Robertson & Penn, Inc., Crown Support Services, Inc., & Penn Enterprises, Inc. No. 4512, (September 30, 2002) Docket Nos. NAICS-2002-09-24-45, NAICS-2002-09-24-46, & NAICS- 2002-09-24-47 UNITED STATES OF AMERICA SMALL BUSINESS ADMINISTRATION OFFICE OF HEARINGS AND APPEALS WASHINGTON, D.C. ) NAICS APPEALS OF: ) ) Robertson & Penn, Inc. ) Docket Nos. NAICS-2002-09-24-45 Crown Support Service, Inc. ) NAICS-2002-09-24-46 Penn Enterprises, Inc. ) NAICS-2002-09-24-47 ) Appellants ) ) Decided: September 30, 2002 Solicitation No. DABT31-02-R- ) 0004 ) Department of the Army ) Directorate of Contracting ) Fort Leonard Wood, Missouri ) ORDER DISMISSING APPEALS AS UNTIMELY* I. BACKGROUND On August 5, 2002, the Directorate of Contracting at Fort Leonard Wood, Missouri, issued the subject Request for Proposals (RFP) for Laundry and Dry Cleaning Services at a Government Owned and Contractor Operated Facility. The Contracting Officer (CO) assigned to the procurement North American Industry Classification System (NAICS) code 812320, Drycleaning and Laundry Services (except Coin-Operated), and stated that the applicable size standard was $3.5 million in annual receipts. Offers were due on September 13, 2002. On September 10, 2002, the CO issued Amendment 2, which extended the time for submission of offers to October 1, 2002. On September 19, 2002, the CO issued Amendment 3, which corrected the size standard to $4 million in annual receipts. This was done because the Small Business Administration (SBA) had raised the size standard for NAICS code 812320 to $4 million, effective February 22, 2002. 67 Fed. Reg. 3041, 3056 (Jan. 23, 2002). On September 19, 2002, Penn Enterprises, Inc. (PEI), through counsel, filed an appeal of the NAICS code designation with the CO, arguing that the appropriate designation is either NAICS code 812331, Linen Supply, or NAICS code 812332, Industrial Launderers, both with a corresponding $12 million annual receipts size standard. On September 23, 2002, PEI reasserted this position in a letter to the Directorate of Contracting at Fort Leonard Wood. On September 20, 2002, Robertson & Penn, Inc. filed an appeal with the CO, asserting that NAICS code 812322 is the correct designation for this procurement. On September 23, 2002, Crown Support Services, Inc. filed an appeal with the CO, also asserting that NAICS code 812322 is the correct designation for this procurement. On September 24, 2002, the CO forwarded all three appeals to this Office, together with a statement that they are untimely. This Office docketed the appeals, and the Administrative Judge ordered that all three be consolidated, because they involve the same RFP and the same issues. II. DISCUSSION The undisputed record here demonstrates that the CO issued this solicitation on August 5, 2002, and these appeals were filed with this Office on September 24, 2002. (In order to commence a case, appeals must be filed with this Office. 13 C.F.R. Sections 134.202, 134.204.) Even if the Administrative Judge were to take the filings with the CO as the effective date of filing, that would still mean that the earliest of these appeals was filed with the CO on September 19, 2002. A NAICS code appeal must be filed within 10 days of the issuance of the solicitation. 13 C.F.R. Section 134.304(a)(3). The Administrative Judge may not extend the time limit for filing an appeal. 13 C.F.R. Section 134.103(b). Rather, he must dismiss an untimely appeal. 13 C.F.R. Section 134.304(b); NAICS Appeal of Brenner Aerospace, SBA No. NAICS-4493 (2002). While the ten-day period set in the docketing Notice and Order has not yet expired, the CO has already submitted the RFP and made its response, in its statement that the appeals are untimely, and the untimeliness of these appeals is so clear that the Administrative Judge is ruling on them now, rather than wait until after the deadline for submission of offers. See 48 C.F.R. Section 19.303(c)(4), (5). Appellants may believe their appeals are timely because an amendment to an RFP which materially affects the NAICS code designation extends the deadline for filing an appeal to ten days from the date of that change. SIC Appeal of Engineering Design Corporation, SBA No. SIC-4268, at 3 (1997). However, the September 19th Amendment made no material change in the RFP which might affect the NAICS code designation. Rather, it merely corrected an error in the original RFP's statement of the applicable size standard. The Amendment did not materially change the Statement of Work, and left undisturbed the NAICS code designation made on August 5th, which designation the Appellants only now seek to change. Therefore, the deadline for appealing the NAICS code designation in this procurement was August 15, 2002, and Appellants failed to meet it. Accordingly, the Administrative Judge concludes he must dismiss these untimely appeals. III. CONCLUSION Accordingly, for the above reasons, the Administrative Judge DISMISSES these NAICS appeals as untimely. This is the Small Business Administration's final decision. 13 C.F.R. Section 134.316(b). CHRISTOPHER HOLLEMAN Administrative Judge _________________________ * This appeal is decided under the Small Business Act of 1958, 15 U.S.C. Section 631 et seq., and 13 C.F.R. Parts 121 and 134. Posted: October, 2002