B-166137, SEPTEMBER 19, 1969, 49 COMP. GEN. 176

B-166137: Sep 19, 1969

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USE OUTSIDE UNITED STATES ALTHOUGH THE PROCUREMENT OF STEEL TOWERS FOR INSTALLATION AS PART OF A COMMUNICATION SYSTEM IN WEST GERMANY WAS NOT SUBJECT TO THE BUY AMERICAN ACT. AS PROCUREMENTS FOR USE OUTSIDE THE UNITED STATES ARE EXEMPT FROM THE RESTRICTIONS OF THE ACT. THE DOMESTIC BIDDER WHOSE BID EXCEEDED THE FOREIGN BID BY MORE THAN 50 PERCENT PROPERLY WERE EVALUATED ON AN EQUAL COMPETITIVE BASIS AND AWARD MADE TO THE LOW. THE PROCUREMENT SHOULD HAVE BEEN MADE SUBJECT TO THE BALANCE OF PAYMENTS PROGRAM. AS THE PROVISIONS OF THE PROGRAM WERE INADVERTENTLY OMMITTED FORM THE INVITATION. THE PROCUREMENT ITEMS ARE 12 STRUCTURAL STEEL TOWERS. WHICH ARE TO BE INSTALLED BY THE GOVERNMENT AS PART OF A COMMUNICATIONS SYSTEM IN WEST GERMANY.

B-166137, SEPTEMBER 19, 1969, 49 COMP. GEN. 176

BUY AMERICAN ACT -- APPLICABILITY -- USE OUTSIDE UNITED STATES ALTHOUGH THE PROCUREMENT OF STEEL TOWERS FOR INSTALLATION AS PART OF A COMMUNICATION SYSTEM IN WEST GERMANY WAS NOT SUBJECT TO THE BUY AMERICAN ACT, AS PROCUREMENTS FOR USE OUTSIDE THE UNITED STATES ARE EXEMPT FROM THE RESTRICTIONS OF THE ACT, AND, THEREFORE, THE BIDS OF THE LOW CANADIAN BIDDER--SPONSORED BY THE CANADIAN COMMERCIAL CORPORATION--AND THE DOMESTIC BIDDER WHOSE BID EXCEEDED THE FOREIGN BID BY MORE THAN 50 PERCENT PROPERLY WERE EVALUATED ON AN EQUAL COMPETITIVE BASIS AND AWARD MADE TO THE LOW, RESPONSIBLE BIDDER, THE PROCUREMENT SHOULD HAVE BEEN MADE SUBJECT TO THE BALANCE OF PAYMENTS PROGRAM. HOWEVER, AS THE PROVISIONS OF THE PROGRAM WERE INADVERTENTLY OMMITTED FORM THE INVITATION, THE CONTRACTING OFFICER HAD NOT REFERRED THE DOMESTIC BID THAT EXCEEDED THE FOREIGN BID BY MORE THAN 50 PERCENT TO HIGHER AUTHORITY FOR APPROVAL AS REQUIRED, AND ABSENT THE CERTAINTY OF APPROVAL, THE CANCELLATION OF THE AWARD MADE IN GOOD FAITH WOULD NOT BE IN THE BEST INTERESTS OF THE GOVERNMENT.

TO TRYLON, INCORPORATED, SEPTEMBER 19, 1969:

WE REFER TO YOUR PROTEST BY TELEGRAM DATED FEBRUARY 7, 1969, AS SUPPLEMENTED BY BRIEFS SUBMITTED BY YOUR ATTORNEYS ON MARCH 17 AND JUNE 2, AGAINST AWARD BY THE DEPARTMENT OF THE AIR FORCE OF A CONTRACT TO CANADIAN COMMERCIAL CORPORATION (CCC) BASED ON A BID SUBMITTED BY DYNAMIC INDUSTRIES, INC. (DYNAMIC), QUEBEC, CANADA, UNDER INVITATION FOR BIDS (IFB) F34601-69-B-0207, ISSUED OCTOBER 29, 1968, BY OKLAHOMA CITY AIR MATERIEL AREA (OCAMA).

THE PROCUREMENT ITEMS ARE 12 STRUCTURAL STEEL TOWERS, FOUR SMALL AND EIGHT LARGE, WHICH ARE TO BE INSTALLED BY THE GOVERNMENT AS PART OF A COMMUNICATIONS SYSTEM IN WEST GERMANY. BIDS WERE SOLICITED ON AN F.O.B. ORIGIN BASIS SUBJECT TO INSPECTION AND FINAL ACCEPTANCE BY THE UNITED STATES AT POINT OF ORIGIN PRIOR TO SHIPMENT FROM SUCH POINT TO GERMANY.

INCORPORATED INTO THE CONTRACT TERMS WAS THE BUY AMERICAN ACT (41 U.S.C. 10A-D) CLAUSE SET FORTH IN ARMED SERVICES PROCUREMENT REGULATION (ASPR) 6- 104.5 WHICH READS AS FOLLOWS: BUY AMERICAN ACT (MAY 1964)

(A) IN ACQUIRING END PRODUCTS, THE BUY AMERICAN ACT (41 U.S.C. 10N D) PROVIDES THAT THE GOVERNMENT GIVE PREFERENCE TO DOMESTIC SOURCE END PRODUCTS. FOR THE PURPOSE OF THIS CLAUSE:

(I) "COMPONENTS" MEANS THOSE ARTICLES, MATERIALS, AND SUPPLIES, WHICH ARE DIRECTLY INCORPORATED IN THE END PRODUCTS;

(II) "END PRODUCTS" MEANS THOSE ARTICLES, MATERIALS, AND SUPPLIES, WHICH ARE TO BE ACQUIRED UNDER THIS CONTRACT FOR PUBLIC USE; AND

(III) A "DOMESTIC SOURCE END PRODUCT" MEANS (A) AN UNMANUFACTURED END PRODUCT WHICH HAS BEEN MINED OR PRODUCED IN THE UNITED STATES AND (B) AN END PRODUCT MANUFACTURED IN THE UNITED STATES IF THE COST OF THE COMPONENTS THEREOF WHICH ARE MINED, PRODUCED, OR MANUFACTURED IN THE UNITED STATES OR CANADA EXCEEDS 50 PERCENT OF THE COST OF ALL ITS COMPONENTS. FOR THE PURPOSES OF THIS (A)(III)(B), COMPONENTS OF FOREIGN ORIGIN OF THE SAME TYPE OR KIND AS THE PRODUCTS REFERRED TO IN (B) (II) OR (III) OF THIS CLAUSE SHALL BE TREATED AS COMPONENTS MINED, PRODUCED, OR MANUFACTURED IN THE UNITED STATES.

