B.L. Harbert International LLC, No. SIZ-4525 (December 16, 2002) Docket No. SIZ-2002-09-12-42 (RMD)[1], SIZ-2002-08-08-32 UNITED STATES OF AMERICA SMALL BUSINESS ADMINISTRATION OFFICE OF HEARINGS AND APPEALS WASHINGTON, D.C. ) SIZE APPEAL OF: ) ) B.L. Harbert International LLC ) Docket No. SIZ-2002-09-12-42 (RMD)[1] ) SIZ-2002-08-08-32 Appellant ) ) RE: GSC Construction, Inc. ) ) Decided: December 16, 2002 Solicitation No. DACA21-02-B-0010 ) Department of the Army ) Savannah District, Corps of ) Engineers ) Savannah, Georgia APPEARANCES Douglas E. Eckert, Esq., Bradley Arant Rose & White LLP, for Appellant Karl Dix, Jr., Esq., Smith, Currie & Hancock LLP, for GSC Construction, Inc. Linda Taylor, Esq., for the Department of the Army DIGEST A size appeal filed by an unsuccessful offeror against an awardee found small by the Area Office is not moot despite contract award where the contracting officer has stopped performance, because it remains uncertain whether the condition for mootness, that the contract will remain in place with the awardee regardless of the outcome of the appeal (and thus that the appeal is purely academic), is fulfilled. Where a protestor-appellant's debarment or suspension was not in effect either at the time of bid opening or since then, that debarment or suspension is not a ground for dismissal of the appeal for lack of standing at the protest level. DECISION [2] BLAZSIK, Administrative Judge: Jurisdiction This appeal is decided under the Small Business Act of 1958, 15 U.S.C. Section 631 et seq., and 13 C.F.R. Parts 121 and 134. Issues Whether a size appeal filed by an unsuccessful offeror against an awardee found small by the Area Office is moot where contract award has been made and the contracting officer has stopped performance. Whether a protestor-appellant's debarment or suspension that was not in effect either at the time of bid opening or since then is a ground for dismissal of the protestor-appellant's size appeal for lack of standing at the protest level. Procedural Background On June 5, 2002, the Contracting Officer (CO) for the Department of the Army, Savannah District, Corps of Engineers, in Savannah, Georgia, issued this sealed bid solicitation for the construction of a consolidated troop medical clinic at Fort Stewart, Georgia. The solicitation was unrestricted; however, it included Federal Acquisition Regulation clause 52.219-4, providing a price evaluation preference for HUBZone (Historically Underutilized Business Zone) small business concerns. [3] The CO assigned to the procurement North American Industry Classification System (NAICS) Code 233320, Commercial and Institutional Building Construction, with a corresponding $28.5 million average annual receipts size standard. [4] Bid opening was on July 9, 2002. That same day, GSC Construction, Inc. (GSC) self-certified as a small business with its bid submission. On July 16, 2002, B.L. Harbert International LLC (Appellant) filed a size protest against the apparent low bidder, GSC. Appellant alleged GSC is affiliated with 11 companies, rendering it other than small. Appellant also alleged GSC is ineligible as a HUBZone concern. [5] On July 17, 2002, the CO forwarded the size protest to the Small Business Administration's (SBA) Atlanta Office of Government Contracting-Area III (Area Office) for a size determination. The Area Office referred the HUBZone portion of the protest to SBA's HUBZone Office to be processed under 13 C.F.R. Part 126. [6] On July 22, 2002, after investigating the size issues, the Area Office issued a size determination (the July 22nd determination). The Area Office stated it had ruled on the same size questions in its May 13, 2002, size determination (the May 13th determination), issued in response to a size protest by Dawson Building Contractors, Inc. (Dawson) against GSC on a different procurement, [7] and an appeal of the May 13th determination was pending before the SBA's Office of Hearings and Appeals (this Office). The Area Office adopted the findings of its May 13th determination, and again concluded GSC is an eligible small business. While Dawson's size appeal was pending before this Office, GSC, through its recently-engaged prior counsel, filed a motion to admit 34 new documents into the record. The motion stated that GSC had omitted mention of its owner's 25% interest in two real estate investment firms when it filed its original SBA Form 355 with the Area Office. The motion further stated that GSC's owner had incorrectly believed he need not mention any inherited interests. Among the new documents was an amended SBA Form 355 reflecting these interests. Dawson also moved for the admission of its own new evidence. On August 2, 2002, this Office issued Size Appeal of Dawson Building Contractors, Inc., SBA No. SIZ-4501 (2002) (Dawson I). There, Administrative Judge Christopher Holleman granted both parties' motions to admit new evidence, vacated the May 13th determination, and remanded that proceeding to the Area Office for further investigation and a new size determination on GSC, to include the new evidence. On August 7, 2002, Appellant