SIZE APPEAL OF: HUMAN LEARNING SYSTEMS, LLC, APPELLANT

*1 On September 9, 2016, the U.S. Small Business Administration (SBA) Office of Government Contracting, Area III (Area Office) issued Size Determination No. 03-2016-086, concluding that Human Learning Systems, LLC (Appellant), is not an eligible small business under the $35.5 million annual receipts size standard. Appellant timely filed this appeal on September 15, 2016.

*1 Appellant contends the size determination is clearly erroneous, and requests that SBA's Office of Hearings and Appeals (OHA) reverse the size determination and find Appellant is an eligible small business for the instant procurement. For the reasons discussed infra, the appeal is granted and the size determination is reversed. Appellant is an eligible small business for the subject procurement.

*1 OHA decides size determination appeals under the Small Business Act of 1958, 15 U.S.C. § 631 et seq., and 13 C.F.R. parts 121 and 134.

*1 On June 6, 2014, The U.S. Department of Labor (DOL) issued Solicitation No. DOLJ14SA00005 (RFP) for the administration of the Fred G. Acosta Job Corps Center in Tucson, Arizona (Center). The Contracting Officer (CO) issued the procurement as a small business set aside and designated North American Industry Classification System (NAICS) code 611519, Job Corps Centers, with a corresponding $35.5 million annual receipts size standard, as the appropriate code. Amendment No. 3 set the deadline for initial offers as September 4, 2014.

*1 On May 26, 2015, the CO sent notice that Appellant was the apparent successful offeror. Serrato Corporation (Serrato) filed both a size protest and a Government Accountability Office (GAO) bid protest. On July 2, 2015, the CO announced that corrective action would be taken. On April 20, 2016, the CO re-awarded the contract to Appellant. On April 26, 2016, Serrato filed another size protest. Serrato alleges Appellant is affiliated with the large businesses ResCare, Inc. (ResCare), the incumbent contractor on this procurement, Onex Partners, and Onex Corporation under the identity of interest rule, the newly organized concern rule, and the ostensible subcontractor rule. The CO forwarded the protest to SBA for a size determination.

*1 On May 24, 2016, the Area Office issued Size Determination No. 03-2016-058. The Area Office found Appellant affiliated with ResCare under the newly organized concern rule and the totality of the circumstances rule. The Area Office did not address the ostensible subcontractor allegation. Appellant appealed that size determination to OHA.

*2 On August 17, 2016, OHA issued Size Appeal of Human Learning Systems, LLC, SBA No. SIZ-5769 (2016). OHA found the Area Office had erred in finding Appellant and ResCare affiliated under the newly organized concern rule and the totality of the circumstances rule, and reversed these findings. OHA remanded the case to the Area Office for a new size determination on the ostensible subcontractor issue.

*2 The Statement of Work describes the contract's objective as providing material, services and all necessary personnel to operate a Job Corps Center. The contractor shall provide enrolled youth who meet the Job Corps' eligibility or admission requirements, with a comprehensive range of career development services leading to employment and long term attachment to the workforce. (RFP at 7.) The contractor will provide comprehensive career development services to students including academic, career technical, career success, independent living skills, career readiness and support services. (Id.) The evaluation factors include Past Performance, Technical Approach, Staff Resources and Cost. (Id. at 123-6.)

*2 Appellant's Staff Resources Proposal identifies as key personnel the Center Director, and states Appellant is not proposing any changes to the Center's leadership team. The Proposal includes commitment letters from these individuals in support of Appellant and towards continuing excellence at the Center. (Staff Resources Proposal at 1.) Appellant's Corporate Support Team will provide targeted technical assistance to the Center's staff through frequent onsite visits, weekly conference calls, desktop technology, and formal corporate ongoing assessments. (Id. at 2.) This will include monitoring compliance with DOL requirements, implementation of corporate initiatives, human resources management, technical assistance, and financial oversight. (Id.)

*2 Appellant's Corporate Support Team includes Mr. Williams, who has more than 25 years of experience with the Job Corps, including as Center Director, Deputy Director, and other managerial positions. Mr. Williams will provide day-to-day oversight for all aspects of Center operations, visiting the Center monthly. (Id. at 3.) Appellant also proposes [xxx] other officials of its own Corporate Team who will oversee the contract. These include Appellant's [xxx], with [[xxx]. (Id. at 3-5.) Appellant stated [xxx]. Positions not filled with incumbent employees will be filled using Appellant's established hiring procedures. (Id. at 20.)

