Jim Plunkett, Inc., No. 3838 (October 4, 1993) Docket No. SIZ-93-9-15-105 UNITED STATES OF AMERICA SMALL BUSINESS ADMINISTRATION OFFICE OF HEARINGS AND APPEALS WASHINGTON, D.C. SIZE APPEAL OF: ) ) Jim Plunkett, Inc. ) ) Appellant ) ) Docket No. SIZ-93-9-15-105 Re: E.S. Edwards & Sons, Inc. ) ) Solicitation No. ) IFB-589-20-93 ) Department of Veterans Affairs ) Veterans Administration Medical ) Center ) Kansas City, Missouri ) DIGEST An appellant's challenge of the Small Business Administration's size regulations set forth at 13 CFR Part 121 on the grounds that the regulations are so complex as to preclude the appellant from filing a timely Notice of Appeal within the five day rule set forth at 13 CFR 121.1705(a)(1), is beyond the limited jurisdic tion of the Office of Hearings and Appeals to consider. A size protest that merely states that the appellant believes the challenged firm to be other than small based upon a Dun and Bradstreet report showing that, for one calendar year (out of the three applicable years), the challenged firm's sales were below the applicable size standard and that, therefore, the challenged firm's annual average receipts for the three preceding years most likely exceed the size standard at issue, is insufficiently specific and speculative to trigger a size investigation by the Regional Office, and was properly dismissed for nonspecificity. DECISION October 4, 1993 BLAZSIK, Administrative Judge, Presiding: Jurisdiction This appeal is decided under the Small Business Act of 1958, 15 U.S.C. 632 et seq., and the regulations codified at 13 CFR Part 121. Issues Whether the Office of Hearings and Appeals has jurisdiction to consider whether the Small Business Administration's size regulations are so complex as to preclude an appellant from filing an appeal within the five day rule set forth at 13 CFR 121.1705(a)(1). Whether the Regional Office was correct in dismissing the protest for nonspecificity. Facts On July 9, 1993, the Department of Veterans Affairs, Veterans Administration Medical Center, Kansas City, Missouri, issued a solicitation for "Replace Windows" and classified it under Standard Industrial Classification code 1799 (Special Trade Contractors, Not Elsewhere Classified), having a $7 million average annual receipts size standard. The solicitation was totally set aside for small businesses, and the bids were due on August 9, 1993. On the same day, the Contracting Officer notified all the bidders that the apparent low bidder on the contract was E.S. Edwards & Sons, Inc. (Edwards). Thereafter, on August 12, 1993, Jim Plunkett, Inc. (Plunkett or Appellant) timely filed a protest against the small business size status of Edwards. 1/ As pertinent, Plunkett's protest stated as follows: Although complete information regarding the annual receipts of [Edwards] is not available...preliminary investigation indicates that...[Edwards'] annual sales alone as reported by D&B Financial Records exceeded $5 million in 1992 and several million-dollar projects are referenced in the report. (See D&B attached as Exhibit B). Average annual receipts for the preceding three fiscal years surely exceeded $7 million. Attached to Plunkett's protest was a photocopy of the Dun and Bradstreet report showing that Edwards' total sales for 1992 were $5 million. The report makes no mention of sales figures for other years. On August 12, 1993, the Contracting Officer forwarded the protest to the Kansas Regional Office of the Small Business Administration (SBA) for a size determination. On August 17, 1993, the Regional Office summarily dismissed the protest for failing to state specific grounds for its allegation that Edwards is an other-than-small business, citing the specificity requirements of 13 CFR 121.1604 in support. Appellant received the Regional Office determination on August 19, 1993, and filed a timely appeal from that determination by letter postmarked September 10, 1993. 2/ Appellant complains that it was unable to file an appeal within the five working day requirement set forth at 13 CFR 121.1705(a)(1), because of the "complexity of the requirements" of the SBA's size regulations. Otherwise, Appellant does not point to any specific error in the Regional Office's dismissal of its protest, but merely reiterates the allegation made in its protest that Edwards is not a small business under the $7 million size standard because, according to the Dun and Bradstreet report, supra, which Appellant had previously submitted to the Regional Office, Edwards' total sale figures for 1992 were $5 million and, thus, Appellant speculatively argues, Edwards' average annual receipts for the preceding three fiscal years would probably exceed the applicable $7 million size standard. Discussion Appellant's complaint that the SBA's size regulations are so complex as to preclude it from filing an appeal within the five day rule of 13 CFR 121.1705(a)(1), is beyond the jurisdiction of this Office. Our jurisdiction is limited to reviewing appeals from formal size determinations made by the SBA's Regional Offices and classification designations by Contracting Officers regarding government procurements and sales. See 13 CFR 121.1701. Further, under SBA regulations, we cannot extend the time limits set forth in 13 CFR 121.1705(a) and (b) for initiating appeals. See 13 CFR 121.1713(o). Regarding the propriety of the Regional Office's dismissal of Appellant's protest, the regulation at 13 CFR 121.1604 provides, in pertinent part, the following: 121.1604 Form of protest. (a) Required specificity. No specific form is required for a protest. However, a protest must be sufficiently specific to provide reasonable notice as to the grounds upon which the protested concern's size is questioned. A protest merely alleging that the protested concern is not small or is affiliated with unnamed concerns will not be deemed to specify adequate grounds for the protest. Some basis for the belief stated in the protest must be given. * * * * * * * (b) Non-specific protests. Protests which do not contain sufficient specificity shall be dismissed by SBA. Review of the record, including the original protest and the Dun and Bradstreet attachment, demonstrates that Appellant's challenge of Edwards' size status does not meet the specificity requirements noted in the above regulation. The protest merely asserts, without giving any probative basis, that Appellant believes Edwards to be other than small. The Dun and Bradstreet attachment, which purportedly is presented by Appellant to buttress its assertion, merely shows that for calendar year 1992, Edwards' annual sales were below the $7 million size standard at issue. Appellant's extrapolation from this information that Edwards' average annual receipts for the immediate past three years must, thus, be above the applicable $7 million size standard, is speculative and not factually based. Thus, Appellant has not presented any specific grounds to trigger a size investigation of Edwards' size by the Regional Office and has failed to satisfy the specificity requirements of the regulation. Size Appeal of Capitol Finishes, Inc., No. 3441 (1991), at 3. In consequence, the Regional Office's action in dismissing the protest was proper. Conclusion In view of the above analysis, we conclude that the Regional Office's determination dismissing the protest for nonspecificity is AFFIRMED, and the appeal is DENIED. This constitutes the final decision of the Small Business Administration. See 13 CFR 121.1720(a), (b), and (c). _____________________________________ Gloria E. Blazsik (Presiding) Administrative Judge ______________________________________ Elwin H. White (Concurring) Administrative Judge ______________________________________ G. Stephen Wright (Concurring) Administrative Judge ______________ 1/ See 13 CFR 121.1603(a)(1). 2/ Thus, the appeal is timely filed within the 30-day provision of the regulation at 13 CFR 121.1705(a)(1) and our decision will apply for purposes of future solicitations only.