Lajas Industries, Inc., No. 4285 (January 9, 1998). 
Docket No. SIZ-97-8-13-31                                                  
                              
                  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-97-8-13-31
                               )
Re: Carter Industries, Inc.    )     Decided: January 9, 1998
                               )
Solicitation No.               )
SPO100-96-R-0103               )
Defense Personnel Support      )
  Center                       )
Philadelphia, Pennsylvania     )
______________________________ )
                              

                         APPEARANCES
                              
                        for Appellant
                              
                    Alan M. Grayson, Esq.
                   Michael A. Lewis, Esq.
                     Laura J. Mann, Esq.
               Alan M. Grayson and Associates
                              
                              
                 for Carter Industries, Inc.
                              
                      Marc Lamer, Esq.
                   Kostos and Lamer, P.C.
                              
                              
                           DIGEST
                              

A  firm  found  to  be an other than small  business  for  a
procurement has standing to protest, and thus to appeal  the
resulting   size  determination,  where  only  one   offeror
remains.

The family tie between cousins is far removed and not within
the  scope of the identity of interest regulation (13 C.F.R.
Section  121.103),  unless  sufficient  additional  evidence
establishes  another type of identity of interest,  such  as
extensive involvement with each other's business affairs.

This  Office  accords  signed affidavits  considerably  more
evidentiary    weight    than   unsupported,    self-serving
statements.

                          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).
                              
                           Issues
     
     Whether a firm found to be an other than small business
for  a  procurement  has standing to protest,  and  thus  to
appeal  the  resulting size determination,  where  only  one
offeror remains.
     
     Whether  the family tie between cousins is  within  the
scope  of  the  identity of interest regulation,  13  C.F.R.
Section 121.103.
     
     Whether, and to what extent, this Office accords signed
affidavits   more   evidentiary  weight   than   unsupported
statements.
                              
                              
                        I. BACKGROUND
                              
                 A.   Procedural Background
                              
      On  May 13, 1996, the Defense Personnel Support Center
(DPSC)  in  Philadelphia, Pennsylvania, issued  the  subject
solicitation  for  green  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 10, 1997, the CO awarded the
solicitation  to  Lajas  Industries, Inc.  (Appellant),  the
apparent low offeror.

     On April 15, 1997, Carter Industries, Inc. (Carter),  a
competing  offeror,  filed a protest with  the  CO,  through
counsel,  asserting Appellant is not a small business.   The
CO referred the protest to the Small Business Administration
(SBA)  Area II Office for Government Contracting in King  of
Prussia,  Pennsylvania (Area II Office), on April 17th.   On
April  25,  1997, the CO referred another protest  filed  by
Carter  against Appellant, concerning another  solicitation,
SPO100-96-R-0077  (which had the  same  SIC  code  and  size
standard), to the Area II Office.

      On  May  15, 1997, the Area II Office, which  did  not
formally  consolidate  the protests,  issued  two  virtually
identical  size determinations finding Appellant other  than
small  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 II Office size determinations.  Size
Appeal of Lajas Industries, Inc., No. 4263 (1997).

      Previously, on June 26, 1997, DPSC canceled the  award
of  both  procurements to Appellant and, on  the  same  day,
notified  Appellant  of  its intent  to  award  the  instant
solicitation  to  Carter.   On  June  27,  1997,  Appellant,
through  counsel,  filed  with the CO  a  protest  asserting
Carter  is not a small business because Carter and  Carter's
officers,  Marvin  R.  Azrak and Saul  Wolf,  together  with
Marvin  R.  Azrak's partner, Ezra Hamway,  own  and  control
numerous  other  entities;  and  the  aggregate  numbers  of
employees  exceed the size standard.  The  protest  did  not
allege  affiliation between Carter and any other firm  based
on the principals' family ties. [2]

     On July 1, 1997, the CO referred the protest to the SBA
Area  I  Office for Government Contracting in New York,  New
York (Area I Office).  On July 3rd, the
Area  I  Office wrote to Carter, informing it of the protest
and  requesting  a  response, an SBA Form 355,  and  certain
other  information.  On July 9th, Carter,  through  counsel,
submitted  to  the  Area I Office the  completed  Form  355,
affidavits   from  its  President,  Saul   Wolf,   and   its
Secretary/Treasurer,  Marvin  R.  Azrak,  a   statement   in
response   to   the   protest,  and  the   other   requested
information.  On July 24, 1997, the Area I Office  issued  a
size determination finding Carter a small business.

      Appellant received the size determination on July  29,
1997.  On August 13, 1997, Appellant, again through counsel,
filed the instant appeal with this Office.

      On  September 2, 1997, Carter responded to the appeal.
On  September  5,  1997, Appellant  filed  a  motion  for  a
Protective Order.  On September 9, 1997, the Presiding Judge
denied the motion as untimely, because the record previously
had  closed and Appellant showed no good cause for the  late
filing.

      On  December 12, 1997, the Presiding Judge  issued  an
Order to the CO to inform this Office whether other offerors
had  bid  on  this procurement in addition to Appellant  and
Carter.  On December 16th, the CO replied there were none.

