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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)
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