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    Can I use NAICS code 237110 for the service contract or would using that NAICS code make this contract a construction contract? I looked in to NAICS codes beginning with 32 and 33 but none of them seem to fit this requirement as well as 237110. But I was curious if this could still be completed as a service contract and not a construction contract even though I would be using a construction NAICS code.


    Answer

    Your scope of work and how it fits into the NAICS code is only one indicator of the FAR part that will control you acquisition.  You also need to review the scope of work with the FAR definitions.
    Contracting officers are required by 13 C.F.R. § 121.402(b) to designate the NAICS code that “best describes” the work to be performed.  The procuring agency contracting officer, or authorized representative, designates the proper NAICS code and corresponding size standard in a solicitation, selecting the single NAICS code which best describes the principal purpose of the product or service being acquired.  A procurement is usually classified according to the component which accounts for the greatest percentage of contract value.

    The NAICS you say best describes your work is 237110.  This is for industry comprising of establishments primarily engaged in the construction of water and sewer lines, mains, pumping stations, treatment plants, and storage tanks. The work performed may include new work, reconstruction, rehabilitation, and repairs.
    Now compare this to the definition of Construction in the FAR as defined at FAR 2.101:
    “Construction” means construction, alteration, or repair (including dredging, excavating, and painting) of buildings, structures, or other real property. For purposes of this definition, the terms “buildings, structures, or other real property” include, but are not limited to, improvements of all types, such as bridges, dams, plants, highways, parkways, streets, subways, tunnels, sewers, mains, power lines, cemeteries, pumping stations, railways, airport facilities, terminals, docks, piers, wharves, ways, lighthouses, buoys, jetties, breakwaters, levees, canals, and channels. Construction does not include the manufacture, production, furnishing, construction, alteration, repair, processing, or assembling of vessels, aircraft, or other kinds of personal property (except that for use in Subpart 22.5, see definition at 22.502).
    From your description, the requirement appears to meet the definition of construction in the FAR and therefore is required to be procured in accordance with FAR part 36 and contain the appropriate clauses and protection those clauses provide both the government and the contractor.  Additionally, if this effort exceeds $2,000 you must include the construction wage rates (formerly Davis-Bacon).  A service contract is not an option.


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