SBA Size Appeals: Notification Of Deadline Not Required

Government contractors are expected to be aware of appeal deadlines even if an agency does not mention those deadlines in its decision notifications.

As one contractor recently discovered, a size appeal with the SBA Office of Hearings and Appeals must be filed within the regulatory time frame–and no extension will be granted if the SBA does not notify the potential appellant of the deadline.

OHA’s decision in Size Appeal of Epiphany Management Solutions, LLC, SBA No. SIZ-5657 (2015) involved a SBA size determination finding that Epiphany Management Solutions, LLC was not a small business in its primary industry.

Epiphany received paper notice of the adverse determination on February 10, 2015.  The notice stated that Epiphany could file an appeal with OHA, but did not identify a specific deadline for appealing.  The decision included internet links to OHA’s regulations.

Epiphany was given an electronic copy of the size determination on April 15, 2015.  The electronic copy included working hotlinks to OHA’s regulations.  After receiving the electronic size determination, Epiphany filed a size appeal on April 23, 2015.

Because the appeal had not been filed within 15 days of Epiphany’s receipt of the paper copy of the size determination, OHA ordered Epiphany to show cause as to why the appeal should not be dismissed as untimely.

Epiphany argued the February 10, 2015 paper notification was insufficient because it lacked any explicit deadlines for appealing the determination.  Epiphany also argued that the links to OHA’s regulations were “useless” until Epiphany received the electronic copy, because Epiphany “could not click” on the links in the paper copy.

OHA rejected these arguments.  Echoing prior decisions, OHA reiterated it is not the responsibility of SBA Area Offices to notify the recipients of adverse determinations of their appeal deadlines.  The 15-day time frame is set forth in OHA’s regulations and “it is settled law that all persons are charged with knowledge of Federal regulations, regardless of actual knowledge of what is in the regulations or of the hardship resulting from innocent ignorance.”  Moreover, “OHA has no discretion to extend, or waive, the deadline for filing an appeal.”

Since Epiphany failed to file its size protest within 15 days of its receipt of the February 10, 2015 size determination, Epiphany’s appeal was untimely.  OHA dismissed Epiphany’s appeal.

As the Epiphany Management Solutions size determination makes clear, ignorance of the size appeal deadline is not bliss.  Contractors are responsible for complying with the regulatory deadline, even if SBA does not identify the deadline within the size determination itself.

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