Apex Environmental, Inc., No. 3851 (October 29, 1993) Docket No. SIC-93-8-30-100 UNITED STATES OF AMERICA SMALL BUSINESS ADMINISTRATION OFFICE OF HEARINGS AND APPEALS WASHINGTON, D.C. SIC APPEAL OF: ) ) Apex Environmental, Inc. ) ) Appellant ) ) Docket No. SIC-93-8-30-100 Solicitation No. ) RFP 263-93-P(GC)-0304 ) Department of Health and ) Human Services ) National Institutes of Health ) Rockville, Maryland ) DIGEST When an interim size standard for "Environmental Services," under Standard Industrial Classification (SIC) code 8744 has been judicially vacated and a procurement seeks technical and indus trial hygiene support, SIC code 8734, "Testing Laboratories," best describes the principal purpose of the services sought. DECISION October 29, 1993 WRIGHT, Administrative Judge, Presiding: Jurisdiction This appeal is decided under the Small Business Act of 1958, 15 U.S.C. 632 et seq., and the regulations codified at 13 CFR Part 121. Issue Whether the services sought should be classified under SIC code 1799, "Special Trade Contractors." Facts On August 12, 1993, the Department of Health and Human Services, National Institutes of Health (NIH), Rockville, Maryland, issued, and set aside for small business concerns, the instant solici tation for technical and industrial hygiene support to the NIH, Division of Safety, Occupational Safety and Health Branch under SIC code 1799, "Special Trade Contractors," which bears a size standard of $7.0 million in average annual receipts. The solicitation required the bids to be submitted by September 14, 1993. The present appeal was timely filed, pursuant to 13 CFR 121.1705, on August 30, 1993, by Apex Environmental, Inc. (Apex or Appellant). The work sought to be procured is described in Part I, Section B, of the solicitation, as follows: Independently, and not as an agent of the Government, the contractor shall furnish all necessary services, qualified personnel, materials, equipment, analytical support, transportation and supervision, not otherwise provided by the Government, necessary to provide technical, industrial hygiene support to the NIH Division of Safety, Occupational Safety and Health Branch. Industrial hygiene services shall include, but not be limited to, asbestos assessment surveys, asbestos abatement monitoring, indoor air quality studies, and general industrial hygiene surveys (emphasizing clinical and biomedical laboratory research and support services). The work statement further describes individual hygiene services which consist of certain surveys and studies. Asbestos Assessment Surveys include the physical location of all potential asbestos- containing materials within a space, sampling suspected materials, analysis of the asbestos type and content, labeling of engineering drawings to indicate locations of asbestos-containing materials, labeling of site materials with signs or color coded paint, and estimates of both exposure potential for each area found to contain asbestos, and the cost of abatement of the asbestos-containing materials. Asbestos Abatement Project Monitoring, conducted by both NIH personnel and contractors, includes use of "full enclosures, mini-enclosures, and glove bags." The on-site monitoring assures compliance with project specifications and includes air monitoring and its documented analysis, visual inspections, issuance of re-occupancy clearances following completion of abatement work, initiation of actions to stop work in the presence of health or safety risks, and the final determination "that all asbestos-containing materials scheduled to be removed actually were removed and that the asbestos waste was disposed of properly." Indoor Air Quality Studies include "[a]n assessment of indoor air quality and thermal comfort parameters by means of occupant questionnaires as well as measurements of temperature, relative humidity, carbon dioxide, carbon monoxide, volatile organic compounds, and/or bioaerosols. General Industrial Hygiene Surveys "involve evaluations of employee exposures to chemical, physical, radiological, and biological agents." Special Industrial Hygiene Studies include seminar, training or instruction programs regarding asbestos abatement, awareness, and management, evaluation of novel asbestos abatement techniques, and the development of data bases to manage the results of the foregoing monitoring and surveys. Appellant asserts that "SIC code 1799 is not the proper SIC code designation for this procurement since the work within SIC code 1799 bears no relationship to the work required in the Statement of Work. Apex, however, does not suggest in its appeal any other SIC code classification as appropriate to the instant Request For Proposals (RFP). The Contracting Officer, in her statement received in this Office on September 16, 1993, defends the selected SIC code as follows: Upon review, and with the assistance of the SADBUS [Small and Disadvantaged Business Utilization Specialist], offerors for related services were identified in the SBA PASS system. SIC code 1799 was the most common SIC code relevant to the offerors on the list provided to our office by the SADBUS. Therefore, it's [sic] selection seemed obvious. She further indicates that she had not assigned SIC code 8744, "Environmental Services," to this contract because of a court action judicially vacating it. */ Discussion Pursuant to the appeal before us, we must determine the appropriate SIC code which should be assigned to the present