NAICS Appeal Calspan Corp. Decision 6062.pdf

Cite as: NAICS Appeal of Calspan Corp., SBA No. NAICS-6062 (2020)

United States Small Business Administration Office of Hearings and Appeals

NAICS APPEAL OF:

Calspan Corporation

Appellant

Solicitation No. 693JJ920R000001 U.S. Department of Transportation National Highway Traffic Safety Administration

SBA No. NAICS-6062

Decided: July 2, 2020

APPEARANCES

Daniel E. Chudd, Esq. & Alissandra D. Young, Esq., Morrison & Foerster LLP, for Calspan Corporation

Emily Crofford, Esq., National Highway Traffic Safety Administration, for Contracting Officer

Adam K. Lasky, Esq., Oles Morrison Rinker & Baker LLP, for Crash Research Analysis, Inc.

DECISION

I. Introduction and Jurisdiction

On April 23, 2020, the U.S. Department of Transportation, National Highway Traffic Safety Administration (NHTSA) issued Solicitation No. 693JJ920R000001 for Crash Investigation Sampling System Injury Coding (Solicitation). The Contracting Officer (CO) assigned North American Industry Classification System (NAICS) code 541715, Research and Development in the Physical, Engineering, and Life Sciences (except Nanotechnology and Biotechnology), with a corresponding 1,000 employee size standard.

On April 30, 2020, Crash Research Analysis, Inc. (CRA) filed an appeal with the U.S.

Small Business Administration (SBA) Office of Hearing and Appeals (OHA), arguing that the correct NAICS code for the Solicitation is 541990, All Other Professional, Scientific, and Technical Services, with a corresponding $16.5 million annual receipts size standard. On May 20, 2020, the CO issued Amendment 0003 to the Solicitation, changing the assigned NAICS code to 541990. On May 21, 2020, CRA withdrew its appeal. As there was no longer a case or controversy for OHA to resolve, on May 22, 2020, OHA dismissed the case without prejudice.

NAICS-6062

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NAICS Appeal of Crash Research & Analysis, Inc., SBA No. NAICS-6056, at 1 (2020).

On May 29, 2020, Calspan Corporation (Appellant) filed the instant appeal, arguing that changing the NAICS code to 541990 was improper because NAICS code 541715 best describes the principal purpose of the work to be performed under the Solicitation.

OHA decides NAICS code appeals under the Small Business Act of 1958, 15 U.S.C.

§ 631 et seq., and 13 C.F.R. parts 121 and 134. Appellant filed the instant appeal within ten calendar days after issuance of the Solicitation, so the appeal is timely. Federal Acquisition Regulation (FAR) 19.303(c)(1); 13 C.F.R. §§ 121.1103(b)(1), 134.304(b). Accordingly, this matter is properly before OHA for decision.

II. Background

A. The Solicitation and Statement of Work

NHTSA’s mission is to save lives, prevent injuries, and reduce the number of motor vehicles crashes. As part of this mission, NHTSA operates numerous data programs which consist of records-based systems and involves recoding crash records for uniformity, including the Crash Investigation Sampling System (CISS), which falls within NHTSA’s National Center for Statistics and Analysis (NSCA). (Amended Solicitation, at 5.)

For CISS, the Operations Contractor enters information from each investigation into an electronic file. The investigations include scene and vehicle inspections, and interviews with crash victims. Photographs are taken using digital cameras that allow the information to be readily entered for storage and clinical review.

Occupant injuries and injury causation scenarios are documented using medical records. The data is quality controlled by a Quality Control Center Contractor.

After completion and quality review of all cases, NCSA prepares an annual analysis file for public use that includes case weighting factors. All personal identifiers are removed from electronic files to protect the privacy of the individuals involved. These CISS files, in conjunction with other data systems, provide the detailed and reliable information with which NHTSA and other motor vehicle research organizations can identify safety problems, monitor trends, assess proposed standards and countermeasures, and evaluate those already in effect.