*2 Appellant proposes ResCare, the incumbent contractor, as its subcontractor, to provide: Health & Wellness, Facilities Maintenance, Security, Property, and Food Service. (Id. at 2.) Appellant's staffing plan consists of [xxx] FTEs, of which Appellant itself will provide [xxx]. [xxx] will provide [xxx] FTEs, [xxx] will provide [xxx], and [xxx] will provide [xxx].

*3 Appellant's Past Performance submission emphasizes its work as a subcontractor on a number of Job Corps contracts, and Mr. Williams's extensive experience in working with the Job Corps. (Id. at 1.1, Past Performance, 1-15.)

*3 As part of its size investigation on remand, the Area Office asked Appellant several questions:

*3 (Email from the Area Office to Appellant, August 29, 2016.)

*3 The next day, Appellant responded that it did not intend to hire “the entire incumbent workforce from ResCare, including the current management team ... en masse”. ResCare would not employ manager or director level staff. All manager and director level positions would be Appellant's employees. Appellant maintained that any incumbent management staff considered for employment by Appellant expressed their interest to Appellant, were interviewed by Appellant, and submitted a letter of commitment. This means that they would be hired by Appellant at the contract start date and be employed solely by Appellant. (Email from Appellant to the Area Office, August 30, 2016, at 1.)

*3 Further, Appellant stated Mr. Williams would be “top person” in charge of the contract, supervising the Center Director, who would become Appellant's employee. Appellant stated that any incumbent staff would have the opportunity to apply for a vacancy, and may or may not be hired for positions in their current roles. Even if someone is hired for the same position, the actual job duties could be different, because Appellant has developed its own position descriptions. (Id. at 2.) Appellant submitted its transition timeline, which set out its plan to interview and hire staff. (Id. at 3-8.)

*3 As for the issue of distance, Appellant stated that while its headquarters is located in Atlanta, GA, it has contracts in Phoenix, AZ, San Francisco, CA, San Jose, CA, and Stockton, CA. It will not relocate its headquarters to every location of contract award. Neither Mr. Williams nor any other of Appellant's headquarters employees will relocate to Tucson to run the Center, but they will provide direction and support and Mr. Williams will travel there. (Id. at 8.) Appellant submitted an extract from its proposal to show Mr. Williams' extensive activities in managing the contract, including frequent conference calls, visits and evaluations of performance. (Id. at 9.)

*4 On September 9, 2016, the Area Office issued Size Determination No. 3-2016-086, finding Appellant other than small for this procurement because it is affiliated with ResCare under the ostensible subcontractor rule.

*4 The Area Office found Mr. Benjie Williams is Appellant's President/CEO and sole owner and officer. Appellant has been in business since April, 2011. Mr. Williams has no ownership in any other concerns. (Size Determination at 4.) The Area Office noted that Serrato's protest alleged Appellant is unusually reliant upon ResCare to perform the primary and vital contract requirements. It alleged ResCare was providing key personnel for contract performance, and that Appellant lacked the skill, employees, and expertise to perform this contract. (Id.)

*4 The Area Office noted Appellant had responded to these allegations on May 6, 2016. Appellant stated it does not rely on ResCare to provide any services. Further, Appellant will perform [xxx]% of contract value, including the primary and vital requirements. ResCare will be responsible for food services, wellness, maintenance, and security, representing only [xxx]% of contract value. Appellant maintained it receives no financial or technical support from ResCare. Appellant further maintained it is solely responsible for contract management and will perform the majority of the substantive work, and only Appellant's staff will communicate with the Department of Labor regarding contract performance. (Id. at 5.)

*4 The Area Office inquired of the CO what were the primary and vital requirements of the contract. The CO responded by referencing the Statement of Work § C.1, part B, where it states the requirements are to “provide academic, career technical, career success, employability, and independent living skills training.” (Id.)

*4 The Area Office found that in Appellant's proposal the Center Director, Administration Director, Career Development Director, Academics Supervisor, Career Technical Training Supervisor and Independent Living Manager are all currently ResCare employees, committed to working for Appellant after contract award. The Area Office thus concluded that the expertise and skills necessary to perform the contract actually came from the incumbent ResCare through its incumbent employees. Therefore, the Area Office found Appellant unusually reliant upon ResCare for the primary and vital requirements of the procurement. (Id. at 5.)

