Link: GAO Opinion
Agency: Government Printing Office
Disposition: Protest denied.
Keywords: Terms of the Solicitation; Buy American Act; Trade Agreement Act
General Counsel P.C. Highlight: The Buy American Act requires that only domestic end products be acquired for public use. In comparison, the Trade Agreements Act provides that eligible products from World Trade Organization Government Procurement Agreement (WTO GPA) countries are entitled to “nondiscriminatory treatment.” The Trade Agreements Act exemption is applicable to procurements by federal agencies designated as covered by the WTO GPA.
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HID Global, Inc. (HID), protests the terms of a request for proposals (RFP) issued by the Government Printing Office (GPO) for specialized passport cover material for use by the Department of State. HID asserts that the RFP improperly includes the domestic preferences of the Buy American Act, without also incorporating the provisions of the Trade Agreements Act of 1979, that provide an exemption to the Buy American Act preferences.
The Buy American Act requires that only domestic end products be acquired for public use. In comparison, the Trade Agreements Act provides that eligible products from World Trade Organization Government Procurement Agreement (WTO GPA) countries are entitled to “nondiscriminatory treatment.” The Trade Agreements Act exemption is applicable to procurements by federal agencies designated as covered by the WTO GPA. Since the procurement at issue in the protest here is being conducted by the GPO, and the GPO is not a covered agency under the WTO GPA, the Trade Agreements Act exemption from the Buy American Act domestic preference provisions does not apply.
HID maintains that the State Department is a de facto procuring agency for this procurement, along with the GPO and since the State Department is included on the list of federal agencies covered by the WTO GPA, HID argues that the provisions of the Trade Agreements Act apply and supersede the Buy American Act domestic preferences. GAO disagrees.
The GPO is procuring fabric and creating passport covers for the State Department, but it does not follow that the State Department is a de facto procuring agency. GAO states that in the absence of compelling indicia that the State Department was a co-procuring agency, it will not ascribe to the State Department a status that the agencies themselves did not. The protest is denied.