B-173294, SEP 1, 1971

B-173294, SEP 1, 1971

BID PROTEST - SMALL BUSINESS STATUS DECISION CONCERNING A REQUEST THAT THE COMP. GEN. INVESTIGATE THE BIDDING PRACTICES OF HUDSON TOOL & DIE COMPANY AND THE AMPEX DIVISION OF STEEL INDUSTRIES IN CONNECTION WITH CERTAIN SMALL BUSINESS SET-ASIDE PROCUREMENTS MADE BY THE ARMY AMMUNITION PROCUREMENT AND SUPPLY AGENCY. THE RECORD SHOWS THAT THE SMALL BUSINESS ADMINISTRATION, ON MAY 12, 1971, FOUND HUDSON TO BE INELIGIBLE FOR AN AWARD AS A SMALL BUSINESS CONCERN. THEREFORE, HUDSON WILL NOT BE ELIGIBLE FOR A SMALL BUSINESS SET-ASIDE AWARD UNLESS IT CAN AFFIRMATIVELY SHOW SBA THAT IT IS, INDEED, ELIGIBLE. REGARDING POSSIBLE ANTI-TRUST VIOLATIONS, SUCH MATTERS ARE WITHIN THE JURISDICTION OF THE DEPARTMENT OF JUSTICE.

TO CONCEPT INDUSTRIES, INCORPORATED:

WE REFER TO YOUR LETTER OF JUNE 11, 1971, REQUESTING THAT THIS OFFICE INVESTIGATE THE BIDDING PRACTICES OF HUDSON TOOL & DIE COMPANY (HUDSON) AND THE IMPEX DIVISION OF STEEL INDUSTRIES (IMPEX) IN CONNECTION WITH CERTAIN SMALL BUSINESS SET-ASIDE PROCUREMENTS MADE BY THE UNITED STATES ARMY AMMUNITION PROCUREMENT AND SUPPLY AGENCY (APSA). MORE SPECIFICALLY YOU ALLEGE THAT HUDSON DOES NOT QUALIFY AS A SMALL BUSINESS CONCERN BECAUSE IT IS A MERE CONDUIT FOR IMPEX, A LARGE BUSINESS CONCERN.

WE HAVE BEEN INFORMED BY APSA THAT HUDSON HAS RECEIVED ONLY ONE AWARD OUT OF THE 10 SOLICITATIONS WHICH YOU CITE. IN ADDITION WE ARE INFORMED THAT ON MAY 12, 1971, THE SMALL BUSINESS ADMINISTRATION (SBA), PURSUANT TO A PROTEST FILED BY YOUR FIRM, FOUND HUDSON TO BE INELIGIBLE FOR AN AWARD AS A SMALL BUSINESS CONCERN UNDER INVITATION FOR BIDS (IFB) NO. DAAA09-71-B- 0162. PRIOR TO THAT DETERMINATION HUDSON RECEIVED ITS ONE AWARD ON APRIL 22, 1971, APPARENTLY UNDER IFB DAAA09 71-B-0141, ON THE BASIS OF ITS SELF- CERTIFICATION AND IN THE ABSENCE OF ANY PROTEST. WE UNDERSTAND THAT YOUR FIRM DID NOT BID ON THIS PROCUREMENT.

IN ITS BID IN RESPONSE TO IFB DAAA09-71-B-0141, HUDSON CERTIFIED ITSELF AS AN ELIGIBLE SMALL BUSINESS CONCERN. UNDER ARMED SERVICES PROCUREMENT REGULATION (ASPR) 1-703 A CONTRACTING OFFICER IS REQUIRED TO ACCEPT AT FACE VALUE, FOR THE PARTICULAR PROCUREMENT INVOLVED, A CERTIFICATION BY THE BIDDER THAT IT IS A SMALL BUSINESS CONCERN UNLESS A WRITTEN PROTEST IS RECEIVED FROM ANOTHER BIDDER CONCERNING THE SIZE STATUS OF THE APPARENTLY SUCCESSFUL BIDDER OR THE CONTRACTING OFFICER QUESTIONS THE SMALL BUSINESS STATUS OF THE BIDDER AND SUBMITS HIS QUESTION TO THE SBA FOR DETERMINATION. THE REGULATIONS ALSO PROVIDE THAT A SIZE PROTEST WILL BE CONSIDERED TIMELY ONLY IF IT IS SUBMITTED TO THE CONTRACTING OFFICER PRIOR TO THE FIFTH WORKING DAY AFTER BID OPENING. WHERE A SIZE PROTEST IS RECEIVED AFTER AWARD THE REGULATIONS PROVIDE THAT THE PROTESTING BIDDER IS TO BE INFORMED THAT HIS PROTEST HAS BEEN REFERRED TO THE APPROPRIATE SBA REGIONAL OFFICE FOR ITS CONSIDERATION IN FUTURE PROCUREMENTS.

WITH REGARD TO IFB DAAA09-71-B-0162, SINCE THE SBA DETERMINED BY DECISION OF MAY 12, 1971, THAT HUDSON WAS INELIGIBLE, THE FIRM WAS DISQUALIFIED FOR AWARD. AS A RESULT OF THE DECISION OF MAY 12, HUDSON WILL NOT BE ELIGIBLE FOR A SMALL BUSINESS SET-ASIDE AWARD UNLESS IT CAN AFFIRMATIVELY SHOW SBA THAT IT IS, INDEED, AN ELIGIBLE SMALL BUSINESS CONCERN.

IN REGARD TO YOUR ALLEGATIONS INVOLVING MISREPRESENTATIONS AND POSSIBLE ANTITRUST VIOLATIONS, THESE ARE MATTERS NOT PRIMARILY WITHIN OUR JURISDICTION AND WE WERE NOT FURNISHED ENOUGH FACTS OR EVIDENCE TO WARRANT REPORTING THE CASE TO THE ATTORNEY GENERAL FOR THE PURPOSE OF DETERMINING WHETHER ANY VIOLATION OF A FEDERAL CRIMINAL LAW WAS INVOLVED. YOU MAY, OF COURSE, REQUEST THE DEPARTMENT OF JUSTICE TO CONSIDER THE CASE IF YOU FEEL THAT THERE IS SUFFICIENT EVIDENCE TO SUPPORT YOUR CONTENTIONS.