B-146258, AUGUST 28, 1961, 41 COMP. GEN. 160

B-146258: Aug 28, 1961

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CLEARLY ESTABLISHED BOTH THE ARITHMETICAL MISTAKE IN A UNIT PRICE AND THE AMOUNT OF THE INTENDED BID WAS A PROPER EXERCISE OF ADMINISTRATIVE AUTHORITY UNDER PARAGRAPH 2- 406.3 (E) (3) OF THE ARMED SERVICES PROCUREMENT REGULATION. ALTHOUGH AN INVITATION FOR THE NON-SET-ASIDE PORTION OF A MILITARY PROCUREMENT REQUIRED BIDDERS TO STIPULATE THE PLACE OF MANUFACTURE WHERE THE WORK IS TO BE PERFORMED. THAT INFORMATION ALONE WILL NOT NECESSARILY RESOLVE THE QUESTION OF WHETHER MORE THAN 50 PERCENT OF THE TOTAL COSTS OF MANUFACTURE AND PRODUCTION WILL BE INCURRED IN THE AREA WHERE THE BIDDER'S PLANT IS LOCATED WITHIN THE MEANING OF THE DEFINITION. AN AWARD FOR THE SET-ASIDE PORTION NEGOTIATED ON THE BASIS OF INFORMATION SUPPLIED AFTER OPENING AS TO THE AMOUNT OF SUBCONTRACTING TO BE DONE BY THE LOW BIDDER IN A PERSISTENT LABOR SURPLUS AREA WILL NOT BE QUESTIONED.

B-146258, AUGUST 28, 1961, 41 COMP. GEN. 160

BIDS - MISTAKES - CORRECTION - EVIDENCE OF ERROR--- CONTRACTS - AWARDS - LABOR SURPLUS AREAS - QUALIFICATION--- CONTRACTS - SPECIFICATIONS - DEFINITENESS REQUIREMENT THE CORRECTION OF A LOW BID ON THE NON-SET-ASIDE PORTION OF A MILITARY PROCUREMENT BASED UPON AN ADMINISTRATIVE DETERMINATION THAT THE EVIDENCE SUBMITTED BY THE BIDDER, AFTER REQUEST FOR CONFIRMATION, TOGETHER WITH COMMENTS OF A GOVERNMENT ENGINEER ON THE MISTAKE, CLEARLY ESTABLISHED BOTH THE ARITHMETICAL MISTAKE IN A UNIT PRICE AND THE AMOUNT OF THE INTENDED BID WAS A PROPER EXERCISE OF ADMINISTRATIVE AUTHORITY UNDER PARAGRAPH 2- 406.3 (E) (3) OF THE ARMED SERVICES PROCUREMENT REGULATION, THE WEIGHT TO BE GIVEN EVIDENCE IN SUPPORT OF AN ALLEGED MISTAKE BEING A QUESTION OF FACT FOR CONSIDERATION BY THE EVALUATOR OF THE EVIDENCE. ALTHOUGH AN INVITATION FOR THE NON-SET-ASIDE PORTION OF A MILITARY PROCUREMENT REQUIRED BIDDERS TO STIPULATE THE PLACE OF MANUFACTURE WHERE THE WORK IS TO BE PERFORMED, UNDER THE DEFINITION OF A LABOR SURPLUS AREA CONCERN IN PARAGRAPH 1-801.1 OF THE ARMED SERVICES PROCUREMENT REGULATION, THAT INFORMATION ALONE WILL NOT NECESSARILY RESOLVE THE QUESTION OF WHETHER MORE THAN 50 PERCENT OF THE TOTAL COSTS OF MANUFACTURE AND PRODUCTION WILL BE INCURRED IN THE AREA WHERE THE BIDDER'S PLANT IS LOCATED WITHIN THE MEANING OF THE DEFINITION, WHICH RECOGNIZES THAT COSTS ALONE MAY QUALIFY OR DISQUALIFY A CONCERN AS A SURPLUS LABOR AREA CONCERN, AND, THEREFORE, AN AWARD FOR THE SET-ASIDE PORTION NEGOTIATED ON THE BASIS OF INFORMATION SUPPLIED AFTER OPENING AS TO THE AMOUNT OF SUBCONTRACTING TO BE DONE BY THE LOW BIDDER IN A PERSISTENT LABOR SURPLUS AREA WILL NOT BE QUESTIONED. INVITATIONS FOR LABOR SURPLUS SET-ASIDES SHOULD CONTAIN CLEAR STATEMENTS AS TO THE INFORMATION WHICH BIDDERS WILL BE REQUIRED TO FURNISH FOR DETERMINATION OF ELIGIBILITY AS A SURPLUS LABOR CONCERN, THE SUPPORTING DATA, IF ANY, WHICH MAY BE REQUIRED, AND WHETHER ANY OR ALL OF THE INFORMATION IS TO BE FURNISHED WITH THE INVITATION AND THE EFFECT OF FAILURE TO FURNISH THE INFORMATION; HOWEVER, PENDING THE ISSUANCE OF DEFINITE INSTRUCTIONS, NEGOTIATIONS FOR LABOR SURPLUS SET ASIDES UNDER INVITATIONS WHICH DO NOT CONTAIN SPECIFIC REQUIREMENTS SHOULD BE CONDUCTED ON THE BASIS OF FULL INFORMATION OBTAINED FROM ALL ELIGIBLE, INTERESTED BIDDERS RATHER THAN FROM ONLY THE LOW BIDDER ON THE NON-SET-ASIDE PORTION.