(Id.)

The Contractor shall provide crash injury information services and coding to enhance and execute a cohesive program and quality evaluation support. The activities in this Contract include assignment of injury codes and injury causation scenarios as well as medical record storage to support NHTSA’s Crash Investigation Sampling System (CISS). (Id., at 7.)

Three main contractors are involved in populating CISS with crash data: (1) the Operations or Primary Sampling Unit (PSU) Contractor, which collects and enters data from each crash investigation into a case file; (2) the Injury Coding Contractor, which reviews the investigation file to identify and code injuries and causation and enter that data into CISS; and

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(3) the Quality Control Center Contractor, which provides quality control of data entered by the Injury Coding Contractor. The instant Solicitation is solely for the Injury Coding Contractor.

(Id., at 8.)

The Injury Coding Contractor has four main areas of responsibility: (1) Medical Record

Collection; (2) Injury Interpretation and Code Assignment; (3) Injury Causation; and (4) Medical Record Storage. (Id.) Medical record collection includes assisting the PSU Contractor in requesting and obtaining medical records from cooperating medical facilities. (Id.) For Injury Interpretation and Code Assignment, the Injury Coding Contractor is responsible for the identification and interpretation of injuries from medical documentation assigning injury codes from a standardized injury scale and entering data into CISS. (Id.) For Injury Causation, the contractor will be responsible for examining images and other documentation from the involved vehicle and selecting an involved physical component and injury causation scenario for each injury. Additionally, the contractor will enter injury causation information such as body region injured, source of energy, contributing factors, and comorbidities. (Id.)

The Injury Coding Contractor must work to maintain medical facility cooperation to obtain medical records from various facilities. (Id., at 11.) The Injury Coding Contractor shall be responsible for the identification and interpretation of injuries from medical documentation and assigning injury codes based on the most recent version of the Abbreviated Injury Scale (AIS) available to NHTSA. The Injury Coding Contractor shall be responsible for examining images and other documentation from the vehicle and occupant and selecting one or more involved physical component(s) for every injury. (Id., at 12.)

The Project Manger must have at least a bachelor’s degree in engineering, behavioral or physical science or business (systems) management, and experience in management of crash studies. Senior Injury Coders must have experience in damage analysis, vehicle dynamics, human anatomy, the mechanics of physics, and at least a bachelor’s degree in engineering, behavioral or physical science. Injury Coders must have demonstrated experience in human anatomy, mechanisms of injury, and occupant kinematics. (Id., at 63-64.)

In sum, the Injury Coding Contractor uses medical records, photographic evidence, and other documentation associated with the crash, procured through a process led by the PSU Contractor, to apply an injury code and input data into CISS, so that NHTSA and other research organizations can use it to identify safety problems, monitor trends, assess proposed standards and countermeasures, and evaluate those already in effect. (Id., at 5, 8.)

B. The Appeal

On May 29, 2020, Appellant filed the instant appeal. Appellant argues that the original

NAICS code assigned to this procurement, 541715, with a corresponding size standard of 1,000 employees, is the correct NAICS code for this procurement. (Appeal, at 1, 2.)

Appellant asserts that the CO’s change of the Solicitation’s NAICS code to 541990 was a clear error. (Id., at 5.) “Research” is “conducting original investigation undertaken on a systematic basis to gain new knowledge”. (Id., at 6, citing NAICS Manual, at 475.) In reviewing NAICS appeals, OHA will look to whether the work to be performed directly by the contractor

- 4 -constitutes such services, or whether the work is an integral and vital part of the research activities performed by the agency. Where a contractor provides vital functions integral to an agency’s research process, even if they do not perform the full scope of the research directly, the work qualifies as research. Researchers do not work in a vacuum, and when they require the support of technically experienced personnel a contracting officer is not incorrect to assign a research NAICS code for efforts needed to support the research. (Id., citing NAICS Appeal of LJR Solutions, LLC, SBA No. NAICS-5790 (2016); NAICS Appeal of Info. Ventures, Inc., SBA No. NAICS-5544 (2014); NAICS Appeal of Info. Ventures, Inc., SBA No. NAICS-4882 (2008)).

