Lajas Industries, Inc., No. 4284 (December 22, 1997).
Docket No. SIZ-97-8-15-32
                                                                
                                                         
                    UNITED STATES OF AMERICA
                  SMALL BUSINESS ADMINISTRATION
                 OFFICE OF HEARINGS AND APPEALS
                        WASHINGTON, D.C.
_______________________________
                               )
SIZE APPEAL OF:                )
                               )
Lajas Industries, Inc.         )
                               )
     Appellant                 )     Docket No. SIZ-97-8-15-32
                               )
Re: Specialty Plastic Products )     Decided: December 22, 1997
                               )
Solicitation No.               )
SPO100-96-R-0077               )
Defense Personnel Support      )
  Center                       )
Philadelphia, Pennsylvania     )
______________________________ )
                           APPEARANCES
                                
                          for Appellant
                                
                      Alan M. Grayson, Esq.
                     Michael A. Lewis, Esq.
                 Alan M. Grayson and Associates
                                
                                
                             DIGEST
                                
A  firm found other than small for a particular procurement lacks
standing to file a size protest against another offeror for  that
procurement,  unless  the second offeror is  the  only  remaining
offeror.
                            DECISION
HOLLEMAN, Administrative Judge:
                          Jurisdiction
     This appeal is decided under the Small Business Act of 1958,
15  U.S.C. Sections 631 et seq., and 13 C.F.R. Parts 121 and  134
(1996).
                              Issue
                                
