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SIZE APPEAL OF: STANDARD COMMUNICATIONS, INC., APPELLANT RE: ADVANCED SYSTEMS, INC.

SBA No. SIZ-53222012 WL 926950January 26, 2012

SBA No. SIZ-5322 (S.B.A.), 2012 WL 926950
Small Business Administration (S.B.A.)
Office of Hearings and Appeals
[Size Appeal]
*1 SIZE APPEAL OF: STANDARD COMMUNICATIONS, INC., APPELLANT
*1 RE: ADVANCED SYSTEMS, INC.
*1 SBA No. SIZ-5322
*1 Appealed from Size Determination No. 2-2012-17
*1 January 26, 2012

Appearances

*1 Pamela J. Mazza, Esq.
*1 Steven J. Koprince, Esq.
*1 Megan C. Connor, Esq.
*1 PilieroMazza PLLC
*1 Washington, D.C.
*1 For Appellant
 
DECISION
  
I. Introduction & Jurisdiction
 
*1 The U.S. Small Business Administration (SBA) Office of Hearings and Appeals (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. Thus, the appeal is timely, 13 C.F.R. § 134.304(a), and this matter is properly before OHA.
 
II. Background
  
A. The Deadline for Filing Size Protests
 
*1 Because the instant case is somewhat unusual, I will begin with a discussion of the applicable regulation. A size protest must be filed with the contracting officer within five business days of the contracting officer's notification to the protestor of the identity of the prospective awardee. 13 C.F.R. § 121.1004(a)(2). A protest must be delivered to the contracting officer by hand, telegram, mail, facsimile, commercial delivery service, e-mail or telephone. If the protest is made by telephone, the contracting officer must receive a confirming letter either within the five-day period or postmarked no later than one day after the date of the telephone protest. 13 C.F.R. § 121.1005.
 
B. The Size Determination
 
*1 On July 22, 2011, the U.S. General Services Administration (GSA) issued Solicitation No. 4QTG3610TR10 (solicitation) to replace the existing telephone system at the VA Medical Center in Fayetteville, North Carolina. On October 5, 2011, GSA notified unsuccessful offerors that award would be made to Advanced Systems, Inc. (ASI). The five business day period for filing protests expired on October 13, 2011.1
*1 On October 14, 2011, the contracting officer, David K. Wilson (CO), received a written protest of ASI's size from Pamela J. Mazza, counsel for Standard Communications, Inc. (Appellant), asserting that ASI is affiliated with its ostensible subcontractor for this procurement. This point is undisputed. There are, however, disputes between Ms. Mazza and the CO as to what transpired on October 13, 2011. The record contains an email dated October 17, 2011, from the CO referring the protest to the Small Business Administration (SBA) Office of Government Contracting - Area III in Atlanta, Georgia (Area III Office). On November 3, 2011, the Area III Office instructed the CO to forward the protest to SBA's Office of Government Contracting - Area II in King of Prussia, Pennsylvania (Area II Office). The Area III Office stated it had not received the written protest from the CO, only an incomplete size protest checklist, and instructed the CO to send the protest and all relevant documents to the Area II Office.
*2 On November 4, 2011, the Area II Office contacted the CO via email to inform him Ms. Mazza was asserting she had made a telephonic protest on October 13th. The Area II Office also requested a copy of the solicitation and all amendments. On November 7, 2011, the CO informed the Area II Office via email:
*2 I received no voicemail on 10/13/11 from the protestor counsel however, there was a missed call listed on my work desk phone, after my normal duty hours, that appears to be a number similar to protestor counsels number.
*2 The CO also stated he was attaching the solicitation documents, but they are not in the Area II Office's record transmitted to OHA.
*2 On November 16, 2011, the Area II Office dismissed Appellant's protest as untimely. (Size Determination). The Area II Office noted that the written protest was not received by the CO until October 14, 2011. The Area II Office further stated:
*2 We further note that it was indicated that either personnel from your firm or that of your Counsel contacted the Contracting Officer by telephone on October 13, 2011 and advised that a written protest was forthcoming on October 14, 2011. The Area Office contacted the Contracting Officer and was advised that no such phone call or voice mail was received from your office or that of your Counsel. The Contracting Officer does recall that there was a “missed call” after hours. However, there was no actual phone call or voice mail.
*2 Size Determination, at 1.
*2 On November 17, 2011, Appellant, through counsel, requested that the Area II Office reconsider its dismissal of the protest. Appellant asserted its counsel, Ms. Mazza, left a voicemail for the CO on the afternoon of October 13, 2001, and followed up with an email sent at 4:47 pm on October 13, 2011. Appellant argued this established that it had filed a timely protest. Appellant submitted a copy of the email from Ms. Mazza to the CO, dated October 14, 2011 at 4:47 pm. The email states that it is a follow-up to the voicemail sent earlier that day protesting ASI's size status. Also on November 17, 2011, the CO provided the Area II Office with a copy of Ms. Mazza's October 13th email from his files. The Area II Office did not reconsider its Size Determination dismissing the protest.
 
