R.M. Vredenburg & Co., No. 4220 (October 29, 1996)
Docket No. SIC-96-9-5-66


                    UNITED STATES OF AMERICA

                  SMALL BUSINESS ADMINISTRATION

                 OFFICE OF HEARINGS AND APPEALS

                        WASHINGTON, D.C.


_______________________________
                               )
SIC APPEAL OF:                 )
                               )
R.M. Vredenburg & Co.          )
                               )
     Appellant                 )  
                               )  Docket No. SIC-96-9-5-66
Solicitation No.               )
N00030-97-R-0033               )
Department of the Navy         )
Strategic Systems Programs     )
Arlington, Virginia            )
_______________________________)


                             DIGEST

An appeal is timely when filed within ten days of a material
amendment to the solicitation, even when the information in the
amendment, while not in the original solicitation, previously 
was included in the Commerce Business Daily notice of the
procurement.

The appropriate SIC code for a procurement of Acquisition Reform
support services is SIC code 8742, Management Consulting
Services. 

                            DECISION

                        October 29, 1996

HOLLEMAN, Administrative Judge:

                          Jurisdiction

     This appeal is decided under the Small Business Act,
15 U.S.C. Sections 631 et seq., and 13 C.F.R. Part 121.

                             Issues

     Whether an appeal is timely when filed within ten days of a
material amendment to the solicitation, even when the information
in the amendment, while not in the original solicitation,
previously was included in the Commerce Business Daily notice of
the procurement.

     Whether the appropriate Standard Industrial Classification
(SIC) code for a procurement of Acquisition Reform support
services is 8742, Management Consulting Services, or 8711,
Engineering Services.

                          I. BACKGROUND

                   A. Issuing the Solicitation

     On July 11, 1996, the Department of the Navy, Strategic
Systems Programs (SSP) published an announcement in the Commerce
Business Daily (CBD) that it would conduct a procurement for
Acquisition Reform support.  SSP is the Program Manager for
acquisition of the TRIDENT strategic weapons system.  The
announcement stated the procurement would be totally set aside
for small business.

     On August 6, 1996, R.M. Vredenburg & Co. (Appellant)
contacted SSP's Associate Director for Small Business to request
that the procurement's intended Standard Industrial
Classification (SIC) code be changed from 8742, Management
Consulting Services, to 8711, Engineering Services, Military and
Aerospace Equipment and Military Weapons.[1]  Appellant stated
that in other Navy contracts it was performing, which included
Acquisition Reform, the designated SIC code was 8711.  The
Associate Director responded that the SIC code would be chosen in
a manner consistent with the regulations.

     On August 13, 1996, SSP issued the subject solicitation for
Professional, Technical and Management Support Services for
Acquisition Reform.  The Contracting Officer (CO) assigned to the
procurement SIC code 8742, Management Consulting Services, with a
corresponding average annual receipts size standard of $5
million.  Solicitation, Section L, Para. 4, p. 61.  Proposals
were due on September 12, 1996.

     On August 14, 1996, Appellant received a copy of the
solicitation.  On September 3, 1996, the CO issued Amendment
0001, designating the procurement as a 100% small business set-
aside, and restating the designated SIC code for the procurement. 
Id., DD Form 1707; Section K, Para. 14.

                    B. The Statement of Work

     The solicitation's Statement of Work (SOW) requires the
contractor to provide professional, technical, and management
support services for SSP's Acquisition Reform efforts, as part of
the Department of Defense's Acquisition Reform efforts.  The
contractor will collect and analyze data on Acquisition Reform,
and make necessary recommendations to SSP.  The contractor will
analyze the effect of reform proposals on SSP's programs, and
develop detailed plans to assure SSP's compliance with required
changes.  The contractor will prepare analyses and presentations
for SSP officials, including papers SSP officials will present to
Department of Defense management.  The contractor also will
prepare courses on acquisition reform.  Id., Section C, pp. 4-10.