TO THE SECRETARY OF THE ARMY, AUGUST 28, 1961:

REFERENCE IS MADE TO A LETTER DATED JULY 31, 1961, WITH ENCLOSURES, FROM THE DEPUTY CHIEF, CONTRACTS DIVISION, OFFICE OF THE DEPUTY CHIEF OF STAFF FOR LOGISTICS, CONCERNING THE PROTESTS OF BRISTOL ELECTRONICS, INC., AND WATERMAN PRODUCTS COMPANY, INC., AGAINST THE AWARD OF A CONTRACT TO SENTINEL ELECTRONICS, INC., ON THE NON-SET-ASIDE PORTION OF INVITATION FOR BIDS NO. SC-36-039-61-1079-A3 AND AGAINST A PROPOSED NEGOTIATED AWARD OF A CONTRACT TO SENTINEL ELECTRONICS, INC., ON THE SET-ASIDE PORTION OF THE SAME INVITATION.

INVITATION FOR BIDS NO. SC-36-039-61-1079-A3 WAS ISSUED ON APRIL 19, 1961, BY THE U.S. ARMY SIGNAL SUPPLY AGENCY, PHILADELPHIA, PENNSYLVANIA, FOR THE MANUFACTURE OF 260 OSCILLOSCOPES, DELIVERY F.O.B. POINT OF ORIGIN. THE INVITATION PROVIDED THAT AN ADDITIONAL QUANTITY OF 262 OSCILLOSCOPES HAD BEEN SET ASIDE FOR AWARD ONLY TO ONE OR MORE LABOR SURPLUS AREA CONCERNS, AND, TO A LIMITED EXTENT, TO SMALL BUSINESS CONCERNS WHICH DO NOT QUALIFY AS LABOR SURPLUS AREA CONCERNS. ALSO, THE INVITATION PROVIDED THAT NEGOTIATIONS FOR THE SET-ASIDE PORTION WOULD BE CONDUCTED ONLY WITH RESPONSIBLE LABOR SURPLUS AREA CONCERNS (AND SMALL BUSINESS CONCERNS TO THE EXTENT INDICATED) WHO HAD SUBMITTED RESPONSIVE BIDS ON THE NON-SET-ASIDE PORTION AT A UNIT PRICE WITHIN 120 PERCENT OF THE HIGHEST AWARD MADE ON THE NON-SET-ASIDE PORTION, IN THE FOLLOWING ORDER OF PRIORITY AND UNDER THE FOLLOWING CONDITIONS:

GROUP 1. PERSISTENT LABOR SURPLUS AREA CONCERNS WHICH ARE ALSO SMALL BUSINESS CONCERNS.

GROUP 2. OTHER PERSISTENT LABOR SURPLUS AREA CONCERNS.

GROUP 3. SUBSTANTIAL LABOR SURPLUS AREA CONCERNS WHICH ARE ALSO SMALL BUSINESS CONCERNS.

GROUP 4. OTHER SUBSTANTIAL LABOR SURPLUS AREA CONCERNS.

