B-168791, MARCH 19, 1970, 49 COMP. GEN. 606

B-168791: Mar 19, 1970

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BUY AMERICAN REQUIREMENT NOTWITHSTANDING THE COTTON FROM WHICH PADS ARE TO BE MANUFACTURED IN JAPAN FOR DELIVERY IN THE UNITED STATES IS OF DOMESTIC ORIGIN. THE PADS OFFERED BY THE LOW BIDDER ARE CONSIDERED OF FOREIGN ORIGIN AND SUBJECT TO THE EXPENDITURE RESTRICTION APPEARING IN THE DEPARTMENT OF DEFENSE ACTS SINCE FIRST INTRODUCED IN 1953. AS THE RESTRICTION WAS NOT WAIVED ON THE BASIS THE ITEM CANNOT BE PROCURED IN THE UNITED STATES. AS THE ITEM IS NOT FOR USE OVERSEAS. THE LOW BID WAS PROPERLY REJECTED. EVIDENCING THE CONGRESSIONAL INTENT THAT ANY ARTICLE OF COTTON MAY BE CONSIDERED "AMERICAN" ONLY WHEN THE ORIGIN OF THE FIBER AS WELL AS EACH SUCCESSIVE STAGE OF MANUFACTURING IS DOMESTIC.

B-168791, MARCH 19, 1970, 49 COMP. GEN. 606

APPROPRIATIONS -- RESTRICTIONS -- BUY AMERICAN REQUIREMENT NOTWITHSTANDING THE COTTON FROM WHICH PADS ARE TO BE MANUFACTURED IN JAPAN FOR DELIVERY IN THE UNITED STATES IS OF DOMESTIC ORIGIN, THE PADS OFFERED BY THE LOW BIDDER ARE CONSIDERED OF FOREIGN ORIGIN AND SUBJECT TO THE EXPENDITURE RESTRICTION APPEARING IN THE DEPARTMENT OF DEFENSE ACTS SINCE FIRST INTRODUCED IN 1953, AND AS THE RESTRICTION WAS NOT WAIVED ON THE BASIS THE ITEM CANNOT BE PROCURED IN THE UNITED STATES, AND AS THE ITEM IS NOT FOR USE OVERSEAS, THE LOW BID WAS PROPERLY REJECTED. THE FACT THAT THE INVITATION REFERS TO COTTON "GROWN OR PRODUCED IN THE UNITED STATES" DOES NOT DENOTE AN ALTERNATIVE AND MAKE THE PLACE OF PRODUCTION IRRELEVANT, IN VIEW OF THE LEGISLATIVE HISTORY OF THE 1953 ACT, EVIDENCING THE CONGRESSIONAL INTENT THAT ANY ARTICLE OF COTTON MAY BE CONSIDERED "AMERICAN" ONLY WHEN THE ORIGIN OF THE FIBER AS WELL AS EACH SUCCESSIVE STAGE OF MANUFACTURING IS DOMESTIC.

TO NATIONAL GRAPHICS, INC., MARCH 19, 1970:

REFERENCE IS MADE TO YOUR PROTEST BY LETTERS DATED NOVEMBER 25 AND 26, 1969, TO THE DEFENSE CONSTRUCTION SUPPLY CENTER (DCSC), DEFENSE SUPPLY AGENCY (DSA), AND BY TELEGRAM AND LETTER DATED JANUARY 12, 1970, AND SUBSEQUENT CORRESPONDENCE TO OUR OFFICE, AGAINST THE AWARD OF A CONTRACT TO ANY OTHER BIDDER UNDER INVITATION FOR BIDS (IFB) DSA 700-70 B-1086, ISSUED BY DCSC UNDER DATE OF OCTOBER 7, 1969.

