Lajas Industries, Inc., No. 4284 (December 22, 1997). Docket No. SIZ-97-8-15-32 UNITED STATES OF AMERICA SMALL BUSINESS ADMINISTRATION OFFICE OF HEARINGS AND APPEALS WASHINGTON, D.C. _______________________________ ) SIZE APPEAL OF: ) ) Lajas Industries, Inc. ) ) Appellant ) Docket No. SIZ-97-8-15-32 ) Re: Specialty Plastic Products ) Decided: December 22, 1997 ) Solicitation No. ) SPO100-96-R-0077 ) Defense Personnel Support ) Center ) Philadelphia, Pennsylvania ) ______________________________ ) APPEARANCES for Appellant Alan M. Grayson, Esq. Michael A. Lewis, Esq. Alan M. Grayson and Associates DIGEST A firm found other than small for a particular procurement lacks standing to file a size protest against another offeror for that procurement, unless the second offeror is the only remaining offeror. 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 and 134 (1996). Issue Whether a firm found other than small for a particular procurement has standing to file a size protest against another offeror for that procurement, where the second offeror is not the only remaining offeror. I. BACKGROUND On March 18, 1996, the Defense Personnel Support Center (DPSC) in Philadelphia, Pennsylvania, issued the subject solicitation for tan coveralls. The procurement was totally set aside for small business. The Contracting Officer (CO) assigned to the procurement Standard Industrial Classification (SIC) code 2326, Men's and Boys' Work Clothing, with a corresponding size standard of 500 employees. [1] On April 15, 1997, the CO awarded the solicitation to Lajas Industries, Inc. (Appellant), the apparent low offeror. On April 22, 1997, Carter Industries, Inc. (Carter), a competing offeror, through counsel, filed with the CO a protest asserting Appellant is not a small business. The CO referred the protest to the Small Business Administration Area II Office for Government Contracting (Area Office) on April 25th. [2] On May 15, 1997, the Area Office, which did not formally consolidate the protests, issued two virtually identical size determinations finding Appellant other than a small business for both procurements. On May 30, 1997, Appellant appealed both size determinations to this Office in a single appeal. On August 22, 1997, this Office denied the appeal and affirmed both Area Office size determinations. Size Appeal of Lajas Industries, Inc., No. 4263 (1997). On June 26, 1997, DPSC canceled award of both procurements to Appellant and, on July 15, 1997, notified Appellant of its intent to award the instant procurement to Specialty Plastic Products (Specialty). On July 22, 1997, Appellant, through counsel, filed with the CO a protest asserting Specialty is not a small business, because it is affiliated with at least seven other firms and the aggregate numbers of employees exceed the size standard. The CO referred Appellant's protest to the Area Office on July 23rd. On July 28, 1997, the Area Office dismissed Appellant's protest because it lacked standing. Appellant received notification of this dismissal on August 1, 1997. On August 15, 1997, Appellant, again through counsel, filed the instant appeal with this Office. [3] Appellant asserts the Area Office erred in dismissing its protest. Appellant asserts it has standing to protest because it was an offeror and the applicable regulation permits "any offeror" in a particular procurement to file a size protest in connection with that procurement. 13 C.F.R. Section 121.1001(a)(1)(i). Appellant asserts in support this Office's precedent requiring that SBA regulations be given their plain meaning. Further, Appellant asserts that 13 C.F.R. Section 121.1001(a)(1)(iv), which grants standing to protest to "other interested parties" is not applicable, because it is an offeror. Appellant also asserts that, since it was an eligible offeror when it submitted its bid, more than one other concern bid on this solicitation. Finally, Appellant asserts this Office's precedent grants standing to offerors found ineligible solely because of their size status, citing Size Appeals of Dynamic Decisions, Inc., No. 4248 (1997); J.E. McAmis, Inc., No. 4114 (1995); and Integrity Management International, Inc., No. 3586 (1992). Previously, on July 24, 1997, the CO had protested Specialty's size status, apparently based on Appellant's allegations. On August 18, 1997, the Area Office responded to the CO's protest; it issued a size determination finding Specialty was a small business. The Area Office noted two other offerors remained for this procurement. Appellant received notification of the Specialty size determination on August 25, 1997. Appellant neither has appealed the size determination nor requested leave to amend the instant appeal to address the merits of the Specialty size determination. DISCUSSION Appellant filed the instant appeal within 15 days of receiving the Area Office's dismissal of its protest and, thus, it is timely. 