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.