C. Appeal Petition
 
*2 On December 1, 2011, Appellant filed the instant appeal. Appellant also files a motion for the admission of new evidence. Appellant seeks to admit into evidence an affidavit from Ms. Mazza, supported by counsel's telephone records, counsel's October 13th email to the CO, counsel's November 17th email to the Area II Office, and the Area II Office's November 18th email to Appellant's counsel.
*2 Ms. Mazza swears that on October 13, 2011, at 3:59 pm, she telephoned the CO and left a voicemail informing him Appellant was protesting ASI's size because ASI was affiliated with its ostensible subcontractor for this procurement. Ms. Mazza further swears that on that same day, she sent the CO an email at 4:47 pm, confirming her voicemail message and stating that she would be following up with a written protest the following day. Ms. Mazza further swears that on October 14th, she submitted the written protest to the CO. Ms. Mazza also swears that the documents submitted are true and correct copies of the originals.
*3 The law firm's telephone records document a call to the CO's telephone number on October 13, 2011, at 3:59 pm. The emails from Appellant's counsel to the Area II Office are already in the record and have been discussed. The November 18th email from the Area II Office to Appellant states that the CO stated in writing that he did not receive the voicemail, and that the Area Office has no reason to question the CO's statement. The Area II Office further states that Appellant's counsel's email was sent at 4:47 pm, when the close of business is 4:30 pm, citing FAR 15.208. While the Area II Office drew no explicit conclusion in its email, it appears to consider Appellant's counsel's email untimely and thus not to be considered.
*3 Appellant argues that it timely filed a telephonic protest, and timely followed that with a written protest. Appellant further argues that the Area II Office's reliance on FAR 15.208 is misplaced, because this regulation governs the submission of proposals when no time is specified in the solicitation. The regulation is not a universally applicable definition of “close of business”, citing Federal Systems Group, Inc., GSBCA No. 9240-P, 88-1 BCA ¶ 20,334 (1987). Appellant further argues that the CO's office was in fact open for business at that time. Appellant argues that counsel's sworn statement and contemporaneous records offer better evidence than the CO's statements to support Appellant's timely telephone protest.
*3 Neither ASI, the SBA, nor the CO responded to the appeal.
 
III. Discussion
  
A. Standard of Review and New Evidence
 
*3 Appellant has the burden of proving, by a preponderance of the evidence, all elements of its appeal. Specifically, Appellant must prove the size determination is based on a clear error of fact or law. 13 C.F.R. § 134.314; Size Appeal of Procedyne Corp., SBA No. SIZ-4354, at 4-5 (1999). OHA will disturb the size determination only if the administrative judge, after reviewing the record and pleadings, has a definite and firm conviction 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 seeks to enter into the record evidence not considered by the Area Office. Evidence not previously presented to the Area Office will not be considered unless the Administrative Judge orders its submission or a motion is filed and served establishing good cause for its submission. 13 C.F.R. § 134.308(a). Here, the emails from Appellant's counsel to the Area II Office are already in the record. The November 18th email from the Area II Office to Appellant should have been in the record (as should the solicitation). Appellant's evidence addresses matters Appellant could not have anticipated at the protest level, because the Area II Office did not inform Appellant prior to issuing the Size Determination that the timeliness of the protest was at issue. Therefore, Appellant did not have the opportunity to address the timeliness issue prior to the Area II Office issuing the Size Determination. In such a case, it is appropriate to admit new evidence into the record. Size Appeal of Hal Hays Construction, Inc., SBA No. SIZ-5234, at 4 (2011); Size Appeal of WRS Infrastructure and Environment, Inc., SBA No. 5007 (2008).
*4 Accordingly, I ADMIT Appellant's proffered evidence into the record.
 
