Improper Buy American Act Waiver Leads to Successful Bid Protest The Buy American Act requires that federal agencies only procure domestic materials

Improper Buy American Act Waiver Leads to Successful Bid Protest The Buy American Act requires that federal agencies only procure domestic materials

and products if (1) they are intended for public use within the United States; and (2) they are present in the United States in sufficient and reasonably available commercial quantities of a

satisfactory quality. An offeror may request a waiver from the provisions of the act prior to award. If the request is based on the alleged unreasonable cost of domestic materials (i.e., 20% more than the cost of the foreign materials), the request must include a “reasonable survey of the market.” The GAO recently sustained a bid protest after the agency granted the awardee a waiver from the provisions of the act without obtaining a survey of the market that was reasonable.

Although the awardee submitted a market survey, the survey did not include a known Buy-American Act-compliant supplier, which in this case happened to be the protester.

According to the agency, the protester could not be considered a compliant supplier because it failed to submit certain pricing information. The GAO disagreed, since this was not the protester’s responsibility.

Instead, it was the awardee (the party seeking the waiver) whom had the obligation of providing the agency with a reasonable survey of the market, including the pricing information that the agency needed to evaluate whether the protester was compliant.

As a result, the GAO concluded that it was unreasonable for the agency to have waived the Buy American Act and recommended that the agency reevaluate proposals, and make a new source selection decision.