THE IFB REQUESTED F.O.B. DESTINATION BIDS TO FURNISH 4,000 CASES OF COTTON LITHOGRAPHIC WIPING PADS, 1,500 CASES TO BE DELIVERED TO COLUMBUS, OHIO, AND 2,500 CASES TO OGDEN, UTAH. BY AN AMENDMENT DATED OCTOBER 29, THE FOLLOWING PERTINENT CLAUSES WERE INCLUDED IN THE IFB TERMS: 6.106 IMPORT DUTY

BIDDERS OFFERING OTHER THAN DOMESTIC SOURCE END PRODUCTS, AS DEFINED BY CLAUSE 14, 7.101 GENERAL PROVISIONS, WHICH ARE MANUFACTURED AND SHIPPED FROM POINTS OUTSIDE THE UNITED STATES, MUST INDICATE BELOW THE AMOUNT OF DUTY AND ESTIMATED TRANSPORTATION COSTS INCLUDED IN THE PRICE OF EACH ITEM. ITEM NO. AMOUNT OF DUTY ESTIMATED TRANSPORTATION COSTS

(TO BE INDICATED IN SOLICITATION) 6.125 ASPR 6 305 PREFERENCE FOR CERTAIN DOMESTIC COMMODITIES (1967 SEP)

THE CONTRACTOR AGREES THAT THERE WILL BE DELIVERED UNDER THIS CONTRACT ONLY SUCH ARTICLES OF FOOD, CLOTHING, COTTON, WOVEN SILK AND WOVEN SILK BLENDS, SPUN SILK YARN FOR CARTRIDGE CLOTH, SYNTHETIC FABRIC, COATED SYNTHETIC FABRIC, OR WOOL (WHETHER IN THE FORM OF FIBER OR YARN OR CONTAINED IN FABRICS, MATERIALS, OR MANUFACTURED ARTICLES) AS HAVE BEEN GROWN, REPROCESSED, REUSED, OR PRODUCED IN THE UNITED STATES, ITS POSSESSIONS, OR PUERTO RICO; PROVIDED, THAT THIS CLAUSE SHALL HAVE NO EFFECT TO THE EXTENT THAT THE SECRETARY HAS DETERMINED AS TO ANY SUCH ARTICLES THAT A SATISFACTORY QUALITY AND SUFFICIENT QUANTITY CANNOT BE PROCURED AS AND WHEN NEEDED AT UNITED STATES MARKET PRICES; PROVIDED FURTHER, THAT NOTHING HEREIN SHALL PRECLUDE THE DELIVERY OF FOODS UNDER THIS CONTRACT WHICH HAVE BEEN MANUFACTURED OR PROCESSED IN THE UNITED STATES, ITS POSSESSIONS, OR PUERTO RICO. THE LATTER CLAUSE STATES THE RESTRICTIONS CONTAINED IN SECTION 523 OF THE DEPARTMENT OF DEFENSE APPROPRIATION ACT OF 1969, 82 STAT. 1120, 1133.

NINE BIDS WERE RECEIVED BY DCSC AND OPENED ON NOVEMBER 7 AS SCHEDULED YOUR BID, QUOTING A UNIT PRICE OF $20 WITH A 20-DAY PROMPT PAYMENT DISCOUNT OF 30 PERCENT, NET $14, FOR AN END ITEM MANUFACTURED IN JAPAN FROM COTTON PRODUCED IN THE UNITED STATES, WAS OSTENSIBLY LOW. THE REMAINING BIDS, RANGING FROM A UNIT PRICE OF $18.08 OFFERED BY COLUMBIA RIBBON & CARBON MANUFACTURING CO., INC. (COLUMBIA), TO $19.25 PER UNIT, ALL OFFERED A DOMESTIC ITEM MANUFACTURED BY ONE SOURCE, KENDALL COMPANY (KENDALL), WALPOLE, MASSACHUSETTS.