procurement. In that regard, 13 CFR 121.902(b) provides the following: The proper SIC code designation for the goods or services being procured is that which best describes the principal purpose of the procurement, giving primary consideration to the industry descriptions in the SIC Manual, the product or service descriptions in the solicitation and attachments thereto, the relative value an importance of each of the components in the procurement (if in fact there is more than one component which makes up the end item being procured) and the function of the goods or services being purchased. Consideration may also be given to previous Government procurement classifications of the same or similar products or services, additional information on the industries and on the product or service procured, and to evaluations on which industry classification would best serve the purposes of the Small Business Act. Generally, a procurement will be classified according to the component which accounts for the greatest percentage of the contract value. A contracting officer must have a good reason to classify a procurement in a way that is inconsistent with this general rule. The Standard Industrial Classification Manual describes SIC code 1799, "Special Trade Contractors, Not Elsewhere Classified," as "[s]pecial trade contractors primarily engaged in construction work, not elsewhere classified, such as construction of swimming pools and fences, erection and installation of ornamental metal work, house moving, shoring work, waterproofing, dampproofing, fireproofing, sandblasting, and steam cleaning of building exteriors." In light of the foregoing definition, we must agree with the position advocated by the Appellant. It is clear that the requirements under the procurement calling for "asbestos assessment surveys, asbestos abatement monitoring, indoor air quality surveys, and general industrial hygiene surveys" do not comport with the description of SIC code 1799 which requires primary engagement in construction work, not elsewhere classified under a special trade contractor. The Contracting Officer's claim that SIC code 1799 "was the most common SIC code relevant to offerors" responding to the Request For Proposals bears no relation to the selection of a code which best describes the principal purpose of the contract, as is required by 13 CFR 121.902(b). The best description of the principal purpose of the proposed procurement is found under SIC code 8734, "Testing Laboratories," which is defined as [e]stablishments primarily engaged in providing testing services. Establishments primarily engaged in performing clinical laboratory testing for the medical profession are classified in Industry 8071. Examples listed thereunder include the following: Assaying services Automobile proving and testing grounds Calibration and certification (testing) Dosimetry, radiation Film badge service (radiation detection) Food testing services Forensic laboratories Hydrostatic testing laboratories Laboratories, product testing: not manufacturing auxiliaries Metallurgical testing laboratories Pollution testing, except automotive emissions testing Product testing services Radiation dosimetry laboratories Radiographing welding joints on pipes and fittings Seed testing laboratories Testing laboratories, except clinical Veterinary testing laboratories X-ray inspection service, industrial Therefore, after examination of the various SIC codes which might be appropriate for this solicitation, we conclude that SIC code 8734 is applicable to the "technical and industrial hygiene support" sought in the present procurement. This conclusion is buttressed by our previous application of this SIC code to a solicitation calling for industrial hygienist services which included monitoring samples of a variety of health-hazardous conditions, similar to the instant solicitation. See SIC Appeal of Occupational Medical Center Inc., No. 2693 (1993). Accordingly, in the absence of the judicially vacated SIC code 8744, "Environmental Services," SIC code 8734, "Testing Laboratories"," best describes the principal purpose of the service sought in this procurement. Conclusion This solicitation is properly classified under SIC code 8734 and the $3.5 million average annual receipts size standard. The relief sought in this appeal is GRANTED, and the Contracting Officer's designation is REVERSED. This constitutes the final decision of the Small Business Administration. See 13 CFR 121.1720(b). ______________________________________ G. Stephen Wright (Presiding} Administrative Judge _______________________________________ Gloria E. Blazsik (Concurring) Administrative Judge ______________________________________ Elwin H. White (Concurring) Administrative Judge _______________ */ An injunction against the use of the interim size standard of $18.0 million in average annual receipts established by the Small Business Administration (SBA) for "Environmental Services" under Standard Industrial Classification (SIC) code 8744 was issued on June 23, 1993 by the U.S. District Court of Washington, D.C., and the Small Business Administration indicated, in the Federal Register published August 9, 1993, that [n]otice is hereby given that the interim size standard of $18.0 million in average annual receipts established by the Small Business Administration (SBA) for Environmental Services under Standard Industrial Classification (SIC) code 8744 has been judicially vacated.