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SIZE APPEAL OF: ACR ELECTRONICS, INC., APPELLANT RE: MCMURDO, INC.

SBA No. SIZ-5770, 20162016 WL 4419561August 15, 2016

SBA No. SIZ-5770, 2016 (S.B.A.), 2016 WL 4419561
Small Business Administration (S.B.A.)
Office of Hearings and Appeals
[Size Appeal]
*1 SIZE APPEAL OF: ACR ELECTRONICS, INC., APPELLANT
*1 RE: MCMURDO, INC.
*1 SBA No. SIZ-5770
*1 Appealed from Size Determination No. 2-2016-074
*1 August 15, 2016

Appearances

*1 Richard J. Conway, Esq.
*1 Michael J. Slattery, Esq.
*1 Blank Rome LLP
*1 Washington, D.C.
*1 For Appellant
*1 Talbot J. Nicholas, II, Esq.
*1 For the United States Coast Guard
*1 Shlomo D. Katz, Esq.
*1 Brown Rudnick LLP
*1 For McMurdo, Inc.
 
ORDER DISMISSING APPEAL
  
I. Background
 
*1 On June 17, 2016, ACR Electronics, Inc. (Appellant) filed a size protest with the Contracting Officer for the United States Coast Guard (Coast Guard) alleging McMurdo, Inc. (McMurdo) was not an eligible small business for RFQ No. HSCG23-16-Q-MNQQ27. On July 12, 2016, the U.S. Small Business Administration (SBA) Office of Government Contracting, Area II (Area Office) issued Size Determination No. 2-2016-074, dismissing the size protest because Appellant was not an interested party due to its status as a large business concern. The Area Office explained that Appellant was listed in the System for Award Management (SAM) as a large business concern, and thus ineligible to be considered an interested party as required by 13 C.F.R. § 121.1001. (Size Determination, at 1.)
*1 On July 29, 2016, Appellant filed the instant appeal with SBA's Office of Hearings and Appeals (OHA). Appellant filed the appeal within 15 days of receiving the size determination, so the appeal is timely. 13 C.F.R. § 134.304(a). In its appeal, Appellant disputes the Area Office's conclusion Appellant was not an interested party, stating it has asserted that “none of the small businesses that submitted offers on this procurement can satisfy the RFQ requirements.” (Appeal, at 5.)
*1 On August 5, 2016, both McMurdo and the Coast Guard filed separate Motions to Dismiss the instant appeal, on the ground that Appellant lacked standing. On August 9, 2016, Appellant filed an Objection to the Coast Guard's redactions from its Motion, which removed the identities of other offerors. On August 11, 2016, the Coast Guard responded to Appellant's objection, arguing the redactions are proper. That same day, McMurdo filed a brief supporting the Coast Guard's redactions. On August 12, 2016, SBA notified all parties that pursuant to 13 C.F.R. § 121.1001(a)(1)(iii), the Area Office will conduct a size determination on McMurdo.
 
II. Discussion
 
*1 The Area Office dismissed Appellant's protest because, as a large business, it lacked standing to file a size protest, unless there was only one remaining offeror, which the Area Office concluded was not the case here. 13 C.F.R. § 121.1001(a)(1)(iv). If I were to conclude the Area Office had erred and grant the appeal, the only remedy would be to remand the case to the Area Office for a full size determination. Size Appeal of Hale Laulima, LLC, SBA No. SIZ-5750 (2016). However, here, the Area Director has elected to file his own size protest, which will result in a full size determination, as permitted by the regulation. 13 C.F.R. § 121.1001(a)(1)(iii). The Area Office has already granted the only relief available to Appellant.
*2 Therefore, issue of whether Appellant had standing to challenge the award to McMurdo has now been rendered moot by the Area Office's decision to conduct a size determination on McMurdo. As a result of that process, the Area Office may ultimately find McMurdo is not an eligible small business for the procurement at issue. Because a size determination is underway and a different awardee may be selected, it is immaterial whether Appellant had standing to protest the prior award decision.
*2 I find, therefore, that the instant appeal is moot, as there is no live controversy remaining to be decided. In addition, I do not find any reason to issue a decision on McMurdo's and the Coast Guard's Motions to Dismiss, and Appellant's Objection to the Coast Guard's redactions. These matters are all moot because the underlying case is moot. OHA will not adjudicate substantive issues which have become moot. 13 C.F.R. § 134.316(c).
 
IV. Conclusion
 
*2 Accordingly, I DISMISS the instant appeal as MOOT. This is the final decision of the Small Business Administration. See 13 C.F.R. § 134.316(d).
*2 Christopher Holleman
*2 Administrative Judge
SBA No. SIZ-5770, 2016 (S.B.A.), 2016 WL 4419561
End of Document