B-297454, Wyse Technology, Inc., January 24, 2006

B-297454 Jan 24, 2006 Jump To VIEW DECISION DOWNLOADS RELATED PAGES GAO CONTACTS Highlights Wyse Technology, Inc. protests the award of a contract to CDW Government, Inc. (CDWG) under solicitation No. CG0270, issued by the Department of Justice, Federal Prison Industries (FPI) d/b/a UNICOR, for Hewlett Packard HP Compaq t5520 Thin Client devices. Specifically, Wyse contends that the awardee's brand name product was manufactured in Taiwan or China, and, thus, the award is in violation of the Trade Agreements Act (TAA), 19 U.S.C. sections 2501-81 (2000). We sustain the protest. View Decision B-297454, Wyse Technology, Inc., January 24, 2006 Decision Matter of: Wyse Technology, Inc. File: B-297454 Date: January 24, 2006 Brian A. Darst, Esq., for the protester. David Erlewine, Esq., Department of Justice, for the agency. Katherine I. Riback, Esq., and James A. Spangenberg, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision. DIGEST Agency improperly awarded contract based upon a proposal where the offeror expressly declined to certify that the product to be provided would comply with the Trade Agreements Act as was required by the terms of the solicitation. DECISION Wyse Technology, Inc. protests the award of a contract to CDW Government, Inc. (CDWG) under solicitation No. CG0270, issued by the Department of Justice, Federal Prison Industries (FPI) d/b/a UNICOR,[1] for Hewlett Packard HP Compaq t5520 Thin Client devices.[2] Specifically, Wyse contends that the awardee's brand name product was manufactured in Taiwan or China, and, thus, the award is in violation of the Trade Agreements Act (TAA), 19 U.S.C. sections 2501-81 (2000).[3] We sustain the protest. On September 13, 2005, the agency posted the solicitation for the Hewlett Packard HP Compaq t5520 Thin Client devices and –APC Essential Surge Arrest Outlets.—[4] The solicitation was issued on a –brand-name-or-equal— basis and included the applicable salient characteristics of the brand name products. The solicitation stated that it contemplated the award of a requirements contract with a 2-year period of performance. Agency Report (AR), Tab E, Solicitation. The procurement was to be conducted under streamlined commercial item and simplified acquisition procedures, Federal Acquisition Regulation (FAR) Subpart 12.6 and Part 13, using an electronic reverse auction.[5] Participants in the auction were required to register in the Contractor Performance System (CPS) and to submit written proposals to the agency, exclusive of pricing, before September 16 at 11 a.m., EST. The auction was to commence at 1 p.m. and close by 1:20 p.m. EST on that same date. The solicitation stated that award would be made on a –best value— basis, and identified three evaluation factors: past performance, ability to conform to the specifications, and price. The solicitation also stated that although award could be made without discussions, the government –reserves the right to conduct verbal or written discussions with respect to factors other than price with offerors at anytime prior to award.— Id.The terms of the solicitation were not protested. The information required to be included in the written proposal included three past performance references and a certification that the required representations and certifications were completed on the on-line representations and certifications application (ORCA).[6] The solicitation also incorporated FAR sect. 52.212-3, Offeror Representations and Certifications--Commercial Items, paragraph j(2) which provides that –the offeror verifies by submission of this offer that the representations and certifications currently posted electronically at FAR 52.212-3, Offeror Representations and Certifications--Commercial Items, have been entered or updated in the last 12 months, are current, accurate, complete, and applicable to this solicitation— and provides for offerors to update their representations and certifications for the particular acquisition. The solicitation further provided that –[a]ll proposals that fail to certify that the required representations and certifications have been completed at the ORCA website or fail to adhere to the terms and conditions of this solicitation shall no longer be considered for award.— Id. Among the certifications incorporated and required by this solicitation was the Trade Agreements Certificate, FAR sect. 52.225-6 (Jan. 2005), which states: –The offeror certifies that each end product . . . is a U.S.-made or designated country end product, as defined in the clause of this solicitation entitled 'Trade Agreements,'— and provides space where the offeror is required to list those end products that are not U.S.-made or designated country end products.