B-162950, DEC. 18, 1967

B-162950: Dec 18, 1967

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DRIVER: REFERENCE IS MADE TO A LETTER DATED NOVEMBER 17. THE PERTINENT FACTS ARE STATED BY THE CONSTRUCTION CONTRACTING OFFICER AS FOLLOWS: "CLAUSE 19 OF THE CONTRACT'S GENERAL PROVISIONS (STANDARD FORM 23 -A. JUNE 1964 EDITION) IS IDENTICAL TO THE -BUY AMERICAN- CLAUSE QUOTED IN YOUR DECISION OF MAY 22. "I HAVE TAKEN THE POSITION THAT CERTAIN -POLYETHYLENE- PIPE FITTINGS STAMPED -MADE IN ENGLAND- AND SHIPPED TO THE JOB SITE FOR INCORPORATION IN THE WORK. "THE CONTRACTOR AND THE SUPPLIER OF THE FITTINGS URGE THAT THE PIPING SYSTEM EMPLOYED IS IN COMPLIANCE WITH THE -BUY AMERICAN ACT- BECAUSE OVER 50 PERCENT OF ITS COST REPRESENTS COMPONENTS PRODUCED OR MANUFACTURED IN THE UNITED STATES.

B-162950, DEC. 18, 1967

TO MR. DRIVER:

REFERENCE IS MADE TO A LETTER DATED NOVEMBER 17, 1967, FILE REFERENCE: 086D, FROM YOUR CONSTRUCTION CONTRACTING OFFICER, OFFICE OF THE ASSISTANT ADMINISTRATOR FOR CONSTRUCTION, REQUESTING A DECISION AS TO THE APPLICABILITY OF THE PROVISIONS OF THE BUY AMERICAN ACT, 41 U.S.C. 10A-D, TO FACTS DEVELOPED IN THE ADMINISTRATION OF CONTRACT NO. V1006C-666, PROJECT NO. 37-5395, AWARDED TO FRANK CONSTRUCTION COMPANY, FLOURTOWN, PENNSYLVANIA, FOR ALTERATIONS TO QUARTERS BUILDING NO. 11 FOR RESEARCH AT THE VETERANS ADMINISTRATION HOSPITAL,COATESVILLE, PENNSYLVANIA.

THE PERTINENT FACTS ARE STATED BY THE CONSTRUCTION CONTRACTING OFFICER AS FOLLOWS: "CLAUSE 19 OF THE CONTRACT'S GENERAL PROVISIONS (STANDARD FORM 23 -A, JUNE 1964 EDITION) IS IDENTICAL TO THE -BUY AMERICAN- CLAUSE QUOTED IN YOUR DECISION OF MAY 22, 1967, B-161061. "I HAVE TAKEN THE POSITION THAT CERTAIN -POLYETHYLENE- PIPE FITTINGS STAMPED -MADE IN ENGLAND- AND SHIPPED TO THE JOB SITE FOR INCORPORATION IN THE WORK, WOULD BE IN VIOLATION OF THIS CLAUSE IN THE CONTRACT AND THAT THEY MAY NOT BE USED. "THE CONTRACTOR AND THE SUPPLIER OF THE FITTINGS URGE THAT THE PIPING SYSTEM EMPLOYED IS IN COMPLIANCE WITH THE -BUY AMERICAN ACT- BECAUSE OVER 50 PERCENT OF ITS COST REPRESENTS COMPONENTS PRODUCED OR MANUFACTURED IN THE UNITED STATES. "THE FITTINGS ARE AT THE JOB SITE BEING INSTALLED IN THE ACID WASTE AND DRAINLINE SYSTEM. THE VETERANS ADMINISTRATION HAD PREVIOUSLY APPROVED THE SYSTEM AS MEETING TECHNICAL AND PERFORMANCE REQUIREMENTS WITHOUT KNOWLEDGE OF THE FOREIGN MANUFACTURE OF THE FITTINGS UNTIL THEIR ARRIVAL ON THE JOB SITE. MORE DETAILED INFORMATION CONCERNING THE SYSTEM AND OUR APPROVAL IS CONTAINED IN MY FILE WHICH IS ENCLOSED.'

