Aban Computers, Inc., No. 4473 (February 20, 2002)
Docket No. SIZ-2002-01-25-05

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

                                )  
SIZE APPEAL OF:                 )    
                                )   Docket No. SIZ-2002-01-25-05    
Aban Computers, Inc.            )   
                                )   Decided:  February 20, 2002 
     Appellant                  )
                                )
RE: PC Specialists, Inc.        )
d/b/a Technology Integration    )
Group                           )
                                )
Solicitation No. 52-PAPT-1-     )
01008                           )
U.S. Patent & Trademark Office  )
Office of Procurement           )
Washington, DC                  )
                                
                                
                   ORDER DISMISSING APPEAL [1]

     On March 16, 2001, the Contracting Officer (CO) for the U.S.
Patent  & Trademark Office, Office of Procurement, in Washington,
D.C., issued this negotiated small business set-aside procurement
for  desktop microcomputers and peripherals.  She assigned to  it
North  American  Industry  Classification  System  (NAICS)   code
421430,  with  a  500-employee size standard.  Initial  proposals
were  due  on  April  30, 2001.  On December  31,  2001,  the  CO
notified the unsuccessful offerors that PC Specialists, Inc., dba
Technology  Integration Group (TIG) was the  apparent  successful
offeror.

     On January 3, 2002, the CO awarded the contract to TIG.

     On January 7, 2002, Aban Computers, Inc. (Appellant) filed a
timely protest, asserting that TIG exceeded the 500-employee size
standard.   Appellant  filed  two more  supplemental  statements,
including  several articles stating that Appellant has more  than
500 employees.

     On January 8, 2002, the CO referred the protest to the Small
Business   Administration's  (SBA)  San   Francisco   Office   of
Government   Contracting-Area  VI  (Area  Office)  for   a   size
determination.

      On  January  17, 2002, the Area Office found  TIG  a  small
business.

     The Area Office noted that, TIG's SBA Form 355 showed it has
an  average  number  of employees for the 12  completed  calendar
months  prior to its self-certification (April 26, 2001) of  less
than  500-employees, citing 13 C.F.R. Section   121.106(b).   The
Area  Office  also noted the supplementary information  Appellant
submitted  to  demonstrate TIG's alleged large  size,  were  from
unverified  sources  (newspapers, financial  reporting  services,
etc.)  and were given little evidentiary weight in view of  TIG's
own signed and certified SBA Form 355. [2]

      Appellant  received the size determination on  January  23,
2002,  and filed an appeal with this Office on January 25,  2002.
On  appeal, Appellant asserts the Area Office failed to count all
of  TIG's employees-specifically its consultants and workers that
are immigrants and other part-time employees.  Appellant requests
another size determination.

      With  its appeal, Appellant submitted a statement from  its
president, asserting that, in a conversation he had with the Area
Office, the subject of counting consultants for purposes of  this
size  determination was characterized by an Area Office  official
as "iffy".

     On February 12, 2002, the CO informed this Office that there
is no pending litigation concerning this procurement, she has not
issued  a  stop work order, and contract performance  has  begun.
She  also stated that, regardless of this Office's decision here,
she will not terminate the contract award. [3]

     On February 15, 2002, TIG and the CO filed a joint motion to
dismiss the appeal and a response to the appeal.

     On February 19, 2002, Appellant filed a statement purporting
to show that TIG's employees exceed the instant size standard.

                           Discussion
     
     Appellant  filed  the  instant  appeal  within  15  days  of
receiving the size determination; thus, the appeal is timely.  13
C.F.R. Section  134.304(a)(1).
     
     Notwithstanding   the  timeliness   of   the   appeal,   the
Administrative Judge's review of the record demonstrates she must
dismiss this appeal as moot.
     
     First,  the  applicable regulation requires her  to  do  so,
because the Contracting Officer awarded the solicitation prior to
the  appeal.   Specifically, the Federal  Acquisition  Regulation
provides  that an Area Office size determination is final  unless
and  until two conditions are satisfied: it is appealed  and  the
Contracting  Officer is notified of the appeal before  award.  48
C.F.R.  Section 19.302(g)(2).  If the Contracting Officer is  not
notified  of the appeal to OHA before award, "the contract  shall
be presumed to be valid."  Id. Finally, a decision by this Office
received  after  award does not apply to that  solicitation.   48
C.F.R. Section  19.302(i); Size Appeal of Golden North Van Lines,
Inc.,  SBA  No. SIZ-4304, at 4 (1998).  Thus, under these  facts,
the size determination is final, and the contract is valid.
     
     Second,  even if the Administrative Judge were  to  consider
the  appeal  on  the merits and find TIG other  than  small,  she
cannot  grant Appellant redress.  This Office lacks authority  to
order  the Contracting Officer either to cancel the award  or  to
award  the  contract  to  Appellant.  As noted,  the  Contracting
Officer  awarded  the contract, expressed her  intention  not  to
terminate it, and informed this Office that there was no  pending
litigation that could affect this procurement.
     
     Finally, the Administrative Judge must dismiss this  appeal,
although  the  issues on appeal are not contract-specific.   This
Office previously has dismissed as moot an unsuccessful offeror's
size  appeal under similar facts: where the challenged  firm  was
found  small,  the  issues  were not contract-specific,  and  the
procuring  agency already had awarded the contract.  Size  Appeal
of  Spectrum  Landscape Services, Inc., SBA No. SIZ-4313  (1998).
There,  the  Administrative Judge reasoned that if  she  were  to
consider  the issues on the merits, Appellant's injury would  not
be redressed and, therefore, any decision on the merits would not
have  present  or  future  applicability.   That  same  reasoning
applies here. [4]
     
                           Conclusion

     For the above reasons, the appeal is MOOT and, therefore, it
is DISMISSED.

      This is the Small Business Administration's final decision.
13 C.F.R. Section  134.316(b).
     
                         
                         
                         
                         ___________________________________
                         GLORIA E. BLAZSIK
                         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 Administrative Judge is loath to understand  why
the  Area  Office did not dismiss the protest for nonspecificity.
The  protest  was merely self-serving statements and without  any
valid substantiation.
        [3]    On  February  8,  2002,  TIG's  Counsel  moved  to
intervene; on February 15, 2002, Counsel for the procuring agency
moved to intervene.  Because TIG is the challenged firm, it is an
interested  party and there is no requirement for it  to  file  a
motion  to  intervene.   Similarly, the procuring  agency  is  an
interested party.  Although unnecessary, the Administrative Judge
grants both motions.
        [4]     In  view  of  the  ultimate  finding  here,   the
Administrative Judge will not specifically rule on TIG's and  the
CO's joint motion to dismiss.

                                              Posted: March, 2002