Pride International, LLC, No. 4649 (July 30, 2004)
Docket No. SIZ-2004-06-24-39

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


                                 )     
SIZE APPEAL OF:                  )     
                                 )     
Pride International, LLC         )     Docket No. SIZ-2004-06-24-39
                                 )     
     Appellant                   )     
                                 )     Decided:  July 30, 2004
RE: Metscan Technologies, LLC    )
d/b/a Prisoner Transportation    )
Services                         )
                                 )
Solicitation No. MS-04-R-005     )
United States Marshals Service   )
Judicial Security Contracts      )
Washington, DC



                           APPEARANCE
                                
                    David M. Hernandez, Esq.
                     Pillsbury Winthrop LLP
                          for Appellant
                                
                                
                             DIGEST
                                
A  large  business  has  standing  to  protest  the  size  of  a
successful  offeror  in  a small business set-aside  procurement
only where there is only one remaining offeror.


                            DECISION
                                
HOLLEMAN, 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.

                              Issue

      Whether a large business has standing to protest the  size
of   a   successful  offeror  in  a  small  business   set-aside
procurement where there is only one remaining offeror.


                         I.  BACKGROUND

                       A.  The Procurement

      On January 9, 2004, the United States Marshals Service  of
the Department of Justice (USMS) issued the subject solicitation
for  the short term lease of narrow bodied (single aisle)  large
passenger/transport  jet  aircraft to perform  its  missions  of
moving  federal prisoners and illegal aliens.  The  solicitation
seeks  to  award three contracts, one at each of three different
operational sites.  The sites are Oklahoma City, Oklahoma; Mesa,
Arizona;  and Alexandria, Louisiana.  The contractor will  lease
the   aircraft   to  USMS,  and  be  responsible  for   aircraft
maintenance and logistics.  USMS will operate the aircraft.

      The Contracting Officer (CO) set the procurement aside for
small   business,   and  designated  North   American   Industry
Classification System (NAICS) code 532411, Commercial Air, Rail,
and  Water Transportation Equipment Rental and Leasing,  with  a
corresponding $6 million annual receipts size standard,  as  the
applicable NAICS code for the procurement.

      Offers were due on February 19, 2004.  Amendment 1, issued
on February 9, 2004, extended the due date to February 26, 2004.
Amendment 2 was issued on March 3, 2004.  Amendment 3, issued on
April 2, 2004, announced the conclusion of discussions, and  set
April 9, 2004, as the due date for final proposal revisions.

      Three  offerors  submitted bids  for  each  of  the  three
operational   sites:   Pride  International,  LLC   (Appellant);
Metscan Technologies, LLC d/b/a Prisoner Transportation Services
(Metscan); and Aviation Enterprises, Inc. (AEI).  None of  these
offerors  has been declared ineligible for reasons unrelated  to
its small business status. [1]

                         B.  The Protest

      On  May  6, 2004, the CO issued notices that the  apparent
successful  offerors were Appellant for the  Oklahoma  City  and
Alexandria contracts, and Metscan for the Mesa contract.  On May
11,  2004,  Appellant  filed a protest with  the  CO,  asserting
Metscan was other than small.


      Appellant alleged that Metscan will not perform  at  least
50%  of the cost of the contract incurred for personnel with its
own employees.  Appellant asserted, based upon its own knowledge
of the type of work associated with this contract, that over 90%
of the personnel costs associated with the contract will be line
maintenance  of  the  aircraft,  and  Metscan  does  not  employ
personnel  qualified for this purpose.  Appellant  also  asserts
Metscan  is  affiliated  with  Shuler  Capital  Corporation   of
Savannah,  Georgia; Coastland Builders Group, Inc. of  Savannah,
Georgia;  Bankers  Realty Corporation of Savannah  Georgia;  and
Bird  and  Loechl of Atlanta, Georgia.  Appellant  asserts  that
Metscan,  together with its affiliates, exceeds  the  applicable
size standard.

