SBA OHA Size Appeals: Appellants Should Verify Email Receipt

A size appeal filed with the SBA Office of Hearings and Appeals may be submitted by email, but it is up to the appellant to verify that its email was received.

As demonstrated in a recent size appeal decision, OHA will dismiss an appeal that is not received by OHA within 15 days of the appellant’s receipt of a size determination–even if the appellant attempted to send the size appeal by email during the 15-day window.

OHA’s decision in Size Appeal of Supplies Now, Inc., SBA No. SIZ-5655 (2015) involved a set-aside procurement for office supplies.  The agency identified EZ Print Supplies as the apparent successful offeror.  An unsuccessful competitor, Supplies Now, Inc., filed a size protest.  On February 3, 2015, Supplies Now received the SBA’s size determination, which dismissed the size protest.

On February 18, Supplies Now attempted to file a size appeal by email.  Supplies Now requested a delivery receipt, and received the following notice in its email account: “Delivery to these recipients or groups is complete, but no delivery notification was sent by the destination server.”  Supplies Now apparently did not receive a read receipt from OHA, nor did Supplies Now call OHA to confirm that OHA had received its size appeal.

After receiving no communication from OHA for a period of several weeks, Supplies Now contacted OHA to inquire about the status of its size appeal.  OHA informed Supplies Now that the appeal had not been received.  Supplies Now resent the size appeal, which was received by OHA on April 9, 2015.

Because the appeal appeared to have been received outside the regulatory 15-day time frame, OHA asked Supplies Now to explain why its appeal should not be dismissed as untimely.  Supplies Now explained that it had initially sent the appeal on February 18, and provided OHA with a copy of the delivery receipt notice.

OHA wrote that, under the SBA’s size appeal regulations, “a size appeal must be filed at OHA within fifteen days of receipt of the size determination.”  Further, “OHA has no discretion to extend, or waive, the deadline for filing an appeal.” Although OHA’s regulations permit size appeals to be filed by email, the regulations specify that “the sender is responsible for ensuring . . . a successful, virus-free transmission” and the sender is “encouraged to contact OHA by telephone to verify receipt.”

In this case, “having chosen to submit its appeal by e-mail, [Supplies Now] was responsible for ensuring that the e-email successfully reached OHA.”  OHA continued, “[n]or could [Supplies Now] reasonably rely solely on the acknowledgement from its e-mail system, particularly given that [Supplies Now] received no response, over a period of several weeks, from OHA, EZ Print, or other intended recipients of the appeal.”  OHA dismissed Supplies Now’s size appeal.

The Supplies Now case is a cautionary tale for anyone planning to file a size appeal with OHA.  As the case demonstrates, OHA offers the convenience of email filings, but it is up to the appellant to ensure that OHA receives its size appeal on time.  As OHA wrote in Supplies Now, the wisest course of action is to call OHA to confirm receipt.

If I may offer my two cents (and I may, since this is my blog!), OHA might wish to consider using an automatic email receipt, like that used by the GAO.  When a protester (or anyone else) submits an email to the GAO’s official email address for bid protests, the GAO automatically sends a response acknowledging receipt.  The automatic response eliminates the need to call GAO for confirmation, and provides a time-stamped written record of receipt–which could be critical if the timeliness of the filing was ever called into question.

Perhaps OHA will adopt a similar practice in the future.  For now, though, the lesson of Supplies Now is clear: feel free to use email when filing with OHA, but be sure to confirm receipt.

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