Request To Invalidate Award

A firm protested the award of a contract under an Air Force request for proposals (RFP). The protester believed the award was improper because: (1) the Air Force failed in its duty to advise the protester of the existence of a Memorandum of Understanding (MOU) between the United States and the United Kingdom (UK); and (2) the RFP did not contain a Notice of Potential Foreign Source Competition as required by Defense Acquisition Regulations. The procurement was restricted to three sources which the Air Force had previously approved. The protester knew that its two potential competitors had previously furnished goods manufactured outside the United States. It also knew that its status as a firm located in a surplus labor market area and the imposition of the Buy American Act would increase the evaluated prices of its competitors by 12 percent. The protester increased its price over and above that which it would have charged if there had been notice of possible foreign competition. The MOU was the basis for a determination by the Secretary of Defense that the Buy American Act was inapplicable to defense items manufactured in the United Kingdom. The protester contended that the MOU stated that each government is responsible to advise its defense industries of the basic understanding of the MOU and to provide guidance on its implementation. GAO interpreted this to mean that the Government was not required to specifically advise any particular offeror in any given procurement. Although the RFP was deficient in failing to include the Notice of Potential Foreign Source Competition, GAO has held that a military department's failure to notify all potential competitors that they may be in direct competition with UK firms which are eligible for the waiver, does not invalidate a procurement. Accordingly, the protest was denied.