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FAR 25.001:  The Berry Amendment (10 U. S. C. § 2533(a))

Comptroller General - Key Excerpts

MMI contends that the agency unreasonably relied upon information provided by Iguana certifying that it would comply with the Berry Amendment in the impregnation of the bednet fabrics with permethrin. As discussed in detail below, the agency requested that Iguana provide information to establish its quotation’s compliance with the Berry Amendment, and the agency relied upon this information to determine that Iguana’s quotation did comply. It is clear, however, based on our review of the record, that Iguana’s submissions did not convey the information that the agency believed was required to establish compliance with the Berry Amendment. In sum, we believe that the agency’s evaluation of Iguana’s quotation was unreasonable. Because Iguana’s quotation as originally submitted disclosed a manufacturing process in China that violated the Berry Amendment requirements, and because Iguana advised the agency that domestic facilities capable of performing the EXPEL impregnation processes were not then available, the agency was required to verify, prior to award, that Iguana’s intended manufacturing process would comply with the Berry Amendment. The agency’s pre-award determination regarding Iguana’s compliance was flawed because the agency relied on inadequate information to satisfy its concerns. Although Iguana identified Burlington as the domestic facility where permethrin impregnation would occur, the establishment number relied upon by the agency to verify Iguana’s self-certification of Berry Amendment compliance could not, as the agency acknowledges, have provided sufficient information needed to determine whether Burlington could perform the work. Instead, the agency confirms that, aside from verifying that the EPA establishment number for Burlington was valid, the agency did not determine whether Burlington, Bickel and Iguana had made the required arrangements to establish that Iguana’s quotation complied with the Berry Amendment. Furthermore, there is still substantial doubt as to whether post-award changes to Iguana’s manufacturing process bring Iguana’s quotation into compliance with the Berry Amendment, and the record does not show that the agency has evaluated these post-award changes. (MMI-Federal Marketing Service Corp., B-297537, February 8, 2006) (pdf)

Comptroller General - Listing of Decisions

For the Government For the Protester
  MMI-Federal Marketing Service Corp., B-297537, February 8, 2006 (pdf)
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