Government Contracts Monitor

Short Take: NAICS Code Appeals: Timeliness Is Paramount, But Appeal Based on Presolicitation Notice Is Premature

May 9, 2017

As we have discussed previously, timing is everything in filing North American Industry Classification System (NAICS) code appeals at the Small Business Administration (SBA)’s Office of Hearings and Appeals (OHA). This is because NAICS code appeals must be filed within a relatively short 10 calendar days after issuance of the initial solicitation, per 13 C.F.R. § 121.1103(b)(1). OHA strictly applies this 10-day appeal timeliness rule, and will summarily dismiss an untimely appeal.

The touchstone here, however, is the issuance of the initial solicitation. As OHA recently reiterated in NAICS Appeal of Marvin Test Solutions, Inc., SBA No. NAICS-5826, an appeal filed prior to the actual issuance of a solicitation is premature, and similarly will be dismissed. A concerned party thus cannot jump the gun and file an appeal based upon a Notice of Inquiry (NOI), Sources Sought Notice (SSN) or Presolicitation Notice.

Marvin Test Solutions involved an appeal based upon a presolicitation notice published on FedBizOpps (FBO). In dismissing the appeal as premature, OHA explained that “the issuance of solicitations, … by its very terms[,] does not include presolicitation notices.” A “presolicitation notice does not constitute a NAICS code designation within the meaning of the jurisdictional provision of 13 C.F.R. § 134.102(k) or the timeliness requirement of 13 C.F.R. § 134.304(b).” OHA further explained that the “mere publication of a presolicitation notice does not guarantee that the procuring agency will issue a solicitation or that it will assign the NAICS code anticipated in the presolicitation notice.”

Potential offerors therefore must wait until the actual issuance of a solicitation to file an appeal at OHA challenging the actual assigned NAICS code. However, this jurisdictional constraint on filing at OHA does not mean that an interested party cannot otherwise act to challenge a perceived erroneous NAICS code designation in a presolicitation or other advance notice of a proposed procurement. An interested party can always raise the issue directly with the issuing agency, and try to persuade the cognizant contracting officer to designate a different NAICS code. Indeed, this is the best practice, since, if successful, such may obviate the need to litigate the issue. However, once the solicitation is issued, the concerned party must act quickly, and timely appeal to OHA within 10 days of the solicitation issuance.