B-170241, FEB 16, 1971, 50 COMP GEN 559

B-170241: Feb 16, 1971

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CONTRACTS - AWARDS - LABOR SURPLUS AREAS - CERTIFICATE OF ELIGIBILITY - VALIDITY ALTHOUGH THE FIRST PREFERENCE LABOR SURPLUS CERTIFICATE OF ELIGIBILITY FURNISHED BY A SMALL BUSINESS CONCERN WAS INVALID AS THE BIDDER HAD NO PLANT IN THE LABOR SURPLUS AREA AT THE TIME THE CERTIFICATE WAS ISSUED. THE AWARD NEED NOT BE CANCELED AS IT IS VOIDABLE AT THE GOVERNMENT'S OPTION RATHER THAN VOID AB INITIO. SINCE IT WAS MADE IN GOOD FAITH AS THE CONTRACTING OFFICER WAS REQUIRED TO ACCEPT THE CERTIFICATE IN THE ABSENCE OF A PRE-AWARD PROTEST OR EVIDENCE OF ERROR ON THE FACE OF THE CERTIFICATE. 1971: REFERENCE IS MADE TO YOUR LETTERS DATED JULY 9. THE SOLICITATION WAS ISSUED ON MAY 15. 1970): THE LOW RESPONSIVE RESPONSIBLE BIDDER ON THE NON-SET-ASIDE PORTION WAS THE VP COMPANY WHO RECEIVED AWARD OF CONTRACT DAAKO1-70-C-7694 FOR THAT PORTION IN THE TOTAL AMOUNT OF $1.

B-170241, FEB 16, 1971, 50 COMP GEN 559

CONTRACTS - AWARDS - LABOR SURPLUS AREAS - CERTIFICATE OF ELIGIBILITY - VALIDITY ALTHOUGH THE FIRST PREFERENCE LABOR SURPLUS CERTIFICATE OF ELIGIBILITY FURNISHED BY A SMALL BUSINESS CONCERN WAS INVALID AS THE BIDDER HAD NO PLANT IN THE LABOR SURPLUS AREA AT THE TIME THE CERTIFICATE WAS ISSUED, THE PLANT BEING ACQUIRED A MONTH AFTER THE AWARD OF THE SET-ASIDE PORTION OF THE PROCUREMENT FOR DETECTING SETS TO THE CONCERN ON THE BASIS OF THE LABOR SURPLUS PREFERENCE, THE AWARD NEED NOT BE CANCELED AS IT IS VOIDABLE AT THE GOVERNMENT'S OPTION RATHER THAN VOID AB INITIO, SINCE IT WAS MADE IN GOOD FAITH AS THE CONTRACTING OFFICER WAS REQUIRED TO ACCEPT THE CERTIFICATE IN THE ABSENCE OF A PRE-AWARD PROTEST OR EVIDENCE OF ERROR ON THE FACE OF THE CERTIFICATE, WHICH PROSPECTIVELY LOCATED THE PLANT IN THE SURPLUS LABOR AREA, AND ALSO THE CONTRACTING OFFICER PROPERLY WAIVED THE OMISSION OF THE PLANT'S ADDRESS IN THE SURPLUS LABOR AREA AS A MINOR DEVIATION.

TO UNIVERSAL INDUSTRIES, INC., FEBRUARY 16, 1971:

REFERENCE IS MADE TO YOUR LETTERS DATED JULY 9, JULY 24, SEPTEMBER 4, OCTOBER 27, AND NOVEMBER 25, 1970, PROTESTING AGAINST THE AWARD OF A CONTRACT TO FOURDEE INCORPORATED UNDER SOLICITATION NO. DAAKO1-70-B 6402, ISSUED BY THE DEPARTMENT OF THE ARMY, ARMY MATERIEL COMMAND (AMC), U.S. ARMY MOBILITY EQUIPMENT COMMAND, DIRECTORATE OF PROCUREMENT AND PRODUCTION, ST. LOUIS, MISSOURI.

THE SOLICITATION WAS ISSUED ON MAY 15, 1970, FOR THE PURCHASE OF 6,426 DETECTING SETS, MINE PORTABLE METALLIC (U), IN ACCORDANCE WITH MIL-D 0023356BME). THE SOLICITATION PROVIDED FOR A 50 PERCENT SET-ASIDE FOR SMALL BUSINESS CONCERNS.

