Alpha Data Corporation, No. SIZ-4515 (October 17, 2002) Docket No. SIZ-2002-09-23-44 UNITED STATES OF AMERICA SMALL BUSINESS ADMINISTRATION OFFICE OF HEARINGS AND APPEALS WASHINGTON, D.C. ) SIZE APPEAL OF: ) ) Alpha Data Corporation ) Docket No. SIZ-2002-09-23-44 ) Appellant ) ) Decided: October 17, 2002 RE: Support Systems Associates, ) Inc. ) ) Solicitation No. RFP F09603-02-R-61087 ) ) Department of the Air Force ) WR-ALC/LUKA ) Robins Air Force Base, GA ) ORDER DENYING REVIEW [1] I. BACKGROUND On January 11, 2002, the Department of the Air Force, at Robins Air Force Base, Georgia, issued the subject solicitation for engineering, software, logistics, and program administration. The Contracting Officer (CO) set the procurement partially aside for small businesses and assigned to it North American Industry Classification System (NAICS) code 541330 (Engineering Services -- Military and Aerospace Equipment and Military Weapons), with a corresponding annual receipts size standard of $20 million. [2] Initial offers were due on February 14, 2002. Final Proposal Revisions were due on July 12, 2002. On August 15, 2002, the CO notified the unsuccessful offerors that Support Systems Associates, Inc. (SSA) was the apparent successful offeror. On August 20, 2002, Alpha Data Corporation (Appellant) filed a protest with the CO. Appellant asserted that SSA was other than small because publicly available information (e.g., from Dun & Bradstreet, SSA itself via websites, etc.) indicate SSA's annual receipts exceed the applicable size standard. On August 22, 2002, the Small Business Administration's (SBA) Area III Office of Government Contracting in Atlanta, Georgia, informed SSA its size had been protested and requested it to submit a completed SBA Form 355, tax returns, and certain other information. On August 27, 2002, SSA submitted the requested information. On August 30, 2002, the Area Office issued a size determination finding SSA other than small, because of common ownership by members of the Zoltak family of SSA, Zolar Corporation and Zolar Associates. On September 4, 2002, SSA responded that it had inadvertently included outdated information in its Form 355. On September 5, 2002, SSA submitted additional information, including a revised Form 355. The revised form showed Zolar Corporation's sole shareholder to be a Mr. A. Alexander Lari, who owns no stock in SSA and is not a director of SSA. Mr. Lari is also the 50% shareholder of Zolar Associates. On September 6, 2002, the Area Office issued a new size determination finding SSA to be an eligible small business. [3] The Area Office concluded from the evidence submitted that, because the information in the revised Form 355 was consistent with the underlying documentation, SSA's assertion that its original Form 355 was in error was correct, and that this was not a case of a firm reorganizing itself in response to an adverse size determination, but of correcting a clerical error in its original submission. Appellant received the revised size determination on September 6, 2002. On September 23, 2002, Appellant filed the instant appeal. Appellant asserts that the Area Office should not have accepted SSA's representation that its original Form 355 was merely mistaken. Appellant asserts that certain relationships are insufficiently explained, and attempts to offer additional evidence to support its assertion that SSA is other than small. On September 27, 2002, SSA filed a motion to dismiss the appeal, due to lack of service and untimeliness. On September 30, 2002, SSA filed an opposition to this motion. On October 8, 2002, SSA filed a response to the appeal. II. DISCUSSION Appellant filed its appeal within 15 days of receipt of the size determination, and thus the appeal is timely. 13 C.F.R. Section 134.304(a)(1). While the fifteen day period expired on September 21st, this was a Saturday. Thus, the appeal was timely because it was filed on the next business day. 13 C.F.R. Section 134.103(a). Accordingly, SSA's motion to dismiss for untimeliness is DENIED. After reviewing the record, the Administrative Judge concludes that the Area Office did not err in permitting SSA to correct what was, in essence, a clerical error. The regulations do not prohibit the Area Office from revisiting a size determination to correct error. Indeed, the regulations permit reopening of a size determination which contains an administrative error or mistake of fact. 13 C.F.R. Section 121.1009(h). The Certificate of Amendment of the Certificate of Incorporation of Zolar Corporation, dated July 22, 1998, was included in the original submission to the Area Office, and was signed by Mr. Lori as sole shareholder. The revised Form 355 submitted on September 5th merely conforms the Form 355 to the documents in the record before the Area Office. Accordingly, the Area Office properly issued a corrected size determination, to conform to the corrected Form 355. Appellant's appeal is, therefore, without merit. Appellant attempts to proffer new evidence, however, this Office will not accept new evidence on appeal unless a motion is filed and served establishing good cause for its submission, or the Administrative Judge orders it. 13 C.F.R. Section 134.308(a); Size Appeal of Virtual Media Integration, SBA No. SIZ-4447, at 6- 7 (2001). Neither exception applies here. The instant appeal raises questions and makes innuendos, but it offers no solid arguments based on the law or the evidence in the record. Accordingly, the Administrative Judge concludes Appellant has completely failed to make any credible showing that the Area Office's size determination was based on any clear error of fact or law requiring his review of the instant appeal. See 13 C.F.R. Section 134.314. Therefore, consistent with the discretionary power conferred upon the Administrative Judge, he DENIES review of this appeal and AFFIRMS the Area Office size determination. 13 C.F.R. Section 134.303; Size Appeal of Northern NEF, Inc., SBA No. SIZ-4451, at 3 (2001). III. CONCLUSION For the above reasons, the Administrative Judge DENIES REVIEW of this 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 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 Effective February 22, 2002, the SBA raised the size standard for NAICS code 541330 to $23 million. 67 Fed. Reg. 3041, 3052 (Jan. 23, 2002). However, because the CO issued the solicitation before the effective date of this rule, the prior size standard applies to this procurement. 3 The Small Business Administration has revised its regulations governing the small business size determination program and its regulations governing size appeals. 67 Fed. Reg. 47244 (July 18, 2002). However, because the Area Office size determination was issued prior to the September 16, 2002, effective date of this rule, the prior regulations apply. Posted: January, 2003