GROUP 5. SMALL BUSINESS CONCERNS WHICH ARE NOT LABOR SURPLUS AREA CONCERNS.

WITHIN EACH OF THE ABOVE GROUPS, NEGOTIATIONS WITH SUCH CONCERNS WILL BE CONDUCTED IN THE ORDER OF THEIR BIDS OR PROPOSALS ON THE NON SET-ASIDE PORTION, BEGINNING WITH THE LOWEST RESPONSIVE BID OR PROPOSAL. THE SET- ASIDE QUANTITY/S) WILL BE AWARDED AT THE HIGHEST UNIT PRICE AWARDED FOR THE NON-SET-ASIDE PORTION ADJUSTED TO REFLECT TRANSPORTATION AND OTHER COST FACTORS WHICH WERE CONSIDERED IN EVALUATING BIDS ON THE NON-SET-ASIDE PORTION. WHEN A CONCERN HAS OFFERED INCREMENTS AT DIFFERENT PRICES, EACH INCREMENT WILL BE CONSIDERED AS A SEPARATE BID OR PROPOSAL. THE GOVERNMENT RESERVES THE RIGHT NOT TO CONSIDER TOKEN BIDS OR OTHER DEVICES DESIGNED TO SECURE AN UNFAIR ADVANTAGE OVER OTHER BIDDERS ELIGIBLE FOR THE SET-ASIDE PORTION.

A "LABOR SURPLUS AREA" IS DEFINED ON PAGE 10 OF THE INVITATION AS A "GEOGRAPHICAL AREA" WHICH AT TIME OF AWARD IS---

(I) CLASSIFIED BY THE DEPARTMENT OF LABOR AS AN " AREA OF SUBSTANTIAL LABOR SURPLUS" OR " AREA OF SUBSTANTIAL AND PERSISTENT LABOR SURPLUS" AND LISTED AS SUCH BY THAT DEPARTMENT IN CONJUNCTION WITH ITS BIMONTHLY PUBLICATION " AREA LABOR MARKET TRENDS; " OR

(II) NOT CLASSIFIED AS IN (1. ABOVE, BUT WHICH IS INDIVIDUALLY CERTIFIED AS AN AREA OF PERSISTENT OR SUBSTANTIAL LABOR SURPLUS BY THE DEPARTMENT OF LABOR AT THE REQUEST OF ANY PROSPECTIVE CONTRACTOR.

(2) LABOR SURPLUS AREA CONCERN INCLUDES---

(I) PERSISTENT LABOR SURPLUS AREA CONCERNS WHICH WILL PERFORM OR CAUSE TO BE PERFORMED ANY CONTRACTS AWARDED TO THEM AS LABOR SURPLUS AREA CONCERNS SUBSTANTIALLY IN " AREAS OF SUBSTANTIAL AND PERSISTENT LABOR SURPLUS; " AND

(II) SUBSTANTIAL LABOR SURPLUS AREA CONCERNS WHICH WILL PERFORM OR CAUSE TO BE PERFORMED ANY CONTRACTS AWARDED TO THEM AS LABOR SURPLUS AREA CONCERNS SUBSTANTIALLY IN " AREAS OF SUBSTANTIAL LABOR SURPLUS.'

PAGE 16 OF THE INVITATION REQUESTED BIDDERS TO FURNISH INFORMATION WITH THEIR BIDS AS TO (1) PLACE OF MANUFACTURE, (2) PLACE OF PACKAGING AND PACKING, AND (3) SHIPPING POINT. IN CONNECTION THEREWITH THE INVITATION BORE A NOTATION THAT IF NO INSERTIONS WERE MADE AS TO PLACE OF MANUFACTURE, THE NAME AND ADDRESS OF THE BIDDER WOULD GOVERN.

