19.103 Appealing the contracting officer's North American Industry Classification System code and size standard determination
Source: FAR 19.103 on acquisition.gov
FAR 19.103 provides a structured, time-sensitive process for appealing NAICS code and size standard determinations, ensuring affected parties have a formal avenue for challenge.
Overview
FAR 19.103 outlines the procedures for appealing a contracting officer’s determination of the North American Industry Classification System (NAICS) code and the applicable size standard for a federal procurement. This section details who may file an appeal, the timelines for doing so, the process for handling appeals, and the responsibilities of contracting officers and the Small Business Administration (SBA) Office of Hearings and Appeals (OHA). The regulation ensures that parties adversely affected by a NAICS code or size standard designation have a formal process to challenge such decisions, thereby promoting fairness and transparency in federal contracting.
Key Rules
- Appeal Timelines and Eligibility
- Appeals must be filed within 10 calendar days of the solicitation or amendment, except the SBA may appeal before offers are due. Only certain parties, including adversely affected persons and specific SBA officials, may file appeals.
- Filing and Notification Procedures
- Appeals are filed with SBA’s OHA, and the contracting officer must notify the public of the appeal and provide relevant documentation to OHA. The contracting officer must respond within 15 days of OHA’s notice and withhold award unless it is not in the government’s best interest.
- OHA Decision and Impact
- OHA will issue a decision after the record closes. If the decision is received before offers are due, it is final for the solicitation; otherwise, it applies to future solicitations.
Responsibilities
- Contracting Officers: Must notify the public of appeals, provide documentation to OHA, respond to appeals, and withhold award as required.
- Contractors/Interested Parties: Must file appeals within the specified timeframe and follow OHA procedures.
- Agencies/SBA: Oversee the appeal process and ensure compliance with regulations.
Practical Implications
- This section provides a clear process for challenging NAICS code and size standard determinations, which can impact eligibility for set-asides and small business participation. Timely action and proper documentation are critical. Failure to follow procedures or deadlines can result in dismissal of appeals or missed opportunities.
(a) The contracting officer’s determination is final unless appealed as follows:
(1) An appeal of a contracting officer’s NAICS code designation and the applicable size standard shall be served and filed within 10 calendar days after the issuance of the initial solicitation or any amendment affecting the NAICS code or size standard. However, SBA may file a NAICS code appeal at any time before offers are due.
(2) Appeals of a contracting officer's NAICS code designation or applicable size standard may be filed with SBA’s Office of Hearings and Appeals (OHA) by—
(i) Any person adversely affected by a NAICS code designation or applicable size standard. However, with respect to a particular sole source 8(a) contract, only the SBA Associate Administrator for Business Development may appeal a NAICS code designation; or
(ii) The Associate or Assistant Director for the SBA program involved, through SBA’s Office of General Counsel.
(3) Contracting officers shall advise the public, by amendment to the solicitation, of the existence of a NAICS code appeal (see 5.102(a)(1)). Such notices shall include the procedures and the deadline for interested parties to file and serve arguments concerning the appeal.
(4) SBA’s OHA will dismiss summarily an untimely NAICS code appeal.
(5) NAICS code appeals are filed in accordance with https://www.govinfo.gov/content/pkg/CFR-2024-title13-vol1/xml/CFR-2024-title13-vol1-sec121-1103.xml" target="_blank">13 CFR 121.1103.
(6) Upon receipt of a NAICS code appeal, OHA will notify the contracting officer by a notice and order of the date OHA received the appeal, the docket number, and the Administrative Judge assigned to the case. The contracting officer's response to the appeal, if any, shall include argument and evidence (see https://www.govinfo.gov/content/pkg/CFR-2019-title13-vol1/xml/CFR-2019-title13-vol1-part134.xml" target="_blank">13 CFR part 134), and shall be received by OHA within 15 calendar days from the date of the docketing notice and order, unless otherwise specified by the Administrative Judge. Upon receipt of OHA’s docketing notice and order, the contracting officer shall withhold award, unless withholding award is not in the best interests of the Government, and immediately send to OHA an electronic link to or a paper copy of both the original solicitation and all amendments relating to the NAICS code appeal. The contracting officer shall inform OHA of any amendments, actions, or developments concerning the procurement in question.
(7) After close of record, OHA will issue a decision and inform the contracting officer. If OHA’s decision is received by the contracting officer before the date the offers are due, the decision shall be final and the solicitation shall be amended to reflect the decision, if appropriate. OHA’s decision received after the due date of the initial offers shall not apply to the pending solicitation but shall apply to future solicitations of the same products or services.
(b) SBA’s regulations concerning appeals of NAICS code designations are located at https://www.govinfo.gov/content/pkg/CFR-2024-title13-vol1/xml/CFR-2024-title13-vol1-sec121-1102.xml" target="_blank">13 CFR 121.1102 to https://www.govinfo.gov/content/pkg/CFR-2024-title13-vol1/xml/CFR-2024-title13-vol1-sec121-1103.xml" target="_blank">121.1103 and https://www.govinfo.gov/content/pkg/CFR-2019-title13-vol1/xml/CFR-2019-title13-vol1-part134.xml" target="_blank">13 CFR part 134.