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Simba USA, LLC; New Western Supply, LLC, B-401971; B-401971.2, December 28, 2009

  • By GCPC GovCon Legal Team
  • January 5, 2010
  • Domestic Production RequirementOfferor Representations

Link: GAO Opinion

Agencies: Department of the Army

Disposition: Protests denied.

Keywords: Domestic production requirement; Offeror Representations

General Counsel, P.C. Highlight: An Agency will not look behind an offeror’s representation that it will meet the contract requirements unless there is some affirmative reason to do so.

—————————————————————————————————————————–

Simba USA, LLC and New Western Supply, LLC protested the Department of the Army’s issuance of a task order to Windhaven International, Inc. to provide 60,000 cotton velour terry beach towels to be used in connection with the Army’s recruiting activities. The protesters argued that Windhaven could not comply with the solicitation’s domestic production requirement. In particular, the solicitation stated that the towels must be “USA Made.” When an offeror responds to a solicitation by representing that it will furnish products that comply with a solicitation’s domestic production requirements, the offeror is contractually obligated to comply with such representation. It follows that an agency may properly rely on this representation when making its source selection decision, unless the agency has reason to believe that a firm will not or cannot provide compliant products, in which case the agency must go beyond the firm’s representations in order to verify compliance.

Here, after receiving 35 quotations, the contracting office contacted Windhaven to confirm that its quotation was in fact “100% American Made.” Windhaven responded affirmatively and provided a certificate as proof. Furthermore, after receiving notice of these protests, the Army contacted Windhaven again requesting additional information regarding Windhaven’s representations. In response, Windhaven provided a detailed list of its sources/suppliers for each component of its intended product.

Based on the record, the GAO saw no basis on which to question the Army’s reliance on Windhaven’s representations about its domestic production, and therefore dismissed the protests.

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