                      B.   The Protest
                              
      Appellant asserted in its protest that Carter  is  the
successor in interest to Isratex, Inc., which was discharged
from   bankruptcy  in  1996.   Appellant  further   asserted
Carter's  officers  are directors of Ahi Ezer  Congregation,
and  Ahi  Ezer  Yeshiva  and Mardechei Maslation  Elementary
School  and, thus, Carter is affiliated with those entities.
[3]  Appellant added that Marvin R. Azrak is an  officer  of
and  controls  more  than  30  businesses.   Appellant  also
asserted  Carter was affiliated with four other  firms,  all
incorporated  within two months of Carter  and  sharing  the
same  address,  Clark  Venture Group,  Inc.,  Clark  Venture
Associates, Inc., Kent Ave. Properties, Inc., and  Overboard
Industries, Inc.

       In  his  affidavit,  Mr.  Wolf  declared  Carter  had
purchased   Isratex's  assets  as  part  of   a   bankruptcy
reorganization; and, while the firms sharing an address with
Carter  are  affiliates, none has  any  employees.   In  his
affidavit, Marvin R. Azrak declared that his cousin,  Marvin
V.  Azrak,  not  he,  owned  and controlled  the  businesses
Appellant asserted Marvin R. Azrak controlled.  He never had
ownership interest or other involvement with these  entities
or  any  of  his  cousin  Marvin V. Azrak's  other  business
ventures.  Both Marvin R. Azrak and Mr. Wolf asserted  that,
while  they  are  associated with the synagogue  and  school
named  by  Appellant,  these  are non-profit  organizations,
which are not affiliated with Carter.
                              
                  C. The Size Determination
                              
      The  Area  I  Office  found  that  Marvin  R.  Azrak's
affidavit was corroborated by a Dun & Bradstreet report, and
that  Marvin R. Azrak and Marvin V. Azrak were two different
people,  albeit cousins.  Thus, it concluded Carter was  not
affiliated with the firms affiliated with Marvin  V.  Azrak.
The  Area  I  Office  further found no  affiliation  between
Carter  and the synagogue and school, as the latter two  are
non-profit organizations.

      Conversely, the Area I Office found Carter  affiliated
with  Westwood  Hall  Associates, Inc., and  Pinebrook  Care
Center,  based  on  Mr. Wolf's ownership interest  in  those
firms;  and  the  four  firms sharing the  same  address  as
Carter.  The Area Office also found Carter was the successor
in interest to Isratex, and thus affiliated with two Isratex
affiliates,  Marywell,  Ltd.  and  MG  Brin  &  Sons,   Inc.
Nonetheless,  after reviewing the numbers of  employees  for
Carter  and  all  its affiliates, the Area  I  Office  found
Carter   was  within  the  applicable  size  standard,   and
concluded it was a small business for this procurement.

                        D. The Appeal
                              
      Appellant  does  not  challenge the  Area  I  Office's
findings of fact.  Appellant instead asserts the Area Office
erred  in  failing to consider whether Carter was affiliated
with  Marvin  V.  Azrak's companies under  the  identity  of
interest  rule.  Appellant implies, but does not  explicitly
state, that it first learned there were two different Marvin
Azraks  from  the size determination. [4] Appellant  further
asserts  that  several other unnamed Azraks  apparently  are
related  to  Marvin R. Azrak and have unspecified businesses
which may be affiliated with Carter.  Appellant asserts  the
Administrative Judge at a minimum should remand the case  to
the  Area  Office for a determination of whether an identity
of  interests exists between Marvin R. Azrak and his cousin,
Marvin V. Azrak.

      Carter replies that the identity of interest rule does
not  apply  when  the  family members at  issue  merely  are
cousins.   As support for its assertion that Carter  is  not
affiliated  with  Marvin V. Azrak's firms,  it  relies  upon
Marvin R. Azrak's declaration that he never had any interest
in his cousin's firms

                       II. DISCUSSION

      Appellant filed the instant appeal within 15  days  of
its  receipt  of  the size determination and,  thus,  it  is
timely.  13. C.F.R. Section 134.304(a)(1).

      It  is  settled that Appellant is an other than  small
business  for  this  procurement, and  is  not  eligible  to
receive  an  award.  Size Appeal of Lajas Industries,  Inc.,
No.  4263  (1997).   Ordinarily, Appellant  would  not  have
standing  to protest Carter's size.  Size Appeal  of  Arcata
Associates,  Inc.,  No. 3377 (1990).  An exception  to  this
rule  is  that  a firm found to be other than  small  for  a
procurement  has  standing  to protest  if  only  one  other
offeror remains.  13 C.F.R. Section 121.1001(a)(1)(iv).  The
rationale  for  this exception is that a  firm  successfully
challenging  the award could compete for the procurement  on
an   unrestricted  basis.   Arcata,  supra.   Here,  because
Appellant  and  Carter are the only offerors, Appellant  has
standing to protest and, thus, to file the instant appeal.

