Information Ventures, Inc., No. 4259 (August 5, 1997). Docket No. SIC-97-7-17-23 UNITED STATES OF AMERICA SMALL BUSINESS ADMINISTRATION OFFICE OF HEARINGS AND APPEALS WASHINGTON, D.C ___________________________________ ) SIC APPEAL OF: ) ) Information Ventures, Inc. ) ) Docket No. SIC-97-7-17-23 Appellant ) ) Decided: August 5, 1997 Solicitation No. ) NIH-ES-97-24 ) National Institute of Environmental) Health Sciences ) Research Triangle Park ) North Carolina ) ___________________________________) APPEARANCES Bruce H. Kleinstein for Appellant DIGEST A solicitation which requires the successful contractor to provide a broad range of support services in connection with the establishment of a Center for the assessment of human reproductive health risks, but no research, is properly classified under Standard Industrial Classification (SIC) code 9999 (Nonclassifiable Establishments), with a $5 million average annual receipts size standard, and not under SIC code 8731 (Commercial Physical and Biological Research), with a 500-employee size standard, as classified by the Contracting Officer. DECISION BLAZSIK, Administrative Judge: Jurisdiction This appeal is decided under the Small Business Act of 1958, 15 U.S.C. Sections 631 et seq., and 13 C.F.R. Parts 121 and 134 (1996). Issue Whether a solicitation that requires the successful offeror to provide a broad range of support services in connection with the establishment of a Center for the assessment of human reproductive health risks, but no research, is properly classified under Standard Industrial Classification (SIC) code 9999, or under SIC code 8731, as classified by the Contracting Officer. Facts On July 14, 1997, the Contracting Officer for the National Institute of Environmental Health Sciences (NIEHS), Research Contract Branch, Research Triangle Park, North Carolina, issued this negotiated small business set-aside procurement for a Center for the assessment of human reproductive health risks. He classified it under Standard Industrial Classification (SIC) code 8731 (Commercial Physical and Biological Research), which has a 500-employee size standard. Initial proposals are due on August 29, 1997. Statement of Work The purpose of the procurement is to establish a Center for the assessment of reproductive health risks, which ultimately will develop into an independent organization. The operation of the Center will involve the Center staff, a Project Officer, and committees composed of contract, government, and non-government members. There will be an Oversight Committee made up of the Project Officer, NIEHS experts in reproductive toxicology, and representatives of the Federal government and the public; a Core Committee consisting of two senior scientists, the Project Officer, and three outside experts not associated with the Center; and Expert Panels consisting of 10-15 scientific experts in the field of reproductive toxicology. The contractor will perform the following specific tasks: Identify and select experts to conduct the assessments, and establish a directory of these experts; collect, analyze, and summarize relevant scientific literature for the Core Committee's review, and establish and maintain databases; send papers, list of references, and meeting agendas to Expert Panel members; coordinate convening of the Expert Panel's meetings and monitor meetings; incorporate the Expert Panel's draft reports into a final report in draft monograph form, and send the draft to the Expert Panel members for review and approval; and establish an Internet Website for the Reproductive Toxicology Center to serve the information needs of the general public. The procurement requires the contractor to provide the following types of personnel: a Senior Toxicologist, to work with the Project Officer; a Toxicologist, to assist the Senior Toxicologist; a Management Coordinator, to help in the organization and coordination of the Center's meetings, manage the purchase of supplies and equipment, and oversee general accounting matters; an Information Specialist, to generally assist the Center's staff; and a Computer Specialist, to work with the Information Specialist to establish the directory of experts, a reference database, and assist staff in computer-based communication and Website updates. The Appeal On July 17, 1997, Information Ventures, Inc. (Appellant) telefaxed an appeal to this Office from the Contracting Officer's classification of this procurement under SIC code 8731. Appellant asserts the procurement does not involve commercial physical or biological research but, rather, involves numerous and varied support services to study reproductive health risks. The services include, but are not limited to establishing a registry and a Center of experts; organizing and holding conferences; creating an Internet Website; and preparing for publication and distribution reports generated by the center's members. Finally, Appellant asserts, because the SIC category, Division I-Services, does not contain any SIC codes that clearly encompass the services required by this procurement, Appellant asserts the appropriate classification is SIC code 9999 (Nonclassifiable Establishments), with a $5 million average annual receipts size standard. See 13 C.F.R. Section 121.201. The Contracting Officer did not file a response to the appeal. Discussion Because Appellant filed this appeal within ten calendar days of the issuance of the procurement, the appeal is timely. 