(B) THE CONTRACTOR AGREES THAT THERE WILL BE DELIVERED UNDER THIS CONTRACT ONLY DOMESTIC SOURCE END PRODUCTS, EXCEPT END PRODUCTS:

(I) WHICH ARE FOR USE OUTSIDE THE UNITED STATES;

(II) WHICH THE GOVERNMENT DETERMINES ARE NOT MINED, PRODUCED, OR MANUFACTURED IN THE UNITED STATES IN SUFFICIENT AND REASONABLY AVAILABLE COMMERCIAL QUANTITIES AND OF A SATISFACTORY QUALITY;

(III) AS TO WHICH THE SECRETARY DETERMINES THE DOMESTIC PREFERENCE TO BE INCONSISTENT WITH THE PUBLIC INTEREST; OR

(IV) AS TO WHICH THE SECRETARY DETERMINES THE COST TO THE GOVERNMENT TO BE UNREASONABLE.

(THE FOREGOING REQUIREMENTS ARE ADMINISTERED IN ACCORDANCE WITH EXECUTIVE ORDER NO. 10582, DATED DECEMBER 17, 1954. SO AS TO ALLEVIATE THE IMPACT OF DEPARTMENT OF DEFENSE EXPENDITURES ON THE UNITED STATES BALANCE OF INTERNATIONAL PAYMENTS, BIDS OFFERING DOMESTIC SOURCE END PRODUCTS NORMALLY WILL BE EVALUATED AGAINST BIDS OFFERING OTHER END PRODUCTS BY ADDING A FACTOR OF FIFTY PERCENT (50%) TO THE LATTER, EXCLUSIVE OF IMPORT DUTIES. DETAILS OF THE EVALUATION PROCEDURE ARE SET FORTH IN SECTION VI OF THE ARMED SERVICES PROCUREMENT REGULATION.)

ON DECEMBER 16, 1968, BIDS WERE OPENED AS SCHEDULED. THE LOWEST BID, IN THE AMOUNT OF $164,756.55, WAS SUBMITTED BY DYNAMIC THROUGH CCC. THE SECOND BID, IN THE AMOUNT OF $165,600, WAS SUBMITTED BY TOWER COMMUNICATIONS COMPANY, LTD. (TOWER), OF CANADA, ALSO THROUGH CCC. YOUR BID, IN THE AMOUNT OF $260,000, WAS THIRD.

IN A TELEGRAM DATED DECEMBER 18, 1968, YOUR REQUESTED OCAMA TO DISQUALIFY ALL CANADIAN COMPANIES BIDDING UNDER CCC SPONSORSHIP. YOU COMPLAINED THAT THE GENERAL PROVISIONS OF THE IFB DID NOT INCLUDE ASPR 6-501 THROUGH 507 (RELATING TO PURCHASES FROM CANADIAN SOURCES UNDER AN ADMINISTRATIVELY PRESCRIBED EXCEPTION TO THE BUY AMERICAN ACT) AND ASPR 6-104.6 (RELATING TO CONTRACT ADMINISTRATION) AND ASSERTED THAT ABSENT AN "OR EQUAL" CLAUSE IN THE IFB ONLY UNITED STATES MADE STEEL WOULD MEET THE SPECIFICATIONS. IN A TELEPHONE CONVERSATION OF DECEMBER 27 WITH THE PROCURING ACTIVITY YOU ALSO URGED THAT THE DYNAMIC BID PRICE WAS BELOW COST FOR EITHER AMERICAN OR CANADIAN PRODUCED STEEL AND THEREFORE MUST BE BASED ON PROVIDING FOREIGN MADE STEEL.

THE CONTRACTING OFFICER DENIED YOUR PROTEST IN A LETTER DATED JANUARY 31, 1969, READING AS FOLLOWS:

1. YOUR COMPANY'S PROTEST BEFORE AWARD RECEIVED 23 DEC 1968 AND CLARIFIED BY TELCON OF 27 DEC 1968 HAS BEEN EXTENSIVELY REVIEWED. THE UNDERSIGNED CONTRACTING OFFICER FINDS THAT THE PROTEST IS NOT VALID FOR THE FOLLOWING REASONS:

A. FIRST ISSUE OF PROTEST:

"GENERAL PROVISIONS OF SUBJECT IFB DO NOT INCLUDE ASPR PARAGRAPHS

6-501 THRU 507 AUTHORIZING C.C.C. TO PARTICIPATE IN SUBJECT BID AS

PRIME CONTRACTOR."

THE REFERENCED ASPR PARAGRAPHS DEAL MAINLY WITH CANADIAN PURCHASES MADE THROUGH THE CANADIAN COMMERCIAL CORPORATION (C.C.C.). THEY PROVIDE INFORMATION AS WELL AS CONTRACTING PROCEDURES FOR CANADIAN PURCHASES. IS THE CONTRACTING OFFICER'S DETERMINATION THAT THERE IS NO LEGAL REQUIREMENT THAT THE GENERAL PROVISIONS OF THE SUBJECT IFB INCLUDE ASPR PARAGRAPHS 6-501 THROUGH 6-507 AND THAT NO STATEMENT IN THE IFB OR OTHER NOTICE TO THE BIDDERS TO THE EFFECT THAT C.C.C. IS AUTHORIZED TO PARTICIPATE IN THE BIDDING AS PRIME CONTRACTOR IS NECESSARY.

B. SECOND ISSUE OF PROTEST:

"SINCE ASPR PARAGRAPH 6-104.6 IS NOT INCLUDED IN GENERAL PROVISIONS OF

SUBJECT IFB CANADIAN COMPANIES CANNOT BE EXTENDED SPECIAL BENEFITS

THIS PARAGRAPH PERMITS UNDER BUY AMERICAN ACT."

(1) ASPR 6-104.6 HAS NO APPLICATION TO THE SOLICITATION. IT IS MERELY CONCERNED WITH ADVICE BY CONTRACT ADMINISTRATION PERSONNEL, AFTER AWARD, AS TO THE EFFECT OF THE BUY AMERICAN ACT IN APPROPRIATE CASES.