*4 The Area Office noted that Appellant relied upon Executive Order No. 13,495, Nondisplacement of Qualified Workers Under Service Contracts, 74 Fed. Reg. 6103 (Feb. 4, 2009), which encourages service contractors to offer a right of first refusal of employment to qualified employees performing under a predecessor contract for similar services at the same location. The Area Office further noted the Executive Order excludes managerial and supervisory employees from its coverage. Appellant's proposal stated it is not proposing any changes to the leadership team in place at the Center. The key personnel would be the Center Director, Administration Director, Career Development Director, Academics Supervisor, Career Technical Training Supervisor, and Independent Living Manager, all of whom are currently ResCare employees and provided commitment letters to move to Appellant contingent upon Appellant's award of the contract. There are [xxx] commitment letters in the proposal, [xxx]. (Id. at 6.)

*5 The Area Office noted that Appellant's proposal provided that Mr. Williams would provide day to day oversight of all Center operations, visiting it monthly. Mr. Williams informed the Area Office he would be the person in charge of the contract, and all Center personnel would be under Appellant's direction. (Id., citing email, B. Williams to August 30, 2016.) The Area Office noted Appellant's headquarters and Mr. Williams are located in Atlanta, GA, and the Center is in Tucson, AZ, and concluded actual day to day Center operations will be controlled by the Center leadership team, all currently ResCare employees, with Appellant providing only long distance support to the Center. (Id. at 6.)

*5 ResCare is providing the management skills and expertise through its incumbent leadership team employees. This goes beyond the Executive Order, because it protects only non- managerial and non-supervisory staff from displacement. Under these circumstances a finding of unusual reliance is called for, because Appellant is bringing nothing to the procurement but its small business status. The Area Office thus concluded Appellant is unduly reliant upon ResCare, and therefore affiliated with ResCare under the ostensible subcontractor rule. In support of this conclusion, the Area Office cited OHA's decisions in Size Appeal of Wichita Tribal Enterprises, LLC, SBA No. SIZ-5390 (2012); and Size Appeal of Dover Staffing, Inc., SBA No. SIZ-5300 (2011). The Area Office then determined Appellant was other than small, because ResCare is a large firm. (Id. at 7-8.)

*5 On September 15, 2016, Appellant filed the instant appeal. Appellant argues the Area Office erred in its failure to examine all aspects of the relationship between Appellant and ResCare, including the terms of the proposal and any agreements between the firms. These include the technical proposal, the teaming agreement, the Subcontracting Agreement, the Organizational structure, the Staff Resources Proposal, including the skills of Appellant's Corporate Staff, the Business Management Proposal, the distribution of contract, and Appellant's Relevant Experience and Past Performance. (Appeal at 2-3.)

*5 Appellant concedes that using the incumbent ResCare as a subcontractor warrants a heightened level of SBA scrutiny, but maintains that using ResCare does not automatically violate the ostensible subcontractor rule. Incumbency is only one of several factors SBA must consider in making the ostensible subcontractor determination. (Id. at 3.) Appellant points to the Area Office's August 29, 2016 email that posed questions solely about Appellant's hiring of staff, contending this was the only analysis the Area Office conducted relating to Appellant's hiring of staff. (Id.)

*6 Appellant maintains that ResCare is responsible only for food services, facilities maintenance, health and wellness, and security, and that these are not the primary and vital requirements of the contract. For the ostensible subcontractor rule to be violated, ResCare would have to operate the Academic, Career Technical, Career Success, Employability, and Independent Living areas of the contract. These areas, however, will be performed by Appellant's employees, as stated in the Proposal. Further, Appellant argues any staff member hired by Appellant will be Appellant's employee, and not ResCare's. (Id. at 4.)

*6 Appellant maintains that at the time of its proposal, Appellant employed a leadership team which consisted of a Career Training Technical Manager, an Academic Manager, a Career Transition Readiness/WBL Coordinator, a Career Transitions Services Director, and two Senior Job Corps Outreach and Admissions Counselors. The personnel in these management level positions will perform the primary and vital contract requirements. (Id. at 5.)

*6 Appellant argues the Area Office erred in making the sole basis of its determination Appellant's hiring of incumbent staff. Appellant reiterates, as it had explained to the Area Office in the August 30, 2016 email, that at the start of transition of a contract, all positions are considered vacant, and any current staffers of Appellant or ResCare may apply for any vacancy. Appellant would consider applications, and make offers to the employees it decides to hire. These persons will become Appellant's employees. Incumbent staff members may or may not be hired for positions in their current roles. (Id. at 5-6.)

