Email Terminating Company’s 8(a) Status Ended Up in Junk Folder, But that Didn’t Excuse Late OHA Appeal

In the Matter of LFM Industries, Inc. d/b/a Massey Industries, Inc., SBA No. BDPT-601

This is the kind of thing that keeps attorneys up at night. The SBA emailed a termination notice, but the email ended up in the company’s junk email folder. The company didn’t see it for months and ended up filing a late appeal. In dismissing the appeal for lack of jurisdiction, OHA basically said, “Them’s the breaks.” SBA is not responsible for the internal workings of a company’s email system. Regardless of the folder it ended up in, the day the email hit the system was the day the appeal clock began.

On November 30, 2021, the SBA terminated LFM Industries from participation in the 8(a) Business Development Program. LFM appealed the termination to SBA’ Office of Hearings and Appeals on February 11, 2022. LFM argued that it had not filed the appeal sooner because the email terminating its status had been filed in a junk folder. The company only became aware of the termination months after it had been sent

OHA found that it lacked jurisdiction over the appeal. An appeal challenging termination of 8(a) status must be filed within 45 days after receipt of the termination notice. Here, even though the email had been filed in a junk folder, LFM had still received the termination in November 2021. SBA cannot be on notice of the internal workings of a company’s email system. The appeal was late even though it was filed in the junk folder.

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