B-144361, FEB. 9, 1961

B-144361: Feb 9, 1961

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TO PICKER INTERNATIONAL CORPORATION: REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 28. YOU REQUEST TO BE ADVISED WHETHER THE INTERNATIONAL COOPERATION ADMINISTRATION IS VESTED WITH AUTHORITY TO MAKE PURCHASES ON THE WORLD MARKET RATHER THAN FROM DOMESTIC SOURCES. WHETHER THE GSA IS REQUIRED TO COMPLY WITH THE PROVISIONS OF THE BUY AMERICAN ACT. IN VIEW THEREOF IT WOULD BE IMMATERIAL WHETHER THE PURCHASE OF FOREIGN-MADE GOODS WAS UNDERTAKEN DIRECTLY BY THE INTERNATIONAL COOPERATION ADMINISTRATION OR FOR ITS ACCOUNT BY THE GSA. IF SUCH GOODS WERE FOR USE OUTSIDE THE UNITED STATES. FUNCTIONS DISCHARGED UNDER THE MUTUAL SECURITY ACT WERE SPECIFICALLY EXEMPT FROM CERTAIN PROCUREMENT STATUTES INCLUDING THE BUY AMERICAN ACT.

B-144361, FEB. 9, 1961

TO PICKER INTERNATIONAL CORPORATION:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 28, 1960, RELATIVE TO THE PROCUREMENT OF TWO COBALT 60 THERAPY UNITS FOR THE INTERNATIONAL COOPERATION ADMINISTRATION, BY THE GENERAL SERVICES ADMINISTRATION UNDER INVITATION FOR BIDS NO. FN-4N-28500-N-8-22-60, FROM THE ATOMIC ENERGY OF CANADA, LTD., THE LOWEST RESPONSIVE BIDDER. YOU REQUEST TO BE ADVISED WHETHER THE INTERNATIONAL COOPERATION ADMINISTRATION IS VESTED WITH AUTHORITY TO MAKE PURCHASES ON THE WORLD MARKET RATHER THAN FROM DOMESTIC SOURCES, AND WHETHER THE GSA IS REQUIRED TO COMPLY WITH THE PROVISIONS OF THE BUY AMERICAN ACT, 41 U.S.C. 10A, PRESUMABLY WHEN CONTRACTING FOR AND ON BEHALF OF THE INTERNATIONAL COOPERATION ADMINISTRATION.

THE REFERRED TO ACT WHICH REQUIRES THE PURCHASE OF DOMESTIC ARTICLES AND SUPPLIES FOR PUBLIC USE, WITH CERTAIN EXCEPTIONS, SPECIFICALLY PROVIDES THAT THIS "SECTION SHALL NOT APPLY WITH RESPECT TO ARTICLES, MATERIALS, OR SUPPLIES FOR USE OUTSIDE THE UNITED STATES.' IN VIEW THEREOF IT WOULD BE IMMATERIAL WHETHER THE PURCHASE OF FOREIGN-MADE GOODS WAS UNDERTAKEN DIRECTLY BY THE INTERNATIONAL COOPERATION ADMINISTRATION OR FOR ITS ACCOUNT BY THE GSA, IF SUCH GOODS WERE FOR USE OUTSIDE THE UNITED STATES. MOREOVER, UNDER EXECUTIVE ORDER NO. 10784, DATED OCTOBER 1, 1958, ISSUED PURSUANT TO THE AUTHORITY CONTAINED IN 22 U.S.C. 1793, FUNCTIONS DISCHARGED UNDER THE MUTUAL SECURITY ACT WERE SPECIFICALLY EXEMPT FROM CERTAIN PROCUREMENT STATUTES INCLUDING THE BUY AMERICAN ACT, SUPRA. ACCORDINGLY, THERE IS NO LEGAL BASIS FOR QUESTIONING THE AWARD.

HOWEVER, WITH RESPECT TO THE GOVERNMENT'S CURRENT POLICY GENERALLY, CONCERNING THE PURCHASE OF DOMESTIC GOODS, YOUR ATTENTION IS CALLED TO THE DIRECTIVE OF NOVEMBER 16, 1960, ISSUED BY THE PRESIDENT OF THE UNITED STATES, WHEREIN THE SECRETARY OF STATE WAS DIRECTED TO INSTRUCT THE INTERNATIONAL COOPERATION ADMINISTRATION TO ADOPT A POLICY WHICH WILL PLACE PRIMARY EMPHASIS ON FINANCING GOODS AND SERVICES OF UNITED STATES ORIGIN IN ALL OF ITS ACTIVITIES. WE ARE ADVISED THAT THE FORMER POLICY IN EFFECT AT THE TIME OF THE SUBJECT PROCUREMENT HAS BEEN AMENDED AS A RESULT OF THE ABOVE DIRECTIVE IN ORDER TO COMPLY WITH THE INTENT THEREOF. ALSO, IN THAT CONNECTION SEE DEPARTMENT OF DEFENSE DIRECTIVE NO. 4105.53, DATED OCTOBER 3, 1960, WHICH STIPULATES THAT IN OFFSHORE PROCUREMENTS PREFERENCE SHALL BE ACCORDED SOURCES OF SUPPLY IN THE UNITED STATES WHENEVER POSSIBLE.