EXAMINATION OF YOUR BID DISCLOSED THAT YOU HAD MADE THE NOTATION "APPROX $1.80/CASE" ON PAGE 7 IN THE SPACE PROVIDED FOR ENTRY OF THE AMOUNT OF IMPORT DUTY. IN A LETTER DATED OCTOBER 29, 1969, HOWEVER, YOU INFORMED DCSC THAT THE NORMAL DUTY IS $2.23 PER CASE BUT THE ESTIMATED AMOUNT OF $1.80 WAS USED DUE TO VARIATION IN THE FACTORY PRICE OF THE END ITEM. DCSC THEREFORE REQUESTED YOU TO PROVIDE DOCUMENTARY PROOF OF THE AMOUNT OF DUTY PAID ON THE END ITEM, AND YOU FURNISHED CERTAIN PAPERS WITH A LETTER DATED NOVEMBER 12 STATING THAT THE EXACT DUTY WAS FRACTIONALLY MORE THAN $2.12 PER CASE.

BY LETTER DATED NOVEMBER 21, 1969, THE CONTRACTING OFFICER NOTIFIED YOU THAT YOUR BID COULD NOT BE CONSIDERED FOR AWARD. THE LETTER READS, IN PART, AS FOLLOWS:

YOUR BID OF 20 OCTOBER 1969 SUBMITTED IN RESPONSE TO THE SUBJECT SOLICITATION INDICATES THAT THE COTTON PADS OFFERED WILL BE MANUFACTURED IN JAPAN OF DOMESTIC COTTON.

BECAUSE THESE ARTICLES ARE COMPOSED OF COTTON, THEY ARE SUBJECT TO THE RESTRICTIONS OF SECTION 523 OF DEFENSE APPROPRIATION ACT OF 1969, THE SECOND SUPPLEMENTAL APPROPRIATION ACT OF 1969, AND THE CONTINUING APPROPRIATION ACT OF 1970, THE REQUIREMENTS OF WHICH ARE IMPLEMENTED BY ARMED SERVICES PROCUREMENT REGULATION 6-302 AND 6-305 AND INCORPORATED INTO THE SUBJECT SOLICITATION UNDER CLAUSE 6.125 THEREOF.

BASICALLY, THESE REQUIREMENTS ARE THAT NO ARTICLE OF COTTON (WHETHER IN THE FORM OF FIBER OR YARN OR CONTAINED IN MATERIALS OR MANUFACTURED ARTICLES) NOT GROWN, REPROCESSED, REUSED, OR PRODUCED IN THE UNITED STATES OR ITS POSSESSIONS MAY BE PROCURED BY THE DEPARTMENT OF DEFENSE. THE COMPTROLLER GENERAL OF THE UNITED STATES HAS HELD THAT THESE RESTRICTIONS REQUIRE THAT IN ORDER FOR A COTTON PRODUCT TO BE CONSIDERED TO BE OF DOMESTIC ORIGIN, THE ORIGIN OF THE RAW FIBER AS WELL AS EACH SUCCESSIVE STAGE OF MANUFACTURE MUST BE DOMESTIC. ACCORDINGLY, SINCE THE ITEMS OFFERED BY YOUR FIRM ARE TO BE MANUFACTURED IN JAPAN, WE CANNOT CONSIDER THAT THEY MEET THE REQUIREMENTS OF THE DEFENSE APPROPRIATION ACTS.