     Whether  a  firm  found other than small  for  a  particular
procurement  has standing to file a size protest against  another
offeror for that procurement, where the second offeror is not the
only remaining offeror.
                          I. BACKGROUND
      On  March  18,  1996, the Defense Personnel Support  Center
(DPSC)   in   Philadelphia,  Pennsylvania,  issued  the   subject
solicitation for tan coveralls.  The procurement was totally  set
aside  for small business.  The Contracting Officer (CO) assigned
to  the procurement Standard Industrial Classification (SIC) code
2326,  Men's  and Boys' Work Clothing, with a corresponding  size
standard of 500 employees. [1] On April 15, 1997, the CO  awarded
the  solicitation  to  Lajas Industries,  Inc.  (Appellant),  the
apparent low offeror.
      On  April  22,  1997, Carter Industries, Inc.  (Carter),  a
competing  offeror, through counsel, filed with the CO a  protest
asserting Appellant is not a small business.  The CO referred the
protest  to the Small Business Administration Area II Office  for
Government Contracting (Area Office) on April 25th. [2]
      On  May  15, 1997, the Area Office, which did not  formally
consolidate  the  protests, issued two virtually  identical  size
determinations finding Appellant other than a small business  for
both procurements.  On May 30, 1997, Appellant appealed both size
determinations to this Office in a single appeal.  On August  22,
1997, this Office denied the appeal and affirmed both Area Office
size determinations.  Size Appeal of Lajas Industries, Inc.,  No.
4263 (1997).
      On  June 26, 1997, DPSC canceled award of both procurements
to  Appellant  and, on July 15, 1997, notified Appellant  of  its
intent  to  award  the instant procurement to  Specialty  Plastic
Products  (Specialty).   On  July 22,  1997,  Appellant,  through
counsel, filed with the CO a protest asserting Specialty is not a
small  business,  because it is affiliated with  at  least  seven
other  firms  and the aggregate numbers of employees  exceed  the
size  standard.  The CO referred Appellant's protest to the  Area
Office on July 23rd.  On July 28, 1997, the Area Office dismissed
Appellant's  protest  because  it  lacked  standing.    Appellant
received notification of this dismissal on August 1, 1997.
      On August 15, 1997, Appellant, again through counsel, filed
the  instant  appeal with this Office. [3] Appellant asserts  the
Area  Office erred in dismissing its protest.  Appellant  asserts
it  has  standing  to protest because it was an offeror  and  the
applicable  regulation  permits "any  offeror"  in  a  particular
procurement  to  file  a  size protest in  connection  with  that
procurement.   13  C.F.R.  Section 121.1001(a)(1)(i).   Appellant
asserts  in  support this Office's precedent requiring  that  SBA
regulations be given their plain meaning.
         Further,    Appellant    asserts    that    13    C.F.R.
Section  121.1001(a)(1)(iv), which grants standing to protest  to
"other  interested parties" is not applicable, because it  is  an
offeror.   Appellant also asserts that, since it was an  eligible
offeror  when  it submitted its bid, more than one other  concern
bid on this solicitation.
      Finally,  Appellant asserts this Office's precedent  grants
standing  to  offerors found ineligible solely because  of  their
size status, citing Size Appeals of Dynamic Decisions, Inc.,  No.
4248  (1997);  J.E. McAmis, Inc., No. 4114 (1995); and  Integrity
Management International, Inc., No. 3586 (1992).
       Previously,  on  July  24,  1997,  the  CO  had  protested
Specialty's   size  status,  apparently  based   on   Appellant's
allegations.   On August 18, 1997, the Area Office  responded  to
the   CO's  protest;  it  issued  a  size  determination  finding
Specialty was a small business.  The Area Office noted two  other
offerors  remained  for  this  procurement.   Appellant  received
notification  of the Specialty size determination on  August  25,
1997.  Appellant neither has appealed the size determination  nor
requested leave to amend the instant appeal to address the merits
of the Specialty size determination.
                           DISCUSSION
      Appellant  filed  the  instant appeal  within  15  days  of
receiving  the Area Office's dismissal of its protest and,  thus,
it is timely.  13. C.F.R. Section 134.304(a)(1).
      It  is settled that Appellant is other than small for  this
procurement,  and  is  not eligible to receive  an  award.   Size
Appeal  of Lajas Industries, Inc., No. 4263 (1997). [4]  None  of
Appellant's arguments in this appeal creates standing for  it  to
challenge the award to Specialty, because neither the regulations
nor OHA precedent supports its position.
      First,  Appellant misinterprets the regulation on which  it
relies, 13 C.F.R.
Section  121.1001(a)(1)(i).  Although the regulation states  that
"any offeror" may file a size protest, this Office's longstanding
precedent  explicitly  holds  that  the  term  excludes  offerors
subsequently disqualified from participation in a small  business
set  aside  because they are other than small.   Size  Appeal  of
Arcata  Associates, Inc., No. 3377 (1990).  This  Office  reached
this  conclusion based upon Congress' intent in creating  SBA  to
assist  small  business.  Size Appeal  of  Westinghouse  Electric
Corporation, No. 2521 (1986) at 6; 15 U.S.C. Section 631(a).  For
that  reason,  this Office will dismiss an appeal from  an  other
than  small  firm,  which  challenges the  Area  Office's  proper
dismissal  of  a  protest for lack of standing.  Size  Appeal  of
North American Products, No. 3433 (1991).
       Second,  while  Appellant  is  correct  that  this  Office
generally  applies  the  plain meaning of SBA  regulations,  that
plain   meaning   cannot  contradict  Congressional   intent   as
explicitly  stated  in  the Small Business  Act.   This  Office's
precedent,  which is based upon that Congressional intent,  holds
that  other than small firms for the particular procurement  have
no standing to file size protests.
     A limited exception to this rule is that an other than small
firm  for  a  procurement has standing to  protest  if  only  one
offeror  remains.   13  C.F.R. Section  121.1001(a)(1)(iv).   The
rationale  for  this  exception is  that  the  firm  successfully
challenging  the  award could compete for the procurement  on  an
unrestricted basis.  Arcata, supra.  However, under these  facts,
because two other offerors remain in addition to Appellant,  this
regulatory exception is not applicable.
      Third,  contrary to Appellant's assertions,  this  Office's
case  law does not confer standing on Appellant to protest.  This
Office  previously held that a firm with no standing  to  protest
(because the procurement was under the 8(a) program), nonetheless
had  standing to appeal a size determination.  It could do so  if
it  was  eligible  for  award,  was  adversely  affected  by  the
determination,  and  the size determination  was  issued  at  the
request of the SBA District Office (which request the regulations
authorize).   Size Appeal of Dynamic Decisions,  Inc.,  No.  4248
(1997),  rev'd on other grounds sub nom. Dynamic Decisions,  Inc.
v.  Alvarez,  Civ. No. 97-941 (D.D.C. July 2, 1997)  (mem.  op.),
vacated by order approving settlement  (D.D.C. Sept. 8, 1997).
     Here, Appellant appeals from the Area Office's dismissal for
lack  of  standing  of  Appellant's own  protest,  not  the  size
determination issued in response to the CO's request.  Therefore,
Dynamic Decisions is inapposite.  As noted above, since Appellant
had no standing to protest, it now has no standing to appeal.
     