More specifically, Appellant claims that the Injury Coding Contractor will perform research activities under the Solicitation because the injury coding process itself is not simply a mechanical review of a crash file. (Id., at 7.) The Senior Injury Coders, who are key personnel, must have scientific expertise in the mechanisms of injury, occupant kinematics, human anatomy, and the mechanics of physics. (Id., at 3, citing Amended Solicitation, at 64.) The contractor is responsible for identifying and interpreting injuries, as well as researching the cause of such injuries and developing Injury Causation Scenarios (ICS) for each injury. (Id., citing Amended Solicitation, at 8.)

Appellant claims that such research services are a vital and integral part of the NHTSA’s overarching research into motor vehicle safety issues. (Id., at 8.) More specifically, the Solicitation explains that the coded files “provide the detailed and reliable information with which NHTSA and other motor vehicle research organizations can identify safety problems, monitor trends, assess proposed standards and countermeasures, and evaluate those already in effect.” (Id., citing Amended Solicitation, at 5.) The Solicitation requires the Injury Coding Contractor to separately establish and to maintain medical facility cooperation and collect and maintain medical records for further NHTSA research “related to the control and prevention of transportation-related injury, disability, and death.” (Id., citing Amended Solicitation, at 11.)

Such data collection, Appellant asserts, is the integral first part of research, and appropriately constitutes “research” under 541715. (Id., at 8.)

Appellant then argues the injury coding process is a vital and integral function of

NHTSA’s development work as defined under the NAICS Manual, “the application of research finding other scientific knowledge for the creation of new or significantly improved products or processes.” (Id., citing NAICS Manual, at 475.) More specifically, Appellant asserts that the entire purpose of procuring research into the various causes of motor vehicle crash injuries on a granular level is to identify overall trends injuries and “develop effective countermeasures, identify program and rulemaking needs; develop and evaluate programs, rules, and standards, evaluate new technologies and provide information to accurately assess and allocate grants for reducing crashes.” (Id., citing Amended Solicitation, at 5.)

Because the principal purpose of the Injury Coding Contractor’s work supports both research and development performed by NHTSA, Appellant insists that it is properly classified as research and development. (Id., at 9.) As such, Appellant argues that NAICS code 541715 best describes the principal purpose of the work and is the proper NAICS code for the Solicitation. Its very definition anticipates the use of sciences such as physics and engineering to support research and development into the life sciences, the kind of work required here. (Id., at 10.)

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C. NHTSA’s Response

On June 11, 2020, NHTSA responded to the appeal. NHTSA argues that OHA should deny the appeal because the Appellant failed to demonstrate by a preponderance of the evidence that the CO’s designation of code 541990 constitutes a clear error of fact or law. (Response, at 5.) NHTSA compares the two codes’ descriptions and describes the CO’s decision to change from one code to the other to illustrate why 541990 appropriately describes the work under the Amended Solicitation. (Id., at 6.)

NHTSA asserts that NAICS code 541990 is the proper designation because of the medical coding and data entry performed by the Injury Coding Contractor are best understood as scientific or technical services, not as research and development. (Id., at 7.) Additionally, even if the work could be considered scientific research, since the Solicitation does not call for the development of new processes or products, code 541990 is appropriate. (Id., at 8.) NHTSA added that code 541990 may be properly applied to contracts for “scientific support services” so long as the contract is not for research and development. (Id., citing NAICS Appeal of Dynamac Corp., SBA No. NAICS-5025 (2009)). In Dynamac Corp., NAICS code 541715 was inappropriate, because the procurement involved systems already in existence, rather than the creation of new products and processes. Since code 541990 covers a wide range of technical and scientific services, including the type of data processing analysis work required here, NHTSA argues the CO’s designation of NAICS code 541990 is not erroneous. (Id.) The Amended Solicitation requires the Injury Coding Contractor to follow a set process to synthesize and input data into CISS, not develop new processes for or applications of the crash and injury data. (Id.)

