The Refinishing Touch, No. 4615 (March 10, 2004) Docket No. SIZ-2004-01-30-02 UNITED STATES OF AMERICA SMALL BUSINESS ADMINISTRATION OFFICE OF HEARINGS AND APPEALS WASHINGTON, D.C. ) SIZE APPEAL OF: ) ) The Refinishing Touch ) ) Docket No. SIZ-2004-01-30-02 Appellant ) ) RE: Commercial Marketing ) Decided: March 10, 2004 Corporation ) ) Solicitation No. RFQ W911RX-04- ) T-0044 ) Department of the Army ) Directorate of Contracting ) Fort Riley, Kansas ORDER REMANDING PROCEEDING [1] I. BACKGROUND A. The Protest On December 23, 2003, the Department of the Army, Directorate of Contracting at Fort Riley, Kansas (Army), issued the subject solicitation for the reconstitution of barracks furniture. The Contracting Officer (CO) set the procurement totally aside for small business. [2] Offers were due on December 29, 2003. On December 30, 2003, the Army awarded the contract to Commercial Marketing Corporation (CMC). On January 6, 2004, The Refinishing Touch (Appellant) received notification via electronic mail that CMC was the awardee. On January 13, 2004, Appellant filed a size protest with the CO, alleging that CMC was an other than small business. On January 14, 2004, the CO referred the protest to the Small Business Administration (SBA) Office of Government Contracting - Area III, in Atlanta, Georgia (Area Office). On January 15, 2004, the Area Office dismissed Appellant's protest as untimely. In reaching this conclusion, the Area Office relied on a Memorandum for Record (MFR) dated January 2, 2004, from Jennifer Reeves, a Contracting Specialist (CS) in the Fort Riley Directorate of Contracting. The MFR states that the CS had a telephone conversation that day with Mario Insenga, Appellant's President, during which she informed him CMC was the awardee. This was supported by a statement from the CO, stating that the e- mail sent to Appellant instructing it to file a Freedom of Information Act (FOIA) request referred to Appellant's request for more detailed information. Appellant received the Area Office's dismissal of its protest on January 20, 2004. On January 27, 2004, Appellant requested that the Area Office reopen the size determination. [3] Appellant denies the CS's assertion in the MFR that she informed Mr. Insenga of CMC's selection on January 2nd, and asserts that it did not learn the identity of the awardee until January 6th. Appellant alleges the CS declined to identify the apparent successful offeror on January 2nd. Appellant attached a copy of an e-mail it sent the CS on January 5th, after the telephone conversation, requesting the name of the awardee, and other information about the award. The CS replied by e-mail that Appellant would need to file a FOIA request to get the information. Appellant further stated it described these events in its protest at the General Accounting Office (GAO), and the Government has not disputed them there. Also on January 27th, the CO filed a statement with the Area Office, reasserting its earlier allegations to the Area Office. On January 28, 2004, the Area Office refused to reconsider its dismissal of Appellant's protest. The Area Office concluded the CO's version of events was correct, and thus did not disturb its earlier finding that Appellant had learned CMC was the awardee on January 2nd. B. The Appeal On January 30, 2004, Appellant filed the instant appeal. Appellant asserts that its e-mail of January 5th was primarily intended to elicit the identity of the awardee from the Army, and thus it is clear from the text of the e-mail that it had not yet learned that identity. Appellant further argues that the text of the Army's January 6th e-mail response, which identifies CMC as the awardee, also supports its argument that the Army had not previously identified CMC as the awardee. Appellant attaches new evidence not submitted to the Area Office to its appeal. Appellant includes affidavits from Mr. Insenga, and other of Appellant's personnel and consultants asserting that the CS's statements in the MFR are in incorrect, and that she could not have identified CMC to Appellant as the awardee. II. DISCUSSION Appellant filed the instant appeal within 15 days of receiving the size determination, and thus the appeal is timely. 13 C.F.R. Section 134.304(a)(1). Appellant has the burden of proving, by a preponderance of the evidence, all the elements of its appeal. Specifically, it must prove the size determination is based on a clear error of fact or law. Size Appeal of General Maintenance Engineering, Inc., SBA No. SIZ-4405, at 5 (2000); 13 C.F.R. Section 134.314. Ordinarily, this Office will dismiss as moot a protestor's appeal of size determination which does not find the challenged firm other than small where the procuring agency has awarded the contract at issue. Size Appeal of Spectrum Landscape Services, Inc., SBA No. SIZ-4313 (1998). However, because there are pending GAO protests which might disturb the award, this case is not moot. Size Appeal of Browning Construction Co., SBA No. SIZ-4523 (2002). In order to be timely, a size protest must be filed within five business days of the protestor's learning of the identity of the prospective awardee. 