Portac, Inc., No. 3878 (January 12, 1994) Docket No. SIZ-93-7-6-79 UNITED STATES OF AMERICA SMALL BUSINESS ADMINISTRATION OFFICE OF HEARINGS AND APPEALS WASHINGTON, D.C. SIZE APPEAL OF: ) ) Portac, Inc. ) ) Appellant ) ) Docket No. SIZ-93-7-6-79 Department of Agriculture ) Forest Service ) Olympic National Forest ) Olympia, Washington ) DIGEST When a Regional Office size determination is requested by the Forest Service in relation to an Agency program, but is rendered in the absence of a specific sale or lease, that determination is informal and advisory in nature and cannot be reviewed by the Office of Hearings and Appeals pursuant to 13 CFR 121.1701. DECISION ON PETITION FOR RECONSIDERATION January 12, 1994 WRIGHT, Administrative Judge, Presiding: Jurisdiction This appeal is resolved in accordance with 15 U.S.C. 632 et seq., and the regulations codified at 13 CFR Part 121. Issue Whether the Regional Office size determination can be appealed. Facts On October 7, 1993, the U. S. Small Business Administration (SBA or Agency) filed 1/ a Petition for Reconsideration of our decision in Size Appeal of Portac. Inc., No. 3827 (1993), which found that a Regional Office size determination made in the absence of a specific timber sale is advisory in nature and unreviewable by the Office of Hearings and Appeals, pursuant to 13 CFR 121.1701. The present petition disputes our holding in the captioned decision and asserts that "since this opinion was rendered pursuant to 13 CFR 121.1601(b)(4)(ii), which allows SBA to render a formal, binding size determination without the requirement that it relate to a specific timber sale, that it is a formal, binding size determination which is appealable to OHA." In support of its argument the Agency cites 13 CFR 121.1003 and argues that a size opinion is advisory in nature and hence not appealable to OHA when two conditions are met: 1) the request is not related to a specific sale or lease; and 2) the opinion was not issued pursuant to §§ 121.1601 through 121.1608. It also suggests "that the Forest Service's form of request (i.e., citing § 121.1601 rather than § 121.1501) should not preclude the size determination from being properly received and issued by SBA." Discussion Nothing in the Agency's argument persuades us that our decision in this case was in error or should be modified. The regulations found at 13 CFR 121.1701 2/ constitute a jurisdictional bar to our consideration on appeal of informal and advisory size determinations. While the regulations found at 13 CFR 121.1601(b)(4)(ii) clearly support the propriety of the Forest Service's request for a size determination in relation to an SBA program, no reference is therein made to the right to appeal the determination so made to the Office of Hearings and Appeals. However, appeal rights pertaining to determinations of size eligibility for sales of government property are addressed in 13 CFR 121.1003, as follows: Size determinations for the purpose of Government sales and leases are formal actions by the appropriate SBA officials pursuant to 121.1601 through 121.1722, based upon a specific Government sale or lease and are binding upon the parties thereto, as provided by law. A size determination may also be performed when no contract is at issue if another Government agency requests such a determination pursuant to 121.1501 through 121.1505 of these regulations. Opinions provided by SBA to contracting officers or others not relating to a specific sale or lease and not given pursuant to 121.1601 through 121.1608 or 121.1701 through 121.1722 are advisory in nature and not binding size determinations under these sections, and are not appealable. This provision defines, inter alia, the appeal rights pertaining to size determinations requested, as in the present case, by a contracting officer of another Government agency in reference to the administration of an SBA sales program.3/ Both the first and last sentences of the regulation direct that such determinations, when based on a specific sale or lease and made pursuant to the appropriate provision of 13 CFR 121.1601 through 121.1720, are binding and appealable. Accordingly, we confirm our decision that the size determination in this case, requested by the Forest Service in relation to an SBA timber sales program, pursuant to 13 CFR 121.1601(b)(4)(ii), in the absence of a specific sale or lease, is informal and advisory and therefore beyond our appellate jurisdiction. Conclusion The Petition for Reconsideration is GRANTED; Decision Number 3827 is AFFIRMED. ___________________________________ G. Stephen Wright (Presiding) Administrative Judge ___________________________________ Gloria E. Blazsik (Concurring) Administrative Judge _____________________________________ Elwin H. White (Concurring) Administrative Judge ________________ 1 As our Order was issued September 16, 1993 and the present petition filed on October 7, 1993, the present petition is timely within the meaning of 13 CFR 121.1721(c). We also conclude that the captioned decision presents significant issues of precedential importance and that the SBA has not previously appeared in the case as a party, within the meaning of the referenced regulation. 2 This provision states the following: The jurisdiction of the Office of Hearings and Appeals under this part shall be limited as specified in paragraphs (a) and (b) of this section, to appeals from formal size determinations and appeals from SIC Code designations. No appeal will be permitted from an informal or advisory size opinion. 3 In order to resolve the present case, it is unnecessary to address either the question of size determination requests made by other Government agencies regarding the other agency's programs or to resolve the latter argument of counsel in the factual portion of this decision.