In reference to NAICS code 541715, NHTSA argues that while Injury Coding CISS data requires scientific and technical expertise, it does not constitute “research and development”.

(Id.) In accordance with the NAICS Manual, a procurement that entails “development” is one that requires a contractor to create “new or significantly improved products or processes.” (Id., at 8, citing NAICS Manual, at 475.) A procurement that “does not call for the contractor to create new processes or products… cannot be properly characterized as research and development.” (Id., citing NAICS Appeal of Delphi Research Inc., SBA No. NAICS-5377, at 8 (2012)). The role of the Injury Coding Contractor, while important to the process of populating CISS data, is not taking an active part in the research of NHTSA or any other organization that may eventually use the data. The Injury Coding Contractor is responsible for synthesizing, processing, and ultimately inputting data for later use in any number of research applications.

(Id., at 9.) As such, NHTSA asserts that NAICS code 541715, covering physical, laboratory research, is not the appropriate code for the work performed by the Injury Coding Contractor.

(Id., at 10.)

D. CRA’s Response

On June 10, 2020, Crash Research Analysis, Inc. (CRA) responded to the instant appeal.

CRA argues that NHTSA did not err in assigning NAICS code 541990 to this Solicitation because it is neither for research nor development. (CRA Response, at 1, 7.)

First, CRA argues the clauses within the Solicitation clearly reflect that the procurement is not for “research and development”. (Id., at 8.) CRA claims that if the instant procurement

- 6 -were for “research and development,” than Department of Transportation regulations would require NHTSA to include a research misconduct clause (TAR 1252-237.70), as required by TAR 1235-7000. (Id.) This clause is mandatory for a “research and development” solicitation and is absent here. (Id.)

In the same respect, CRA argues that if the procurement were for research and development, NHTSA would be required to insert the data rights clause in the Solicitation per FAR 52.227-16. (Id.) This clause is also notably absent from this Solicitation. (Id.) Instead, the Solicitation contains a Rights in Data- Special Works clause, FAR 52.227-17, intended for services contracts “primarily for the production or compilation of data” under FAR 27.409(e).

CRA also claims that the CISS procurement cannot be for “scientific research and development” because NSCA is not a research office of NHTSA. (Id., at 10.) Even assuming that some of the work performed could meet the relevant definition of “scientific research and development”, the fact that the Injury Coding Contractor will perform support services that might indirectly support a research or development project of NHTSA or a third-party in the future is not enough to make this Solicitation for “scientific research and development” because the services here are being performed for NCSA, which is not a research office. (Id.) In the instant procurement, the Injury Coding Contractor’s work is only tangentially related to the research work that will eventually be performed by others using that data. (Id., at 11.) More importantly, CRA argues, the CISS program, including the subject contract, falls within the NCSA office, which is not classified as one of NHTSA’s “research offices.” (Id.) Instead, NHTSA classifies the CISS program as a data collection program, and NCSA as an office that provides a wide range of analytical and statistical support to NHTSA and the highway safety community at large. (Id.) As such, CRA argues that even if the Injury Coding Contractor’s work is in support of others’ research, because the Injury Coding Contractor’s work is not being performed for a research office, the work cannot be classified as “research and development”.

(Id., citing NAICS Appeal of Rollout Sys., LLC, SBA No. NAICS-5901 (2018).)

CRA further asserts that the Solicitation is not for “research”. (Id., at 12.) More specifically, CRA argues that the Solicitation never refers to the Injury Coding Contractor as being required to perform any research as defined by the NAICS Manual. (Id.) Instead, the only references to research in the Solicitation are to the research that can be conducted by others using the data provided by the Injury Coding Contractor. (Id., at 13.)

