THIS OPINION, INITIALLY ISSUED UNDER PROTECTIVE ORDER, IS RELEASED WITHOUT REDACTION TO THE PUBLIC ON MARCH 1, 1995 ___________________________________________ MOTIONS TO DISMISS GRANTED IN PART: February 28, 1995 ___________________________________________ GSBCA 13170-P, 13171-P DYNAMIC DECISIONS, INC., Protester, v. DEPARTMENT OF HEALTH AND HUMAN SERVICES, Respondent, and SYLVEST MANAGEMENT SYSTEMS CORPORATION, and GOVERNMENT MICRO RESOURCES, INC., Intervenors. Paralee White, William F. Savarino, G. Brent Connor, and Russell J. Gaspar of Cohen & White, Washington, DC, counsel for Protester (GSBCA 13170-P). Michael A. Hordell and Laura L. Hoffman of Gadsby & Hannah, Washington, DC, counsel for Protester (GSBCA 13171-P). Barbara Robbins and Richard S. Brown, Office of the General Counsel, Department of Health and Human Services, Washington, DC, counsel for Respondent. Alex D. Tomaszczuk and Devon E. Hewitt of Shaw, Pittman, Potts & Trowbridge, Washington, DC, counsel for Intervenor Sylvest Management Systems Corporation (GSBCA 13170-P). Michael Tollinger, Director of Contracts of Government Micro Resources, Inc., Chantilly, VA, appearing for Intervenor Government Micro Resources, Inc. (GSBCA 13171-P). Before Board Judges PARKER, NEILL, and VERGILIO. VERGILIO, Board Judge. Dynamic Decisions, Inc. challenges actions of the Department of Health and Human Services with respect to proposed awards under the 8(a) program of indefinite delivery, indefinite quantity contracts to Sylvest Management Corporation (GSBCA 13170-P) and to Government Micro Resources, Inc. (GMR) (GSBCA 13171-P), intervenors of right in the respective protests. GSBCA 13170-P The protester raises four grounds of protest. Sylvest seeks to dismiss count one for lack of jurisdiction. The agency moves to dismiss the first two counts as beyond the jurisdiction of the Board, and seeks to dismiss count three as premature and count four for failure to state a ground upon which relief can be granted and as frivolous. Count one In count one, the protester asserts that Sylvest does not comply with the requirements of the Walsh-Healey Public Contracts Act, 41 U.S.C. 35-45. The protester contends that the award of a contract to a company that is not a manufacturer of the goods to be supplied would be contrary to statute and regulation. Sylvest disputes the assertion and contention. Applicable regulation dictates the pre-award protest procedures for an offeror to challenge the Walsh-Healey eligibility of the apparently successful offeror. 48 CFR 22.608- 3 (1993). The protester has not suggested that it has followed these procedures or that the contracting officer has failed to follow the procedures. The Board is not empowered to determine whether an offeror is eligible under a given standard industrial classification (SIC) code. Wiltel Communications Systems, Inc. v. General Services Administration, GSBCA 11854-P, 93-1 BCA 25,279, 1992 BPD 195. The allegation as raised in count one is not properly before the Board. The Board grants the motion of Sylvest and the related portion of the agency motion. Count two In count two, the protester maintains that the contracting officer failed to conduct a Walsh-Healey inspection, thereby violating regulation, Federal Acquisition Regulation (FAR) 22.608-2. The regulation specifies the circumstances when a contracting officer "shall investigate and determine the eligibility of the offeror and not rely on the offeror's representation that it is a manufacturer or regular dealer." 48 CFR 22.608-2(b) (1993). In support, the protester states: "Despite the assignment of SIC 3571, the manufacture of electronic computers, to this acquisition, and the stated intention of Sylvest to supply file servers manufactured by a large business, the contracting officer did not investigate whether Sylvest qualified as a manufacturer under Walsh-Healey." Protest ( 18). Contrary to the contention of the agency, the Board has jurisdiction over a protester's assertion that an agency has failed to follow statute and regulation. The protester maintains that regulation requires the contracting officer to have conducted an investigation of Sylvest's eligibility. The responsibility for applying the eligibility requirements "rests in the first instance with the contracting officer." FAR 22.608- 2(a). This protester has a legitimate interest in ensuring that the contracting officer carries out that responsibility before it decides whether, under FAR 22.608-3, it should challenge the determination. The basis of protest raises factual and legal issues properly before the Board. The Board denies the agency's motion to dismiss count two. Count three In count three, the protester asserts that Sylvest does not manufacture the products to be supplied and that Sylvest will supply products manufactured by a large business. It also asserts that it, as a small business, manufactures the products to be supplied. The protester maintains the award under such circumstances violates regulation, FAR 19.102(f)(1) and (5), because the contracting officer has not determined that the items being procured are manufactured by a small business, and cannot waive the requirement because a small business does manufacture products which could be supplied. In moving to dismiss this count as premature, the agency contends that it has not issued a detailed description of its requirements. The agency concludes that the protest challenges a contracting officer's action which has not yet been taken. A Commerce Business Daily notice describes the agency's general requirements. Protest File, Exhibit 5. The agency and the Small Business Administration have reached agreement on conducting the procurement under the 8(a) program. Id., Exhibits 18, 20, 23. Notwithstanding the agency's contention that a detailed description of its requirements has not issued, and that it does not know what Sylvest may offer to satisfy its requirements, the protester considers itself to possess a sufficiently clear notion of the agency's requirements and how those requirements may be satisfied. It is unclear what degree of information the agency possesses regarding the products Sylvest intends to supply or is capable of supplying. The existing record does not demonstrate that this basis of protest is premature; given the disagreement on the underlying facts, the Board denies the agency's motion to dismiss count three. Count four In count four, the protester asserts that the anticipated contract value exceeds $5 million, such that the requirement must be competed pursuant to statute and regulation, 15 U.S.C. 637(a)(1)(D) (Supp. V 1993); FAR 19.805-1. The agency maintains that this basis fails to state a ground upon which relief can be granted, is frivolous, and should be denied summarily. In response to the agency motion, the protester alleges that the dollar threshold has been exceeded in multiple ways such that competition must occur. The protester suggests that the agency's true requirements to be satisfied by Sylvest exceed the $5 million threshold; moreover, if the procurement is viewed as other than a manufacturing contract opportunity, the $3 million threshold is exceeded. These arguments appear to be made regarding both the validity of the guaranteed minimum value of the indefinite delivery, indefinite quantity contract and the total estimated value of the contract. The protester also maintains that the agency has split its requirements (to Sylvest here and to GMR in the consolidated protest) in order to circumvent the competition requirements. This basis of protest is one for which relief can be granted and is not frivolous. Factual and legal issues remain open for development and resolution. The Board denies the agency's motion to dismiss count four. GSBCA 13171-P The first two bases of protest parallel counts three and four in GSBCA 13170-P. The agency moves to dismiss each of those counts for the reasons addressed above. For the same reasons, the Board denies the agency's motion to dismiss counts one and two of this protest. Decision In GSBCA 13170-P, the Board GRANTS the motion of Sylvest, GRANTS the portion of the agency's motion relating to count one, and DENIES the other bases of the agency's motion. In GSBCA 13171-P, the Board DENIES the bases of the agency's motion to dismiss the first two counts. Still pending, and awaiting protester's response, is the agency's motion to dismiss counts three and four in GSBCA 13171-P. ________________________ JOSEPH A. VERGILIO Board Judge We concur: _________________________ _________________________ ROBERT W. PARKER EDWIN B. NEILL Board Judge Board Judge