City Chemical LLC, B-296135.2; B-296230.2, June 17, 2005

City Chemical LLC, B-296135.2; B-296230.2, June 17, 2005 TITLE: City Chemical LLC, B-296135.2; B-296230.2, June 17, 2005 BNUMBER: B-296135.2; B-296230.2 DATE: June 17, 2005 ********************************************************************** DOCUMENT FOR PUBLIC RELEASE The decision issued on the date below was subject to a GAO Protective Order. This redacted version has been approved for public release. Decision Matter of: City Chemical LLC File: B-296135.2; B-296230.2 Date: June 17, 2005 Gary Marcus, Esq., Goldberg & Connolly, for the protester. Charles H. Carpenter, Esq., and Michael L. Hordell, Esq., Pepper Hamilton LLP, for Nation Ford Chemical Company, an intervenor. Jeffrey I. Kessler, Esq., U.S. Army Materiel Command, and Sandra L. Biermann, Esq., U.S. Army Field Support Command, for the agency. Jennifer D. Westfall-McGrail, Esq., and Christine S. Melody, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision. DIGEST Agency properly evaluated dye that protester proposed to furnish as a foreign end product where imported "raw" dye accounted for more than 50 percent of the cost of all components making up the dye. DECISION City Chemical LLC protests the award of contracts to Nation Ford Chemical Company under two solicitations issued by the U.S. Army Operations Support Command, request for proposals (RFP) No. DAAA09-03-R-3017 for solvent yellow dye 33 and RFP No. DAAA09-03-R-3019 for solvent green dye 3. With regard to both RFPs, City Chemical contends that the agency erroneously determined that it intended to furnish a foreign source end item and, as a consequence, improperly added a Buy American Act (BAA) differential to its price. We deny the protests. BACKGROUND Each of the solicitations contemplated the award of a fixed-price requirements contract to the offeror submitting the lowest-priced, technically acceptable proposal at a fair and reasonable price. Both advised that offers would be evaluated by giving preference to domestic end products and qualifying country end products over nonqualifying country end products; to permit this evaluation, offerors were asked to certify as to the status of their end products. Elsewhere in both RFPs, offerors were asked to certify that their article was manufactured in the United States and that the cost of domestic components exceeded 50 percent of the cost of all components. Both the protester and Nation Ford responded to both RFPs. In both its offers, City Chemical represented that its end product was a qualifying country end product (as opposed to a domestic end product); in both cases, it then--inconsistently---identified "USA" as the country of origin for the end item. In its proposal for the green dye, the protester completed the second of the above certifications by writing "yes" next to "the article is manufactured in the United States," crossing out the language providing that the cost of domestic components exceeds 50 percent of the cost of all components, and signing the certification. The protester did not complete the second certification in its offer for the yellow dye; elsewhere in that proposal, next to a clause pertaining to transportation of supplies by sea, however, it inscribed "Raw Material Comes from [deleted]." The contracting officer sought clarifying information from the protester regarding the foreign content of its end product under the yellow dye solicitation. The protester responded by letter as follows: On a cost basis our material does not meet the Buy American Act, since the crude material being purchased from [deleted] is [deleted]. . . . We thought that by processing the crude material to a more refined material & then in turn packaging the material that meets [the specification], qualifies that material as a domestic end item, regardless of the percentage of Domestic costs/expenditures. Obviously, our interpretation was wrong & we respectfully request the opportunity to correct our proposal. Letter from Protester to Contracting Officer, Sept. 3, 2003. With regard to the green dye solicitation, the protester noted, in an e-mail response to the contracting officer's request for an extension of its offer, that its price was based on buying the crude material from [deleted], but that it might instead purchase the crude material from [deleted], which would affect its offered price. Subsequent to these communications, the agency amended both solicitations for reasons unrelated to the subject matter of this protest and requested revised proposals. On the cover page of its revised proposal for the yellow dye, City Chemical wrote, "Purchased from a domestic mfg. Please disregard any previous correspondence." Similarly, on the cover page of its revised proposal for the green dye, the protester inscribed, "All raw materials are purchased from a domestic mfg.