(2) THE TYPE OF SUPPLIES CALLED FOR IN THIS PROCUREMENT HAVE BEEN DETERMINED TO BE NOT APPLICABLE TO BUY AMERICAN RESTRICTIONS IF CONSIDERED AS CANADIAN AND PRODUCTS.

(3) THE BUY AMERICAN ACT IS NOT APPLICABLE TO THIS PROCUREMENT INASMUCH AS THE STRUCTURAL STEEL TOWERS CALLED FOR ARE TO BE INSTALLED BY GEEIA IN WEST GERMANY.

C. THIRD ISSUE OF PROTEST:

"ALL STEEL USED FOR MANUFACTURE OF TOWER PRODUCTS MUST BE U.S. MADE TO

COMPLY WITH GEEIA EXHIBIT TITLED GEEIA-A-4005B 69 JAN 19 FOR STRUCTURAL

STEEL. SINCE 'OR EQUAL' CLAUSE IS NOT INCLUDED IN SUBJECT IFB ANY

SUBSTITUTION OF STEEL MATERIAL WILL PROVIDE DIFFERENT END PRODUCT THAN

THAT SPECIFIED. IN TELECON 27 DEC 1968 BETWEEN MR. SEVERINSON OF TRYLON

AND MR. CLONCE OF OCPWDA THE FOLLOWING FURTHER INFORMATION ON THIS

ISSUE WAS PROVIDED BY TRYLON. THE LOW BIDDERS'S PRICE IS CONSIDERED TO

BE 'BELOW COST' FOR EITHER CANADIAN OR AMERICAN PRODUCED STEEL. IT MUST

THEREFORE LOGICALLY BE ASSUMED THAT THE STEEL THE LOW BIDDERS PROPOSE

TO UTILIZE IS FOREIGN MADE. TRYLON'S ENGINEERING EXPERIENCE AND

JUDGMENT MAINTAINS THAT NO FOREIGN MADE STEEL CAN MEET THE RESTRICTIVE

SPECIFICATIONS REQUIRED BY GEEIA EXHIBIT GEEIA-A-4005B."

THIS ISSUE IN FACT CHALLENGES THE LOW BIDDER'S RESPONSIBILITY. ANY RESULTANT CONTRACT WOULD BE BETWEEN THE C.C.C. AND THE U.S. GOVERNMENT. THE FACT THAT C.C.C. HAS CONFIRMED ITS BID AND CERTIFIED THE LOW CANADIAN COMPANIES IS TANT-AMOUNT TO A DETERMINATION OF CONTRACTOR'S RESPONSIBILITY, IN ACCORDANCE WITH INTERNATIONAL AGREEMENT AS EXPRESSED BY ASPR 6-503, THE CANADIAN GOVERNMENT WOULD GUARANTEE TO THE UNITED STATES GOVERNMENT ALL COMMITMENTS, OBLIGATIONS AND COVENANTS OF THE C.C.C. IT IS THEREFORE DETERMINED THAT TRYLON'S CONCERN AS TO THE RESPONSIBILITY OF THE CANADIAN SUBCONTRACTOR'S ABILITY TO PERFORM THIS CONTRACT IS NOT RELEVANT (ALTHOUGH UNDERSTOOD AND APPRECIATED) TO ANY AWARD MADE TO C.C.C.

2. PURSUANT TO THE FOREGOING YOUR PROTEST IS DETERMINED TO BE INVALID AND IS DENIED IN ITS ENTIRETY.

YOUR PROTESTS TO OUR OFFICE TAKES EXCEPTION TO VARIOUS STATEMENTS IN A DEPARTMENT OF THE AIR FORCE DATED MAY 16, 1969, TO OUR OFFICE. THE REPORT READS, IN PERTINENT PART, AS FOLLOWS:

ON FEBRUARY 7, 1969, TRYLON TELEGRAPHED A PROTEST TO YOUR OFFICE AND STATED THAT A BRIEF WOULD FOLLOW. THE DETAILED TRYLON CONTENTIONS ACCOMPANYING LETTER DATED MARCH 17, MAY BE OUTLINED AS FOLLOWS:

A. THE AWARD IS CONTRARY TO THE BUY AMERICAN ACT.

B. THE AWARD IS IN VIOLATION OF ASPR 6, PART 8 (BALANCE OF PAYMENTS PROGRAM).

C. DYNAMIC INDUSTRIES CANNOT PERFORM THE CONTRACT.

D. INDICATIONS OF COLLUSIVE BIDDING AMONG THE CANADIAN BIDDERS.

E. BECAUSE OF THE ABOVE, THE CONTRACT WITH CCC SHOULD BE TERMINATED AND THE AWARD GIVEN TO TRYLON.

WE DO NOT CONSIDER THE ABOVE TO BE WELL FOUNDED.

THE BUY AMERICAN ACT WAS PROMULGATED IN 1875 TO GIVE PREFERENTIAL TREATMENT OF AMERICAN MATERIAL IN CONTRACTS FOR PUBLIC IMPROVEMENTS IN THE UNITED STATES, AND WAS FURTHER STRENGTHENED IN 1933. THE BALANCE OF PAYMENTS PROGRAM SET FORTH IN ASPR SECTION 6, PART 8 IS AN INTERNAL DOD PROGRAM WHICH APPLIES SIMILAR PREFERENCES TO OVERSEAS PURCHASES. IN ORDER TO SIMPLIFY THE ADMINISTRATION DETERMINATION OF WHETHER THIS PROGRAM OR THE BUY AMERICAN ACT IS TO APPLY, ITEMS WHICH ARE PURCHASED AND DELIVERED WITHIN THE UNITED STATES OR CANADA ARE CONSIDERED TO BE UNDER THE BUY AMERICAN ACT, EVEN THOUGH SOME OF THEM MAY EVENTUALLY FIND THEIR WAY OVERSEAS. BECAUSE OF THIS ADMINISTRATIVE DETERMINATION, THE SUPPLIES INVOLVED THERE WERE PROCURED UNDER THE BUY AMERICAN ACT, AS IMPLEMENTED BY ASPR SECTION 6, PART 1.

