B-162851, B-162941, FEBRUARY 16, 1968, 47 COMP. GEN. 462

B-162851,B-162941: Feb 16, 1968

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CONTRACTS - AWARDS - SMALL BUSINESS CONCERNS - SET-ASIDES - WITHDRAWAL - PLANNED EMERGENCY PRODUCER VETO TOTAL SMALL BUSINESS SET-ASIDES UNDER SOLICITATIONS LISTING AERIAL DELIVERY SLINGS BY DIFFERENT FEDERAL STOCK NUMBERS (FSN) MAY NOT BE VETOED UNDER PARAGRAPH 1-706.1 (C) (II) OF THE ARMED SERVICES PROCUREMENT REGULATION BY A LARGE BUSINESS CONCERN DESIGNATED A "PLANNED EMERGENCY PRODUCER" FOR ITEMS OTHER THAN THOSE BEING SOLICITED ON THE BASIS THE PROCUREMENT IS DIFFERENT SIZES OF "ONE" ITEM MANUFACTURED IN ACCORDANCE WITH A COMMON SPECIFICATION. THE CONCERN NOT A PLANNED PRODUCER FOR THE ITEMS BEING SOLICITED NOT ONLY DOES NOT HAVE THE RIGHT TO VETO THE SET- ASIDES. THE PROCUREMENT IS NOT SUBJECT TO THE ITEM VETO OF THE REGULATION.

B-162851, B-162941, FEBRUARY 16, 1968, 47 COMP. GEN. 462

CONTRACTS - AWARDS - SMALL BUSINESS CONCERNS - SET-ASIDES - WITHDRAWAL - PLANNED EMERGENCY PRODUCER VETO TOTAL SMALL BUSINESS SET-ASIDES UNDER SOLICITATIONS LISTING AERIAL DELIVERY SLINGS BY DIFFERENT FEDERAL STOCK NUMBERS (FSN) MAY NOT BE VETOED UNDER PARAGRAPH 1-706.1 (C) (II) OF THE ARMED SERVICES PROCUREMENT REGULATION BY A LARGE BUSINESS CONCERN DESIGNATED A "PLANNED EMERGENCY PRODUCER" FOR ITEMS OTHER THAN THOSE BEING SOLICITED ON THE BASIS THE PROCUREMENT IS DIFFERENT SIZES OF "ONE" ITEM MANUFACTURED IN ACCORDANCE WITH A COMMON SPECIFICATION. THE CONCERN NOT A PLANNED PRODUCER FOR THE ITEMS BEING SOLICITED NOT ONLY DOES NOT HAVE THE RIGHT TO VETO THE SET- ASIDES, BUT THE PROCUREMENT IS NOT SUBJECT TO THE ITEM VETO OF THE REGULATION, THE WORD "ITEM" AS USED IN THE REGULATION BEING SYNONYMOUS TO THE USE ATTRIBUTED TO THE WORD IN THE IMPLEMENTATION OF THE DEFENSE CATALOGING AND STANDARDIZATION ACT, 10 U.S.C. 2451-2456, WHEREIN EACH SEPARATE ITEM OF SUPPLY USED RECURRENTLY IS ASSIGNED A FSN ITEM IDENTIFICATION, AND THE ACT ALSO REQUIRED THE CONFORMITY OF THE SLINGS TO A COMMON BASIC SPECIFICATION. CONTRACTS - AWARDS - SMALL BUSINESS CONCERNS - SET-ASIDES - WITHDRAWAL PLANNED EMERGENCY PRODUCER VETO AS THE DICTIONARY DEFINITION DESCRIBING THE WORD "ITEM" AS AN "INDIVIDUAL PARTICULAR OR DETAIL SINGLED OUT FROM A GROUP OF RELATED PARTICULARS OR DETAILS" IS THE MEANING OF THE WORD AS USED IN THE IMPLEMENTATION OF THE DEFENSE CATALOGING AND STANDARDIZATION ACT UNDER WHICH EACH SEPARATE AND DISTINCE ITEM OF SUPPLY USED RECURRENTLY IS REQUIRED TO BE CLASSIFIED, DESCRIBED, AND GIVEN AN ITEM FEDERAL STOCK NUMBER (FSN), WHICH IDENTIFIES THE ITEM FROM EVERY OTHER ITEM OF SUPPLY, SOLICITATIONS FOR VARIOUS SIZES OF AERIAL DELIVERY SLINGS PROPERLY IDENTIFIED EACH SIZE WITH AN INDIVIDUAL FSN, AND THE PROCUREMENT IS NOT SUBJECT TO PARAGRAPH 1-706.1 (C) (II) OF THE ARMED SERVICES PROCUREMENT REGULATION, WHICH PRECLUDES SMALL BUSINESS SET ASIDES WHEN A LARGE BUSINESS PLANNED EMERGENCY PRODUCER OF THE "ITEM" DESIRES TO PARTICIPATE IN THE PROCUREMENT. CONTRACTS - AWARDS - SMALL BUSINESS CONCERNS - SIZE - CONCLUSIVENESS OF DETERMINATION THE DETERMINATIONS OF THE SMALL BUSINESS ADMINISTRATION (SBA) IN PRESCRIBING SMALL BUSINESS SIZE STANDARDS FOR VARIOUS INDUSTRIES AND DESIGNATING WITHIN ANY INDUSTRY THE CONCERNS WHICH ARE SMALL BUSINESS CONCERNS FOR THE PURPOSE OF GOVERNMENT PROCUREMENT ARE BINDING ON THE PROCUREMENT OFFICIALS OF THE GOVERNMENT, AND ORDINARILY THE UNITED STATES GENERAL ACCOUNTING OFFICE WILL NOT QUESTION A SIZE STANDARD. HOWEVER, THE DETERMINATION OF WHAT SIZE STANDARD SHOULD APPLY TO A PARTICULAR PROCUREMENT IS VESTED INITIALLY IN THE PROCURING AGENCY AND UPON APPEAL IN THE SBA UNDER ITS POWER TO DETERMINE SIZE STANDARDS FOR GOVERNMENT PROCUREMENT.

