Skip to main content

B-150183, JAN. 22, 1963

B-150183 Jan 22, 1963
Jump To:
Skip to Highlights

Highlights

TO EVANS REAMER AND MACHINE COMPANY: REFERENCE IS MADE TO YOUR TELEGRAM DATED OCTOBER 25. YOUR PROTEST IS STATED TO BE ON THE GROUND OF UNFAIR LABOR COMPETITION. BIDS WERE REQUESTED ON 539. IDENTICAL QUANTITY WAS SET ASIDE FOR AWARD TO A LABOR SURPLUS AREA CONCERN OR. ADJUSTED TO REFLECT TRANSPORTATION AND OTHER COST FACTORS WHICH WERE CONSIDERED IN EVALUATING BIDS ON THE NON-SET-ASIDE PORTION. THE SOLE AWARD ON THE NON- SET-ASIDE PORTION WAS TO CANADIAN COMMERCIAL CORPORATION (INTERNATIONAL BUSINESS MACHINES COMPANY LIMITED. SUPPLIES AS HAVE BEEN MINED OR PRODUCED IN THE UNITED STATES. SUPPLIES AS HAVE BEEN MANUFACTURED IN THE UNITED STATES SUBSTANTIALLY ALL FROM ARTICLES. SHALL BE ACQUIRED FOR PUBLIC USE. * * *" PARAGRAPH 6-103.5 (A) OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR) PROVIDES THAT: "THE SECRETARIES OF THE DEPARTMENT HAVE DETERMINED THAT IT WOULD BE INCONSISTENT WITH THE PUBLIC INTEREST TO APPLY THE RESTRICTIONS OF THE BUY AMERICAN ACT WITH RESPECT TO CERTAIN SUPPLIES.

View Decision

B-150183, JAN. 22, 1963

TO EVANS REAMER AND MACHINE COMPANY:

REFERENCE IS MADE TO YOUR TELEGRAM DATED OCTOBER 25, 1962, PROTESTING ANY AWARD TO A FOREIGN SOURCE OF SUPPLY (CANADA) UNDER INVITATION FOR BIDS NO. AMC-11-173-63-5, ISSUED BY THE ARMY MATERIEL COMMAND, AMMUNITION PROCUREMENT AND SUPPLY AGENCY, JOLIET, ILLINOIS.

YOUR PROTEST IS STATED TO BE ON THE GROUND OF UNFAIR LABOR COMPETITION, THE EFFECT OF ADVANTAGEOUS DOLLAR EXCHANGE RATES AND THE RESULTING SERIOUS DISADVANTAGE TO YOUR COMPANY IF THE AWARD PRICE OF THE SET-ASIDE PORTION DOES NOT PROVIDE ADEQUATE COMPENSATION FOR THE ALLEGED UNFAIR ADVANTAGES INHERENT IN THE FOREIGN BID.

BIDS WERE REQUESTED ON 539,300 LAND MINES, AP, M16A1, MPTS, TO BE DELIVERED F.O.B. LOUISIANA ORDNANCE PLANT, DOYLINE, LOUISIANA. IDENTICAL QUANTITY WAS SET ASIDE FOR AWARD TO A LABOR SURPLUS AREA CONCERN OR, TO A LIMITED EXTENT, TO A SMALL BUSINESS WHICH DOES NOT QUALIFY AS A LABOR SURPLUS AREA CONCERN. THE INVITATION PROVIDED THAT AFTER NEGOTIATION WITH ELIGIBLE BIDDERS, THE SET-ASIDE PORTION WOULD BE AWARDED AT THE HIGHEST UNIT PRICE AWARDED ON 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. THE SOLE AWARD ON THE NON- SET-ASIDE PORTION WAS TO CANADIAN COMMERCIAL CORPORATION (INTERNATIONAL BUSINESS MACHINES COMPANY LIMITED, SUBCONTRACTOR), AT A UNIT PRICE OF $1.962, F.O.B. DESTINATION.

