_________________________________________________ DISMISSED IN PART FOR LACK OF JURISDICTION; DISMISSED IN PART FOR LACK OF INTERESTED PARTY: February 10, 1994 _________________________________________________ GSBCA 12731-P JC COMPUTER SERVICES, INC., Protester, v. NUCLEAR REGULATORY COMMISSION, and U.S. SMALL BUSINESS ADMINISTRATION, Respondents, and TRI-COR INDUSTRIES, INC., Intervenor. Iris M. McCullum Green of Washington, DC, counsel for Protester. John Klein, Office of General Counsel, Small Business Administration, Washington, DC, and Dennis C. Dambly, Brian Kildee, and Robin B. Teichman of Office of General Counsel, Nuclear Regulatory Commission, Bethesda, MD, counsel for Respondent. Kenneth S. Kramer and James M. Weitzel, Jr. of Fried, Frank, Harris, Shriver & Jacobson, Washington, DC, counsel for Intervenor. Before Board Judges LaBELLA, PARKER, and DeGRAFF. LaBELLA, Board Judge. JC Computer Services, Inc. (JCCS), has protested the award of Contract No. NRC-33-94-185 by the Nuclear Regulatory Commission (NRC) to TRI-COR Industries, Inc., pursuant to the Small Business Administration's (SBA's) Section 8(a) program. The Board previously granted SBA's request to become a party in the protest. In addition, the awardee, TRI-COR, intervened in the protest. NRC, SBA, and TRI-COR all moved to dismiss the protest alleging that the Board lacked jurisdiction, JCCS was not an interested party, and portions of the protest were untimely. We grant the motions and dismiss the protest. Background On June 18, 1993, NRC issued Request for Procurement Action No. IRM-93-222 for procurement of personal computer hardware, software, and technical support. Protest File, Exhibit 1, at 1. The Request for Procurement Action contained a recommendation that the procurement be conducted pursuant to the noncompetitive procedures contained in Section 8(a) of the Small Business Act, 15 U.S.C. 637 (1988). Id. The total estimated cost of the procurement was $18,800,000. Id. at 2. On September 8, 1993, NRC proposed to place an 8(a) contract with the SBA for the requirements. Protest File, Exhibit 4, at 1. NRC assigned Standard Industrial Classification (SIC) code 3571 to the procurement. Id. SIC code 3571 identifies the procurement as being for the manufacture of electronic computers. Protest File, Exhibit 5, at 1. NRC's proposal indicated that the contract would last three years and that NRC would guarantee a minimum quantity of twenty percent of the total estimated cost over the life of the contract, and identified TRI-COR as an eligible 8(a) concern which could satisfactorily perform the services required. Protest File, Exhibit 4, at 1 SBA accepted the proposal with SIC code 3571 on behalf of TRI-COR in late September, 1993. Protest File, Exhibit 7, at 1. Subsequently, NRC awarded prime Contract No. NRC-33-94-185 to SBA. Protest File, Exhibit 11. SBA, in turn, issued a subcontract to TRI-COR for performance of the requirements. Id. JCCS asserts four grounds of protest in its Amended Protest. JCCS first argues that the classification of NRC's requirements under SIC code 3571 was "arbitrary and capricious and an abuse of discretion." Amended Protest 12. It contends that the specifications issued by NRC do not require actual manufacturing, but merely require computer integration and assembly of off-the- shelf commercial products. Id. 11. Protester argues that a proper SIC code designation in the instant 8(a) procurement would have permitted it to compete for award. Protester's second argument is that the contract should not have been designated as an indefinite delivery/indefinite quantity (IDIQ) type. Amended Protest 13. It avers that NRC has a "sound basis" for determining its needs and did not need to rely on an IDIQ contract. Id. JCCS avers that the dollar value for the first year of the contract is $7,300,000. Amended Protest 14. Because this amount exceeds the minimum statutory amount requiring competition in SBA 8(a) contracting, JCCS argues that the procurement should have been competed. Id. Protester's final ground of protest is that TRI-COR does not meet the requirements to qualify as a manufacturer under SIC code 3571. Amended Protest 15. NRC, SBA, and TRI-COR each filed motions to dismiss the protest. All three argue that the Board lacks jurisdiction to hear this protest because SBA has exclusive authority to review SIC codes assigned by procuring agencies and that JCCS is not an interested party to bring this protest. TRI-COR also argues that protester's second, third, and fourth protest grounds are untimely. Discussion The 8(a) program implements a congressional mandate that small socially and economically disadvantaged business concerns be given assistance where possible. See 15 U.S.C. 637(a)(1988); North American Automated Systems Co., Inc., GSBCA No. 8449-P, 86-2 BCA 18,984, at 95,873, 1986 BPD 78, at 3. The program is intended to be used as a business development tool to help small businesses owned and operated by socially and economically disadvantaged individuals to compete on an equal basis in the American economy. 13 CFR 124.1(a)(1)(1993). 8(a) program requirements In order to qualify as an 8(a) participant, an applicant must qualify as a small business concern as defined by 13 CFR 121.601. 