Israel Military Industries
| Decision Date | 21 November 1983 |
| Docket Number | B-211761 |
| Parties | ISRAEL MILITARY INDUSTRIES. |
| Court | Comptroller General of the United States |
Digest GAO will not review agency determination not to waive buy American act requirements since buy American act vests discretion as to waiver in heads of concerned agencies.
Israel Military Industries (IMI), an israeli firm, protests award of a contract by the navy ships parts control center (navy) to pyrotechnic specialties, Inc., under request for proposals (RFP) no. N00104-82-r ww97. IMI contends that its offer represented the lowest price to the government and therefore, it should have been awarded the contract. Instead IMI contends that the navy improperly added a 50-percent evaluation factor to its offered price pursuant to the buy American act, 41 U.S.C. Sec. 10a, et seq. (supp. IV, 1980) which made its evaluated price substantially higher than the price offered by the awardee. IMI argues that the navy should have waived application of the buy American differential. Alternatively, IMI argues that, pursuant to a memorandum of agreement (MOA) entered into between the government of israel and the government of the united states, it was entitled to have its offer evaluated without application of the buy American act weighting factor.
We dismiss the protest.
The RFP, issued on September 28, 1982, called for propellant actuated cutters for use by the navy's explosive ordnance demolition swimmers. Imi's initial proposal was the lowest priced offer of the 12 offers received by the initial closing date. Since IMI is an israeli firm which manufactures its product outside of the united states, the question arose as to whether imi's offer was going to be evaluated under provisions of the buy American act, as implemented in defense acquisition regulation (DAR) section vi (defense acquisition circular no. 76-25, October 31, 1980).
Under the buy American act, supplies which have been manufactured in the united states are to be acquired by the united states government unless the head of the procuring agency determines it to be "inconsistent with the public interest" or "the cost to be unreasonable." 10 U.S.C. Sec. 10a (1982). In accord with dar Sec. 6 104.4, an offer of goods from a "nonqualifying country" is to be evaluated by adding a 50-percent evaluation factor to its price. A "qualifying country" is defined in dar Sec 6-001.5(a) as including a defense cooperation country which has an agreement with the united states for which the secretary of defense has made a determination and finding waiving the buy American act restrictions for specified items. In the case of IMI, an MOA was entered into between the united states secretary of defense and the israeli defense minister on March 19, 1979. The MOA, set forth at dar Sec. 6-1504.1, states that it only applies to manufactured items which are listed in annex "b" to the MOA and that for such manufactured items, no price differentials resulting from "buy national laws and regulations" will be applied for evaluation of offers. The propellant actuated cutters which were the subject of this procurement were not listed on annex "b" to the MOA at any time during the procurement process.
During the course of the procurement from RFP issuance on September 28, 1982, until award on May 5, 1983, IMI contacted the contracting activity requesting that the navy initiate action to have the items added to annex "b" and apprising the...
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