BIDS WERE OPENED ON MAY 15, 1961. AWARD OF THE NON-SET-ASIDE PORTION OF THE INVITATION (260 OSCILLOSCOPES) WAS MADE ON JUNE 20, 1961, TO SENTINEL ELECTRONICS, INC. EVALUATION OF THE BIDS WITHIN 120 PERCENT OF THE AWARD UNIT PRICE SHOWED THAT ONLY TWO BIDDERS WERE IN A PERSISTENT LABOR AREA (GROUP 1), BASED UPON INFORMATION CONTAINED IN THE BIDS. THESE FIRMS WERE BRISTOL ELECTRONICS, INC., NEW BEDFORD, MASSACHUSETTS, AND THE WINSLOW COMPANY, ASBURY PARK, NEW JERSEY. ONE BIDDER, SENTINEL ELECTRONICS, INC., PHILADELPHIA, PENNSYLVANIA, WAS IN A SUBSTANTIAL LABOR SURPLUS AREA. ALL OTHER BIDDERS WITHIN THE SCOPE OF CONSIDERATION WERE NOT IN A LABOR SURPLUS AREA. THE WINSLOW COMPANY ADVISED THAT THEY WOULD REDUCE THEIR PRICE NO LOWER THAN THAT OF THE FOURTH LOW BIDDER, WATERMAN PRODUCTS COMPANY. BRISTOL ADVISED THE CONTRACTING OFFICER ON JUNE 22, 1961, THAT THEY WOULD MEET THE PRICE OF SENTINEL, THE LOWEST BIDDER. DURING JUNE 1961, SOME QUESTION AROSE AS TO WHETHER BRISTOL QUALIFIED FOR AN AWARD AND THE RECORD SHOWS THAT THE REGIONAL OFFICE OF THE SMALL BUSINESS ADMINISTRATION IN BOSTON, MASSACHUSETTS, ANTICIPATED AN APPLICATION BY BRISTOL FOR A CERTIFICATE OF COMPETENCY.

ON JUNE 21, 22 AND 23, 1961, SENTINEL SUBMITTED EVIDENCE THAT IT WOULD HAVE FACILITIES AVAILABLE IN GOULDSBORO, PENNSYLVANIA, AND ALSO A CERTIFICATION THAT THE LOCATION WAS IN A PERSISTENT AND SUBSTANTIAL LABOR SURPLUS AREA. IN ADDITION, THE AMOUNT OF SUBCONTRACTING INDICATED BY SENTINEL TO BE PERFORMED IN PERSISTENT LABOR SURPLUS AREAS CLEARLY SHOWED THAT MORE THAN 50 PERCENT OF THE SUPPLIES WOULD BE MANUFACTURED IN THOSE AREAS. ON JUNE 24, 1961, THE CONTRACTING OFFICER REQUESTED THAT THE CASE INVOLVING THE ISSUANCE OF A CERTIFICATE OF COMPETENCY TO BRISTOL BE WITHDRAWN FROM SBA, SINCE SENTINEL HAD QUALIFIED AS A LABOR SURPLUS FACILITY UNDER THE PROVISIONS OF PARAGRAPH 1-801.1, ARMED SERVICES PROCUREMENT REGULATION. THEREAFTER, ON JUNE 26, 1961, BRISTOL PHONED THE CONTRACTING OFFICER AND STATED THAT IT WOULD PROTEST THE PROPOSED AWARD TO SENTINEL ON THE SET-ASIDE PORTION OF THE PROCUREMENT BECAUSE IT WAS PERMITTED TO BE CERTIFIED AS PERFORMING IN A PERSISTENT LABOR SURPLUS AREA. ALSO, BRISTOL PROTESTED THE CORRECTION OF SENTINEL'S BID PRICE PRIOR TO AWARD ON THE NON-SET ASIDE PORTION OF THE PROCUREMENT. WATERMAN PRODUCTS COMPANY, INC., ALSO HAS PROTESTED THE CORRECTION OF THE BID PRICE OF SENTINEL.

