Elite Properties, No. 3954 (September 30, 1994)
Docket No. SIZ-94-5-17-73



                    UNITED STATES OF AMERICA

                  SMALL BUSINESS ADMINISTRATION

                 OFFICE OF HEARINGS AND APPEALS

                        WASHINGTON, D.C.


SIZE APPEAL OF:                    )
                                   )
Elite Properties                   )
                                   )
     Appellant                     )
                                   )
Re:  DPS/REMAX                     )
     Milton Thomas/Prudential      )    Docket No. SIZ-94-5-17-73
     Prudentiel Carolinas          )
     O'Shaughnessy Realty          )
     REMAX Professional            )
     REMAX Realty                  )
                                   )
Solicitation No.                   )
DACA21-94-N-0010                   )
Department of the Army             )
Corps of Engineers                 )
Savannah, Georgia                  )

                             DIGEST

Size protests that merely assert that the challenged firms are
other than small businesses because they exceed the applicable
size standard, without providing any further grounds for the
assertion, are insufficiently specific to trigger a size investi
gation by the Regional Office and the protests, accordingly, were
properly dismissed.

                            DECISION
                                
                       September 30, 1994

BLAZSIK, Administrative Judge:

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.

Issue

Whether the Regional Office was correct in dismissing the
protests for nonspecificity.

Facts

On January 26, 1994, the Department of the Army, Corps of
Engineers, Savannah, Georgia, issued this solicitation for "Real
Estate Property Management" and classified it under Standard
Industrial Classification code 6531, having a $1 million average
annual receipts size standard. The solicitation was totally set
aside for small businesses, and the bids were due on March 18,
1994.

By letters dated March 24, 1994, Elite Properties (Elite or
Appellant) timely challenged the small business size status of
the following<wix bidders: DPS/REMAX; Milton Thomas/Prudential;
Prudential Carolinas; O'Shaughnessy Realty; REMAX Professional;
and REMAX Realty. See 13 CFR 121.1603(a)(1).

Each of the six protest letters were identical and read as
follows:

     There are 300 licensed Real Estate Firms in the Charleston
     Tri-County Area. The following companies who submitted bids
     fall in the top 1% of this market.
     
     Small business as defined by the solicitation is any company
     whose "annual receipts of the concern and its affiliates for
     the preceding 3 fiscal years must not exceed one million
     dollars, as measured by total revenues." Therefore, the
     following companies do not qualify as a small business. [A
     list of the six protested bidders follows.]
     
The Contracting Officer forwarded the protests on March 28, 1994,
to the Philadelphia Regional Office of the Small Business
Administration (SBA) for size determinations on all of the
challenged businesses.

On April 18, 1994, the Regional Office issued six determinations,
dismissing all of the protests as nonspecific and cited 13 CFR
121.1604(a) and (b) in support of its actions.

Elite received the Regional Office determinations on April 4,
1994, and by letter postmarked May 6, 1994, filed a timely appeal
from all six determinations. */

In its appeal, Elite merely asserts:

     The size determination of six companies was questioned,
     based on information known from eighteen years of experience
     in the local real estate market. Because it is not
     reasonable to expect one individual or an individual company
     to have access to the financial information of another
     company, the merits of the protests must be made on "non
     specific" information. [Language quoted is exactly as in the
     original.]

Discussion

Resolution of this appeal is governed by the regulations set
forth at 13 CFR 121.1604 and 13 CFR 121.1707 which provide, 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.

     121.1707 Scope of appeal and burden of proof.
     
     The Office of Hearings and Appeals will not consider issues
     not previously presented to the Small Business
     Administration official whose size determination is being
     appealed unless such consideration is determined to be
     necessary to prevent manifest injustice to a party and such
     omission was not due to the fault of such party. The
     appellant shall have the burden of proof, by a preponderance
     of the evidence, in both size and SIC appeals.

The record demonstrates that Appellant's protests do not meet the
specificity requirements of the regulation, quoted above. The
protests merely assert, without providing any reason or bases for
the assertions, that the challenged firms do not meet the applic
able size standard and, therefore, are not small businesses. Such
unsubstantiated protests must be dismissed under the regulation
and the Regional Office's action in dismissing the protests was
proper. Size Appeal of Independent Towel & Linen Service, No.
3541, at 4 (1991). Consistent also with the provision of 13 CFR
121.1707, supra, the burden of proof is upon an appellant to
demonstrate that the determination being reviewed is incorrect.
The Appellant in this proceeding has failed to do this; in fact,
in its appeal, Appellant seems to be acknowledging that its
protests were based upon "non-specific information," supra. Thus,
the Regional Office's dismissals of the protests are affirmed.

Conclusion

The Regional Office's determinations are AFFIRMED, and the appeal
is DISMISSED.

This constitutes the final decision of the Small Business
Administration. See 13 CFR 121.1720(a), (b), and (c).



                              ______________________________
                              Gloria E. Blazsik
                              Administrative Judge
        
____________________
     
*/  The appeal is timely filed within the 30 calendar day
    rule set forth at 13 CFR 121.1705(a)(1).