TO KINGS POINT INDUSTRIES, INC., FEBRUARY 16, 1968:

REFERENCE IS MADE TO YOUR LETTERS DATED AUGUST 18 AND AUGUST 25, 1967, TO THE UNITED STATES ARMY AVIATION MATERIEL COMMAND, PROTESTING AGAINST AWARD OF ANY CONTRACTS UNDER SOLICITATION NOS. DAAJ01-68-B 0016/J), DAAJ01-67-B- 0591/J) AND DAAJ01-68-B-0047/J), ISSUED BY THAT AGENCY. IN ACCORDANCE WITH YOUR REQUEST THE MATTER WAS REFERRED TO OUR OFFICE FOR DECISION. REFERENCE IS ALSO MADE TO YOUR LETTERS DATED OCTOBER 30 AND DECEMBER 14, 1967, TO THIS OFFICE, PROTESTING ANY AWARDS UNDER SOLICITATION NOS. DAAJ01 -68-B-0115/J) AND DAAJ01-68-B 0199/J), ISSUED BY THE ABOVE COMMAND.

SOLICITATION NO. DAAJ01-68-B-0016/J) AND SOLICITATION NO. DAAJ01-67 B- 0591/J) CALLED FOR THE FURNISHING OF 11 FOOT, 3 LOOP AND 8 FOOT, 3 LOOP CARGO SLINGS, FEDERAL STOCK NOS. (FSN), 1670-823-5040 AND 1670 753-3630, RESPECTIVELY, TO BE MANUFACTURED IN ACCORDANCE WITH MIL-S 25963C, 30 SEP 1963, AMENDMENT 1, 14 APRIL 1965, AND USAF DRAWING 63J4261-7. SOLICITATION NO. DAAJ01-68-B-0047/J) COVERED 12 FOOT 3 LOOP SLINGS, FSN 1670-823-5041, AND DAAJ01-68-B-0115 COVERED 11 FOOT 3 LOOP SLINGS, FSN 1670-823-5040, WHILE DAAJ01-68-B-0199 COVERED TWO SLINGS, AN 8 FOOT, 3 LOOP SLING, FSN 1670-753-3630, AND A 12 FOOT, 3 LOOP SLING, FSN 1670-823- 5041.

YOUR PROTESTS AS TO ALL OF THE PROCUREMENTS ENUMERATED ARE BASED UPON THE FACT THAT THEY WERE INSTITUTED AS TOTAL SMALL BUSINESS SET ASIDES. YOU HAVE ALSO QUESTIONED THE SIZE STANDARDS IMPOSED FOR SMALL BUSINESS QUALIFICATION AND YOUR CLASSIFICATION AS A LARGE BUSINESS CONCERN.

