NAICS APPEAL OF: METRIS, LLC, APPELLANT

*1 On July 7, 2015, the U.S. Department of State issued Request for Proposals (RFP) No. SAQMMA15R0318. The Contracting Officer (CO) assigned North American Industry Classification System (NAICS) code 561210 and identified the size standard for that NAICS code, $38.5 million. (RFP at 94.) However, the RFP contained an incorrect NAICS descriptor. Specifically, the NAICS descriptor in the RFP was “Other Scientific and Technical Consulting Services” rather than ““Facilities Support Services,” the NAICS descriptor associated with NAICS code 561210. (Id.)

*1 On November 5, 2015, the CO issued Amendment A003, changing the NAICS descriptor to “Facilities Support Services” to match NAICS code 561210. (Amendment A003, Attachment 10, at comment 185.) On November 23, 2015, the CO issued Amendment A004. In response to a request from Metris, LLC (Appellant) to consider alternate NAICS codes, the CO stated that because the procurement “encompasses a large variety of activities including training, logistical and construction services,” NAICS code 561210 “will not be changed.” (Amendment A004, Attachment 10, at comment 34.)

*1 On December 2, 2015, Appellant filed the instant appeal with the U.S. Small Business Administration Office of Hearings and Appeals (OHA). Since the appeal appeared to be untimely, OHA ordered Appellant to show cause why the appeal should not be dismissed.

*1 On December 11, 2015, Appellant responded to OHA's Order. Appellant asserts that, at the time the RFP was issued, there was an ambiguity as to which NAICS would apply because the NAICS code and NAICS descriptor were inconsistent. Although Amendment A003 resolved this issue, the CO did not explain why NAICS code 561210 would be appropriate for this RFP, and did not address Appellant's request to consider other NAICS codes. Not until Amendment A004 did the CO deny Appellant's request and provide “a definitive answer to the core question surrounding the NAICS code assignment.” (Response to Show Cause Order, at 4.) The appeal was filed within 10 days of the issuance of Amendment A004, Appellant reasons, and therefore is timely.

*1 Under applicable regulations, a NAICS code appeal must be filed within 10 calendar days after issuance of the solicitation, or within 10 calendar days of a solicitation amendment affecting the NAICS code or size standard. 13 C.F.R. §§ 121.1103(b)(1) and 134.304(b); Federal Acquisition Regulation (FAR) 19.303(c)(1); NAICS Appeal of Trans Aero Ltd., SBA No. NAICS-5443 (2013). An untimely appeal must be dismissed, and OHA has no discretion to extend, or waive, the deadline for filing a NAICS code appeal. 13 C.F.R. §§ 134.304(c), 134.202(d)(2)(i)(A), and 121.1103(b)(1); FAR 19.303(c)(1).

*2 In the instant case, Appellant maintains that the appeal is timely because it was filed within 10 calendar days after the issuance of Amendment A004. By its terms, though, Amendment A004 did not alter the assigned NAICS code but rather made clear that the NAICS code “will not be changed.” See Section I, supra. Because Amendment A004 did not alter, or affect, the NAICS code assigned to the RFP, I must reject Appellant's claim that a NAICS appeal could be brought within 10 calendar days of Amendment A004. Further, although Amendment A003 revised the NAICS descriptor and therefore arguably did affect the NAICS code, the instant appeal was not filed within 10 calendar days of Amendment A003.

*2 Appellant also argues that, until the issuance of Amendment A004, the CO had not responded to Appellant's request to consider alternate NAICS codes. OHA has addressed similar arguments on several occasions, however, and has repeatedly held that “deliberations with a procuring agency, which do not result in any change to the solicitation, do not extend the [NAICS] appeal deadline.” NAICS Appeal of R. Christopher Goodwin & Assocs., Inc., SBA No. NAICS-5382, at 2 (2012); see also Trans Aero Ltd., SBA No. NAICS-5443, at 5; NAICS Appeal of Secure Network Sys., LLC, SBA No. NAICS-5236, at 2 (2011). Here, Amendment A003 was the last amendment to affect the NAICS code, so any NAICS code appeal should have been filed within 10 calendar days of Amendment A003, notwithstanding that Appellant was still awaiting a response to its request that other NAICS codes be considered.

*2 The instant appeal was filed more than 10 calendar days after issuance of the RFP, and more than 10 calendar days after Amendment A003, the last amendment affecting the NAICS code. As a result, the appeal is DISMISSED as untimely. This is the final decision of the Small Business Administration. 13 C.F.R. § 134.316(d).