                          C. The Appeal

     On September 5, 1996, Appellant filed the instant appeal of
the SIC code designation, asserting the correct SIC code for this
procurement is 8711, Engineering Services, Military and Aerospace
Equipment and Military Weapons, with a corresponding average
annual receipts size standard of $20 million.

     On September 10, 1996, SSP forwarded a copy of the
solicitation to this Office.  On September 12, 1996, SSP filed a
Motion to Dismiss the instant appeal as untimely.

     On September 16, 1996, the Presiding Judge issued an Order
setting the close of the record for September 30, 1996, and
ordering both parties to address the issue of timeliness.  On
September 30, 1996, both parties filed responses.

                   D. Arguments of the Parties

      Appellant asserts its appeal was timely because 
only a party adversely affected by a SIC code designation 
has standing to bring an appeal.  Appellant was not adversely
affected until the CO published the amendment setting aside 
the procurement for small businesses.  Thus, because Appellant 
was no longer eligible to compete for the procurement after the
September 3rd amendment, its standing to appeal arose only after
that amendment.  Therefore, its time to appeal should be computed
from the amendment.

     SSP asserts Appellant knew the procurement was a small
business set-aside based on the CBD notice and its conversation
with the Associate Director.  SSP thus asserts Appellant's time
ran from the date of the solicitation, and, therefore, the
instant appeal is untimely.

     On the merits, Appellant asserts the contractor will have to
analyze thoroughly and understand the TRIDENT system, in order to
properly perform the required analyses, and only trained
engineers are capable of doing so.  Further, only trained
engineers can acquire the technical understanding of SSP's
programs required by the solicitation.  Appellant estimates
engineers must perform nearly two-thirds of the tasks required by
the solicitation.  Appellant further asserts it is performing in
other, similar Navy procurements, which are classified under the
8711 SIC code.  Appellant asserts the required work is quite
focused and highly technical, rather than the broad scope
contemplated in the description of SIC code 8742.

     In response, SSP asserts it is not procuring engineering
services, because the solicitation on its face seeks to procure
management support services for Acquisition Reform.  The SIC code
classification is correct, because management support services
are best classified as management consultant services. 

                         II. DISCUSSION

                          A. Timeliness

     The first issue is whether Appellant timely filed the
instant appeal.  The Small Business Administration has revised
its size, SIC and procedural regulations, effective March 1,
1996.  See 13 C.F.R. Parts 121 and 134 (1996).  Under the
previous regulations, the deadline for SIC appeals was ten
business days prior to bid opening when the bid opening was 30
days or more after issuance of the solicitation, and five
business days if bid opening was less than 30 days after issuance
of the solicitation.  Any amendment to the solicitation extending
bid opening extended the deadline.  13 C.F.R. Section 121.1705(b)
(1995).

     Since the instant solicitation was issued subsequent to the
effective date of the new regulations, they apply here.  Under
the new regulations a SIC appeal must be filed within ten days
after issuance of the initial solicitation.  13 C.F.R. 
Section 134.304(a)(3) (1996).  The Presiding Judge notes that
Appellant filed this appeal after that time had expired.

     However, this Office has long held that amendments to the
solicitation which affect the SIC code designation or assigned
size standard may alter the deadline for filing an appeal.  SIC
Appeal of Engineering Spectrum, Inc., No. 3899 (1994); SIC Appeal
of Industrial Maintenance Service, No. 2044 (1984).  Nothing in
the language of the new regulations or the accompanying Federal
Register commentary provides any basis for changing this long-
standing rule.  The only commentary on the change explains that
the new rule is easier to apply.[2]  Appellant filed within ten
days of the issuance of the amendment setting the procurement
aside for small business.  Because the amendment changed the
solicitation's size standard, this appeal is timely.
 
     SSP's argument that the CBD notice constituted notice to
Appellant of the set-aside well before the amendment is without
merit.  A CBD notice does not contain all of a procurement's
requirements; it merely announces a pending procurement, and must
be published for all procurements above the small purchase
threshold.  15 U.S.C. Section 637(e).  