AS THE BASIS FOR YOUR OBJECTION TO THE SMALL BUSINESS SET-ASIDE, YOU ALLEGE THAT YOU ARE A PLANNED PRODUCER FOR ALL SLING ITEMS, AND UNDER ARMED SERVICES PROCUREMENT REGULATION (ASPR) 1-706.1 (C) (II) HAVE A RIGHT TO REQUEST THAT THE PROCUREMENT OF SUCH ITEMS NOT BE ON A TOTAL SMALL BUSINESS SET-ASIDE BASIS. ASPR 1-706.1 (C) LISTS CERTAIN CONDITIONS WHICH SHALL NOT BE CONSIDERED AS PRECLUDING SMALL BUSINESS SET-ASIDES, INCLUDING THE FOLLOWING: "/II) THE ITEM IS ON AN ESTABLISHED PLANNING LIST UNDER THE INDUSTRIAL READINESS PLANNING PROGRAM, EXCEPT THAT A TOTAL SET-ASIDE SHALL NOT BE AUTHORIZED WHEN ONE OR MORE LARGE BUSINESS PLANNED EMERGENCY PRODUCERS OF THE ITEM DESIRE TO PARTICIPATE IN THE PROCUREMENT * * *.'

ACCORDING TO THE ADMINISTRATIVE REPORT, KINGS POINT IS NOT A PLANNED PRODUCER FOR ANY OF THE ITEMS BEING PROCURED. INSTEAD, THE EMERGENCY PRODUCTION SCHEDULE, DD FORM 1519, SIGNED BY KINGS POINT, SHOWS THAT IT IS A PLANNED PRODUCER FOR THE 12 FOOT, 2 LOOP SLING, FSN-1670-753 3792; THE 16 FOOT, 2 LOOP SLING, FSN 1670-753-3793; THE 20 FOOT, 2 LOOP SLING, FSN- 1670-753-3794; THE 8 FOOT, 2 LOOP SLING, FSN-1670-753 3789; THE 3 FOOT, 3 LOOP SLING, FSN 1670-753-3788; AND THE A7A SLING, FSN 1670-251-1153. ALL OF THE ABOVE SLINGS ARE REQUIRED TO BE MANUFACTURED IN ACCORDANCE WITH USAF DRAWING 63J4261 AND ARE SUBJECT TO THE PERFORMANCE AND TEST REQUIREMENTS OF MILITARY SPECIFICATIONS MIL-S-25963-C, EXCEPT SLING A7A WHICH IS COVERED BY AN AVIATION MATERIEL COMMAND (AVCOM) SPECIFICATION IP/DES S-10-5 AND DRAWING 51C6716.

IT IS YOUR CONTENTION THAT WHILE YOU ARE DESIGNATED AS PLANNED PRODUCERS FOR ONLY SIX SLINGS, SINCE ALL OF THE SLINGS, EXCEPT SLING A7A, ARE MANUFACTURED IN ACCORDANCE WITH THE SAME DRAWING AND SPECIFICATION, AND YOU HAVE ADEQUATE FACILITIES TO PRODUCE ALL OF THE SLINGS, YOU THEREFORE ARE A PLANNED PRODUCER FOR ALL OF THE SLINGS. IT APPEARS TO BE YOUR POSITION THAT THE FEDERAL STOCK NUMBERS DO NOT DESIGNATE THE SPECIFIC ITEMS FOR WHICH YOU ARE A PLANNED PRODUCER, BUT RATHER THAT THE ITEM IS THE AERIAL DELIVERY SLING AND THE FS NUMBERS MERELY DESIGNATE THE DIFFERENT SIZES OF THE ITEM AND AS SUCH ARE MERELY A CONVENIENT METHOD OF IDENTIFICATION.

