File this one in the “A for effort” category. In a GAO bid protest, a contractor recently complained that it was unfairly excluded from a competition because the gloves sought by the agency were not “clothing” covered by a domestic preference law. Not surprisingly, the GAO’s response was, “nice try.”
The GAO’s bid protest decision in GAO Protest of Integrity Supply, B-406860 (Sept. 10, 2012) involved a Defense Logistics Agency solicitation for electrical gloves. The Request for Proposals included DFARS 252.225-7012 (Preference for Certain Domestic Commodities). The clause, which implements the so-called “Berry Amendment,” provides that certain articles, including “clothing” must be purchased domestically by the Department of Defense. DFARS 252.225-7012 includes “handwear” among the clothing covered by the domestic restriction.
Integrity Supply submitted a proposal, offering electrical gloves manufactured in Malaysia. After the DLA rejected its proposal, Integrity Supply filed a GAO bid protest, complaining that the gloves in question are worn solely to protect against electrical shock and thus were “tools,” not “clothing.”
The GAO made short work of Integrity Supply’s bid protest, writing, “[t]he protester’s emphasis on the protective nature of the gloves is misplaced . . ..” The GAO held that the term “clothing,” as used in the Berry Amendment, encompasses a wide variety of items, including those worn for protection. The GAO denied Integrity Supply’s bid protest.
If you are rolling your eyes and thinking that only a lawyer could attempt to exclude gloves from the definition of “clothing,” think again. Integrity Supply was not represented by an attorney. Unfortunately for Integrity Supply, although its attempt to narrowly define “clothing” might have won it points in a law school moot court competition, it had no such luck in the real world of GAO bid protests.