(a) The contracting officer shall determine the appropriate NAICS code and related small business size standard and include them in solicitations above the micro-purchase threshold.
(b) If different products or services are required in the same solicitation, the solicitation shall identify the appropriate small business size standard for each product or service.
(c) The contracting officer’s determination is final unless appealed as follows:
(1) An appeal from a contracting officer’s NAICS code designation and the applicable size standard must be served and filed within 10 calendar days after the issuance of the initial solicitation. SBA’s Office of Hearings and Appeals (OHA) will dismiss summarily an untimely NAICS code appeal.
(2)
(i) The appeal petition must be in writing and must be addressed to the -
Office of Hearings and Appeals
Small Business Administration,
Suite 5900, 409 3rd Street, SW.,
Washington, DC 20416
(ii) There is no required format for the appeal; however, the appeal must include -
(A) The solicitation or contract number and the name, address, and telephone number of the contracting officer;
(B) A full and specific statement as to why the size determination or NAICS code designation is allegedly erroneous and argument supporting the allegation; and
(C) The name, address, telephone number, and signature of the appellant or its attorney.
(3) The appellant must serve the appeal petition upon -
(i) The SBA official who issued the size determination;
(ii) The contracting officer who assigned the NAICS code to the acquisition;
(iii) The business concern whose size status is at issue;
(iv) All persons who filed protests; and
(v) SBA’s Office of General Counsel.
(4) 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 Judge assigned to the case. The contracting officer’s response to the appeal, if any, must include argument and evidence (see 13 CFR Part 134), and must be received by OHA within 10 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 must immediately send to OHA a copy of the solicitation relating to the NAICS code appeal.
(5) 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 must 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.
