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B-213552.2, APR 10, 1984

B-213552.2 Apr 10, 1984
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DIGEST: THIS OFFICE VIEWS AS A BINDING OFFER CERTIFICATION UNDER SOLICITATION CLAUSE FOR ESTABLISHING THAT BIDDER IS OFFERING PRODUCT FROM A DESIGNATED COUNTRY PURSUANT TO THE TRADE AGREEMENTS ACT OF 1979. WHERE PROVISION IS SOLE MEANS OF ESTABLISHING WHETHER PRODUCT IS FROM DESIGNATED COUNTRY. THIS CERTIFICATE REQUIRES A BIDDER TO CERTIFY WHETHER OR NOT THE OFFERED PRODUCT WILL BE FROM A COUNTRY DESIGNATED BY THE PRESIDENT OR THE UNITED STATES TRADE REPRESENTATIVE PURSUANT TO SECTION 301 OF THE TRADE AGREEMENTS ACT OF 1979. RWANDA IS A DESIGNATED COUNTRY LISTED AT 41 C.F.R. IT WAS OUR FINDING THAT AMALGAMET MADE A BINDING OFFER TO DELIVERY TANTALUM FROM RWANDA UNDER THE PLACE OF PERFORMANCE CLAUSE AND THAT THE CERTIFICATION CONSTITUTED A WAIVABLE MINOR CLERICAL INFORMALITY.

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B-213552.2, APR 10, 1984

DIGEST: THIS OFFICE VIEWS AS A BINDING OFFER CERTIFICATION UNDER SOLICITATION CLAUSE FOR ESTABLISHING THAT BIDDER IS OFFERING PRODUCT FROM A DESIGNATED COUNTRY PURSUANT TO THE TRADE AGREEMENTS ACT OF 1979, WHERE PROVISION IS SOLE MEANS OF ESTABLISHING WHETHER PRODUCT IS FROM DESIGNATED COUNTRY.

THE HONORABLE ALLIE B. LATIMER, GENERAL COUNSEL, GENERAL SERVICES ADMINISTRATION:

DEAR MS. LATIMER:

THE GENERAL SERVICES ADMINISTRATION (GSA) REQUESTS CLARIFICATION OF OUR OPINION IN AMALGAMET, INC., B-213552, DECEMBER 23, 1983, 84-1 CPD 20. THAT DECISION, ISSUED IN RESPONSE TO A COURT REQUEST, WE SUSTAINED A PROTEST AGAINST AWARD OF CONTRACTS UNDER INVITATION FOR BIDS (IFB) NO. GS0083-DXXC-0005, ISSUED BY GSA FOR THE ACQUISITION OF TANTALUM PENTOXIDE FOR THE NATIONAL DEFENSE STOCKPILE.

GSA ADVISES THAT THE DECISION CREATES UNCERTAINTY AS TO THE LEGAL SIGNIFICANCE OF THE CERTIFICATE OF ELIGIBLE PRODUCT (CERTIFICATE) REQUIRED BY 41 C.F.R. SEC. 1-6.1609(A) (1983). THIS CERTIFICATE REQUIRES A BIDDER TO CERTIFY WHETHER OR NOT THE OFFERED PRODUCT WILL BE FROM A COUNTRY DESIGNATED BY THE PRESIDENT OR THE UNITED STATES TRADE REPRESENTATIVE PURSUANT TO SECTION 301 OF THE TRADE AGREEMENTS ACT OF 1979. ABSENT A WAIVER FROM THE UNITED STATES TRADE REPRESENTATIVE, A FEDERAL AGENCY MAY NOT PURCHASE PRODUCTS FROM A NONDESIGNATED COUNTRY. GSA STATES THAT OUR DECISION APPEARS TO HOLD THAT THE COMPLETED CERTIFICATE DOES NOT CONSTITUTE A PROMISE OR BINDING OFFER.

UNDER THE DELIVERY PORTION OF THE BID SCHEDULE, AMALGAMET INC. (AMALGAMET), COMPLETED THE "PLACE OF PERFORMANCE" CLAUSE AS FOLLOWS: "CONTRACTOR SHALL DELIVER THE TANTALUM MINED IN RWANDA (COUNTRYS OF ORIGIN) (CONTRACTOR TO COMPLETE)." RWANDA IS A DESIGNATED COUNTRY LISTED AT 41 C.F.R. SEC. 1-6.1612 (1983). HOWEVER, UNDER THE IFB CERTIFICATE, THE BIDDER HAD CERTIFIED THE ELIGIBLE PRODUCT DELIVERED WOULD NOT BE FROM A DESIGNATED COUNTRY. IT WAS OUR FINDING THAT AMALGAMET MADE A BINDING OFFER TO DELIVERY TANTALUM FROM RWANDA UNDER THE PLACE OF PERFORMANCE CLAUSE AND THAT THE CERTIFICATION CONSTITUTED A WAIVABLE MINOR CLERICAL INFORMALITY.

GSA ADVISES THAT IT INTENDS TO DELETE THE PLACE OF PERFORMANCE CLAUSE FROM FUTURE SOLICITATIONS AND, THUS, THE CERTIFICATION CLAUSE WILL BE THE ONLY AVAILABLE MEANS OF DETERMINING WHETHER THE BIDDER IS OFFERING A PRODUCT FROM A DESIGNATED COUNTRY. GSA ASKS WHETHER THE CERTIFICATE STANDING ALONE CONSTITUTES AN ENFORCEABLE BINDING COMMITMENT FOR DETERMINING WHETHER A BIDDER INTENDS TO OFFER A DESIGNATED COUNTRY'S PRODUCT.

IN OUR VIEW, IF GSA ELIMINATES THE PLACE OF PERFORMANCE CLAUSE, THE CERTIFICATE STANDING ALONE WOULD CREATE THE BINDING COMMITMENT WHICH GSA SEEKS TO ACHIEVE.

OUR DECISION ADDRESSED ONLY THE SITUATION IN WHICH A BIDDER SUBMITTED A BID WITH INCONSISTENT INFORMATION CONCERNING THE PRODUCT'S COUNTRY OF ORIGIN. READING THE BID IN ITS ENTIRETY, WE FOUND THE ONLY REASONABLE INTERPRETATION WAS THAT AMALGAMET INTENDED TO OFFER MATERIAL FROM RWANDA, A DESIGNATED COUNTRY. WE CONCLUDED THAT UNDER THE SPECIFIC IFB DELIVERY CLAUSE, AMALGAMET BOUND ITSELF TO DELIVERY TANTALUM FROM RWANDA. SINCE THE DELIVERY TERMS SPECIFICALLY OBLIGATED AMALGAMET TO DELIVER TANTALUM FROM RWANDA, WE CONCLUDED THE MISDESIGNATION IN THE CERTIFICATION DID NOT ALTER AMALGAMET'S OBLIGATION OR RESERVE TO IT ANY RIGHT TO SUPPLY TANTALUM FROM A NONDESIGNATED COUNTRY. WHERE THE IFB DELIVERY TERMS DO NOT INCLUDE A PLACE OF PERFORMANCE CLAUSE AND THE IFB CONTAINS ONLY THE CERTIFICATION PROVISION, WE THINK THE CERTIFICATION WOULD BE BINDING SINCE IT WOULD BE THE SOLE INDICATION OF THE PLACE OF PERFORMANCE.

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