Protest of Application of Buy-American Evaluation Factor

A German firm protested a General Services Administration (GSA) application of the Buy American evaluation factor in its solicitation for entrenching tools. The protester argued that a Department of Defense (DOD) Memorandum of Understanding (MOU) waiving buy-national laws in the purchase of defense equipment from the Federal Republic of Germany applied to this procurement; therefore, the Buy American evaluation factor should not have been added to its bid. Further, the protester asserted that the DOD assignment to GSA of the responsibility for purchasing the tool was an attempt to circumvent the MOU. GAO found that no legal authority exists to extend a DOD MOU waiving buy-national laws to GSA purchases of tools that DOD requisitions from GSA, when the MOU conflicts with an express statutory restriction on the use of GSA appropriations. However, although Congress has granted DOD broad discretion to waive the Buy American Act through MOU's, the fact that DOD assigned certain purchasing responsibilities to GSA which effectively exempted GSA-purchased items from the application of a particular MOU was not in itself evidence that DOD abused its discretion. Accordingly, the protest was denied.