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2009 SBA LEXIS 97

Small Business Administration Office of Hearings and Appeals

November 10, 2009

SBA No. SIZ-5086



HOLLEMAN, Administrative Judge:

I. Jurisdiction

This appeal is decided under the Small Business Act of 1958, 15 U.S.C. § 631  et seq., and 13 C.F.R. Parts 121 and 134.

II. Issue

Whether the size determination was based on clear error of fact or law. See 13 C.F.R. § 134.314.

III. Background

A. Solicitation and Protest

On May 20, 2009, the Department of Veterans Affairs (VA) issued the subject solicitation No. VA-248-09-RP-0387 for the renovation and installation of several pneumatic tube systems located at the Veterans Administration Medical Center located at Bay Pines, Florida. The CO set the procurement aside 100% for Service-Disabled Veteran-Owned Small Business Concerns, and designated North American Industry Classification System code 236220, Commercial and Institutional Building Construction, with a corresponding $ 33.5 million annual receipts size standard, as the appropriate code [*2]  for the procurement. Offers were due on June 17, 2009.

On June 29, 2009, the VA awarded the contract to DooleyMack Government Contracting, LLC (Appellant). On June 30, 2009, the VA notified the unsuccessful offerors. On July 7, 2009, Firewatch Contracting of Florida, LLC (Firewatch) , filed a size protest asserting Appellant was affiliated with DooleyMack Constructors, Inc., and thus other than small. On July 15, 2009, the Small Business Administration (SBA) Director of the Office of Contract Assistance also protested Appellant's size asserting she believed it was affiliated with DooleyMack Constructors, Inc., and DooleyMack Constructors, LLC.

B. The Size Determinations

On August 7, 2009, the SBA Office of Government Contracting-Area III in Atlanta, Georgia (Area Office) issued two size determinations finding Appellant other than small. The Area Office issued Size Determination No. 3-2009-57 in response to Firewatch's protest, and Size Determination No. 3-2009-64 in response to the SBA Office of Contract Assistance protest. The text of the two size determinations is identical, except for the introductions. The text is also virtually identical to that of consolidated Size Determination [*3]  Nos. 3-2009-51 and 3-2009-52, the subject of Size Appeal of DooleyMack Government Contracting, LLC, SBA No. SIZ-5085 (2009).

1. Appellant's Ownership and Organization

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2009 SBA LEXIS 97 *

SIZE APPEAL OF: DooleyMack Government Contracting, LLC, Appellant


affiliate, identity of interest, procurement, fracture, key employee, clear error, subcontractor, protest, vice president, new evidence, constructor, shareholder, ostensible, ownership, entity, newly, team