      On  May  12th, the CO forwarded the protest to  the  Small
Business Administration (SBA) Office of Government Contracting -
Area  V,  in  Dallas, Texas.  Meanwhile, AEI had  filed  a  size
protest against Appellant on May 6th.  On May 27, 2004, the  SBA
Office  of Government Contracting - Area IV in Chicago, Illinois
issued  a  size  determination finding Appellant an  other  than
small business.  On June 17, 2004, Appellant appealed that  size
determination  to  this Office.  On July 28, 2004,  this  Office
denied  the appeal, and affirmed the size determination  finding
Appellant other than small.  Size Appeal of Pride International,
LLC, SBA No. SIZ-4648 (2004) (Pride I).

      On June 2, 2004, the instant case was transferred to SBA's
Office of Government Contracting - Area III, in Atlanta, Georgia
(Atlanta Area Office), because Metscan's home office is  located
in Savannah.  On June 3, 2004, the Atlanta Area Office dismissed
Appellant's  protest  as insufficiently specific.   The  Atlanta
Area  Office further found that Appellant did not have  standing
to protest Metscan's size because Appellant had been found other
than  small  on May 27th.   Appellant received the dismissal  on
June 10, 2004.

                         C.  The Appeal

      On  June  24,  2004, Appellant filed the  instant  appeal.
Appellant  alleges  that on May 17, 2004,  it  supplemented  its
protest   by  submitting  additional  information  to   the   CO
concerning     Metscan's    subcontracting    its    maintenance
responsibilities  under the contract.  This letter,  if  it  was
sent,  does  not  appear in the record before the  Atlanta  Area
Office.  Appellant argues that: (1) Its protest was sufficiently
specific for the Area Office to initiate a size determination on
Metscan;  and  (2)  Appellant  still  had  standing  to  protest
Metscan's size because it had appealed the determination it  was
other than small to this Office.


                         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 elements of its appeal.  Specifically, it must
prove  the  Area Office size determination is based on  a  clear
error of fact or law.  13 C.F.R. Section 134.314; Size Appeal of
Procedyne Corp., SBA No. SIZ-4354, at 4-5 (1999).

      The  Atlanta  Area  Office properly dismissed  Appellant's
protest for lack of standing.  Appellant was found to be a large
business for this procurement in a size determination ultimately
affirmed  by this Office.  Pride I, at 3, 5-6.  A large business
has  standing to protest the size of a successful offeror  in  a
small  business set aside procurement only where  there  is  one
remaining offeror.  13 C.F.R. Section 121.1001(a)(1)(iv);   Size
Appeal of Lajas Industries, Inc., SBA No. SIZ-4285, at 6 (1998).
Here, there are clearly at least two other offerors, Metscan and
AEI.   Appellant's  argument that its  pending  appeal  to  this
Office  gave it standing to protest is not supported  by  either
the  regulation or this Office's precedent. [2]  Appellant  thus
had  no standing to protest Metscan's size, and the Atlanta Area
Office properly dismissed the protest.

      Appellant has failed to establish clear error of  fact  or
law  on the part of the Area Office, and thus the Administrative
Judge  must  AFFIRM  the  Atlanta  Area  Office's  dismissal  of
Appellant's size protest.

                        III.  CONCLUSION

     For the above reasons, the Administrative Judge AFFIRMS the
Area Office's size determination and DENIES the instant appeal.

     This   is   the  final  decision  of  the  Small   Business
Administration.  13 C.F.R. Section 134.316(b).



                                 
                                 CHRISTOPHER HOLLEMAN
                                 Administrative Judge


_________________________

     1  This information was clarified by the CO in a submission
made  on  July  29,  2004, at the request of the  Administrative
Judge and served on all parties.
     2    However,  while  Appellant's  protest  was  properly
dismissed  for  lack of standing, the Area  Office  did  err  in
finding  it insufficiently specific.  Appellant's identification
of certain firms as affiliates of Metscan was enough to make the
protest   sufficiently  specific.   Size  Appeal   of   Carriage
Abstract,  Inc., SBA No. SIZ-4430, at 6 (2001).   However,  this
does not save Appellant from dismissal of its protest, as it had
no standing to protest.

                                          Posted: September, 2004