Harry A. Stroh Associates, Inc., No. 4363 (June 16, 1999) Docket No. SIZ-99-04-16-20 UNITED STATES OF AMERICA SMALL BUSINESS ADMINISTRATION OFFICE OF HEARINGS AND APPEALS WASHINGTON, D.C. _________________________________ ) SIZE APPEAL OF: ) ) Harry A. Stroh Associates, Inc. ) ) Docket No. SIZ-99-04-16-20 Appellant ) ) Decided: June 16, 1999 RE: Integrity Management ) Services, Inc. ) ) Solicitation No. ) F41622-98-R-0027 ) Department of the Air Force ) Brooks Air Force Base, Texas ) ________________________________ ) APPEARANCES for Appellant Gilbert J. Ginsburg, Esq. DIGEST Neither a Contracting Officer nor any party has standing to file a size protest against a concern which has been eliminated from consideration for award for reasons unrelated to size, because the protest is not related to a particular procurement. The Administrative Judge will vacate a size determination issued in response to a size protest filed by a party which lacked standing to protest. DECISION HOLLEMAN, Administrative Judge: Jurisdiction This appeal is decided under the Small Business Act of 1958, 15 U.S.C. Sections 631 et seq., and 13 C.F.R. Parts 121 (1998) and 134 (1999). Issues Whether a Contracting Officer or any party has standing to file a size protest against a concern which has been eliminated from consideration for award for reasons unrelated to size. Whether the Administrative Judge will vacate a size determination issued in response to a size protest filed by a party which lacked standing to protest. I. BACKGROUND On May 29, 1998, the Department of the Air Force, Brooks Air Force Base, Texas (Air Force), issued the subject solicitation for Hospital Aseptic Management System Services as an unrestricted procurement with an evaluation preference for small disadvantaged business concerns (SDBs). The CO assigned to the procurement Standard Industrial Classification code (SIC) 7349, Building Cleaning and Maintenance Services, Not Elsewhere Classified, with a corresponding $12 million average annual receipts size standard. Offers were due on June 19, 1998. On June 22, 1998, the CO issued Amendment 1, which extended the due date for offers to July 20, 1998. The CO issued Amendment 2 on July 13, 1998, and Amendment 3 on July 16, 1998, making technical changes to the solicitation. On February 18, 1999, the Air Force awarded the contract to Rite-Way Services. On February 22, 1999, the CO notified unsuccessful offerors. On February 25, 1999, Harry A. Stroh Associates, Inc. (Appellant), the incumbent contractor and an offeror, filed a protest against the award at the General Accounting Office (GAO). On February 26, 1999, the CO suspended performance on the contract, pending the outcome of the protest. On March 3, 1999, the Air Force filed a motion for summary dismissal of Appellant's protest. The Air Force asserted Appellant lacked standing before GAO, because Integrity Management Services (Integrity), another offeror, not Appellant, was next in line for award. On March 4, 1999, Appellant filed a supplemental protest with GAO. On March 8, 1999, the Air Force moved to dismiss this protest as well, also for lack of standing. On March 11, 1999, Rite-Way joined in the Air Force's motions to dismiss Appellant's GAO protests for lack of standing. On March 19, 1999, in a one-sentence order, GAO denied the Air Force's and Rite-Way's motions for summary dismissal. Also on March 4, 1999, Appellant filed -- through counsel -- a size protest against Integrity. Appellant asserted Integrity was affiliated with National Maintenance, Inc. and thus was other than small. On March 16, 1999, the CO adopted the size protest, and forwarded it to the Small Business Administration (SBA) Area VI Office of Government Contracting (Area Office) in San Francisco, California. On March 24, 1999, the Area Office informed Integrity of the protest, directed it to respond to the size protest allegations, and to submit an SBA Form 355, together with certain other information. On April 6, 1999, the Area Office issued a size determination concluding that Integrity is an eligible small business. On April 12, 1999, Appellant received the size determination. On April 16, 1999, Appellant filed the instant appeal with this Office. On May 3, 1999, Integrity filed a response to the appeal. On April 7, 1999, the Air Force filed its response to Appellant's GAO protests, in which it renewed its motion to dismiss for lack of standing, reiterating that Integrity, not Appellant, was next in line for award. On April 8th, Rite-Way filed its response to Appellant's GAO protests, in which it also renewed its motion to dismiss for lack of standing. On May 17, 1999, the Administrative Judge issued an Order to Show Cause why he should not dismiss the instant appeal for the following reasons: the CO lacked standing to protest; Appellant lacked standing to appeal; the matter is not ripe for decision; and the appeal is a request for an advisory opinion. On May 26, 1999, Appellant filed a response to the Order to Show Cause. Appellant asserts it is adversely affected by the size determination, because its standing before GAO is in question if Integrity is entitled to a 10% evaluation preference as an SDB. If not, Appellant is next in line for award. [1] On June 1, 1999, GAO dismissed Appellant's protest on the merits. GAO did not further address the motions to dismiss for lack of standing. Harry A. Stroh Associates, Inc., B-282134, B-282134.2 (June 1, 1999). II. DISCUSSION Appellant filed the instant appeal within 15 days of receiving the size determination, and it is thus timely. 13 C.F.R. Section 134.304(a)(1). The threshold issue in this case, which ultimately is dispositive, is whether the CO had standing to file a size protest against Integrity. While no party has raised the issue of standing before OHA, the Administrative Judge may make his own inquiry sua sponte. Size Appeal of J.E. McAmis, Inc., No. 4114 at 4 (1995). He does so because standing is a jurisdictional requirement which cannot be waived; it may be raised at all stages of litigation. The Administrative Judge notes several overlapping principles relative to standing before OHA. A Contracting Officer always has standing to file a size protest in connection with a particular procurement or sale. 13 C.F.R. Section 121.1001(a)(1)(ii). However, this Office has held that, when a Contracting Officer eliminates a concern from consideration for award because of reasons unrelated to its size, a protest against that concern's size status is not deemed to relate to a particular procurement. Size Appeal of Farr/Spriggs Reporting U.S.A., No. 3732 at 7-8 (1993). For that reason, an Area Office must dismiss a size protest, even a Contracting Officer's protest, where it is not related to a particular procurement. Id. at 7; 13 C.F.R. Section 121.1007(a). Here, the CO eliminated Integrity from consideration for award for reasons unrelated to its size (e.g., she determined Rite-Way's price was lower) when she awarded the contract to Rite-Way. Accordingly, based on the above authority, the Administrative Judge concludes that, because the CO's protest against Integrity's size was not related to a particular procurement, the CO had no standing. This Office will vacate a size determination where the underlying protest was filed by a party without standing. Size Appeal of MBI Corporation, No. 4356 at 7 (1999). [2] III. CONCLUSION For the above reasons, the Administrative Judge VACATES the Area Office size determination, and DISMISSES the instant appeal. This is the final decision of the Small Business Administration. See 13 C.F.R. Section 134.316(b). ___________________________ CHRISTOPHER HOLLEMAN Administrative Judge _________________________ [1] Appellant also asserts its initial size protest was in fact timely because it did not learn Integrity was an intervening offeror until March 3rd. [2] The Administrative Judge rejects as irrelevant Appellant's argument that its protest was timely, because its protest also was not related to a particular procurement. Thus, the Area Office would have been required to dismiss it. 13 C.F.R. Sections 121.1001(a)(1)(i); 121.1007(a). Moreover, GAO's denial of the Air Force's and Rite-Way's motions to dismiss Appellant's protest and its refusal to reconsider those motions in its final decision renders moot Appellant's argument that the size determination affects its standing at GAO. Posted: June, 1999