B-210968, JUN 10, 1983

B-210968: Jun 10, 1983

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CONTRACTOR'S COMPLIANCE WITH BUY AMERICAN PROVISIONS OF CONTRACT WHICH IS NOT FOR RESOLUTION UNDER BID PROTEST PROCEDURES. 3. PROTEST THAT BIDDER WILL NOT PERFORM IN LABOR SURPLUS AREA CONCERNS MATTER OF RESPONSIBILITY WHICH GAO WILL NOT REVIEW. MUTUAL CONTENDS THAT THE AWARDS OF CONTRACTS TO HESGON WERE IMPROPER BECAUSE HESGON CANNOT COMPLY WITH ITS BUY AMERICAN CERTIFICATIONS. MUTUAL SUBMITS THAT HESGON WILL BE MANUFACTURING THE ITEMS TO BE FURNISHED UNDER EACH IFB IN MATAMORAS. TO THE EXTENT THAT MUTUAL IS CONTENDING THAT THE CONTRACTS SHOULD NOT BE AWARDED TO HESGON BECAUSE OF ITS INABILITY TO COMPLY WITH THE BUY AMERICAN REQUIREMENTS. IT IS CHALLENGING HESGON'S RESPONSIBILITY. WHETHER A CONTRACTOR COMPLIES WITH ITS OBLIGATIONS UNDER THE BUY AMERICAN PROVISIONS OF A CONTRACT IS A MATTER OF CONTRACT ADMINISTRATION AND IS NOT FOR RESOLUTION UNDER THE BID PROTEST PROCEDURES.

B-210968, JUN 10, 1983

DIGEST: 1. PROTEST AGAINST BIDDER'S ABILITY TO COMPLY WITH BUY AMERICAN PROVISIONS CONCERNS MATTER OF RESPONSIBILITY WHICH GAO GENERALLY DOES NOT REVIEW. 2. CONTRACTOR'S COMPLIANCE WITH BUY AMERICAN PROVISIONS OF CONTRACT WHICH IS NOT FOR RESOLUTION UNDER BID PROTEST PROCEDURES. 3. PROTEST THAT BIDDER WILL NOT PERFORM IN LABOR SURPLUS AREA CONCERNS MATTER OF RESPONSIBILITY WHICH GAO WILL NOT REVIEW.

MUTUAL INDUSTRIES INC.:

MUTUAL INDUSTRIES INC. (MUTUAL) PROTESTS THE AWARDS OF CONTRACTS TO THE HESGON COMPANY (HESGON) UNDER INVITATIONS FOR BIDS (IFB) NO. DLA100 83-B- 0166 AND NO. DLA100-83-B-0325 ISSUED BY THE DEFENSE LOGISTICS AGENCY FOR WHITE GLASS TAPE.

MUTUAL CONTENDS THAT THE AWARDS OF CONTRACTS TO HESGON WERE IMPROPER BECAUSE HESGON CANNOT COMPLY WITH ITS BUY AMERICAN CERTIFICATIONS. MUTUAL SUBMITS THAT HESGON WILL BE MANUFACTURING THE ITEMS TO BE FURNISHED UNDER EACH IFB IN MATAMORAS, MEXICO, NOT IN THE UNITED STATES. MUTUAL ALSO OBJECTS TO THE USE OF THE LABOR SURPLUS AREA (LSA) EVALUATION PREFERENCE IN THE EVALUATION OF HESGON'S BID SUBMITTED UNDER IFB -0166.

WE DISMISS THE PROTEST.

TO THE EXTENT THAT MUTUAL IS CONTENDING THAT THE CONTRACTS SHOULD NOT BE AWARDED TO HESGON BECAUSE OF ITS INABILITY TO COMPLY WITH THE BUY AMERICAN REQUIREMENTS, IT IS CHALLENGING HESGON'S RESPONSIBILITY. NICOLET TECHNOLOGY CORP., B-192895, SEPTEMBER 28, 1978, 78-2 CPD 244. OUR OFFICE DOES NOT REVIEW PROTESTS ALLEGING THE NONRESPONSIBILITY OF A COMPETITOR, EXCEPT IN CIRCUMSTANCES NOT PRESENT HERE. NICOLET TECHNOLOGY CORP., SUPRA.

MOREOVER, WHETHER A CONTRACTOR COMPLIES WITH ITS OBLIGATIONS UNDER THE BUY AMERICAN PROVISIONS OF A CONTRACT IS A MATTER OF CONTRACT ADMINISTRATION AND IS NOT FOR RESOLUTION UNDER THE BID PROTEST PROCEDURES, 4 C.F.R. PART 21 (1983). NICOLET TECHNOLOGY CORP., SUPRA. THE PROTEST PROCEDURE IS RESERVED FOR CONSIDERING WHETHER AN AWARD OR PROPOSED AWARD OF A CONTRACT COMPLIES WITH STATUTORY, REGULATORY AND OTHER LEGAL REQUIREMENTS RATHER THAN WITH POSTAWARD PERFORMANCE OR ADMINISTRATIVE MATTERS. BECKER INSTRUMENTS & PHOTOGRAPHIC OPTICS, B-185411, JULY 14, 1976, 76-2 CPD 43.

FINALLY, MUTUAL'S OBJECTION TO HESGON BEING GIVEN AN LSA PREFERENCE WILL ALSO BE DISMISSED BECAUSE THE PROTESTER MERELY ASSERTS THAT HESGON WILL NOT PERFORM IN AN LSA AS REPRESENTED IN ITS BID WHICH IS A MATTER OF RESPONSIBILITY. LOU ANA FOODS, INC., 61 COMP.GEN. 385 (1982), 82-1 CPD 484. AS INDICATED ABOVE, OUR OFFICE GENERALLY WILL NOT REVIEW THIS TYPE OF CHALLENGE.