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.