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.