B-174850, APR 6, 1972

B-174850: Apr 6, 1972

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HE IS LEGALLY OBLIGATED TO FURNISH THE GOVERNMENT A DOMESTIC SOURCE END PRODUCT. THIS OBLIGATION IS A MATTER OF CONTRACT ADMINISTRATION. THE PROTEST IS DENIED. TO GOODYEAR AEROSPACE CORPORATION: REFERENCE IS MADE TO YOUR TELEFAX OF DECEMBER 29. ISSUED AT THE ESSENCE OF YOUR PROTEST IS THAT AMERICAN'S SUBCONTRACTING ARRANGEMENTS WITH REDIFON FLIGHT SIMULATION. WILL RESULT IN A SUBSTANTIAL PROPORTION OF THE COMPONENTS OF THE END ITEMS BEING OF FOREIGN MAKE SO THAT AMERICAN'S OFFER SHOULD HAVE BEEN EVALUATED AS A FOREIGN OFFER UNDER THE BUY AMERICAN ACT. AMERICAN WOULD NOT HAVE BEEN THE LOW OFFEROR ON THE INSTANT PROCUREMENT. THE RECORD SHOWS THAT A PRIOR SOLICITATION FOR THE VISUAL DISPLAY SYSTEM WAS ISSUED TO 55 FIRMS IN FEBRUARY 1971.

B-174850, APR 6, 1972

BID PROTEST - BUY AMERICAN ACT - BIDDER COMPLIANCE DECISION DENYING THE PROTEST OF GOODYEAR AEROSPACE CORPORATION AGAINST AWARD OF A CONTRACT TO AMERICAN AIRLINES, INC., UNDER AN RFP ISSUED AT WRIGHT-PATTERSON AFB, OHIO. WHEN A SUCCESSFUL BIDDER HAS CERTIFIED COMPLIANCE WITH THE BUY AMERICAN CLAUSE IN A SOLICITATION, HE IS LEGALLY OBLIGATED TO FURNISH THE GOVERNMENT A DOMESTIC SOURCE END PRODUCT. THIS OBLIGATION IS A MATTER OF CONTRACT ADMINISTRATION, WHICH HAS NO EFFECT ON THE VALIDITY OF THE AWARD. 50 COMP. GEN. 697 (1971). ACCORDINGLY, THE PROTEST IS DENIED.

TO GOODYEAR AEROSPACE CORPORATION:

REFERENCE IS MADE TO YOUR TELEFAX OF DECEMBER 29, 1971, AND YOUR LETTERS OF JANUARY 7 AND MARCH 8, 1972, PROTESTING THE AWARD OF A CONTRACT TO AMERICAN AIRLINES, INC. (AMERICAN), UNDER RFP F33615-72-R 0540, ISSUED AT

THE ESSENCE OF YOUR PROTEST IS THAT AMERICAN'S SUBCONTRACTING ARRANGEMENTS WITH REDIFON FLIGHT SIMULATION, LTD., A BRITISH FIRM, WILL RESULT IN A SUBSTANTIAL PROPORTION OF THE COMPONENTS OF THE END ITEMS BEING OF FOREIGN MAKE SO THAT AMERICAN'S OFFER SHOULD HAVE BEEN EVALUATED AS A FOREIGN OFFER UNDER THE BUY AMERICAN ACT, 41 U.S.C. 10A D, AND IMPLEMENTING REGULATIONS. IF THE PRICE DIFFERENTIAL PROVIDED BY ARMED SERVICES PROCUREMENT REGULATION (ASPR) 6-104.4 HAD BEEN ADDED TO AMERICAN'S OFFER FOR THE PURPOSE OF EVALUATION, AMERICAN WOULD NOT HAVE BEEN THE LOW OFFEROR ON THE INSTANT PROCUREMENT.

THE RECORD SHOWS THAT A PRIOR SOLICITATION FOR THE VISUAL DISPLAY SYSTEM WAS ISSUED TO 55 FIRMS IN FEBRUARY 1971. EVALUATION OF THE SIX OFFERS RECEIVED REVEALED THAT INADEQUACIES AND AMBIGUITIES IN THE SPECIFICATIONS MADE IT QUESTIONABLE WHETHER ALL OFFERORS WERE OFFERING THE SAME ITEM. THEREFORE, THE SOLICITATION WAS CANCELED AND THE INSTANT RFP WAS ISSUED TO THE 6 PRIOR OFFERORS AND 11 OTHER CONTRACTORS. THE FOLLOWING INITIAL PROPOSALS WERE RECEIVED BY THE DUE DATE OF OCTOBER 21, 1971:

REDIFON FLIGHT SIMULATION, LTD. $ 876,032

AMERICAN AIRLINES INC. 1,030,741

GOODYEAR AEROSPACE CORP. 1,350,297

SINGER CO., LINK DIV. 1,691,928

AUSTIN ELECTRONICS 1,721,742

MARTIN MARIETTA CORP. 2,243,640

THE REQUIRING ACTIVITY CONDUCTED A TECHNICAL EVALUATION OF THE PROPOSALS AND ADVISED THE PROCURING ACTIVITY THAT THE INITIAL PROPOSALS OF REDIFON, AMERICAN AND MARTIN MARIETTA WERE ACCEPTABLE. NEGOTIATIONS WERE HELD WITH ALL 6 OFFERORS, AT THE CONCLUSION OF WHICH ALL WERE DEEMED TECHNICALLY ACCEPTABLE. BEST AND FINAL OFFERS WERE SUBMITTED BY NOVEMBER 24, 1971, AS FOLLOWS:

