B-172386, AUG 30, 1971

B-172386: Aug 30, 1971

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PROTESTANT CONTENDS THAT THE AWARD WILL VIOLATE THE PROVISIONS OF THE IFB RELATING TO BUY AMERICAN ACT RESTRICTIONS AND THE LENGTH OF SERVICE QUALIFICATIONS. IT IS APPARENT THAT EACH PANEL WILL BE A "DOMESTIC SOURCE END PRODUCT" AS DEFINED IN THE BUY AMERICAN ACT CLAUSE. THAT THE GAS ANALYSIS EQUIPMENT IS MERELY A COMPONENT THEREOF. THAT THE EVIDENCE INDICATES THAT THE ANALYZERS TO BE FURNISHED UNDER PARAGRAPH 4.20.4 OF THE TECHNICAL PROVISIONS WILL COMPLY WITH THE QUALIFICATIONS. THE CONTRACT WAS AWARDED TO FAIRCHILD HILLER UNDER INVITATION FOR BIDS (IFB) DACA87-70-B-0013. THE ITEMS WHICH THE PRIME CONTRACTOR WAS REQUIRED TO FURNISH AND INSTALL INCLUDED VARIOUS INSTRUMENTS. THE EQUIPMENT WITH WHICH YOUR PROTEST IS CONCERNED INCLUDES FOUR DIFFERENT TYPES OF ANALYZER TRANSMITTERS DESCRIBED IN PARAGRAPHS 4.20.1 THROUGH 4.20.4 OF THE IFB TECHNICAL PROVISIONS.

B-172386, AUG 30, 1971

BID PROTEST - BUY AMERICAN ACT - LENGTH OF SERVICE QUALIFICATIONS DENIAL OF PROTEST BY THE MINE SAFETY APPLIANCES COMPANY AGAINST THE AWARD BY FAIRCHILD HILLER CORPORATION OF A SUBCONTRACT TO THE BENDIX CORPORATION FOR THE FURNISHING OF GAS ANALYSIS EQUIPMENT FOR MONITORING AND CONTROL SYSTEMS TO BE INSTALLED IN THE SAFEGUARD BALLISTIC MISSILE DEFENSE SYSTEM. PROTESTANT CONTENDS THAT THE AWARD WILL VIOLATE THE PROVISIONS OF THE IFB RELATING TO BUY AMERICAN ACT RESTRICTIONS AND THE LENGTH OF SERVICE QUALIFICATIONS. PRICE BREAKDOWNS GIVEN FOR THE PANELS SHOW THAT DOMESTIC COMPONENTS ACCOUNT FOR NO LESS THAN 75 PERCENT, AND AS MUCH AS 84 PERCENT, OF THE TOTAL COST OF ALL COMPONENTS OF THE PANELS. IT IS APPARENT THAT EACH PANEL WILL BE A "DOMESTIC SOURCE END PRODUCT" AS DEFINED IN THE BUY AMERICAN ACT CLAUSE, AND THAT THE GAS ANALYSIS EQUIPMENT IS MERELY A COMPONENT THEREOF. IN ADDITION, THE CONTRACTING OFFICER HAS STATED THAT FAIRCHILD HILLER HAS COMPLIED WITH THE EVIDENTIARY REQUIREMENTS OF THE CONTRACT RELATING TO THE LENGTH OF SERVICE QUALIFICATION, AND THAT THE EVIDENCE INDICATES THAT THE ANALYZERS TO BE FURNISHED UNDER PARAGRAPH 4.20.4 OF THE TECHNICAL PROVISIONS WILL COMPLY WITH THE QUALIFICATIONS.

TO MINE SAFETY APPLIANCES COMPANY:

WE REFER TO YOUR LETTER OF MARCH 26, 1971, PROTESTING AGAINST AWARD BY FAIRCHILD HILLER CORPORATION (FAIRCHILD HILLER) OF A SUBCONTRACT TO THE BENDIX CORPORATION (BENDIX) FOR THE FURNISHING OF GAS ANALYSIS EQUIPMENT FOR THE MONITORING AND CONTROL SYSTEMS TO BE FURNISHED AND INSTALLED BY FAIRCHILD HILLER UNDER CONTRACT DACA87-71-C-0033 IN THE SAFEGUARD BALLISTIC MISSILE DEFENSE SYSTEM. THE CONTRACT WAS AWARDED TO FAIRCHILD HILLER UNDER INVITATION FOR BIDS (IFB) DACA87-70-B-0013, ISSUED NOVEMBER 6, 1970, BY THE UNITED STATES ARMY ENGINEER DIVISION, HUNTSVILLE, ALABAMA.

