SBA Office of Government Contracting, No. 4355 (April 23, 1999) Docket No. SIC-99-03-11-14 UNITED STATES OF AMERICA SMALL BUSINESS ADMINISTRATION OFFICE OF HEARINGS AND APPEALS WASHINGTON, D.C. __________________________________ ) SIC APPEAL OF: ) ) SBA Office of Government ) Contracting ) ) Docket No. SIC-99-03-11-14 Appellant ) ) Decided: April 23, 1999 Solicitation No. ) 277-99-6034 ) Substance Abuse and Mental Health ) Services Administration ) Department of Health and Human ) Services ) Rockville, Maryland ) __________________________________) ORDER DISMISSING APPEAL I. BACKGROUND On March 11, 1999, the Small Business Administration's (SBA) Associate Administrator for Government Contracting (Appellant), through SBA's Office of General Counsel, filed the instant appeal. Appellant challenges a Standard Industrial Classification (SIC) code designation by the Contracting Officer (CO) for the Substance Abuse and Mental Health Services Administration, Department of Health and Human Services (SAMHSA), in a solicitation for a Data Coordinating Center at the Center for Substance Abuse Prevention. The CO issued the solicitation as an unrestricted procurement, and assigned to it SIC code 8741, Management Services, with a corresponding $5 million average annual receipts size standard. Appellant asserts the correct SIC code is 7379, Computer Related Services, Not Elsewhere Classified, with a corresponding $18 million average annual receipts size standard. [1] On March 29, 1999, the CO filed a Response to the appeal, presenting unsworn testimony, evidence, and argument that SBA's SIC appeal is untimely and, therefore, this Office should dismiss the appeal. The CO filed a copy of the solicitation, as required by 13 C.F.R. Section 134.306. The solicitation clearly bears the notation "Date Issued: February 26, 1999." [2] The CO asserts that Rodney Lewis, a SBA Procurement Center Representative (PCR) in the Department of Health and Human Services Contracting Office, had actual notice of the February 26th issue date. On April 6, 1999, Appellant filed a Motion for Leave to Reply to the CO's Response. Appellant asserts the SIC appeal was timely. Although the CO may have issued the solicitation on February 26th, it was not available to potential offerors until March 1, 1999. On April 7, 1999, the Administrative Judge granted Appellant's Motion, and ordered both Appellant and the CO to present, by April 15, 1999, evidence -- including affidavits and argument -- on the issue of the appeal's timeliness. On April 15, 1999, Appellant filed a Reply to the Administrative Judge's Order. Appellant submits an affidavit from the PCR, who asserts the only announcement in the Commerce Business Daily (CBD) concerning the instant solicitation was posted on January 29, 1999, and printed in the CBD on February 2, 1999. This announcement estimated the solicitation would be issued on February 18, 1999, and stated potential offerors could obtain it either from SAMHSA's web site or by mail. SAMHSA would fill mail requests on a first-come, first-served basis until the supply was exhausted. The PCR further asserts the solicitation was not available to him or to potential offerors until March 1, 1999, when it was first available on the SAMHSA web site. Attached to the PCR's affidavit is a printout of the CBD notice. Appellant's brief asserts a solicitation is issued on the date it is first available to potential offerors on the Internet, if the procuring agency plans to distribute the solicitation in that manner, not on the date the CO affixes to it. Appellant asserts: We believe that SAMHSA clearly intended for potential offerors to acquire this Solicitation via SAMHSA's web site. We believe that the Solicitation was not available on SAMHSA's web site until Monday, March 1, 1999. [citation omitted] Therefore, we believe that March 1, 1999 is the issuance date for this Solicitation and that SBA's SIC code appeal was timely. Appellant further asserts the CBD Notice was the only announcement concerning the solicitation, and specified no definite issue date. SAMHSA advertised the solicitation in a manner ensuring it would not be available to most, if not all, potential offerors until March 1, 1999 or later. Further, SAMHSA limited availability of the solicitation through the mail, ensuring it would not be available to some potential offerors until it became available on its web site on March 1st. Therefore, Appellant asserts the Administrative Judge should find the CO issued the solicitation on March 1st, and the instant appeal is timely. SAMHSA filed three affidavits on April 15th. The first, by the CO, states the official release site for the solicitation is not SAMHSA's web site. Similarly, the official release date is not the date the solicitation is posted on the web site. The CO concedes SAMHSA posted the solicitation on its web site on March 1st, but maintains February 26th was the official issue date. The CO states paper copies of the solicitation were available to the public in her office, and were mailed to prospective offerors, both on February 26th. The second affidavit, by Michelle A. Ringo, a SAMHSA Contract Specialist, states she assisted in preparing the solicitation, and SAMHSA made the paper copy available to the public on February 26th. Ms. Ringo further states she assisted in preparing the paper copies for mailing, and saw another employee, Andrew Payne, take the paper copies for mailing on the morning of February 26th. The third affidavit is by Mr. Payne, a SAMHSA Procurement Technician, who states he personally prepared copies of the solicitation for mailing and placed them in a mail box on the morning of February 26th. II. DISCUSSION The applicable regulation requires an appellant to file a SIC code appeal within ten calendar days of the date the CO issues the initial solicitation. 