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SBA OHA: Contractors, Check Your Email Carefully (Or Else)

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Koprince Law LLC

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Everyone has that one friend who has an inbox overflowing with emails. You know the one who just can’t seem to delete any old emails, or go through and sort the legit emails from junk.  Well, when it comes to size protests and appeals, government contractors may want to be extra vigilant about checking their email inboxes and spam folders, just in case an important government email arrives.

In a recent decision, the SBA Office of Hearings and Appeals found that the size appeal clock started ticking on the day that the SBA sent an email to a contractor–even though the contractor did “not recall” receiving the email.

Size Appeal of Ordnance Holdings, Inc., SBA No. SIZ-5833 (2017), dealt with a size protest filed by Ordnance Holdings, Inc., which challenged the size status of FPM Remediations, Inc. The SBA Area office evaluated the protest and determined that FPM was a small business.

On March 30, 2017, the Area Office sent a copy of the size determination to Ordnance by certified mail and email. The certified mail was eventually returned to the SBA Area Office as “Unclaimed”. The Area Office then re-transmitted the decision to Ordnance via email on May 9, 2017. On May 10, Ordnance filed a size appeal with OHA, disputing the Area Office’s decision.

Under the SBA’s regulations, size appeals must be filed “within 15 calendar days after receipt of the formal size determination.” Before OHA could consider the size appeal, it needed to resolve whether Ordnance’s appeal was untimely, since it came forty days after the original email notification was sent on March 30. So OHA asked Ordnance to show cause and state why the size appeal should not be dismissed.

Ordnance maintained that it did not receive the size determination (by mail or email) until May 9, when it was transmitted after the hard copy was returned. In response to the question of whether it received the original email, Ordnance simply stated that it “does not recall receiving an email on March 30th”.  Ordnance did not offer any further explanation or evidence to support that the email was never received.

OHA turned to its prior decision in Size Appeal of Continental Solutions, Inc., SBA No. SIZ-5508 (2013) where the firm whose size was challenged denied ever receiving an email transmitting the decision, even though it used the same email address to communicate with OHA on the appeal. In Continental, OHA found that “t was reasonable to infer that [the challenged firm] received the size determination” because it used the same email address in its communications with OHA.

OHA found that the facts in the Ordnance appeal paralleled the facts in Continental.  The email address the Area Office sent the size determination to on March 30 was the same email address Ordnance used to communicate with OHA about the appeal. Ordnance’s lack of any explanation or evidence as to why it didn’t receive the March 30 email didn’t help its case either.

“Insofar as [Ordnance] may have simply overlooked the March 30 email,” OHA wrote, “such negligence is not excusable, as OHA has made clear that each litigant is responsible for properly monitoring its communications.” OHA held that Ordnance was “deemed to have received the size determination on March 30, 2017,” and any appeal was due at OHA “no later than April 14, 2017.” Ordnance’s appeal “was not actually filed until May 10, 2017, and is plainly untimely.”

OHA dismissed the size appeal.

Ordnance Holdings, Inc. serves as a good reminder to contractors who are expecting important communications from the SBA, GAO or any other governmental agency. Contractors would be wise to make sure their inboxes and spam folders are checked regularly, since the burden is on the contractor to prove an email wasn’t received–and it can be a high bar to overcome.


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