CRA claims that the Solicitation is not for “development”. (Id., at 14.) CRA argues that the Solicitation does not call for the Injury Coding Contractor to create new processes or products, nor does the Solicitation identify any specific development work that the contractor would be supporting. (Id., at 15.) CRA emphasizes that Appellant has failed to point to a single new or improved product being developed as part of, or in connection with, the subject procurement. (Id.)

Finally, CRA argues that even if the procurement were for “scientific research and development” NAICS code 541690 or 541611 would better describe the principal purpose of the procurement than NAICS code 541715. (Id., at 20.)

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E. NAICS Manual 1 Descriptions

The CO’s designated NAICS code, 541990, All Other Professional, Scientific, and Technical Services, comprises:

[E]stablishments primarily engaged in the provision of professional, scientific, or technical services (except legal services; accounting, tax preparation, bookkeeping, and related services; architectural, engineering, and related services; specialized design services; computer systems design and related services; management, scientific, and technical consulting services; scientific research and development services; advertising, public relations, and related services; market research and public opinion polling; photographic services;

translation and interpretation services; and veterinary services).

Illustrative Examples:

Appraisal (except real estate) services Marine surveyor (i.e., appraiser) services Arbitration and conciliation services (except by lawyer, attorney, or paralegal offices) Patent broker services (i.e., patent marketing services) Commodity inspector services Pipeline or power line inspection (i.e., visual) services Consumer credit counseling services Weather forecasting services Handwriting analysis services

NAICS Manual, at 483.

Appellant’s preferred code NAICS code 541715, Research and Development in the Physical, Engineering, and Life Sciences (except Nanotechnology and Biotechnology), comprises:

[E]stablishments primarily engaged in conducting research and experimental development (except nanotechnology and biotechnology research and experimental development) in the physical, engineering, and life sciences, such as agriculture, electronics, environmental, biology, botany, computers, chemistry, food, fisheries, forests, geology, health, mathematics, medicine, oceanography, pharmacy, physics, veterinary and other allied subjects.

NAICS Manual, at 476.

The SBA Table of Size Standards clarifies that “Research and Development” means “laboratory or other physical research and development.” 13 C.F.R. § 121.201 n. 11(a) (2020).

1 Executive Office of the President, Office of Management and Budget, North American

Industry Classification System-United States (2017), available at http://www.census.gov.

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“It does not include economic, educational, engineering, operations, systems, or other nonphysical research; or computer programming, data processing, commercial and/or medical laboratory testing.” (Id.)

III. Discussion

A. Standard of Review

Appellant has the burden of proving, by a preponderance of the evidence, all elements of its appeal. Specifically, Appellant must show that the CO’s NAICS code designation is based upon a clear error of fact or law. 13 C.F.R. § 134.314; NAICS Appeal of Durodyne, Inc., SBA No. NAICS-4536, at 3 (2003). SBA regulations do not require the CO to select the perfect NAICS code. NAICS Appeal of Evanhoe & Assocs., LLC, SBA No. NAICS-5505, at 13 (2013).

Rather, the CO must assign the NAICS code that best describes the principal purpose of the product or service being acquired in light of the industry descriptions in the NAICS Manual, the description in the solicitation, the relative value and importance of the components of the procurement making up the end item being procured, and the function of the goods or services being purchased. FAR 19.303(a)(2); 13 C.F.R. § 121.402(b). OHA will not reverse a NAICS code designation “merely because OHA would have selected a different code.” NAICS Appeal of Eagle Home Med. Corp., SBA No. NAICS-5099, at 3 (2009).

B. Analysis

Having reviewed the Solicitation, the descriptions in the NAICS Manual, OHA’s prior decisions, and the arguments of the parties, I find that the CO correctly amended the NAICS code to 541990 for this procurement. As a result, I DENY the appeal and AFFIRM the CO’s NAICS code designation.