WITH REGARD TO THE PROTESTS OF BRISTOL AND WATERMAN AGAINST THE CORRECTION OF SENTINEL'S BID PRICE ON THE NON-SET-ASIDE PORTION OF THE PROCUREMENT, THE RECORD SHOWS THAT AFTER OPENING OF BIDS THREE BIDDERS, INCLUDING SENTINEL AND BRISTOL, WERE REQUESTED TO CONFIRM THEIR BIDS. LETTER OF MAY 25, 1961, SENTINEL ALLEGED THAT IT HAD MADE A MISTAKE OF $100 IN ADDITION ON PAGE 15 OF ITS WORKSHEETS AND THAT, AS A RESULT OF THE ERROR, ITS INTENDED BID PRICE PER UNIT FOR ITEM 1 SHOULD HAVE BEEN $785 RATHER THAN $685 AS ORIGINALLY BID. SENTINEL REQUESTED PERMISSION TO CORRECT ITS BID TO REFLECT THE INTENDED UNIT PRICE FOR ITEM 1 AND SUBMITTED PHOTOSTATS OF ITS ORIGINAL WORKSHEETS, VENDORS' QUOTATIONS AND PRICE LISTS TO SUPPORT ITS CLAIM. AFTER EVALUATION OF THE EVIDENCE SUBMITTED, TOGETHER WITH COMMENTS ON THE MISTAKE FURNISHED BY A GOVERNMENT ENGINEER, IT WAS CONCLUDED THAT THE FILE CLEARLY AND CONVINCINGLY ESTABLISHED BOTH THE EXISTENCE OF THE ALLEGED MISTAKE AND THE AMOUNT OF THE INTENDED BID. SINCE SENTINEL'S BID, AS CORRECTED, WAS STILL THE LOWEST BID RECEIVED, THE MATTER WAS FORWARDED TO THE DEPUTY CHIEF OF STAFF FOR LOGISTICS, CHIEF, CONTRACTS DIVISION, DEPARTMENT OF THE ARMY, FOR DETERMINATION IN ACCORDANCE WITH ASPR 2 406.3 (E) (3). ON JUNE 19, 1961, THAT OFFICER AUTHORIZED THE CONTRACTING OFFICER TO CORRECT SENTINEL'S BID. ACCORDINGLY, ON JUNE 20, 1961, SENTINEL WAS AWARDED CONTRACT NO. DA- 36-039-SC-88308 FOR THE NON-SET-ASIDE PORTION OF 260 OSCILLOSCOPES AT $785 PER UNIT.

THE AUTHORITY TO MAKE CORRECTIONS SUCH AS INVOLVED IN THE INSTANT CASE WAS GRANTED AND IS MATERIALLY CONSISTENT WITH OUR OFFICE DECISION OF JUNE 29, 1954, B-120281. SINCE THE WEIGHT TO BE GIVEN EVIDENCE IN SUPPORT OF AN ALLEGED MISTAKE IS A QUESTION OF FACT TO BE CONSIDERED BY THE EVALUATOR OF THE EVIDENCE, WE PERCEIVE NO LEGAL BASIS FOR CONCLUDING THAT THE EVIDENCE WAS NOT SUFFICIENTLY CLEAR AND CONVINCING TO WARRANT CORRECTION OF SENTINEL'S BID. ACCORDINGLY, WE MUST CONCLUDE THAT YOUR DEPARTMENT FOLLOWED THE PROCUREMENT PROCEDURES IN THIS REGARD.

WITH REGARD TO THE PROPOSED AWARD TO SENTINEL ON THE SET-ASIDE PORTION OF THE PROCUREMENT (262 OSCILLOSCOPES), BRISTOL HAS PROTESTED THAT THE PLACE OF MANUFACTURE SHOWN BY SENTINEL IN ITS BID ( PHILADELPHIA) MUST GOVERN THE DETERMINATION OF ELIGIBILITY FOR NEGOTIATION. AND SINCE THE PHILADELPHIA AREA FALLS WITHIN GROUP 3 OF THE ORDER OF PRIORITY (SUBSTANTIAL LABOR SURPLUS AREA), BRISTOL CONTENDS THAT IT IS ENTITLED TO PRIORITY FOR NEGOTIATION SINCE ITS PLACE OF MANUFACTURE SHOWN IN ITS BID ( NEW BEDFORD, MASSACHUSETTS) IS IN GROUP 1 (PERSISTENT LABOR SURPLUS AREA) AND SINCE IT HAD SUBMITTED A BID WITHIN 120 PERCENT OF THE HIGHEST AWARD PRICE ON THE NON-SET-ASIDE PORTION OF THE PROCUREMENT. BRISTOL CONTENDS FURTHER THAT SENTINEL SHOULD NOT BE ALLOWED, AFTER OPENING OF BIDS, TO DESIGNATE GOULDSBORO, PENNSYLVANIA, AS ITS PLACE OF MANUFACTURE (A PERSISTENT LABOR SURPLUS AREA) SINCE IT WOULD GIVE SENTINEL, THE LOW BIDDER, AN UNFAIR ADVANTAGE OVER OTHER BIDDERS. SENTINEL CONTENDS THAT IT HAS QUALIFIED IN ACCORDANCE WITH ASPR 1-801 IN THAT IT INTENDS TO PRODUCE OR MANUFACTURE MORE THAN 50 PERCENT IN AREAS OF PERSISTENT LABOR SURPLUS BY SUBCONTRACTING, IN ADDITION TO MANUFACTURING IN GOULDSBORO, TO OTHER COMPANIES IN AREAS OFFICIALLY DESIGNATED AS PERSISTENT LABOR SURPLUS AREAS BY THE DEPARTMENT OF LABOR. SPECIFICALLY, ASPR 1-801.1 PROVIDES THAT---