THE COURSE OF THE INSTANT PROCUREMENT PRIOR TO AWARD MAY BE SUMMARIZED AS FOLLOWS (QUOTING FROM THE ARMY REPORT OF AUGUST 13, 1970):

THE LOW RESPONSIVE RESPONSIBLE BIDDER ON THE NON-SET-ASIDE PORTION WAS THE VP COMPANY WHO RECEIVED AWARD OF CONTRACT DAAKO1-70-C-7694 FOR THAT PORTION IN THE TOTAL AMOUNT OF $1,023,143.00.

SIX SMALL BUSINESS (AND ONE INELIGIBLE LARGE BUSINESS) FIRMS SUBMITTED RESPONSIVE BIDS ON THE NON-SET-ASIDE PORTION AT A UNIT PRICE WITHIN 130% OF THE VP'S HIGHEST UNIT PRICE AND THUS WERE ELIGIBLE TO PARTICIPATE IN NEGOTIATIONS FOR AWARD OF THE 50% SET-ASIDE PORTION AS PROVIDED IN ARTICLE 3 OF THE INVITATION ENTITLED "NOTICE OF PARTIAL SMALL BUSINESS SET-ASIDE (1969 JUNE)." THOSE FIRMS WERE (UTILIZING PRICES BID FOR OPTION 1 - MILITARY PREPARATION RATHER THAN OPTION 2 - COMMERCIAL PREPARATION):

THE VP COMPANY $1,041,943.00

POLAN INDUSTRIES 1,067,890.50

FOURDEE INC. 1,087,508.00

UNIVERSAL INDUSTRIES INC. 1,104,730.40

AEROTRONIC CONTROLS CO. 1,127,339.00

BARNETT INSTRUMENT CO. 1,209,245.00

AFTER CAREFUL EVALUATION, THE PRIORITY FOR NEGOTIATIONS OF THE SET ASIDE PORTION PURSUANT TO ARTICLE 3 WAS DETERMINED TO BE AS FOLLOWS:

GROUP 1 - FOURDEE INC.

UNIVERSAL INDUSTRIES

GROUP 3 - POLAN INDUSTRIES

GROUP 4 - THE VP COMPANY

AEROTRONICS CONTROL COMPANY

BARNETT INSTRUMENTS COMPANY

FOURDEE INC. WAS DETERMINED TO HAVE FALLEN WITHIN GROUP 1 BY ITS SUBMISSION OF A CERTIFICATE OF ELIGIBILITY FOR PREFERENCE IN FEDERAL PROCUREMENT UNDER DEFENSE MANPOWER POLICY NO. 4 WITH ITS BID. IT WAS FOUND TO BE FIRST IN THE ORDER OF PRIORITY BASED ON ITS HAVING SUBMITTED THE LOWEST BID PRICE ON THE NON-SET-ASIDE PORTION OF THE FIRMS WITHIN GROUP 1.

PRIOR TO AWARD, A PRE-AWARD SURVEY WAS REQUESTED AND PERFORMED BY THE DEFENSE CONTRACT ADMINISTRATION SERVICES DISTRICT ORLANDO, FLORIDA ON FOURDEE INC.

THE PRE-AWARD SURVEY REPORT NOTED THAT FOURDEE HAD "COORDINATED WITH THE U.S. DEPARTMENT OF LABOR AND THE FLORIDA STATE EMPLOYMENT SERVICE, TAMPA, FLORIDA, RELATIVE TO "ELIGIBILITY FOR PREFERENCE IN FEDERAL PROCUREMENT" UNDER THE DEFENSE MANPOWER POLICY NO. 4" AND PLANNED "TO PERFORM APPROXIMATELY 25% OF THE CONTRACT EFFORT IN THE TAMPA AREA."

BASED ON THE FOREGOING CONFIRMATION OF FOURDEE'S STATUS AS A CERTIFIED ELIGIBLE CONCERN, THE CONTRACTING OFFICER CONDUCTED NEGOTIATIONS AND MADE AWARD OF CONTRACT DAAKO1-70-C-7973 TO FOURDEE FOR THE SET-ASIDE PORTION IN THE TOTAL AMOUNT OF $1,021,477.24 ON 25 JUNE 1970.

