SIZE APPEAL OF: HRCI-MPSC, PASS LLC, APPELLANT RE: DOMINION DYNAMICS CONSULTING, LLC
SBA No. SIZ-5500, 20132013 WL 6389271September 18, 2013
SBA No. SIZ-5500, 2013 (S.B.A.), 2013 WL 6389271
Small Business Administration (S.B.A.)
Office of Hearings and Appeals
*1 SIZE APPEAL OF: HRCI-MPSC, PASS LLC, APPELLANT
*1 RE: DOMINION DYNAMICS CONSULTING, LLC
*1 SBA No. SIZ-5500
*1 Appealed from Size Determination No. 2-2013-114
*1 September 18, 2013
ORDER DISMISSING APPEAL1
*1 On April 3, 2012, the Michigan Air National Guard, Selfridge ANG Base, Michigan, issued Solicitation No. W912JB-12-R-4001 for general and administrative support services. The procurement was set aside for 8(a) small businesses and was assigned North American Industry Classification System (NAICS) code 541618, Other Management Consulting Services, with a $14 million annual receipts size standard. Initial offers were due on May 22, 2012.
*1 On June 12, 2013, the Contracting Officer (CO) notified unsuccessful offerors that Dominion Dynamics Consulting, LLC (DDC), was the apparent successful offeror. On June 19, 2013, HRCI-MPSC PASS, LLC (Appellant) filed a size protest alleging DDC was other than small, because it must be unusually reliant upon its (unnamed) ostensible subcontractor for performance of the primary and vital functions of this contract. The CO forwarded the protest to the U.S. Small Business Administration's (SBA) Office of Government Contracting-Area II (Area Office) for a size determination.
*1 On June 20, 2013, the Area Office issued Size Determination No. 2-2013-114 (Size Determination), dismissing Appellant's protest because it “failed to set forth specific grounds for the allegation,” citing 13 C.F.R. § 121.1007(b).
*1 On June 25, 2013, Appellant filed the instant appeal. On July 12, 2013, DDC filed its response to the appeal.
*1 On July 17, 2013, the National Guard Bureau (Agency), in response to two Government Accountability Office (GAO) protests, issued a Notice of Agency Corrective Action announcing that it would cancel the award to DDC, reassess whether the current solicitation properly reflects its requirements and, if necessary, issue a new or revised solicitation. The GAO then dismissed both protests. On August 7, 2013, Appellant filed with OHA a copy of the Notice of Agency Corrective Action.
*1 On August 8, 2013, I issued an Order to Show Cause why the instant appeal should not be dismissed as moot given the Agency's Corrective Action. On August 19, 2013, Appellant responded to the Order to Show Cause. Appellant states that on July 29, 2013, DDC protested the Agency's Corrective Action requesting the Agency not cancel DDC's award. Appellant requests that OHA not dismiss the instant appeal or, in the alternative, that OHA stay the appeal until the GAO has issued its decision in Protest No. B-407810.4.
*1 On August 22, 2013, I stayed the appeal pending the outcome of the GAO protest. On September 4, 2013, Appellant and DDC filed a joint Status Report. The Status Report stated that DDC had withdrawn its GAO protest. On August 29, 2013, GAO confirmed the withdrawal and closed its file without further action.
*2 Appellant requests that OHA keep the stay in place until such time as it clear what corrective action the Agency intends to take. Appellant argues that the Agency may reevaluate proposals already submitted by offerors, and thus its appeal would remain ripe for resolution. DDC objects to continued stay of the appeal.
*2 On September 18, 2013, the CO filed with OHA a copy of Modification P00002 terminating for convenience the award to DDC.
*2 Appellant filed the instant appeal within 15 days of receiving the Size Determination, and thus the appeal is timely. 13 C.F.R. § 134.304(a).
*2 Nevertheless, I must dismiss the instant appeal as moot. The basis of Appellant's protest and subsequent appeal is its contention that DDC is unusually reliant upon its unnamed ostensible subcontractor. This is a contract-specific contention, one which could only be decided based upon analysis of DDC's proposal. Ostensible subcontractor inquiries are intensely fact-specific given that they are based upon the specific solicitation and specific proposal at issue. Size Appeals of CWU, Inc., et al., SBA No. SIZ-5118, at 12 (2010). Here, given that the award has been cancelled, DDC's proposal is no longer an issue. Size Appeal of Navarro Research and Engineering, Inc., SBA No. SIZ-5473 (2013). There is thus no longer a live case or controversy to decide.2
*2 Accordingly, I DISMISS the instant appeal as MOOT.
*2 This is the final decision of the Small Business Administration. 13 C.F.R. § 134.316(d).
This appeal is decided under the Small Business Act of 1958, 15 U.S.C. § 631 et seq., and 13 C.F.R. parts 121 and 134.
In the event a new award is made to DDC, this dismissal does not prevent Appellant from filing a new protest of the new award.
SBA No. SIZ-5500, 2013 (S.B.A.), 2013 WL 6389271
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