As previously mentioned, the NAICS Manual states that NAICS code 541715 is appropriate for procurements that involve “research and experimental development.” The NAICS Manual defines “research” as “original investigation undertaken on a systematic basis to gain new knowledge”, and “experimental development” as “the application of research findings or other scientific knowledge for the creation of new or significantly improved products or processes”. NAICS Manual, at 475. The SBA Table of Size Standards clarifies in a footnote that “‘Research and Development’ means laboratory or other physical research and development [and] does not include . . . nonphysical research; or computer programming, data processing . . .”

13 C.F.R. § 121.201, n.11(a).

Applying these provisions, OHA has long held that procurements classified under a research and development NAICS code “must be for research and development, and thus must look to creating new processes or products.” NAICS Appeal of Rollout Sys., LLC, SBA No.

NAICS-5901, at 9 (2018), citing NAICS Appeal of Dayton T. Brown, Inc., SBA No. NAICS- 5164, at 5-6 (2010) (emphasis in original). The code is appropriate only if the contractor will perform work that is an integral part of research and development. OHA will overturn the assignment of a research and development NAICS code if the procurement does not call for both research and experimental development. NAICS Appeal of Delphi Research, Inc., SBA No.

NAICS-5377, at 8 (2012), aff'd sub nom. Arcata Associates, Inc. v. United States, 110 Fed. Cl.

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290 (2013).

In the instant case, the Solicitation indicates that the contractor will provide “crash injury information services and coding to enhance and execute a cohesive program and quality evaluation support.” (Amended Solicitation, at 7.) The contractor is also responsible for assigning injury codes and injury causation scenarios upon reviewing the investigation file. (Id.)

The contractor will be entering and coding the information collected according to the requirements of an already established system. While the contractor’s key personnel must have a background in the sciences to perform this work, this background by itself does not render the work performed original research and development. The work must be “original investigation undertaken on a systematic basis to gain new knowledge”. Section III, B, supra.

Because there is no original investigation to be undertaken by the Injury Coding

Contractor, I find that the services provided under the Solicitation do not meet the NAICS Manual definition of “research”. Specific to “development” as defined under the NAICS Manual, because the CISS program is already in existence, it need not be invented or created by the contractor. Since the contractor will not be engaged in original investigations to gain new knowledge, or in the creation of new products or processes, a research and development NAICS code is therefore improper for this procurement. See Rollout Systems, LLC, at 9 (2018), see also Dayton T. Brown, Inc., at 5-6 (2010).

OHA has held that a “research and development” NAICS code is appropriate when the contractor is “involved in the research process itself” or provides vital functions integral to an agency’s research process. See NAICS Appeal of LJR Solutions, LLC, SBA No. NAICS-5790, at 7 (2016). In LJR Solutions, OHA held a research NAICS code was appropriate for animal husbandry services in relation to ongoing FDA research because the contractor would not only be responsible for caring for the animal involved in the study, but also “taking active part in the research, by administering injections, collecting samples, collecting data, and observing and recording behavior.” (Id., at 8.)

In this case, however, the Injury Coding Contractor is not responsible for taking an active part in the research of NHTSA or any other organization that may eventually use the data. The Injury Coding Contractor is not responsible for collecting data or samples like those in LJR Solutions. Here, the collection of records related to a crash is led by the PSU Contractor, not the Injury Coding Contractor. The Injury Coding Contractor is then responsible for synthesizing, processing, and inputting that data for later use in research applications.

NAICS code 541990 is appropriate because the medical coding and data entry performed by the Injury Coding Contractor are best understood as scientific or technical services, not research and development. NAICS code 541990 can cover any number of professional and technical services and may be properly applied to contracts for “scientific support services” so long as the contract is not for research and development. See NAICS Appeal of Ko Hi Military Acquisition Consulting, SBA No. NAICS-5256, at 8 (2011); see also NAICS Appeal of Dynamac Corp., SBA No. NAICS-5025, at 6 (2009). The Solicitation requires the Injury Coding Contractor to follow a process already developed to synthesize and input data into CISS, not to develop new processes for applications of the crash and injury data. Since NAICS code 541990 covers a wide range of technical and scientific services, the CO’s designation was not clearly

- 10 -erroneous.