IN YOUR PROTEST TO DCSC AGAINST THE REJECTION OF YOUR BID, YOU POINTED OUT THAT AWARD TO YOU WOULD RESULT IN A SAVING OF $16,200 ON THIS PROCUREMENT ALONE AND THAT LIKE SAVINGS COULD BE REALIZED ON OTHER SIMILAR PROCUREMENTS. FURTHER, YOU TOOK ISSUE WITH A STATEMENT WHICH DCSC HAD APPARENTLY MADE TO YOU BY TELEPHONE TO THE EFFECT THAT THE APPROPRIATION ACT RESTRICTION REQUIRES THE COTTON TO BE GROWN AND MANUFACTURED IN THE UNITED STATES. IN THIS CONNECTION, YOU STRESSED THAT THE PREFERENCE FOR CERTAIN DOMESTIC COMMODITIES CLAUSE QUOTED ABOVE, WHICH IS PRESCRIBED BY ARMED SERVICES PROCUREMENT REGULATION (ASPR) 6-305, PURSUANT TO THE APPROPRIATION RESTRICTION REFERRED TO, APPLIES TO "COTTON *** GROWN *** OR PRODUCED IN THE UNITED STATES *** ." PRESUMABLY, IT IS YOUR POSITION THAT GROWTH IN THE UNITED STATES OF THE COTTON FROM WHICH THE PADS ARE MADE WILL SERVE TO SATISFY THE STATUTORY RESTRICTION, REGARDLESS OF THE PLACE OF PRODUCTION OF THE END ITEM BEING PURCHASED.

IN ADDITION, IN THE APPARENT BELIEF THAT THE PROCUREMENT COULD BE AUTHORIZED UNDER THE EXCEPTION IN THE BUY AMERICAN ACT OF MARCH 3, 1933, 47 STAT. 1520 (41 U.S.C. 10A-D) RELATING TO PURCHASE OF ITEMS TO BE USED OUTSIDE THE UNITED STATES, AND THAT EVEN GREATER SAVINGS MIGHT BE ACCOMPLISHED, YOU INQUIRED WHETHER THE ITEM IS TO BE SO USED, WHETHER IT COULD BE SHIPPED FROM JAPAN DIRECTLY TO THE USING ACTIVITIES, AND WHETHER INSPECTION AND ACCEPTANCE COULD BE ACCOMPLISHED IN JAPAN.

ON THE MATTER OF COMPETITION, YOU STATED THAT YOU AND KENDALL ARE THE ONLY SOURCES OF THE PROCUREMENT ITEM; THAT THE COMPETITION AFFORDED BY YOU HAS RESULTED IN REDUCTION OF THE PREVIOUS PRICES OF THE ITEM BY 44 PERCENT; AND THAT EXCLUSION OF YOUR BID FROM CONSIDERATION WILL PERMIT ESTABLISHMENT OF THE MARKET PRICE BY THE SOLE DOMESTIC SOURCE AT ITS OWN LEVEL WITH A RESULTING RETURN TO THE EARLIER HIGH PRICE LEVELS.

FINALLY, YOU STATED THAT SOMETIME AGO KENDALL INDICATED TO YOU THAT IT USED LONG COTTON STAPLE FIBERS IMPORTED FROM EGYPT OR PAKISTAN TO OVERCOME CERTAIN PROBLEMS IN PRODUCING THE END ITEM, AND YOU THEREFORE URGED THAT THE MATTER BE INVESTIGATED FROM THE STANDPOINT OF A POSSIBLE VIOLATION OF THE CONTRACT AND REGULATIONS.

ON DECEMBER 3, DCSC ADDRESSED A LETTER TO COLUMBIA REQUESTING A WRITTEN STATEMENT FROM EITHER COLUMBIA OR KENDALL AS TO THE SOURCE OF THE COTTON TO BE USED IN THE END ITEM PROPOSED TO BE FURNISHED BY COLUMBIA. THE REPLY WAS UNEQUIVOCALLY TO THE EFFECT THAT THE PADS OFFERED BY COLUMBIA ARE MADE OF COTTON GROWN AND PROCESSED IN THE UNITED STATES.

