SIZE APPEAL OF: SEA BOX, INC., APPELLANT RE: TRIBALCO, LLC
SBA No. SIZ-5846, 20172017 WL 3579810August 7, 2017
SBA No. SIZ-5846, 2017 (S.B.A.), 2017 WL 3579810
Small Business Administration (S.B.A.)
Office of Hearings and Appeals
*1 SIZE APPEAL OF: SEA BOX, INC., APPELLANT
*1 RE: TRIBALCO, LLC
*1 SBA No. SIZ-5846
*1 Appealed from Size Determination No. 02-2017-086
*1 August 7, 2017
*1 Ronald A. Farber, Esq.
*1 Director of Contracts and Counsel
*1 Sea Box, Inc.
*1 For Appellant
*1 Richard L. Moorhouse, Esq.
*1 Greenberg Traurig, LLP
*1 For Tribalco, LLC.
I. Procedural History and Jurisdiction
*1 On June 8, 2017, the U.S. Small Business Administration (SBA) Office of Government Contracting, Area II (Area Office) issued Size Determination No. 02-2017-086, dismissing for lack of standing a size protest filed by Sea Box, Inc. (Appellant), alleging Tribalco, LLC (Tribalco), is not an eligible small business for the procurement at issue.
*1 Appellant contends the size determination is clearly erroneous, and requests that SBA's Office of Hearings and Appeals (OHA) rescind it. For the reasons discussed infra, I deny the appeal, and affirm the Area Office's dismissal of the size protest.
*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. Appellant filed the instant appeal within fifteen days of receiving the size determination, so the appeal is timely. 13 C.F.R. § 134.304(a). Accordingly, this matter is properly before OHA for decision.
*1 On March 28, 2017, the General Services Administration (GSA) issued Solicitation No. GSQ0017AJ0016 (RFP) for Relocatable Simulator Shelters. The Contracting Officer set the procurement aside for small business, and designated North American Industry Classification System (NAICS) code 332311, Prefabricated Metal Building and Component Manufacturing, with a corresponding 750 employee size standard, as the applicable code for the procurement. Offers were due April 4, 2017. On May 15, 2017, GSA awarded the contract to Tribalco.
*1 On May 18, 2017, Appellant wrote to the CO, stating it had “significant evidence” Tribalco is ineligible for the award. Appellant stated Tribalco fails to meet the applicable size standard, that it is not a manufacturer, and that it does not qualify as a nonmanufacturer for this procurement. Appellant included detailed allegations and attached supporting documentation. Appellant requested that the CO initiate a size protest by forwarding its letter and enclosures to the Area Office.
*1 On May 22, 2017, the CO referred Appellant's letter to the Area Office, characterizing it as a size status protest. The CO stated that in a debriefing on May 17, 2017, she had informed Appellant it was eliminated from consideration for award because it had failed a pass/fail element unrelated to size or responsibility.
*2 On June 8, 2017, the Area Office issued Size Determination No. 02-2017-086, dismissing Appellant's protest for lack of standing, because Appellant had been eliminated from consideration for failing a pass/fail element unrelated to size or responsibility. The Area Office further informed Appellant: “This office is evaluating the allegations outlined in the size protest provided. At the request of the Contracting Officer this office will file a size protest against Tribalco, LLC.”
*2 On June 26, 2017, Appellant filed the instant appeal. Appellant argues it did not file a size protest against Tribalco. Rather, Appellant submitted information to the CO so that she could file a size protest, “if she so decided.” (Appeal at 1.) Appellant states that it “was determined not to be an interested party,” and maintains its protest “should not have resulted in a [s] ize [determination attributable to it.” (Id. at 2.) Appellant argues the Area Office's dismissal is erroneous because Appellant did not file a size protest, and the Area Office's failure to rescind it is further error. Appellant asserts it will be harmed by being on record as having had its size protest dismissed.
*2 Appellant attached to the appeal the May 18, 2017, letter to the CO (including all the original attachments), a copy of the size determination, and copies of emails between itself and GSA and SBA. In these emails, which are new evidence on appeal, Appellant documents its many attempts to learn whether the CO had in fact filed a size protest, and its attempts to have the Area Office rescind its size protest.
*2 On July 12, 2017, Tribalco responded to the appeal. With its response, Tribalco seeks to have admitted a statement provided by the CO. Tribalco notes that Appellant asserts it never attempted to file its own protest, but instead asked the CO to do so. Tribalco asserts the CO denies she initiated her own protest, but merely forwarded Appellant's as the regulation requires. Tribalco asserts there is a size protest against it currently pending before the Area Office (No. 02-2017-093), and that it is clear this is Appellant's protest. Tribalco maintains the instant size determination is fully valid, and OHA should dismiss this appeal.