PURSUANT TO A PROVISION OF THE BUY AMERICAN ACT, THE SECRETARIES OF THE ARMED SERVICES HAVE DETERMINED THAT IT WOULD BE INCONSISTENT WITH THE PUBLIC INTEREST TO APPLY THE ACT TO CERTAIN CANADIAN SUPPLIES OF A MILITARY CHARACTER OR THOSE INVOLVED IN PROGRAMS OF MUTUAL INTEREST TO THE UNITED STATES AND CANADA. THE LIST OF AIR FORCE ITEMS SO EXPECTED IS PUBLISHED IN AIR FORCE PROCUREMENT INSTRUCTION (AFPI) 6-103.5 AND INCLUDES COMMUNICATION EQUIPMENT. THEREFORE, CANADIAN-PROPOSED END PRODUCTS WERE EVALUATED ON AN EQUAL COMPETITIVE BASIS WITH DOMESTIC SOURCE END PRODUCT, WITH AWARD MADE TO THAT BIDDER SUBMITTING THE LOWEST RESPONSIVE COMPETITIVE OFFER. ASPR SECTION 6, PART 8 (BALANCE OF PAYMENTS PROGRAM) DOES NOT APPLY IN THIS INSTANCE. MOREOVER, IT IS UNLIKELY THAT A DIFFERENT CONTRACTOR WOULD HAVE BEEN SELECTED HAD THE BIDS BEEN EVALUATED UNDER THE BALANCE OF PAYMENTS PROGRAM, IN VIEW OF THE EXCEPTION PROVIDED BY 6-805.2(A)(XI).

TRYLON'S ALLEGATIONS REGARDING THE INABILITY OF DYNAMIC INDUSTRIES TO SATISFACTORILY PERFORM ARE NOT VALID. RECENT INQUIRY DISCLOSES THAT ALL OF THE STEEL HAS BEEN PURCHASED AND THOUGH CANADIAN-MADE, MEETS REQUIRED SPECIFICATIONS. IT SHOULD ALSO BE NOTED THAT THE AWARD HAS BEEN MADE TO CCC WHICH SPONSORED DYNAMIC INDUSTRIES AND IS RESPONSIBLE FOR CONTRACT PERFORMANCE. SIMILARLY, THE TRYLON ALLEGATION AS TO POSSIBLE COLLUSION OF THE TWO LOWEST CANADIAN BIDDERS MERELY BECAUSE OF PRICE SIMILARITY, IS VIEWED AS WITHOUT MERIT. IT SEEMS MOST LIKELY THAT THE PRICE SIMILARITY IS DUE TO SOLICITATION OF THE SAME SUBCONTRACTOR BY THE TWO LOW CANADIAN BIDDERS.

IN CONSIDERATION OF ALL THE ABOVE CIRCUMSTANCES WE RECOMMEND THE PROTEST OF TRYLON BE DENIED AND THE AWARD TO CCC BE PERMITTED TO REMAIN UNDISTURBED.

YOU CONTEND THAT THE PROCUREMENT IS EXPECTED FROM THE RESTRICTIONS OF THE BUY AMERICAN ACT BY REASON OF THE FACT THAT THE TOWERS ARE TO BE USED OUTSIDE THE UNITED STATES, AND THAT THE ADMINISTRATIVELY PRESCRIBED EXCEPTION RELATING TO CANADIAN PURCHASES THEREFORE DOES NOT APPLY, SUCH EXCEPTION BEING BASED ON THE PUBLIC INTEREST DETERMINATION LANGUAGE IN 41 U.S.C. 10A.

YOU FURTHER CONTEND THAT THE PROCUREMENT IS SUBJECT TO THE BALANCE OF PAYMENTS PROGRAM PROCEDURES AS SET FORTH IN ASPR 6-800 THROUGH 6-807, WHICH, YOU STATE, CONTAIN NO EXCEPTION GIVING CANADIAN FIRMS AN OPPORTUNITY TO BID ON PROCUREMENTS FOR ITEMS TO BE USED OVERSEAS EXCEPT AS TO CANADIAN END PRODUCTS FOR USE IN CANADA AS PROVIDED IN ASPR 6 805.2(A)(X). IN ADDITION, ALTHOUGH YOUR BID PRICE EXCEEDS DYNAMIC'S BID PRICE BY MORE THAN 50 PERCENT, YOU ASSERT THAT THE AWARD CANNOT BE JUSTIFIED UNDER THE UNREASONABLY PRICED DOMESTIC SOURCE EXCEPTION IN ASPR 6-805.2(A)(XI) SINCE THE PROCEDURES PRESCRIBED THEREIN (I.E., PRESOLICITATION ESTIMATES OF DOMESTIC COST VERSUS FOREIGN COST AND, WHERE THE DOMESTIC COST EXCEEDS THE FOREIGN COST BY 50 PERCENT OF THE FOREIGN COST, SUBMISSION TO THE SECRETARY OF DEFENSE FOR DETERMINATION) WERE NOT FOLLOWED.

YOU ALSO CLAIM THAT EVEN IF THE ASPR 6-805.2(A)(XI) PROCEDURES HAD BEEN OBSERVED, DYNAMIC WOULD NOT HAVE BEEN SOLICITED SINCE ITS PRICE IS FAR BELOW THE GOVERNMENT'S ESTIMATE OF THE COST OF THE TOWERS (WHICH YOU UNDERSTAND TO BE $16,200 FOR EACH OF THE SMALL TOWERS AND $29,400 FOR EACH OF THE LARGE TOWERS). PROCEEDING ONE STEP FURTHER, YOU ASSERT THAT EVEN IF DYNAMIC'S BID WERE CONSIDERED, A FAVORABLE DECISION BY THE SECRETARY OF DEFENSE UNDER ASPR 6-805.2(A)(XI) MAY NOT BE ASSUMED BECAUSE THE RESPONSIVENESS OF THE BID IS OPEN TO QUESTION. THE CHARGE OF NONRESPONSIVENESS OF DYNAMIC'S BID IS BASED ON YOUR VIEW THAT DYNAMIC'S PRICE IS ABSURDLY LOW AND NOT SUFFICIENT FOR THE CONTRACT THEREBY SUGGESTING A MISTAKE IN BID OR THE LIKELIHOOD THAT THE CONTRACT CONTEMPLATED BY DYNAMIC DIFFERS FROM THE CONTRACT DESIRED BY THE GOVERNMENT. IN THIS CONNECTION, YOU STATE THAT DYNAMIC'S BID IS 37 PERCENT LOWER THAN YOUR BID AND OVER 40 PERCENT LOWER THAN THE GOVERNMENT'S ESTIMATES FOR THE TOWERS, WHICH YOU CLAIM YOUR BID APPROXIMATES. YOU ALSO URGE THAT THE WIDE VARIANCE BETWEEN DYNAMIC'S UNIT PRICES OF $9,628 AND $15,273 FOR THE TOWERS AND THE UNIT PRICES OF $23,600 AND $37,800 QUOTED BY THE ORIGINAL DESIGNER AND MANUFACTURER OF THE TOWERS, WHO COMPETED FOR THE PROCUREMENT, SHOULD BE CONSIDERED IN EVALUATING THE REALISM OF DYNAMIC'S BID. AS FURTHER EVIDENCE THAT THE BID IS ABSURDLY LOW, YOU STATE THAT DYNAMIC'S TOTAL PRICE, COVERING MATERIAL, LABOR, OVERHEAD AND PROFIT, IS ONLY $1,200 MORE THAN YOU FOUND TO BE THE COST OF THE RAW MATERIALS FOR THE SMALL TOWERS AND ONLY $1,500 MORE THAN THE COST OF THE RAW MATERIALS FOR THE LARGE TOWERS.