THE ITEMS WHICH THE PRIME CONTRACTOR WAS REQUIRED TO FURNISH AND INSTALL INCLUDED VARIOUS INSTRUMENTS, CONTROLS AND PANELS. THE EQUIPMENT WITH WHICH YOUR PROTEST IS CONCERNED INCLUDES FOUR DIFFERENT TYPES OF ANALYZER TRANSMITTERS DESCRIBED IN PARAGRAPHS 4.20.1 THROUGH 4.20.4 OF THE IFB TECHNICAL PROVISIONS, AND A SAMPLING SYSTEM SPECIFIED IN PARAGRAPH 4.20.5 OF SUCH PROVISIONS, USED IN THE MANUFACTURE OF THE LOCAL CONTROL PANELS. SUCH PANELS CONSIST BASICALLY OF A SHOP ASSEMBLY OF STANDARD, WIDELY AVAILABLE PARTS, SUCH AS FANS, GAUGES, VALVES, TUBING, ETC. THE TECHNICAL PROVISIONS ALSO INCLUDE A REQUIREMENT IN PARAGRAPH 3.1 THAT THE BASIC EQUIPMENT HAVE A HISTORY OF SATISFACTORY PERFORMANCE FOR A CONTINUOUS PERIOD OF AT LEAST TWO YEARS PRIOR TO BID OPENING.

GENERAL PROVISIONS IN THE CONTRACT INCLUDE THE FOLLOWING PERTINENT CLAUSE:

"14. BUY AMERICAN ACT (1964 MAY)

(IF THE PROCUREMENT INSTRUMENT IDENTIFICATION NUMBER IS PREFIXED BY THE LETTERS 'DACA', THE WORDS 'OR CANADA' ARE INSERTED IN THE FOLLOWING CLAUSE IN PARAGRAPH (A)(III)(B) BETWEEN THE WORDS 'IN THE UNITED STATES' AND THE WORDS 'EXCEEDS 50 PERCENT'.)

(A) IN ACQUIRING END PRODUCTS, THE BUY AMERICAN ACT (41 U.S.C. 10A 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 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.) (ASPR 7-104.3)"

UNDER THE CONTRACT FAIRCHILD HILLER WILL USE THE GAS ANALYSIS AND OTHER EQUIPMENT IN THE MANUFACTURE OF PANELS AND WILL INSTALL THE PANELS IN THE MONITORING AND CONTROL SYSTEMS IN THE SAFEGUARD FACILITIES, WHICH ARE BEING CONSTRUCTED BY OTHER CONTRACTORS. THAT PORTION OF THE WORK WHICH INVOLVES INSTALLING AND TERMINATING SIGNAL CABLES IS COVERED BY DAVIS- BACON ACT (40 U.S.C. 276A) PROVISIONS IN THE CONTRACT, AND THE RELATED MINIMUM WAGE DETERMINATION ISSUED BY THE DEPARTMENT OF LABOR COVERS ONLY ELECTRICIANS AND CABLE SPLICERS.

YOU STATE THAT IT HAS BEEN THE PRACTICE OF BENDIX TO PROVIDE BRITISH MADE OXYGEN ANALYZERS FOR THE ITEM SPECIFIED IN PARAGRAPH 4.20.1 OF THE TECHNICAL PROVISIONS AND GERMAN-MADE INFRARED ANALYZERS FOR THE ITEM SPECIFIED IN PARAGRAPH 4.20.3. YOU FURTHER STATE THAT IT IS YOUR BELIEF THAT THE COMBUSTIBLE GAS ANALYZER SPECIFIED IN PARAGRAPH 4.20.4 WILL BE PRODUCED BY A SECOND-TIER SUBCONTRACTOR WHOSE EQUIPMENT DOES NOT MEET THE SERVICE REQUIREMENT OF PARAGRAPH 3.1 OF THE TECHNICAL PROVISIONS.