      Appellant  neither  challenges  the  Area  I  Office's
findings of fact concerning the ownership and control of the
companies  at  issue  here, nor its  findings  as  to  those
companies'  number of employees.  Appellant  also  does  not
reiterate  its protest allegation that Marvin R. Azrak  owns
or controls the businesses.  Accordingly, the Administrative
Judge  finds  Appellant has abandoned these issues,  and  he
need not consider them.  Size Appeal of Infotec Development,
Inc., No. 4197 at 7 (1996).

     Appellant  does assert, for the first time  on  appeal,
that there are other Azrak cousins whose interests should be
considered  in determining Carter's size.  However,  because
Appellant   attempts  to  submit  evidence  not   previously
presented  to  the  Area Office, without  establishing  good
cause  for  the  late  submission, the Administrative  Judge
excludes  that evidence.  13 C.F.R. 134.308(a); Size  Appeal
of L. Freedman & Associates, P.C., No. 4247 at 6 (1997).

      Conversely, although Appellant's protest did not raise
the  other  issue on appeal, that Carter is affiliated  with
Marvin  V. Azrak's businesses under the identity of interest
rule   because   he  is  Marvin  R.  Azrak's   cousin,   the
Administrative Judge will consider it.  That issue, and  the
fact  there are two Marvin Azraks, who are cousins, was  not
apparent  to  Appellant until the Area I Office  issued  its
size  determination.   Appellant thus does  not  attempt  to
submit  new evidence, but, rather, permissibly asserts  that
the  Area  Office erred in applying the regulations  to  the
evidence  before it.  Nonetheless, the Administrative  Judge
emphasizes  that Appellant has the burden of proving,  by  a
preponderance  of the evidence, that the Area  Office  based
the  size  determination on a clear error of  fact  or  law.
Size Appeal of Rebmar, Inc., No. 4173 (1996).

      The  applicable  regulation requires that  individuals
with   identical   or   substantially   identical   economic
interests, such as family members, be treated as one  party,
and   their  interests  aggregated  for  size  determination
purposes.  13 C.F.R. Section 121.103(a)(3).  In interpreting
this rule, the leading case held that family members must be
treated  as  one  person  for  the  purpose  of  determining
affiliation,  but  this  presumption  may  be  rebutted   by
evidence  showing the familial tie is far  removed,  or  the
individuals concerned are estranged or not closely  involved
with  each  other's  lives or business  transactions.   Size
Appeal of Golden Bear Arborists, Inc., No. 1899 (1984) at 7.

      Appellant  correctly points out the Area I Office  did
not  consider the identity of interest rule.  However,  even
if  the Area I Office erred, it was harmless error at worst.
This  Office's settled precedent holds that the  family  tie
between  cousins is far removed and not within the scope  of
the   regulation,  unless  sufficient  additional   evidence
establishes  another type of identity of interest,  such  as
extensive  involvement with each other's  business  affairs.
Size Appeals of E. Huttenbauer & Son, Inc., No. 3865 (1993);
and  JL Associates, Inc. and HLJ Management Group, Inc., No.
3102 (1989).

     Here,  Appellant  offers no evidence, beyond  its  bare
assertions,  of  economic  ties  between  the  two  cousins.
Conversely,   Marvin   R.   Azrak's   unrebutted   affidavit
unequivocally states he never had any ownership interest  or
other involvement with his cousin's businesses.  This Office
accords  signed  affidavits considerably  more  weight  than
unsupported,  self-serving statements. [5]  Size  Appeal  of
Armed  Forces  Sports  Officials,  Inc.,  No.  3932  (1994).
Accordingly, the Presiding Judge concludes, based  upon  the
undisputed  record  evidence, that no identity  of  interest
exists  between Marvin V. Azrak and Marvin R. Azrak.   Thus,
no affiliation exists between their respective businesses.

      Accordingly,  the Presiding Judge concludes  Appellant
has failed to sustain its burden of demonstrating the Area I
Office based its size determination on a clear error of fact
or law, and denies the instant appeal.

                       III. CONCLUSION

     Accordingly,  the Area I Office decision  is  AFFIRMED,
and the instant appeal is DENIED.

      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] On July 15, 1997, the CO notified Appellant of his
intent  to  award  the other solicitation, No.  SPO100-96-R-
0077,  to Specialty Plastic Products (Specialty).   On  July
22nd,  Appellant  filed a protest with the Area  II  Office,
asserting Specialty was other than small.  On July 28th, the
Area  Office  dismissed  Appellant's  protest  for  lack  of
standing.   On  August  3,  1997,  Appellant  appealed  that
dismissal  to  this  Office.   On  December  22,  1997,  the
Administrative Judge affirmed the dismissal.  Size Appeal of
Lajas Industries, Inc., No. 4284.

      [3] Ahi Ezer Yeshiva and Mardechei Maslation
Elementary School is one institution, according to
unrebutted information Carter submitted.
      [4]  Otherwise, Appellant's assertion that  a  single
Marvin  Azrak  controlled all the firms associated  with  an
individual  bearing that name would have been  made  in  bad
faith.
      [5] Appellant's credibility is not enhanced by its
earlier assertion of affiliation between Carter and a house
of worship and a school, both non-profit entities.

                                       Posted: January, 1998