OHA: CVE Appeals Go Directly to Us, Not CVE

OHA recently confirmed it lacked jurisdiction over a CVE appeal mistakenly filed with CVE, not OHA, by the deadline. You might be thinking: “Oh come on, the CVE appeal was filed with CVE on time!” But OHA’s strict timeliness rules make no exception for any such mistakes in the CVE appeal process. In fact, OHA disclaims the authority to even consider a late appeal, regardless of whether or not it was timely (but improperly) filed with CVE itself.

Taylor Made Sols., LLC, SBA No. CVE-172, 2020 (Nov. 20, 2020), all began with the VA Center for Verification and Evaluation’s (CVE) cancellation of the appellant’s service-disabled veteran-owned small business (SDVOSB) verified status. In accordance with the cancellation letter, the appellant was required to file any appeal of the cancellation with the U.S. Small Business Administration (SBA) Office of Hearings and Appeals (OHA) within 10 business days.

Instead, the appellant filed at OHA nearly a month after the cancellation letter. OHA, therefore, ordered the appellant to show cause why the appeal should not be dismissed as untimely. In response, the appellant argued that the appeal should be considered timely because it was filed with CVE before the 10-day-deadline. The appellant sent its appeal to CVEAppealsService@va.gov nine business days after receiving the cancellation letter, and CVE acknowledged its receipt. But CVE also expressly warned the appellant that its appeal must first be filed with OHA.

In the midst of its apparent confusion with the CVE appeal process, the appellant tried to call OHA but was unsuccessful. It also reached back out to CVE, asserting that it was “aware that [it] had to appeal within 10 days but [] will explain what happened.” When the appellant did not hear back from OHA or receive further instructions from CVE, it went ahead and filed the appeal with OHA (20 business days after the cancellation letter).

Nevertheless, the appellant asked OHA to consider its appeal in light of these circumstances. But OHA refused, disclaiming any authority to consider the untimely appeal–even where the appeal was timely filed with the verifying office and even where the appellant’s misunderstanding of the CVE appeal process was apparently to blame.

OHA relied on a number of regulations in its decision. It explained that under 13 C.F.R. § 134.1104, “an appeal of a CVE status cancellation must be filed within 10 business days of receipt of the cancellation[]” and “[a]n untimely appeal must be dismissed.” And also, according to 13 C.F.R. § 134.204, “[a]n appeal is considered ‘filed’ when it is received by OHA.” Then, OHA cited 13 C.F.R. § 134.202 to assert that it “has no authority to extend, or waive, the deadline for filing an appeal.” Finally, OHA said that it “has repeatedly held that an appeal that is properly served to other parties but not timely filed at OHA must be dismissed as an untimely filed appeal.”

In reaching its conclusion on the instant appeal, OHA explained:

Here, although Appellant served the appeal to CVE within 10 business days after issuance of the cancellation decision, Appellant did not file the appeal at OHA until 20 business days after issuance of the decision. As a result, the appeal is untimely and must be dismissed.

OHA considered the appellant’s argument that the appeal should be considered timely because the appellant could not “reach OHA by telephone to discuss the appeals process.” But OHA was unmoved, stating:

While this is unfortunate, OHA has no discretion to extend, or waive, the deadline for filing an appeal. Moreover, information about the appeals process is readily accessible via the internet and through applicable regulations. Indeed, the cancellation notice itself referenced such regulations and made clear that an appeal of the cancellation could be filed only at OHA. It therefore is immaterial that Appellant was unable to reach OHA by telephone for further guidance on the appeals process.

This decision is a good reminder that the SBA’s filing rules and procedures are more than helpful suggestions–they are often strict conditions precedent to the agency’s ability to consider the issue at all. Where an agency gives instructions for filing, it is always wise to follow them. And where there is any question about the process, it is best to go directly to the rules (or to your neighborhood friendly government contracting attorney) rather than to wait out further instructions.

Questions about this post? Email us or give us a call at 785-200-8919.

Looking for the latest government contracting legal news? Sign up for our free monthly newsletter, and follow us on LinkedIn, Twitter and Facebook.