A CONCERN SHALL BE DEEMED TO PERFORM A CONTRACT SUBSTANTIALLY IN " AREAS OF SUBSTANTIAL AND PERSISTENT LABOR SURPLUS" IF THE COSTS THAT IT INCURS ON ACCOUNT OF MANUFACTURING OR PRODUCTION (BY ITSELF ORITS SUBCONTRACTORS) IN SUCH AREAS AMOUNT TO MORE THAN 50 PERCENT OF THE CONTRACT PRICE. CONCERN SHALL BE DEEMED TO PERFORM A CONTRACT SUBSTANTIALLY IN " AREAS OF SUBSTANTIAL LABOR SURPLUS" IF THE COSTS THAT IT INCURS ON ACCOUNT OF MANUFACTURING OR PRODUCTION (BY ITSELF OR ITS SUBCONTRACTORS) IN SUCH AREAS OR IN " AREAS OF SUBSTANTIAL OR PERSISTENT LABOR SURPLUS" AMOUNT TO MORE THAN 50 PERCENT OF THE CONTRACT PRICE.

EXAMPLE A. ABC COMPANY, MANUFACTURING IN A FULL EMPLOYMENT AREA, BIDS ON A CONTRACT OF $1,000. ABC COMPANY WILL INCUR THE FOLLOWING COSTS:

DIRECT LABOR--------------------------------------------- $200

OVERHEAD------------------------------------------------- 200

PURCHASE OF MATERIALS FROM XYZ, WHICH MANUFACTURES THE

MATERIALS IN A LABOR SURPLUS AREA --------------------- 510 ABC COMPANY QUALIFIES AS A LABOR SURPLUS AREA CONCERN.

EXAMPLE B. DEF COMPANY, MANUFACTURING IN A LABOR SURPLUS AREA, BIDS ON A CONTRACT AT $1,000. DEF COMPANY WILL INCUR THE FOLLOWING COSTS:

DIRECT LABOR--------------------------------------------- $200

OVERHEAD------------------------------------------------- 200

PURCHASE OF MATERIALS FROM UVW, WHICH IS LOCATED IN A LABOR

SURPLUS AREA BUT WHICH MERELY DISTRIBUTES THE MATERIALS

FROM STOCKS ON HAND (THE MATERIALS HAVING BEEN

MANUFACTURED BY UVW'S SUPPLIER/----------------------- 550

DEF COMPANY DOES NOT QUALIFY AS A LABOR SURPLUS AREA CONCERN REGARDLESS OF WHETHER UVW'S SUPPLIER MANUFACTURES IN A LABOR SURPLUS AREA.

EXAMPLE C. GHI COMPANY, MANUFACTURING IN A LABOR SURPLUS AREA, BIDS ON A CONTRACT AT $1,000. GHI COMPANY WILL INCUR THE FOLLOWING COSTS:

DIRECT LABOR-------------------------------------------- $230

OVERHEAD------------------------------------------------ 275

PURCHASE OF MATERIALS FROM RST, WHICH MANUFACTURES THE

MATERIALS IN A FULL EMPLOYMENT AREA--------------------- 425 GHI COMPANY QUALIFIES AS A LABOR SURPLUS AREA CONCERN.

