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Barefoot

Country Of Origin (Non-Qualifying Country)

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Good Morning. I have a question that someone here may be able to help with. I've been doing business with the DLA for a little over two years now. I mostly work in DIBBS and occasionally in FBO. At any rate, every once in a while I will find out that I was the unsuccessful offeror on a contract even when I, clearly, offer the lowest price and best delivery. When that happens, I email post award and ask for an explanation, so that I can help myself out in the future. However, a couple of different times now, I was the unsuccessful offeror only because the Country of Origin that I specified was a Non-Qualifying Country. The first time, I was told by the contracting officer that they absolutely don't buy from China if they don't have to. Basically, if the item is offered from any other country it is seen as more acceptable than the same item from China. I let it slide. It would've been a nice contract, but I chalked it up as a learning experience. Two weeks ago though, the same thing happened, but the contract was bigger. I researched and found that the only time they take Country of Origin into consideration, other than where USA Manufacturing is specified, is in the case of a tie. Same delivery, Same Price, tie goes to the Domestic offering. I cannot find any other information stating that the Contracting Officer is correct in not awarding me the contract. In addition to that, I contacted the only manufacturer listed on the solicitation and was told that the item is ONLY manufactured in CHINA. The Awardee stated the Country of Origin was US. I contacted my PTAC POC and he verified that Country of Origin is where the parts are manufactured/assembled, not where they are shipping from.

I asked the PTAC Contact how I should proceed and was told, "With Caution". He said that Contracting Officers held a lot of power and that they hate protest. He said that although there isn't a "List" that I could be put on it, when dealing with that buyer. He said that I should casually mention to the buyer, for information purposes only, that for future reference, this item is only manufactured in CHINA. He said not to expect the award to be overturned. Fine. I'm alright with that, I guess. In the meantime, I wanted to see if anybody on here had any further suggestions and/or knowledge on the subject. Thank-you in advance for all of your help and for your patience in reading such a drawn out post. :)

Todd (Barefoot)

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You gave us a lot of background, but you did not tell us what you specifically want to know and what you want to get suggestions about.

Do you have any specific questions?

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Sometimes, a Government agency learns from a protest, and adjusts its practices accordingly. Sometimes, a protester learns from a protest, and adjusts its expectations accordingly. In this regard, protests are not "bad."

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The issue is not whether protests are "bad" or "good" or whether anybody learns anything from them.

Protests cost money, sometimes a lot of money, and a protest might hurt a relationship with a customer or potential customer. So the issue is whether a protest is worth it. Three questions:

1. If you file a protest, are you likely to win? The answer depends on too many factors to discuss here.

2. If you protest and win, will you then win the contract? The answer is: Possibly, but probably not.

3. If you win the contract, will you wish that you hadn't? The answer is: Quite possibly.

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My suggestion expressed as a thought. Without further information it would seem that your concern is direct to compliance of an agency with Federal law (BAA or a trade agreement act). It would seem plausible and should be accepted by any agent of the Federal government (CO for instance) that an entity could question compliance with such a law by an agency whether it be by protest or otherwise.

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Todd,

The DLA Master Solicitation for Automated Simplified Acquisitions clearly states at 3.©(3)(d):

"TIE QUOTES: If evaluated offers results in a tie between qualified quotes, the award decision will be based on the following order of precedence:

(1) A domestic end product offer over a non-qualifying country end product offer

It would appear that the contracting officer was following the procedure outlined in the solicitation for tie quotes - apparently you identified the product of a non-qualifying country and the awardee indicated that it was providing a domestic end product.

If this is a repetitive issue, and you are certain that there is not a domestic product that would satisfy the requirement, I strongly encourage you to engage with the contracting officer and perhaps the small business office to find a workable solution for the future. There should be a process in place in which you can notify the contracting officer that the only solution for a solicitation is a non-qualifying country end product and as a result, paragraph (1) of the Tie Quotes process should not apply - without having your quote being rejected for taking exception to the requirements of the solicitation.

That said, I agree with what others have said about protests, which is unfortunate and which does keep companies from protesting. I'm quite dismayed at what I see going on - more often lately than ever before (I mean, seriously, look at the language for the Tie Quotes - "If evaluated offers results in a tie between qualified quotes" - really?).

I wish more companies would express objection. I don't see things changing without it.

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Vern,

Sometimes, a Government agency learns from a protest, and adjusts its practices accordingly. Sometimes, a protester learns from a protest, and adjusts its expectations accordingly, n'est-ce pas? Such learning is not bad -- indeed, it's good.

Barefoot,

Your original posting doesn't indicate whether the solicitation you're talking about included Buy American Act or Trade Agreeements Act provisions/clauses, or some other provisions/clauses that prohibit/allow/disincentivize a China-made product. You might get more helpful information if you can identify the specific solicitation provision/clause that pertains to your solicitation. You've gotten generalized words and insights from a CO and from a PTAC, but maybe you should speak in specifics rather than generalities -- exactly what solicitation provision/clause did the agency err in applying in your case when it accepted the quotation/offer of your competitor?

Carl,

To follow your thought, Barefoot could raise the question of an agency's violation of the Buy American Act with his representative in the Congress. If Barefoot wants to change the agency's practice, he needs to raise something with someone. But he can't raise anything with anyone unless he can be specific, as Vern asks.

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ji20874:

Companies don't protest in order to teach agencies, unless it's to teach an agency not to mess with them. They protest to get relief from what they think was an improper course of action, hoping to win the contract or at least get another shot.

The fact that an agency might learn something is a matter of indifference to the vast majority of protesters and their attorneys. Barefoot doesn't come across as someone who has money to spend just to teach some contracting officer something. As for companies learning something from protests, I'm sure they do, but there are cheaper, less stressful, and less potentially damaging ways to learn.

Anyway, Barefoot didn't say that protests are bad, so he didn't need the goody-two-shoes lesson, and neither did I. If you want to discuss the pros and cons of protesting, try discussing it in a way that would be useful to him.

You're a government guy--in your experience, do COs hold grudges over protests?

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Vern,

They protest to get relief from what they think was an improper course of action, hoping to win the contract or at least get another shot.

That's right -- I agree with you. And in that process, sometimes, a Government agency learns from a protest, and adjusts its practices accordingly. Sometimes, a protester learns from a protest, and adjusts its expectations accordingly.

You're a government guy--in your experience, do COs hold grudges over protests?

Generally, no -- we understand it is the system, and we don't begrudge a contractor its rights in the system. I have never heard even a hint of a contracting officer throwing a selection decision to disfavor a prior protester. I have been frustrated by some protests, and in my statements of relevant facts I have sometimes expressed that a protester misrepresents the facts or doesn't understand the solicitation or has no basis for protest and the protest should be dismissed or denied -- but that's not a grudge.

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