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