REDIFON FLIGHT SIMULATION LTD. $ 876,032

AMERICAN AIRLINES, INC. 999,999

GOODYEAR AEROSPACE 1,350,297

SINGER CO., LINK DIV. 1,568,200

AUSTIN ELECTRONICS 1,575,000

MARTIN MARIETTA 1,861,629

THE SOLICITATION WAS ISSUED ON STANDARD FORM 33 (JULY 1966 ED.), ON PAGE 2 OF WHICH IS THE BUY AMERICAN CERTIFICATE WHEREIN OFFERORS WERE TO CERTIFY THAT EACH END PRODUCT (EXCEPT THOSE LISTED AS "EXCLUDED END PRODUCTS") WAS A DOMESTIC SOURCE END PRODUCT AS DEFINED IN THE CLAUSE ENTITLED "BUY AMERICAN ACT" (ASPR 6-104.5). REDIFON REPRESENTED THAT IT WAS OFFERING A FOREIGN END PRODUCT AND ITS PROPOSAL WAS EVALUATED AS FOLLOWS IN ACCORDANCE WITH ASPR 6-104.4:

FOREIGN BID LESS DUTY OF $33,728 $ 842,304

50 PERCENT EVALUATION FACTOR 421,152

TOTAL EVALUATED BID PRICE $1,263,456

IN THE PROPOSAL SUBMITTED BY AMERICAN, IT HAD MADE THE ENTRY "NONE" IN THE BLOCK ENTITLED "EXCLUDED END PRODUCTS" BENEATH THE BUY AMERICAN CERTIFICATE, THUS INDICATING THAT NO END PRODUCT WAS EXCLUDED FROM AMERICAN'S CERTIFICATION AND THAT EACH END PRODUCT TO BE DELIVERED THEREFORE WOULD BE A DOMESTIC SOURCE END PRODUCT AS DEFINED IN THE BUY AMERICAN ACT CLAUSE. ADDITIONALLY, AMERICAN'S PROPOSAL EXPRESSLY REPRESENTED THAT PERFORMANCE OF THE CONTRACT WOULD BE IN ACCORDANCE WITH THE BUY AMERICAN ACT. THE CONTRACTING OFFICER ALSO CONSULTED THE PROJECT ENGINEER, WHO ADVISED THAT HE HAD NO DOUBT THAT IT WAS TECHNICALLY FEASIBLE FOR AMERICAN TO COMPLY WITH THE BUY AMERICAN ACT. AMERICAN'S PROPOSAL WAS THEREFORE EVALUATED AS A DOMESTIC OFFER AND, AS SUCH, WAS LOW.

WE HAVE BEEN ADVISED BY THE DEPARTMENT OF THE AIR FORCE THAT IT WILL CAREFULLY MONITOR AMERICAN'S PERFORMANCE UNDER THE CONTRACT TO ASSURE COMPLIANCE WITH THE BUY AMERICAN ACT. THIS STATEMENT, YOU ASSERT IN YOUR LETTER OF MARCH 8, 1972:

" *** WOULD SEEM TO INDICATE THAT THE WHOLE PURPOSE AND INTENT OF EVALUATING BIDS UNDER THE BUY AMERICAN ACT PRIOR TO CONTRACT AWARD IS SPURIOUS. ASPR GOES TO GREAT LENGTHS TO SET OUT THE GUIDELINES AND PROCEDURES FOR EVALUATING BIDS AS TO WHETHER OR NOT THEY COMPLY WITH THE BUY AMERICAN ACT."

THE PROCEDURES SET FORTH IN ASPR 6-104.4 PROVIDE FOR THE ADJUSTMENT, FOR PURPOSES OF EVALUATION OF "FOREIGN BIDS," WHICH ARE DEFINED AS BIDS OR OFFERED PRICES FOR FOREIGN END PRODUCTS WHICH ARE NOT CANADIAN END PRODUCTS. SINCE AMERICAN EXCLUDED NO END PRODUCT FROM ITS BUY AMERICAN ACT CERTIFICATION, ITS OFFER WAS "DOMESTIC," NOT "FOREIGN," AND THE EVALUATION PROCEDURES OF ASPR 6-104.4 WERE INAPPLICABLE TO IT.

IN REGARD TO THE ACCEPTANCE OF AMERICAN'S CERTIFICATION BY THE PROCURING ACTIVITY, WE HAVE HELD THAT WHERE AN OFFER IS ACCEPTED FROM AN OFFEROR WHO EXCLUDES NO PRODUCTS FROM THE BUY AMERICAN CERTIFICATE OR OTHERWISE INDICATES THAT HE IS NOT OFFERING A DOMESTIC SOURCE END ITEM, THE OFFEROR IS LEGALLY OBLIGATED UNDER ITS CONTRACT TO FURNISH THE GOVERNMENT A DOMESTIC SOURCE END PRODUCT, AND COMPLIANCE WITH THAT OBLIGATION IS A MATTER OF CONTRACT ADMINISTRATION WHICH HAS NO EFFECT ON THE VALIDITY OF THE CONTRACT AWARD. SEE 50 COMP. GEN. 697 (1971); B 174281, DECEMBER 17, 1971.

ACCORDINGLY, WE FIND NO OBJECTION TO THE AWARD TO AMERICAN, AND YOUR PROTEST IS THEREFORE DENIED.