BNUMBER:  B-280714             
DATE:  August 28, 1998
TITLE: Four Winds Services, Inc., B-280714, August 28, 1998
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Matter of:Four Winds Services, Inc.

File:B-280714            
        
Date:August 28, 1998

Roberta Carver and Denis M. Carson for the protester. 
C. Gordon Jones, Esq., Department of the Air Force, for the agency. 
Adam Vodraska, Esq., Office of the General Counsel, GAO, participated 
in the preparation of the decision.

DIGEST

Protester is not an interested party to protest the issuance of a 
small business set-aside solicitation under commercial item 
acquisition procedures where the protester concedes that it is a large 
business under the size standard applicable to the solicitation.

DECISION

Four Winds Services, Inc., protests the issuance of request for 
proposals (RFP) No. F64605-98-R-0018 by the Department of the Air 
Force under the commercial item acquisition procedures of Federal 
Acquisition Regulation (FAR) part 12.  The RFP is for operating the 
postal service center and the base information transfer center at 
Hickam Air Force Base, Hawaii.  The protester contends that some of 
the RFP's requirements are not consistent with commercial practice, so 
that this acquisition should not be procured under FAR part 12 
procedures.

We dismiss the protest because Four Winds is not an interested party 
eligible to maintain this protest.

The RFP was issued as a total small business set-aside, but did not 
initially include a Standard Industrial Classification (SIC) code and 
corresponding small business size standard.  The Air Force amended the 
RFP, assigning SIC code 7389 (business services, not elsewhere 
classified), which has a corresponding size standard of $5 million 
annual receipts.  FAR  sec.  19.102(g).  The Air Force later amended the 
RFP again, changing the SIC code to 8744 (facilities support 
management services), which also has a size standard of $5 million.  
Id.  The amendment extended the proposal due date to August 7.

Four Winds appealed the contracting officer's selection of the above 
SIC codes to the Small Business Administration (SBA) Office of Hearing 
and Appeals (OHA), contending that the correct SIC code for this 
acquisition should be 4215 (courier services, except by air) with a 
size standard of $18.5 million.  In its appeal, Four Winds stated that 
"[w]e openly admit that we would be large for a $5.0m Average Annual 
Receipts (AAR) [size standard] and small for the $18.5m AAR [size 
standard] for SIC [code] 4215."  In a decision dated August 19, the 
OHA agreed with Four Winds that the contracting officer's SIC code 
designation was erroneous and that the appropriate SIC code for this 
RFP is 4215 with its $18.5 million size standard.  The agency reports 
that since the OHA decision was issued after the closing date for 
receipt of proposals, it is not applicable to this RFP and that the 
Air Force will not cancel or amend the RFP to change the SIC code.  
See FAR  sec.  19.303(c)(5).

The Air Force contends that Four Winds should not be considered an 
interested party to pursue this protest of the issuance of the RFP 
under commercial item acquisition procedures because Four Winds is a 
large business under the RFP's existing small business size standard, 
making it ineligible for award.  We agree. 

Under the bid protest provisions of the Competition in Contracting Act 
of 1984, 
31 U.S.C.A.  sec.  3551-3556 (West Supp. 1997), only an "interested party" 
may protest a federal procurement.  That is, a protester must be an 
actual or prospective supplier whose direct economic interest would be 
affected by the award of a contract or the failure to award a 
contract.  Bid Protest Regulations, 4 C.F.R.  sec.  21.0(a) (1998).  
Determining whether a party is interested involves consideration of a 
variety of factors, including the nature of issues raised, the benefit 
of relief sought by the protester, and the party's status in relation 
to the procurement.  Black Hills Refuse Serv., B-228470, Feb. 16, 
1988, 88-1 CPD  para.  151 at 2-3.  A protester is not an interested party 
where it would not be in line for contract award were its protest to 
be sustained.  ECS Composites, Inc., B-235849.2, Jan. 3, 1990, 90-1 
CPD  para.  7.  Where a large business protester is ineligible for award 
under a proper small business set-aside, we will not consider its 
objections to alleged deficiencies in a solicitation since the 
protester is not an interested party which would be affected by the 
resolution of the issue.  Worldwide Services, Inc., B-206413, June 22, 
1982, 82-1 CPD  para.  615 at 1.  

Here, while Four Winds represented in its proposal that it is a small 
business concern, it also represented that its annual receipts were 
"$5,000,001-$10 million" which, as pointed out by the Air Force, 
exceeds the $5 million size standard of SIC code 8744 applicable to 
this RFP.  Although the Air Force has not requested a size status 
determination from the SBA, we believe that given the circumstances 
here, the protest should be dismissed absent any showing on Four 
Winds's part that it is a small business under the RFP's size standard 
and thus eligible for award.  See Worldwide Services, Inc., supra, at 
2.

Four Winds contends that it is an eligible small business under the 
RFP's existing SIC code of 8744 because the RFP does not specify that 
the SIC code is for facilities support management services with the $5 
million size standard, rather than for base maintenance, another 
category of SIC code 8744, which has a larger size standard of $20 
million under which Four Winds would be eligible for award.  Four 
Winds states that it submitted its proposal "in Good faith by 
declaring itself over $5.0m but Small for the SIC."  

SIC code 8744 is for facilities support management services, with a 
size standard of $5 million, except if the solicitation is for base 
maintenance or environmental remediation services, in which case size 
standards of $20 million and 500 employees apply, respectively.  FAR  sec.  
19.102(g).  In its SIC code appeal to the OHA, Four Winds recognized 
that the $5 million size standard of SIC code 8744 was applicable to 
this acquisition and, as noted, Four Winds conceded that it would be 
ineligible for award under this size standard (although it would be 
eligible if a higher dollar value size standard were applicable).  
Thus, we do not think that Four Winds was under any misapprehension as 
to the SIC code applicable to this RFP.  Any doubt on this matter was 
removed by the OHA, which, in deciding Four Wind's SIC code appeal, 
found that the RFP's SIC code of 8744 was for facilities support 
management services with the corresponding $5 million size standard.  
Since the applicable size standard for this RFP is $5 million, which 
Four Winds concedes it exceeds, we agree with the Air Force that Four 
Winds has not shown that it is a small business under the RFP's size 
standard and thus eligible for award.  

Four Winds argues, however, that, in light of the OHA decision 
upholding its SIC code appeal, the RFP should be canceled and reissued 
with the correct SIC code and size standard, and it is therefore an 
interested party to protest the remaining aspects of the RFP.  Since 
the OHA decision was received by the contracting officer after the 
August 7 due date for initial proposals, there is no requirement that 
the solicitation be canceled or amended to reflect the OHA's view of 
the proper SIC code.  FAR  sec.  19.303(c)(5); Tecom Inc., B-217058, Dec. 
5, 1984, 84-2 CPD  para.  630 at 2.  Since the OHA decision did not change 
the existing size standard for this RFP, Four Winds remains ineligible 
for award and is not an interested party to protest other aspects of 
the RFP.  4 C.F.R.  sec.  21.0(a); see Worldwide Services, Inc., supra,
at 2.

The protest is dismissed.

Comptroller General
of the United States