APPROXIMATELY 4 DAYS AFTER THE AWARD OF THE SET-ASIDE PORTION TO FOURDEE, YOUR COMPANY QUESTIONED THE ELIGIBILITY AND PRIORITY GIVEN TO INITIAL NEGOTIATIONS WITH FOURDEE FOR THE SET-ASIDE PORTION AND ASSERTED THAT FOURDEE WAS ONLY ENTITLED TO A GROUP 2 CLASSIFICATION RATHER THAN GROUP 1 BECAUSE ITS CERTIFICATE OF ELIGIBILITY FOR PREFERENCE WAS INVALID. SUBSEQUENT TO YOUR POST-AWARD ALLEGATIONS CONCERNING THE VALIDITY OF FOURDEE'S FIRST PREFERENCE CERTIFICATE, THE PROCUREMENT ACTIVITY'S CONTRACT SPECIALIST "MADE VERBAL INQUIRY OF THE DEPARTMENT OF LABOR TO ASCERTAIN WHETHER THE CERTIFICATE OF ELIGIBILITY WAS VALID." A MEMORANDUM DATED JULY 2, 1970, DESCRIBES THAT INQUIRY AND THE RESPONSE THERETO AS FOLLOWS:

REFERENCE TELECON 30 JUNE 69 IN WHICH CONTRACTOR'S CONTENTION WAS THAT THERE WAS NO VERIFICATION THAT THIS COMPANY (FOURDEE) INTENDED TO PRODUCE THIS WORK IN A CRITICAL LABOR SURPLUS AREA.

2 JULY 70 - A TELECON WAS MADE TO THE DEPARTMENT OF LABOR, 813-229 5121, MR. FRED JOHNSON AND FOURDEE'S CERTIFICATE OF ELIGIBILITY UNDER DEFENSE MANPOWER POLICY NO. 4 DATED 1 JUNE 70 WAS DISCUSSED. MR. JOHNSON STATED FOURDEE'S CERTIFICATE WAS IN PERFECT ORDER AND IS THE ONLY AGREEMENT BETWEEN THE DEPARTMENT OF LABOR AND FOURDEE AND THIS IS THE ONLY AGREEMENT REQUIRED BY LAW. FOURDEE HAS INFORMED THE DEPARTMENT OF LABOR THAT WITHIN 30 DAYS HE WILL HAVE A FACILITY IN THE TAMPA MODEL CITIES AREA READY TO START PRODUCTION. THE DEPARTMENT OF LABOR WILL MAKE PERSONAL CONTACT TO ASSURE THE CONTRACTOR IS ADHERING TO THE DMP4 "DISADVANTAGED" PROGRAM. STATED THEY WERE IMPRESSED WITH FOURDEE'S PRESENTATION.

APPARENTLY, DUE TO THE CONTINUED ALLEGATIONS OF YOUR COMPANY THAT THE CERTIFICATE WAS INVALID, INCLUDING A PROTEST TO OUR OFFICE, THE PROCUREMENT ACTIVITY, BY LETTER DATED JULY 23, 1970, REQUESTED THAT THE DEPARTMENT OF LABOR "FURNISH THIS OFFICE WITH THE DECISION OF THE DEPARTMENT OF LABOR CONCERNING THE VALIDITY OF THE CERTIFICATE OF PREFERENCE ISSUED TO FOURDEE COMPANY *** " BY LETTER DATED AUGUST 7, 1970, THE ASSOCIATE MANPOWER ADMINISTRATOR FOR U.S. TRAINING AND EMPLOYMENT SERVICE, MANPOWER ADMINISTRATION, DEPARTMENT OF LABOR, ADVISED THE ACTIVITY THAT "THE CERTIFICATE WAS INVALID."

WE NEED NOT RULE UPON THE VALIDITY OF THE CERTIFICATE IN QUESTION, SINCE THE ASSOCIATE SOLICITOR FOR MANPOWER, DEPARTMENT OF LABOR, REVIEWED THE MATTER AT THE REQUEST OF THE ASSOCIATE MANPOWER ADMINISTRATOR. THE ASSOCIATE SOLICITOR'S RESPONSE, DATED AUGUST 28, 1970, IS AS FOLLOWS:

WE HAVE REVIEWED THE MATERIAL WHICH YOU SUBMITTED TO US REGARDING DMP 4 CERTIFICATION OF FOURDEE, INCORPORATED AT TAMPA, FLORIDA AND CONCUR WITH YOUR DISPOSITION OF THE LEGAL ASPECTS OF THIS QUESTION AS REFLECTED IN THE KORFONTA TO NORWEED TELEGRAM OF JULY 13, 1970, AND YOUR LETTER OF AUGUST 7 TO A.T. MCGRATH OF THE U.S. ARMY MOBILITY EQUIPMENT COMMAND.

