Wolff Clements and Associates, LTD, No. 4586 (October 23, 2003) Docket No. SIZ-2003-10-06-58 UNITED STATES OF AMERICA SMALL BUSINESS ADMINISTRATION OFFICE OF HEARINGS AND APPEALS WASHINGTON, D.C. _______________________________________ ) ) SIZE APPEAL OF: ) ) Wolff Clements and Associates, LTD ) Docket No. SIZ-003-10-06-58 ) ) Appellant ) Decided: October 23, 2003 ) ) RE: Missman, Stanley & Associates, P.C ) ) Solicitation No. 821PC2026 ) Department of Veterans Affairs ) Construction Support Division ) Washington, D.C. ) _______________________________________) ORDER DISMISSING APPEAL [1] On April 9, 2003, the Contracting Officer (CO) for the Department of Veterans Affairs (VA), in Washington, D.C., posted on the VA web site this negotiated small business set-aside procurement for architect-engineering services for expansion of the existing Rock Island National Cemetery. The CO assigned to the procurement North American Classification System (NAICS) code of 541330 with a $4 million average annual receipts size standard or NAICS code 541320, with a $6 million average annual receipts size standard. On a date not included in this record, an A/E (Architecture and Engineering) Selection Board (Board) was convened and chose Missman, Stanley & Associates, P.C., (Missman) as the successful A/E firm. [2] On August 1, 2003, CO notified the unsuccessful offerors that Missman was the successful offeror. [3] On September 15, 2003, Wolff Clements and Associates LTD (Appellant) filed a protest with the CO (who received it on September 17, 2003), against the size status of Missman, asserting that the number of employees of Missman clearly indicates that it exceeds both the $4 million and $6 million size standards. [4] On September 24, 2003, the CO referred the protest to the Small Business Administration's (SBA) Chicago Office of Government Contracting-Area IV (Area Office). On September 24, 2003, the date it received the protest, the Area Office dismissed it as untimely filed, citing 13 C.F.R. Section 121.1004(a)(1).- Appellant received the Area Office's size determination on September 25, 2003, and filed an appeal on October 6, 2003. In its appeal, Appellant asserts the Area Office failed to render a size determination and reasserts that Missman does not meet either size standard. Appellant also sets forth a plethora of somewhat unconnected facts, including Appellant's attempt to have the CO file a protest of his own regarding this matter. On October 16, 2003, Appellant filed another pleading, styled "a reply to your Notice and Order dated October 8, 2003." In this "reply" Appellant reasserts that the Area Office failed to render a size determination. Therefore, Appellant seeks "the responsible parties in charge.to request a formal Size Determination accordingly." [5] The Administrative Judge infers from this "reply" that Appellant seeks to have this Office issue a size determination on the challenged firm. On October 21, 2003, Missman filed a response to the appeal, asserting the Area Office properly dismissed the protest for untimeliness and, accordingly, the Administrative Judge must dismiss the appeal. Discussion 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)(1). Notwithstanding the timeliness of the appeal, the Administrative Judge must dismiss it because the underlying size protest was grossly untimely. In this regard, the Administrative Judge points out that Appellant's repeated assertions that the Area Office did not render a size determination, is totally fallacious and contrary to SBA regulations and case precedent. The Area Office correctly dismissed the size protest for untimeliness. Therefore, it did not and could not render a size determination on the issues raised in the protest. The Area Office's dismissal letter of September 24th to Appellant constitutes the Area Office's "size determination." While it is not stated clearly on the procuring agency's web site announcement, it appears that the procurement is a negotiated small business set-aside, because the Board notified unsuccessful offerors of the identity of the successful offeror on a specified date. Under SBA regulations, for a protest to be timely in a negotiated procurement, a contracting officer must receive the protest "prior to the close of business on the 5th day, exclusive of Saturdays, Sundays, and legal holidays, after the contracting officer has notified the protestor of the identity of the prospective awardee." 13 C.F.R. Section 121.1004(a)(2). Here, the contracting officer notified the unsuccessful offerors, including the protestor, of the identity of the successful offeror and prospective awardee on August 1, 2003. Thus, Appellant's September 15, 2003, protest filed with the CO was clearly untimely, because it did not meet the requirements of the relevant regulation. Size Appeal of Kara Aerospace, Inc., SBA No. SIZ-4584 (2003). The Administrative Judge concludes the Area Office correctly dismissed the protest as untimely. An untimely protest must be dismissed. 13 C.F.R. Section 121.1004(d). [6] Conclusion For the above reasons, the Administrative Judge AFFIRMS the Area Office's dismissal of Appellant's protest and DISMISSES the instant appeal. This is the Small Business Administration's final decision. 13 C.F.R. Section 134.316 (b). ______________________________ GLORIA E. BLAZSIK Administrative Judge _________________________ 1 This appeal is decided under the Small Business Act of 1958, 15 U.S.C. Section 631 et seq., and 13 C.F.R. Parts 121 and 134. 2 The Administrative Judge presumes on that date the Board notified the CO of its selection who, in turn, notified the offerors. 3 As of this date, the contract has not been awarded. 4 The Administrative Judge notes Appellant has not explained the connection between Missman's number of employees (not part of the record) and how this alleged fact relates to Missman's alleged failure to meet the $4 million or $6 million size standard. 5 The Administrative Judge will treat this pleading as a supplement to Appellant's original size appeal. 6 The Administrative Judge notes this Office does not have jurisdiction to issue size determinations; its sole function is to hear appeals. 13 C.F.R. Section 134.301(a). Posted: November, 2003