     However,   even  if  Appellant  were  appealing   the   size
determination  issued in response to the CO's request,  Appellant
still  would  have to be a party adversely affected by  the  size
determination  to apply Dynamic Decisions on standing.   Although
the  appellant  in Dynamic Decisions was an offeror  eligible  to
receive  an  award of the contract, it did not have  standing  to
file  an initial protest because the contract was under the  8(a)
program.  13 C.F.R.
Section  121.1001(b)(2).  [5]  Because  Appellant  here  is   not
eligible  to  receive an award, it was not adversely affected  by
the size determination finding Specialty eligible.  Therefore  it
has no standing.
      The  other cases cited by Appellant, Size Appeals  of  J.E.
McAmis,   Inc.,   No.   4114  (1995)  and  Integrity   Management
International,  Inc., No. 3586 (1992), also are inapposite.   The
issue  in  those cases was the standing to protest of firms  who,
unlike  Appellant  here, were ineligible for  award  for  reasons
other than size.
                      III.      CONCLUSION
                                
      Appellant  had no standing to file a size protest  in  this
case, and the Area Office's dismissal of the protest is AFFIRMED.
       This   is   the  final  decision  of  the  Small  Business
Administration.  See 13 C.F.R.
Section 134.316(b).
                                   ____________________________
                                   CHRISTOPHER HOLLEMAN
                                   Administrative Judge
_________________________
       [1]  A typographical error in the solicitation listed  the
nonexistent  SIC  code 2328.  The CO later represented  that  the
correct SIC code is 2326.  Size Appeal of Lajas Industries, Inc.,
No. 4263 (1997).
       [2] Previously, on April 17, 1997, the CO had referred  to
the   Area  Office  another  protest  filed  by  Carter   against
Appellant,  concerning Solicitation SPO100-96-R-0103  (which  had
the same SIC code and size standard).
       [3]  On  June  26, 1997, Appellant also  filed  a  protest
concerning the award of Solicitation SPO100-96-R-0103 to  Carter.
On  July  24,  1997, the Area Office issued a size  determination
finding  Carter a small business.  On August 13, 1997,  Appellant
appealed  that  determination to  this  Office.   The  appeal  is
pending, and the Presiding Judge does not address it here.   Size
Appeal of Lajas Industries, Inc., Docket No. SIZ-97-8-13-31.
       [4]  The  size  determination was  made  as  of  the  date
Appellant  submitted its bid.  13 C.F.R. Section 121.404.   Thus,
Appellant's assertion it was an eligible offeror on that date  is
meritless.
       [5]  Similarly, this Office found an unsuccessful  offeror
had  standing  to appeal a size determination made after  the  CO
adopted appellant's untimely protest, because that appellant  was
an  eligible  offeror. Size Appeal of Neal R.  Gross  &  Company,
Inc., No. 3888 (1994)
                                            Posted: January, 1998