appealed the July 22nd determination to this Office. On August 9, 2002, the CO awarded the contract to GSC. On August 12, 2002, the Area Office sent a letter to this Office, informing it that, because the basis of Appellant's protest was identical to that in Dawson I, which this Office had remanded, the Area Office vacated the July 22nd determination on August 9, 2002, and advised Appellant that its new determination also would apply to the instant protest. On August 22, 2002, Administrative Judge Gloria E. Blazsik formally remanded the matter to the Area Office. Size Appeal of B.L. Harbert International LLC, SBA No. SIZ-4504 (2002) (Harbert I). [8] Facts The evidence in the Area Office file, as corrected and supplemented on remand, describes the following eight firms and their owners, directors, and officers: GSC, the challenged firm, is a construction company established in 1995 by its sole owner and director, George Locke McKnight (Locke). Its officers are Locke, his wife Catherine, and John Phillips. By itself, GSC is well below the size standard. On December 31, 2000, GSC's Board of Directors agreed to relocate the company from Augusta, Georgia, to 314 Mann Road, Waynesboro, Georgia (Waynesboro). Although the Waynesboro property was deeded to GSC on January 7, 2002, GSC has had telephone service there since September 2001. McKnight Construction Co., Inc. (McKnight Construction), of Augusta, Georgia, is an undisputedly large construction firm. The prior ownership was: William McKnight (William) 50%, Locke 30%, Mason McKnight (Mason) 10%, and Elizabeth Engler (Elizabeth), their sister, 10%. Locke was an employee there from June 1990 to December 2000, and his last paycheck was dated December 22, 2000. Although Locke formerly was an officer of McKnight Construction, since January 3, 2001, its directors and officers have been: William, Alice McKnight, and Huey Carter. Locke continued to be listed with SBA as McKnight Construction's Small Business Liaison Officer, and on November 28, 2001, William wrote the SBA stating Locke was no longer with the firm and requesting the list be updated. In an August 20, 2002, letter to the Area Office, Locke discussed the sale of his ownership interest in McKnight Construction. He stated his father had originally given him his shares, but never issued any stock certificates. Thus, the shares are uncertificated. On September 4, 2001, Locke met with William and transferred his stock to him by instructing the corporation to register the transfer. [9] The brothers agreed that the value of the transferred stock would be determined after the year-end financial audit. On January 2, 2002, the Board of Directors, Mason having replaced Alice McKnight, met and discussed the sale of Locke's shares. MCC, Inc. (MCC), is located in Augusta, Georgia. In the past, Locke, Mason, and William were officers and one-third owners of this firm. Since December 12, 2001, MCC's directors and officers have been: William, Mason, and Huey Carter. On January 2, 2002, the Stockholders met and discussed the sale of Locke's stock equally to William and Mason in exchange for the Waynesboro property. The record does not indicate MCC's line of business. ACC Construction Company (ACC), located in Augusta, Georgia, is a construction company and allegedly a large firm. Mason has owned 100% of this company since January 5, 1987. ACC's officers are Mason, Lou Ann McKnight, and Lewis Carter. M&C Spirits, Inc. (M&C Spirits), located in Augusta, Georgia, is owned by William 33.3%, and Mason 33.3%. Its officers are Mason, William, and Douglas Engler. The record does not show who owns the rest of the stock, although GSC's SBA Form 355 does not list it among Locke's holdings. Augusta Flight Service, Inc. (Augusta Flight), is located in Trenton, South Carolina. Locke is the sole owner. Since December 12, 2001, the directors and officers have been Locke and Elizabeth. This firm's receipts are well below the applicable size standard. McKnight Properties, Inc. (McKnight Properties), and McKnight & Associates, Inc. (McKnight Associates), are both real estate investment firms formerly owned by the McKnights' father until his death in 1995. Locke, Mason, William, and Elizabeth each inherited a 25% interest in both firms. Locke had been an officer of both firms, but since December 12, 2001, their directors and officers have been: Mason, William, Huey Carter, and Elizabeth. The combined receipts of both firms are well below the size standard. [10] In its SBA Form 355, GSC answered "no" to Questions 24 and 25, which ask the challenged firm whether it has received any assistance from any alleged affiliate in arranging for subcontractors for any contract in the past two years, and whether there have been any actual or proposed subcontracts between it and any alleged affiliate. The Area Office file also includes affidavits from William and Mason stating that neither they nor any company associated with them gave either financial or technical assistance to GSC, including on the Redstone bid. These affidavits are corroborated by a letter from GSC's bonding provider. The