SBA OHA Size Appeals: Request To Reopen Does Not Extend Filing Deadline

A company on the losing end of a SBA size protest can ask the SBA Area Office that issued the decision to consider reopening the size determination case.  However, the 15-day window in which to file a size appeal with the SBA Office of Hearings and Appeals is not extended by virtue of a request to reopen.

In a recent decision, SBA OHA dismissed a size appeal as untimely, holding that the 15-day appeals window begins upon the receipt of the size determination–not upon the SBA Area Office’s refusal to reopen the size determination.

SBA OHA’s decision in Size Appeal of Irvine Sensors Corporation, SBA No. SIZ-5545 (2014), involved a size determination under the SBA’s Small Business Innovation Research Program.  On February 20, 2014, the SBA Area Office issued a size determination finding that Irvine Sensors Corporation was not an eligible small business under the SBIR program.

On March 6, Irvine Sensors requested that the SBA Area Office reopen and reconsider the size determination.  On March 12, the SBA Area Office denied the request.

On March 18, Irvine Sensors filed a size appeal with SBA OHA.  Because the size appeal appeared to have been filed more than 15 days after Irvine Sensors received the size determination, SBA OHA issued a “show cause notice,” asking Irvine Sensors to explain why the size appeal should not be dismissed as untimely.

Irvine Sensors argued that the 15-day clock started ticking when the SBA Area Office denied the request to reopen the size determination.  SBA OHA disagreed.

Citing the size appeal regulations, SBA OHA wrote, “a size appeal must be filed with OHA within fifteen days of the receipt of the size determination.  OHA has no discretion to extend, or waive, the deadline for filing an appeal.”  SBA OHA concluded, “SBA regulations do not authorize an appeal to be filed within 15 days of a denial of a request to reopen, and [Irvine Sensors] offers no legal authority to support this proposition.”  SBA OHA denied the size appeal.

As SBA OHA noted in the case, an Area Office “has essentially unfettered discretion in deciding whether or not to reopen a size determination.”  If an affected company believes that a size determination was flawed, it may be worth considering a request to reopen.  However, as the Irvine Sensors case demonstrates, the 15-day size appeal clock does not stop ticking when a request to reopen is made.

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