THE BUY AMERICAN ACT, 41 U.S.C. 10A, PROVIDES THAT:

"NOTWITHSTANDING ANY OTHER PROVISION OF LAW, AND UNLESS THE HEAD OF THE DEPARTMENT OR INDEPENDENT ESTABLISHMENT CONCERNED SHALL DETERMINE IT TO BE INCONSISTENT WITH THE PUBLIC INTEREST, OR THE COST TO BE UNREASONABLE, ONLY SUCH UNMANUFACTURED ARTICLES, MATERIALS, AND SUPPLIES AS HAVE BEEN MINED OR PRODUCED IN THE UNITED STATES, AND ONLY SUCH MANUFACTURED ARTICLES, MATERIALS, AND SUPPLIES AS HAVE BEEN MANUFACTURED IN THE UNITED STATES SUBSTANTIALLY ALL FROM ARTICLES, MATERIALS, OR SUPPLIES MINED, PRODUCED, OR MANUFACTURED, AS THE CASE MAY BE, IN THE UNITED STATES, SHALL BE ACQUIRED FOR PUBLIC USE. * * *"

PARAGRAPH 6-103.5 (A) OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR) PROVIDES THAT:

"THE SECRETARIES OF THE DEPARTMENT HAVE DETERMINED THAT IT WOULD BE INCONSISTENT WITH THE PUBLIC INTEREST TO APPLY THE RESTRICTIONS OF THE BUY AMERICAN ACT WITH RESPECT TO CERTAIN SUPPLIES, WHICH HAVE BEEN DETERMINED TO BE OF A MILITARY CHARACTER OR INVOLVED IN PROGRAMS OF MUTUAL INTEREST TO THE UNITED STATES AND CANADA, WHERE SUCH SUPPLIES ARE MINED, PRODUCED, OR MANUFACTURED IN CANADA AND EITHER (I) ARE CANADIAN END PRODUCTS OR (II) ARE INCORPORATED IN END PRODUCTS MANUFACTURED IN THE UNITED STATES. EACH DEPARTMENT MAINTAINS A LIST OF THESE SUPPLIES, WHICH IS APPROVED BY THE SECRETARY CONCERNED. * * *"

PARAGRAPH 6-104.4 (D) (1) OF ASPR FURTHER PROVIDES THAT:

"BIDS OFFERING CANADIAN END PRODUCTS ON THE LISTS DESCRIBED IN 6 103.5 (A) SHALL BE EVALUATED ON A PARITY WITH DOMESTIC BIDS, I.E., NEITHER A PRICE DIFFERENTIAL NOR DUTY SHALL BE ADDED.' PURSUANT TO PARAGRAPH 6- 103.5 (A) OF ASPR, REFERRED TO ABOVE, GROUP 13 OF SECTION 6-103.5 OF ARMY PROCUREMENT PROCEDURE LISTS "AMMUNITION AND EXPLOSIVES (ALL CLASSES)" AS CANADIAN SUPPLIES WHICH HAVE BEEN DETERMINED TO BE OF A MILITARY CHARACTER INVOLVED IN PROGRAMS OF MUTUAL INTEREST TO THE UNITED STATES AND CANADA. SINCE THE ITEM BEING PURCHASED FALLS WITHIN THIS CATEGORY OF ,AMMUNITION AND EXPLOSIVES" IT SEEMS CLEAR THAT THIS AWARD WAS MADE IN STRICT ACCORDANCE WITH EXISTING LAW AND REGULATIONS, AND THAT AWARD OF THE SET- ASIDE PORTION AT THE UNIT PRICE OF THE NON SET-ASIDE AWARD, AS PROVIDED IN THE CONTRACT, WOULD NOT ONLY BE PROPER BUT REQUIRED. YOUR PROTEST MUST THEREFORE BE DENIED.

GAO Contacts

Office of Public Affairs