Analytics, No. 3380 (November 30, 1990)
Docket No. SIC-90-11-14-137



                    UNITED STATES OF AMERICA

                  SMALL BUSINESS ADMINISTRATION

                 OFFICE OF HEARINGS AND APPEALS

                     WASHINGTON, D.C. 20416


SIC APPEAL OF:                )
                              )
Analytics                     )
                              )
     Appellant                )
                              )
Solicitation No.              )Docket No.SIC-90-11-14-137
DAAA15-90-R-1072              )
Department of the Army        )
Armament, Munitions and       )
Chemical Command              )
Aberdeen Proving Grounds,     )
Maryland                      )

                             DIGEST

A previous decision determining the correct SIC code for a
particular solicitation is controlling in a later-filed appeal by
another appellant regarding the same solicitation.

                            DECISION
                                
                        November 30, 1990

PHILLIPS, Administrative Judge, Presiding:

Jurisdiction

This appeal is resolved pursuant to the provisions of the Small
Business Act of 1958, 15 U.S.C. 631 et seg., and the regulations
codified at 13 CFR Part 121.

Issue

Whether our decision in a previous case controls the outcome of
this appeal.

Facts

On September 18, 1990, the Department of the Army, Armament,
Munitions and Chemical Command, Aberdeen Proving Grounds,
Maryland, issued the above-referenced solicitation (RFP) for
independent validation and verification support for fielded
software contained in chemical and biological items and systems.
The solicitation was a total small business set-aside, with a
size standard of 500 employees or less under Standard Industrial
Classification (SIC) code 8731 (Other Commercial Physical and
Biological Research). The due date for proposals was November 2,
1990.

On September 27, 1990, The MIL Corporation (MIL) filed a timely
appeal of the Contracting Officer's SIC code designation
contending that the proper SIC code is 7371 (Computer Programming
Services), with a size standard of $7.0 million or less in
average annual receipts. By letter dated October 4, 1990, the
Contracting Officer conceded that SIC code 8731 may not be
appropriate for this solicitation. However, the Contracting
Officer strongly disagreed with MIL's argument in support of SIC
code 7371 and requested that this Office consider reclassifying
the solicitation under SIC code 8711 (Engineering Services:
Military and Aerospace Equipment and Military Weapons), with a
size standard of $13.5 million or less in average annual
receipts. In the alternative, he also suggested SIC code 7379
(Computer Related Services, N.E.C.), with a size standard of
$12.5 million or less in average annual receipts.

This Office considered MIL's arguments and those of the
Contracting Officer as well as the Statement of Work in the
solicitation and concluded that the solicitation should have been
classified under SIC code 7371, Computer Programming Services, to
which a $7 million average annual receipts size standard applies.
SIC Appeal of The MIL Corporation, No. 3364. That decision was
issued on October 18, 1990, and on October 20, 1990, the
Contracting Officer amended the solicitation by changing the SIC
code to 7371 and extending the due date for proposals to November
13, 1990.

On October 26, 1990, DCS Corporation filed a SIC appeal,
contending that SIC code 8731 had been the proper classification
for the solicitation. On November 6, 1990, a second SIC appeal
was filed by ENSCO, Inc. also requesting that SIC code 8731 be
restored. Those appeals were denied in SIC ApPeals of DCS
Corporation and ENSCO, Inc., No. 3371, issued on November 14,
1990.

On November 13, 1990, Analytics filed a third appeal, which is
the subject of this proceeding, requesting that SIC code 8731 and
the 500-employee size standard be restored.

Discussion

This appeal presents issues identical to those raised in SIC
Appeals of DCS Corporation and ENSCO. Inc., supra. There we
stated that, in deciding a SIC appeal the Office of Hearings and
Appeals considers not only those SIC codes advocated by the
Contracting Officer and the Appellant but also any other SIC
codes that it deems, sua sponte, to be arguably appropriate to
the solicitation. We noted that such a methodology, in which the
scope of the inquiry is not limited to the pleadings, is
consonant with the Agency's responsibility to ensure that, where
the issue of classification is raised, the most appropriate SIC
code is selected. We stated that, as a consequence, we have
previously held that "when the proper size standard for a
procurement has already been decided in a prior appeal, the prior
decision is controlling, and the issue need not be decided
again," citing SIC Appeal of Crawford Technical Services, No.
3156 (1989) and SIC Appeal of Peco Enterprises. Inc., No. 2952
(1988).

In rendering their decision on October 18, 1990, the panel of
judges considered all of the arguments adduced by MIL and by the
Contracting Officer, including the putative applicability of four
different SIC code classifications, and determined that SIC code
8731 was inappropriate and that SIC code 7371 best describes
those activities identified in the Statement of Work. Analytics
has adduced no evidence or argument to alter that decision.
Therefore, it will not be disturbed.

Conclusion

The correct SIC code and size standard for this solicitation are
as set forth in SIC Appeal of The MIL Corporation, No. 3364,
issued on October 18, 1990, and the Contracting Officer's amended
designation, effected October 20, 1990. The appeal filed by
Analytics is, therefore, DENIED.


This constitutes the final decision of the Small Business
Administration. See 13 CFR 12X.1720(a), (b), and (c).


                    _________________________________
                    Jane E. Phillips (Presiding)
                    Administrative Judge
                    
                    
                    _________________________________
                    Gloria E. Blazsik (Concurring)
                    Administrative Judge
                    
                    
                    _________________________________
                    G. Stephen Wright (Concurring)
                    Administrative Judge