Agencies May Rely on Offerors’ Buy American Act Certifications Unless “Reason to Believe” Non-Compliance

When an offeror submits a certification that its products qualify as domestic for purposes of the Buy American Act, an agency ordinarily may rely on that certification without further investigation, unless the agency has reason to believe that the products will not be compliant.

In a recent bid protest decision, the GAO held that an agency acted properly by relying on the offeror’s certification because the protester’s “unsupported allegations” were insufficient to trigger a requirement for further investigation.

The GAO’s decision in Sea Box, Inc., B-420130, B-420130.2 (Nov. 18, 2021) involved a DLA solicitation seeking freight containers. The solicitation was issued as a small business set-aside and was subject to the Buy American Act. Price and past performance were the only evaluation criteria.

W&K Containers, Inc. submitted the lowest-priced offer. W&K certified that its freight containers qualified as domestic for purposes of the BAA. After evaluating proposals, the DLA awarded the contract to W&K.

Sea Box, Inc., an unsuccessful competitor, filed a bid protest with the GAO. Sea Box argued that W&K’s freight containers did not qualify as a domestic end product. Sea Box contended that the DLA should have applied the BAA’s 50% price evaluation penalty, which would have resulted in Sea Box’s freight containers being deemed the lowest-priced.

The GAO wrote that, “[i]f, prior to award, an agency has reason to believe that a firm will not provide domestic products, the agency should go beyond a firm’s representation of compliance with the BAA.” However, where a contracting officer “has no information prior to award that would lead to the conclusion that the product to be furnished is not a domestic end product, the contracting officer may properly rely upon an offeror’s self-certification without further investigation.”

In this case, the GAO found, Sea Box provided “no factual information” to demonstrate that W&K’s freight containers could not qualify as domestic products. “Simply put,” the GAO said, “unsupported allegations lodged by a competitor . . . does not impose an obligation on the contracting officer to conduct a detailed investigation” of the awardee’s BAA compliance.

The GAO denied the protest.

One final note: the GAO’s denial of the protest does not mean that W&K is now free to provide foreign products in violation of its BAA certification. After award, as the GAO said elsewhere in its decision, “whether an offeror does in fact furnish a foreign end product in violation of its certification is a matter of contract administration” and not a matter within the GAO’s bid protest jurisdiction.

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