*6 Appellant points out OHA has held that the hiring of incumbent personnel is common practice in Government services contracts, is required by Executive Order 13,495 and does not constitute undue reliance, provided they are hired individually and not en masse. Size Appeal of National Sourcing, Inc., SBA No. SIZ-5305 (2011). Appellant denies it intends to hire ResCare's staff en masse. (Id. at 6.)

*6 Appellant argues the Area Office erred in basing the size determination solely upon Appellant's hiring of some incumbent ResCare management. Appellant maintains that other factors must be considered to reach a finding of undue reliance. If the hired key personnel are under employment, supervision, and control of the prime contractor, there is no violation of the ostensible subcontractor rule. Size Appeal of Hanks-Brandan, LLC, SBA No. SIZ-5692 (2015); Size Appeal of Maywood Closure Company, LLC & TPMC-Energy Solutions Environmental Services 2009, SBA No. SIZ-5499 (2013); Size Appeal of InGenesis, Inc., SBA No. SIZ-5436 (2013). (Id. at 7.)

*7 Appellant maintains that the incumbent managers proposed to fill key positions will be Appellant's employees, not ResCare's once Appellant becomes the Center operator. ResCare has no role in contract management, and the employees will report to Appellant, and ultimate control and decision-making resides with Appellant. This supports a finding Appellant has not violated the ostensible subcontractor rule. Size Appeal of J.W. Mills Management, LLC, SBA No. SIZ-5416 (2012); Size Appeal of National Sourcing, Inc., SBA No. SIZ-5305 (2011). (Id.) While Appellant's proposal expressed a desire to hire a majority of current staff, the Area Office erred in making this desire the basis for a finding Appellant was in violation of the ostensible subcontractor rule. (Id. at 8.)

*7 Appellant asserts the Area Office erred in linking the location of its corporate office to a violation of the ostensible subcontractor rule. A company cannot relocate its office to every contract location. The proposal includes a travel budget, and the fact Appellant's office is in another state does not mean it cannot operate the Center, and is not a basis for a finding of undue reliance. (Id. at 9.) Further, the Area Office erred in finding Mr. Williams will visit the Center only once a month, when this is his minimum number of visits. (Id. at 9-10.) The Area Office erred in finding that ResCare incumbent employees will control contract performance; Appellant will control performance through its President, and Corporate Team, as described in the Proposal. (Id. at 10.)

*7 Appellant asserts the Area Office's reliance on Size Appeal of Wichita Tribal Enterprises, LLC, SBA No. SIZ-5390 (2012) is misplaced. Appellant brings more to this contract than its small business status. Appellant also brings over 27 years of experience in the Job Corps industry, including subcontractor experience in all areas of Job Corps Career Development Services Systems, including Outreach and Admissions, Academic, Career Technical Training, Work-Based Learning, Career Transitions Readiness and Career Transition (Placement) Services. (Id. at 11-12.) Appellant further distinguishes Size Appeal of Dover Staffing, SBA No. SIZ-5300 (2011) where the prime contractor relied entirely upon the subcontractor's performance record to win the contract. Appellant maintains it has extensive experience and can perform and manage the contract. (Id. at 12.)

*7 On September 29, 2016, the CO filed three documents from the Contract File. These are the Source Selection Determination, Past Performance Re-Evaluation, and Responsibility Determination from the Corrective Action taken by the Department of Labor in response to Serrato's bid protest at GAO.

*8 The CO evaluated Appellant's Past Performance [xxx]. The CO explicitly stated she did not consider ResCare's Past Performance in this evaluation. (Past Performance Re-Evaluation, March 30, 2016, at 4-5.)

*8 The CO also determined [xxx]. (Responsibility Determination, February 19, 2016, at 1-2.)

*8 In the Source Selection Determination the CO determined to make award to Appellant based on a number of factors. First, Appellant's Past Performance was rated Satisfactory. Second, Appellant was rated Very Good on its Technical Approach, with an exceptional rating for the most important subfactor, Career Development. The CO emphasized [xxx] Thus, the CO awarded the contract to Appellant. (Source Selection Determination, April 19, 2016, at 21-27 and 34-36.)

