Decision Released: Appeal Granted in Part for SeaPort — Next Generation (SeaPort-NxG) MAC Small Business Designation

SBA No. SIZ-6273, 2024 (S.B.A.), 2024 WL 1507457

Digest On December 21, 2023, the U.S. Small Business Administration (SBA) Office of Government On December 21, 2023, the U.S. Small Business Administration (SBA) Office of Government Contracting — Area I (Area Office) issued Size Determination Nos. 01-2024-05 and 01-2024-06, finding that McLaughlin Research Corporation (Appellant) is not a small business for two task orders issued under the SeaPort — Next Generation (SeaPort-NxG) multiple-award contract (MAC). On appeal, Appellant contends that the size determinations are clearly erroneous, and requests that SBA’s Office of Hearings and Appeals (OHA) reverse or remand. For the reasons discussed infra, the appeal is granted in part.

OHA decides size determination appeals under the Small Business Act of 1958, 15 U.S.C. § 631 et seq., and 13 C.F.R. parts 121 and 134. Appellant filed the instant appeal within 15 days of receiving the size determinations, so the appeal is timely. 13 C.F.R. § 134.304(a). Accordingly, this matter is properly before OHA for decision.

Discussion

Appellant has the burden of proving, by a preponderance of the evidence, all elements of the appeal. Specifically, Appellant must prove the size determinations are based upon a clear error of fact or law. 13 C.F.R. § 134.314. OHA will disturb an area office’s size determination only if, after reviewing the record, the administrative judge has a definite and firm conviction that the area office erred in making its key finding of fact or law. Size Appeal of Taylor Consultants, Inc., SBA No. SIZ-4775, at 11 (2006)…

Decision

For the above reasons, the appeal is GRANTED, in part. The Area Office correctly found that SeaPort-NxG is an unrestricted MAC and did not reserve a pool of awards for small businesses. Insofar as Appellant challenges these aspects of the size determinations, the appeal is DENIED. Given, however, that SeaPort-NxG was an unpriced MAC, and given further that SBA regulations prior to May 30, 2023 distinguished between orders under priced MACs and orders under unpriced MACs, the Area Office may have erred in concluding that Appellant was required to recertify its size for the instant TORFPs. On remand, the Area Office should re-examine this question in light of 13 C.F.R. § 121.404(a)(1)(iv) (2022) and OHA’s recent decision in Size Appeal of Imagine One Tech. & Mgmt., Ltd., SBA No. SIZ-6271 (2024).

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