B-152543, JAN. 8, 1964

B-152543: Jan 8, 1964

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MARKETING MANAGER: REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 17. YOU PROTESTED THAT TEXAS NUCLEAR WAS NOT SMALL BUSINESS AND THAT YOU WERE DEPRIVED BY THE CONTRACTING OFFICER OF AN OPPORTUNITY TO HAVE THE SMALL BUSINESS ADMINISTRATION DETERMINE THAT COMPANY'S ELIGIBILITY AS SMALL BUSINESS. OUR OFFICE HAS ASCERTAINED THAT TEXAS NUCLEAR AND YOUR COMPANY WERE THE ONLY FIRMS RESPONDING TO THE INVITATION FOR BIDS. WE REQUESTED THE SMALL BUSINESS ADMINISTRATION TO MAKE A DETERMINATION WHETHER TEXAS NUCLEAR HAD A SMALL BUSINESS SIZE STATUS AT THE TIME THE CONTRACT UNDER THE INVITATION WAS AWARDED. WAS CONSIDERED AS A SMALL BUSINESS IF. THERE WAS NO SEPARATE DEFINITION OF A SMALL MANUFACTURER OF MECHANICAL MEASURING AND CONTROLLING INSTRUMENTS.

B-152543, JAN. 8, 1964

TO MR. C. L. PRINGLE, MARKETING MANAGER:

REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 17, 1963, AND DUPLICATE THEREOF FURNISHED UNDER DATE OF SEPTEMBER 16, PROTESTING AGAINST THE AWARD TO TEXAS NUCLEAR OF A CONTRACT FOR A NEUTRON ACTIVATION ANALYSIS SYSTEM UNDER INVITATION FOR BIDS AMC/R/-29-040-63 74, A TOTAL SET-ASIDE FOR SMALL BUSINESS.

YOU PROTESTED THAT TEXAS NUCLEAR WAS NOT SMALL BUSINESS AND THAT YOU WERE DEPRIVED BY THE CONTRACTING OFFICER OF AN OPPORTUNITY TO HAVE THE SMALL BUSINESS ADMINISTRATION DETERMINE THAT COMPANY'S ELIGIBILITY AS SMALL BUSINESS.

OUR OFFICE HAS ASCERTAINED THAT TEXAS NUCLEAR AND YOUR COMPANY WERE THE ONLY FIRMS RESPONDING TO THE INVITATION FOR BIDS. TEXAS NUCLEAR BID $62,795.25 AND REPRESENTED ITSELF AS SMALL BUSINESS. YOUR FIRM BID $98,169.04 AND REPRESENTED ITSELF AS OTHER THAN SMALL BUSINESS.

UPON RECEIPT OF YOUR PROTEST, WE REQUESTED THE SMALL BUSINESS ADMINISTRATION TO MAKE A DETERMINATION WHETHER TEXAS NUCLEAR HAD A SMALL BUSINESS SIZE STATUS AT THE TIME THE CONTRACT UNDER THE INVITATION WAS AWARDED. THE SMALL BUSINESS ADMINISTRATION RECENTLY ADVISED AS FOLLOWS:

"PRIOR TO JULY 1, 1963, A CONCERN NOT OTHERWISE DEFINED IN THE SMALL BUSINESS SIZE STANDARDS REGULATION (REVISION 3), AS AMENDED, AND NOT DOMINANT IN ITS INDUSTRY OR FIELD OF OPERATION, WAS CONSIDERED AS A SMALL BUSINESS IF, TOGETHER WITH ITS AFFILIATES, ITS NUMBER OF EMPLOYEES DID NOT EXCEED 500 PERSONS OR IF IT HELD A SMALL BUSINESS CERTIFICATE. THERE WAS NO SEPARATE DEFINITION OF A SMALL MANUFACTURER OF MECHANICAL MEASURING AND CONTROLLING INSTRUMENTS, INCLUDING RADIAC MEASURING AND DETECTING DEVICES. FURTHER, TEXAS NUCLEAR DID NOT HOLD A SMALL BUSINESS CERTIFICATE.

"WE UNDERSTAND THAT, AS OF JUNE 21, 1963:

"/1) TEXAS NUCLEAR WAS WHOLLY OWNED BY THE NUCLEAR-CHICAGO CORPORATION, (NUCLEAR-CHICAGO), DES PLAINES, ILLINOIS, AND THAT NUCLEAR-CHICAGO ALSO OWNED NUCLEAR-CHICAGO EUROPA, N.V., AMSTERDAM, AND ALSO WAS AFFILIATED WITH NUCLEAR INSTRUMENT AND CHEMICAL CORPORATION, TEXAS BIO-NUCLEAR CORPORATION, AND THE TARTAR SALES COMPANY.

"/2) NUCLEAR INSTRUMENT AND CHEMICAL CORPORATION, TEXAS BIO NUCLEAR CORPORATION, AND THE TARTAR SALES COMPANY WERE INACTIVE AND HAD NO EMPLOYEES.

"/3) THE TOTAL AVERAGE EMPLOYMENT OF TEXAS NUCLEAR, NUCLEAR-CHICAGO (INCLUDING ITS RIDL DIVISION), NUCLEAR-CHICAGO EUROPA, NUCLEAR INSTRUMENT AND CHEMICAL CORPORATION, TEXAS BIO-NUCLEAR CORPORATION, AND THE TARTAR SALES COMPANY, FOR THE FOUR QUARTERS PRECEDING JUNE 21, 1963, WAS 494 PERSONS.

"WE HAVE DETERMINED THAT, ON JUNE 21, 1963, TEXAS NUCLEAR WAS AFFILIATED WITH NUCLEAR-CHICAGO AND THE OTHER COMPANIES LISTED IN SUBPARAGRAPH THREE ABOVE, THAT THE TOTAL AVERAGE EMPLOYMENT OF ALL SUCH COMPANIES TAKEN TOGETHER WAS LESS THAN 500 PERSONS, AND THAT TEXAS NUCLEAR, TOGETHER WITH ITS AFFILIATES, WAS NOT DOMINANT IN ITS INDUSTRY OR FIELD OF OPERATION, SINCE 41 COMPANIES WHICH MANUFACTURE MECHANICAL MEASURING DEVICES EMPLOY MORE THAN 500 PERSONS AND ACCOUNT FOR APPROXIMATELY 63 PERCENT OF THE TOTAL VALUE ADDED.

"IN VIEW OF THE ABOVE, WE HAVE DETERMINED THAT TEXAS NUCLEAR WAS A SMALL BUSINESS CONCERN FOR THE PURPOSE OF AWARD UNDER IFB AMC/R/-29 040-63-74.'

INASMUCH AS THE LOWEST BIDDER THAT RESPONDED TO THE INVITATION RESERVED FOR SMALL BUSINESS HAS BEEN DETERMINED BY THE SMALL BUSINESS ADMINISTRATION TO HAVE BEEN A SMALL BUSINESS CONCERN AT THE TIME THE AWARD WAS MADE, YOUR ALLEGATION THAT THE BIDDER WAS NOT A SMALL BUSINESS CONCERN AT THE TIME OF AWARD IS NOT SUPPORTED BY THE RECORD AND, THEREFORE, THE FACT THAT YOU WERE NOT ALLOWED TO HAVE THE SMALL BUSINESS ADMINISTRATION DETERMINE THE BIDDER'S STATUS PRIOR TO AWARD IS NOT NOW A MATERIAL ISSUE IN THE CASE.