A federal regulation states that NAICS code appeals are timely if filed within ten business days. So why was one small business’s NAICS code appeal dismissed even though it filed the appeal within the time period called for by the regulation?
According to SBA OHA, the regulation was erroneous, and the actual NAICS code appeal deadline is ten calendar days. I don’t know about you, but to me, the result doesn’t seem particularly fair to the contractor.
SBA OHA’s decision in NAICS Appeal of R. Christopher Goodwin & Associates, SBA No. NAICS-5382 (2012)
, involved an Army Corps of Engineers solicitation for surveying and related services at historical sites. The corps issued the solicitation on June 22, 2012. The Corps set aside the procurement for small businesses and designated NAICS code 712120 (Historical Sites) with a corresponding size standard of $7 million in average annual receipts.
On July 5, 2012, R. Christopher Goodwin & Associates filed a NAICS code appeal with SBA OHA. The appeal was filed within ten business days of the solicitation’s issuance. However, citing 13 C.F.R. § 134.304
, which states that NAICS code appeals must be filed within ten calendar days, SBA OHA asked Goodwin to explain why its appeal should not be dismissed as untimely.
Goodwin had a pretty good answer. It pointed to another SBA regulation, 13 C.F.R. § 121.1103
. According to that regulation, NAICS code appeals are timely if filed within ten business
days, not ten calendar days as expressed in 13 C.F.R. § 134.304. Goodwin argued that the inconsistency in the two regulations should be resolved in its favor.
SBA OHA had other ideas. It noted that 13 C.F.R. § 121.1103 had previously used the term calendar days, but had been changed in 2011 to use the term business days. SBA OHA deemed this change a “clerical or administrative error,” and held that Goodwin’s NAICS code appeal was untimely.
Whether the result in Goodwin is fair or unfair is certainly open to debate. One thing is clear, however: contractors interested in a potential NAICS code appeal should ignore the “business days” time period expressed in 13 C.F.R. § 121.1103, and file within ten calendar days, as called for in 13 C.F.R. § 134.304. Otherwise, SBA OHA will dismiss the NAICS code appeal as untimely.