13 C.F.R. Sections 134.101, 134.304(a)(3); SIC Appeal of Surface Technologies Corp., Inc., No 4238 at 2 (1997). The standard for determining timeliness is an objective one, based on the date the CO issues the solicitation. It is not the date an appellant learns the basis for its appeal. SIC Appeal of Summit Research Corporation, No. 4283 at 3 (1997). If an appeal is untimely filed, the Administrative Judge must dismiss it. 13 C.F.R. Section 134.304(b). Appellant asserts the appeal is timely because a solicitation's issuance date is the date it actually is available to the public, not the date chosen by the CO. Appellant offers no statutory, regulatory, or case law support for this argument. However, even if legal authority supported Appellant's argument, the appeal would fail on the particular facts of this case, as established by SAMHSA's affidavit evidence. This Office gives great evidentiary weight to affidavit testimony. Size Appeal of Lajas Industries, Inc., No. 4285 at 7 (1998). The Administrative Judge finds the affidavits of the CO, Ms. Ringo and Mr. Payne persuasive; they are consistent with each other, and are uncontroverted by other evidence. [3] Specifically, he finds these affidavits establish that SAMHSA actually made the solicitation available to potential offerors in paper copy form on February 26th and, in fact, mailed it on that date to an unspecified number of offerors. Further, the SAMHSA web site is not the official release site for the solicitation. Moreover, the Administrative Judge's review of the information at SAMHSA's web site shows a roster of solicitations with issue dates, and the instant solicitation's issue date is February 26, 1999. The solicitation, together with a cover letter, is available on the web site, and both are dated February 26th. [4] This establishes that, even on the web site where Appellant obtained the solicitation, the issue date of February 26th was clearly stated. In response, Appellant merely speculates ("we believe") the solicitation was not available prior to March 1st. The PCR's affidavit establishes and SAMHSA does not contest, only that the solicitation was unavailable on the SAMHSA web site prior to March 1st. However, the Administrative Judge finds the CO, Ms. Ringo and Mr. Payne are in a better position than Appellant to know when the paper copies of the solicitation first became available and were mailed. [5] The PCR's affidavit does not contradict the SAMHSA affidavits. Further, because the information on SAMHSA's web site clearly states February 26th was the issuance date for the solicitation, the Administrative Judge rejects Appellant's reliance on the March 1st date. Accordingly, based on the undisputed affidavit testimony of the CO, Ms. Ringo and Mr. Payne; the information on the SAMHSA web site; and the solicitation itself, the Administrative Judge finds the CO issued the solicitation on February 26, 1999, when it became available at the CO's office and SAMHSA mailed paper copies to potential offerors. Therefore, any SIC code appeal was due on or before March 8, 1999. Appellant's March 11th appeal was untimely filed. III. CONCLUSION Therefore, Appellant, who bears the burden of proof on all issues in an appeal, has failed to satisfy that burden as to the threshold issue here, timeliness. SIC Appeal of The Scientific Consulting Group, Inc., No. 4186 at 5 (1996). Accordingly, the Administrative Judge DISMISSES the instant appeal. This is the Small Business Administration's final decision. See 13 C.F.R. Section 134.316(b). ____________________________ CHRISTOPHER HOLLEMAN Administrative Judge _________________________ [1] Appellant's appeal incorrectly asserts the assigned SIC code is 8742, Management Consulting Services, which also has a corresponding $5 million average annual receipts size standard. [2] The CO amended the solicitation twice, on March 17th and March 23rd, to respond to questions from potential offerors. Neither amendment materially altered the terms of the Statement of Work. A material alteration would have extended the time in which a SIC code appeal could be filed. SIC Appeal of Engineering Design Corporation, No. 4268 at 3 (1997). [3] The Administrative Judge notes Appellant does not challenge the accuracy of SAMHSA's affidavits. [4] SAMHSA's web site is found at http://www.samhsa.gov. [5] The CBD notice to which Appellant refers is irrelevant, because a SIC code appeal's timeliness is based solely upon the actual issuance date of the solicitation. Similarly, SAMHSA's assertion the PCR had actual notice of the issue date also is irrelevant. The ten-day period to appeal runs, not from Appellant's notice of the issue date, but the actual issuance date. Posted: May, 1999