B. Merits
 
*4 The issue here is whether Appellant made a telephonic protest to the CO on October 13th. Had Appellant made such a protest, it would be timely under the regulation. If the telephonic protest were timely, Appellant's October 14th written protest would be timely, because it was filed one day after the telephonic protest, as required by the regulation. The CO maintained to the Area II Office that he did not receive a telephonic protest. Ms. Mazza maintains that she made a timely telephonic protest.
*4 The Area II Office informed Appellant it had no grounds to question the CO's statement on the issue of whether Ms. Mazza had made the telephonic protest. I disagree; I find there are indeed grounds to question the CO's statement.
*4 First, the CO's email supposedly forwarding the protest did not actually include the protest. Second, only upon inquiry did the CO admit some kind of telephonic communication from Appellant, but then simply made a vague reference to a “missed call”, and stated that it was made after his normal duty hours. Third, only after the Size Determination was issued and Appellant requested reconsideration did the CO produce Appellant's counsel's October 13th email, a document which should have been forwarded promptly after October 14th, as part of the protest. The CO's story shifts over time, and important information and documents which should have been immediately produced are only doled out piecemeal, in response to requests from the Area II Office it should not have had to make. Taken as a whole, the CO's conduct here evidences at best negligence toward the size protest process, such that his statements cannot be considered reliable.
*4 In contrast, Appellant has presented Ms. Mazza's affidavit, with supporting documentation. OHA's settled precedent establishes that more weight is given to signed and sworn statements than to unsupported statements made by other parties. Size Appeal of Silver Enterprises Associates, Inc., SBA No. SIZ-5124 (2010). OHA attaches great evidentiary weight to affidavit testimony. Size Appeal of SBA Office of Government Contracting, SBA No. SIZ-4355, at 4 (1999). Therefore, in contrast to the CO, whose statements have shifted over time and who has failed to timely produce important documents, there is Ms. Mazza's sworn testimony, which is consistent with the contemporaneous documentary evidence in the record. I therefore conclude that I must give greater weight to Ms. Mazza's affidavit than to the CO's statements.
*4 Ms. Mazza swears she telephoned the CO and left the voicemail protesting ASI's size, and supports this with her firm's records, establishing a telephone call at 3:59 pm on October 13th to the telephone number the CO lists as his own in his signature block. There clearly was no “missed call” after hours. The CO's statement that the call was after hours is refuted by the law firm's telephone records, which show a time of 3:59 pm (well within any definition of normal duty hours), and the 4:47 pm October 13th email, which refers to a telephone call earlier in the day. The time Appellant's counsel sent the October 13th email is not important, as this email does not represent the protest.2 Rather, the important fact about this email is that it documents the telephonic protest made earlier in the day.
*5 I therefore conclude that Ms. Mazza, Appellant's counsel, telephoned the CO at 3:59 pm on October 13, 2011, and left a voicemail message protesting ASI's size. This was a timely protest under 13 C.F.R. § 121.1004(a)(2). On October 14, 2011, the following day, Appellant followed up with the delivery of a written protest to the CO. This met the requirements of 13 C.F.R. § 121.1005. Appellant thus filed a timely protest in accordance with the regulations. Appellant has met its burden of establishing clear error in the Area II Office Size Determination, and I must grant the appeal and remand this case to the Area II Office for a new size determination.
 
IV. Conclusion
 
*5 The record does not support the Size Determination. Accordingly, I find the Area Office erred in dismissing Appellant's protest as untimely. Thus, the appeal is GRANTED, and the Size Determination is VACATED and the case is REMANDED to the Area II Office for a new size determination.
*5 This is the final decision of the Small Business Administration. 13 C.F.R. § 134.316(d).
*5 Christopher Holleman
*5 Administrative Judge

Footnotes

The Columbus Day holiday occurred on October 10, 2011.
Nevertheless, the Area Office did err in relying upon FAR 15.208(a) as setting a close of business time of 4:30 pm. This regulation merely sets 4:30 pm as the time for receipt of proposals if no time is set in the solicitation. As Appellant noted, the idea that this sets a universal close of business was rejected by the General Services Board of Contract Appeals in Federal Systems Group, Inc., GSBCA No. 9240-P, 88-1 BCA ¶ 20,334 (1987), dealing with FAR 15.412(b), a predecessor regulation. In any event, OHA has held that 5:00 pm is generally considered the time for the close of business. Size Appeal of Eagle Home Medical Corp., SBA No. SIZ-4701, at 2, n. 3 (2005).
SBA No. SIZ-5322 (S.B.A.), 2012 WL 926950
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