While it is true that OHA has found, in certain cases, that providing support services to an agency’s research and development can be considered “research and development”, see LJR Solutions, supra, the “mere fact that the contractor will provide assistance to a research organization is not sufficient to justify classifying the procurement as research and development.” NAICS Appeal of Info. Ventures, Inc., SBA No. NAICS-5544, at 5 (2014). When a contract is to provide services in a support of an agency office that is not a research organization, “services in support of that [office] would likewise not be considered research and development.” Rollout Sys., LLC, at 11 (2018). In this case, the Injury Coding Contractor’s work is not directly related to the research work that will eventually be performed by others using the data. (See Amended Solicitation, at 5) (discussing how the CISS data is used by third parties who have no connection to the CISS contract for their own research and potentially development purpose). Therefore, the research and development code is not appropriate for this procurement.

Further, in determining the principal purpose of a solicitation, OHA frequently looks at whether the solicitation contains clauses that would be expected or required for the procurement.

See NAICS Appeal of Dial Gen. Eng’g, SBA No. NAICS-5375, at 6 (2012); see also NAICS Appeal of Ascendant Program Servs., LLC, SBA No. NAICS-5832, at 9 (2017). In examining whether a procurement is for “research and development,” OHA has looked to whether the solicitation contains clauses that would be expected or required if in fact the procurement was for “research and development.” See e.g., NAICS Appeal of Bevilacqua Research Corp., SBA No.

NAICS-5243, at 6 (2011); NAICS Appeal of Tech. Sec. Assocs., Inc., SBA No. NAICS-5950, at 13 (2018); see similarly Dynamac Corp., at 6 (2009) (absence of R&D funding reflected contract was not for R&D).

I agree with CRA, that the Solicitation’s clauses clearly indicate that the Solicitation is not for “research and development.” Department of Transportation regulations require that a solicitation for research include the research misconduct clause at TAR 1252.235-70. TAR

1235.7000. The FAR requires that a research solicitation include FAR clause 52.227-16 on Additional Data Requirements. FAR 27.409(d). These clauses are mandatory for a “research and development” solicitation and are notably absent here. Instead, the Solicitation contains a Rights in Data- Special Works clause, per FAR 52.227-17, intended for services contracts “primarily for the production or compilation of data” under FAR 27.409(e). The absence of the research misconduct clause and the data rights clause in the Solicitation demonstrates that it is not for “scientific research and development.” See Bevilacqua, at 6 (2011) (“the RFP does not contain standard clauses that would be typical of a research and development effort, particularly with regard to the ownership of intellectual property rights. Thus, considering the solicitation as a whole, it does not appear that this procurement is intended as a research and development effort.”).

IV. Conclusion

As discussed above, I must find clear error to overturn a CO’s designation of a NAICS code. See Dynamac Corp., at 4 (2009). I find that Appellant has failed to meet its burden of establishing that the CO’s NAICS code designation was based upon clear error. For the above

- 11 -reasons, I must DENY this appeal and AFFIRM the CO’s NAICS code designation. The appropriate NAICS code is 541990, All Other Professional, Scientific, and Technical Services, with a corresponding $16.5 million annual receipts size standard.

This is the final decision of the U.S. Small Business Administration. See 13 C.F.R.

§ 134.316(d).

CHRISTOPHER HOLLEMAN

Administrative Judge

Christopher Holleman (Jul 1, 2020 15:42 EDT) https://na2.documents.adobe.com/verifier?tx=CBJCHBCAABAAjulmgYXUk18oXHQB4I5y04Kc_fqeUts8