Basic Contracting Services, Inc., No. 4351 (April 14, 1999) Docket No. SIC-99-03-03-11 UNITED STATES OF AMERICA SMALL BUSINESS ADMINISTRATION OFFICE OF HEARINGS AND APPEALS WASHINGTON, D.C. _________________________________ ) SIC APPEAL OF: ) ) Basic Contracting Services, Inc. ) ) Docket No. SIC-99-03-03-11 Appellant ) ) Decided: April 14, 1999 Solicitation No. ) GSA-08P-99-JAC-0033 ) Denver Federal Center ) Denver, Colorado ) ________________________________ ) APPEARANCES for Appellant John F. Melton, Vice President Basic Contracting Services, Inc. DIGEST A procurement which requires the contractor to provide all management, labor, and supplies necessary for the daily operation, preventive maintenance, and repair of all mechanical, electrical, plumbing, and utility systems in the subject buildings is properly classified under SIC code 7349, Building Cleaning and Maintenance Services, Not Elsewhere Classified. DECISION HOLLEMAN, Administrative Judge: Jurisdiction This appeal is 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 (1999). Issue Whether a procurement which requires the contractor to provide all management, labor, and supplies necessary for the daily operation, preventive maintenance, and repair of all mechanical, electrical, plumbing, and utility systems in the subject buildings is properly classified under SIC code 7349, Building Cleaning and Maintenance Services, Not Elsewhere Classified. I. BACKGROUND A. Procedural Background On February 23, 1999, the Contracting Officer (CO) for the General Services Administration (GSA) issued the subject small business set-aside procurement for mechanical operation, maintenance, and related services for 17 buildings at the Denver Federal Center. The CO classified the procurement under Standard Industrial Classification (SIC) code 7349, Building Cleaning and Maintenance Services, Not Elsewhere Classified, with a corresponding $12 million average annual receipts size standard. Initial offers were due on April 7, 1999. On March 3, 1999, Basic Contracting Services, Inc. (Appellant) filed the instant SIC code appeal. It asserts the correct SIC code for the subject procurement is 7623, Refrigeration and Air-Conditioning Service and Repair Shops, with a corresponding $5 million average annual receipts size standard. Appellant asserts SIC code 7349 normally is assigned to custodial contracts, but also asserts the subject procurement requires no custodial support. Moreover, over 50% of the requirement is for heating and cooling system maintenance. Therefore, the correct SIC code is 7623. On March 4, 1999, the Administrative Judge issued an Order which set March 19, 1999, as the close of record. On March 8, 1999, the CO issued a minor Amendment, which did not materially change the Statement of Work. B. The Statement of Work The contractor will provide all management, labor, and supplies necessary for the daily operation, preventive maintenance, and repair of all mechanical, electrical, plumbing, and utility systems in the subject buildings. Statement of Work at J3. These systems include: air conditioning, air handling, heating, water treatment, domestic water, electric, fire protection, sewer, plumbing, and architectural systems. Id. The contractor will furnish necessary chemicals, refrigerants, repair or replacement parts, fluorescent lamps and ballasts, incandescent bulbs, and air filters. Id. at C13. Daily operational tours will include starting and stopping the equipment, observing and adjusting it, and correcting minor deficiencies. Id. at J30. Inspections of the child care center will include kitchen and playground equipment. Id. at J58. Scheduled preventive maintenance will include adjusting, testing, repairing, replacing, greasing, oiling, and cleaning equipment. Id. at J12. The contractor must absorb the cost of incidental repairs up to $1,000 (supplies, materials, and parts), and will be reimbursed for minor repairs between $1,001 and $50,000 (including labor). Repairs exceeding $50,000 are not a part of this contract. Id. at J20-23. The contractor will provide water treatment for all heating and cooling systems. Id. at J27. The contractor also will inspect, test, and maintain the electrical distribution system; and will test, maintain, and repair all fire detection and alarm systems. Id at J15 & J9. The contractor will maintain, repair, replace, and modify all architectural components, including interior and exterior walls, chimneys, gutters, floors, ceilings, doors, windows, dock areas, stairways, toilet fixtures, piping systems, lighting fixtures, and electrical equipment. Id. at J45. Roof work will be limited to preventive maintenance and service calls. Id. at J4. The contractor will perform routine locksmith services, and will furnish office identification and building directory signage. Id. at J46. The contractor will install electrical outlets and move light fixtures and thermostats when tenant space is rearranged, and will perform reimbursable building alterations up to $5,000 as needed. Id. at C14 & C16. II. DISCUSSION Appellant filed this appeal within ten calendar days of the issuance of the solicitation. Therefore, it is timely. 