NOVA Research Company, No. 4290 (February 11, 1998). Docket No. SIC-97-12-29-53 UNITED STATES OF AMERICA SMALL BUSINESS ADMINISTRATION OFFICE OF HEARINGS AND APPEALS WASHINGTON, D.C. ______________________________ ) SIC APPEALS OF: ) ) NOVA Research Company ) Docket Nos. SIC-97-12-29-53 Palladian Partners, Inc. ) SIC-97-12-29-54 Information Ventures, Inc. ) SIC-97-12-29-55 Matthews Media Group ) SIC-98-1-2-1 ) Appellants ) Decided: February 11, 1998 ) Solicitation No. ) 98-A-013(N) ) Centers for Disease Control ) and Prevention ) Atlanta, Georgia ) ______________________________) APPEARANCES Peggy L. Young for NOVA Research Company Cate Timmerman for Palladian Partners, Inc. Bruce H. Kleinstein for Information Ventures, Inc. Beatrice Woolman for Matthews Media Group all for Appellants DIGEST A procurement to publish pamphlets and provide general support for the procuring agency in communicating information on health problems to the public, other Federal agencies, and health providers, which requires editing, publishing, research, translating, and inputting the finished pamphlets onto the Internet, is properly classified under Standard Industrial Classification (SIC) code 2741 (Miscellaneous Publishing), with a 500-employee size standard, rather than SIC code 8741 (Management Services), or SIC code 9999 (Nonclassifiable Establishments), both with a $5 million average annual receipts size standard. DECISION BLAZSIK, Administrative Judge: Jurisdiction These appeals are 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 (1997). Issue Whether a procurement to publish pamphlets and provide general support for the procuring agency in communicating information on health problems to the public, Federal agencies, and health providers, which requires editing, publishing, research, translating, and inputting the finished pamphlets onto the Internet, is properly classified under SIC code 2741, 8741, or 9999. Background [1] On December 17, 1997, the Contracting Officer for the Center for Disease Control and Prevention (CDC), Department of Health and Human Services, Atlanta, Georgia, issued this small business set-aside procurement to develop, write, and edit publications on chronic disease prevention. Originally, the Contracting Officer classified it under Standard Industrial Classification (SIC) code 8741 (Management Services), with a $5 million average annual receipts size standard. On December 17, 1997, she issued amendment No. 1, changing the SIC code to 2741 (Miscellaneous Publishing), with a 500-employee size standard. Opening bids are due on February 17, 1998. NOVA Research Company (NOVA) filed an appeal in Docket No. SIC-97-12-19-53, by facsimile transmission, dated December 24, 1997. NOVA asserts the Contracting Officer incorrectly classified the procurement, and the appropriate SIC code is SIC code 8741 (Management Services), with a $5 million average annual receipts size standard. Palladian Partners, Inc (Palladian) filled an appeal in Docket No. SIC-97-12-29-54 by facsimile transmission, dated December 26, 1997. It also asserts the appropriate SIC classification is SIC code 8741. Information Ventures, Inc. (Information Ventures) filed an appeal in Docket No. SIC-97-12-29-55, also by facsimile transmission dated December 26, 1997. It asserts the appropriate SIC classification is SIC code 9999 (Nonclassifiable Establishments), with a $5 million average annual receipts size standard. Finally, Matthews Media Group (Matthews) filed an appeal in Docket No. SIC-98-1-2-1, by letter postmarked December 31, 1997. It also asserts the appropriate SIC classification is SIC code 8741. On January 15, 1998, the Contracting Officer filed a response to the appeal. Statement of Work The procuring agency seeks a contractor to publish pamphlets and provide general support for the procuring agency in communicating information on health problems to the public, other Federal agencies, and health providers. The successful contractor will perform the following specific tasks: (1) technical editing, co-editing, and proofreading scientific and technical manuscripts and publications; (2) writing and developing professional, consumer, and special population publications, including newsletters, consumer materials (brochures), conference proceedings, speeches, and scientific and technical publications; (3) indexing for special monographs; (4) locating, acquiring, and verifying references; (5) developing and preparing graphics, art work, and visual aids for publications and presentations; (6) developing and preparing nonprint materials (videos, scripts); (7) translating materials into other languages; (8) coordinating