Application of Buy American Act to Military Procurement

The protester objected to the award of a contract, alleging that the Buy American Act should not have been applied in the cost evaluation of the procurement. The Buy American Act exception for supplies which are not commercially available in the United States did not apply to an end item, the component of which was produced by only one domestic source and was only sold by that source as incorporated into the end item. The fact that other domestic manufacturers were required to purchase the component from foreign sources did not make the component unavailable within the meaning of the exception since the agency was able to obtain an unlimited quantity of the end item from the sole domestic source. Agency regulations announced the expectation that the application of the 50 percent balance of payments evaluation factor to foreign bids would not be retained beyond the time that the United States balance of payments deficit was corrected; the regulation was applicable until the agency rescinded the regulation.