SBA size appeals must be filed with the SBA Office of Hearings and Appeals and a copy given to (or “served”) on another SBA Office, the Office of Government Contracting (known as SBA OGC). Both steps must be taken, because as one small contractor recently discovered, serving a SBA size appeal on the SBA OGC is not the same as filing the size appeal with SBA OHA.
SBA OHA’s decision in Size Appeal of Rees Group, Inc., SBA No. SIZ-5387 (2012) involved a U.S. Department of Veterans Affairs set-aside solicitation. After Rees Group, Inc. was identified as the apparent successful offeror, a size protest was filed, and the SBA Area Office issued a size determination finding Rees Group to be an ineligible large business. Rees Group received the SBA size determination on June 12, 2012.
On June 29, Rees Group submitted a SBA size appeal–to the SBA OGC. Rees Group did not file the SBA size appeal with SBA OHA. On July 16, Rees Group apparently realized its mistake, and belatedly filed the SBA size appeal with SBA OHA.
SBA OHA’s regulations require SBA size appeals to be filed within 15 days of the receipt of the SBA size determination. SBA OHA asked Rees Group to explain why its SBA size appeal should not be dismissed as untimely. Rees Group explained that it had served the size appeal on the SBA OGC within the 15-day period and apparently suggested that providing the size appeal to one SBA office should be sufficient to constitute filing with SBA OHA.
In a very brief opinion, SBA OHA explained, “[a]n appeal must be received by OHA to be considered filed. Service is the dispatch to the other parties of copies of the pleadings filed at OHA. Although Appellant properly served OGC, another office within SBA, service fails to meet the requirements of filing.” SBA OHA dismissed Rees Group’s SBA size appeal.
The Rees Group SBA size appeal decision illustrates the critical difference between “filing” a SBA size appeal with SBA OHA and “serving” a copy of that appeal on the SBA OGC. Although one might think that providing the size appeal to one SBA office is sufficient to constitute filing with the entire SBA, this is not the case.