record also contains an affidavit from William Ash Barnett, GSC's proposed subcontractor for the Redstone contract, stating he dealt solely with Locke and GSC on that bid. The August 21st Size Determination On August 21, 2002, the Area Office issued a new size determination (the August 21st determination) on GSC. [11] After a rambling and confusing statement of the facts, the Area Office discussed relevant decisions of this Office and concluded that GSC had rebutted the presumption that a family identity of interest existed between Locke and his siblings on March 21, 2002, the date GSC self-certified as a small business for the Redstone contract. The Area Office also found the newly organized concern rule, and the common management and totality of circumstances grounds for affiliation were inapplicable. Accordingly, the Area Office concluded GSC was an eligible small business under the applicable size standard. Appellant received the August 21st determination on August 22, 2002. On September 3, 2002, the CO issued notice to GSC to proceed on the contract. The Instant Appeal On September 6, 2002, Appellant appealed the August 21st determination. [12] Appellant attached to and incorporated into its appeal Dawson's appeal petition filed in Dawson II. Appellant asserts that, in not finding the McKnight siblings' businesses affiliated, the Area Office misapplied the identity of interest rule, because it made distinctions between different lines of businesses and levels of involvement. Further, the Area Office either should have found GSC did establish clear fracture from all McKnight firms or found GSC is affiliated with all of them. Dawson (in its appeal petition in Dawson II) additionally alleges that the "Carter & Associates" that assisted GSC in preparing its bid for the Redstone contract includes two men who are also officers or directors of McKnight Construction and ACC. Regarding the newly organized concern rule analysis, Appellant asserts the Area Office ignored that MCC "gave GSC its HUBZone property" in Waynesboro, and the Area Office failed to investigate whether the McKnight family companies had ever provided subcontracting assistance to GSC. Finally, Appellant asserts GSC's Waynesboro address (within a HUBZone) is a sham and that Locke admitted affiliation with McKnight Construction throughout 2001. Thus, GSC improperly obtained HUBZone certification in October 2001. On September 12, 2002, the CO stopped work on the contract. On September 13, 2002, GSC filed a motion to dismiss the appeal as moot because the contract has been awarded, citing this Office's case law. On September 27, 2002, Appellant filed its opposition to the motion to dismiss, asserting the appeal is not moot because the CO has stopped work on the contract. On September 30, 2002, the CO informed this Office and the parties that she intends to maintain the stop-work order until this appeal is resolved. On October 2, 2002, the day the record closed, GSC filed its response to the appeal. GSC asserts the appeal must be dismissed because, on June 6, 2001, Appellant was suspended or debarred from Government contracting and appeared on the Consolidated List of Suspended and Debarred Contractors (the Consolidated List). GSC attached several exhibits, including a portion of the Consolidated List that includes Appellant's name. A copy of this portion of the Consolidated List was in the Area Office file, but the Area Office apparently had not investigated the matter. Substantively, GSC denies any admission of affiliation with McKnight Construction in 2001, denies having any existing subcontracts with the alleged affiliates, and states that Carter & Associates is a computer software firm whose only assistance on the Redstone bid was to modify GSC's spreadsheet program to accommodate that project. On October 7, 2002, the Administrative Judge issued an order to show cause why she should not dismiss this appeal because of Appellant's suspension or debarment. She also ordered Appellant to state whether it (or any of its affiliates) was debarred or suspended as of the bid opening date, and ordered the CO to state whether she had found Appellant ineligible for award because of debarment, suspension, or any other non-size reason. On October 10, 2002, both Appellant and the CO filed timely responses to the order to show cause. These responses show that, although Appellant had been suspended at one time, the suspension was terminated on February 7, 2002, and that the CO did not find Appellant ineligible for award for any reason. Also on October 10, 2002, GSC filed a reply to the CO's response. GSC asserts Appellant's bid includes a false certification regarding past contract terminations for default, and requests the Administrative Judge to find Appellant ineligible for contract award. GSC attaches many exhibits in support of its contentions. On October 21, 2002, Appellant filed a motion to strike GSC's submission of October 10, 2002, and a motion for a protective order covering all submissions in this proceeding to "prevent the damage to [Appellant's] business," a request to impose