Advanced Systems Technology Incorporated, No. 4667 (November 23, 2004) Docket No. SIZ-2004-11-12-72 UNITED STATES OF AMERICA SMALL BUSINESS ADMINISTRATION OFFICE OF HEARINGS AND APPEALS WASHINGTON, D.C. ) NAICS APPEAL OF: ) ) Advanced Systems Technology ) Incorporated ) Docket No. SIZ-2004-11-12-72 ) Appellant ) Decided: November 23, 2004 ) Solicitation No.W9124Q-AATEA ) Department of the Army ) White Sands Missile Range ) Directorate of Contracting ) White Sands Missile Range, New ) Mexico ORDER DISMISSING APPEAL AS PREMATURE [1] I. BACKGROUND [2] On November 3, 2004, the Department of the Army, White Sands Missile Range Directorate of Contracting, in New Mexico (the Army), posted a Presolicitation Notice on FedBizOpps stating, "We intend to issue a competitive, 100 percent small business set- aside solicitation under negotiated best value procedures using the advisory multi-step procedures at FAR 15.202, . . . ." The Presolicitation Notice, which contained no Statement of Work, noted that the contractor would provide support to all areas of the Training and Doctrine Command Analysis Center, and cited North American Industry Classification System (NAICS) code 541710 (Research and Development in the Physical, Engineering, and Life Sciences), which has a small business size standard of 500 employees. Responses for this first phase of the multi-step selection and award process are due on November 30, 2004. From these responses, the Army will select the "most viable candidates," who will then receive the solicitation. On November 4, 2004, the contracting activity posted Modification 01 to the Presolicitaton Notice, which changed the NAICS code to 541330 (Engineering Services, Military and Aerospace Equipment and Military Weapons), which has a $23 million annual receipts size standard. The Army has also issued two additional modifications, which made other changes and answered questions. On November 12, 2004, Advanced Systems Technology Incorporated (Appellant) filed the instant NAICS code appeal with this Office. Appellant asserts the correct NAICS code is 541710, the code the Army originally cited in its November 3rd Presolicitation Notice. On November 17, 2004, the Army filed its substantive response to the appeal. The Army asserts that the correct NAICS code is 541330, and that the instant appeal should be denied. On November 19th, the Army filed a corrected response to the appeal. II. DISCUSSION A NAICS code appeal must be filed within 10 calendar days after the issuance of the initial solicitation. 13 C.F.R. Sections 121.1103(b)(1), 134.304(a)(3); 48 C.F.R. Section 19.303(c)(1). This Office "will summarily dismiss an untimely NAICS code appeal." Id. This Office has held that publication of a CBD notice of a solicitation does not constitute a NAICS code designation within the meaning of the jurisdictional provisions of 13 C.F.R. Section 134.102(k) or the timeliness requirements of 13 C.F.R. Section 134.304(a)(3); and therefore must be dismissed as premature. NAICS Appeal of Communication Technologies, Inc., SBA No. NAICS-4424 (2001). Because FedBizOpps has replaced the CBD, the Administrative Judge concludes this precedent should continue to apply to Presolicitation Notices posted on FedBizOpps. Mere publication of a notice does not guarantee either that the procuring agency will issue a solicitation or that the Contracting Officer will assign the NAICS code anticipated in the notice. See Communication Technologies. This Office's NAICS code appeal jurisdiction extends only to the issuance of solicitations, which by its terms does not include Presolicitation Notices such as the Notice at issue here. 13 C.F.R. Section 134.102(k); 48 C.F.R. Section 19.303(c). Further, this Presolicitation Notice lacks a complete Statement of Work, essential to the adjudication of a size determination. See NAICS Appeal of Durodyne, Inc., SBA No. NAICS-4536, at 4 (2003); 13 C.F.R. Section 121.402(b). Absent a formally issued solicitation, this appeal is premature, and this Office has no jurisdiction to consider it. Thus, the Administrative Judge must dismiss this premature appeal. This dismissal is without prejudice because the Notice does not require that firms responding certify their small business status. This does not preclude Appellant from submitting a response to the Presolicitation Notice. Further, this dismissal does not preclude Appellant from filing a NAICS code appeal once the Army issues the solicitation itself. III. CONCLUSION The Administrative Judge DISMISSES WITHOUT PREJUDICE the instant NAICS appeal. This is the final decision of the Small Business Administration. See 13 C.F.R. Section 134.316(b). CHRISTOPHER HOLLEMAN Administrative Judge 1 This appeal is decided under the Small Business Act of 1958, 15 U.S.C. Section 631 et seq., and 13 C.F.R. Parts 121 and 134. 2 The Small Business Administration (SBA) has revised its regulations governing the small business size determination program and its regulations governing NAICS appeals. 69 Fed. Reg. 29192 (May 21, 2004). Posted: November, 2004