THE STATE EMPLOYMENT SECURITY AGENCY, UNDER THE AMENDMENTS TO 29 CFR PART 8, WHICH BECAME EFFECTIVE ON JUNE 1, 1970 IS WITHOUT AUTHORITY TO ISSUE FIRST PREFERENCE CERTIFICATES UNLESS THE REQUESTING PARTY IS AN "EMPLOYING ESTABLISHMENT IN OR NEAR ... CLASSIFIED SECTIONS OF CONCENTRATED UNEMPLOYMENT OR UNDEREMPLOYMENT ... " THE REGIONAL MANPOWER ADMINISTRATOR HAS INDICATED THAT FOURDEE DID NOT BECOME "OPERATIONAL" IN TAMPA, WHICH IS SUCH AN AREA, UNTIL JULY 24, 1970, AND THERE IS NO CLEAR INDICATION THAT FOURDEE HAD AN EMPLOYING ESTABLISHMENT IN TAMPA BEFORE THAT DATE. THEREFORE, UNDER THESE CIRCUMSTANCES NO AUTHORITY EXISTED FOR THE ISSUANCE OF A FIRST PREFERENCE CERTIFICATION TO FOURDEE FROM JUNE 1 UNTIL JULY 24.

SIMILARLY, UNDER THE PROVISIONS OF THE REGULATIONS WHICH WERE IN EFFECT PRIOR TO JULY 1, 1970, THE STATE EMPLOYMENT SECURITY AGENCY WAS WITHOUT AUTHORITY TO ISSUE FIRST PREFERENCE GROUP CERTIFICATES UNLESS THE REQUESTING PARTIES WERE "FIRMS IN OR NEAR ... CLASSIFIED SECTIONS." THIS "IN OR NEAR" REQUIREMENT FOR FIRST PREFERENCE WAS APPLICABLE UNDER THE OLD REGULATIONS TO ANY TYPE OF CERTIFICATE WHICH THE STATE EMPLOYMENT SECURITY AGENCY WAS AUTHORIZED TO ISSUE.

SINCE WE ADOPT THE POSITION TAKEN BY THE DEPARTMENT OF LABOR THAT NO AUTHORITY EXISTED FOR THE ISSUANCE OF THE FIRST PREFERENCE CERTIFICATION TO FOURDEE UNTIL ALMOST 1 MONTH AFTER CONTRACT AWARD, IT IS CLEAR THAT FOURDEE WAS NOT ENTITLED TO FIRST PRIORITY NEGOTIATION FOR AWARD OF THE SET-ASIDE PORTION OF THE SOLICITATION. THEREFORE, AT ISSUE IS WHAT EFFECT, IF ANY, THE SUBSEQUENTLY ASCERTAINED INVALIDITY OF THE CERTIFICATE HAD ON THE AWARD OF THE CONTRACT TO FOURDEE. IN ADDITION, CONSISTENT WITH YOUR PROTEST, WE MUST ALSO CONSIDER THE EFFECT OF THE FAILURE OF FOURDEE TO INDICATE IN ITS BID, AS REQUIRED BY PARAGRAPHS 24 AND 27 OF THE SOLICITATION, THE LOCATION OF THE PLANT WHERE THE WORK UNDER THE SET-ASIDE PORTION OF THE CONTRACT WAS TO BE PERFORMED; I.E., TAMPA, FLORIDA.

WITH RESPECT TO THE FIRST ISSUE, OUR OFFICE HAS HAD OCCASION TO CONSIDER SITUATIONS CLOSELY ANALOGOUS TO THE ONE HERE INVOLVED. IN THESE CASES, IN RESPONSE TO A SOLICITATION RESTRICTING ELIGIBILITY FOR AWARD TO SMALL BUSINESS CONCERNS, A BIDDER WILL SELF-CERTIFY THAT IT IS A SMALL BUSINESS CONCERN AND RECEIVE AN AWARD BASED UPON THAT CERTIFICATION. SUBSEQUENT TO AWARD, IT IS DISCOVERED THAT, THROUGH NO FAULT OF THE BIDDER, THE SELF- CERTIFICATION WAS IN ERROR. WE HAVE HELD THAT THE AWARDED CONTRACT, BASED UPON THE BIDDER'S GOOD FAITH SELF CERTIFICATION, AND THE GOVERNMENT'S GOOD FAITH ACCEPTANCE OF THE CERTIFICATION, IS VOIDABLE, RATHER THAN VOID AB INITIO, SOLELY AT THE OPTION OF THE GOVERNMENT. SEE 49 COMP. GEN. 369, 375-376 (1969).

