B-206334, FEB 24, 1982

B-206334: Feb 24, 1982

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PROTEST CONCERNING BIDDER'S SMALL BUSINESS SIZE STATUS IS NOT FOR REVIEW BY GAO SINCE BY LAW IT IS MATTER FOR DECISION BY SMALL BUSINESS ADMINISTRATION. 2. ALLEGATION THAT TWO LOW BIDDERS MAY NOT BE RESPONSIBLE BECAUSE THEY MAY NOT HAVE ARRIVED AT THEIR PRICES INDEPENDENTLY. IS DISMISSED BECAUSE IT INVOLVES AN AFFIRMATIVE DETERMINATION OF RESPONSIBILITY WHICH GAO DOES NOT REVIEW EXCEPT IN CIRCUMSTANCES NOT PRESENT HERE. 3. MERE FACT THAT BIDDERS HAVE AFFILIATION WITH THEMSELVES AND OTHER FIRMS DOES NOT ESTABLISH THAT THEY FALSELY CERTIFIED IN THEIR BIDS THAT THEIR BID PRICES WERE ARRIVED AT INDEPENDENTLY. JURISDICTION IN SUCH MATTERS IS COMMITTED TO ATTORNEY GENERAL AND FEDERAL COURTS. THE PROTESTER CONTENDS THAT THE TWO FIRMS ARE NOT ELIGIBLE FOR THIS AWARD BECAUSE OF THEIR AFFILIATION WITH THEMSELVES AND SEVERAL OTHER FIRMS.

B-206334, FEB 24, 1982

DIGEST: 1. PROTEST CONCERNING BIDDER'S SMALL BUSINESS SIZE STATUS IS NOT FOR REVIEW BY GAO SINCE BY LAW IT IS MATTER FOR DECISION BY SMALL BUSINESS ADMINISTRATION. 2. ALLEGATION THAT TWO LOW BIDDERS MAY NOT BE RESPONSIBLE BECAUSE THEY MAY NOT HAVE ARRIVED AT THEIR PRICES INDEPENDENTLY, CONTRARY TO THE CERTIFICATION IN THEIR BIDS, IS DISMISSED BECAUSE IT INVOLVES AN AFFIRMATIVE DETERMINATION OF RESPONSIBILITY WHICH GAO DOES NOT REVIEW EXCEPT IN CIRCUMSTANCES NOT PRESENT HERE. 3. MERE FACT THAT BIDDERS HAVE AFFILIATION WITH THEMSELVES AND OTHER FIRMS DOES NOT ESTABLISH THAT THEY FALSELY CERTIFIED IN THEIR BIDS THAT THEIR BID PRICES WERE ARRIVED AT INDEPENDENTLY. IN ANY CASE, JURISDICTION IN SUCH MATTERS IS COMMITTED TO ATTORNEY GENERAL AND FEDERAL COURTS, NOT GAO.

WILKINSON MANUFACTURING COMPANY:

WILKINSON MANUFACTURING COMPANY PROTESTS THE SMALL BUSINESS SIZE STATUS OF THE TWO LOW BIDDERS UNDER INVITATION FOR BIDS (IFB) NO. BM-82 12, ISSUED BY THE BUREAU OF THE MINT, DEPARTMENT OF THE TREASURY, AS A SMALL BUSINESS SET-ASIDE. THE PROTESTER CONTENDS THAT THE TWO FIRMS ARE NOT ELIGIBLE FOR THIS AWARD BECAUSE OF THEIR AFFILIATION WITH THEMSELVES AND SEVERAL OTHER FIRMS. THE PROTESTER ALSO SUGGESTS THAT THE FIRMS MAY NOT BE RESPONSIBLE PROSPECTIVE CONTRACTORS BECAUSE THEY MAY HAVE FALSELY CERTIFIED IN THEIR BIDS THAT THEIR BID PRICES WERE ARRIVED AT INDEPENDENTLY.

WE WILL NOT CONSIDER THESE MATTERS.