13 CFR 121.1102(a); see also 13 CFR 124.102. That section establishes the appropriate size standards applicable to particular SIC codes. 13 CFR 121.601. The size standards are listed in terms of number of employees or annual receipts and indicate the maximum number of employees or annual receipts allowed for a concern to be considered small. Id. When determining the primary industry in which an applicant is engaged, that is, the applicable SIC code, the SBA considers the applicant concern's distribution of receipts and employees and the cost of doing business among differing industry areas in which the concern is operating. 13 CFR 121.1102(b)(1). As a part of the program, an 8(a) participant must develop a comprehensive business plan setting forth its "business targets, objectives, and goals." 13 CFR 124.301(a). The plan must also list the participant's primary industry classification and all related secondary SIC code designations. 13 CFR 124.301(b). The participant is eligible to perform only 8(a) contracts classified under SIC codes which appear in its business plan. Id. Development assistance by the SBA may be provided by award of noncompetitive Government contracts to qualifying businesses. North American Automated Systems, 86-2 BCA at 95,873, 1986 BPD 78, at 4. While many contracts pursuant to the 8(a) program are let on a sole source basis, the Small Business Act does provide for competition among 8(a) participants under limited circumstances. A contract opportunity offered for award must be awarded on the basis of competition restricted to eligible Program Participants if (I) there is a reasonable expectation that at least two eligible Program Participants will submit offers and that award can be made at a fair market price, and (II) the anticipated award price of the contract (including options) will exceed $5,000,000 in the case of a contract opportunity assigned a standard industrial classification code for manufacturing and $3,000,000 (including options) in the case of all other contract opportunities. 15 U.S.C. 637(a)(1)(D). Board jurisdiction over appeals of SIC code designations Respondents and Intervenor move to dismiss this protest and argue that the Board lacks jurisdiction to review an agency's assignment of a SIC code in an 8(a) procurement. They contend that SBA has exclusive jurisdiction over SIC code disputes in 8(a) procurements. They point to SBA regulations which articulate the appeal process for SIC code designations in such procurements and aver that these regulations provide the sole avenue of redress for 8(a) participants disputing SIC code designations. The determination of whether an 8(a) participant has the right to appeal a SIC code designation for a particular 8(a) procurement is the threshold issue in this protest. Because this is an issue of first impression before the Board, it is useful to describe how SIC code designations are made and appealed under the 8(a) program. The proper SIC code for a procurement is the one which best describe[s] the principal purpose of the procurement, giving primary consideration to the industry descriptions in the SIC manual, the product or service description in the solicitation and attachments thereto, the relative value and importance of each of the components in the procurement . . ., and the function of the goods or services being purchased. 13 CFR 121.1102(b)(2). Consideration may be given to previous Government procurement classifications of the requirements, to additional information about the industry and the product or service procured, and to evaluations as to which industry classification would best serve the purposes of the Small Business Act. Id. The procurement is generally classified according to the component which accounts for the greatest percentage of contract value. Id. The procuring agency contracting officer makes the initial determination as to the appropriate SIC code for an 8(a) contract. 13 CFR 121.1102(c). An unclear, incomplete, or missing SIC code designation may be clarified, completed, or supplied by the SBA. 13 CFR 121.1102(d). When an agency requirement for a possible 8(a) award has been identified, SBA will verify the appropriateness of the SIC code assigned by the procuring agency. 13 CFR 124.308(b). "So long as the SIC code assigned to the requirement by the procuring agency contracting officer is reasonable, the SIC code will be accepted by SBA." 13 CFR 124.308(b); see also 13 CFR 121.1102(c). If the SBA and the procuring agency are unable to agree as to the proper SIC code designation, SBA may refuse to accept the requirement for the 8(a) program or may appeal the contracting officer's decision to the head of the procuring agency; or the Assistant Administrator for the Minority Small Business and Capitol Ownership Development Program (AA/MSB&COD) may appeal the designation to SBA's Office of Hearings and Appeals. 13 CFR 124.308(b)(2). The jurisdiction of SBA's Office of Hearings and Appeals is discussed in 13 CFR 121.1701 through 121.1722. Of particular interest in this protest is 13 CFR 121.1703, which outlines the standing requirements for appeals of SIC code designations. While generally any interested person who is adversely affected by a SIC code designation may appeal the designation, appeal rights with respect to 8(a) contracts are far more limited. 