The Refinishing Touch, No. 4615 (March 10, 2004)
Docket No. SIZ-2004-01-30-02

                                
                    UNITED STATES OF AMERICA
                  SMALL BUSINESS ADMINISTRATION
                 OFFICE OF HEARINGS AND APPEALS
                        WASHINGTON, D.C.
                                

                                )      
SIZE APPEAL OF:                 )      
                                )      
The Refinishing Touch           )      
                                )    Docket No. SIZ-2004-01-30-02
     Appellant                  )      
                                )      
RE:  Commercial Marketing       )    Decided:  March  10, 2004
 Corporation                    )
                                )
Solicitation No. RFQ W911RX-04- )
 T-0044                         )
Department of the Army          )
Directorate of Contracting      )
Fort Riley, Kansas
 

                 ORDER REMANDING PROCEEDING [1]

                         I.  BACKGROUND

                         A.  The Protest

       On   December  23,  2003,  the  Department  of  the  Army,
Directorate  of Contracting at Fort Riley, Kansas (Army),  issued
the  subject  solicitation  for the  reconstitution  of  barracks
furniture.   The  Contracting Officer (CO)  set  the  procurement
totally aside for small business. [2] Offers were due on December
29, 2003. On December 30, 2003, the Army awarded the contract  to
Commercial Marketing Corporation (CMC).

      On  January  6,  2004,  The Refinishing  Touch  (Appellant)
received  notification  via electronic  mail  that  CMC  was  the
awardee. On January 13, 2004, Appellant filed a size protest with
the  CO,  alleging that CMC was an other than small business.  On
January  14,  2004,  the CO referred the  protest  to  the  Small
Business Administration (SBA) Office of Government Contracting  -
Area III, in Atlanta, Georgia (Area Office).

      On  January 15, 2004, the Area Office dismissed Appellant's
protest as untimely. In reaching this conclusion, the Area Office
relied  on a Memorandum for Record (MFR) dated January  2,  2004,
from  Jennifer Reeves, a Contracting Specialist (CS) in the  Fort
Riley Directorate of Contracting. The MFR states that the CS  had
a telephone conversation that day with Mario Insenga, Appellant's
President,  during which she informed him CMC  was  the  awardee.
This was supported by a statement from the CO, stating that the e-
mail  sent  to  Appellant instructing it to  file  a  Freedom  of
Information  Act  (FOIA) request referred to Appellant's  request
for  more  detailed  information.  Appellant  received  the  Area
Office's dismissal of its protest on January 20, 2004.

      On  January  27, 2004, Appellant requested  that  the  Area
Office  reopen the size determination. [3] Appellant  denies  the
CS's  assertion in the MFR that she informed Mr. Insenga of CMC's
selection  on January 2nd, and asserts that it did not learn  the
identity of the awardee until January 6th. Appellant alleges  the
CS  declined  to  identify  the apparent  successful  offeror  on
January  2nd. Appellant attached a copy of an e-mail it sent  the
CS  on  January 5th, after the telephone conversation, requesting
the  name of the awardee, and other information about the  award.
The CS replied by e-mail that Appellant would need to file a FOIA
request  to  get  the information. Appellant  further  stated  it
described  these events in its protest at the General  Accounting
Office  (GAO),  and the Government has not disputed  them  there.
Also  on  January 27th, the CO filed a statement  with  the  Area
Office, reasserting its earlier allegations to the Area Office.

      On  January 28, 2004, the Area Office refused to reconsider
its  dismissal of Appellant's protest. The Area Office  concluded
the  CO's version of events was correct, and thus did not disturb
its  earlier  finding  that Appellant had  learned  CMC  was  the
awardee on January 2nd.

                         B.  The Appeal

      On  January  30, 2004, Appellant filed the instant  appeal.
Appellant  asserts that its e-mail of January 5th  was  primarily
intended to elicit the identity of the awardee from the Army, and
thus it is clear from the text of the e-mail that it had not  yet
learned that identity. Appellant further argues that the text  of
the  Army's January 6th e-mail response, which identifies CMC  as
the  awardee,  also supports its argument that the Army  had  not
previously identified CMC as the awardee. Appellant attaches  new
evidence  not  submitted  to  the  Area  Office  to  its  appeal.
Appellant  includes  affidavits from Mr. Insenga,  and  other  of
Appellant's  personnel and consultants asserting  that  the  CS's
statements  in the MFR are in incorrect, and that she  could  not
have identified CMC to Appellant as the awardee.

                         II.  DISCUSSION

      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).

     Appellant  has the burden of proving, by a preponderance  of
the  evidence, all the elements of its appeal.  Specifically,  it
must  prove the size determination is based on a clear  error  of
fact  or  law.  Size  Appeal of General Maintenance  Engineering,
Inc., SBA No. SIZ-4405, at 5 (2000); 13 C.F.R. Section 134.314.

