SBA No. NAICS-5731, 20162016 WL 2851312April 21, 2016

SBA No. NAICS-5731, 2016 (S.B.A.), 2016 WL 2851312
Small Business Administration (S.B.A.)
Office of Hearings and Appeals
[North American Industry Classification System]
*1 SBA No. NAICS-5731
*1 Solicitation No. VA261-16-R-0139

*1 Department of Veterans Affairs

*1 McClellan, California

*1 April 21, 2016
I. Background
A. Solicitation
*1 On March 28, 2016, the Department of Veterans Affairs, Network Contracting Office 21 (VA) awarded Contract No. VA261-16-C-0034 to McCann Contracting, Inc. (McCann), for services on emergency generators. The VA had made the sole source award under Solicitation No. VA261-16-R-0139, and had designated it under North American Industry Classification System (NAICS) code 541330, Engineering Services, with a corresponding $15 million annual receipts size standard.
B. OHA Proceedings
*1 On April 7, 2016, Kaes Enterprises, LLC (Appellant) filed the instant NAICS code appeal with the U.S. Small Business Administration (SBA) Office of Hearings and Appeals (OHA). Appellant asserted the appropriate code is 811310, Commercial and Industrial Machinery and Equipment (except Automotive and Electronic) Repair and Maintenance, with a corresponding $7.5 million annual receipts size standard.
*1 Appellant also took issue with the VA's alleged failure to post a Justification and Approval, and the VA's alleged failure to post the opportunity to Federal Business Opportunities as a Service-Disabled Veteran-Owned Small Business (SDVOSB) set-aside. Appellant also stated it was filing a size protest against McCann alleging affiliation with California Generator Services and the International Brotherhood of Electrical Workers.
*1 On April 11, 2016, I ordered Appellant to show cause, no later than April 18, 2016, why its appeal should not be dismissed as moot and for failure to comply with the filing requirements of the regulation. On April 11, 2016, OHA's docket manager served the Show Cause Order to Appellant by electronic mail. On April 13, 2016, OHA's docket manager sent an additional copy of the Show Cause Order by facsimile transmission to Appellant.
*1 As of today, Appellant has not responded to the Show Cause Order.
II. Analysis
*1 The instant appeal is moot and must be dismissed. Under OHA precedent, once a procurement has been awarded, any additional dispute over the NAICS code is moot. E.g., NAICS Appeal of AeroSage, LLC, SBA No. NAICS-5554, at 2 (2014) ( “[B]ecause the contract has been awarded, OHA will not entertain arguments as to which NAICS code should have been assigned to the procurement.”); NAICS Appeal JRS Staffing Services, SBA No. NAICS-5485, at 2 (2013) (“It is settled law that once the contracting agency awards the contract at issue in a NAICS code appeal, the appeal becomes moot, and OHA must dismiss the case.”). The regulation permits OHA to summarily dismiss a NAICS code appeal once the procuring agency awards the subject contract. 13 C.F.R. § 134.318(c). Here, even if OHA were to agree with Appellant that the CO selected an erroneous NAICS code, the issue is immaterial at this stage of the acquisition. The contract has already been awarded, and OHA lacks authority to compel the CO to rescind the award.
*2 Appellant's allegations regarding the VA's alleged failure to post a Justification and Approval, and its alleged failure to set the procurement aside for SDVOSBs must be dismissed because OHA has no jurisdiction over these issues. To the extent Appellant is attempting to file a size protest against McCann, that attempt is misdirected because the size determination program regulations clearly state that a size protest must be filed with the contracting officer, who will then forward it to the correct SBA office for resolution. 13 C.F.R. § 121.1003; FAR 19.302. Thus, the allegations concerning McCann also must be dismissed.
III. Conclusion
*2 The instant appeal is moot because it seeks to challenge the NAICS code assigned to a procurement that the VA has already awarded. The other allegations in the appeal are either not within OHA's jurisdiction or are misdirected and thus are dismissed. For these reasons, the appeal is DISMISSED. This is the final decision of the U.S. Small Business Administration. 13 C.F.R. § 134.316(d).
*2 Christopher Holleman
*2 Administrative Judge


This appeal is decided under the Small Business Act of 1958, 15 U.S.C. § 631 et seq. and 13 C.F.R. Parts 121 and 134.
SBA No. NAICS-5731, 2016 (S.B.A.), 2016 WL 2851312
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