GAO Report from B-292005

B-292005 May 13, 2003 Jump To VIEW DECISION RELATED PAGES GAO CONTACTS Highlights Because an agency's choice of a particular North American Industry Classification System (NAICS) code is a matter for review exclusively by the Small Business Administration. Protester's argument that acquisition for canned juice could reasonably have been classified under more than one NAICS code will not be considered by the General Accounting Office. 2. It is the NAICS code applied to an acquisition. Which was issued on January 30. Application of such an adjustment would have been improper. To the extent that the protester is arguing that the solicitation should have provided for an SDB preference. " /3/ while Sec. 19.1102(a) directs agencies to"[u]se the price evaluation adjustment in competitive acquisitions in the authorized NAICS Industry Subsector." /4/ The solicitation at issue here stated that the applicable NAICS code was 311421 with a small business size standard of 500 employees. View Decision Triune Associates, B-292005, May 13, 2003 DIGEST Attorneys DECISION Triune Associates, a small disadvantaged business (SDB) concern, protests the failure of the Department of Agriculture to apply an SDB price evaluation adjustment to its offer under Announcement FV-205, Invitation 052, for canned juice. We deny the protest. Invitation 052, which was issued on January 30, 2003, sought offers for canned juice for distribution to domestic food assistance programs. /1/ The invitation sought offers for a total of 547,496 cases of 46-ounce cans/cartons of various types of fruit juice for delivery to a number of different locations across the country between April 1, 2003 and June 30, 2003. The invitation set the closing date for receipt of offers as February 13. Neither the invitation nor Announcement FV-205 incorporated a clause providing for a price evaluation adjustment for SDB concerns. Evaluation of offers must be in accordance with the solicitation's evaluation provisions. Since neither the invitation nor the announcement here provided for an SDB price evaluation adjustment, application of such an adjustment would have been improper. American Imaging Servs., Inc.--Recon., B-250861.2, Jan. 5, 1993, 93-1 CPD Para. 13 at 1. To the extent that the protester is arguing that the solicitation should have provided for an SDB preference, /2/ Federal Acquisition Regulation (FAR) Sec. 19.1104 instructs contracting agencies to insert the clause at Sec. 52.219-23, Notice of Price Evaluation Adjustment for Small Disadvantaged Business Concerns, in solicitations and contracts "when the circumstances in 19.1101 and 19.1102 apply." FAR Sec. 19.1101 provides that "[a] price evaluation adjustment for small disadvantaged business concerns shall be applied as determined by the Department of Commerce (see 19.201(b))," /3/ while Sec. 19.1102(a) directs agencies to"[u]se the price evaluation adjustment in competitive acquisitions in the authorized NAICS Industry Subsector." /4/ The solicitation at issue here stated that the applicable NAICS code was 311421 with a small business size standard of 500 employees. NAICS code 311421 designates the fruit and vegetable canning industry, which is not an industry eligible for the SDB price evaluation adjustment. /5/ Triune argues that while the announcement designated NAICS code 311421 for purposes of defining the size standard applicable to the solicitation, this does not mean that other NAICS codes might not also be applicable for other purposes, such as defining price evaluation adjustment eligibility. The protester cites as support for its argument FAR Sec. 19.102(c), which provides that "[f]or size standard purposes, a product or service shall be classified in only one industry, whose definition best describes the principal nature of the product or service being acquired even though for other purposes it could be classified in more than one." (Emphasis added.) Triune maintains that in addition to NAICS code 311421, this acquisition reasonably could have been classified under NAICS code 422490 (juices, canned or fresh, wholesaling), which corresponds to SIC code 5149, which is eligible for the price evaluation adjustment. The protester points out that the same size standard is applicable to the two codes. Even assuming for the sake of argument that this acquisition reasonably could have been classified under code 422490 as well as code 311421, the fact remains that the solicitation here designated only code 311421, and the protester failed to challenge that designation at the Small Business Administration (SBA), which has exclusive authority over NAICS code determination appeals. See FAR Sec. 19.303(c); 13 C.F.R. Sec. 121.1102 (2002). Because an agency's choice of a NAICS code is a matter for review by the SBA, not our Office, this is not a matter for our consideration. See Expeditions Int'l Travel Agency, B-252510, June 28, 1993, 93-1 CPD Para.