and writing publication clearances requests; (9) transcribing meetings; and (10) developing and preparing materials for the Internet. More specifically, this contract provides for the continuous production of publications and other communication materials for scientific, medical, educational, technical, and behavioral science uses. Arguments on Appeal Appellant NOVA asserts the Contracting Officer should reclassify the procurement under SIC code 8741. NOVA has performed similar scientific and medical writing, editing, and communications services in the past 10 years for CDC, which CDC traditionally has classified under SIC code 8741. Appellant Palladian asserts SIC code 8741 is applicable because the instant procurement seeks a wide range of general and specialized managerial services, such as technical editing of manuscripts, copy-editing, proofreading, translation, and transcription of meetings. In contrast, SIC code 2741 does not do so, because it is under the manufacturing division of services, and refers to printing, publishing, and allied components of manufacturing services. Appellant Information Ventures asserts the appropriate SIC code is SIC code 9999 (Nonclassifiable Establishment), because the work required is not encompassed by any other identifiable SIC code. In addition, Information Ventures asserts the designated SIC code, 2741, is under Division D-Manufacturing, and the Statement of Work does not require services required by 2741, specifically publishing or printing. Rather, the procurement requires a broad range of support services for "publication and other communication activities...." Appellant Matthews asserts the Statement of Work shows SIC code 8741 is appropriate because the procurement does not require publishing or printing services. Matthews emphasizes the procurement is a professional services contract requiring writers, editors, proofreaders, and graphic artists, who will provide general and specialized services in preparing materials for publishing. The Contracting Officer's response states she issued Amendment No. 1, changing the original 8741 classification to 2741, only because of the SBA's recommendation. She asserts the appropriate classification is 8741 because the procuring agency designated this SIC code for previous procurements for these services, and it seeks a wide range of professional services that "may lead to publishing and printing, but are not specific tasks cited in the [procurement]." [2] Discussion The applicable regulation requires that a SIC appeal be filed within 10 days after the issuance of the initial proposals. 13 C.F.R. Section 134.304(a)(3). A day is defined as a calendar day. 13 C.F.R. Section 134.101. The day from which the time period is computed is excluded, but the last business day is counted, excluding Saturday, Sunday, or a Federal holiday. 13 C.F.R. Section 134.103(a). Here, because December 25th and December 26th were Federal holidays, and December 27th and December 28th were a Saturday and Sunday, the last day for timely service was December 31, 1997. NOVA, Palladian, and Information Ventures sent their appeals by facsimile transmission on December 24th and 26th; and Matthews mailed its appeal, which was postmarked December 31, 1997 [3] Accordingly, all four Appellants timely filed their appeals. In a SIC appeal, an appellant has the burden of proving, by a preponderance of the evidence, error in the Contracting Officer's SIC code designation. SIC Appeal of the Scientific Consulting Group, Inc., No. 4186 (1996). The correct SIC code for a procurement is that which best describes the principal purpose of the services being procured, in light of the industry description in the SIC Manual, [4] the description in the solicitation, and the relative weight of each element of the solicitation. SIC Appeal of Mobile Steam Boiler Rental Corp., No. 4208 (1996); 13 C.F.R. Section 121.402(b). The standard of review is whether the SIC code designation is based on a clear error of fact or law. 13 C.F.R. Section 134.314; SIC Appeal of Information Ventures, Inc., No. 4266 (1997). SIC code 8741, urged by NOVA, Palladian, and Matthews, is described in the SIC Manual as follows: Establishments primarily engaged in furnishing general or specialized management services on a day to day basis.... Examples listed under this description include administrative management services, business management service, construction management, motel management services, and office management services. SIC code 9999, urged by Information Ventures, is a catch-all SIC code for nonclassifiable establishments. 