sanctions on GSC for disseminating false information, and a demand for award of fees and costs. On October 23, 2002, GSC filed a motion to strike Appellant's October 21, 2002, filing on the ground that it was filed after close of record, and an opposition to Appellant's motion for a protective order. On October 24, 2002, the CO filed a response to "address inaccuracies GSC has introduced into the record," regarding a construction contract at Ft. Bragg, North Carolina. On October 25, 2002, GSC filed a letter regarding the CO's October 24, 2002, letter. On October 31, 2002, the Administrative Judge held a telephone conference concerning the flurry of filings that began with GSC's October 10th reply. At the conference, she orally ruled these filings untimely because they were filed after close of record and without leave; therefore, she will not consider them. [13] Discussion Procedural Matters Appellant filed the instant appeal within 15 days of receiving the size determination, and thus the appeal is timely. 13 C.F.R. Section 134.304(a)(1). GSC has filed a motion to dismiss this appeal as moot, and Appellant opposes the motion. Under this Office's precedent, a size appeal filed by an unsuccessful offeror against an awardee found small by the Area Office is not moot despite contract award, where the contracting officer has stopped performance. Size Appeal of L&B Reporting, Inc., SBA No. SIZ-4386 (1999). This is because it remains uncertain whether the condition for mootness, that the contract will remain in place with the awardee regardless of the outcome of the appeal (and thus that the appeal is purely academic), is fulfilled. Size Appeal of Spectrum Landscape Services, Inc., SBA No. SIZ-4313 (1998). Here, the CO awarded the contract to GSC on August 9, 2002, issued the Notice to Proceed on September 3, 2002, and issued a stop-work order on September 12, 2002. Moreover, on September 30, 2002, the CO informed this Office and the parties that the stop-work order would stay in effect until this appeal is resolved. Thus, it remains uncertain whether the contract will remain with GSC and, therefore, a ruling from this Office on GSC's size is not merely an academic matter. Accordingly, because this appeal is not moot, the Administrative Judge DENIES GSC's motion to dismiss it for mootness. GSC also requests dismissal of this appeal because of Appellant's appearance on the Consolidated List, which renders Appellant ineligible for this contract. See 48 C.F.R. Section 9.405. This Office's precedent requires dismissal of an appeal filed by a party who, as the protestor below, was ineligible for contract award for a non-size reason, and thus lacked standing to file the size protest. Size Appeal of Madison Services, Inc., SBA No. SIZ-3853 (1993) (interpreting the regulation now at 13 C.F.R. Section 121.1001(a)(1)(iv)). Debarment or suspension is a non-size reason for ineligibility for contract award and, therefore, is a ground for dismissal of a size appeal for lack of standing at the protest level. Here, however, evidence ordered into the record on appeal shows that, although Appellant had once been suspended, that suspension was terminated on February 7, 2002. Thus, the suspension was not in effect either at the time of bid opening or since then. Moreover, the CO has stated that she did not find Appellant ineligible for contract award. Therefore, because there has been no ineligibility finding, the Administrative Judge DENIES GSC's motion to dismiss this appeal on that basis. Merits of the Appeal [14] The substantive issues in this appeal are whether GSC, the challenged firm, was affiliated with other McKnight companies on March 21, 2002, and, if so, whether the combined receipts of GSC and its affiliates exceed the small business size standard. [15] The alleged grounds for affiliation include: identity of interest, the newly organized concern rule, and the totality of circumstances. Appellant does not challenge the Area Office's finding of no affiliation based on common management. Therefore, the Administrative Judge concludes Appellant has abandoned this issue, and she will not consider it. Size Appeal of Apex Group, Inc., SBA No. SIZ-4300 (1998). Appellant has the burden of proving, by a preponderance of the evidence, all the elements of its appeal. Specifically, it must prove the Area Office based its size determination on a clear error of fact and law. 13 C.F.R. Section 134.314; Size Appeal of General Maintenance Engineering, Inc., SBA No. SIZ-4405 (2000). Identity of Interest The size regulations provide that individuals with substantially identical business interests, such as family members, may be treated as one party, with such interests aggregated for purposes of determining affiliation. 