THIS OFFICE HAS STATED IN 17 COMP. GEN. 106, 109, THAT "THE WORD ITEM- IS VARIOUSLY USED AND DEFINED, THE DEFINITION DEPENDING LARGELY UPON THE CONNECTION IN WHICH IT IS USED.' WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY (UNABRIDGED) DEFINES "ITEM" AS "AN INDIVIDUAL PARTICULAR OR DETAIL SINGLED OUT FROM A GROUP OF RELATED PARTICULARS OR DETAILS.' DETERMINE IN WHAT CONNECTION THE WORK "ITEM" IS USED IT IS NECESSARY TO DETERMINE THE PURPOSE OF THE FEDERAL STOCK NUMBERS, I.E., WHETHER THEIR PURPOSE IS TO DESIGNATE A SPECIFIC ITEM BELONGING TO A PARTICULAR CLASS, OR WHETHER THEY ARE TO BE USED MERELY AS A CONVENIENT METHOD OF IDENTIFICATION.

FROM OUR REVIEW OF THE DEFENSE CATALOGING AND STANDARDIZATION ACT, PUBLIC LAW 436, 82D CONGRESS (WHICH WAS SUBSEQUENTLY CODIFIED AS 10 U.S.C. 2451- 2456), AND ITS LEGISLATIVE HISTORY, WE MUST CONCLUDE THAT EACH SEPARATE AND DISTINCT ITEM OF SUPPLY WHICH IS USED RECURRENTLY IS REQUIRED TO BE CLASSIFIED, DESCRIBED AND GIVEN AN ITEM NUMBER WHICH WILL IDENTIFY IT FROM EVERY OTHER ITEM OF SUPPLY. IMPLEMENTATION OF THE ACT IS PLACED IN THE DEFENSE SUPPLY AGENCY UNDER THE SECRETARY OF DEFENSE, AND THE MASTER DATA FILE IS MAINTAINED BY THE DEFENSE LOGISTICS SERVICE CENTER, DEFENSE SUPPLY AGENCY, BATTLE CREEK, MICHIGAN, WHICH ALSO ISSUED THE FEDERAL SUPPLY CLASSIFICATION (FSC). THE FSC AND ITS INDEXES HAVE BEEN DEVELOPED AND ADOPTED BY THE OFFICE OF THE SECRETARY OF DEFENSE FOR USE IN CLASSIFYING ITEMS OF SUPPLY IDENTIFIED UNDER THE FEDERAL CATALOGING PROGRAM. THE STRUCTURE OF THE FSC CONSISTS OF GROUPS, WHICH ARE SUBDIVIDED INTO CLASSES. EACH CLASS COVERS A RELATIVELY HOMOGENEOUS AREA OF COMMODITIES, IN RESPECT TO THEIR PHYSICAL OR PERFORMANCE CHARACTERISTICS, OR IN THE RESPECT THAT THE ITEMS INCLUDED THEREIN ARE SUCH AS ARE USUALLY REQUISITIONED OR ISSUED TOGETHER. THE FSC UTILIZES A FOUR DIGIT CODING STRUCTURE WHEREBY THE FIRST TWO DIGITS OF THE CODE NUMBER IDENTIFY THE GROUP, AND THE LAST TWO DIGITS IDENTIFY THE CLASSES WITHIN THE GROUP. THE PRESENT CASE, GROUP 16 IS ENTITLED "AIRCRAFT COMPONENTS AND ACCESSORIES," CLASS 1670 IS ENTITLED "PARACHUTES; AERIAL PICKUP, DELIVERY, RECOVERY SYSTEMS; AND CARGO TIE DOWN EQUIPMENT.' THIS IS THE CLASS OF PERSONAL PROPERTY COMMONLY CALLED "AERIAL DELIVERY ITEMS" AS STATED ON THE FIRST PAGE OF YOUR PLANNED PRODUCER AGREEMENT. THE CATALOGING HANDBOOK H2 -2, CLASS 1670, LISTS SIX CATEGORIES OF SLINGS, SUCH AS SLINGS FOR ROCKETS AND FOR MISSILES, IN ADDITION TO "SLING, CARGO, AERIAL.' OF INTEREST, ALSO, IS THE STATEMENT IN THE INTRODUCTION TO THE FSC, WHICH STATES IN PERTINENT PART:

"THE PRIMARY APPLICATION OF THE FSC CODE NUMBER IS IN THE FEDERAL STOCK NUMBER (FSN). THE FSN FOR AN ITEM OF SUPPLY CONSISTS OF THE APPLICABLE FOUR-DIGIT FSC CODE NUMBER PLUS THE SEVEN-DIGIT FEDERAL ITEM IDENTIFICATION NUMBER.'

