SMC Technologies, No. 4190 (June 14, 1996) Docket No. SIZ-96-5-1-33 UNITED STATES OF AMERICA SMALL BUSINESS ADMINISTRATION OFFICE OF HEARINGS AND APPEALS WASHINGTON, D.C. _______________________________ ) SIZE APPEAL OF: ) ) SMC Technologies ) ) Appellant ) ) Re: Anderson Chemical ) Docket No. SIZ-96-5-1-33 (PFR) Company, Inc. ) (96-3-1-19) ) Solicitation No. ) F34650-95-B-001 ) Department of the Air Force ) Tinker AFB, Oklahoma ) _______________________________) DIGEST A Petition for Reconsideration that fails to assert new questions raised by the decision concerning which the Petitioner had no previous opportunity to present evidence or argument will be dismissed. DECISION[1] June 14, 1996 BLAZSIK, Administrative Judge: Jurisdiction This Petition for Reconsideration is decided under the Small Business Act of 1958, 15 U.S.C. Sections 631 et seq., and 13 C.F.R. Part 121 (1995). Issue Whether the Petition for Reconsideration presents grounds for reconsideration of the prior decision. Background Facts On May 1, 1996, SMC Technologies (Petitioner) filed a timely Petition for Reconsideration from Size Appeal of SMC Technologies, No. 4161 (March 27, 1996).[2] In SMC Technologies, the Presiding Judge made two findings. First, since the protest was late-filed, she held that SMC Technologies had only future applicability, because a timely appeal cannot cure an untimely protest.[3] Second, relying on well-established case precedent, the Presiding Judge held that sworn, certified statements made by the challenged firm on its SBA Form 355 and other certified submissions, had greater evidentiary weight than unsupported assertions to the contrary. Accordingly, the Presiding Judge affirmed the Area Office's conclusion that the challenged firm was a small business under the applicable size standard. Arguments Raised on Petition Petitioner asserts its protest was timely under Federal Acquisition Regulation (FAR) Section 33.103(b), which states, in part: ... protests shall be filed not later than 14 days after the basis of protest is known or should have been known, whichever is earlier.... Petitioner asserts neither the Area Office determination nor the prior decision made findings regarding the protest's untimeliness under the above regulation, i.e., when was the basis of SMC's protest "known or should have been known." Further, Petitioner asserts neither the Area Office determination nor the prior decision provides a rationale as to the "basis for supplanting the protest time period of FAR Section 33.103(b)" and substituting the more restrictive time period of 13 C.F.R. Section 121.1603(a)(1). Petitioner requests its protest be considered timely and made applicable to the instant solicitation. Petitioner also asserts the record shows it requested an extension of the close of record so it could supplement its appeal with additional documentation concerning the challenged firm's size status, after close of the 15-day period permitted by this Office's original docketing notice. Petitioner asserts the Presiding Judge's denial of its request was error and prejudicial to Petitioner. Accordingly, it requests the record be reopened for "additional discovery" and for supplementing the record.[4] Alternatively, Petitioner requests the Presiding Judge to remand the proceeding to the Area Office "with directions as to further areas of review." Petitioner attaches numerous appendices, which include copies of various documents pertaining to the challenged firm and Portals, a British company. Petitioner asserts that these documents show the "scope of Anderson's operations and transactions with the Portals entities," and demonstrate that the firms are affiliated, rendering the challenged firm large. On May 15, 1996, Anderson Chemical Company, Inc. (Anderson), filed an opposition to the petition. 13 C.F.R. Section 121.1721(d). Anderson asserts Petitioner failed to raise any evidence to support its petition. Anderson asserts the alleged relationship between Anderson and Portals was addressed in the initial documents supplied to the Area Office, which found such relationship to be inapplicable to Anderson's size status. Discussion Petitioner presents no issue permitting reconsideration of this decision. The pertinent regulation, 13 C.F.R. Section 121.1721(b), requires the grounds in support of a Petition for Reconsideration be limited to "new questions raised by the decision concerning which the Petitioner had no previous opportunity to present evidence or argument." Petitioner has failed to show such grounds. Petitioner's assertion that its protest was timely under FAR regulations, is not a "new question" within the regulatory definition. Even assuming it is a new question, the Presiding Judge still would reject it for lack of merit. The Presiding Judge explicitly addressed the issue of timeliness of the protest in the prior decision. Further, the timeliness of a protest in a small business set-aside, as with all other regulations for a small business set-aside, is governed exclusively by SBA regulations, not those of FAR. See 13 C.F.R. Part 121 (1995). For a protest to be applied to the current solicitation, it must be filed within 5 business days after bid opening. 13 C.F.R. Section 121.1603(a)(1). As found both by the Area Office and the Presiding Judge, based on record evidence, the protest was late- filed and, therefore, could have only future applicability. 13 C.F.R. Section 121.1603(b)(1). Further, Petitioner's assertion that the Presiding Judge improperly denied it an opportunity to present additional evidence after close of record cannot be construed as "new questions raised by the decision." As reflected in the record, the Presiding Judge denied Petitioner's original request for extension of the close of record, because Petitioner presented no valid reason for granting the extension. Petitioner's only reason was that it was on the "verge of uncovering further information...." The Presiding Judge noted in her Order that, if Petitioner had any information concerning the challenged firm's size status, it should have presented it to the Area Office at the time of the size investigation. See Order dated March 21, 1996. Additionally, by Order of April 11, 1996, the Presiding Judge denied Petitioner's motion for "emergency discovery." Thus, Petitioner's instant request for "additional discovery" is not a "new question." Finally, Petitioner's request to remand this proceeding to the Area Office also is not a "new question" as defined in the regulation. Even if the request were a "new question," Petitioner failed to show any valid reason for remand, and the Presiding Judge finds none. Conclusion Because Petitioner has raised insufficient grounds to support its Petition for Reconsideration, it is DISMISSED. The decision issued on March 27, 1996, is the final decision of the Small Business Administration. See 13 C.F.R. Section 121.1720(b). Gloria E. Blazsik Administrative Judge ____________________ [1] The Small Business Administration revised its Size and SIC regulations, both substantively and procedurally. See 13 C.F.R. Parts 121 and 134 (1996). Since the original solicitation, the Area Office's size determination, and the appeal predated the effective date of the revised regulations, 13 C.F.R. Part 121 (1995) applies here. [2] The Presiding Judge granted Petitioner an extension of time to file the instant petition. [3] Bid-opening was on December 14, 1995. SMC filed its protest on January 24, 1996. The size determination issued by the Atlanta Office of Government Contracting (Area Office) found the protest late and applied its determination for future purposes only, relying on 13 C.F.R. Section 121.1603(b)(1). [4] Petitioner previously had made an identical discovery request, which the Presiding Judge denied it by Order dated April 11, 1996.