13 C.F.R. Section 134.304(a)(3). In a SIC appeal, Appellant has the burden of proof, by a preponderance of the evidence, to show error in the Contracting Officer's SIC code designation. SIC Appeal of The Scientific Consulting Group, Inc., No. 4186 (1996). Here, the Contracting Officer selected SIC code 8731. As described in the SIC Manual,* this industry includes- establishments primarily engaged in commercial physical and biological research and development on a contract or fee basis.... The description of this SIC code lists, among others, the following types of research: agricultural research; biological research; chemical laboratories; engineering laboratories; and research and development, physical and biological: commercial. Footnote 10 to SIC code 8731 further clarifies the description. It states: (1) Research and Development means laboratory or other physical research and development. It does not include economic, educational, engineering, operations, systems, or other nonphysical research; or computer programming data processing, commercial and/or medical laboratory testing. (2) For purposes of the Small Business Innovative Research program only, a different definition has been established by law.... (3) Research and development for guided missiles and space vehicles includes evaluations and simulation, and other services requiring thorough knowledge of complete missiles and spacecraft. 13 C.F.R. Section 121.201. The Presiding Judge's examination of the Statement of Work shows the enumerated tasks do not encompass commercial physical and biological research, as those terms are defined in the SIC Manual (including the specific examples noted there and in footnote 10). In fact, the procurement does not contemplate that the successful contractor will engage in any commercial physical or biological research. Rather, the procurement requires a broad range of support services needed to establish and maintain a research Center. These include, but are not limited to, managing the Center; establishing computer capability for the Center's work; and the publication and dissemination of the Center's work product to a wide audience. The Statement of Work here requires different types of work than in previous cases involving SIC code 8731, where this Office has limited the application of SIC code 8731 to those procurements whose primary activity is scientific research, rather than the support services described here. See, for example, SIC Appeal of Engineering Spectrum Incorporated, No. 3899 (1994), (development and testing of biological systems for military aricraft missions, including the design and testing of research instruments and equipment, and laboratory testing of systems and subsystems); SIC Appeal of Judith A. Watts, No. 3807 (1993), (research, testing, simulation, data-gathering, software and hardware development, design and analysis for space flight propulsion systems); SIC Appeal of Malcolm Thomas Industries, Inc., No. 3667 (1992), (research and testing of aerospace and guided missile systems); SIC Appeal of DynCorp., No. 3274 (1990) (research, development, and testing of a missile systems). Accordingly, the Presiding Judge agrees with Appellant that the Contracting Officer improperly selected SIC code 8731 here, because the procurement services does not involve research. The Presiding Judge also agrees there is no specific SIC code classification that corresponds to the varied services required by this procurement, as enumerated under the applicable category, Division I-Services. Therefore, the Presiding Judge concludes, consistent with the express provision of 13 C.F.R. Section 121.201, that the most appropriate classification for this procurement is SIC code 9999 (Nonclassifiable Establishments), with a $5 million average annual receipts size standard. Conclusion The correct SIC code for this procurement is SIC code 9999. The Contracting Officer's designation is REVERSED, and the appeal is GRANTED. This is the Small Business Administration's final decision. See 13 C.F.R. Section 134.316(b). ______________________________ GLORIA E. BLAZSIK Administrative Judge _______________________________ * Standard Industrial Classification Manual, 1987 Edition, Office of Management and Budget. Posted: August, 1997