B-225141, DEC 23, 1986, OFFICE OF GENERAL COUNSEL

B-225141, DEC 23, 1986, OFFICE OF GENERAL COUNSEL

PRECIS-UNAVAILABLE

THE HONORABLE PAUL SIMON, UNITED STATES SENATE:

THIS IS IN REPLY TO YOUR LETTER OF OCTOBER 22, 1986, REQUESTING THAT WE EVALUATE A COMPLAINT BY ONE OF YOUR CONSTITUENTS, GEORGE H. CHRISTOPHERSON, PRESIDENT OF ROLSHEAR, INC., THAT THE PROPOSAL IT SUBMITTED UNDER DEPARTMENT OF THE NAVY REQUEST FOR PROPOSALS (RFP) NO. N00600-85-R2523 WAS IMPROPERLY FOUND TECHNICALLY UNACCEPTABLE AND THAT COMEQ, INC., THE FIRM AWARDED THE CONTRACT UNDER THAT SOLICITATION, INTENDS TO SUPPLY A FOREIGN PRODUCT.

TO THE EXTENT YOU ARE REQUESTING THAT WE CONSIDER ROLSHEAR'S COMPLAINT AS A BID PROTEST, WE POINT OUT THAT THE MATTER WAS NOT TIMELY FILED. MR. CHRISTOPHERSON, WAS AWARE, BASED ON AN AUGUST 15, 1986, LETTER FROM THE NAVY, THAT HIS PROPOSAL WAS CONSIDERED TECHNICALLY UNACCEPTABLE, THAT THE AWARD HAD BEEN MADE TO COMEQ, AND THAT COMEQ INTENDED TO SUPPLY A FOREIGN PRODUCT. OUR BID PROTEST REGULATIONS, 4 C.F.R. SEC. 21.2(B)(2) (1986), REQUIRE THAT A PROTEST BE FILED IN OUR OFFICE WITHIN 10 WORKING DAYS AFTER THE BASIS FOR PROTEST IS KNOWN IF IT IS TO BE CONSIDERED ON THE MERITS. THE REASONS FOR THIS REQUIREMENT ARE TO INSURE THAT PROTESTS DO NOT UNDULY DISRUPT THE GOVERNMENT'S PROCUREMENT PROCESS AND TO PERMIT OUR OFFICE TO DECIDE AN ISSUE WHILE IT IS STILL PRACTICABLE TO TAKE EFFECTIVE ACTION WHERE THE CIRCUMSTANCES WARRANT. OUR RECORDS, HOWEVER, SHOW NO PROTEST FILED BY ROLSHEAR WITHIN THE REQUIRED TIME FRAME, SO THAT IT WAS NOT UNTIL OUR RECEIPT OF YOUR LETTER ON NOVEMBER 5, MORE THAN 2 MONTHS AFTER THE BASIS FOR PROTEST WAS KNOWN TO YOUR CONSTITUENT, THAT MR. CHRISTOPHERSON'S CONCERNS WERE BROUGHT TO OUR ATTENTION.

FOR YOUR INFORMATION, HOWEVER, THE BUY AMERICAN ACT, 41 U.S.C. SEC. 10A-D (1982), DOES NOT PRECLUDE A CONTRACT AWARD TO A FIRM THAT INTENDS TO SUPPLY A FOREIGN PRODUCT. RATHER, THE ACT AND ITS IMPLEMENTING REGULATIONS, FEDERAL ACQUISITION REGULATION, 48 C.F.R. PART 25 (1985), SEEK TO EQUALIZE THE COMPETITIVE ADVANTAGE THAT A FOREIGN FIRM MIGHT HAVE BY PROVIDING A PREFERENCE FOR DOMESTIC ITEMS THROUGH THE USE OF AN EVALUATION DIFFERENTIAL ADDED TO THE PRICE OF THE FOREIGN BID. AS THE NAVY POINTS OUT, EVEN IF ROLSHEAR'S PROPOSAL IS CONSIDERED TECHNICALLY ACCEPTABLE, AND THE BUY AMERICAN ACT DIFFERENTIAL IS ASSESSED AGAINST COMEQ'S BID PRICE, COMEQ'S BID IS STILL LOW. UNDER THESE CIRCUMSTANCES ROLSHEAR WOULD NOT BE ENTITLED TO THE AWARD.