     The solicitation, rather than the CBD notice, formally
communicates the government's requirements, the terms and
conditions of the procurement, and contains the information
necessary for offerors to prepare their proposals.  Federal
Acquisition Regulation (FAR) Section 15.402(a).  This Office
previously has recognized the primacy of the solicitation,
holding that a CBD announcement is not a SIC code designation. 
It will dismiss an appeal based upon a CBD notice, since only a
solicitation can definitively designate a SIC code.  SIC Appeal
of Management Systems Applications, Inc., No. 3609 (1992); SIC
Appeal of Dickshire Distributing, No. 3597 (1992).

     The fact that the CO designated the SIC code in the August
13th solicitation is not dispositive, because the solicitation
did not identify the procurement as a set-aside for small
business.[3]  It is only the combination of the SIC code, 
together with the subsequent designation as a small business 
set-aside in the amendment, which adversely affects Appellant. 
It limited the offerors to those firms which meet the size
standard.  As urged by Appellant, its standing to appeal arose
only at that point.  See SIC Appeal of Sonicraft, Inc., No. 3864
(1993).

     In fact, if Appellant had attempted to file an appeal within
ten days of the CBD notice, this Office likely would have
dismissed it.  SSP's argument would create an anomaly: Appellant
would be untimely because it appealed only after SSP amended the
solicitation to include the provisions to which Appellant
objected.  The Presiding Judge concludes that designations of a
procurement as set aside for small business, as well as SIC code
designations, in a CBD notice alone do not provide grounds for
appeal.  Because Appellant was adversely affected only after SSP
amended the solicitation, its appeal, filed within ten days of
the amendment, is timely.

                     B. The Correct SIC Code

     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.  See 13 C.F.R. Section 121.402(b);
SIC Appeal of Jack Faucett Associates, No. 4071 at 3 (1995).  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.

     In a SIC appeal, the 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).

     SIC code 8711, urged by Appellant, applies to
"Establishments primarily engaged in providing professional
engineering services."  SIC Manual, p. 401.  The designated SIC
code, 8742, applies to "Establishments primarily engaged in
furnishing operating counsel and assistance to managements". 
Id., p. 403.

     It is clear that SSP here does not seek to procure
professional engineering services.  Although SSP's mission
involves a sophisticated strategic weapons system, this
procurement is not directly involved with the operation of that
system.  Rather, SSP seeks assistance in revising its procurement
procedures consistent with recent statutory, regulatory, and
policy changes without adverse affect on its mission.  When the
work required by the contract is not engineering, but procurement
reform, engineers are not necessary to teach classes, prepare
presentations, or write position papers.

     Thus, this procurement actually is for the services of
consultants experienced in procurement procedures, although it
supports an activity engaged in sophisticated engineering work. 
A SIC code designation must describe the actual products or
services the government is procuring, and not the activities the
procurement is supporting.  SIC Appeal of Distributed Information
Systems, Inc., No. 4189 (1996).  The services sought here are
clearly those of management consultants, and the SIC code
designation is correct.

                         III. CONCLUSION

     This Office can find no clear error of fact or law in the
CO's SIC code designation, and thus Appellant has failed to meet
its burden of proof.  Accordingly, the correct SIC code for this
procurement is 8742, Management Consulting Services, and the
Contracting Officer's SIC code determination is AFFIRMED.    

     This constitutes the final decision of the Small Business
Administration.  See 13 C.F.R. Section 134.316(b).



                              _______________________________
                              Christopher Holleman
                              Administrative Judge


____________________
 [1] The record does not reflect how Appellant learned of the
anticipated SIC code. 

 [2] See 61 Fed. Reg. 2682 (January 29, 1996); 60 Fed. Reg. 58282
(November 27, 1995).

 [3] The Presiding Judge notes that all solicitations above the
small purchase threshold must include a SIC code designation. 
FAR Section 19.303(a).

 [4] Standard Industrial Classification Manual, Office of        
Management and Budget, 1987 edition.