TITLE: B-310976, Para Scientific Company, February 25, 2008
BNUMBER: B-310976
DATE: February 25, 2008
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B-310976, Para Scientific Company, February 25, 2008

   Decision

   Matter of: Para Scientific Company

   File: B-310976

   Date: February 25, 2008

   Hiram Reinhart, Para Scientific Company, for the protester.

   Sherry K. Kaswell, Esq., Department of the Interior, for the agency.

   Linda C. Glass, Esq., and Ralph O. White, Esq., Office of the General
   Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   Protester's contention that a procurement must be set aside for small
   business concerns is dismissed where, during the course of the protest,
   the Small Business Administration concluded that the protester does not
   qualify as a small business under the applicable North American Industrial
   Classification System code; under these circumstances, the protester is
   not an interested party for the purposes of arguing that the procurement
   must be set aside.

   DECISION

   Para Scientific Company protests the decision of the Department of the
   Interior, United States Geological Survey, National Water Quality
   Laboratory (USGS), to issue request for quotations (RFQ) No. 08CRQQ0050,
   for various laboratory and water quality testing chemicals, on an
   unrestricted basis. Para Scientific, a small business, contends that the
   requirement should be set aside for small business concerns.

   We dismiss the protest.

   On November 21, 2007, USGS published a presolicitation notice on the
   Federal Business Opportunities website, in which it announced its intent
   to procure on an unrestricted basis various laboratory and water quality
   testing chemicals. The presolicitation notice stated that the list of
   chemicals would be included in the solicitation that would be available on
   or about December 3 on the designated website. The presolicitation notice
   further stated that no hard copy of the solicitation would be available.

   The solicitation was issued on December 5 seeking quotes for 20 different
   chemicals for a base year and 2 option years. The RFQ included an
   estimated quantity for each chemical to be delivered FOB Destination to
   Denver, Colorado. The RFQ provided that in order to be considered for
   award, vendors had to provide pricing for all chemicals during the base
   year and option years. Quotations were to be submitted by 2 pm on December
   19.

   After the agency denied Para Scientific's request that the solicitation be
   set aside for small business concerns, this protest was filed with our
   Office.

   In response to the protest, the agency maintains that it reasonably
   decided not to set aside this procurement for small business concerns
   based on prior procurement history, as well as on the knowledge and advice
   of agency technical experts and the agency's Business Utilization
   Development Specialist. The agency also notes that no small business
   concerns responded to the presolicitation notice or to the solicitation.

   At the request of our Office, the Small Business Administration (SBA)
   provided an advisory opinion on the issues presented in the protest. The
   SBA agreed with the agency's decision not to set aside the procurement and
   opined that agency did not have a reasonable expectation of receiving
   offers from at least two small business concerns for this requirement.

   Moreover, the SBA advised our Office, the agency, and the protester that
   the solicitation contained an incorrect North American Industrial
   Classification System (NAICS) code. According to the SBA the proper NAICS
   code for this procurement is one of the NAICS codes relating to chemical
   manufacturing. The SBA further explained that in order for a small
   business concern to qualify on a set-aside for these items it must either
   "be the manufacturer of the end item" or qualify as a nonmanufacturer. See
   13 C.F.R. sect. 121.406(a) (2007). In order to qualify as a
   nonmanufacturer, the SBA states that a firm (1) may not have more than
   500 employees; (2) must be primarily engaged in the retail or wholesale
   trade and normally sell the type of item to be supplied; and (3) must
   supply an end item manufactured by a small business in the United States,
   unless SBA has granted a waiver from the nonmanufacturer rule. 13 C.F.R.
   sect. 121.406(b).

   There is nothing in the record here that shows that Para Scientific
   qualifies as a small business for this work, even if it were set aside.
   The protester does not manufacture the chemicals, does not offer to
   provide them from some other small business, and does not allege that the
   SBA has granted a waiver from the nonmanufacturer rule.

   Since it appears that Para Scientific does not qualify as a small business
   concern under the appropriate NAICS code, Para Scientific is not a
   prospective small business offeror under this RFQ were it set aside, and
   therefore is not an interested party to challenge the agency's decision to
   procure these goods without reserving the requirement for small
   businesses. Encompass Group LLC, B-299602, B-299617, Aug. 10, 2005, 2006
   CPD para. 159 at 4; 4 C.F.R. sections 21.0(a), 21.1(a) (2007).

   The protest is dismissed.

   Gary L. Kepplinger
   General Counsel