*8 Appellant has the burden of proving, by a preponderance of the evidence, all elements of the appeal. Specifically, Appellant must prove the size determination is based upon a clear error of fact or law. 13 C.F.R. § 134.314. OHA will disturb an area office's size determination only if, after reviewing the record, the administrative judge has a definite and firm conviction that the area office erred in making its key findings of fact or law. Size Appeal of Taylor Consultants, Inc., SBA No. SIZ-4775, at 11 (2006).

*8 The CO's submission is, in effect, a motion to submit new evidence. New evidence is admissible before OHA if the party seeking to admit the evidence files a motion and establishes good cause for its submission. 13 C.F.R. § 134.308(a)(2). The CO's submission brings significant light on the issues in this appeal, does not enlarge the issues or result in unfair prejudice to any party. Accordingly, I ADMIT the CO's submission into evidence. Size Appeal of National Sourcing, Inc., SBA No. SIZ-5305 (2011).

*8 The only issue in this appeal is whether the Area Office clearly erred in finding Appellant affiliated with ResCare under the ostensible subcontractor rule. The ostensible subcontractor rule provides that a prime contractor and its subcontractor may be treated as affiliates if the subcontractor performs the primary and vital requirements of the contract, or if the prime contractor is unusually reliant upon the subcontractor. 13 C.F.R. § 121.103(h)(4). The rule “asks, in essence, whether a large subcontractor is performing or managing the contract in lieu of a small business [prime] contractor.” Size Appeal of Colamette Constr. Co., SBA No. SIZ-5151, at 7 (2010). When examining the relationship between the prime and subcontractor, OHA will look into all aspects of the relationship, including the terms of the proposal and any agreement between the concerns, and whether the subcontractor is the incumbent contractor. Size Appeal of C&C Int'l Computers and Consultants Inc., SBA No. SIZ-5082 (2009). Of utmost importance in any ostensible subcontractor rule case is whether the subcontractor is performing the primary and vital contract requirements, and which concern is responsible for contract management. Size Appeal of Maywood Closure Company, LLC & TPMC-Energy Solutions Environmental Services 2009, LLC, SBA No. SIZ-5499 (2013). A contract's primary and vital requirements are those closely associated with the solicitation's primary purpose. Size Appeal of Santa Fe Protective Servs., Inc., SBA No. SIZ-5312, at 10 (2012). Ostensible subcontractor inquiries are “intensely fact-specific given that they are based upon the specific solicitation and the specific proposal at issue” Size Appeals of CWU, Inc., et al, SBA No. SIZ-5118, at 12 (2010).

*9 The Area Office based its finding that Appellant was unusually reliant upon ResCare on ResCare's incumbent status, Appellant's hiring of ResCare's current management and supervisory employees to perform the contract, and the fact that Appellant's headquarters is in Atlanta while the Center is in Tucson.

*9 Here, ResCare is the incumbent contractor, and the regulation requires SBA to consider this factor in ostensible subcontractor analysis. 13 C.F.R. § 121.103(h)(4); Size Appeal of Dover Staffing, Inc., SBA No. SIZ-5300 (2011). However, for a concern to enter into a subcontracting relationship with the incumbent is not a per se violation of the rule. Size Appeal of HX5, LLC, SBA No. SIZ-5331 (2012). An ostensible subcontractor analysis requires more than consideration of the subcontractor's status as an incumbent. Further, the Area Office points to no authority which requires a concern to be headquartered in the same city as the contract it will perform. Appellant has performed and is performing contracts at Job Corps Centers in various locations around the country. The fact that Mr. Williams will supervise the contract from a distance with occasional visits and electronic communication does not support a finding that Appellant will not perform the primary and vital requirements of the contract.

*9 Further, ResCare will itself be performing only 18% of the work on this contract, and none of its work will be for the primary and vital requirements. Rather, ResCare will perform the ancillary support services of food service, security, health and wellness, and facilities maintenance. The primary and vital requirements are the career training and services that the Center will provide, and Appellant will perform this work.

*9 The key issue here is Appellant's proposed hiring of ResCare's incumbent management and supervisory staff. The Area Office found that this meant Appellant is reliant upon ResCare for the expertise to perform the contract, and was bringing nothing to the contract but its small business status.

