United Metal Receptacle Corporation, No. 4155 (February 28, 1996) Docket No. SIZ-96-1-16-7 UNITED STATES OF AMERICA SMALL BUSINESS ADMINISTRATION OFFICE OF HEARINGS AND APPEALS WASHINGTON, D.C. _______________________________ ) SIZE APPEAL OF: ) ) United Metal Receptacle ) Corporation ) ) Appellant ) ) Docket No. SIZ-96-1-16-7 Re: The Witt Company ) ) Solicitation No. ) 2FYS AQ-95-0002S ) General Services Administration) Office Supply Center ) New York, New York ) _______________________________) DIGEST Unsupported allegations by an appellant are accorded less evidentiary weight than signed, sworn statements to the contrary made in the challenged firm's SBA Form 355 and other certified submissions. Advertising materials that proclaim, with the challenged firm's permission, that the alleged affiliate is selling the challenged firm's products, do not establish without more affiliation under the Small Business Administration's size regulations. DECISION February 28, 1996 BLAZSIK, Administrative Judge: Jurisdiction This appeal is decided under the Small Business Act of 1958, 15 U.S.C. Sections 631 et seq., and 13 C.F.R. Part 121. Issues Whether an appellant has submitted evidence sufficient to rebut the challenged firm's signed and certified statements which establish the challenged firm's small business size status. Whether advertising materials that proclaim, with the challenged firm's permission, that the challenged firm's alleged affiliate is selling the former's products establish without more affiliation between the two firms. Facts On June 13, 1995, the Contracting Officer for the General Services Administration, Office Supply Center, New York, New York, issued this solicitation for "Metal Waste Paper Baskets," and classified it under Standard Industrial Classification code 3499 (Fabricated Metal Products, Not Elsewhere Classified), having a 500 employees size standard. The solicitation was a total small business set-aside, and bid-opening was on July 13, 1995. The Contracting Officer awarded the contract to The Witt Company (Witt) on September 15, 1995. On October 11, 1995, United Metal Receptacle Corporation (Appellant) filed a protest with the Contracting Officer against Witt's small business size status. Appellant alleged that Witt is affiliated with Safco Products Company (Safco), a known large firm. In support of its protest, Appellant asserted that Safco's advertising and marketing materials, copies of which Appellant attached to its protest, show a linkage between Witt and Safco that rises to the level of affiliation under the Small Business Administration (SBA) size regulations. On November 20, 1995, the Contracting Officer forwarded the protest to the SBA's Chicago Office of Government Contracting, Area IV (Area Office), and requested a size determination on Witt, specifically referring to the protest's allegations. The Area Office's file contains Witt's SBA Form 355, Articles of Incorporation, By-Laws, and other statements in response to the protest's allegations. The documents show that Witt is a family-owned business. Marcy and Mary Wydman own 51 and 49 percent of Witt's voting stock, respectively, and serve as Witt's Directors. Witt employs three other persons who are the firm's principal officers. None of the individuals shown on Witt's SBA Form 355 is an owner, partner, director, officer, or employee in any other firm. Witt's total number of employees is well below the applicable size standard. Concerning the protest's specific allegation, Witt stated that the two firms have entered into a sales agreement for a period of time under which Safco will purchase annually a specific amount of Witt's products.[1] In conjunction with this agreement, Safco has advertised, with Witt's permission, that it is selling Witt's products. Witt asserted that these are merely advertising materials and are not meant to suggest that the two firms are affiliated. Witt asserted that the two firms are totally independent of each other, and that the only relationship between the two firms is that of buyer and seller. In its December 8, 1995 determination, the Area Office found that Safco's advertising materials regarding Witt's products are merely marketing techniques and "creative advertising" and that there is no evidence to show that the firms are affiliated. Accordingly, the Area Office concluded that Witt is a small firm under the applicable size standard. Appellant received the Area Office's size determination on December 12, 1995, and filed an appeal that was postmarked January 10, 1996. Arguments on Appeal Appellant asserts that the Area Office failed to properly assess the advertising materials submitted to it that proclaim, in Appellant's opinion, that Witt and Safco are engaged in an "alliance," indicating affiliation. Appellant asserts that the advertising materials are conclusive evidence supporting a finding of affiliation between the two firms. On February 7, 1996, Witt filed a response, arguing that the protest was untimely and cannot apply to this solicitation. Witt asserts that the relationship between the two firms are strictly that of buyer and seller, and that Witt has many other customers besides Safco. Witt asserts that it has authorized Safco to advertise that Safco sells products manufactured by Witt. Thus, the advertising materials referred to by Appellant are consistent with the agreement between the two companies, supra, and do not represent affiliation under the SBA's size regulations. Discussion Because the appeal was postmarked within 30 days from the date the Appellant received the size determination, the appeal is timely. 13 C.F.R. Section 121.1705(a)(1). Additionally, although the protest was late-filed, the Contracting Officer adopted the protest's allegations. Thus, this was a Contracting Officer's protest and, as such, it is timely for this solicitation. 13 C.F.R. Section 121.1603(b)(2). A review of the record demonstrates that the Area IV Office conducted a full and complete size investigation of Witt based upon the protest's allegations. The investigation included consideration of signed and certified statements (made subject to civil and criminal prosecution) attesting to the completeness and accuracy of the disclosures concerning Witt's owners and the number of its employees. These disclosures show that Witt has no affiliates and its total number of employees is well below the applicable size standard. It is well established that sworn, certified statements made by a challenged firm on its SBA Form 355 and other submissions are accorded greater evidentiary weight than unsupported allegations to the contrary. Size Appeal of J.E. McAmis, Inc., No. 3694 (1992). Appellant has failed to present either the quantum or type of evidence necessary to rebut Witt's specific representations. First, Appellant's only evidence to show affiliation between the firms is its bare assertion that certain advertising materials issued by Safco support a finding that Safco and Witt are affiliates. This assertion, however, is without merit. Witt's evidence clearly shows that Safco is merely one of Witt's buyers and that, with Witt's acquiescence, Safco could advertise that it is selling Witt's products. Because Appellant established none of the regulatory criteria for affiliation (13 C.F.R. Section 121.401), the Area Office was correct in concluding, that such advertising does not rise to the level of affiliation. Second, Appellant's unsupported allegations are insufficient to rebut Witt's signed and certified submissions, including representations made in its SBA Form 355. Thus, Appellant has failed to meet its burden of proof. 13 C.F.R. Section 121.1707; and Size Appeal of Byrne Dairy, No. 4104 (1995). Conclusion The Area Office determination is AFFIRMED, and the appeal is DENIED. This is the final decision of the Small Business Administration. 13 C.F.R. Section 121.1720(b). Gloria E. Blazsik Administrative Judge ____________________ [1] The date of the agreement is not of record.