13 C.F.R. Section 121.103(a)(3). This Office's long-standing case precedent interprets this regulation as creating a rebuttable presumption that family members have identical interests and must be treated as one person, unless the family members are either estranged or not involved with each other's business transactions. Size Appeal of Golden Bear Arborists, Inc., SBA No. SIZ-1899 (1984). Thus, the presumption arises, not from the degree of family members' involvement in each other's business affairs but, rather, from the family relationship itself. Size Appeal of Gallagher Transfer & Storage Co., Inc., SBA No. SIZ- 4295 (1998). A sibling relationship suffices to trigger the presumption of identity of interest. Size Appeal of Priority One Services, Inc., SBA No. SIZ-4479 (2002). Therefore, because Locke, William, Mason, and Elizabeth are all siblings, the presumption applies to them. In order to rebut the presumption of identity of interest affiliation, the challenged firm must present to the Area Office evidence to demonstrate a clear line of fracture among the family members in their business affairs. Gallagher, supra. To demonstrate clear fracture, the challenged firm may argue family members are not involved in each other's business affairs. Id. The Administrative Judge rejects Appellant's position that rebuttal of the identity of interest presumption requires complete fracture from every single firm with which any family member has a connection. Under this Office's case law, clear fracture can occur even though some relationships between family members and firms exist. For example, in Size Appeal of Bob Jones Realty Co., SBA No. SIZ-4059 (1995), the sole owner of the challenged realty had a 2.5% ownership interest in and was one of nine directors of the alleged affiliate, a bank at which the current president and managing officer was his father (who had sold him the realty 20 years earlier). In determining that fracture had occurred, this Office noted the two firms' different lines of business, different locations, and minimal transactions (four mortgage referrals) between them. In Size Appeal of Maria Elena Torano & Associates, SBA No. SIZ-4010 (1995), the challenged firm, META, owned 51% of the large alleged affiliate, METEC, until 14 months before bid date, then sold all but 1% of it to META's sole owner's son, who had bought out the 49% owner. Prior to this sale, the son was an officer, director, and employee of META, and the two firms had had contracts with each other, but were in different lines of business. After the sale, the son left his META positions, and owned 99% of METEC. Further, this Office has found fracture even where the two firms were currently in the same line of business. In Size Appeal of Barbara B.H. Skelton, SBA No. SIZ-2534 (1986), a woman owned the challenged firm, her husband owned the alleged affiliate, and both firms were livestock ranches. Fracture had occurred because there were no business proposals, joint management, or shared employees between the firms, although the woman did provide some free secretarial services for the husband's ranch. Here, regarding McKnight Construction, Locke began to disassociate himself from that firm when he left his employment there in December 2000, 15 months before the Redstone bid date. Although the record does not show whether Locke was ever a director there, he clearly has not been a director there since at least January 3, 2001. On September 4, 2001, Locke sold his stock to William, thus severing his final tie with this firm. Regarding MCC, Locke disassociated himself from this firm on January 7, 2002, when he sold his stock to his brothers in exchange for the Waynesboro property. Although the record does not show whether Locke had ever been a director there, he clearly has not been a director or an officer there since at least December 12, 2001. Thus, unlike in Priority One, supra, where the owner of the challenged firm did not completely disassociate himself from the alleged affiliate, but retained a small interest and a directorship in it, Locke did divest himself of all his interest in McKnight Construction and MCC, and retained no position with either firm. As for ACC and M&C Spirits, there is no evidence that Locke holds or has ever held any ownership interest, officer position, or directorship in either of these firms. Moreover, record evidence including GSC's answers to Questions 24 and 25 of its SBA Form 355, affidavits from William, Mason, and Mr. Barnett, and the statement from GSC's bonding provider show that GSC has never received subcontracts, or subcontracting, financial, or technical assistance from any of those firms. Thus, on March 21, 2002, GSC had no current connections or business relationships with McKnight Construction, MCC, ACC, or M&C Spirits. The only affiliation factor present is that GSC and McKnight Construction (and MCC, assuming it also does construction) are in the same line of business; however, under Skelton, the Area Office was correct to discount this factor. The Administrative Judge also must reject Appellant's argument that there is no clear fracture because of Locke's involvement in Augusta Flight, McKnight Properties, and McKnight Associates. This Office has decided several identity of interest cases involving multiple alleged affiliates and in none of them has this Office found affiliation with any one firm solely because of the owners' involvement in other firms in different lines of business. In