DYNAMIC'S LOW PRICE, YOU FURTHER URGE, ALERTS THE CONTRACTING OFFICER TO THE DANGER THAT THE CONTRACT CANNOT BE COMPLETED AS PROPOSED AND IS INDICATIVE THAT THE CONTRACT AS CONTEMPLATED BY DYNAMIC DIFFERS FROM THE CONTRACT DESIRED BY THE GOVERNMENT. SUCH CONSIDERATIONS, YOU ASSERT, REQUIRE AT THE VERY LEAST A COMPLETE INVESTIGATION OF DYNAMIC'S BID PRICING AND OF ITS ABILITY TO PERFORM NOTWITHSTANDING THE GUARANTEE BY CCC AS TO PERFORMANCE AND PROTECTION OF THE UNITED STATES FROM PECUNIARY LOSS.

WITH RESPECT TO CCC'S ROLE AS PRIME CONTRACTOR, YOU CHARGE THAT THE ACCEPTANCE OF AN UNREASONABLE PRICED CANADIAN BID SOLELY BECAUSE AN AGENCY OF THE CANADIAN GOVERNMENT HAS OFFERED TO MAKE GOOD ANY LOSS DISCOURAGES BONA FIDE BIDDERS AND DISCREDITS THE COMPETITIVE SYSTEM. IN THIS CASE, YOU STATE, THE AWARD HAS GONE TO A CONTRACTOR WHO CANNOT PERFORM AND THUS THE PROPER CONTRACTOR HAS BEEN DEPRIVED OF THE CONTRACT.

WITH FURTHER REFERENCE TO THE RESPONSIBILITY OF DYNAMIC, YOU IMPLY COLLUSION ON THE PART OF DYNAMIC AND TOWER IN PREPARING THEIR BIDS. ASIDE FROM THE CLOSENESS OF THE TOTAL BID PRICES, YOU STATE THAT BOTH BIDDERS QUOTED THE IDENTICAL PRICE OF $15,273 ON THE MAJOR PROCUREMENT ITEM, THE EIGHT LARGE TOWERS, A MATTER WHICH YOU CLAIM SHOULD BE REPORTED TO THE ATTORNEY GENERAL PURSUANT TO ASPR 1-114 RELATING TO IDENTICAL BIDS.

THE BUY AMERICAN ACT PROVIDES, IN PERTINENT PART, AS FOLLOWS:

SEC. 10A. AMERICAN MATERIALS REQUIRED FOR PUBLIC USE.

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 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. THIS SECTION SHALL NOT APPLY WITH RESPECT TO ARTICLES, MATERIALS, OR SUPPLIES FOR USE OUTSIDE THE UNITED STATES, OR IF ARTICLES, MATERIALS, OR SUPPLIES OF THE CLASS OR KIND TO BE USED OR THE ARTICLES, MATERIALS, OR SUPPLIES FROM WHICH THEY ARE MANUFACTURED ARE NOT MINED, PRODUCED, OR MANUFACTURED, AS THE CASE MAY BE, IN THE UNITED STATES IN SUFFICIENT AND REASONABLY AVAILABLE COMMERCIAL QUANTITIES AND OF A SATISFACTORY QUALITY.

SEC. 10C. DEFINITION OF TERMS USED IN SECTIONS 10A AND 10B.

WHEN USED IN SECTIONS 10A AND 10B OF THIS TITLE--

(A) THE TERM "UNITED STATES," WHEN USED IN A GEORGRAPHICAL SENSE, INCLUDES THE UNITED STATES AND ANY PLACE SUBJECT TO THE JURISDICTION THEREOF;

(B) THE TERMS "PUBLIC USE," PUBLIC BUILDING," AND "PUBLIC WORK" SHALL MEAN USE BY, PUBLIC BUILDING OF, AND PUBLIC WORK OF, THE UNITED STATES, THE DISTRICT OF COLUMBIA, PUERTO RICO, AMERICAN SAMOA, THE CANAL ZONE, AND THE VIRGIN ISLANDS.

SEC. 10D. CLARIFICATION OF CONGRESSIONAL INTENT REGARDING SECTIONS 10A AND 10BA).

IN ORDER TO CLARIFY THE ORIGINAL INTENT OF CONGRESS, HEREAFTER, SECTION 10A OF THIS TITLE AND THAT PART OF SECTION 10BA) OF THIS TITLE PRECEDING THE WORDS "PROVIDED, HOWEVER," SHALL BE REGARDED AS REQUIRING THE PURCHASE, FOR PUBLIC USE WITHIN THE UNITED STATES, OF ARTICLES, MATERIALS, OR SUPPLIES MANUFACTURED IN THE UNITED STATES IN SUFFICIENT AND REASONABLY AVAILABLE COMMERCIAL QUANTITIES AND OF A SATISFACTORY QUALITY, UNLESS THE HEAD OF THE DEPARTMENT OR INDEPENDENT ESTABLISHMENT CONCERNED SHALL DETERMINE THEIR PURCHASE TO BE INCONSISTENT WITH THE PUBLIC INTEREST OR THEIR COST TO BE UNREASONABLE.