IT WOULD APPEAR FROM THE ABOVE, THAT IT IS THE FEDERAL STOCK NUMBER WHICH IDENTIFIES A SEPARATE AND DISTINCT ITEM OF SUPPLY IN THE FEDERAL STOCK CATALOGUES. IMPLEMENTATION OF THE CATALOGING AND STANDARDIZATION ACT APPEARS TO BE FULLY IN ACCORD WITH THE OBJECTIVES OF THE ACT AND THE LEGISLATIVE HISTORY DISCUSSED ABOVE, AND THE WORK "ITEM" APPEARS TO HAVE BEEN USED AND UNDERSTOOD THROUGHOUT THE DEPARTMENT OF DEFENSE (DOD) TO DENOTE THE SEPARATE AND DISTINCT ITEM OF SUPPLY REQUIRED, PROCURED AND USED. THEREFORE, SINCE THE STATED PURPOSE OF ASPR IS TO ESTABLISH FOR D,"UNIFORM POLICIES AND PROCEDURES RELATING TO THE PROCUREMENT OF SUPPLIES AND SERVICES UNDER THE AUTHORITY OF CHAPTER 137, TITLE 10 OF THE U.S.C. OR UNDER OTHER STATUTORY THORITY," IT IS INCONCEIVABLE THAT THE WORK "ITEM" SHOULD HAVE A DIFFERENT MEANING IN ASPR THAN IS ATTRIBUTED TO IT UNDER THE CATALOGING AND STANDARDIZATION ACT. IN THE ABSENCE OF CONVINCING EVIDENCE TO THE CONTRARY, WE MUST THEREFORE CONCLUDE THAT THE MEANING OF THE WORK "ITEM" IS THE DICTIONARY MEANING, I.E., "AN INDIVIDUAL PARTICULAR OR DETAIL SINGLED OUT FROM A GROUP OF RELATED PARTICULARS OR DETAILS.' THUS, IT APPEARS THAT THE WORK "ITEM" IS USED IN ASPR 1-706.1 (C) (II) IN THE SAME WAY AND WITH THE SAME CONNOTATIONS AS USED BY CONGRESS IN THE CATALOGING ACT, AND THAT THE WORDS "THE ITEM" ARE SYNONYMOUS WITH A FEDERAL STOCK NUMBER, PARTICULARLY SINCE ONLY ITEMS RECURRENTLY USED AND PROCURED ARE PLACED ON A PLANNING LIST AND MADE THE SUBJECT OF A PLANNED PRODUCERS AGREEMENT.

CONCERNING YOUR ALLEGATION THAT YOU ARE A PLANNED PRODUCER FOR ALL OF THE SLING ITEMS, SINCE ALL OF THE SLINGS IN QUESTION ARE MANUFACTURED IN ACCORDANCE WITH MIL-S-25963C, THE CATALOGING AND STANDARDIZATION ACT REQUIRES THE CONSOLIDATION OF SPECIFICATIONS TO THE GREATEST EXTENT POSSIBLE. MILITARY STANDARDS AND SPECIFICATIONS OF THE SEPARATE MILITARY SERVICES ARE CONSOLIDATED FOR USE WITH AS MANY SEPARATE ITEMS, MATERIALS, AND SERVICES AS POSSIBLE, CONSIDERING THE DISTINCTIVE NEEDS OF EACH SERVICE. CONSEQUENTLY, IT IS NOT SURPRISING THAT SEVERAL SLINGS ARE MANUFACTURED IN ACCORDANCE WITH THE SAME SPECIFICATION; IN FACT, MANY STANDARD SPECIFICATIONS ARE APPLICABLE TO A BROAD CROSS-SECTION OF ARTICLES FALLING INTO DIFFERENT GROUPS OR CLASSES AND HAVING NOTHING IN COMMON EXCEPT SOME PARTICULAR COMPONENT OR CHARACTERISTIC WHICH MAY BE REQUIRED TO CONFORM TO A SINGLE SET OF STANDARDS REGARDLESS OF ITS ULTIMATE USE. CERTAINLY IT WOULD BE ABSURD TO REQUIRE A SEPARATE SPECIFICATION FOR EACH OF SEVERAL ARTICLES DIFFERING ONLY IN SIZE OR SOME OTHER READILY DISTINGUISHABLE ATTRIBUTE, AND WE CANNOT ACCEPT YOUR THESIS THAT ALL ARTICLES CONFORMING TO A COMMON SPECIFICATION MUST THEREFORE BE CONSIDERED AS A SINGLE "ITEM.'