13. C.F.R. Section 134.304(a)(1). It is settled that Appellant is other than small for this procurement, and is not eligible to receive an award. Size Appeal of Lajas Industries, Inc., No. 4263 (1997). [4] None of Appellant's arguments in this appeal creates standing for it to challenge the award to Specialty, because neither the regulations nor OHA precedent supports its position. First, Appellant misinterprets the regulation on which it relies, 13 C.F.R. Section 121.1001(a)(1)(i). Although the regulation states that "any offeror" may file a size protest, this Office's longstanding precedent explicitly holds that the term excludes offerors subsequently disqualified from participation in a small business set aside because they are other than small. Size Appeal of Arcata Associates, Inc., No. 3377 (1990). This Office reached this conclusion based upon Congress' intent in creating SBA to assist small business. Size Appeal of Westinghouse Electric Corporation, No. 2521 (1986) at 6; 15 U.S.C. Section 631(a). For that reason, this Office will dismiss an appeal from an other than small firm, which challenges the Area Office's proper dismissal of a protest for lack of standing. Size Appeal of North American Products, No. 3433 (1991). Second, while Appellant is correct that this Office generally applies the plain meaning of SBA regulations, that plain meaning cannot contradict Congressional intent as explicitly stated in the Small Business Act. This Office's precedent, which is based upon that Congressional intent, holds that other than small firms for the particular procurement have no standing to file size protests. A limited exception to this rule is that an other than small firm for a procurement has standing to protest if only one offeror remains. 13 C.F.R. Section 121.1001(a)(1)(iv). The rationale for this exception is that the firm successfully challenging the award could compete for the procurement on an unrestricted basis. Arcata, supra. However, under these facts, because two other offerors remain in addition to Appellant, this regulatory exception is not applicable. Third, contrary to Appellant's assertions, this Office's case law does not confer standing on Appellant to protest. This Office previously held that a firm with no standing to protest (because the procurement was under the 8(a) program), nonetheless had standing to appeal a size determination. It could do so if it was eligible for award, was adversely affected by the determination, and the size determination was issued at the request of the SBA District Office (which request the regulations authorize). Size Appeal of Dynamic Decisions, Inc., No. 4248 (1997), rev'd on other grounds sub nom. Dynamic Decisions, Inc. v. Alvarez, Civ. No. 97-941 (D.D.C. July 2, 1997) (mem. op.), vacated by order approving settlement (D.D.C. Sept. 8, 1997). Here, Appellant appeals from the Area Office's dismissal for lack of standing of Appellant's own protest, not the size determination issued in response to the CO's request. Therefore, Dynamic Decisions is inapposite. As noted above, since Appellant had no standing to protest, it now has no standing to appeal. However, even if Appellant were appealing the size determination issued in response to the CO's request, Appellant still would have to be a party adversely affected by the size determination to apply Dynamic Decisions on standing. Although the appellant in Dynamic Decisions was an offeror eligible to receive an award of the contract, it did not have standing to file an initial protest because the contract was under the 8(a) program. 13 C.F.R. Section 121.1001(b)(2). [5] Because Appellant here is not eligible to receive an award, it was not adversely affected by the size determination finding Specialty eligible. Therefore it has no standing. The other cases cited by Appellant, Size Appeals of J.E. McAmis, Inc., No. 4114 (1995) and Integrity Management International, Inc., No. 3586 (1992), also are inapposite. The issue in those cases was the standing to protest of firms who, unlike Appellant here, were ineligible for award for reasons other than size. III. CONCLUSION Appellant had no standing to file a size protest in this case, and the Area Office's dismissal of the protest is AFFIRMED. This is the final decision of the Small Business Administration. See 13 C.F.R. Section 134.316(b). ____________________________ CHRISTOPHER HOLLEMAN Administrative Judge _________________________ [1] A typographical error in the solicitation listed the nonexistent SIC code 2328. The CO later represented that the correct SIC code is 2326. Size Appeal of Lajas Industries, Inc., No. 4263 (1997). [2] Previously, on April 17, 1997, the CO had referred to the Area Office another protest filed by Carter against Appellant, concerning Solicitation SPO100-96-R-0103 (which had the same SIC code and size standard). [3] On June 26, 1997, Appellant also filed a protest concerning the award of Solicitation SPO100-96-R-0103 to Carter. On July 24, 1997, the Area Office issued a size determination finding Carter a small business. On August 13, 1997, Appellant appealed that determination to this Office. The appeal is pending, and the Presiding Judge does not address it here. Size Appeal of Lajas Industries, Inc., Docket No. SIZ-97-8-13-31. [4] The size determination was made as of the date Appellant submitted its bid. 13 C.F.R. Section 121.404. Thus, Appellant's assertion it was an eligible offeror on that date is meritless. [5] Similarly, this Office found an unsuccessful offeror had standing to appeal a size determination made after the CO adopted appellant's untimely protest, because that appellant was an eligible offeror. Size Appeal of Neal R. Gross & Company, Inc., No. 3888 (1994) Posted: January, 1998