FIRST, UNDER 15 U.S.C. SEC. 637(B) (1976), THE SMALL BUSINESS ADMINISTRATION (SBA) IS EMPOWERED TO CONCLUSIVELY DETERMINE MATTERS OF SMALL BUSINESS SIZE STATUS FOR FEDERAL PROCUREMENT AND SALES PURPOSES. THEREFORE, THIS OFFICE DOES NOT CONSIDER SIZE STATUS PROTESTS. SEE BUD JOHNSON CONSTRUCTION CO., INC., B-192310, JULY 26, 1978, 78-2 CPD 74. RATHER, SUCH PROTESTS ARE TO BE FILED WITHIN FIVE DAYS OF BID OPENING WITH THE CONTRACTING OFFICER, WHO FORWARDS THE PROTESTS TO SBA FOR RESOLUTION. FEDERAL PROCUREMENT REGULATIONS (FPR) SECS. 1-1.703.2(A) AND (B)(1). THE PROTESTER'S CORRESPONDENCE SUGGESTS THAT IT HAS DONE THIS.

SECOND, AS THE PROTESTER CORRECTLY RECOGNIZES, THE CERTIFICATION OF INDEPENDENT PRICE DETERMINATION PERTAINS TO THE BIDDERS' RESPONSIBILITY. SEE COLUMBUS MARBLE WORKS, INC., B-193754, AUGUST 29, 1979, 79-2 CPD 138. IT IS NOT CLEAR WHETHER THE CONTRACTING OFFICER HAD DETERMINED THE RESPONSIBILITY OF EITHER OR BOTH OF THE TWO LOW BIDDERS AT THE TIME THE PROTEST WAS FILED. WE NOTE, HOWEVER, THAT OUR OFFICE DOES NOT REVIEW AFFIRMATIVE RESPONSIBILITY DETERMINATIONS UNLESS FRAUD IS ALLEGED ON THE PART OF PROCUREMENT OFFICIALS OR THE SOLICITATION CONTAINS DEFINITIVE RESPONSIBILITY CRITERIA WHICH ALLEGEDLY HAVE NOT BEEN MET. NEITHER EXCEPTION IS PRESENT HERE.

WE ALSO NOTE THAT THE PURPOSE OF A CERTIFICATION OF INDEPENDENT PRICE DETERMINATION IS TO ASSURE THAT BIDDERS DO NOT COLLUDE TO SET PRICES OR TO RESTRICT COMPETITION BY INDUCING OTHERS NOT TO BID, WHICH WOULD CONSTITUTE A CRIMINAL OFFENSE. SEE COLUMBUS MARBLE WORKS, INC., SUPRA. THE FACT THAT TWO BIDDERS HAVE AFFILIATION WITH THEMSELVES AND SEVERAL OTHER FIRMS DOES NOT ESTABLISH THAT THEY HAVE CONSPIRED IN EITHER RESPECT. SEE 51 COMP.GEN. 403, 405 (1972); GRIMALDI PLUMBING & HEATING CO., INC., B-183642, MAY 20, 1975, 75-1 CPD 307.

IN ANY EVENT, IT IS WITHIN THE JURISDICTION OF THE ATTORNEY GENERAL AND THE FEDERAL COURTS TO DETERMINE WHAT CONSTITUTES A VIOLATION OF A CRIMINAL STATUTE, NOT THE GENERAL ACCOUNTING OFFICE. SEE INDUSTRIAL DESIGN LABORATORIES, INC., B-190031, MAY 19, 1978, 78-1 CPD 385. FPR SEC. 1- 1.901 DOES REQUIRE THAT WHERE A CERTIFICATION OF INDEPENDENT PRICE DETERMINATION IS SUSPECTED OF BEING FALSE OR THERE OTHERWISE IS AN INDICATION OF COLLUSION, THE MATTER BE REFERRED TO THE ATTORNEY GENERAL BY THE PROCURING AGENCY. FURTHER, WE KNOW OF NOTHING THAT WOULD PREVENT WILKINSON ITSELF FROMASKING THE ATTORNEY GENERAL TO REVIEW THE MATTER. SEE COLUMBUS MARBLE WORKS, INC., SUPRA; INDUSTRIAL DESIGN LABORATORIES, INC., SUPRA.

THE PROTEST IS DISMISSED.