SBA No. SIZ-5655, 20152015 WL 2149481April 30, 2015

SBA No. SIZ-5655, 2015 (S.B.A.), 2015 WL 2149481
Small Business Administration (S.B.A.)
Office of Hearings and Appeals
[Size Appeal]
*1 SBA No. SIZ-5655
*1 Appealed from Size Determination No. 2-2015-40
*1 April 30, 2015
I. Background
*1 On January 30, 2015, U.S. Small Business Administration (SBA) Office of Government Contracting - Area II (Area Office) issued Size Determination No. 2-2015-40, dismissing a size protest filed by Supplies Now, Inc. (Appellant) against EZ Print Supplies (EZ Print) in conjunction with a procurement of office supplies. The Area Office determined that Appellant was notified that EZ Print was the apparent awardee on August 12, 2014, and that Appellant submitted the size protest to the Contracting Officer on September 9, 2014. (Size Determination at 1.) As a result, Appellant's size protest was untimely as it was filed more than five business days after award notification. (Id., citing 13 C.F.R. § 121.1004.) Appellant received the size determination on February 3, 2015. (Appeal at 1.)
*1 On April 9, 2015, SBA's Office of Hearings and Appeals (OHA) received the instant appeal. Because the appeal appeared to have been filed more than fifteen days after Appellant's receipt of the size determination, OHA ordered Appellant to show cause why the appeal should not be dismissed as untimely.
*1 On April 16, 2015, Appellant responded to OHA's order. Appellant asserts that it first transmitted its appeal by e-mail to OHA and other parties on February 18, 2015, within the time frame for filing a timely size appeal. (Response at 1 (citing 13 C.F.R. § 134.304).). Appellant offers an acknowledgement from Appellant's e-mail account entitled “Certificate of service.” The acknowledgment is dated February 18, 2015, and states: “Delivery to these recipients or groups is complete, but no delivery notification was sent by the destination server.” (Acknowledgment at 1, emphasis in original.) OHA's e-mail address is among those listed in the acknowledgement. (Id.)
*1 Appellant further explains that, “[a]fter waiting about 6 weeks without receiving a ruling or any notification from [OHA],” Appellant contacted OHA to inquire about the status of the appeal. (Response at 1.) OHA informed Appellant that the appeal had not been received and should be re-transmitted. (E-mail from M. Thomas to J. Cheatham (Mar. 23, 2015), at 1.)
II. Discussion
*1 The instant appeal is untimely and must be dismissed. In accordance with 13 C.F.R. § 134.304(a), a size appeal must be filed at OHA within fifteen days of receipt of the size determination. Here, Appellant received the size determination on February 3, 2015. Fifteen days after February 3, 2015 was February 18, 2015. The appeal petition was not received by OHA until April 9, 2015, and therefore is plainly untimely. OHA has no discretion to extend, or waive, the deadline for filing an appeal. 13 C.F.R. §§ 134.202(d)(2)(i)(A), 134.304(c); Size Appeal of Autonomic Resources, LLC, SBA No. SIZ-5453 (2013).
*2 Appellant maintains that it attempted to transmit its appeal by e-mail on February 18, 2015, as indicated by the acknowledgement. By regulation, though, a document must be received at OHA in order to be considered “filed.” 13 C.F.R. § 134.204(b); Size Appeal of A-Top Security Co., SBA No. SIZ-5227, at 2 (2011) (“The regulations are clear that an appeal petition is not ‘filed’ until it is actually received at OHA.”) (emphasis in original). Furthermore, SBA regulations provide that, although e-mail is a permissible method of delivery, “[t]he sender is responsible for ensuring ... a successful, virus-free transmission,” and the sender is encouraged to contact OHA by telephone to verify receipt. 13 C.F.R. § 134.204(a)(1) and (b); see also https:// Accordingly, having chosen to submit its appeal by e-mail, Appellant was responsible for ensuring that the e-mail successfully reached OHA. Nor could Appellant reasonably rely solely upon the acknowledgement from its e-mail system, particularly given that Appellant received no response, over a period of several weeks, from OHA, EZ Print, or other intended recipients of the appeal.
III. Conclusion
*2 For the above reasons, I DISMISS the instant appeal as untimely.
*2 This is the final decision of the Small Business Administration. See 13 C.F.R. § 134.316(d).
*2 Kenneth M. Hyde
*2 Administrative Judge


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.
SBA No. SIZ-5655, 2015 (S.B.A.), 2015 WL 2149481
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