      Ordinarily, this Office will dismiss as moot a  protestor's
appeal  of  size determination which does not find the challenged
firm other than small where the procuring agency has awarded  the
contract  at  issue. Size Appeal of Spectrum Landscape  Services,
Inc., SBA No. SIZ-4313 (1998). However, because there are pending
GAO  protests  which might disturb the award, this  case  is  not
moot.  Size Appeal of Browning Construction Co., SBA No. SIZ-4523
(2002).

      In  order to be timely, a size protest must be filed within
five business days of the protestor's learning of the identity of
the  prospective  awardee. 13 C.F.R. Section 121.1004(a)(2).  The
Area Office must dismiss a protest filed after this deadline, and
a  timely  appeal to this Office cannot cure an untimely protest.
Size  Appeal  of  Symtech  Corporation, Inc.,  SBA  No.  SIZ-4406
(2000).

      Here, the issue is the date Appellant learned that CMC  was
the  awardee. If Appellant learned CMC was the awardee on January
2nd,  its protest was untimely. If Appellant learned CMC was  the
awardee  on  January  6th, its protest was timely.  Appellant  is
attempting  to introduce new evidence, which was not  before  the
Area Office, to establish that the CS did not inform Appellant of
CMC's identity in the January 2nd telephone conversation.

      SBA's regulations on this point are clear: this Office will
not consider evidence not previously presented to the Area Office
that  issued the size determination being appealed unless either:
(1)  the judge sua sponte orders the submission of such evidence;
or  (2)  the proponent files and serves the new evidence  with  a
motion  establishing  good cause for its  submission.  13  C.F.R.
Section 134.308(a); Size Appeal of Columbia Research Corporation,
SBA No. SIZ-4568, at n.10 (2003).   Here, Appellant's counsel has
failed to file such a motion. Appellant, who has been represented
by counsel throughout the protest and appeal, has demonstrated no
reason  why  this evidence was not presented to the Area  Office,
either   in   its   initial   protest,   or   its   request   for
reconsideration, and why it should be considered now when it  was
not presented then.  The Area Office cannot have erred in failing
to   consider   evidence  not  presented  to   it.   Accordingly,
Appellant's    proffered   new   evidence   is   EXCLUDED    from
consideration.

      After  examining  the record before the  Area  Office,  the
Administrative  Judge  concludes that the Area  Office  erred  in
concluding  Appellant received notification on January  2nd  that
award  had been made to CMC. While the MFR in the record  clearly
states  so, there is nothing in the memorandum to establish  that
it  was  actually prepared on January 2nd, as opposed to a  later
date.  Conversely, in the exchange of e-mails on January 5th  and
6th  between the CO and the CS, submitted to the Area  Office  by
the  CO, the CS asks the CO how to respond to Appellant's January
5th  e-mail  requesting  the identity of the  awardee  and  other
information. The CO instructs the CS to release the name  of  the
awardee and the dollar amount awarded, and to inform Appellant it
must  get  the  other information via a FOIA request.  [4]  There
would be no need for the CS to release again information she  had
already released, nor for the Appellant to request it. The record
before  the Area Office leads to a conclusion that it was  highly
unlikely  that the CS actually informed Appellant on January  2nd
that  CMC was the awardee. Accordingly, the Administrative  Judge
concludes the CS informed Appellant on January 6th that  CMC  was
the  awardee,  and  Appellant's January  13th  protest  was  thus
timely.

      The  Area Office erred in judging the protest untimely  and
not  issuing  a  size  determination.  The  Administrative  Judge
concludes that he must REMAND this case to the Area Office for  a
size determination.

                           III.  CONCLUSION

      For the above reasons, the Administrative Judge VACATES the
Area  Office's dismissal of Appellant's protest and  REMANDS  the
case  to  the Area Office for a new size determination consistent
with this decision.
     
                                
                                
                                
                                
                                CHRISTOPHER HOLLEMAN
                                Administrative Judge

_________________________

      1   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.
      2   The  solicitation classified the procurement under  now
superseded   Standard   Industrial  Classification   code   7641,
Reupholstery  and  Furniture Repair. The correct  designation  is
North   American  Industry  Classification  System  code  811420,
Reupholstery  and  Furniture  Repair,  with  a  corresponding  $6
million annual receipts size standard. 13 C.F.R. Section 121.201.
      3   In  the  interim, Appellant had filed a series  of  bid
protests  concerning  the instant procurement  with  the  General
Accounting Office. These protests are still pending.
B-293562.001; B-293562.002; B-293562.003.
      4  The CO could have, and should have, treated Appellant's e-
mail as a FOIA request, as a requester is not required to title a
request for information a FOIA request.  Newman v. Legal Services
Corporation, 628 F.Supp. 535, 543 (D.D.C. 1986), cited in  U.  S.
Department of Justice, Freedom of Information Act Guide & Privacy
Act Overview, at 42, n.55 (2002).

                                              Posted: March, 2004