BY LETTER DATED DECEMBER 5, 1969, DCSC ADVISED YOU THAT THE MATTER HAD BEEN REFERRED TO HEADQUARTERS DSA FOR CONSIDERATION OF THE ISSUANCE OF A SECRETARIAL DETERMINATION INVOKING THE EXCEPTION AUTHORIZED BY THE APPROPRIATION ACT RESTRICTION. THE LETTER ALSO INCLUDED THE FOLLOWING PERTINENT STATEMENTS:

IN REGARD TO YOUR QUESTION CONCERNING THE ULTIMATE DESTINATION OF THE SUPPLIES TO BE FURNISHED UNDER THE SUBJECT SOLICITATION, WE FIND THAT IT IS NOT PRACTICABLE TO PREDETERMINE DESTINATIONS IN ADVANCE OF RECEIPT OF ACTUAL DEMANDS. WE HAVE FOUND THAT THE MOST EFFICIENT PROCUREMENT PRACTICE IS TO DISTRIBUTE THESE PRODUCTS TO OUR DEPOTS ACCORDING TO CURRENT DEMAND HISTORY.

WE ARE UNABLE AT THIS TIME TO STATE WHETHER INSPECTION AND ACCEPTANCE CAN TAKE PLACE IN JAPAN, ALTHOUGH THE MATTER WILL RECEIVE OUR FULL CONSIDERATION SHOULD THE APPROPRIATION ACT RESTRICTIONS BE WAIVED.

FOLLOWING RECEIPT OF THE STATEMENT FROM COLUMBIA AS TO ORIGIN OF THE COTTON, AND OF A DENIAL BY DSA HEADQUARTERS OF WAIVER OF THE APPROPRIATION ACT RESTRICTION, DCSC NOTIFIED YOU BY TELEGRAM DATED JANUARY 13, 1970, OF ITS INTENT TO MAKE AWARD TO COLUMBIA AS THE LOW RESPONSIVE, RESPONSIBLE BIDDER OFFERING A DOMESTIC ITEM AND ACCORDED YOU AN OPPORTUNITY TO SUBMIT A FORMAL PROTEST BY JANUARY 16. THE PROTEST TO OUR OFFICE ENSUED.

IN A LETTER DATED FEBRUARY 24, 1970, YOU REQUEST OUR OFFICE TO ADVISE YOU WHETHER THE ITEM YOU OFFER MAY BE PURCHASED BY THE GOVERNMENT IN LIGHT OF THE PROVISIONS IN THE DEPARTMENT OF DEFENSE APPROPRIATION ACT. YOU ASSERT THAT IF, AS YOU UNDERSTAND, A GOOD PERCENTAGE OF THE ORDERS FOR THE ITEM ARE FOR USE OUTSIDE THE UNITED STATES, THE BUY AMERICAN ACT DOES NOT APPLY, AND YOU STATE THAT YOU ARE WILLING TO ACCEPT AWARD EVEN THOUGH THE ACTUAL DUTY OF $2.12 WILL RESULT IN A LOSS TO YOU SINCE YOU WISH TO SET A PRECEDENT FOR FUTURE ORDERS. IN ADDITION, YOU ADVISE THAT YOU ARE NOT PRESSING THE ISSUE OF THE ORIGIN OF THE RAW COTTON USED IN THE PRODUCT SUPPLIED BY KENDALL.

THE PROCUREMENT IS SUBJECT TO THE PROVISIONS OF THE DEPARTMENT OF DEFENSE APPROPRIATION ACT, 1970, PUBLIC LAW 91-171, DECEMBER 29, 1969, 83 STAT. 469, SECTION 624 OF WHICH READS, IN PERTINENT PART, AS FOLLOWS:

NO PART OF ANY APPROPRIATION CONTAINED IN THIS ACT SHALL BE AVAILABLE FOR THE PROCUREMENT OF ANY ARTICLE OF *** COTTON, *** (WHETHER IN THE FORM OF FIBER OR YARN OR CONTAINED IN FABRICS, MATERIALS, OR MANUFACTURED ARTICLES) NOT GROWN, REPROCESSED, REUSED, OR PRODUCED IN THE UNITED STATES OR ITS POSSESSIONS, EXCEPT TO THE EXTENT THAT THE SECRETARY OF THE DEPARTMENT CONCERNED SHALL DETERMINE THAT A SATISFACTORY QUALITY AND SUFFICIENT QUANTITY OF *** ANY FORM OF COTTON, *** GROWN, REPROCESSED, REUSED, OR PRODUCED IN THE UNITED STATES OR ITS POSSESSIONS CANNOT BE PROCURED AS AND WHEN NEEDED AT UNITED STATES MARKET PRICES AND EXCEPT PROCUREMENTS OUTSIDE THE UNITED STATES IN SUPPORT OF COMBAT OPERATIONS ***

