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In Sea Box, Inc., B-409963.3, Feb. 4, 2015, 2015 CPD ¶ 72, a decision summarized here and discussed at 9 Government Contracts: Law, Administration & Procedure § 50.110[2][ b ], the GAO seems to give some credit to the agency's reliance on Customs and Border Protection's (CBP's) decision, CBP HQ Ruling 559432, Apr. 19, 1996.  The protester "acknowledges that CBP is the agency responsible for making final determinations of country of origin and substantial transformation in response to written requests by non-government parties."  2015 CPD ¶ 72, at 7.

The plaintiff in Acetris Heath, LLC v. U.S., No. 2018-2399 (Fed. Cir., Feb. 12, 2020) (a decision presently listed on the WIFCON home page and available here), was not prepared to so acknowledge, and the agency was faulted for relying on the CBP's determination.

I haven't really tried to reconcile them yet, so this is really just more of a "gee whiz" observation than anything else.

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By the way, the role of the CBP is also mentioned in Stuart B. Nibley, et al., "Real Steps Toward 'Buy American' Compliance," 19 Briefing Papers 6 (May 2019), at 9f.  The substance of the article also appears in the March 28, 2018 edition of the Government Contractor, available here.  The Federal Circuit decision makes the VA look a little foolish for relying on the CBP.  It isn't obvious to me that looking to the CBP was as unreasonable as the decision seems to suggest.

For instance, the article states:


CBP, the responsible authority for determinations of “substantial transformation,” undertakes a fact-intensive analysis and employs considerable judgment in determining whether specific processes rise to the level of “substantial transformation.” In its rulings, which CBP publishes in an online database called the Customs Rulings Online Search System, CBP has considered a multitude of factors, including: the number of components and subassemblies; whether parts “lose their identities” and become integrated into the new article; the extent of processing (i.e., whether it is minimal or simple as compared to whether it is complex or meaningful); whether worker skill is required during the actual manufacturing process; the overall importance of the imported article to the finished product; and whether the imported article is functionally necessary or simply an accessory with respect to the finished product. As you can see, there is no hard-and-fast rule that applies to a particular type of product or the extent of processing; however, CBP’s prior rulings provide an excellent place to start when trying to determine a product’s country of origin.

60 Government Contractor ¶ 97, at 5.

EDIT:  Jeffrey Orenstein and Lorraine Campos have a very good article in the Spring 2014 edition of the Public Contract Law Journal entitled, "Origin of the Pieces:  How to Determine a Pharmaceutical Product's 'Country of Origin,'"  It discusses how the substantial transformation test for product marking purposes (used by the CBP as part of its 'day-to-day job') is the same substantial transformation test contracting agencies are expected to use under TAA.  It also describes how fact-intensive and technical the determination can be.  The article ends with a table that lists various standards and the agency/agencies responsible under that standard.  For government contract purposes, it lists "CBP, GSA, contracting agencies" as stakeholders.  While I appreciate that this conclusion obviously isn't grounded on any language in the FAR, it seems to me the decision at COFC and the appeal to the Federal Circuit potentially could have gone differently if the VA, rather than saying it had no role, simply acknowledged that, while it had final authority, it had no reason to not defer to the CBP's analysis.

P.S.S.  In CompuAdd Corp. v. Dept. of the Air Force, GSBCA No. 12301-P, 93-3 BCA ¶ 26,123, at 41f, the Customs Service issued a final determination in favor of Zenith.  "Zenith argues that a final determination is binding upon all concerned until such time as it is set aside in the judicial review process.  As such, Zenith contends that the Board is bound by the Customs ruling and, at the very least, must accord it substantial deference.  The Board agrees that, at a minimum, the determination rendered by the Customs Service respecting the assembly process in Singapore deserves exceptional weight."

P.S.S.S.  Now that I look for references to this GSBCA decision on WIFCON, I find Vern would have me look at B-309930.2 and 82 Fed. Cl. 127, so sorry for the probably irrelevant history.

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