BNUMBER:  B-275163; B-275163.2; B-275163.3
DATE:  December 31, 1996
TITLE:  Sabreliner Corporation

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Matter of:Sabreliner Corporation

File:     B-275163; B-275163.2; B-275163.3

Date:December 31, 1996

Kenneth B. Weckstein, Esq., and Janine S. Benton, Esq., Epstein, 
Becker & Green, for the protester.
Lisa V. Gressel, Esq., for General Electric Company, an intervenor.
Clarence D. Long III, Esq., and John E. Lariccia, Esq., Department of 
the Air Force, for the agency.
Paul E. Jordan, Esq., and Paul Lieberman, Esq., Office of the General 
Counsel, GAO, participated in the preparation of the decision.

DIGEST

Solicitation for overhaul of Air Force-owned aircraft engines, for 
which replacement parts are furnished by the government, is properly 
considered by the agency to be contract for services to which Buy 
American Act does not apply.

DECISION

Sabreliner Corporation protests the specifications in request for 
proposals (RFP) No. F41608-96-R-49674, issued by the Department of the 
Air Force for overhaul and repair services on the J85 aircraft engine 
and management items subject to repair associated with the engine.  
Sabreliner argues that the Buy American Act (BAA) (41 U.S.C.  sec.  10a 
(1994)) applies to this requirement and that offers should be 
evaluated giving preference to American-made end products.[1] 

We deny the protest. 

The RFP, issued on August 9, 1996, contemplated the award of a firm, 
fixed-price contract for the conduct of depot level repair and 
overhaul of the J85 engine in accordance with technical order 
procedures.  The awardee will furnish all resources, including test 
and support equipment, special tooling, material, and engineering 
support necessary to conduct the overhauls and repairs.  The 
government is to furnish the J85 engines requiring overhaul or repair 
as well as needed replacement parts.  An amendment to the RFP advised 
prospective offerors that the government considered the acquisition to 
be for services and that the BAA did not apply.  Accordingly, the 
solicitation does not call for the agency to apply a BAA price 
adjustment factor as part of the price evaluation.  The RFP also 
incorporated by reference the clause at Federal Acquisition Regulation 
(FAR)  sec.  52.222-20, Walsh-Healey Public Contracts Act (WHA) (41 U.S.C.  sec.  
35-45 (1994)), which is applicable to supply contracts and which 
requires offerors to make certain representations and stipulations and 
to pay its employees not less than the minimum wage prescribed by the 
Secretary of Labor.  

Sabreliner contends that this procurement is ultimately for supplies, 
not services alone, and thus, the BAA applies, which calls for a 
preference for American-manufactured end products.  We disagree.  The 
BAA applies to supply contracts exceeding the micro-purchase threshold 
and to services contracts that involve the furnishing of supplies when 
the supply portion of the contract exceeds the micro-purchase 
threshold.  FAR  sec.  25.100.  The BAA requires, with certain exceptions, 
that only domestic end products be acquired for public use, and the 
FAR implements the requirement by the application of stated price 
evaluation preference factors.  FAR  sec.  25.105, 25.102(a).  "End 
products" are defined as "articles, materials and supplies . . . 
acquired for public use under the contract."  FAR  sec.  25.101.  The 
contract here is for repair and overhaul services on engines owned by 
the U.S. Government.  While the contractor returns the engines to the 
government when the services are completed, the government is not 
acquiring end products; it is simply taking possession of items it 
already owns.  In this regard, we have long recognized that repair and 
overhaul contracts are basically agreements for services which are 
outside the scope of the BAA.  Bell Helicopter Textron,
59 Comp. Gen. 158 (1979), 79-2 CPD  para.  431; Bell & Howell Co., B-202114, 
May 20, 1981, 81-1 CPD  para.  395.

Sabreliner argues that the inclusion in the solicitation of the WHA 
clause, instead of the Service Contract Act clause (FAR  sec.  52.222-41), 
establishes that the contract is one for supply rather than 
services.[2]  However, the agency explains, without contradiction, 
that the overhaul and repair of the J85 engines constitutes extensive 
remanufacturing of the engines and is equivalent to manufacturing.  
The FAR provides that where, as here, remanufacturing is so extensive 
as to constitute manufacturing, the WHA applies instead of the Service 
Contract Act.  FAR  sec.  22.1003-6.  Thus, there is nothing objectionable 
in the agency's use of the WHA clause in this service contract, and 
its use is not inconsistent with the agency's determination that the 
BAA is inapplicable here. 

While it is true that "supply" contracts (manufacture or furnishing of 
materials, supplies, articles or equipment) generally require the 
application of the WHA (FAR  sec.  22.602, 22.603), application of the WHA 
does not necessarily mean that the contract must be classified as a 
supply contract for BAA purposes.  The two acts have different 
purposes.  The BAA provides a preference for items manufactured in the 
United States from materials, articles, or supplies which are mined, 
produced, or manufactured in the United States, 41 U.S.C.  sec.  10a, and 
focuses on where and from what materials an item is manufactured.  The 
WHA provides that in government manufacturing contracts over $10,000, 
contractors must, inter alia, ensure that its employees will be paid 
the prevailing minimum wage for the locality where the contract is to 
be performed, 41 U.S.C.  sec.  35, and thus focuses on the how the 
contractor is to treat its employees.  Further, the WHA specifically 
provides that it "shall not be construed to modify or amend" the BAA.  
41 U.S.C.  sec.  42.  Accordingly, since the WHA is unrelated to the BAA, 
application of one does not mandate application of the other, and 
since services are not subject to the BAA, the agency properly 
determined that no BAA factor should be included in the price 
evaluation.

The protest is denied.

Comptroller General 
of the United States

1. At the request of Sabreliner, the Air Force has amended the RFP 
more than once in an effort to ensure that all necessary clauses are 
included and that all clauses are consistent with the type of contract 
to be awarded.  In addition to the BAA, Sabreliner has argued that a 
number of other clauses should have been included in the RFP.  
However, in a telephone conference with the parties on November 6, 
1996, counsel to Sabreliner conceded that inclusion of these other 
clauses is not necessary; the crux of Sabreliner's protest is the 
issue of the applicability of the BAA.  Accordingly, we will not 
address whether the additional clauses were properly excluded by the 
Air Force.   

2. Sabreliner also notes that prior contracts for the same services 
contained the BAA clause and other supply clauses.  However, as the 
protester itself recognizes, each federal procurement stands on its 
own; the Air Force's determination to include the BAA clause in prior 
procurements does not require it to include it here.  See  Tomahawk 
Constr. Co., B-254938, Jan. 27, 1994, 94-1 CPD  para.  48.