*2 Tribalco expresses concern about the possible admittance of Appellant's counsel under the Protective Order, given that Appellant's counsel is in-house and also its Director of Contracts. Tribalco notes it has submitted information to the Area Office for Size Determination No. 02-2017-093 and asserts no counsel for Appellant should be granted access to this information unless qualified as outside counsel under the Protective Order.
*2 On July 12, 2017, Appellant filed a pleading which it characterizes as a Response to OHA's Notice and Order, but which is more properly characterized as a Supplemental Appeal. Appellant states it has filed a protest at the Governmental Accountability Office, and identifies the CO's statement as filed in that proceeding. Appellant also seeks to submit a copy of this document here.
A. Standard of Review and New Evidence
*3 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).
*3 Appellant and Tribalco both seek to submit new evidence on appeal, evidence that the Area Office did not see. OHA generally will not consider evidence not previously presented to the Area Office. 13 C.F.R. § 134.308(a). OHA's review is based upon the evidence in the record at the time the Area Office made its determination. Size Appeal of Taylor Consultants, Inc., SBA No. SIZ-4775, at 10-11 (2006). As a result, evidence that was not previously presented to the Area Office is generally not admissible and will not be considered by OHA. E.g., Size Appeal of Maximum Demolition, Inc., SBA No. SIZ-5073, at 2 (2009) (“I cannot find error with the Area Office based on documents the Area Office was unable to review.”). New evidence may be admitted on appeal at the discretion of the administrative judge if “[a] motion is filed and served establishing good cause for the submission of such evidence.” 13 C.F.R. § 134.308(a). Neither the CO's statement nor the emails proffered here was submitted to the Area Office, none of it was the basis of the Area Office's determination, and thus none of it can be the basis for a finding of clear error by the Area Office. I EXCLUDE the proffered new evidence.
*3 In reviewing this matter, I am puzzled as to what Appellant's complaint is, and how it claims to have been injured. The Area Office treated Appellant's letter as a protest, considered it, and then dismissed it for lack of standing. It then took the information Appellant submitted as the basis for its own protest under 13 C.F.R. § 121.1001(a)(1)(iii). Appellant does not maintain that it had standing. Appellant does not argue that if its letter was a protest, the Area Office should not have dismissed it. Rather, Appellant maintains that the Area Office has dismissed a size protest with Appellant's name on it, and Appellant is somehow injured by this.
*3 I conclude Appellant has not been injured, and the Area Office determination is not based on a clear error of fact or law. The Area Office did Appellant a favor by treating its letter as a protest. The question of whether the Area Director or the CO will file a size protest is a matter of discretion on their parts. 13 C.F.R. § 121.1001(a)(1)(ii) & (iii). They could easily decide not to do so. Appellant's only guarantee of any kind of hearing is if the Area Office entertains Appellant's letter as a protest. The Area Office's decision to do so was thus a reasonable one. In this case, Appellant lacked standing because the CO had eliminated it from consideration for award for a procurement-related reason. 13 C.F.R. § 121.1001(a)(1)(i). The Area Office thus properly dismissed the protest. Size Appeal of KAES Enterprises, Inc., SBA No. SIZ-5425 (2012).
*4 Appellant has not been harmed in any way by the Area Office's decision. Appellant was already eliminated from this procurement. Further, there are no adverse consequences from simply being on record as having filed an unsuccessful size protest. Many protestors have had their size protests dismissed without any lasting prejudice to them. In addition, the Area Office has said it will protest Tribalco's size itself. The Area Office has no time limitation on when it may file a size protest. 13 C.F.R. § 121.1004(b).
*4 I conclude that the Area Office's decision to treat Appellant's letter as a size protest was reasonable and did not prejudice Appellant in any way. The Area Office was further correct to dismiss the protest because of Appellant's lack of standing. Therefore, Appellant has failed to establish clear error by the Area Office, and I must therefore deny this appeal.
*4 Finally, I wish to allay Tribalco's concerns about its submissions to the Area Office for Size Determination No. 02-2017-093. While I issued a Protective Order in this case, no attorney has applied for admission under it, and I admitted no one under the Protective Order. Accordingly, no party has examined the Area Office file in this case. Further, anything Tribalco submitted as part of Size Determination No. 02-2017-093 is still at the Area Office, is not part of the record in this appeal, is not here at OHA, and thus was not available for inspection.
*4 Appellant has not demonstrated that the Area Office's dismissal of Appellant's protest is clearly erroneous. Accordingly, the appeal is DENIED, and the dismissal is AFFIRMED. This is the final decision of the Small Business Administration. 13 C.F.R. § 134.316(d).
I issued a Protective Order in this case on June 27, 2017. No attorney applied for or was granted admission under the Protective Order. I am satisfied that this Decision contains no confidential or proprietary information. Therefore, this Decision is not issued under the Protective Order, but is issued in its entirety for publication.
SBA No. SIZ-5846, 2017 (S.B.A.), 2017 WL 3579810
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