SINCE THE DEPARTMENT OF LABOR HAS RULED THAT THE CERTIFICATE OF ELIGIBILITY FURNISHED WITH FOURDEE'S BID WAS INVALID DUE TO THE FACT FOURDEE HAD NO PLANT IN OR NEAR THE TAMPA LABOR SURPLUS AREA AT THE TIME THE CERTIFICATE WAS ISSUED, WE BELIEVE THAT THE ABOVE RATIONALE SHOULD BE APPLIED WITH RESPECT TO THIS PROCUREMENT.

THE CERTIFICATE INVOLVED WAS FURNISHED WITH FOURDEE'S BID IN ACCORDANCE WITH ARTICLE 3(E) OF THE SOLICITATION WHICH STATES:

(E) ELIGIBILITY BASED ON CERTIFICATION. WHERE ELIGIBILITY FOR PREFERENCE IS BASED UPON THE STATUS OF THE BIDDER AS A "CERTIFIED ELIGIBLE CONCERN," THE BIDDER SHALL FURNISH WITH HIS BID EVIDENCE OF ITS FIRST TIER SUBCONTRACTORS' CERTIFICATION BY THE SECRETARY OF LABOR.

THE CERTIFICATE READS WITH RESPECT TO THE LOCATION OF FOURDEE'S PLANT: IT IS HEREBY CERTIFIED THAT: FOURDEE, INCORPORATED HAS AN APPROVED PLAN TO EMPLOY DISADVANTAGED WORKERS RESIDING IN MODEL CITIES AREA OF TAMPA, FLORIDA IN ITS FACILITIES LOCATED AT OR TO BE LOCATED AT TAMPA, FLORIDA THE FIRM NAMED ABOVE IS THEREFORE CERTIFIED FOR PREFERENCE IN PROCUREMENT OF FEDERAL GOVERNMENT CONTRACTS UNDER DEFENSE MANPOWER POLICY NO. 4. ***

THE CERTIFICATE, APPROVED JUNE 1, 1970, IS SIGNED BY THE MANAGER OF THE FLORIDA STATE EMPLOYMENT SERVICE, TAMPA, FLORIDA. THE CAPTION TO THE CERTIFICATE STATES AS FOLLOWS:

U.S. DEPARTMENT OF LABOR

MANPOWER ADMINISTRATION

BUREAU OF EMPLOYMENT SECURITY

WASHINGTON, D.C. 20210

CERTIFICATE OF ELIGIBILITY

FOR PREFERENCE IN FEDERAL PROCUREMENT

UNDER DEFENSE MANPOWER POLICY NO. 4

THE PREAWARD SURVEY ON FOURDEE CLEARLY INDICATED TO THE CONTRACTING OFFICER THAT FOURDEE HAD NO PLANT IN TAMPA PRIOR TO AWARD. IN ADDITION, UNDER THE LANGUAGE OF THE CERTIFICATE, FOURDEE WAS PERMITTED TO PROSPECTIVELY LOCATE IN THE TAMPA AREA. UNDER THESE CIRCUMSTANCES, THE CONTRACTING OFFICER CANNOT REASONABLY BE CHARGED WITH NOTICE OF AN ERROR IN THE CERTIFICATE SO AS TO HAVE REQUIRED HIM TO QUESTION THE CERTIFICATE'S VALIDITY.

DEFENSE MANPOWER POLICY 4-PLACEMENT OF PROCUREMENT AND FACILITIES IN SECTIONS AND AREAS OF HIGH UNEMPLOYMENT, 32A CFR, CHAPTER 1, MAKES IT CLEAR THAT THE SECRETARY OF LABOR IS RESPONSIBLE FOR CERTIFYING ESTABLISHMENTS WHICH AGREE TO PERFORM CONTRACTS IN OR NEAR SECTIONS OF CONCENTRATED EMPLOYMENT OR UNDEREMPLOYMENT. ARMED SERVICES AND PROCUREMENT REGULATION (ASPR) 1-800 WAS PROMULGATED TO IMPLEMENT THESE POLICIES WITHIN THE DEPARTMENT OF DEFENSE. ASPR 1-803(A)(IV) PROVIDES THAT THE DEPARTMENT OF LABOR CERTIFICATIONS SHALL BE CONSIDERED CONCLUSIVE WITH RESPECT TO A PARTICULAR PROCUREMENT. SEE ARTICLE 3(B)(3)(I) OF THE SOLICITATION AS FOLLOWS:

