A recent decision released by the SBA’s Office of Hearings and Appeals (OHA) provides a good reminder that a protest challenging the NAICS code selected for a solicitation is treated differently than the typical SBA protests challenging the size or status of a presumptive awardee. For protests challenging the size or status of a presumptive small business awardee, the protest is required to first be filed with the Contracting Officer. However, as explained in NAICS Appeal of: AMEL Technologies, Inc. (SBA No. NAICS-5892), there is a different process for challenges to a solicitation’s NAICS code.

Each solicitation establishes the appropriate NAICS code for the procurement. Interested offerors that disagree with the agency’s selected NAICS code have the ability to challenge the selected code. In AMEL Technologies, Inc, the U.S. Department of the Navy, Naval Facilities Engineering Command, issued a solicitation for construction management services using NAICS code 236220 (Commercial and Institutional Building Construction). Ten days after the solicitation was released, AMEL Technologies filed a protest with the Contracting Officer requesting a change in the NAICS code. Following the Contracting Officer’s response to the protest, AMEL Technologies filed an appeal to OHA. However, OHA dismissed the appeal as untimely, because the protester failed to follow the procedural requirements for NAICS appeals.

Unlike a size or status protest, challenges to a solicitation’s selected NAICS code must be filed directly with the SBA’s Office of Hearings and Appeals. Also, a NAICS code appeal is required to be filed within 10 days of the issuance of the solicitation (or modification to the solicitation establishing a new NAICS code). Here, AMEL Technologies got half of the process right: It filed its challenge to the solicitation’s NAICS code within 10 days of the issuance of the solicitation, however it filed the protest with the wrong party. By the time it filed its appeal at OHA, it was well beyond the 10 day deadline. As a result, any arguments it might have had as to why a different NAICS code was more appropriate would be ignored.

If you have questions about this or any other Government Contracts matter, please contact us.

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