IN ANY EVENT, YOUR ASSERTED RIGHTS WITH RESPECT TO THE SUBJECT PROCUREMENTS DEPEND ENTIRELY UPON THE "PLANNED PRODUCER" AGREEMENT ENTERED INTO BETWEEN YOU AND THE ARMY AVIATION MATERIEL COMMAND UNDER DATE OF FEBRUARY 18, 1966 (ACCEPTED BY YOU ON MARCH 25, 1966), ON DD FORM 1519. EVEN IF WE WERE TO AGREE WITH YOUR CONTENTIONS AS TO THE MEANING OF THE WORD "ITEM" IN GENERAL, WE COULD NOT INTERPRET THE TERMS OF THE EXECUTED AGREEMENT AS MAKING YOU A PLANNED PRODUCER OR SUPPLIER OF ANY ARTICLES OTHER THAN THOSE CLEARLY IDENTIFIED THEREIN BY FEDERAL STOCK NUMBERS.

ON THE FACT OF FORM DD 1519 IT IS STATED,"THE SIGNATURE HEREON INDICATES THAT THE MANAGEMENT OF THIS FIRM BELIEVES IT IS QUALIFIED TO PRODUCE THE ARTICLES INDICATED. IT IS BELIEVED THAT THIS SCHEDULE CAN BE MET IN AN EMERGENCY. IN THE EVENT OF EMERGENCY, WE ARE WILLING TO NEGOTIATE A CONTRACT WITH THE GOVERNMENT FOR MANUFACTURE OF THE ARTICLES. IT IS UNDERSTOOD THAT OUR ACCEPTANCE OF THIS SCHEDULE OF PRODUCTION IS ENTIRELY VOLUNTARY ON OUR PART, AND THAT IT IN NO WAY BINDS THIS FIRM OR THE GOVERNMENT IN ANY CONTRACTUAL RELATIONSHIP.' ATTACHED AND FORMING A PART OF THE AGREEMENT WAS A LIST OF SIX SLINGS, EACH IDENTIFIED BY A FEDERAL STOCK NUMBER, FOR EACH OF WHICH THERE WAS ENTERED A SCHEDULE OF QUANTITIES TO BE PRODUCED EACH MONTH FROM 1 TO 24 MONTHS.

SINCE NONE OF THE SIX ITEMS INDICATED ARE BEING PROCURED UNDER THE FIVE SOLICITATIONS IN QUESTION, WE FIND NO BASIS FOR YOUR CLAIM OF THE RIGHT TO VETO THE TOTAL SET-ASIDE OF THE ARTICLES BEING PROCURED. EVEN IF WE WERE TO INTERPRET THE WORD "ITEM" TO MEAN "ALL AIR DELIVERY ITEMS," YOU WOULD STILL BE A PLANNED PRODUCER FOR ONLY THE SIZES OR PATTERNS OF THE "ITEM" LISTED IN YOUR SCHEDULE. THE EMERGENCY PRODUCTION SCHEDULE, DD FORM 1519, HAS, ACCORDING TO THE RECORD, BEEN FILLED OUT IN ACCORDANCE WITH INSTRUCTIONS CONTAINED IN AMCR 715-20, C4, 27 JULY 1965, ENTITLED INDUSTRIAL READINESS PROGRAM, PARAGRAPH 5B (2) (1) OF WHICH STATES THAT IN BLOCK 9A OF THE FORM, THE CLAIMANT AGENCY (AVCOM) SHALL ENTER BY NOMENCLATURE, BY NAME, OR AS IN THE CASE OF SUPPORT ITEMS BY BRIEF DESCRIPTION,"THE ITEMS SCHEDULED ON THE BACK OF THE FORM.' THE ITEMS SCHEDULED ARE DESCRIBED BRIEFLY BY NAME IN BLOCK 9A OF YOUR FORM AS "AERIAL DELIVERY ITEMS.' PARAGRAPH 5B (3) (A) OF THE AMCR, RELATIVE TO "ITEMS SCHEDULED FOR EMERGENCY PRODUCTION (BACK OF FORM)," PROVIDES: "ENTER OFFICIAL NOMENCLATURE, STOCK NUMBER, PART NUMBER OF ADEQUATE DESCRIPTION OF THE ITEM TO BE SCHEDULED.' IN VIEW OF THE ABOVE REGULATION, ONLY THE ARTICLES IDENTIFIED BY FEDERAL STOCK NUMBER ON THE BACK OF THE FORM, AND FOR WHICH EMERGENCY PRODUCTION SCHEDULES ARE SPECIFIED, ARE ARTICLES FOR WHICH KINGS POINT MAY BE CONSIDERED A PLANNED EMERGENCY PRODUCER UNDER ITS AGREEMENT, AND BY NECESSARY IMPLICATION ARTICLES TO WHICH OTHER NUMBERS HAVE BEEN ASSIGNED ARE EXCLUDED FROM THE OPERATION OF THE "PLANNED PRODUCER" AGREEMENT.