REFERENCE TO THE CONTRACT SHOWS THAT THERE IS NO PROVISION THEREIN ACCORDING THE GOVERNMENT CONTROL OVER THE PRIME CONTRACTOR'S SOURCES OF SUPPLY; HOWEVER, THE CONTRACTOR IS REQUIRED TO SUBMIT TO THE CONTRACTING OFFICER FOR APPROVAL SHOP DRAWINGS OF THE ITEMS TO BE FURNISHED, AND THE ITEMS MUST COMPLY WITH THE APPROVED SHOP DRAWINGS. PARAGRAPH 3.1 OF THE TECHNICAL PROVISIONS PROVIDES THAT PROOF OF THE TWO-YEAR CONTINUOUS SATISFACTORY SERVICE MUST ALSO BE SUBMITTED UNDER THE SHOP DRAWING REQUIREMENTS.

THE CONTRACTING OFFICER REPORTS THAT APPROVAL OF THE SHOP DRAWINGS FOR THE FOUR TYPES OF ANALYZER TRANSMITTERS REQUIRED BY PARAGRAPHS 4.20.1 THROUGH 4.20.4 OF THE TECHNICAL PROVISIONS WAS NOT ISSUED UNTIL FAIRCHILD HILLER SUBMITTED TO THE GOVERNMENT EVIDENCE RELATING TO THE BUY AMERICAN ACT PROVISIONS AND THE PROOF OF SERVICE REQUIRED BY PARAGRAPH 3.1. THE SHOP DRAWINGS FOR THE SAMPLING SYSTEM COVERED BY PARAGRAPH 4.20.5, HOWEVER, WERE APPROVED AS ORIGINALLY SUBMITTED AS BEING IN CONFORMITY WITH THE SPECIFICATION AND EVIDENCING COMPLIANCE WITH THE BUY AMERICAN ACT PROVISIONS.

WITH FURTHER REFERENCE TO THE BUY AMERICAN ACT ISSUE, THE CONTRACTING OFFICER STATES THAT THE ANALYZER TRANSMITTERS AND THE SAMPLING SYSTEM ARE BUT COMPONENTS OF A LOCAL CONTROL PANEL WHICH INCORPORATES VARIOUS PARTS IN ITS MANUFACTURE. PRICE BREAKDOWNS GIVEN FOR THE PANELS SHOW THAT DOMESTIC COMPONENTS ACCOUNT FOR NO LESS THAN 75 PERCENT, AND AS MUCH AS 84 PERCENT, OF THE TOTAL COST OF ALL COMPONENTS, FOREIGN AND DOMESTIC, OF THE PANELS, ALL OF WHICH ARE MANUFACTURED IN THE UNITED STATES. IT IS APPARENT, THEREFORE, THAT EACH PANEL WILL BE A "DOMESTIC SOURCE END PRODUCT" AS DEFINED IN THE BUY AMERICAN ACT CLAUSE OF THE CONTRACT AND THE GAS ANALYSIS EQUIPMENT BUT COMPONENTS THEREOF.

IN ADDITION, THE CONTRACTING OFFICER HAS STATED THAT FAIRCHILD HILLER HAS COMPLIED WITH THE EVIDENTIARY REQUIREMENTS OF THE CONTRACT RELATING TO THE LENGTH OF SERVICE QUALIFICATION OF THE GAS ANALYSIS EQUIPMENT AND THAT THE EVIDENCE INDICATES THAT THE COMBUSTIBLE GAS ANALYZERS TO BE FURNISHED UNDER PARAGRAPH 4.20.4 OF THE TECHNICAL PROVISIONS OF THE CONTRACT WILL COMPLY WITH THE QUALIFICATION.

IN VIEW OF THE FOREGOING, WE CANNOT CONCLUDE THAT THE RECORD SUPPORTS YOUR BELIEF OF POSSIBLE VIOLATIONS OF THE BUY AMERICAN ACT OR SERVICE QUALIFICATION REQUIREMENTS OF THE CONTRACT. ACCORDINGLY, YOUR PROTEST MUST BE DENIED.