*9 OHA has long recognized that it is a common practice in Government services contracts for successor companies to hire an incumbent's employees. E.g. Size Appeal of Ideal Svcs., Inc., SBA No. SIZ-3317 (1990). The Executive Order specifically encourages contractors to offer a right of first refusal to of employment to qualified incumbent non-managerial employees. Executive Order No. 13,495, Nondisplacement of Qualified Workers Under Service Contracts, 74 Fed. Reg. 6103 (Feb. 4, 2009). OHA subsequently held that the hiring of incumbent non- managerial personnel cannot be considered strong evidence of unusual reliance. Size Appeal of Nat'l Sourcing, Inc., SBA No. SIZ-5303, at 12 (2011).

*10 Nevertheless, the Executive Order does not apply to managerial personnel. OHA has recognized that when the alleged ostensible subcontractor is the incumbent, and the prime contractor proposes to hire en masse both the workforce and managerial staff of the incumbent, this may be grounds to find the challenged concern is unusually reliant upon its ostensible subcontractor. Size Appeal of Wichita Tribal Enterprises, LLC, SBA No. SIZ-5390, at 10 (2012). In such situations, a finding of unusual reliance is more likely if the prime contractor is a new or inexperienced concern, and the alleged ostensible subcontractor is a highly experienced incumbent. Id.

*10 The Area Office relied on Size Appeal of Dover Staffing, Inc., SBA No. SIZ-5300 (2011) and Wichita Tribal Enterprises, supra. In Dover Staffing, the challenged concern's subcontractor was performing 40% of the work, and the challenged concern was hiring the subcontractor's employee en masse to perform 51% of the work. Further, the challenged concern had no experience in the relevant field, and relied on the subcontractor for its past performance. In Wichita Tribal Enterprises, the challenged concern's sole subcontractor was the ineligible incumbent on the predecessor contract, the subcontractor would be performing 49% of the work, it would hiring the incumbent's workforce en masse, and it had little relevant experience. In both cases OHA found the challenged concern unusually reliant upon its ostensible subcontractor, and thus in violation of the rule.

*10 These cases are not apposite here. Appellant has established it has extensive experience in the field, and the [xxx] explicitly excluded ResCare's Past Performance from the evaluation. Further, the [xxx] emphasized not merely the personnel, but Appellant's Technical Approach, for which it is clearly not dependent upon ResCare. Further, although it has not explicitly mentioned in the previous cases, I note that the ostensible subcontractors in those cases are performing 40% or more of the work. Here, ResCare is only performing 18% of the work, and none of the primary and vital training functions, which would support a conclusion Appellant is not unusually reliant upon ResCare, and that ResCare is not really controlling the contract.

*10 A more apposite case here is Size Appeal of InGenesis, Inc., SBA No. SIZ-5436 (2013). The challenged concern there proposed to use the incumbent as its subcontractor, and proposed to hire the incumbent managerial employees as its own. However, the challenged concern was also a well-established company in the field with an extensive record of performing similar work of comparable magnitude. OHA held that the fact that Appellant planned to utilize the incumbent as its subcontractor, and to hire the incumbent's managerial employees was insufficient to establish unusual reliance. OHA distinguished the Dover Staffing precedent, which only applies in situations where the prime contractor has little or no corporate experience of its own, and thus relied heavily upon the subcontractor's experience to win and perform the contract. InGenesis, at 15.

*11 Here, like the challenged concern in InGenesis, Appellant has extensive experience in the primary and vital areas of the contract. Appellant's President, Mr. Williams, has further extensive experience in the field prior to starting his own company. The Corporate Team at Appellant's headquarters also includes the Manager of Job Corps Operations, with additional Job Corps experience. This team will oversee the performance of the contract by the Center personnel. The CO relied on that experience in evaluating the Proposal. Where a concern has the ability to perform the contract, will perform the majority of the work, and will manage the contract, the concern is performing the primary and vital functions of the contract, and there is no violation of the ostensible subcontractor rule. InGenesis, at 14. Accordingly, Appellant's proposal does not meet the Dover Staffing test to establish unusual reliance.

*11 Accordingly, I find that the Area Office's conclusion that Appellant is unusually reliant upon ResCare was clear error and, therefore, that the size determination is based upon clear error. For this reason, I must vacate and reverse the size determination.

*11 Appellant has demonstrated that the size determination is clearly erroneous. Accordingly, the appeal is GRANTED, and the size determination is VACATED and REVERSED. Appellant is an eligible small business for the subject procurement.

*11 This is the final decision of the Small Business Administration. 13 C.F.R. § 134.316(d).