FOR THE ABOVE REASONS WE MUST CONCLUDE THAT YOU ARE NOT A "PLANNED PRODUCER" FOR THE ITEMS PROCURED BY THE SOLICITATIONS IN QUESTION, WITHIN THE MEANING OF ASPR 1-706.1 (C) (II).

IN YOUR LETTER OF OCTOBER 30, 1967, TO THIS OFFICE, YOU ALSO OBJECT TO THE SMALL BUSINESS SIZE STANDARD OF 500 EMPLOYEES OR LESS APPLIED TO THE PROCUREMENTS IN QUESTION. IT IS YOUR VIEW THAT ,STANDARD INDUSTRIAL CLASSIFICATION (SIC) INDUSTRY NO. 3729, AIRCRAFT PARTS AND AUXILIARY EQUIPMENT, NOT ELSEWHERE CLASSIFIED," FOR WHICH THE APPLICABLE SIZE STANDARD IS 1000 EMPLOYEES, IS THE PROPER CLASSIFICATION FOR THE SLINGS PROCURED UNDER THE PRESENT SOLICITATIONS. HOWEVER, THE SMALL BUSINESS SIZE APPEALS BOARD HAS DETERMINED THAT SIC NO. 2399, FABRICATED TEXTILE PRODUCTS, NOT ELSEWHERE CLASSIFIED, FOR WHICH THE APPLICABLE SIZE STANDARD IS 500 EMPLOYEES, WAS APPLICABLE TO IFB DAAJ01-68-B-0115/J), AND PRESUMABLY WOULD BE APPLICABLE TO THE REST OF THE SLINGS PROCURED. UNDER SECTIONS 3 AND 8 (B) (6) OF THE SMALL BUSINESS ACT OF 1958, 15 U.S.C. 632 AND 637 (B) (6), RESPECTIVELY, THE SMALL BUSINESS ADMINISTRATOR, ACTING THROUGH HIS AGENTS IN THE SMALL BUSINESS ADMINISTRATION, IS EMPOWERED TO PRESCRIBE SMALL BUSINESS SIZE STANDARDS FOR VARIOUS INDUSTRIES AND TO DETERMINE WITHIN ANY INDUSTRY THE CONCERNS WHICH ARE TO BE DESIGNATED SMALL BUSINESS CONCERNS FOR THE PURPOSE OF GOVERNMENT PROCUREMENT. THESE DETERMINATIONS ARE BINDING ON THE PROCUREMENT OFFICIALS OF THE GOVERNMENT. IN VIEW OF THESE PROVISIONS OF LAW, THIS OFFICE ORDINARILY WILL NOT QUESTION A SIZE STANDARD FIXED BY THE SMALL BUSINESS ADMINISTRATION. 46 COMP. GEN. 102, 105; B-153108, FEBRUARY 5, 1964; 41 COMP. GEN. 649, 653. THE DETERMINATION OF WHAT SIZE STANDARD SHOULD BE APPLIED TO A PARTICULAR PROCUREMENT IS VESTED INITIALLY IN THE PROCURING AGENCY AND, UPON APPEAL, IN THE SBA, UNDER ITS POWER TO DETERMINE SIZE STANDARDS FOR GOVERNMENT PROCUREMENT. SEE FEDERAL PROCUREMENT REGULATIONS SECTIONS 1-1.703-2 (G) AND (H).