13 CFR 121.1703(b). "[W]ith respect to a particular 8(a) contract, only the AA/MSB&COD may appeal a SIC code designation[.]" Id. Thus, the SBA regulations preclude potential 8(a) offerees from directly appealing SIC code designations. The SBA is empowered to promulgate rules and regulations necessary to carry out the authority granted in the Small Business Act. 15 U.S.C. 634(a)(6). Pursuant to this grant of authority, the SBA promulgated 13 CFR 121.1703(b) which articulates the appeal process for SIC code designations. The appeal process does not provide for direct appeals of SIC code designations by 8(a) program participants even though any interested party may appeal SIC code designations in other SBA program settings. When SBA proposed its current regulations governing the appeal process, an objection was made regarding the provisions for SIC code appeals in the 8(a) program. See Small Business Size Standards, 54 Fed. Reg. 52,634, 52,641 (1989). The objection was that the denial of the appeal right to 8(a) contractors was discriminatory and arbitrary. Id. The SBA responded that This provision is not new. 8(a) contractors have never had the right to appeal SIC code determinations under SBA regulations. Moreover, since the SBA represents the interests of the 8(a) participants in dealings with procurement agencies under the 8(a) program, it is appropriate to vest the right to appeal in the SBA. Id. This discussion illustrates that SBA has examined the issue and decided that vesting the sole appeal right in the AA/MSB&COD was sufficient to protect the interest of 8(a) contractors. The Small Business Act does not specify either the nature of the appeal process or which parties are entitled to appeal rights. The SBA has filled in this gap through regulation and has expressly stated that 8(a) participants do not have the right directly to appeal SIC code designations. These regulations do not appear to be in conflict with SBA's authority under the Act. We agree with SBA that the assignment of SIC codes and appeals of those assignments are exclusively within the province of the SBA. "[C]onsiderable weight should be accorded to an executive department's construction of a statutory scheme it is entrusted to administer[.]" Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 844 (1984). That being the case, the Board lacks jurisdiction to hear such SIC code appeals. We are not alone in this view. The General Accounting Office has determined that it is precluded from considering such matters because of the exclusive nature of SBA's authority. Tri- Way Security & Escort Service, Inc. -- Request for Reconsideration, B-238115.2, 90-1 CPD 380, at 3 (April 10, 1990). The only exception, one which we too would apply, is where there is convincing evidence that Government officials have a specific and malicious intent to injure protester. There is no such suggestion, much less proof, here. Interested party status The Brooks Act defines an interested party as "an actual or prospective bidder or offeror whose direct economic interest would be affected by the award of the contract or by the failure to award the contract." 40 U.S.C. 759(f)(9)(B); see also Rule 1(b)(6) (to be codified at 48 CFR 6101.1(b)(6)). Because the Board lacks jurisdiction to hear SIC code appeals, and because protester is not eligible for award of a contract under the assigned SIC code, protester is not eligibile for award of the instant contract and we are unable to consider protester's remaining protest grounds. Given protester's status as a noneligible program participant, it is not an interested party as defined by the Brooks Act and may not protest here. As stated above, interested party status requires that the party have a direct economic interest which would be affected by the award of the contract or by the failure to award the contract. JCCS cannot show a direct economic interest in this procurement because it is precluded from performing the contract and could not receive award even if it were able to prove its remaining allegations. Therefore, its remaining protest grounds must be dismissed for lack of interested party status. While the Board is unable to examine the allegations brought forth by JCCS under the facts presented in this case, that does not mean that we will always decline to review the competition requirements contained in the Small Business Act. The Board leaves open the question whether it would examine competition requirements as applied to an 8(a) procurement if a protest is filed by an eligible 8(a) program participant who has a direct economic interest in the award. In fact, the Board has previously examined whether an IDIQ contract was properly awarded under the 8(a) program without competition because the contract's minimum value was below the statutory competition threshold. See Electronic Systems & Associates, Inc. v. Department of the Air Force, GSBCA 11883-P, 93-1 BCA 25,278, 1992 BPD 187; Electronic Systems & Associates, Inc., GSBCA 11291-P, 91-2 BCA 24,254, 1991 BPD 175. Decision Respondents' and Intervenor's Motion to Dismiss the protest are GRANTED for lack of jurisdiction and interested party status. VINCENT A. LaBELLA Board Judge We concur: ROBERT W. PARKER MARTHA H. DeGRAFF Board Judge Board Judge