CONSIDERING FIRST THE WORDS "GROWN, REPROCESSED, REUSED, OR PRODUCED IN THE UNITED STATES," IN THE STATUTORY RESTRICTION, WE ARE MINDFUL THAT THE WORD "OR" ORDINARILY IS CONSTRUED AS DENOTING AN ALTERNATIVE. HOWEVER, REFERENCE TO THE LEGISLATIVE HISTORY OF THE DEPARTMENT OF DEFENSE APPROPRIATION ACT, 1953, 66 STAT. 517, IN WHICH THE SPECIFIC REFERENCE TO COTTON AND WOOL AND THE WORDS "REPROCESSES" AND "REUSED" WERE FIRST INCLUDED IN THE RESTRICTION, CLEARLY SHOWS THAT THE INTENT OF THE CONGRESS WAS THAT ANY ARTICLE OF COTTON (OR WOOL) WOULD BE CONSIDERED "AMERICAN" ONLY WHEN THE ORIGIN OF THE RAW FIBER, AS WELL AS EACH SUCCESSIVE STAGE OF MANUFACTURE, IS DOMESTIC. SEE B-110974, SEPTEMBER 5, 1952. AT THE TIME THE RESTRICTION WAS FIRST ENACTED, THE ARMED SERVICES PROCUREMENT REGULATION IMPLEMENTING THE BUY AMERICAN ACT PROVIDED THAT IN DETERMINING THE ORIGIN OF SUPPLIES TO BE PURCHASED ONLY THE END ITEM, AND COMPONENTS DIRECTLY INCORPORATED THEREIN, WOULD BE CONSIDERED, SO THAT CLOTHING MADE IN THE UNITED STATES FROM CLOTH MADE IN THE UNITED STATES WOULD BE DOMESTIC, REGARDLESS OF THE ORIGIN OF THE THREAD, YARN, OR FIBERS FROM WHICH THE CLOTH WAS MADE. THE PURPOSE OF THE CONGRESS WAS TO OVERRULE THAT REGULATION WITH RESPECT TO ARTICLES MADE OF WOOL OR COTTON, BUT THERE IS NOTHING IN THE LEGISLATION AS WRITTEN, OR IN THE RELEVANT LEGISLATIVE HISTORY, WHICH COULD BE CONSTRUED AS INDICATING ANY INTENTION TO MODIFY OR RELAX THE BASIC MANDATE OF THE BUY AMERICAN ACT, THAT MANUFACTURED ARTICLES PURCHASED FOR GOVERNMENT USE BE MANUFACTURED IN THE UNITED STATES, AS CLARIFIED AND EMPHASIZED BY THE AMENDATORY ACT OF OCTOBER 29, 1949, 63 STAT. 1024 (41 U.S.C. 10D).

WE ARE NOT AWARE OF ANY CHANGE OF INTENT UPON THE PART OF THE CONGRESS WITH RESPECT TO THE SIMILAR LANGUAGE WHICH HAS SINCE APPEARED IN EACH ANNUAL APPROPRIATION ACT FOR THE DEPARTMENT OF DEFENSE. ACCORDINGLY, WE MUST CONCLUDE THAT THE MANUFACTURE IN JAPAN OF THE END ITEM OFFERED BY YOU, EVEN THOUGH IT BE MADE OF COTTON GROWN IN THE UNITED STATES, BRINGS THE ITEM WITHIN THE PURVIEW OF THE RESTRICTION. THIS BEING SO, PROCUREMENT OF THE ITEM MAY BE MADE FROM YOU ONLY IF IT CAN BE JUSTIFIED UNDER ONE OF THE EXCEPTIONS PERMITTED BY THE STATUTORY PROVISION AS IMPLEMENTED BY ASPR 6-303.

