The GEA Group and GEA Engineering, No. 3990 (March 9, 1995) Docket No. SIZ-94-10-7-133 UNITED STATES OF AMERICA SMALL BUSINESS ADMINISTRATION OFFICE OF HEARINGS AND APPEALS WASHINGTON, D.C. SIZE APPEAL OF: ) ) The GEA Group ) GEA Engineering ) ) Appellant ) Docket No. SIZ-94-10-7-133 ) Solicitation No. ) DACW51-94-R-0001 ) Department of the Army ) New York District ) Corps of Engineers ) New York ) DIGEST A protest that was not received by the Contracting Officer within five business days from the date the protesting party received notification of the identity of the prospective awardee being challenged is untimely under the provisions of 13 CFR 121.1603(a)(2), and must be dismissed. A protest that merely states that the protesting party believes that the procuring agency intends to award the contract to a firm that the party believes will use other-than-small subcontractors, lacks the specificity required under the provisions of 13 CFR 121.1604. Deficiencies in the original protest may not be cured on appeal. DECISION March 9, 1995 BLAZSIK, Administrative Judge: Jurisdiction This appeal is decided under the Small Business Act of 1958, 15 U.S.C. Section 632 et seq., and the regulations codified at 13 CFR Part 121. Issues Whether the protest was timely filed. Whether the Regional Office was correct in dismissing the protest for nonspecificity. Facts On December 10, 1993, the Department of the Army, New York District Corps of Engineers, New York, issued the instant negotiated solicitation for "Environmental Services" and classified it under Standard Industrial Classification code 7389 (Business Services, Not Elsewhere Classified), having a $5 million average annual receipts size standard. The solicitation was totally set aside for small businesses and initial offers were due on January 12, 1994. Best and final offers were due on August 23, 1994, and on August 31, 1994, the unsuccessful offerors were notified. On the same date, the contract was awarded. The record shows that the Contracting Officer's notification to The GEA Group, GEA Engineering (GEA or Appellant), one of the offerors, was received by GEA on September 6, 1994. On September 14, 1994, the Contracting Officer received a protest against the awardee of the contract from GEA. The protest alleged that GEA believed that the successful awardee's subcontractors to be used on the contract are other than small. On September 22, 1994, the Contracting Officer forwarded the protest to the New York Regional Office, noting that the protest was untimely. On September 26, 1994, the Regional Office issued its determination, dismissing the protest for nonspecificity and citing 13 CFR 121.1604 in support of its action. It did not discuss the issue of timeliness raised by the Contracting Officer. GEA received the Regional Office's determination on September 29, 1994, and filed a timely appeal from that determination by letter postmarked October 3, 1994. See 13 CFR 121.1705(a)(2). Arguments on Appeal Although the Regional Office determination did not consider the timeliness of the protest, GEA asserts on appeal that it sent its protest dated September 13, 1994, to the Contracting Officer within five days of its receipt of notice of the awardee's identity on September 6, 1994. GEA argues, accordingly, that its protest was timely. GEA also asserts on appeal that, contrary to the Regional Office's determination, it presented sufficient grounds in its protest to render the protest specific under the regulations and that, therefore, the protest should not have been dismissed for nonspecificity. Nonetheless, in an attempt to cure any perceived deficiency in its protest, GEA names several firms that it believes will serve as the awardee's subcontractors and who, in GEA's opinion, would not meet the pertinent size standard. No support was provided for GEA's opinion regarding the named firms' size status or even that these firms will be the awardee's subcontractors. Discussion Regarding the issue of the timeliness of the protest, the record demonstrates that Appellant received notification of the identity of the awardee on September 6, 1994, and, according to Appellant, its protest was dated September 13, 1994. However, Appellant's protest was not received by the Contracting Officer until September 14, 1994. Because the protest was not received by the Contracting Officer within five business days from the date of the receipt of the identity of the prospective awardee being protested, as required by 13 CFR 121.1603(a)(2), the protest was untimely and should have been dismissed by the Regional Office for that reason. Assuming, notwithstanding, that the protest was timely, the protest would still have to be dismissed. Review of the protest demonstrates that Appellant failed to provide specific, or any grounds whatsoever, for its allegation that the awardee's subcontractors are believed to be other than small, as required by SBA regulation found at 13 CFR 121.1604(a), which states in part: A protest merely alleging that the protested concern is not small or is affiliated with unnamed other concerns will not be deemed to specify adequate grounds for the protest. No support was given for the allegations made in the protest and, thus, it failed to meet the requirements for specificity set forth in the regulation. See, also, Size Appeal of Anthony M. Whitfield, d/b/a Whitfield Realty, No. 3944 (1994). The SBA regulation at 13 CFR 121.1604(b) requires that a non-specific protest must be dismissed. Further, Appellant's belated attempt to cure on appeal the protest's deficiency cannot be allowed because 13 CFR 121.1707 does not permit this Office to consider issues not previously presented to the Regional Office "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...." Appellant's self-serving assertions on appeal that the named firms may, in its opinion, be other than small or will, indeed, serve as the awardee's subcontractors, do not meet the standard set forth in the regulation. Conclusion In view of the above analysis, the protest was untimely and should have been dismissed. The appeal is DENIED. This constitutes the final decision of the Small Business Administration. See 13 CFR 121.1720(a), (b), and (c). _______________________________ Gloria E. Blazsik Administrative Judge ____________________