TITLE: B-297890, PDS Consultants, Inc., April 4, 2006
BNUMBER: B-297890
DATE: April 4, 2006
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B-297890, PDS Consultants, Inc., April 4, 2006

   Decision

   Matter of: PDS Consultants, Inc.

   File: B-297890

   Date: April 4, 2006

   Jean Y. Park, Esq., Kiley & Park, for the protester.

   Angel Rosado for Caribe Opti Lab., Inc., an intervenor.

   Merilee D. Rosenberg, Esq., and Philip Kauffman, Esq., Department of
   Veterans Affairs, for the agency.

   Mary G. Curcio, Esq., and John M. Melody, Esq., Office of the General
   Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   Protest alleging that award was improper because awardee would not supply
   goods that complied with Buy American Act is denied, where submission of
   offer constituted agreement to supply domestic end item, and agency had no
   information indicating otherwise.

   DECISION

   PDS Consultants, Inc. protests the award of a contract to Caribe Opti
   Lab., Inc. under solicitation No. 672-511-05, issued by the Department of
   Veteran Affairs (VA) for eye examinations and eyeglasses. PDS argues that
   the award to Caribe is improper because the eyeglasses it will supply will
   not be a domestic product as required by the Buy American Act, 41 U.S.C.
   sections 10a-10d (2000).

   We deny the protest.

   The solicitation, issued as a total small business set-aside, incorporated
   the provision at Federal Acquisition Regulation (FAR) sect. 52.225-1, Buy
   American Act Supplies, which, in implementing the Act, requires that
   domestic end items be delivered under the contract, except to the extent
   that the offeror specifies delivery of a foreign product.[1] Since the
   solicitation was a small business set-aside, and only domestic end
   products may be supplied under small business set-asides, FAR sections
   25.101(b), 19.102(f)(1), the solicitation also incorporated the provision
   at FAR sect. 52.219-6, which provides that the contractor agrees to
   furnish only end items manufactured in the United States (including its
   territories, possessions, Puerto Rico, the Pacific Islands and the
   District of Columbia) by small business concerns. The solicitation also
   included the provision at FAR sect. 52.225-2, which states: "The offeror
   certifies that each end product, except those listed in paragraph (f)(2)
   of this provision, is a domestic end product . . . ," and provided space
   in paragraph (f)(2) for offerors to list any foreign end products they
   intended to supply. Finally, the solicitation provided that, if the offer
   were not submitted on Standard Form (SF) 1449, the offeror was required to
   include a statement specifying the extent of its agreement with all terms,
   conditions and provisions included in the solicitation. Solicitation at
   49.

   Several offers were received, including Caribe's and PDS's. PDS's
   proposal, and those of the other offerors, were eliminated from the
   competition as technically unacceptable. Only Caribe's offer was evaluated
   as acceptable overall. Regarding the Buy American requirement, since
   Caribe submitted its offer on SF 1449 and did not list any end products as
   being from foreign sources, VA evaluated Caribe's offer as one for a
   domestic end item. VA thus made award to Caribe as the only acceptable
   offeror.[2]

   PDS asserts that the award to Caribe was improper because Caribe will not
   supply eyeglasses that meet the definition of a domestic end item.

   The award was proper. Under the terms of the provisions incorporated into
   the solicitation, offerors that did not take exception to the domestic end
   item requirement by listing foreign end products were certifying that they
   would comply with the Act's domestic product requirements. The
   solicitation did not require any separate certification document unless
   the offer was not submitted on SF 1449. Therefore, Caribe's signed offer
   on SF 1449 indicated its intention to supply a domestic end item, and
   obligated the firm to comply with the requirement. Continental Forest
   Products, Inc., B-217548, Mar. 19, 1985, 85-1 CPD para. 324 at 4. It
   follows that the agency properly accepted the offer for award.

   PDS maintains that VA should have investigated whether Caribe intended to
   supply a domestic end item, since PDS advised VA in a letter dated August
   25, 2005 that several offerors under the solicitation would violate the
   Act. Letter from PDS to VA (Aug. 25, 2005), at 1-2. This argument is
   without merit. The contracting officer states that he was unaware of the
   letter in August (he states that he subsequently found the letter in his
   records), and thus had no reason to question any offeror's compliance with
   the Act. In any case, the letter did not specifically identify Caribe (or
   any other offeror) as a firm PDS believed would not supply a domestic end
   item. Thus, even if we would otherwise consider information from one
   offeror sufficient to impose on an agency an obligation to investigate
   another offeror's compliance with the Act, it is clear that the agency
   here had no such obligation because it did not have any information, or
   reason to believe, that Caribe would not furnish a domestic end product.
   We conclude that the agency reasonably relied upon Caribe's
   self-certification, without further investigation. Intermagnetics Gen.
   Corp., B-255741.2, B-255741.3, May 10, 1994, 94-1 CPD para. 302. [3]

   The protest is denied.

   Anthony H. Gamboa

   General Counsel

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   [1]A domestic end item is defined as one that is manufactured in the
   United States where the cost of domestic components exceeds 50 percent of
   the cost of all components. FAR sect. 25.101.

   [2]The agency maintains that, because PDS's proposal was unacceptable, PDS
   would not be in line for award if the protest were sustained, and PDS
   therefore is not an interested party to maintain this protest. 4 C.F.R.
   sect. 21.0 (2005). However, since all proposals except Caribe's were
   rejected as unacceptable, if the protest were sustained, Caribe would not
   be eligible for award and the agency would be required to resolicit the
   requirement. Since PDS would be eligible to compete on such a
   resolicitation, PDS is an interested party. Wilcox Indus. Corp.,
   B-281437.2 et al., June 30, 1999, 99-2 CPD para. 3 at 5.

   [3] Whether Caribe in fact complies with the requirement to supply a
   domestic end item is a matter of contract administration, for
   consideration by the agency, not our Office. Envirodyne Sys., Inc.,
   B-258045, Dec. 8, 1994, 94-2 CPD para. 228 at 3.