UNDER SUCH PROVISIONS, THIS OFFICE HAS HELD THAT PROCUREMENTS OF ITEMS FOR USE OUTSIDE THE UNITED STATES ARE EXEMPT FROM THE RESTRICTIONS OF THE BUY AMERICAN ACT, 34 COMP. GEN. 448 (1955); B 161895, DECEMBER 29, 1967; B -114361, FEBRUARY 9, 1961. IT FOLLOWS, THEREFORE, THAT THE EXEMPTIONS WHICH THE ACT PERMITS PURSUANT TO ADMINISTRATIVE DETERMINATIONS OF NONAVAILABILITY OF ITEMS IN THE UNITED STATES, UNREASONABLE DOMESTIC COST, OR INCONSISTENCY WITH THE PUBLIC INTEREST, APPLY ONLY TO PROCUREMENTS WHICH WOULD OTHERWISE BE SUBJECT TO THE RESTRICTIONS OF THE ACT; THAT IS, PROCUREMENTS OF ITEMS FOR PUBLIC USE WITHIN THE UNITED STATES AS DEFINED IN THE STATUTE.

IN LIGHT OF THE FOREGOING, THE INSTANT PROCUREMENT, WHICH FROM ITS INCEPTION HAS CLEARLY INDICATED THAT THE PROCUREMENT ITEMS ARE TO BE USED IN WEST GERMANY, COMES WITHIN THE STATUTORY EXCEPTION TO THE RESTRICTIONS OF THE BUY AMERICAN ACT. ACCORDINGLY, NEITHER THE BUY AMERICAN ACT CLAUSE NOR THE PROVISIONS OF THE STATUTE AND THE IMPLEMENTING PROVISIONS OF ASPR 6-103.2 THROUGH 6-605.5, RELATING TO ADMINISTRATIVE EXEMPTIONS OF CERTAIN PROCUREMENTS OF ITEMS FOR USE WITHIN THE UNITED STATES, MAY BE INVOKED TO BRING THE INSTANT PROCUREMENT UNDER THE ACT IN DIRECT CONTRAVENTION OF THE STATUTORY PROVISIONS. THEREFORE, WE CONCUR WITH YOUR VIEW THAT THE CANADIAN PURCHASE EXEMPTIONS SET OUT IN ASPR HAVE NO APPLICATION TO THIS PROCUREMENT. IN VIEW OF SUCH CONCLUSION, WE SEE NO NEED TO DISCUSS WHETHER THE TOWERS ARE COMMUNICATION EQUIPMENT, AS LISTED IN AFPI 6 103.5, FOR THE PURPOSES OF THE ADMINISTRATIVE EXEMPTION.

TURNING NOW TO THE BALANCE OF PAYMENTS PROGRAM, WHICH HAS AS ITS PURPOSE THE REDUCTION OF DOLLAR EXPENDITURES OUTSIDE THE UNITED STATES, ASPR 6-800 STATES THAT THE RELATED ASPR PROVISIONS ARE ISSUED IN IMPLEMENTATION OF THE PROGRAM WITH RESPECT TO ALL PROCUREMENTS OF SUPPLIES AND SERVICES REQUIRED FOR USE OUTSIDE THE UNITED STATES, EXCEPT PETROLEUM AND MILITARY ASSISTANCE PROGRAM PROCUREMENTS, AND TO PROCUREMENTS OF SCIENTIFIC AND TECHNICAL KNOWLEDGE OUTSIDE THE UNITED STATES AND CANADA. ACCORDINGLY, THE INSTANT PROCUREMENT, BEING FOR ITEMS TO BE USED OUTSIDE THE UNITED STATES AND NOT COMING WITHIN THE PRESCRIBED EXCEPTIONS, MUST BE REGARDED AS SUBJECT TO THE PROVISIONS OF ASPR 6-800 THROUGH 6-807.

ASPR 6-805.1 STATES THAT, EXCEPT AS PROVIDED IN ASPR 6-805.2, PROPOSED PROCUREMENT OF SUPPLIES FOR USE OUTSIDE THE UNITED STATES SHALL BE RESTRICTED TO UNITED STATES END PRODUCTS. OF PERTINENCE TO YOUR PROTEST IS THAT PORTION OF ASPR 6-805.2(A) WHICH READS AS FOLLOWS: 6-805.2 PROCUREMENT LIMITATIONS.

(A) EXCEPT AS PROVIDED IN (C) BELOW, PROCUREMENTS OF FOREIGN END PRODUCTS (INCLUDING CONSTRUCTION MATERIALS) AND SERVICES FOR USE OUTSIDE THE U.S. MAY BE MADE ONLY IN THE FOLLOWING CASES:

(XI) UNREASONABLE COST--PROCUREMENTS, OTHER THAN THOSE COVERED IN (I) THROUGH (X) ABOVE, WHERE UNITED STATES END PRODUCTS OR SERVICES ARE AVAILABLE, THE DOMESTIC COST IS NOT ESTIMATED TO EXCEED $10,000, AND THE DIFFERENCE BETWEEN THE DOMESTIC COST AND THE FOREIGN COST IS DETERMINED TO BE SO LARGE AS TO MAKE PROCUREMENT OF FOREIGN END PRODUCTS AND SERVICES CLEARLY DESIRABLE. SUCH DETERMINATIONS SHALL BE MADE BY THE INDIVIDUALS DESIGNATED IN (B) BELOW. WHERE THE DOMESTIC COST IS ESTIMATED TO EXCEED $10,000, AND THE DIFFERENCE BETWEEN THE DOMESTIC COST AND THE FOREIGN COST EXCEEDS 50% OF THE FOREIGN COST, THE MATTER WILL BE WARDED TO THE SECRETARY OF DEFENSE FOR DETERMINATION. (ASPR 6-805.2(C) RELATES TO PROCUREMENTS OF SCIENTIFIC AND TECHNICAL KNOWLEDGE RESULTING IN EXPENDITURES OUTSIDE THE UNITED STATES AND CANADA.)

