Anmed/Biosafe, Inc., No. 3836 (September 20, 1993)
Docket No. SIC-93-8-19-96





                    UNITED STATES OF AMERICA
                  SMALL BUSINESS ADMINISTRATION
                 OFFICE OF HEARINGS AND APPEALS
                        WASHINGTON, D.C.
SIC APPEAL OF:                )
                              )
Anmed/Biosafe, Inc.           )
                              )
     Appellant                )    Docket No.  SIC-93-8-19-96
                              )
Solicitation No.              )
DAMD17-93-R-0052              )
Department of the Army        )
Fort Detrick, Maryland        )

                             DIGEST

Where the bid opening date has been extended, the operative dates
for determining whether the ten-day or the five-day rule govern
ing the timeliness of a SIC code appeal applies are the solicita
tion's date of issuance and the extended bid opening date, and a
SIC code appeal filed after the particular deadline mandated must
be dismissed as untimely.

                            DECISION
                                
                       September 30, 1993

PHILLIPS, Administrative Judge, Presiding:

Jurisdiction

This appeal is resolved in accordance with the Small Business Act
of 1958, 15 U.S.C. 631 et seq., and the regulations codified at
13 CFR Part 121.

Issue

Whether the Standard Industrial Classification (SIC) code appeal
was timely filed.
Facts

On July 9, 1993, the captioned solicitation for "rodent disease
diagnostic laboratory support" was issued as a small business set
aside under SIC code 8734, "Testing Laboratories," to which a
$3.5 million average annual receipts size standard applies. The
original bid opening date of August 10, 1993, was subsequently
extended to August 24, 1993, by an amendment to the solicitation
issued on July 16, 1993. This amendment changed the SIC code to
SIC code 8731, "Commercial Physical and Biological Research," and
the size standard to 500 employees. After making an unsuccessful
request to the Contracting Officer to readopt the original SIC
code and size standard, Anmed/Biosafe, Inc. filed a challenge to
the 8731 SIC code with the Office of Hearings and Appeals on
August 11, 1993.

Discussion

The time limits set forth at 13 CFR 121.1705(b) governing SIC
code appeals provides as follows:

        (b)(l) Except as provided in paragraph (b)(2) of this
     section, an appeal from a SIC code designation must be filed
     with the Office of Hearings and Appeals no later than 10
     days (exclusive of Saturdays, Sundays, and legal holidays)
     before the bid opening day or deadline for submitting
     proposals or quotations as specified in the solicitation. If
     a solicitation is modified to extend the bid opening day or
     deadline for submitting proposals or quotations, the 10 day
     period for filing shall be from the date designated in the
     modification.
        
        (2)  Where the bid opening day or deadline for submitting
     proposals or quotations is less than 30 days after the issuance
     of the invitation for bids or request for proposals or
     quotations, the appeal must be filed with the Office of Hearings
     and Appeals no later than 5 days (exclusive of Saturdays,
     Sundays, and legal holidays) before the bid opening day or
     deadline for submitting proposals or quotations. If a
     solicitation is modified to extend the bid opening day or
     deadline for submitting proposals or quotations, the 5-day period
     for filing shall be from the date designated in the modification.
        
        (3) An untimely appeal of a SIC code designation will be
     dismissed.

Section 121.1702(c) of the regulations further provides that the
filing date will be determined by the postmark date, in this
case, August 11, 1993.

Since more than 30 days elapsed between July 9, 1993, the date
the solicitation was issued, and the extended bid opening date of
August 24, 1993, the ten-day rule applied and Anmed was required
to have filed its appeal no later than August 10, 1993. This
deadline cannot be waived, and Anmed's appeal must be dismissed
in consequence. See 13 CFR 121.1713(o).

Conclusion

The appeal is DISMISSED.

This constitutes the final decision of the Small Business
Administration. See 13 CFR 121.1720.


                         _______________________________________
                         Jane E. Phillips {Presiding)
                         Administrative Judge
                         
                         
                         _______________________________________
                         Elwin H. White (Concurring)
                         Administrative Judge
                         
                         
                         _______________________________________
                         G. Stephen Wright (Concurring)
                         Administrative Judge