Government Technology Service, Inc., No. 4650 (August 2, 2004)
Docket No.  SIZ-2004-07-13-40

                                
                    UNITED STATES OF AMERICA
                  SMALL BUSINESS ADMINISTRATION
                 OFFICE OF HEARINGS AND APPEALS
                        WASHINGTON, D.C.
                                
                                

                                     )
SIZE APPEAL OF:                      )
                                     )
Government Technology Service, Inc.  )    Docket No.  SIZ-2004-07-13-40
                                     )
     Appellant                       )    Decided:  August 2, 2004
                                     )
Solicitation No.  N65236-01-R-0002   )
Space & Naval Warfare Systems Center )
North Charleston, South Carolina     )
                                     )

                   ORDER DISMISSING APPEAL [1]
                                
                              Facts
                                
       By  letter  dated  March  24,  2004,  the  Small  Business
Administration's (SBA) Assistant Inspector General for  Auditing,
of  the  Office  of  Inspector General (IG)  requested  the  size
specialist of SBA's Philadelphia Office of Government Contracting-
Area  II  (Area  Office)  to  conduct  a  size  determination  on
Government Technology Service, Inc. (Appellant).  The  IG  stated
in his letter that the size determination was in conjunction with
an  audit  of  Appellant being conducted by the IG  to  ascertain
whether  Appellant was a small business at the time it  certified
for   purposes  of  receiving  various  federal  contracts.   The
specific solicitation for the instant size determination  is  for
the  acquisition  of Hewlett Packard (HP) and Compaq  Information
technology products.  The Contracting Officer had classified  the
solicitation under Standard Industrial Classification (SIC)  code
5045,  which has a corresponding 500-employee size standard.  [2]
Appellant self-certified its size for the instant procurement, on
March 14, 2001.

      The Area Office requested Appellant to provide it with  SBA
Form  355  and other documents relevant for a size determination.
The  submitted  documents  demonstrated  that  Appellant  had  an
average  number  of  employees above the applicable  500-employee
size standard.  Accordingly, in its size determination dated  May
20,  2004,  the Area Office found Appellant other  than  a  small
business for the instant procurement.

      Appellant received the size determination on June 14, 2004,
and filed its appeal on July 13, 2004. [3]

                           The Appeal
                                
       Appellant  requests  this  Office  to  vacate   the   size
determination,  because  the Area Office lacked  jurisdiction  to
issue  it.  Appellant  submits  the  following  reasons  for  its
request:

       First,  while  the  solicitation  indicated  that  it  was
designated as a small business set-aside, it did not contain  the
standard Federal Acquisition Regulation (FAR) provisions required
if the solicitation is, indeed, a small business set-side.

       Second,  the  solicitation  specifically  called  for  the
acquisition  of  products from a large  business.   Thus,  it  is
settled that a small business set-side was a legal impossibility.
Appellant notes, in this respect, that the Area Office recognized
this  "impossibility" in stating in the size determination "since
the   solicitation  required  HP  [Hewlett  Packard]  and  Compaq
products  to  be  provided, a small business  set-aside  was  not
appropriate  for  this  procurement."  Appellant  adds  the  Area
Office  failed to recognize that absent a set-aside solicitation,
it  had  no jurisdiction to render a size determination regarding
Appellant's size status in 2001.

     Finally, Appellant asserts that, absent this Office vacating
the  size determination, Appellant will be adversely affected  by
it.   Appellant  will  be  tainted by  the  implication  that  it
improperly bid on this "unrestricted" solicitation.  Although the
contract has been awarded and completed, the issues present  here
could  affect  Appellant's interests outside the  scope  of  this
particular  solicitation.   Appellant  cites  as  apposite   Size
Appeals of Vistronix, Inc. & Department of Justice, SBA No.  SIZ-
4585 (2003).

                           Discussion
                                
      Appellant  filed  the  instant appeal  within  30  days  of
receiving the size determination.  Thus, it is timely.  13 C.F.R.
Section  134.304(a)(2); Size Appeal of U.S. Grounds  Maintenance,
Inc., SBA No. SIZ-4601 (2003).

       After  reviewing  the  record,  the  Administrative  Judge
concludes   she  must  dismiss  the  appeal  and   cannot   grant
Appellant's request to vacate the size determination.

      The  record  demonstrates the Area Office  correctly  found
Appellant to be other than a small business, based on Appellant's
own certified evidence -- its SBA Form 355 showing that Appellant
exceeds the applicable size standard.

      The  record  also  demonstrates,  contrary  to  Appellant's
arguments, that the solicitation was a small business set-aside.

     Also,  the  Area Office disclosed in its determination  that
the  SBA's IG requested it to perform a formal size determination
on  Appellant.   Thus, regardless of the facts and arguments  set
forth  in the appeal, or whether they have merit, the Area Office
had to comply with the IG's request.  SBA regulation at 13 C.F.R.
Section 121.1001 specifies which person and entities may initiate
a size protest or request a formal size determination.  While the
regulation and its subsections do not refer specifically  to  the
IG,  it  is  self-evident that under Section 121.1001(a)(1)(iii),
the Area Director is one of the listed persons that may request a
size  determination.   Here, while the IG  did  not  specifically
request the Area Director to initiate the size determination, the
fact  that  the  Area  Director  signed  the  size  determination
demonstrates that the Area Director impliedly accepted  the  IG's
referral, initiated the size determination, and consented to  its
issuance.
     
     The Administrative Judge believes it is necessary to observe
the IG is the policing and investigatory arm of this Agency.  Its
mission, among other matters, is to conduct and supervise audits,
conduct  investigations,  detect and  prevent  fraud  and  abuse,
ensure  the  integrity of the contracting process, and  generally
support SBA programs by ferreting out fraud, waste, or violations
of  law.  See Inspector General Act of 1978, as amended, 5 U.S.C.
App.  3.   Thus,  under any circumstances,  the  IG  may  request
documents  for its investigatory purposes, as well  as,  in  this
case,  consistent with its mandate, request a size  determination
in  connection  with  an  audit  of  Appellant's  practices.   In
consequence,   the  Area  Office  had  both  the  authority   and
jurisdiction   to   conduct   a  size   determination   and   the
Administrative Judge will not vacate it.

      Accordingly,  Appellant's arguments to  the  contrary,  its
appeal cannot be sustained.

                           Conclusion

      For  the  above reasons, the Administrative Judge DISMISSES
the  appeal  and  DENIES Appellant's request to vacate  the  size
determination.

       This   is   the  final  decision  of  the  Small  Business
Administration.  13 C.F.R. Section 134.316(b).

                                   GLORIA E. BLAZSIK
                                   Administrative Judge

_________________________

       1   This  appeal is decided under the Small Business Act  of
1958, 15 U.S.C. Section 631 et seq., and 13 C.F.R. Parts 121  and
134.
       2    As   subsequently  explained  in  the  Area  Office's
determination,  infra,  the CO used the incorrect  code,  because
effective  October 1, 2000, the SIC code system of classification
was replaced by the North American Industry Classification System
(NAICS) code.  The corresponding NAICS code for SIC code 5045  is
NAICS  code 421430, also with a 500-employee size standard.   The
Administrative Judge observes that the CO corrected  his  mistake
on  March  23,  2001, when he notified the unsuccessful  offerors
that he awarded the contract to Appellant on March 15, 2001.
       3  Apparently the Area Office sent the size determination to
an  incorrect  address.   The record establishes  that  Appellant
received the size determination on June 14, 2004.

                                          Posted: September, 2004