ASPR 6-806.1 REQUIRES, EXCEPT AS TO PROCUREMENTS SET FORTH IN ASPR 6 805.2(A) AND (C), WHERE THE DOMESTIC COST IS ESTIMATED TO EXCEED $10,000, THAT COST ESTIMATES BE MADE OF UNITED STATES AND FOREIGN END PRODUCTS OR SERVICES PRIOR TO SOLICITATION AND THAT WHERE THE ESTIMATED DOMESTIC COST DOES NOT EXCEED THE FOREIGN COST BY MORE THAN 50 PERCENT OF THE FOREIGN COST, THE SOLICITATION BE RESTRICTED TO UNITED STATES END PRODUCTS AND SERVICES. UNDER ASPR 6-806.1(B), AS CONSTITUTED AT THE TIME OF CONTRACT AWARD, HOWEVER, IN A PROCUREMENT IN WHICH THE DOMESTIC COST WAS IN EXCESS OF $10,000 THE MATTER WAS REQUIRED TO BE FORWARDED TO THE SECRETARY OF DEFENSE FOR A DETERMINATION IF AFTER BID OPENING, OR RECEIPT OF PROPOSALS OR QUOTATIONS, THE CONTRACTING OFFICER HAD KNOWLEDGE THAT DOMESTIC COST EXCEEDED FOREIGN COST BY MORE THAN 50 PERCENT OF THE FOREIGN COST.

PURSUANT TO SUCH PROVISIONS, ABSENT A PRESOLICITATION DETERMINATION BY PROPER AUTHORITY UNDER ASPR 6-805.2 EXEMPTING THE PROCUREMENT FROM THE RESTRICTIONS OF THE BALANCE OF PAYMENTS PROGRAM, THE UNITED STATES PRODUCTS CERTIFICATE PRESCRIBED BY ASPR 6-806.3 AND THE BALANCE OF PAYMENTS CONTRACT CLAUSE PRESCRIBED BY ASPR 6-806.4 WERE REQUIRED TO BE INCLUDED OR INCORPORATED IN THE IFB. TO THE EXTENT, THEREFORE, THAT THE IFB DID NOT INCLUDE OR INCORPORATE SUCH PROVISIONS, IT WAS DEFICIENT AND THE PROCURING ACTIVITY FAILED TO COMPLY WITH THE BALANCE OF PAYMENTS PROGRAM PROCEDURES. WE DO NOT BELIEVE, HOWEVER, THAT EITHER THIS LAPSE ON THE PART OF THE PROCURING ACTIVITY, OR ITS FAILURE TO MAKE THE REQUIRED PRESOLICITATION COMPARISON BETWEEN ESTIMATED FOREIGN AND DOMESTIC COSTS, OR ITS FAILURE TO REFER THE BIDS TO APPROPRIATE AUTHORITY FOR A DETERMINATION OF REASONABLENESS OF COST, REQUIRES THAT YOUR BID BE ACCEPTED, AS YOU URGE, WITHOUT REGARD TO PRICE. NOT ONLY IS THERE NO PROVISION IN THE REGULATIONS AUTHORIZING AWARD TO A UNITED STATES SOURCE FOR UNITED STATES END ITEMS MERELY ON THE BASIS THAT THE PROCURING ACTIVITY HAS FAILED TO COMPLY WITH THE BALANCE OF PAYMENTS PROGRAM PROCEDURES, BUT UNDER ASPR 6-806.1(B)(1) THE CONTRACTING OFFICER IS WITHOUT AUTHORITY TO ACCEPT A DOMESTIC BID WHICH EXCEEDS A FOREIGN BID BY MORE THAN 50 PERCENT OF THE FOREIGN BID WITHOUT REFERRAL TO, AND APPROVAL BY, HIGHER AUTHORITY. SUCH PROVISIONS, WHICH ARE IN KEEPING WITH THE REQUIREMENT IN 10 U.S.C. 2305(C) THAT AWARD BE THE MOST ADVANTAGEOUS TO THE UNITED STATES, PRICE AND OTHER FACTORS CONSIDERED, PRECLUDE THE MAKING OF AN AWARD IN SUCH CIRCUMSTANCES WITHOUT CONSIDERATION OF PRICE. ACCORDINGLY, THE VARIATION BETWEEN DYNAMIC'S PRICE AND YOUR PRICE WAS REQUIRED TO BE CONSIDERED IN MAKING AWARD UNDER THE IFB, AND AN AWARD BASED UPON YOUR BID WOULD HAVE BEEN IMPROPER IN THE ABSENCE OF A DETERMINATION BY THE SECRETARY OF DEFENSE THAT PAYMENT OF THE INVOLVED PRICE DIFFERENTIAL WOULD BE IN THE INTEREST OF THE GOVERNMENT.

AS TO THE ISSUES OF THE REASONABLENESS OF DYNAMIC'S BID AND ITS ADEQUACY FOR PERFORMANCE OF THE CONTRACT, WE DO NOT BELIEVE THAT SUCH MATTERS MAY BE RESOLVED BY COMPARISON OF THE BID WITH YOUR DOMESTIC ITEM PRICE OR WITH A GOVERNMENT ESTIMATE BASED ON DOMESTIC COST. RATHER, WE BELIEVE THAT THE PROPER COMPARISON TO BE MADE IS WITH OTHER FOREIGN BIDS INCLUDING BIDS OF BIDDERS IN THE SAME AREA AS DYNAMIC. DYNAMIC'S PRICE COMPARES FAVORABLY WITH THE SECOND LOW BID OF TOWER, ANOTHER CANADIAN BIDDER. FURTHER, INVESTIGATION BY THE DEFENSE CONTRACT ADMINISTRATION SERVICES OFFICE IN OTTAWA OF THE STATUS OF THE CONTRACT FOLLOWING RECEIPT BY THE AIR FORCE OF YOUR COMPLAINT THAT DYNAMIC'S PRICE IS TOO LOW HAS REVEALED THAT DYNAMIC HAS ALREADY PURCHASED THE NECESSARY STEEL FROM CANADIAN SOURCES AND HAS MADE NO CLAIM OF MISTAKE IN BID. IN OUR VIEW, THEREFORE, THE RECORD DOES NOT SUPPORT YOUR ASSERTIONS RESPECTING THE REASONABLENESS OF DYNAMIC'S BID AND ITS EFFECT ON DYNAMIC'S RESPONSIVENESS AND RESPONSIBILITY.