(I) "CERTIFIED ELIGIBLE CONCERN" MEANS A CONCERN (A) LOCATED IN OR NEAR A SECTION OF CONCENTRATED UNEMPLOYMENT OR UNDEREMPLOYMENT WHICH HAS BEEN CERTIFIED BY THE SECRETARY OF LABOR IN ACCORDANCE WITH 29 CFR 8.7(B) WITH RESPECT TO THE EMPLOYMENT OF DISADVANTAGED PERSONS RESIDING WITHIN SUCH SECTIONS, AND (B) WHICH WILL AGREE TO PERFORM, OR CAUSE TO BE PERFORMED BY A CERTIFIED CONCERN, A SUBSTANTIAL PROPORTION OF A CONTRACT IN OR NEAR SUCH SECTIONS; IT INCLUDES A CONCERN WHICH, THOUGH NOT SO CERTIFIED, AGREES TO HAVE A SUBSTANTIAL PROPORTION OF A CONTRACT PERFORMED BY CERTIFIED CONCERNS IN OR NEAR SUCH SECTIONS. A CONCERN SHALL BE DEEMED TO PERFORM A SUBSTANTIAL PROPORTION OF A CONTRACT IN OR NEAR SECTIONS OF CONCENTRATED UNEMPLOYMENT OR UNDEREMPLOYMENT IF THE COSTS THAT THE CONCERN WILL INCUR ON ACCOUNT OF MANUFACTURING OR PRODUCTION IN OR NEAR SUCH SECTIONS (BY ITSELF IF A CERTIFIED CONCERN, OR BY CERTIFIED CONCERNS ACTING AS FIRST-TIER SUBCONTRACTORS AMOUNT TO MORE THAN 25 PERCENT OF THE CONTRACT PRICE.

CONSIDERING THE ABOVE REGULATIONS AND SOLICITATION PROVISIONS, IT WOULD BE UNREASONABLE TO IMPUTE TO THE CONTRACTING OFFICER ANY IMPROPER ACTION OR BAD FAITH IN ACCEPTING THE CERTIFICATE SUBMITTED WITH FOURDEE'S BID AS OTHER THAN A VALID, SUBSISTING CERTIFICATE. WE BELIEVE THAT UNDER THE APPLICABLE REGULATIONS, THE CONTRACTING OFFICER IS REQUIRED TO ACCEPT THE CERTIFICATE AT FACE VALUE IN THE ABSENCE OF A PREAWARD PROTEST FROM OTHER BIDDERS OR ERRORS OBVIOUS ON THE FACE OF THE CERTIFICATE. SEE B-161991, SEPTEMBER 15, 1967, AND 46 COMP. GEN. 123, 132 (1966). AN EXAMINATION OF THE RECORD FAILS TO DISCLOSE EVIDENCE OF BAD FAITH ON THE PART OF FOURDEE EITHER IN APPLYING FOR THE CERTIFICATE OR IN SUBMITTING THE CERTIFICATE WITH ITS BID. THROUGHOUT THE PREAWARD PERIOD, FOURDEE INDICATED ITS INTENTION TO PROSPECTIVELY ESTABLISH ITS PLANT IN TAMPA. IN CONCLUSION, WE QUOTE, AS DISPOSITIVE OF THIS ISSUE FROM OUR DECISION AT 41 COMP. GEN. 252 (1961), WHERE THE SMALL BUSINESS STATUS OF AN AWARDEE WAS DETERMINED TO BE ERRONEOUS APPROXIMATELY 1 MONTH AFTER AWARD:

*** FURTHERMORE, THERE IS NO EVIDENCE TO INDICATE THAT DAWSON, JOHNSON & KIBLER WAS IMPRUDENT OR LACKING IN GOOD FAITH WHEN IT CERTIFIED ITSELF AS A SMALL BUSINESS CONCERN SINCE PRIOR TO THAT SELF CERTIFICATION THE SMALL BUSINESS ADMINISTRATION HAD IN ITS TWO MOST RECENT DETERMINATIONS ON THE SIZE STATUS OF THE FIRM DECLARED THAT THE FIRM WAS A SMALL BUSINESS CONCERN. ***