13 C.F.R. Section 121.201. SIC code 2741, selected by the Contracting Officer, is described in the SIC Manual as- Establishments primarily engaged in miscellaneous publishing activities, not elsewhere classified, whether or not engaged in printing. The activities listed under this description include business service newsletters; catalogs: publishing and printing, or publishing only; directories: publishing and printing, or publishing only; multimedia educational kits: publishing and printing, or publishing only; technical manuals and papers: publishing and printing, or publishing only. The Administrative Judge finds that OHA's case law does not support the designation of SIC code 8741, urged by NOVA, Palladian, and Matthews. OHA has designated that SIC code classification only where the predominant nature of the services sought is for management support and assistance, for example, property management services. SIC Appeal of I.T.S. Corporation, No. 3521 (1991). Here, the procurement does not seek any type of management services but, rather, a wide range of professional services involving the preparation of documents on health issues for dissemination to numerous groups. The Administrative Judge also finds OHA case law does not support the designation of SIC code 9999, urged by Information Ventures. This Office has designated that SIC code classification only when no other classification precisely fits the services sought. For example, OHA has found SIC code 9999 appropriate where a procurement required the successful contractor to provide a broad range of support services, in human reproductive health risks, but no research, to a research center. SIC Appeal of Information Ventures, Inc., No. 4259 (1997). This is not the situation here. Furthermore, the Contracting Officer's assertion that the procuring agency applied SIC code 8741 in the past for identical services, has no merit. SIC code 8741 is not the correct classification and, its erroneous or inappropriate use should not be perpetuated. Upon a careful review of the Statement of Work and the case precedent, the Administrative Judge concludes SIC code 2741, most recently designated by the Contracting Officer, is the appropriate classification. The procurement requires a series of professional services, in addition to editing and proofreading. These include knowledge of -- the scientific research process; foreign languages for translation of the pamphlets into other languages; graphic arts; and computer technology to input the pamphlets on the Internet. Thus, the successful contractor must have a wide range of specialized skills. SIC code 2741 is the most appropriate here also because it best comports with the SIC Manual descriptions. Among the SIC Manual examples are "technical manuals and papers: publishing and printing, or publishing only." In SIC Appeal of Cygnus Corporation, No. 3575 (1991), OHA concluded SIC code 2741 was appropriate for a procurement seeking "publishing support" for a government research effort, which included editing, academic research, organizing conferences, and publishing. Similarly, OHA concluded SIC code 2741 was appropriate for a procurement for technical manuals and supporting materials, for use in teaching personnel about military weapons. SIC Appeal of Advanced Systems International, Inc., No 3448 (1991). Since the instant procurement ultimately requires publication of pamphlets, requiring a series of complex tasks in preparation, SIC code 2741 is the most appropriate classification. Conclusion The appropriate SIC code for this procurement is the one now assigned, 2741 (Miscellaneous Publishing), with a 500-employee size standard. Appellants' appeals are DENIED, and the Contracting Officer's designation is AFFIRMED. This is the Small Business Administration's final decision. 13 C.F.R. Section 134.316(b). ______________________________ GLORIA E. BLAZSIK Administrative Judge _________________________ [1] Because the four appeals involve the same solicitation and, therefore, the same issues, the Administrative Judge consolidated the appeals for administrative convenience. [2] The basis for the Contracting Officer's action is unclear. If she believed SIC code 8741 is appropriate, she should have retained that classification. SBA's recommendation is purely advisory, and only OHA decisions on appeal are binding. [3] Date of service when the appeal is filed by facsimile transmission is the date of transmission (13 C.F.R. Section 134.204(e)(1)); and, when filed by first-class mail, the postmark date. 13 C.F.R. Section 134.204(e)(2). [4] Standard Industrial Classification Manual, Office of Management and Budget, 1987 edition. Posted: May, 1998