C.C. Borden Construction, Inc., No. 4342 (February 8, 1999) Docket No. SIZ-99-01-15-05 UNITED STATES OF AMERICA SMALL BUSINESS ADMINISTRATION OFFICE OF HEARINGS AND APPEALS WASHINGTON, D.C. __________________________________ ) SIZE APPEAL OF: ) ) C.C. Borden Construction, Inc. ) ) Docket No. SIZ-99-01-15-05 Appellant ) ) Decided: February 8, 1999 Re: Pat Mathis Construction Co., ) Inc. ) ) Solicitation No. ) FTC 98-20 ) Department of the Treasury ) Federal Law Enforcement ) Training Center ) Glynco, Georgia ) __________________________________) ORDER DISMISSING APPEAL [1] On October 5, 1998, the Contracting Officer for the Department of the Treasury, Federal Law Enforcement Training Center, in Glynco, Georgia, issued the instant small business set aside procurement for the construction of a new dormitory building. He assigned to it Standard Industrial Classification code 1522 (General Contractors-Residential Buildings, Other Than Single Family), with a corresponding $17 million average annual receipts size standard. Opening bids were due on December 4, 1998. The apparent low bidder was Pat Mathis Construction Co., Inc. (PMC). On December 10 and 15, 1998, C.C. Borden Construction, Inc. (Appellant), filed size protests with the Contracting Officer challenging PMC's size status. On December 16, 1998, the Contracting Officer forwarded the protests to the Small Business Administration's (SBA) Atlanta Office of Government Contracting- Area III (Area Office) for a size determination. In its December 10th protest, Appellant merely alleged PMC was not a small business, but provided no support for this allegation. In its December 15th protest, Appellant alleged PMC is affiliated with The Polote Corporation (Polote), through common management and common facilities. On December 17, 1998, the Area Office dismissed the first protest as insufficiently specific, relying on 13 C.F.R. Sections 121.1007(b) and (c). It dismissed the second protest as untimely, because the Contracting Officer did not receive it within five business days after bid opening. 13 C.F.R. Section 121.1004(a)(1). The Area Office also noted the second protest was non-specific, because it did not present any information--or even allege--that either PMC or Polote, or both concerns together, exceeded the applicable size standard. Appellant received the dismissal letter on December 18, 1998, and filed the instant appeal on January 15, 1999. [2] Appellant reiterates its previous December 15th assertion that PMC and Polote are affiliated through common management and common facilities. It also asserts that PMC and Polote, together, exceed the applicable size standard. Appellant filed the instant appeal within 30 days of the Area Office's service of the size determination, and it is thus timely for future applicability. 13 C.F.R. Sections 134.304(a)(2) and (b). The Administrative Judge concludes the Area Office properly dismissed both protests. The applicable regulation provides: A protest must include specific facts. A protest must be sufficiently specific to provide reasonable notice as to the grounds upon which the protested concern's size is questioned. Some basis for the belief or allegation stated in the protest must be given. A protest merely alleging that the protested concern is not small...does not specify adequate grounds for the protest. 13 C.F.R. Section 121.1007(b). Subsection 121.1007(c) requires the SBA to dismiss non-specific protests. Here, Appellant's first protest merely asserted PMC is not a small business, but offered no factual basis for the assertion. Thus, it lacked the specificity required by the regulation to initiate a size investigation. The second protest was untimely. 13 C.F.R. Section 121.1004(a)(1). It also was nonspecific, because it failed to present any evidentiary support for the allegation that either PMC or Polote, alone or together, exceeded the applicable size standard. Thus, the Area Office correctly dismissed both protests. [3] In view of the above, the Administrative Judge AFFIRMS the Area Office's dismissal of both protests, and DENIES the appeal. This is the Small Business Administration's final decision. See 13 C.F.R. Section 134.316(b). ________________________________ GLORIA E. BLAZSIK Administrative Judge _________________________ [1] The Small Business Administration has amended certain of its size regulations. 63 Fed. Reg. 35726, 35738-39 (June 30, 1998) (to be codified at 13 C.F.R. Sections 121.103, 121.1001, 121.1103). Because the Contracting Officer issued the instant procurement after the June 30, 1998 effective date, the amended regulations apply here. [2] The Contracting Officer awarded the contract to Polote on December 24, 1998. [3] Because the second protest was untimely, Appellant's assertion on appeal that the combined receipts of PMC and Polote exceed the applicable size standard cannot cure the second protest's nonspecificity. Similarly, the protest's untimeliness defeats Appellant's attempt to cure, under 13 C.F.R. Section 134.308, which permits introduction of new evidence on appeal under certain limited circumstances. Posted: March, 1999