each case there were other, stronger factors requiring a finding of no clear fracture. In Gallagher, supra, the challenged firm's 74% owner and landlord also leased space to four of the five alleged affiliates, two of them rent-free. Moreover, two of the challenged firm's officers also owned interests in four of the affiliates. In Size Appeal of Jack Faucett Associates, SBA No. SIZ-4278 (1997), one alleged affiliate leased space to the others, and the challenged firm received subcontracts from and shared office equipment with one of them. Finally, in Size Appeal of Agrigold Juice Products, SBA No. SIZ-4136 (1996), the firms, if not in exactly the same industry, represented a continuum of products and services and an interdependency in the same or related industries. Accordingly, in light of this case law, the Administrative Judge concludes there is no identity of interest affiliation between GSC and McKnight Construction, MCC, ACC, or M&C Spirits because of Locke's involvement in Augusta Flight, McKnight Properties, and McKnight Associates. Appellant's only remaining argument for finding affiliation based on identity of interest is with respect to past relationships between firms; however, Appellant has not cited, and the Administrative Judge is unaware of, any case where this Office found affiliation between two firms solely because of their past connections. The Administrative Judge also rejects Appellant's assertion of error regarding Carter & Associates, as that computer firm, contrary to Appellant's assertion, has nothing to do with the Carters of McKnight Construction and ACC. Accordingly, the Administrative Judge concludes the Area Office was correct in finding GSC had achieved complete fracture from, and thus was not affiliated with, McKnight Construction, MCC, ACC, or M&C Spirits under the identity of interest rule as of the applicable March 21, 2002, self-certification date. Newly Organized Concern Under the newly organized concern rule, firms are affiliated when former officers, directors, principal stockholders, or key employees of one firm organize a new firm in the same or a related industry or field of operation, and serve as its officers, directors, principal stockholders or key employees, and the one concern is furnishing or will furnish the other concern with subcontracts, financial or technical assistance, bid or performance bond indemnification, or other facilities, whether for a fee or otherwise. Size Appeal of Field Support Services, Inc., SBA No. SIZ-4176 (1996) (citing 13 C.F.R. Section 121.401(j) (1995)). Affiliation under the newly organized concern rule is rebutted if the challenged firm can demonstrate a clear line of fracture between itself and the other firm. Field Support. The purpose of the newly organized concern rule is to prevent circumvention of the size regulations by the creation of spin-off firms which appear to be small, independent firms, but are really affiliates or extensions of large firms, even absent evidence the new firm was formed to circumvent the size regulations. Id. In 1996, the SBA eliminated the newly organized concern rule as a separate basis for affiliation, reasoning that its elimination as a separate affiliation ground "would not eliminate the underlying reasons for finding affiliation on other grounds." 60 Fed. Reg. 57982, 57985 (Nov. 24, 1995) (preamble to proposed 13 C.F.R. Section 121.103); see Size Appeal of American Guard Services, SBA No. SIZ-4397 (2000). Under this Office's case law, the newly organized concern rule is a factor in determining whether affiliation exists under the totality of circumstances. Size Appeal of Pointe Precision, LLC, SBA No. SIZ-4466 (2001). The newly organized concern rule applies with respect to a challenged firm and an alleged affiliate only if all of the following four elements are satisfied: (1) former officers, directors, principal stockholders, or key employees of one firm organize a new firm; (2) these individuals serve as the new firm's officers, directors, principal stockholders or key employees; (3) the new firm is in the same or a related industry or field of operation; and (4) the one concern is furnishing or will furnish the other concern with subcontracts, financial or technical assistance, bid or performance bond indemnification, or other facilities, whether for a fee or otherwise. Pointe Precision, supra. Thus, the newly organized concern rule would apply to GSC with respect to any firm only if GSC satisfies all four elements of the test with respect to that firm. Here, GSC, as the new firm, would satisfy the second element with respect to any other firm, because Locke is GSC's sole owner and director. However, GSC does not satisfy the first element with respect to ACC or M&C Spirits because Locke was never an officer, director, principal stockholder, or key employee there. Also, GSC does not satisfy the third element with respect to M&C Spirits because this firm is not in any line of business related to construction. Thus, only with respect to McKnight Construction (and MCC, assuming it is also a construction firm) does GSC satisfy the first three elements of the newly organized concern rule. As for the fourth element, the record evidence, particularly GSC's answers to Questions 24 and 25 of its SBA Form 355, the affidavits from William and Mason covering any firm with which they are associated, and the statement from GSC's bonding provider, all of which GSC submitted to the Area Office under penalties for making false statements, show that GSC does not receive financial or technical assistance, bonding indemnification, or subcontracts from any of these four firms. The SBA must give greater weight to specific, signed, evidence submitted under penalties for making false statements than to protestors' generalized allegations to the contrary. 