B-188271, MARCH 1, 1977
Highlights
GAO WILL NOT REVIEW PROTEST CHALLENGING OFFEROR'S INTENDED COMPLIANCE WITH REPRESENTATION IN ITS BUY AMERICAN CERTIFICATION THAT DOMESTIC SOURCE END PRODUCT WILL BE SUPPLIED. THORSEN QUESTIONS WHETHER R & O WILL COMPLY WITH ITS BUY AMERICAN CERTIFICATE (SF 33. ALTHOUGH THE PROTESTER CONTENDS THAT SUCH REVIEWS HAVE BEEN UNDERTAKEN BY THIS OFFICE. PARAGRAPH 7 WAS MEANT TO PERMIT SELF-CERTIFICATION OF AN OFFEROR'S INTENTION TO SUPPLY DOMESTIC OR FOREIGN SOURCE END PRODUCTS. WE HAVE RECOGNIZED THAT WHERE AN OFFEROR EXCLUDES NO END PRODUCTS FROM ITS BUY AMERICAN CERTIFICATE AND DOES NOT OTHERWISE INDICATE IT IS OFFERING ANYTHING OTHER THAN DOMESTIC END PRODUCTS. COMPLIANCE WITH THAT OBLIGATION IS A MATTER OF CONTRACT ADMINISTRATION WHICH HAS NO EFFECT ON THE VALIDITY OF THE CONTRACT AWARD. 50 COMP.GEN. 697 (1971).
B-188271, MARCH 1, 1977
GAO WILL NOT REVIEW PROTEST CHALLENGING OFFEROR'S INTENDED COMPLIANCE WITH REPRESENTATION IN ITS BUY AMERICAN CERTIFICATION THAT DOMESTIC SOURCE END PRODUCT WILL BE SUPPLIED.
THORSEN TOOL COMPANY:
THROUGH COUNSEL, THE THORSEN TOOL CO. (THORSEN) PROTESTS AWARD TO R & O INDUSTRIES, INC. (R & O) UNDER GENERAL SERVICES ADMINISTRATION (GSA) SOLICITATION FTAN-G3-95126-A-1-4-77, FOR A REQUIREMENTS CONTRACT FOR WRENCHES OF VARIOUS DESCRIPTIONS.
SPECIFICALLY, THORSEN QUESTIONS WHETHER R & O WILL COMPLY WITH ITS BUY AMERICAN CERTIFICATE (SF 33, PARA. 7) INSOFAR AS IT OFFERED TO SUPPLY CERTAIN DOMESTIC END ITEMS. THORSEN REQUESTS THAT WE CONDUCT AN INDEPENDENT INVESTIGATION AND REVIEW REGARDING R & O'S PROPOSED METHOD OF COMPLIANCE WITH THE OBLIGATION ASSUMED BY ITS BUY AMERICAN CERTIFICATION UNDER PARAGRAPH 7 OF STANDARD FORM 33. ALTHOUGH THE PROTESTER CONTENDS THAT SUCH REVIEWS HAVE BEEN UNDERTAKEN BY THIS OFFICE, CITING 35 COMP.GEN. 7 (1955), PARAGRAPH 7 WAS MEANT TO PERMIT SELF-CERTIFICATION OF AN OFFEROR'S INTENTION TO SUPPLY DOMESTIC OR FOREIGN SOURCE END PRODUCTS.
WE HAVE RECOGNIZED THAT WHERE AN OFFEROR EXCLUDES NO END PRODUCTS FROM ITS BUY AMERICAN CERTIFICATE AND DOES NOT OTHERWISE INDICATE IT IS OFFERING ANYTHING OTHER THAN DOMESTIC END PRODUCTS, ACCEPTANCE OF ITS OFFER, IF OTHERWISE RESPONSIVE, RESULTS IN AN OBLIGATION ON ITS PART TO FURNISH DOMESTIC END PRODUCTS, AND COMPLIANCE WITH THAT OBLIGATION IS A MATTER OF CONTRACT ADMINISTRATION WHICH HAS NO EFFECT ON THE VALIDITY OF THE CONTRACT AWARD. 50 COMP.GEN. 697 (1971); UNICARE VEHICLE WASH, INC., B-181852, DECEMBER 3, 1974, 74-CPD 304; CAMERON MANUFACTURING CO., B-184767, MAY 17, 1976, 76-1 CPD 328; BECKER INSTRUMENTS & PHOTOGRAPHIC OPTICS, B-185411, JULY 14, 1976, 76-2 CPD 43.
WE THEREFORE CONCLUDE THAT PROTESTS SEEKING AN INVESTIGATION OF AN OFFEROR'S INTENDED METHOD OF COMPLYING WITH ITS CERTIFICATION SHOULD NOT BE CONSIDERED BY THIS OFFICE, UNLESS EITHER THE AGENCY REQUESTS OUR DECISION OR PROVISIONS ARE INCLUDED IN THE SOLICITATION OR BID APART FROM THE STANDARD BUY AMERICAN CERTIFICATE WHICH REVEAL AN INTENTION TO FURNISH AN ITEM WHICH DOES NOT CONFORM WITH THE REPRESENTATION MADE IN THE OFFEROR'S BUY AMERICAN CERTIFICATE.
IN THIS REGARD, WE NOTE THAT THE DECISION IN 35 COMP.GEN. 7, SUPRA, CITED BY THORSEN, PRIMARILY RESPONDED TO A REQUEST FOR AN ADVANCE DECISION, INITIATED BY THE CONTRACTING AGENCY.
ACCORDINGLY, THORSEN'S PROTEST IS DISMISSED.