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A firm protested a Department of Housing and Urban Development (HUD) contract award, contending that: (1) the awardee was not a small business; (2) the bid evaluations was improper; and (3) HUD should have held discussions before making award. GAO held that: (1) the awardee's small business status would be determined by the Small Business Administration not HUD; (2) the protester failed to provide factual evidence to support its allegation that the bid evaluation was improper; and (3) HUD was not required to hold discussions before making award, since the solicitation informed offerors that the award might be made based on initial proposals. Accordingly, the protest was dismissed.

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B-125949, NOV. 3, 1955

TO MR. DONALD R. WATSON, CHIEF, PROCUREMENT SECTION, DEPARTMENT OF HEALTH, EDUCATION AND ELFARE:

FORWARDED HEREWITH IS A COPY OF A LETTER DATED OCTOBER 31, 1955, WITH ENCLOSURES, FROM EDWARDS COMPANY, INC., PROTESTING THE USE OF SPECIFICATIONS UNDER INVITATION NO. X128-10-17-55, ISSUED BY THE NATIONAL INSTITUTES OF HEALTH, ON THE GROUND THAT THE SPECIFICATIONS NOT ONLY ARE DISCRIMINATORY TO THIS PARTICULAR BIDDER BUT ARE HIGHLY RESTRICTIVE IN THAT THEY DESCRIBE A PRODUCT WHICH ONLY ONE MANUFACTURER CAN FURNISH.

IT IS REQUESTED THAT, WITH THE RETURN OF THE COPY OF THE LETTER AND ITS ENCLOSURES, A FULL REPORT BE FURNISHED WITH RESPECT TO THE PROTEST, TOGETHER WITH A COPY OF THE INVITATION FOR BIDS, AN ABSTRACT OF THE BIDS RECEIVED AND A REFERENCE TO THE CONTRACT AWARDED TO THE SUCCESSFUL BIDDER, GIVING THE NUMBER AND DATE OF THE CONTRACT, IF AN AWARD NOW HAS BEEN MADE.

THIS OFFICE HAS NO PRESENT KNOWLEDGE OF THE MERITS OF THE PROTEST BUT EVERY EFFORT SHOULD BE MADE TO FORWARD AN EARLY REPLY TO THIS REQUEST SO AS TO MINIMIZE THE CONSEQUENCES OF POSSIBLE CANCELLATION OF THE CONTRACT IN THE EVENT AN AWARD HAS BEEN MADE AND IT BE DETERMINED THAT THE ADMINISTRATIVE ACTION IN THAT RESPECT WAS IN ERROR.

THIS PROTEST WAS THE SUBJECT OF A TELEPHONE CONVERSATION TODAY BETWEEN OUR MR. J. E. WELCH AND YOUR MR. R. J. COLTON.