THERE, AS HERE, BOTH THE BIDDER AND THE GOVERNMENT RELIED ON AN APPARENTLY VALID ELIGIBILITY DETERMINATION MADE BY THE GOVERNMENT AGENCY REQUIRED TO MAKE SUCH DETERMINATIONS IN CONSUMMATING THE AWARD OF THE CONTRACT. WE THEREFORE CONCLUDE THAT THE SUBMISSION OF THE CERTIFICATE OF ELIGIBILITY WITH THE BID ENTITLED THE CONTRACTING OFFICER TO RELY UPON SUCH CERTIFICATE.

WITH RESPECT TO YOUR CONTENTION AS TO FOURDEE'S FAILURE TO INSERT IN PARAGRAPH 24, AS REQUIRED, THE LABOR SURPLUS AREA ADDRESS (LOCATION) AT WHICH IT WAS TO PERFORM AT LEAST 25 PERCENT OF THE CONTRACT PRICE, ATTENTION IS INVITED TO THE INTRODUCTORY PROVISION OF THAT PARAGRAPH SPECIFICALLY ADVISING BIDDERS THAT:

THIS PROCUREMENT IS NOT SET ASIDE FOR LABOR SURPLUS AREA CONCERNS. HOWEVER, THE OFFEROR'S STATUS AS SUCH A CONCERN MAY AFFECT ENTITLEMENT TO AWARD IN CASE OF TIE OFFERS, OR OF OFFER EVALUATION IN ACCORDANCE WITH THE BUY AMERICAN CLAUSE OF THIS SOLICITATION. IN ORDER TO HAVE HIS ENTITLEMENT TO A PREFERENCE DETERMINED IF THOSE CIRCUMSTANCES SHOULD APPLY, THE OFFER MUST: ***

WE BELIEVE THAT A REASONABLE READING OF PARAGRAPH 24 RESULTS IN THE CONCLUSION THAT IT APPLIES TO A BIDDER'S ENTITLEMENT TO AWARD ON THE NON- SET-ASIDE PORTION OF THE SOLICITATION ONLY IN THE SPECIFIC LIMITED INSTANCES MENTIONED THEREIN. CONSEQUENTLY, FOURDEE'S FAILURE WITH REGARD TO THE PROVISIONS OF THAT PARAGRAPH DID NOT AFFECT ITS ELIGIBILITY FOR AWARD ON THE SMALL-BUSINESS SET-ASIDE PORTION OF THE SOLICITATION.

WITH RESPECT TO PARAGRAPH 27, FOURDEE DESIGNATED ITS HOME PLANT AT CASSELBERRY, FLORIDA, AS THE PLANT WHERE THE WORK WAS TO BE PERFORMED RATHER THAN THE PROPOSED SITE AT TAMPA, FLORIDA. ALTHOUGH IT IS APPARENT THAT FOURDEE FAILED TO FURNISH COMPLETE INFORMATION IN THE APPROPRIATE SPACES AS TO THE LOCATION OF ITS LABOR SURPLUS AREA PLANT, WE VIEW SUCH FAILURE AS A MINOR DEVIATION FROM THE REQUIREMENTS OF THE SOLICITATION WHICH COULD HAVE BEEN WAIVED BY THE CONTRACTING OFFICER. WE BELIEVE THAT THE FURNISHING OF THE CERTIFICATE OF ELIGIBILITY WITH THE BID CLEARLY EVIDENCED THE FACT THAT FOURDEE WOULD PERFORM THE REQUIRED PORTION OF ANY RESULTANT CONTRACT AT A FACILITY AT TAMPA, FLORIDA. SEE ASPR 2-405.

SINCE, UNDER ARTICLE 3(D) OF FOURDEE'S CONTRACT, IT AGREES TO PERFORM A SUBSTANTIAL PORTION OF THE CONTRACT IN OR NEAR SECTIONS OF CONCENTRATED UNEMPLOYMENT OR UNDEREMPLOYMENT, AND SINCE IT WOULD NOT NOW BE IN THE GOVERNMENT'S BEST INTERESTS TO CANCEL THE CONTRACT, WHICH WAS ENTERED INTO IN GOOD FAITH, YOUR PROTEST IS DENIED.