NAICS CODE AND SIZE STANDARD APPEALS
The following presents regulatory procedures pertaining to protest of an offeror's small business representation and the appeal of a Contracting Officers North American Standard Industrial Classification (NAICS) code designation related to small business size standard is highlighted as follows:
All size protests are forwarded, to SBA Government Contracting Area Offices located where small business concerns headquarters are also located.
All appeals are forwarded to the Office of Hearing and Appeals (OHA); that includes:
Formal size determinations made by an SBA Government Contracting Area Office, or by a Disaster Area Office, in connection with applications for disaster loans; and NAICS Code designations.
WHO MAY PROTEST SMALL BUSINESS REPRESENTATIONS
- Other interested parties
WHERE ARE SIZE REPRESENTATION PROTESTS FILED
Protests of small business representation are forwarded to the appropriate SBA Government contracting area offices. See the following (http://www.sba.gov/regulations/siccodes) by contracting officers.
WHERE ARE APPEALS FILED
Appeals for size determinations and NAICS code designations may be filed with the Office of Hearing and Appeals SBA 409 Third Street SW., Suite5900WashingtonD.C. 20416, by:.
- Any person adversely affected by a size determination;
- Any person adversely affected by a NAICS code designation. With respect to an 8(a) contract, only the Associate or Assistant Administrator for the Minority Enterprise Development, SBA program may appeal a NAICS code designation through SBA's Office of General Counsel; and/or the procuring agency Contracting Officer responsible for the procurement affected by a size determination.
RIGHTS TO AN APPEAL FROM A SIZE DETERMINATION
- Appeals for size determinations and NAICS code designations must be commenced by serving and filing an appeal petition in writing if the;
- Appeal is for a size determination in a pending procurement or pending Government property sale, then the appeal petition must be served and filed within 15 calendar days after service of the size determination;
- Appeal is for a size determination other than one in a pending procurement or pending Government property sale, then the appeal petition must be served and filed within 30 calendar days after service of the size determination;
- Appeal is from a NAICS code designation, then the appeal petition must be served and filed within 10 calendar days after the issuance of the initial invitation for bids or initial request for proposals or quotations; or
- An untimely appeal will be dismissed. However, an appeal which is untimely but filed within 15 or 30 calendar days can as appropriate, be reviewed and considered for future procurement or sales.
AN APPEAL FORMAT
There is no required format for an appeal petition. However, it must include the following:
- The Area Office which issued the size determination, or the contracting office which designated the NAICS code;
- The solicitation or contract number, and the name, address, and telephone number of the contracting officer;
- A full and specific statement as to why the size determination or NAICS code designation is alleged to be an error, together with argument supporting such allegations; and
- The name, address, telephone number, and signature of the appellant or its attorney.a. Service of Size Determination - The Appellant or its attorney must serve the appeal upon
- The SBA official who issued the size determination;
- The contracting officer responsible for the procurement affected by a size determination;
- The business concern whose size status is at issue;
- All persons who filed protests; and
- SBA=s Office of General Counsel
b. Service of NAICS Appeals - The appellant must serve the contracting officer who made the NAICS code designation
c. Certificate of Service - The appellant must attach to the appeal petition a signed certificate identifying each person or governmental agency which was served with the notice of appeal, and how and when each of those persons or governmental agencies were served.
d. Dismissal - An appeal petition which does not contain all of the information may be dismissed, with or without prejudice, by the Judge at his or her own initiative, or upon motion of a respondent.
TRANSMISSION OF CASE FILE
Upon receipt of an appeal petition pertaining to a size determination, the Area Office which issued the size determination must immediately send to OHA the entire case file relating to that determination. Upon receipt of an appeal petition pertaining to a NAICS code designation, the contracting officer who designated the NAICS code must immediately send to OHA the solicitation relating to that designation.
LIMITATION ON NEW EVIDENCE AND ADVERSE INFERENCE FROM NONSUBMISSION IN APPEALS FROM SIZE DETERMINATIONS
Evidence not previously presented to the Area Office which issued the size determination being appealed will not be considered by a Judge unless:
1. The Judge, on his or her own initiative, orders the submission of such evidence; or
2. A motion is served and filed establishing good cause for the submission of such evidence; or
3. If the submission of evidence is ordered by a Judge, and the party in possession of that evidence does not submit it, the Judge may draw adverse inferences against that part.
RESPONSE TO AN APPEAL PETITION
Who may respond - Any person served with an appeal petition, or any other interested person, may serve and file a response supporting or opposing the appeal. The response should present a argument.
Time limits - Unless otherwise specified by the Judge, a respondent must serve and file a response within 10 days after service of the appeal petition upon it.
Service - The respondent must serve its response upon the appellant and upon each of the persons identified in the certificate of service attached to the appeal petition.
Reply to a response - No reply to a response will be permitted unless the Judge directs otherwise.
Discovery will not be permitted in appeals from size determinations or NAICS code designations.
Oral hearings will not be held in appeals from NAICS code designations, and will be held in appeals from size determinations only upon a finding by the Judge of extraordinary circumstances. If such an oral hearing is ordered, the proceeding shall be conducted in accordance to what the Judge deems appropriate.
STANDARD OF REVIEW
The standard of review is whether the size determination or NAICS code designation was based on clear error of fact or law.
Following closure of the record, the Judge will issue a decision containing findings of fact and conclusions of law, reasons for such findings and conclusions, and any relief ordered.
- Finality - The decision is the final decision of the SBA and becomes effective upon issuance.
- Service - OHA will serve a copy of all written decisions on:
- Each party, or, if represented by counsel, on its counsel; and
- SBA=s General Counsel, or his or her designee, if SBA is not a party.
TERMINATION OF JURISDICTION
The jurisdiction of OHA will terminate upon the issuance of a decision.
RETURN OF THE CASE FILE
Upon termination of jurisdiction, OHA will return the case file to the transmitting Area Office. The remainder of the record will be retained by OHA.
For more information on protests and appeals reference, the Code of Federal Regulation, Title 13, revised as of January 1, 2001.