B-157217, DEC. 10, 1965

B-157217: Dec 10, 1965

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TO INSTRUMENT SYSTEMS CORPORATION: REFERENCE IS MADE TO YOUR LETTER DATED NOVEMBER 3. YOU STATE THAT IT IS YOUR BELIEF THAT ASTRONAUTICS CORPORATION OF AMERICA WAS NOT A LABOR SURPLUS AREA CONCERN WHEN THE PERTINENT INVITATION WAS EXECUTED BY THAT BIDDER AND THAT IT DID NOT IN FACT HAVE AVAILABLE A FACILITY IN HURLEY. AS WAS REPRESENTED IN ITS BID. WE STATED IN OUR DECISION THAT DEFENSE MANPOWER POLICY NO. 4 DIRECTS ALL PROCUREMENT AGENCIES "TO AWARD NEGOTIATED PROCUREMENT CONTRACTS TO CONTRACTORS WHO WILL PERFORM A SUBSTANTIAL PROPORTION OF THE PRODUCTION ON THOSE CONTRACTS WITHIN LABOR SURPLUS AREAS.'. WE HAVE STATED FURTHER THAT THE PURPOSE FOR WHICH AN AWARD IS LIMITED TO LABOR SURPLUS AREA CONCERNS IS SERVED AS LONG AS THE CONTRACTOR ABIDES BY ITS AGREEMENT AND PERFORMS IN AN AREA FALLING WITHIN THE SAME CATEGORY AS THE AREA OF PERFORMANCE SHOWN IN ITS BID.

B-157217, DEC. 10, 1965

TO INSTRUMENT SYSTEMS CORPORATION:

REFERENCE IS MADE TO YOUR LETTER DATED NOVEMBER 3, 1965, WHEREIN YOU TAKE EXCEPTION TO OUR STATEMENT IN DECISION B-157217, OCTOBER 11, 1965, TO YOU REGARDING PREFERENCE GIVEN TO FIRMS REPRESENTING THAT OVER 50 PERCENT OF THE CONTRACT COST WOULD BE INCURRED IN A LABOR SURPLUS AREA IN AWARDING THE SET-ASIDE PORTION OF THE INVOLVED CONTRACT. YOU STATE THAT IT IS YOUR BELIEF THAT ASTRONAUTICS CORPORATION OF AMERICA WAS NOT A LABOR SURPLUS AREA CONCERN WHEN THE PERTINENT INVITATION WAS EXECUTED BY THAT BIDDER AND THAT IT DID NOT IN FACT HAVE AVAILABLE A FACILITY IN HURLEY, WISCONSIN, AS WAS REPRESENTED IN ITS BID.

AFTER CITING APPLICABLE LAW, WE STATED IN OUR DECISION THAT DEFENSE MANPOWER POLICY NO. 4 DIRECTS ALL PROCUREMENT AGENCIES "TO AWARD NEGOTIATED PROCUREMENT CONTRACTS TO CONTRACTORS WHO WILL PERFORM A SUBSTANTIAL PROPORTION OF THE PRODUCTION ON THOSE CONTRACTS WITHIN LABOR SURPLUS AREAS.' WE HAVE STATED FURTHER THAT THE PURPOSE FOR WHICH AN AWARD IS LIMITED TO LABOR SURPLUS AREA CONCERNS IS SERVED AS LONG AS THE CONTRACTOR ABIDES BY ITS AGREEMENT AND PERFORMS IN AN AREA FALLING WITHIN THE SAME CATEGORY AS THE AREA OF PERFORMANCE SHOWN IN ITS BID. B-153267, JUNE 8, 1964. PARAGRAPH 1-801, ET SEQ., ARMED SERVICES PROCUREMENT REGULATIONS (ASPR). IT IS UPON THE PROMISE TO SO PERFORM THAT AN AWARD OF THIS NATURE MAY BE BASED AND WHETHER THE PLANT FACILITY IS IN POSSESSION AT THE TIME THE PROMISE IS MADE IS NOT DETERMINATIVE OF THE RIGHT TO AN AWARD. WE BELIEVE THAT THE FACILITIES MAY BE OBTAINED AFTER AWARD OF THE CONTRACT PROVIDED THAT THE WORK IS PERFORMED IN A LABOR SURPLUS AREA OF THE CATEGORY DESIGNATED BY THE BIDDER AND IN ACCORDANCE WITH THE CONTRACT TERMS.

SINCE BOTH "PERSISTENT LABOR SURPLUS AREA CONCERN" AND "SUBSTANTIAL LABOR SURPLUS AREA CONCERN" ARE DEFINED AS A CONCERN THAT AGREES TO PERFORM, OR CAUSE TO BE PERFORMED, A SUBSTANTIAL PROPORTION OF A CONTRACT IN PERSISTENT LABOR SURPLUS AREAS AND SUBSTANTIAL LABOR SURPLUS AREAS, RESPECTIVELY (SEE ASPR 1-804/2 (B) (, THE ACTION TAKEN BY THE NAVY PURCHASING OFFICE IN AWARDING THE SET-ASIDE PORTION OF THE CONTRACT TO ASTRONAUTICS IN THE CIRCUMSTANCES PROVIDES NO BASIS FOR OBJECTION BY THIS OFFICE.

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