13 C.F.R. § 121.1103

What are the procedures for appealing a NAICS code or size standard designation?

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(a)(1) Any interested party adversely affected by a NAICS code designation may appeal the designation to OHA. An interested party would include a business concern seeking to change the NAICS code designation in order to be considered a small business for the challenged procurement, regardless of whether the procurement is reserved for small businesses or unrestricted. The only exception is that, for a sole source contract reserved under SBA's 8(a) Business Development program (see part 124 of this chapter), only SBA's Associate Administrator for Business Development may appeal the NAICS code designation.

(2) A NAICS code appeal may include an appeal involving the applicable size standard, such as where more than one size standard corresponds to the selected NAICS code, or a question relating to the size standard in effect at the time the solicitation was issued or amended.

(b) The contracting officer's determination of the applicable NAICS code is final unless appealed as follows:

(1) An appeal from a contracting officer's NAICS code or size standard designation must be served and filed within 10 calendar days after the issuance of the solicitation or amendment affecting the NAICS code or size standard. However, SBA may file a NAICS code appeal at any time before offers are due. OHA will summarily dismiss an untimely NAICS code appeal.

(2)(i) The appeal petition must be in writing and must be sent to the Office of Hearings & Appeals, U.S. Small Business Administration, 409 3rd Street, SW., Suite 5900, Washington, DC 20416.

(ii) There is no required format for a NAICS code appeal, but an appeal must include the following information: the solicitation or contract number; the name, address, and telephone number of the contracting officer; a full and specific statement as to why the NAICS code designation is erroneous, and argument in support thereof; and the name, address and telephone number of the appellant or its attorney.

(3) The appellant must serve the appeal petition upon the contracting officer who assigned the NAICS code to the acquisition and SBA's Office of General Counsel, Associate General Counsel for Procurement Law, 409 3rd Street, SW., Washington, DC 20416.

(c) Procedure after a NAICS code appeal is filed and served. (1) Upon receipt of the service copy of a NAICS code appeal, the contracting officer shall:

(i) Stay the date for the closing of receipt of offers;

(ii) Advise the public, by amendment to the solicitation or other method, of the existence of the NAICS code appeal and the procedures and deadline for interested parties to file and serve arguments concerning the appeal;

(iii) Send a copy of (or an electronic link to) the entire solicitation, including amendments, to OHA;

(iv) File and serve any response to the appeal prior to the close of the record; and

(v) Inform OHA of any amendments, actions or developments concerning the procurement in question.

(2) Upon receipt of a NAICS code appeal, OHA shall:

(i) Notify the appellant, the contracting officer, the SBA and any other known party of the date OHA received the appeal and the date the record will close; and

(ii) Conduct the appeal in accordance with part 134 of this chapter.

(3) Any interested party may file and serve its response to the NAICS code appeal.

[69 FR 29207, May 21, 2004; 74 FR 45753, Sept. 4, 2009, as amended at 76 FR 5683, Feb. 2, 2011; 78 FR 61132, Oct. 2, 2013; 85 FR 66183, Oct. 16, 2020]

Notes of Decisions

Cited in 7 cases, 2006–2019 · leading case: Palladian Partners, Inc. v. United States, 783 F.3d 1243 (Fed. Cir. 2015).

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Palladian Partners, Inc. v. United States, 783 F.3d 1243 (Fed. Cir. 2015). · cites it 3× “” 13 C.F.R. § 121.1103 (a)(1). “An appeal from a contracting officer’s NAICS code or size standard designation must be served and filed within 10 calendar days after the issuance of the solicitation or amendment affecting the NAICS code or size standard.”

Advanced Sys. Tech., Inc. v. United States, 69 Fed. Cl. 474 (Fed. Cl. 2006). · cites it 4× “13 C.F.R. §§ 121.1103 (b)(1), 134.304(b).”

Rotech Healthcare Inc. v. United States, 71 Fed. Cl. 393 (Fed. Cl. 2006). · cites it 2× “13 C.F.R. § 121.1103 (b)(1) (2006). Such a challenge is an administrative remedy which must be exhausted before judicial review of a code designation is permitted.”

Lawrence Battelle, Inc. v. United States, 117 Fed. Cl. 579 (Fed. Cl. 2014). · cites it 2× “See 13 C.F.R. § 121.1103 ; Ceres Envtl. Servs.”

Arcata Assocs., Inc. v. United States, 110 Fed. Cl. 290 (Fed. Cl. 2013). · cites it 2× “§ 1491 (b)(1); 13 C.F.R. § 121.1103 (c)(1) (procedures for NAICS code appeals); 13 C.”

Am. Relocation Connections, L.L.C. v. United States (Fed. Cl. 2018). · cites it 2× “Moreover, to the extent ARC is challenging the merits of the CBP’s decision to select NAICS Code 531210, rather than NAICS Code 484210, as the NAICS Code applicable to the 2018 RFQ, the regulation at 13 C.F.R. § 121.1103 (b)(1) (2018) requires that an “appeal from a contracting…”

Am. Relocation Connection v. United States (Fed. Cir. 2019). · cites it 2× “The court noted that ARC had waived any challenge to CBP’s choice of NAICS code 531210 by failing to appeal that decision to the SBA’s Office of Hearings and Appeals within 10 days of the issuance of the solicitation under 13 C.F.R. § 121.1103 (b)(1). It also noted that the SBA…”

— 13 C.F.R. § 121.1103(a) — 1 case

Advanced Sys. Tech., Inc. v. United States, 69 Fed. Cl. 474 (Fed. Cl. 2006). “13 C.F.R. §§ 121.1103 (b)(1), 134.304(b).”

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