BNUMBER:  B-278111; B-278111.2 
DATE:  December 30, 1997
TITLE: CSK International, Inc., B-278111; B-278111.2, December 30,
1997
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Matter of:CSK International, Inc.

File:     B-278111; B-278111.2

Date:December 30, 1997

James P. Rome, Esq., for the protester.
John E. Rodgers for Barco Industries, Inc., an intervenor.
Marie Adamson Collins, Esq., General Services Administration, for the 
agency.
Christina Sklarew, Esq., and Paul Lieberman, Esq., Office of the 
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

Under procurement subject to the Trade Agreements Act (TAA), agency 
properly rejected a bid offering a tool that consists of a tool head 
produced in a nondesignated country and a tool handle produced in the 
United States; assembly of the tool head and handle does not represent 
the type of "substantial transformation" of these elements required to 
qualify as a "U.S. made end product" for TAA purposes.

DECISION

CSK International, Inc. protests the rejection of its bid by the 
General Services Administration (GSA) under invitation for bids (IFB) 
No. 7FXI-J6-97-5102-S for a quantity of pulaski tools and handles.  

We deny the protest.

The IFB, issued on May 30, 1997, contemplated the award of a 
requirements contract for a pulaski tool, which is a combination axe 
and mattock of forged steel, fastened to a hickory wood handle, that 
is used primarily for clearing brush, small logs, and other surface 
debris, and for digging in the soil to construct fire lines in 
wildfires and controlled burn operations.  In addition to the axe head 
and handle, the IFB required an equal number of replacement handles in 
anticipation of their eventual need, since the handle typically cracks 
or breaks before the axe head is worn out.  The IFB identified the axe 
head and handle by national stock numbers and included specifications 
and drawings, supplied by the Forest Service, describing the exact 
item required.  

The IFB indicated that it was subject to the Trade Agreements Act of 
1979 (TAA), 19 U.S.C.  sec.  2501-2582 (1994), pursuant to which the 
President waived the provisions of the Buy American Act.  The TAA is 
implemented by Federal Acquisition Regulation (FAR) Subpart 25.4 which 
requires offerors/contractors to deliver under the contract only 
eligible products,[1] unless a waiver (based on national interest) has 
been granted to permit delivery of ineligible country products.  FAR 
25.402(c).  The IFB incorporated by reference a General Services 
Administration Acquisition Regulation clause, 48 C.F.R.  sec.  552.225-9, 
implementing provisions of the TAA, which provides that, under certain 
circumstances, an end product made of components from nondesignated 
countries,[2] but assembled in the United States, may be considered a 
"U.S. made end product," as follows:
 
     "U.S. made end product," as used in this clause, means an article 
     which (1) is wholly the growth, product, or manufacture of the 
     United States, or (2) in the case of an article which consists in 
     whole or in part of materials from another country or 
     instrumentality, has been substantially transformed in the United 
     States into a new and different article of commerce with a name, 
     character, or use distinct from that of the article or articles 
     from which it was so transformed.

The agency received five timely bids, including CSK's.  When the bids 
were opened, it was apparent that CSK had submitted the low price.  
The contracting officer ordered pre-award surveys on CSK in 
anticipation of awarding the contract to the firm.  During an 
inspection of CSK's facility, it was discovered that the axe head that 
the firm had offered and intended to furnish was manufactured in 
China, a nondesignated country.  The contracting officer determined on 
this basis that CSK's offer failed to comply with the requirements of 
the TAA and therefore rejected the bid. 

CSK protests that its bid was improperly rejected because its pulaski 
tool qualifies as a U.S.-made end product.[3] 

Under the applicable GSA clause, the pulaski tool will only be 
considered a U.S.-made end product if the component parts have been 
"substantially transformed in the United States into a new and 
different article of commerce with a name, character, or use distinct 
from that of the article or articles from which it was so 
transformed."  48 C.F.R.  sec.  552.225-9.  

CSK argues that in order to determine whether "substantial 
transformation" has occurred, one must compare the character of a 
component prior to its incorporation into an end product and its 
character after such incorporation.  Applying that methodology here, 
CSK reasons that, because "the head component of the end product, the 
Pulaski Tool, has no value or use standing alone," but becomes useful 
when it is combined with other components, i.e., the handle, the 
assembly of the axe head and handle represents a "substantial 
transformation."  On the other hand, CSK also argues that "the 
evaluation should be of the entire end product, not whether one 
component is intrinsically or physically changed."

In our view, these arguments fail to establish that fastening the 
pulaski tool head together with its wooden handle substantially 
transformed these materials into a new and different article of 
commerce with a name, character, or use distinct from that of the 
article or articles (i.e., the tool head and handle) from which it was 
so transformed.  None of these three indicia of transformation is 
present here.  The pulaski tool head and handle retain their original 
names after they are fastened together.  They retain their character:  
the main feature of the axe head is its ability to cut materials such 
as brush and small logs and to dig in soil, while the handle serves to 
aid in manipulating the object to which it is attached.  The 
components' use is predetermined at the time they are manufactured, 
and does not change as a result of the assembly process.  We think it 
is clear that the "substantial transformation" standard has not been 
met by the assembly process that occurred in this case.  

This conclusion is consonant with that of the United States Court of 
Federal Claims, which, when faced with strikingly similar facts, 
decided that cookware could not be characterized as a "U.S. made end 
product" (under the same GSA clause as is at issue in this case) based 
on the contractor attaching handles to the pans and covers after they 
were received in the U.S. from China.  Ran-Paige Co., Inc. v. United 
States, 35 Fed. Cl. 117, 120-22 (1996).[4]  Our conclusion is further 
supported by the fact that the procurement included replacement 
handles, which would be inserted by the end-user at a later time; this 
demonstrates that the components retained their single, predetermined 
purpose, and that the assembly process was minimal.  Accordingly, 
CSK's bid was properly rejected because CSK was offering to provide an 
article which did not qualify as a U.S.-made end product.  

The protest is denied.

Comptroller General 
of the United States

1. Eligible products include U.S.-made end products, designated 
country end products, Caribbean Basin country end products, Canadian 
end products or Mexican end products.  See FAR 25.401.

2. Pursuant to the definition of "nondesignated country end products" 
in 48 C.F.R.  sec.  552.225-9(a), "nondesignated countries" are those other 
than the United States, designated countries, Caribbean Basin 
Countries, Canada and Mexico. 

3. CSK argues that its pulaski tool qualifies either as a U.S.-made 
end product under the GSA clause or as a domestic end product under 
FAR 25.101.  However, the cited FAR provision implements the Buy 
American Act (BAA) and is not applicable to this procurement.  While 
CSK "agrees that the core issue is whether its actions with respect to 
the head imported from China constitute substantial transformation," 
quoting the standard for U.S.-made end products established in the GSA 
clause, it repeatedly refers to the issue as "whether the end product 
qualifies as a domestic item."  The standard for "domestic items," 
which involves the percentage of components of domestic origin, 
pertains to a BAA evaluation, which is inapplicable here.

4. See also Becton Dickinson AcuteCare, B-238942, July 20, 1990, 90-2 
CPD  para.  55 at 
4-6, in which our Office determined that the requirement for 
substantial transformation was not met by the folding of articles, 
manufactured elsewhere, into an innerwrap and insertion into envelopes 
which were then sealed within a TAA-qualified country.