13 C.F.R. Section 121.1009(d); Size Appeal of Ahntech, Inc., SBA No. SIZ-4505 (2002). The Area Office correctly did so here. Therefore, GSC does not satisfy all four elements of the newly organized concern rule with respect to McKnight Construction, MCC, ACC, or M&C Spirits. Moreover, the record shows that Appellant's specific assertions underlying its argument for a finding of newly organized concern rule applicability all lack factual basis. First, MCC did not give the Waynesboro property to GSC; MCC sold it to Locke in exchange for his MCC stock. Second, the Area Office did not fail to investigate the subcontract assistance issue; it asked specific questions on this issue, and GSC's submissions to the Area Office fully addressed those questions. Accordingly, the Administrative Judge concludes the Area Office was correct in finding that the newly organized concern rule did not apply to GSC with respect to McKnight Construction, MCC, ACC, or M&C Spirits as of the applicable March 21, 2002, self-certification date. Totality of Circumstances Two firms are affiliated for size determination purposes when one firm controls or has the power to control the other, or a third party controls or has the power to control both. 13 C.F.R. Section 121.103(a)(1). In making affiliation determinations, SBA considers factors such as ownership, management, previous relationships, and contractual relationships. 13 C.F.R. Section 121.103(a)(2). Even absent a single factor sufficient by itself to constitute affiliation, where "connecting relationships between firms are so suggestive of dependence as to render them affiliated," SBA will find them affiliated under the totality of circumstances. Size Appeal of Inland Dredging Company, LLC, SBA No. SIZ-4350 (1999). In Inland Dredging, the connecting relationships were financial assistance (loan guarantees and bond indemnification) to the challenged firm, the sharing of office space and a secretary, and the fact the alleged affiliate's vice president was also the challenged firm's chief manager until two months before bid date, and then continued as a consultant. In Pointe Precision, supra, the relationships were the alleged affiliate's 26% ownership of the challenged firm, the challenged firm's status as a newly organized concern and as a spin-off of the alleged affiliate, sales to the alleged affiliate totaling over 85% of the challenged firm's receipts, financial guarantees, and use of the alleged affiliate's equipment without cost. In both Inland Dredging and Pointe Precision, none of the listed relationships, by itself, sufficed to cause affiliation; however, in the aggregate they were "so suggestive of dependence as to render [the firms] affiliated." Here, GSC shares no current stockholders, directors, officers, key employees, secretaries, or office space with McKnight Construction, MCC, ACC, or M&C Spirits. GSC does not now receive, and has never received, financial, technical, or subcontracting assistance from any of these four firms. GSC has no contractual relationships with them. GSC was not spun off from any of these firms, nor is the newly organized concern rule applicable. Thus, except for the minor connections in the form of Elizabeth's officer and director positions in Augusta Flight, McKnight Properties and McKnight Associates, and Elizabeth and Locke's ownership interests in McKnight Properties and McKnight Associates, small companies that are in lines of business completely unrelated to construction, there are no present connecting relationships between GSC and McKnight Construction, MCC, ACC, and M&C Spirits. Accordingly, the Administrative Judge concludes the Area Office was correct in finding GSC was not affiliated with McKnight Construction, MCC, ACC, or M&C Spirits under the totality of circumstances rule as of the applicable March 21, 2002, self-certification date. Other Arguments Finally, Appellant's assertion that GSC's Waynesboro address is a sham has no place in this appeal, as that assertion concerns HUBZone eligibility and this Office is not authorized to review HUBZone issues except for size status. 13 C.F.R. Part 126, Subpart H. Likewise, Appellant's assertions that Locke was affiliated with McKnight Construction throughout 2001 and, therefore, that GSC improperly obtained certification as a HUBZone small business in October 2001, have no place in this appeal, because the date as of which GSC's size status is determined is March 21, 2002, when GSC submitted its bid on the Redstone contract. 