We here at SmallGovCon like to spend our free time pondering the intricacies around how and why certain NAICS codes are assigned to the myriad of contracting opportunities posted every day. But we realize others may not have the same appetite for the intricacies of Federal Contracting as us. Luckily, the SBA’s Office of Hearings and Appeals (OHA) recently issued a great roadmap for understanding NAICS code assignments in a NAICS code appeal decision, which serves as a great refresher for how NAICS codes are applied to a procurement.Continue reading
This matter again involves NASA and a particularly interesting government procurement, this time concerning NAICS appeals. NAICS codes, or the North American Industry Classification System codes, are how both businesses are classified by their industry and procurements are classified by what they’re for. If the procurement uses an inappropriate NAICS code, a protestor can appeal this code determination. It is important to note that some NAICS codes have “exceptions” which can affect their corresponding size standards. For example, NAICS code 541330, “Engineering,” has a size standard of $16.5 million, but, if the engineering services are for military equipment and weapons, an exception applies that balloons the size standard to $35.5 million. But, just like regular NAICS codes, these exceptions have to make sense in light of the kind of solicitation in question, leading us to this matter.Continue reading
NAICS code appeals can be powerful tools. A change in a solicitation’s NAICS code–and corresponding change in the small business size standard–can significantly broaden or narrow the competitive playing field. And statistically speaking, NAICS code appeals are often successful.
But NAICS code appeals are subject to strict rules. As a recent SBA Office of Hearings and Appeals case confirms, NAICS code appeals cannot be lodged against presolicitations.
NAICS code appeals can be powerful, and while they’re infrequent, they often succeed. But NAICS code appeals are subject to a strict, 10-day deadline–and that deadline isn’t extended by deliberations with the Contracting Officer.
In a recent NAICS code appeal decision, the SBA Office of Hearings and Appeals reiterated that the 10-day deadline isn’t affected by discussions with the procuring agency.
Because the NAICS code governs the size standard used to determine whether a company qualifies as a small business, the choice of a NAICS code can dramatically affect the competitive landscape for a set-aside acquisition.
The only legal procedure for challenging the NAICS code assigned by the contracting officer is to appeal the assignment to the SBA’s Office of Hearings and Appeals. A NAICS code appeal can be an extraordinarily powerful tool for a business to challenge whether a contracting officer assigned the correct NAICS code in setting aside a procurement.
So how often are NAICS code appeals filed, and how often do these NAICS code appeals succeed? A recent GAO report has some answers.
NAICS code appeals, while little known, can be an extraordinarily powerful tool when it comes to affecting the competitive landscape of government acquisitions.
Case in point: in a recent NAICS code appeal decision issued by the SBA Office of Hearings and Appeals, the appellant prevailed–and obtained an order requiring the contracting officer to change the solicitation’s size standard from 500 employees to $15 million.