Protest of Contract Award to Foreign Firm

B-195101,B-195101.2: Apr 8, 1980

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A firm, with its proposed subcontractor, protested the award by the Department of Commerce of a contract to a Dutch firm for the evaluation of the construction and installation processes for commercial Ocean Thermal Energy Conversion plants. The protester alleged that the solicitation's stated evaluation method was inappropriate, that the award of the contract to a foreign firm may have significant impact on U.S. energy policy, that Commerce failed to apply the evaluation factor imposed under the Buy American Act, and that the protester's offer was more advantageous to the Government than the awardee's offer. GAO held that the protest alleging that the solicitation's stated evaluation method was inappropriate was untimely and would not be considered on its merits. Further, with regard to the protest against award of the contract to a foreign firm, the solicitation did not limit the award to domestic firms, so there was no other legal basis to restrict the award in that respect. Moreover, GAO held that its review of the bid process is limited to considering an agency's adherence to procurement policies and procedures as prescribed by existing law and regulation. Thus where no legal basis exists to preclude the contract award to a foreign firm, the question of whether such an award should be made is a matter for consideration by Congress or the Executive Branch, not GAO. Additionally, the factor imposed under the Buy American Act does not apply in procurement of research services. Furthermore, the determination of relative merits of proposals is the responsibility of the procuring agency and GAO will not disturb the determination unless it is shown to be arbitrary or contrary to statutes or regulations. Accordingly, the protest was denied.