Protest challenging the validity of awardee’s Buy American certification is denied. The protester alleged the awardee had certified that it was supplying domestic products, but its products were not American-made. GAO reasoned that absent information indicating a product is not domestic, a contracting officer may properly rely on an offeror’s self-certification without further investigation. Here, the awardee affirmed it would use a domestic product and identified a domestic manufacturer. The agency reasonably relied on the certification.
Background
The Defense Logistics Agency issued an RFQ for shipping containers. The RFQ included DFARS 252.225-7000, which requires vendors to certify whether their products are manufactured in the United States. If their products are not manufactured in the US, then the DFARS instructs the agency to increase the vendor’s price by 50 percent.
After reviewing two quotations, DLA awarded the contract to W&K Containers, Inc. The other vendor, Sea Box, Inc., protested alleging that while W&K had certified that its containers were domestic products, they were not in fact American made, so DLA should applied the 50 percent evaluation factor.
Legal Analysis
- Agency Was Entitled to Rely on Buy American Certification — Absent information that indicating a product might not be a domestic, a contracting officer may properly rely on an offeror’s self-certification without further investigation. Here, W&K affirmed it would use a domestic product and provided the CAGE number of a domestic manufacturer. DLA reasonably relied on that certification.
- DLA Didn’t Know that W&K’s Containers Were Not Domestic Products — Sea Box alleged that DLA should have known that W&K’s were not domestic products because the agency had been involved in a previous protest with W&K, which also involved allegations of non-domestic containers. But GAO found that the prior protest involved a different type of container. Also, the prior protest had been withdrawn, so GAO never formally determined that the containers in that case were foreign products. This protest did not put DLA on notice that W&K had not proposed domestic containers.
Sea Box is represented by Ruth E. Ganister of Rosenthal and Ganisters, LLC. The intervenor, W&K, is represented by Dennis Callahan of Rogers Joseph O’Donnell, PC. The agency is represented by John P. Patkus and Samantha L. Meyer of the Defense Logistics Agency. GAO attorneys Emily R. O’Hara and Peter H. Tran participated in the preparation of the decision.