13 C.F.R. Section 134.304(a)(3). In a SIC appeal, Appellant has the burden of proof, by a preponderance of the evidence, to show error in the CO'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[*], the description in the solicitation, and the relative weight of each element of the solicitation. Id.; 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. SIC Appeal of Information Ventures, Inc., No. 4266 (1997); 13 C.F.R. Section 134.314. The CO's designated SIC code, 7349, covers firms which provide building cleaning and maintenance services, not elsewhere classified, such as janitorial services, office cleaning services, school custodial services, lighting maintenance, and building maintenance, except repairs. SIC Manual at 363. This Office has interpreted the phrase "building maintenance, except repairs" to exclude the work of contractors primarily engaged in building repair. Conversely, this Office has interpreted the phrase to include repairs "incidental to building maintenance". SIC Appeal of Griffin Services, Inc., No. 4347 at 6 (1999). This Office has not interpreted the terms "janitor" and "custodian" in resolving SIC code appeals. Absent guidance in the SIC Manual, the regulations, or the solicitation, the Administrative Judge turns for guidance to the pertinent dictionary definitions. A "janitor" is one who "keeps the premises of [a] building clean and free of refuse, tends the heating system, and makes minor repairs." Webster's Third New International Dictionary at 1209 (1993). A "custodian" is a "building superintendent", who in turn is defined as "responsible for the cleaning and maintenance of a building and its equipment." Id. at 559 & 292. Thus, based on the SIC Manual and the dictionary definitions, the Administrative Judge concludes janitorial and custodial services under SIC code 7349 may include services which are incidental to building maintenance, among other things, operating and maintaining a building's heating system and its other equipment; and making minor repairs to the building and its equipment. Accordingly, the Administrative Judge rejects Appellant's assertion that the instant procurement requires no custodial support. Appellant urges as the appropriate SIC code, 7623, which covers firms primarily engaged in servicing and repairing household and commercial electrical refrigerators, and air- conditioning and refrigeration equipment. SIC Manual at 375. Appellant asserts that over 50% of the requirement is for heating and cooling system maintenance, but fails to support its assertion. Further, even if Appellant's assertion were correct, the Administrative Judge notes SIC code 7623 includes neither heating nor mechanical equipment other than electric refrigerators and electric air conditioning equipment. The instant solicitation requires the contractor to perform multiple functions: operate, inspect, maintain, and perform minor repairs on the buildings and their mechanical, electrical, plumbing, utility, and other equipment. It also, like the solicitation in Griffin, requires the contractor to perform minor repairs, and to absorb their cost below a certain threshold level. See Griffin, supra at 4. Hence, the contractor must perform a broad range of services relating to building maintenance. Many of these services are beyond the limited scope of SIC code 7623, which applies only to air-conditioning and refrigeration equipment repair. Conversely, all of these tasks are within the scope of SIC code 7349, which broadly covers building maintenance activities. Accordingly, the Administrative Judge concludes Appellant has failed to meet its burden to establish clear error in the CO's SIC code designation. III. CONCLUSION The appropriate SIC code for this procurement is the one designated by the CO, 7349, Building Cleaning and Maintenance Services, Not Elsewhere Classified. The relief sought by Appellant is 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). _______________________________ CHRISTOPHER HOLLEMAN Administrative Judge _________________________ [*] Standard Industrial Classification Manual, Office of Management and Budget, 1987 edition. Posted: April, 1999