VSBC APPEAL OF: EMC PARTNERS LLC, APPELLANT

*1 On January 22, 2024, EMC Partners LLC (Appellant) appealed the denial of its application for certification as a Service-Disabled Veteran-Owned Small Business (SDVOSB) to the U.S. Small Business Administration (SBA) Office of Hearings and Appeals (OHA).¹ Although the appeal petition was deficient, Appellant's deadline for filing a proper appeal had not yet expired. As a result, OHA ordered that Appellant would have until January 25, 2024, to submit a new appeal petition.

*1 OHA explained the appeal was insufficient for two reasons. First, the appeal did not clearly state what error(s), if any, Appellant alleged the Director of SBA's Office of Government Contracting (D/GC) to have committed, as is necessary for a valid appeal under 13 C.F.R. §§ 134.1105(a)(2) and 134.1111. (OHA's Order, at 1.) Rather, Appellant conceded that it was an oversight and had rectified the issue by updating its Operating Agreement. (Original Appeal, at 1.) Second, the appeal appeared to be based largely, if not entirely, on new evidence, which OHA generally cannot consider. (OHA's Order, at 1, citing 13 C.F.R. § 134.1110.) Specifically, Appellant proffered a new version of its Operating Agreement, purporting to cure the problematic provision identified by the D/GC.

*1 In response to OHA's Order, on January 25, 2024, Appellant submitted an amended appeal petition. In the letter, Appellant indicates that there was an oversight “that resulted in missing crucial email communications from the [SBA] regarding our SDVOSB initial application ... Unfortunately, these emails were mistakenly routed to our spam folder, and we only became aware of them after the application had already been closed.” (Amended Appeal.) Appellant states, the “appeal is for the SBA to offer us a good cause exemption based on the above to its policy and not have us wait the standard 90 days to reapply.” (Id.) The rest of the pleading consists of apologizing for and promising to take steps in the future to prevent any communication oversight.

*1 The amended appeal remains deficient and I must dismiss it. Like Appellant's original appeal petition, the amended appeal does not clearly identify any error in the D/GC's decision. Particularly, D/GC found in its decision that Appellant's Operating Agreement did not demonstrate that the applicant satisfies the control requirements of the regulation, under 13 C.F.R. §§ 128.203(d), 128.203(f), 128.203(b), and 128.202(g)(1). Here, Appellant does not dispute D/GC's findings, but seeks to rectify the issues by proffering a new version of Appellant's Operating Agreement.

*2 In an SDVOSB appeal proceeding, OHA cannot consider new evidence for the first time on appeal, unless good cause is shown. 13 C.F.R. § 134.1110. Insofar as the instant appeal relies upon a new version of Appellant's Operating Agreement post-dating the D/GC's decision, the explanation that SBA's emails were mistakenly routed to its spam folder and SBA issued its decision before Appellant became aware of them, appears to stem from Appellant's own error and internal workings. OHA has repeatedly ruled that SBA's email notice delivered to a junk or spam folder does not extend, or modify, the deadline for filing an appeal. See e.g., In the Matter of LFM Industries, Inc. d/b/a Massey Industries, Inc., SBA No. BDP-601 (2022) (finding that SBA cannot be on notice of petitioner's internal workings as to what happens when petitioner receives an email communication delivered to its junk folder); Size Appeal of Red Orange North America, Inc., SBA No. SIZ-6136, at 3 (2021); Size Appeal of RBVetCo, LLC d/b/a Rocky Bleier Construction Group, SBA No. SBA No. SIZ-6154 (2022). The same principle applies here, and therefore, Appellant has not established good cause for the submission of new evidence.

*2 Under OHA's rule of procedure, a deficient appeal may be summarily dismissed. 13 C.F.R. § 134.1105(d). Such is the case here, as Appellant has not alleged any error on the part of the D/GC, and it does not appear that Appellant disputes the D/GC's key finding or analysis. VSBC Appeal of Divinely Elegant Vines LLC, SBA No. VSBC-317-A (2023); CVE Appeal of Watanabe Enterprises, LLC, SBA No. CVE-218-A, at 2 (2022), recons. denied, SBA No. CVE-224-A (2022) (PFR); CVE Appeal of Rock Int'l Envtl. Corp., SBA No. CVE-168-A, at 1 (2020) (dismissing appeal that merely “request[ed] that OHA allow Appellant to remain verified but has not articulated any valid basis for OHA to disturb [[the cancellation] decision”); CVE Appeal of Arctic Tundra Supply and Servs. LLC, SBA No. CVE-130-A (2019); CVE Appeal of Secure2ware, Inc., SBA No. CVE-111-A, at 2 (2019).

*2 For the above reasons, the appeal is DISMISSED. This is the final decision of the U.S. Small Business Administration. 13 C.F.R. § 134.1112(d).