confirmation that the email was received at that same time. However, the employee whose email was listed on SBA correspondence was busy and out of the office at that time. Consequently, RBVETCO was unable to open the email until 6:41 p.m. EST on March 24, 2022. RBVETCO then sent an email confirming receipt of the size determination ruling on Friday March 25, 2022. RBVETCO prepared its size appeal, serving it to all interested parties on Friday, April 8, 2022 (15 calendar days after March 24, 2022), but due to an administrative oversight, the size appeal petition was not filed with OHA until Monday, April 11, 2022 (18 calendar days after March 24, 2022). OHA asked why the appeal should not be dismissed as untimely, as according to OHA rules of procedure, a size appeal “must be filed within 15 calendar days after receipt of the formal size determination.” 13 C.F.R. § 134.204(b)(2).

RBVETCO argued that since the size determination email was not opened until after business hours on March 24th, then the email should be deemed to be received on March 25th. The company continued its argument by reminding OHA that their rules and procedures hold that 5:00 p.m. is generally recognized as the close of business, meaning that filings received after 5:00 p.m. are seen as being received on the next business day. Since 15 days after March 25th would fall on a weekend, the filing deadline for anything received on March 25th would be moved to the next business day, which is April 11, 2022, the date RBVETCO filed its size appeal with OHA. 13 C.F.R. 134.202(d).

OHA did not find this argument compelling, and laid out some good reminders for contractor’s planning out a size appeal. OHA stated that they have “long held that ‘receipt’ of an email occurs when the e-mail reaches the intended recipient’s e-mail server.” To OHA, drawing a line at when an email is opened creates an “irrational, if not unworkable, precedent.” OHA declared that if they determined receipt by when an email was opened, logically, “an individual might avoid ever receiving an e-mail by, for example simply deleting the incoming message or refusing to open it,” pushing the filing deadline out almost indefinitely. This would create “a plainly absurd result.”

So, since OHA received a confirmation on March 24th that the email was received by RBVETCO’s server during business hours, they ruled that the 15 day deadline fell on April 8, 2022 and the size appeal was dismissed. Finally, OHA did address the fact that RBVETCO served the interested parties within the determined 15 day deadline, but forgot to file with OHA until the 18th day simply due to an administrative error. OHA reiterated that regulations do not allow OHA to extend or modify the filing deadline, no matter how much they may sympathize with an appellant’s administrative accident.

For size appeals there are complicated procedural rules, and if you fail to follow these rules they can result in your size appeal being dismissed, regardless of how strong the arguments within it may be. This case should hopefully serve as a reminder to all contractors to keep an eye on your email inbox at all times when you anticipate receiving any important emails from the Government. If you anticipate that you may be receiving some important communication from OHA (or other government official for that matter), make sure to plan out your calendar accordingly because despite your best intentions or circumstances, OHA cannot shift the filing deadline of a size appeal.

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