FROM THE ABOVE EXAMPLES, IT IS OBVIOUS THAT THE PLACE AT WHICH THE CONTRACTOR WILL ITSELF PERFORM MAY BE WHOLLY IMMATERIAL IF MORE THAN 50 PERCENT OF THE TOTAL COST OF PERFORMANCE WILL BE INCURRED FOR SUBCONTRACTING OR PURCHASE OF MATERIALS OR COMPONENTS. THE LOCATION OR LOCATIONS OF THE SOURCES OF SUCH MATERIALS OR COMPONENTS WILL, UNDER THE REGULATION, DETERMINE THE STATUS OF THE PRIME CONTRACTOR AS A LABOR SURPLUS AREA CONCERN.

THE INVITATION IN THIS CASE REQUIRED THAT BIDDERS STIPULATE IN THEIR BIDS THE "PLACE OF MANUFACTURE" WHERE THE WORK IS TO BE PERFORMED. UNDER THE ASPR DEFINITION OF A LABOR SURPLUS AREA CONCERN WHICH WILL PERFORM (EITHER BY ITSELF OR OTHERS), SUBSTANTIALLY ALL THE WORK (MORE THAN 50 PERCENT OF THE CONTRACT PRICE) IN A DISTRESSED LABOR AREA, COSTS OF PERFORMANCE INCLUDE THE AMOUNTS INCURRED "IN MANUFACTURING OR PRODUCTION.' ONE OF THE COSTS OF "PRODUCTION" IS THE COST OF PURCHASED MATERIALS AND THE EXAMPLES GIVEN IN ASPR RECOGNIZE THAT SUCH COSTS ALONE MAY BE SUFFICIENT TO QUALIFY A FIRM OR DISQUALIFY IT AS A SURPLUS AREA CONCERN. THEREFORE, WHILE IT MAY BE ASCERTAINED FROM THE INVITATION THAT A BIDDER WILL "PERFORM THE WORK" AT A PLANT (PLACE OF MANUFACTURE), THAT INFORMATION ALONE WILL NOT NECESSARILY RESOLVE THE QUESTION WHETHER MORE THAN 50 PERCENT OF THE TOTAL COSTS OF MANUFACTURE AND PRODUCTION WILL BE INCURRED IN THE AREA WHERE ITS PLANT IS LOCATED. FROM THE INFORMATION REQUIRED BY THIS INVITATION IT IS NOT POSSIBLE TO DETERMINE, WITH ANY DEGREE OF CERTAINTY, WHETHER A BIDDER IS ENTITLED TO PRIORITY IN NEGOTIATION BY QUALIFYING AS A LABOR SURPLUS AREA CONCERN AS DEFINED IN ASPR 1-801.1. WE ARE OF THE VIEW THAT INVITATIONS INVOLVING LABOR SURPLUS SET-ASIDES SHOULD CONTAIN CLEAR STATEMENTS AS TO THE INFORMATION WHICH BIDDERS WILL BE REQUIRED TO FURNISH, THE SUPPORTING DATA, IF ANY, WHICH MAY BE REQUIRED, AND WHETHER ANY OR ALL OF SUCH INFORMATION IS TO BE FURNISHED WITH THE INVITATION AND THE EFFECT OF FAILURE TO FURNISH IT.

IN THE CIRCUMSTANCES, AND IN VIEW OF THE FACT THAT FURTHER INFORMATION WOULD HAVE TO BE OBTAINED FROM BRISTOL IN ORDER TO ASCERTAIN WHETHER IT WOULD QUALIFY AS A PERSISTENT LABOR SURPLUS AREA CONCERN, UNDER ASPR 1- 801.1, WE WOULD NOT QUESTION AN AWARD TO SENTINEL (THE LOW BIDDER) WHICH MAY BE NEGOTIATED ON THE BASIS OF FURTHER INFORMATION FURNISHED BY THAT COMPANY AFTER OPENING OF BIDS. PENDING THE ISSUANCE OF MORE ADEQUATE FORMS AND MORE DEFINITE INSTRUCTIONS, WE BELIEVE THAT NEGOTIATIONS FOR LABOR SURPLUS SET-ASIDES OFFERED UNDER INVITATIONS CONTAINING NO MORE SPECIFIC REQUIREMENTS THAN THOSE CONSIDERED SHOULD BE CONDUCTED ON THE BASIS OF FULL INFORMATION OBTAINED FROM ALL ELIGIBLE INTERESTED BIDDERS.