CONCERNING THE QUESTION OF POSSIBLE COLLUSION BETWEEN DYNAMIC AND TOWER IN THE PREPARATION OF THEIR RESPECTIVE BIDS, EXAMINATION OF THE ABSTRACT OF BIDS REVEALS THAT TOWER BID A UNIT PRICE OF $9,833 FOR THE FOUR SMALL TOWERS, OR A TOTAL OF $820 MORE THAN DYNAMIC BID FOR THE FOUR UNITS. THE EIGHT LARGE TOWERS, HOWEVER, THE PRICES WERE NOT IDENTICAL, AS YOU HAVE STATED. DYNAMIC BID A UNIT PRICE OF $15,273.88 EACH, TOTAL $122,191.04, WHEREAS TOWER BID A UNIT PRICE OF $15,243.50, TOTAL $121,948, OR $243.04 LESS THAN DYNAMIC FOR THE EIGHT UNITS. IN ADDITION, DYNAMIC'S LOT PRICES OF $2,303.13 AND $1,750.38 FOR THE DATA ITEMS NUMBERED 4AA AND 4AB WERE LOWER BY $216.87 AND $49.62, RESPECTIVELY, THAN TOWER'S PRICES OF $2,520 AND $1,800 THEREFOR. FURTHER, THE ABSTRACT DOES NOT REFLECT IDENTICAL PRICES ON ANY ITEM BY ANY OF THE EIGHT BIDDERS.

IN LIGHT OF THE INFORMATION DISCLOSED BY THE ABSTRACT OF BIDS, WE CANNOT CONCLUDE THAT A REPORT TO THE ATTORNEY GENERAL IS REQUIRED UNDER THE IDENTICAL BID PROVISIONS OF ASPR 1-112. THEREFORE, ABSENT ANY INDICATION IN THE RECORD OF IRREGULARITY IN THE SUBMISSION OF DYNAMIC'S BID, WE ARE COMPELLED TO VIEW AS REASONABLE THE OPINION OF THE DEPARTMENT OF THE AIR FORCE THAT THE SIMILARITY IN THE TWO LOW CANADIAN BID PRICES IS ATTRIBUTABLE TO SOLICITATION OF THE SAME SUBCONTRACTOR.

AS TO THE BASIS ON WHICH DYNAMIC WAS DETERMINED TO BE RESPONSIBLE, WE DIRECT YOUR ATTENTION TO THE FACT THAT UNDER ASPR 1-901 IN ITS EXISTING FORM THE PROCEDURES FOR NORMALLY DETERMINING THE RESPONSIBILITY OF PROSPECTIVE GOVERNMENT CONTRACTORS ARE NOT FOR APPLICATION TO PROCUREMENTS FROM CCC. ACCORDINGLY, WHILE WE ADHERE TO THE VIEW WHICH WAS STATED IN 47 COMP. GEN. 373, 378 (1968), THAT ASPR IS DEFICIENT IN FURNISHING TO CONTRACTING OFFICERS PROCEDURES OR GUIDELINES FOR DETERMINING THE RESPONSIBILITY OF CANADIAN FIRMS, WE NEVERTHELESS ARE UNABLE TO CONCLUDE THAT THERE HAS BEEN A VIOLATION OF THE PROCUREMENT REGULATIONS IN THIS CASE. WITH RESPECT TO YOUR SUGGESTION THAT OUR OFFICE CHECK ON DYNAMIC WITH REGARD TO ITS RESPONSIBILITY, YOU ARE ADVISED THAT IT IS PRIMARILY THE FUNCTION OF THE CONTRACTING AGENCY CONCERNED TO DETERMINE THE RESPONSIBILITY OF A PROSPECTIVE CONTRACTOR, AND OUR OFFICE WILL NOT QUESTION SUCH A DETERMINATION ABSENT ANY INDICATION OF ARBITRARINESS, BAD FAITH OR LACK OF SUFFICIENT EVIDENCE. 38 COMP. GEN. 131, 133 (1958). FIND NOTHING OF RECORD OTHER THAN YOUR UNSUBSTANTIATED STATEMENTS WHICH WOULD WARRANT QUESTIONING OF DYNAMIC'S CAPABILITY. ACCORDINGLY, AND IN VIEW OF THE FACT THAT CCC AS THE PRIME CONTRACTOR IS RESPONSIBLE FOR THE PERFORMANCE OF THE CONTRACT, WE ARE UNABLE TO CONCUR WITH YOUR VIEW THAT THE AWARD HAS BEEN MADE TO A CONTRACTOR WHO CANNOT PERFORM.

CONCERNING INVESTIGATION BY OUR OFFICE OF THE POSSIBILITY OF STEEL DUMPING PRACTICES BY THE CANADIAN BIDDERS, WE HAVE NO REASON TO QUESTION THE STATEMENT BY THE DEFENSE CONTRACT ADMINISTRATION SERVICES OFFICE IN OTTAWA AS TO THE IDENTITY OF THE CANADIAN SOURCES OF STEEL FOR THE TOWERS, OR THE REPORT THAT SUCH STEEL COMPLIES WITH OR EXCEEDS THE IFB REQUIREMENTS. THEREFORE, ABSENT ANY EVIDENCE TO INDICATE ANY IRREGULARITY IN OBTAINING THE STEEL, WE DO NOT BELIEVE THAT ANY ACTION BY OUR OFFICE IS INDICATED.

IN LINE WITH THE FOREGOING, WHILE WE FIND THAT THE DETERMINATION BY THE DEPARTMENT OF THE AIR FORCE THAT THE PROCUREMENT WAS NOT SUBJECT TO THE BALANCE OF PAYMENTS PROGRAM PROCEDURES WAS CONTRARY TO THE ASPR PROVISIONS, WE SEE NO EVIDENCE OF RECORD THAT SUCH DETERMINATION, AND THE AWARD TO CCC, WERE MADE IN OTHER THAN GOOD FAITH. IN THE CIRCUMSTANCES, AND SINCE IT IS NOT CERTAIN THAT YOUR BID, WHICH EXCEEDED THE LOW CANADIAN BID BY MORE THAN 50 PERCENT, WOULD HAVE BEEN APPROVED FOR AWARD HAD THE PRESCRIBED PROCEDURES BEEN FOLLOWED, WE ARE UNABLE TO CONCLUDE THAT CANCELLATION OF THE AWARD TO CCC WOULD BE IN THE INTEREST OF THE UNITED STATES, ACCORDINGLY, YOUR PROTEST IS DENIED.