Aban Computers, Inc., No. 4473 (February 20, 2002) Docket No. SIZ-2002-01-25-05 UNITED STATES OF AMERICA SMALL BUSINESS ADMINISTRATION OFFICE OF HEARINGS AND APPEALS WASHINGTON, D.C. ) SIZE APPEAL OF: ) ) Docket No. SIZ-2002-01-25-05 Aban Computers, Inc. ) ) Decided: February 20, 2002 Appellant ) ) RE: PC Specialists, Inc. ) d/b/a Technology Integration ) Group ) ) Solicitation No. 52-PAPT-1- ) 01008 ) U.S. Patent & Trademark Office ) Office of Procurement ) Washington, DC ) ORDER DISMISSING APPEAL [1] On March 16, 2001, the Contracting Officer (CO) for the U.S. Patent & Trademark Office, Office of Procurement, in Washington, D.C., issued this negotiated small business set-aside procurement for desktop microcomputers and peripherals. She assigned to it North American Industry Classification System (NAICS) code 421430, with a 500-employee size standard. Initial proposals were due on April 30, 2001. On December 31, 2001, the CO notified the unsuccessful offerors that PC Specialists, Inc., dba Technology Integration Group (TIG) was the apparent successful offeror. On January 3, 2002, the CO awarded the contract to TIG. On January 7, 2002, Aban Computers, Inc. (Appellant) filed a timely protest, asserting that TIG exceeded the 500-employee size standard. Appellant filed two more supplemental statements, including several articles stating that Appellant has more than 500 employees. On January 8, 2002, the CO referred the protest to the Small Business Administration's (SBA) San Francisco Office of Government Contracting-Area VI (Area Office) for a size determination. On January 17, 2002, the Area Office found TIG a small business. The Area Office noted that, TIG's SBA Form 355 showed it has an average number of employees for the 12 completed calendar months prior to its self-certification (April 26, 2001) of less than 500-employees, citing 13 C.F.R. Section 121.106(b). The Area Office also noted the supplementary information Appellant submitted to demonstrate TIG's alleged large size, were from unverified sources (newspapers, financial reporting services, etc.) and were given little evidentiary weight in view of TIG's own signed and certified SBA Form 355. [2] Appellant received the size determination on January 23, 2002, and filed an appeal with this Office on January 25, 2002. On appeal, Appellant asserts the Area Office failed to count all of TIG's employees-specifically its consultants and workers that are immigrants and other part-time employees. Appellant requests another size determination. With its appeal, Appellant submitted a statement from its president, asserting that, in a conversation he had with the Area Office, the subject of counting consultants for purposes of this size determination was characterized by an Area Office official as "iffy". On February 12, 2002, the CO informed this Office that there is no pending litigation concerning this procurement, she has not issued a stop work order, and contract performance has begun. She also stated that, regardless of this Office's decision here, she will not terminate the contract award. [3] On February 15, 2002, TIG and the CO filed a joint motion to dismiss the appeal and a response to the appeal. On February 19, 2002, Appellant filed a statement purporting to show that TIG's employees exceed the instant size standard. Discussion Appellant filed the instant appeal within 15 days of receiving the size determination; thus, the appeal is timely. 13 C.F.R. Section 134.304(a)(1). Notwithstanding the timeliness of the appeal, the Administrative Judge's review of the record demonstrates she must dismiss this appeal as moot. First, the applicable regulation requires her to do so, because the Contracting Officer awarded the solicitation prior to the appeal. Specifically, the Federal Acquisition Regulation provides that an Area Office size determination is final unless and until two conditions are satisfied: it is appealed and the Contracting Officer is notified of the appeal before award. 48 C.F.R. Section 19.302(g)(2). If the Contracting Officer is not notified of the appeal to OHA before award, "the contract shall be presumed to be valid." Id. Finally, a decision by this Office received after award does not apply to that solicitation. 48 C.F.R. Section 19.302(i); Size Appeal of Golden North Van Lines, Inc., SBA No. SIZ-4304, at 4 (1998). Thus, under these facts, the size determination is final, and the contract is valid. Second, even if the Administrative Judge were to consider the appeal on the merits and find TIG other than small, she cannot grant Appellant redress. This Office lacks authority to order the Contracting Officer either to cancel the award or to award the contract to Appellant. As noted, the Contracting Officer awarded the contract, expressed her intention not to terminate it, and informed this Office that there was no pending litigation that could affect this procurement. Finally, the Administrative Judge must dismiss this appeal, although the issues on appeal are not contract-specific. This Office previously has dismissed as moot an unsuccessful offeror's size appeal under similar facts: where the challenged firm was found small, the issues were not contract-specific, and the procuring agency already had awarded the contract. Size Appeal of Spectrum Landscape Services, Inc., SBA No. SIZ-4313 (1998). There, the Administrative Judge reasoned that if she were to consider the issues on the merits, Appellant's injury would not be redressed and, therefore, any decision on the merits would not have present or future applicability. That same reasoning applies here. [4] Conclusion For the above reasons, the appeal is MOOT and, therefore, it is DISMISSED. This is the Small Business Administration's final decision. 13 C.F.R. Section 134.316(b). ___________________________________ GLORIA E. BLAZSIK 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 Administrative Judge is loath to understand why the Area Office did not dismiss the protest for nonspecificity. The protest was merely self-serving statements and without any valid substantiation. [3] On February 8, 2002, TIG's Counsel moved to intervene; on February 15, 2002, Counsel for the procuring agency moved to intervene. Because TIG is the challenged firm, it is an interested party and there is no requirement for it to file a motion to intervene. Similarly, the procuring agency is an interested party. Although unnecessary, the Administrative Judge grants both motions. [4] In view of the ultimate finding here, the Administrative Judge will not specifically rule on TIG's and the CO's joint motion to dismiss. Posted: March, 2002