Olympus America, Inc.

B-414944 Oct 19, 2017 Jump To VIEW DECISION DOWNLOADS RELATED PAGES GAO CONTACTS Highlights Olympus America, Inc., of Waltham, Massachusetts, protests the award of a contract to GE Inspection Technologies, LP, of Skaneateles, New York, under request for proposals No. FA8533-17-R-5387, issued by the Department of the Air Force for a quantity of borescopes. Olympus argues that the agency should have rejected the GE proposal for failing to comply with the requirements of the Trade Agreements Act. We dismiss the protest. We dismiss the protest. View Decision Decision Matter of:  Olympus America, Inc. File:  B-414944 Date:  October 19, 2017 Gary J. Campbell, Esq., Michael A. Hordell, Esq., Kelley P. Doran, Esq., and Kristopher Berr, Esq., Pepper Hamilton LLP, for the protester. Michael F. Mason, Esq., Stacy M. Hadeka, Esq., William T. Kirkwood, Esq., and Thomas A. Pettit, Esq., Hogan Lovells US LLP, for GE Inspecton Technologies, LP, an intervenor. Colonel C. Taylor Smith, Colby L. Sullins, Esq., Erika Whelan Retta, Esq., Alexis J. Bernstein, Esq., and Charles R. Epperson, Esq., Department of the Air Force, 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 Protest that awardee will not comply with the requirements of the Trade Agreements Act (TAA) is dismissed where solicitation did not include provisions relating to compliance with the TAA, neither offeror submitted a TAA certificate, and the agency did not evaluate proposals for compliance with the TAA, thus eliminating the possibility of any prejudice to the protester. DECISION Olympus America, Inc., of Waltham, Massachusetts, protests the award of a contract to GE Inspection Technologies, LP, of Skaneateles, New York, under request for proposals No. FA8533-17-R-5387, issued by the Department of the Air Force for a quantity of borescopes.  Olympus argues that the agency should have rejected the GE proposal for failing to comply with the requirements of the Trade Agreements Act.  We dismiss the protest.  BACKGROUND The RFP contemplates the award of a fixed-price requirements contract on the basis of low price for a base year and four 1-year options to purchase three different models of borescopes.  Borescopes are devices used for remote visual examination of areas in airplanes that are difficult or impossible to view directly.  Agency Report (AR), exh. 3, Market Research Report, at 1.  The record shows that the agency received two proposals in response to the solicitation, submitted by the protester and the awardee; that the awardee offered the lowest price as between the two offerors; and that, consequently, the agency made award to GE on that basis.  AR exh. 16, Price Competition Memorandum.  The issues in this case relate solely to the application of the Trade Agreements Act, 19 U.S.C. § 2501, et seq. (TAA).  Olympus argues that the RFP required offerors to provide a TAA certification with their proposals, and maintains essentially that GE failed to provide that certification and the agency failed to give appropriate consideration to the question of whether or not the borescopes proposed by GE will be compliant with the requirements of the TAA, which principally requires that products furnished in connection with a government contract either be domestically made or made in a designated country under the terms of the TAA.  THE RFP The protester maintains that the RFP required offerors to certify that the products to be provided would be TAA compliant, but that GE failed to make the required certification.  For the reasons discussed below, we conclude that the RFP did not require firms to certify their offered products as TAA compliant when they submitted their proposals, and that this aspect of Olympus’s protest amounts to an untimely challenge to an apparent solicitation ambiguity.  We therefore dismiss this aspect of the protest. The record shows that the agency did not include the provisions of either Federal Acquisition Regulation (FAR) § 52.225-5, or Defense Federal Acquisition Regulation Supplement (DFARS) § 252.225-7021 in the solicitation.  Those provisions include definitions relating to the application of the TAA, and are required to be incorporated into any solicitation to which the provisions of the TAA apply.  FAR § 25.1101 (c)(1), DFARS § 225.1101 (6).  The agency explains that it inadvertently failed to include either of these provisions in the RFP. [1]  The RFP did include FAR § 52.225-6, Trade Agreements Certificate, but by its terms, it was not applicable to the acquisition.  In this connection, the RFP provides as follows:  “(5) Trade Agreements Certificate.