13 C.F.R. Section 121.404. The Administrative Judge concludes that all of Appellant's arguments on appeal lack merit. Accordingly, because Appellant has failed to meet its burden of demonstrating the Area Office based its size determination on a clear error of fact or law, the Administrative Judge denies the appeal. Conclusion For the above reasons, the Administrative Judge AFFIRMS the Area Office's size determination on remand and DENIES the instant appeal. This is the final decision of the Small Business Administration. See 13 C.F.R. Section 134.316(b). GLORIA E. BLAZSIK Administrative Judge _________________________ 1 Because this Decision is on remand, this Office has assigned this case a new docket number to distinguish it from the original Remand Order. 2 The Small Business Administration has revised its regulations governing the small business size determination program and its regulations governing size appeals. 67 Fed. Reg. 47244 (July 18, 2002). However, because the size determination, which is the subject of this appeal, was issued prior to the September 16, 2002, effective date of this rule, the prior regulations apply to this appeal. 3 The CO must give offers from HUBZone small business concerns a price evaluation preference by adding a factor of 10 percent to all offers, except for those from HUBZone small business concerns and certain other offers not pertinent here. 48 C.F.R. Section 19.1308(b). A HUBZone small business concern is "a small business concern that appears on the List of Qualified HUBZone Small Business Concerns maintained by the Small Business Administration." 48 C.F.R. Section 52.219-4. 4 Effective February 22, 2002, the SBA raised the size standard for NAICS code 233320 to $28.5 million. 67 Fed. Reg. 3041, 3046 (Jan. 23, 2002). 5 SBA certified GSC for the HUBZone program on October 16, 2001. 6 On August 8, 2002, SBA denied the HUBZone protest. 7 Solicitation No. DACA01-01-B-0008 was for construction work at Redstone Arsenal, Alabama (the Redstone contract). Bid opening for the Redstone contract was on March 21, 2002. 8 Once an appeal is filed with this Office, the Area Office no longer has jurisdiction over the matter. See 13 C.F.R. Section 121.1009(g)(1), (h). 9 Under Georgia law, a transfer of uncertificated shares is effective on the date of transfer. Ga. Code Section 11-8-301(b). 10 The protest also noted four other alleged affiliates: McKnight Investment Co., which was never active; Will McKnight Construction, Inc., which was dissolved in 1994; AUG, Inc., which was dissolved in 1993; and Greylaine Contracting, Inc., which has no connection to any of the McKnights and was dissolved in 1998. Because the first three firms were not active during the applicable three-year measuring period (see 13 C.F.R. Section 121.104(b)), it is clear they produced no annual receipts. 11 The Area Office performed one size determination on GSC for both the Redstone contract and the instant procurement, based on the March 21, 2002, self-certification date and the $27.5 million size standard applicable to the Redstone contract. 12 Dawson filed its appeal of the August 21st determination on August 29, 2002. See Size Appeal of Dawson Building Contractors, Inc., SBA No. SIZ-4511 (2002) (Dawson II). 13 Moreover, regarding GSC's request to find Appellant ineligible for award because of past default terminations, the Administrative Judge notes she is not authorized to make such a finding. Regarding Appellant's request for a global protective order, she notes the entire record in a size appeal is public except for specific types of confidential information. See 13 C.F.R. Sections 134.225(b), 134.204(f), and Part 102. As for Appellant's request for fees and costs, these are not authorized in a size appeal. 13 C.F.R. Section 134.219. 14 In deciding whether the Area Office correctly determined GSC's small business size status, it is unnecessary to consider whether GSC is affiliated with Augusta Flight, McKnight Properties, and McKnight Associates because, even assuming these four firms are affiliated, their combined average annual receipts are still well below the applicable size standard. Likewise, it is unnecessary to consider whether GSC is affiliated with McKnight Investment Co., Will McKnight Construction, Inc., and AUG, Inc., because these three firms have no receipts for the applicable period. Finally, it is now undisputed that the remaining alleged affiliate, Greylaine Contracting, Inc., has no connection to any of the McKnights. Therefore, the Administrative Judge here need consider only whether GSC is affiliated with the following four firms: McKnight Construction, MCC, ACC, and M&C Spirits. 15 The Area Office based its determination on the March 21, 2002, bid opening date and $27.5 million size standard applicable to the Redstone contract; however, the outcome would be the same if the Area Office had used the July 9, 2002, bid date and $28.5 million size standard applicable to the instant procurement. Posted: January, 2003