CLAUSE 19 OF STANDARD FORM 23-A (JUNE 1964 EDITION) PROVIDES AS FOLLOWS: "19 BUY AMERICAN

"/A) AGREEMENT. IN ACCORDANCE WITH THE BUY AMERICAN ACT (41 U.S.C. 10A- 10D) AND EXECUTIVE ORDER 10582, DECEMBER 17, 1954 (3 CFR SUPP.), THE CONTRACTOR AGREES THAT ONLY DOMESTIC CONSTRUCTION MATERIAL WILL BE USED (BY THE CONTRACTOR, SUBCONTRACTORS, MATERIALMEN, AND SUPPLIERS) IN THE PERFORMANCE OF THIS CONTRACT, EXCEPT FOR NONDOMESTIC MATERIAL LISTED IN THE CONTRACT.

"/B) DOMESTIC CONSTRUCTION MATERIAL. -CONSTRUCTION MATERIAL- MEANS ANY ARTICLE, MATERIAL, OR SUPPLY BROUGHT TO THE CONSTRUCTION SITE FOR INCORPORATION IN THE BUILDING OR WORK. AN UNMANUFACTURED CONSTRUCTION MATERIAL IS A -DOMESTIC CONSTRUCTION MATERIAL- IF IT HAS BEEN MINED OR PRODUCED IN THE UNITED STATES. A MANUFACTURED CONSTRUCTION MATERIAL IS A -DOMESTIC CONSTRUCTION MATERIAL- IF IT HAS BEEN MANUFACTURED IN THE UNITED STATES AND IF THE COST OF ITS COMPONENTS WHICH HAVE BEEN MINED, PRODUCED, OR MANUFACTURED IN THE UNITED STATES EXCEEDS 50 PERCENT OF THE COST OF ALL ITS COMPONENTS. COMPONENT- MEANS ANY ARTICLE, MATERIAL, OR SUPPLY DIRECTLY INCORPORATED IN A CONSTRUCTION MATERIAL.

"/C) DOMESTIC COMPONENT. A COMPONENT SHALL BE CONSIDERED TO HAVE BEEN - MINED, PRODUCED, OR MANUFACTURED IN THE UNITED STATES'(REGARDLESS OF ITS SOURCE IN FACT) IF THE ARTICLE, MATERIAL OR SUPPLY IN WHICH IT IS INCORPORATED WAS MANUFACTURED IN THE UNITED STATES AND THE COMPONENT IS OF A CLASS OR KIND DETERMINED BY THE GOVERNMENT TO BE NOT MINED, PRODUCED, OR MANUFACTURED IN THE UNITED STATES IN SUFFICIENT AND REASONABLY AVAILABLE COMMERCIAL QUANTITIES AND OF A SATISFACTORY QUALITY.' AS STATED IN OUR DECISION OF MAY 22, REFERRED TO BY THE CONSTRUCTION CONTRACTING OFFICER, THE QUOTED CLAUSE IMPLEMENTS THE REQUIREMENT OF THE BUY AMERICAN ACT THAT EVERY CONTRACT FOR ALTERATION OF ANY PUBLIC BUILDING SHALL CONTAIN A PROVISION THAT THERE SHALL BE USED IN THE PERFORMANCE OF THE WORK ONLY SUCH MANUFACTURED ARTICLES AS HAVE BEEN MANUFACTURED IN THE UNITED STATES SUBSTANTIALLY ALL FROM ARTICLES OR MATERIALS WHICH HAVE LIKEWISE BEEN MANUFACTURED IN THE UNITED STATES.

