The Small Business Administration’s (“SBA”) Office of Hearings and Appeals (“OHA”) recently issued a decision exemplifying the well-known reality that protest deadlines are short and unforgiving. In Size Appeal of Supplies Now, Inc., SBA No. SIZ-5655 (Apr. 30, 2015), OHA denied, as untimely, an appeal of an SBA Area Office decision. The appellant, Supplies Now, contended it submitted an appeal via email on the 15th day after it received the adverse Area Office decision—the last day to file before the appeal deadline expired. OHA, however, never received the email submission and did not first learn of the protest until Supplies Now called six weeks later inquiring about the status of its appeal.

Supplies Now argued that OHA should determine timeliness based on when the protestor sent the email protesting the decision. As evidence, Supplies Now offered an acknowledgement email generated by its own email system that confirmed delivery to the intended recipients. The acknowledgement stated “Delivery to these recipients or groups is complete, but no delivery notification was sent by the destination server.” OHA rejected this position.

As justification for the harsh result, OHA noted that, because the 15-day time limit in 13 C.F.R. § 134.304(a) is jurisdictional, it had no discretion to deviate from the regulations (specifically § 134.204(b)) requiring a document to be received by OHA in order to be deemed filed. It further pointed to multiple admonishments and warnings in the applicable regulations. For example, although SBA regulations permit the use of email, OHA pointed out that § 134.204 cautions that “[t]he sender is responsible for ensuring . . . a successful, virus-free transmission” and also encourages the sender to telephone the SBA to confirm receipt. Accordingly, OHA dismissed the Supplies Now size appeal as untimely.

While OHA chastised the appellant for unreasonably relying solely upon its own email system acknowledgement in the face of silence from both OHA and the other intended recipients for the email, it is unlikely that a telephone call to OHA a few days after the deadline to confirm receipt would have resulted in a different outcome. The decision makes it clear that OHA lacks the authority to extend or waive the deadline for filing an appeal.

Contractors, both large and small, can learn several key lessons from Supplies Now’s unfortunate experience. First, contractors should not rely on acknowledgements generated by their own email systems. Instead, they should call OHA after submitting a size appeal via email to confirm receipt and such call should be made with enough time to file again before the relevant deadline. Second, the decision serves as a stark reminder that the SBA size protest deadlines are not flexible—OHA has no discretion to extend the jurisdictional deadlines or create exceptions for technical difficulties. As Supplies Now learned, failure to heed these recommendations can result in a protest becoming lost in transmission.

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Photo of Kevin Barnett Kevin Barnett

Kevin Barnett represents clients in all aspects of government contracts law. He has represented contractors in litigating claims against the United States before the Court of Federal Claims, the boards of contract appeals, and against a foreign government in an international arbitration. He…

Kevin Barnett represents clients in all aspects of government contracts law. He has represented contractors in litigating claims against the United States before the Court of Federal Claims, the boards of contract appeals, and against a foreign government in an international arbitration. He has counseled clients on GSA schedule contract compliance, Buy American Act and Trade Agreement Act issues, and the attorney-client privilege. Mr. Barnett also routinely assists clients of all sizes in navigating the Freedom of Information Act (FOIA) process from drafting and negotiating requests through litigating in federal court.

Photo of Scott A. Freling Scott A. Freling

Scott Freling represents civilian and defense contractors, at all stages of the procurement process, in their dealings with federal, state, and local government customers and with other contractors. He has a broad-based government contracts practice, which includes compliance counseling, internal investigations, strategic procurement…

Scott Freling represents civilian and defense contractors, at all stages of the procurement process, in their dealings with federal, state, and local government customers and with other contractors. He has a broad-based government contracts practice, which includes compliance counseling, internal investigations, strategic procurement advice, claims and other disputes, teaming and subcontracting, and mergers and acquisitions. He represents clients in federal and state court litigation and administrative proceedings, including bid protests before the Government Accountability Office and the U.S. Court of Federal Claims. He also represents clients in obtaining and maintaining SAFETY Act liability protection for anti-terrorism technologies. Mr. Freling’s experience covers a wide variety of industries, including defense and aerospace, information technology and software, government services, life sciences, renewable energy, and private equity investment in government contractors.