NAICS code appeals can be powerful tools.  A change in a solicitation’s NAICS code–and corresponding change in the small business size standard–can significantly broaden or narrow the competitive playing field.  And statistically speaking, NAICS code appeals are often successful.

But NAICS code appeals are subject to strict rules.  As a recent SBA Office of Hearings and Appeals case confirms, NAICS code appeals cannot be lodged against presolicitations.

OHA’s decision in NAICS Appeal of Willowheart, LLC, SBA No. NAICS-5938 (2018) involved a National Geospatial-Intelligence Agency RFI for a forthcoming procurement.  The RFI indicated that the pending solicitation would be assigned NAICS code 561210 (Facilities Support Services).

Willowheart, LLC filed a NAICS code appeal with the SBA Office of Hearings and Appeals.  Willowheart argued that the appropriate NAICS code was 561612 (Security Guards and Patrol Services).

OHA wrote that “[a] presolicitation notice,” such as an RFI, “does not constitute a NAICS code designation within the meaning of” the SBA’s NAICS code appeal regulations.  This is because “mere publication of a presolicitation notice does not guarantee that the procuring agency will issue a solicitation or that it will assign the NAICS code anticipated in the presolicitation notice.”  Accordingly, “a NAICS code appeal based on a presolicitation notice is premature, and must be dismissed.”

OHA dismissed Willowheart’s NAICS code appeal.

Just because it is too early to file a NAICS code appeal during the presolicitation stage, that doesn’t mean a prospective offeror must wait until the solicitation is issued to take action.  An RFI or other presolicitation notice offers an opportunity for a prospective offeror to lobby the Contracting Officer to change the NAICS code.  My colleagues and I have been part of many of these lobbying efforts–and sometimes, those efforts work.  But if the Contracting Officer refuses to budge, a formal NAICS code appeal can be filed once the solicitation is issued.

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