Refinery Associates of Texas, Inc.

B-410911.2 Mar 18, 2015 Jump To FULL REPORT VIEW DECISION RELATED PAGES GAO CONTACTS Highlights Refinery Associates of Texas, Inc. (RAOT), of New Braunfels, Texas, protests the award of a contract to Bahrain Petroleum Company, B.S.C. (BPC), of Awali, Kingdom of Bahrain, under request for proposals (RFP) No. SP0600-14-R-0077, issued by the Defense Logistics Agency--Energy (DLA) for a quantity of F76 diesel fuel. RAOT maintains that the agency improperly evaluated proposals for compliance with the Trade Agreements Act (TAA) and also misled the firm during discussions. We deny the protest. We deny the protest. View Decision 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: Refinery Associates of Texas, Inc. File: B-410911.2 Date: March 18, 2015 Ronald H. Uscher, Esq., and Nick R. Hoogstraten, Esq., Peckar & Abramson, P.C., for the protester. David Nolte, Esq., and Kay Bushman, Esq., Defense Logistics Agency, for the agency. Scott H. Riback, Esq., and Tania Calhoun, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision. DIGEST 1. Protest that agency improperly evaluated offers for compliance with the Trade Agreements Act is denied where record demonstrates that firms were advised that such an evaluation would occur. 2. Contention that agency misled protester during discussions into offering a product that was not compliant with the requirements of the Trade Agreements Act is denied where record shows that, throughout the acquisition, protester offered a product that was not compliant with the requirements of the Trade Agreements Act--and continued to do so notwithstanding the associated risk--even after being advised during discussions that its proposal might be found unacceptable on that basis. DECISION Refinery Associates of Texas, Inc. (RAOT), of New Braunfels, Texas, protests the award of a contract to Bahrain Petroleum Company, B.S.C. (BPC), of Awali, Kingdom of Bahrain, under request for proposals (RFP) No. SP0600-14-R-0077, issued by the Defense Logistics Agency--Energy (DLA) for a quantity of F76 diesel fuel. [1] RAOT maintains that the agency improperly evaluated proposals for compliance with the Trade Agreements Act (TAA) and also misled the firm during discussions. We deny the protest. BACKGROUND The RFP provided for award to the firm whose proposal was found technically acceptable and offered the “lowest laid-down price.”[2] Agency Report (AR), exh. 6, RFP Commercial Package, at C-20-21. The record shows that both the protester’s and the awardee’s proposals were determined technically acceptable. The record also shows that the protester and the awardee proposed, respectively, the lowest and second-lowest laid-down prices. There are no issues in the protest concerning the agency’s conclusion about the technical acceptability of the offerors’ proposals, nor are there any issues relating to the agency’s calculation of the offerors’ laid-down prices. [3] The only issues in the protest relate to the agency’s application of the TAA, 19 U.S.C. § 2501, et seq., in making its award decision, and in its conduct of discussions with the protester. Under the terms of the TAA and applicable implementing regulations, agencies generally are required to award contracts for products only to firms offering either United States products, or eligible products from countries that are identified as “designated countries” under the Act. See 19 U.S.C. §§ 2511, 2512. In addition, the Act contemplates that the head of a contracting agency may waive, on a case-by-case basis, the requirements of the TAA where he or she determines that it is in the national interest to do so. 19 U.S.C. § 2512(b)(2). In addition to the statutory scheme described above, two provisions of the Defense Federal Acquisition Regulation Supplement (DFARS) that are pertinent here. The first provision, DFARS § 252.225-7020, provides, in relevant part, as follows: (b) Evaluation.