13 C.F.R. Section 121.1004(a)(2). The Area Office must dismiss a protest filed after this deadline, and a timely appeal to this Office cannot cure an untimely protest. Size Appeal of Symtech Corporation, Inc., SBA No. SIZ-4406 (2000). Here, the issue is the date Appellant learned that CMC was the awardee. If Appellant learned CMC was the awardee on January 2nd, its protest was untimely. If Appellant learned CMC was the awardee on January 6th, its protest was timely. Appellant is attempting to introduce new evidence, which was not before the Area Office, to establish that the CS did not inform Appellant of CMC's identity in the January 2nd telephone conversation. SBA's regulations on this point are clear: this Office will not consider evidence not previously presented to the Area Office that issued the size determination being appealed unless either: (1) the judge sua sponte orders the submission of such evidence; or (2) the proponent files and serves the new evidence with a motion establishing good cause for its submission. 13 C.F.R. Section 134.308(a); Size Appeal of Columbia Research Corporation, SBA No. SIZ-4568, at n.10 (2003). Here, Appellant's counsel has failed to file such a motion. Appellant, who has been represented by counsel throughout the protest and appeal, has demonstrated no reason why this evidence was not presented to the Area Office, either in its initial protest, or its request for reconsideration, and why it should be considered now when it was not presented then. The Area Office cannot have erred in failing to consider evidence not presented to it. Accordingly, Appellant's proffered new evidence is EXCLUDED from consideration. After examining the record before the Area Office, the Administrative Judge concludes that the Area Office erred in concluding Appellant received notification on January 2nd that award had been made to CMC. While the MFR in the record clearly states so, there is nothing in the memorandum to establish that it was actually prepared on January 2nd, as opposed to a later date. Conversely, in the exchange of e-mails on January 5th and 6th between the CO and the CS, submitted to the Area Office by the CO, the CS asks the CO how to respond to Appellant's January 5th e-mail requesting the identity of the awardee and other information. The CO instructs the CS to release the name of the awardee and the dollar amount awarded, and to inform Appellant it must get the other information via a FOIA request. [4] There would be no need for the CS to release again information she had already released, nor for the Appellant to request it. The record before the Area Office leads to a conclusion that it was highly unlikely that the CS actually informed Appellant on January 2nd that CMC was the awardee. Accordingly, the Administrative Judge concludes the CS informed Appellant on January 6th that CMC was the awardee, and Appellant's January 13th protest was thus timely. The Area Office erred in judging the protest untimely and not issuing a size determination. The Administrative Judge concludes that he must REMAND this case to the Area Office for a size determination. III. CONCLUSION For the above reasons, the Administrative Judge VACATES the Area Office's dismissal of Appellant's protest and REMANDS the case to the Area Office for a new size determination consistent with this decision. CHRISTOPHER HOLLEMAN 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 solicitation classified the procurement under now superseded Standard Industrial Classification code 7641, Reupholstery and Furniture Repair. The correct designation is North American Industry Classification System code 811420, Reupholstery and Furniture Repair, with a corresponding $6 million annual receipts size standard. 13 C.F.R. Section 121.201. 3 In the interim, Appellant had filed a series of bid protests concerning the instant procurement with the General Accounting Office. These protests are still pending. B-293562.001; B-293562.002; B-293562.003. 4 The CO could have, and should have, treated Appellant's e- mail as a FOIA request, as a requester is not required to title a request for information a FOIA request. Newman v. Legal Services Corporation, 628 F.Supp. 535, 543 (D.D.C. 1986), cited in U. S. Department of Justice, Freedom of Information Act Guide & Privacy Act Overview, at 42, n.55 (2002). Posted: March, 2004