AS TO PROCUREMENTS OUTSIDE THE UNITED STATES IN SUPPORT OF COMBAT OPERATIONS, THIS EXCEPTION, ACCORDING TO THE LEGISLATIVE HISTORY OF THE DEPARTMENT OF DEFENSE AND APPROPRIATION ACT, 1954, 67 STAT. 336, WAS INTENDED TO BE RESTRICTED TO PURCHASES OF ITEMS OUTSIDE THE UNITED STATES FOR USE IN AREAS WHERE COMBAT OPERATIONS OR HOSTILITIES OCCUR. CLEARLY, THE INSTANT PROCUREMENT, WHICH CALLS FOR DELIVERY WITHIN THE UNITED STATES, AND DOES NOT APPEAR TO BE EXCLUSIVELY FOR USE IN SUCH AREAS, DOES NOT COME WITHIN THIS EXCEPTION. AS TO THE EXCEPTION RELATING TO NONAVAILABILITY OF ITEMS GROWN OR PRODUCED IN THE UNITED STATES, OF SATISFACTORY QUALITY AND IN SUFFICIENT QUANTITY, AS AND WHEN NEEDED, AT UNITED STATES MARKET PRICES, THE DETERMINATION BY THE SECRETARY CONCERNED IS NOT GOVERNED BY THE FACT THAT THE FOREIGN GROWN OR FOREIGN PRODUCED ITEM IS OFFERED AT A MUCH LOWER PRICE THAN UNITED STATES GROWN OR PRODUCED ITEMS. RATHER, THE DETERMINATION MUST BE BASED ON CONSIDERATION OF UNITED STATES MARKET PRICES FOR DOMESTIC GROWN OR PRODUCED ITEMS. B-110974, SUPRA. DSA HAS DECLINED TO MAKE ANY SUCH DETERMINATION IN THIS CASE, AND WE SEE NO BASIS ON WHICH WE MAY PROPERLY QUESTION ITS DECISION.

IN THE CIRCUMSTANCES, NEITHER EXCEPTION IN THE APPROPRIATION ACT RESTRICTION BEING APPLICABLE, DCSC IS PRECLUDED FROM PURCHASING THE ITEM OF JAPANESE MANUFACTURE WHICH YOU OFFER. THEREFORE, WE CONCUR WITH THE CONTRACTING OFFICER'S DETERMINATION THAT YOUR BID MAY NOT BE CONSIDERED FOR AWARD. WITH RESPECT TO FUTURE PROCUREMENTS, YOU ARE ADVISED THAT NO DIFFERENT CONCLUSION WOULD APPEAR TO BE WARRANTED IN SIMILAR CIRCUMSTANCES IF THE APPROPRIATION ACTS INVOLVED INCLUDE THE SAME OR SUBSTANTIALLY SIMILAR RESTRICTIVE LANGUAGE.

IN THE LIGHT OF THESE CONCLUSIONS, DISCUSSION OF OTHER QUESTIONS SUGGESTED BY YOU WHICH RELATE TO THE APPLICABILITY OF THE BUY AMERICAN ACT, AS DISTINCT FROM THE APPROPRIATION RIDER, IS NOT REQUIRED.

FOR THE REASONS STATED, WE ARE UNABLE TO CONCLUDE THAT THE ACTIONS WHICH HAVE BEEN TAKEN BY DCSC AND DSA HAVE BEEN OTHER THAN IN ACCORD WITH THE GOVERNING STATUTES AND REGULATIONS. ACCORDINGLY, YOUR PROTEST IS DENIED.