FROM THE FACTS STATED ABOVE IT APPEARS THAT THE FITTINGS WERE MANUFACTURED IN ENGLAND AND, AS SUCH, WERE BROUGHT TO THE JOB SITE FOR INCORPORATION AT THE JOB SITE IN AN ACID WASTE AND DRAINLINE SYSTEM WHICH WAS BEING INSTALLED IN A PUBLIC BUILDING PURSUANT TO THE SUBJECT CONTRACT. UNDER PARAGRAPH (A) OF CLAUSE 19 THE CONTRACTOR AGREED TO USE ONLY "DOMESTIC CONSTRUCTION MATERIAL" IN THE PERFORMANCE OF THE CONTRACT, AND PARAGRAPH (B) DEFINES "CONSTRUCTION MATERIAL" AS MEANING ANY ARTICLE, MATERIAL OR SUPPLY BROUGHT TO THE CONSTRUCTION SITE FOR INCORPORATION IN THE BUILDING OR WORK. WHILE THE SUBJECT FITTINGS- HAVING BEEN MANUFACTURED AND BROUGHT TO THE JOB SITE TO BE THERE JOINED TO OTHER PARTS MAKING UP THE SYSTEM--COME WITHIN THE CLASSIFICATION OF MANUFACTURED CONSTRUCTION MATERIALS, THEY DO NOT SATISFY THE FURTHER REQUIREMENTS SPECIFIED IN PARAGRAPH (B) FOR A "DOMESTIC CONSTRUCTION MATERIAL" THE FIRST OF WHICH REQUIREMENTS, IN THE CASE OF MANUFACTURED CONSTRUCTION MATERIALS, IS THAT SUCH MATERIALS HAVE BEEN MANUFACTURED IN THE UNITED STATES.

ALTHOUGH THE CONTRACTOR APPEARS TO BASE HIS POSITION ON THE PREMISE THAT THE FOREIGN-MANUFACTURED FITTINGS ARE "COMPONENTS" OF THE ACID WASTE AND DRAINLINE SYSTEM WHICH HE HAD CONTRACTED TO INSTALL AT THE JOB SITE, PARAGRAPH (B) DEFINES THAT TERM AS AN "ARTICLE, MATERIAL, OR SUPPLY DIRECTLY INCORPORATED IN A CONSTRUCTION MATERIAL.' IT IS OBVIOUS THAT AN ASSEMBLED AND OPERABLE DRAINAGE SYSTEM WAS NOT DELIVERED TO THE JOB SITE SO AS TO CONSTITUTE SUCH SYSTEM A ,CONSTRUCTION MATERIAL" AND THAT THE FITTINGS, HAVING BEEN DELIVERED TO THE SITE AS INDIVIDUAL SEPARATE ITEMS, WERE A "CONSTRUCTION MATERIAL" RATHER THAN A "COMPONENT" UNDER THE CONTRACT DEFINITIONS.

IN VIEW OF THE FOREGOING, WE CONCUR IN THE POSITION TAKEN BY YOUR CONSTRUCTION CONTRACTING OFFICER THAT USE OF THE FITTINGS WOULD BE IN VIOLATION OF CLAUSE 19 OF THE CONTRACT.

REGARDING YOUR QUESTION AS TO THE ACTION TO BE TAKEN IN THE MATTER, WE DO NOT BELIEVE IT IS MANDATORY THAT FITTINGS USED IN WORK WHICH IS ALREADY IN PLACE BE REMOVED IF SUCH ACTION WOULD NOT BE IN THE BEST INTERESTS OF THE GOVERNMENT. A DECISION ON THAT POINT WOULD REQUIRE CONSIDERATION OF A VARIETY OF FACTORS NOT SHOWN BY THE PRESENT RECORD, SUCH AS THE EXTENT TO WHICH THE FITTINGS HAVE BEEN INSTALLED; THE EFFECTS OF THEIR REMOVAL AND REPLACEMENT IN TERMS OF DISTURBANCE TO THE BUILDING OR OTHER WORK AND PROJECT DELAY; AND WHETHER SUCH INSTALLATIONS HAD BEEN MADE IN GOOD FAITH BY THE CONTRACTOR PRIOR TO NOTICE TO REMOVE THE FITTINGS FROM THE JOB SITE. IN THE EVENT A DECISION IS DESIRED ON THIS ASPECT OF THE MATTER A COMPLETE STATEMENT PERTAINING TO ALL SUCH CONSIDERATIONS SHOULD BE FURNISHED WITH THE REQUEST.

THE FILE FORWARDED WITH THE LETTER OF NOVEMBER 17 IS RETURNED AS REQUESTED.