Sample Letter – Request for Buy American Act Waiver
Dear (CONTRACTING OFFICER):
(CONTRACTOR) hereby requests a waiver of the Buy American Act with respect to certain ceramic tile installed in buildings at (LOCATION) under the above contract. The ceramic tile, furnished by our subcontractor’s supplier, (SUPPLIER), was installed in two buildings by our subcontractor-installer after being approved by the Corps of Engineers during the submittal phase. Unknown to (CONTRACTOR) and the Corps of Engineers was the fact that the tile had apparently been manufactured in Mexico.
It appears that for purposes of Buy American Act compliance, the supplier and installer of the tile were focusing on the fact that over 80% of the materials in the tile were of American origin. This led to the assumption by our supplier that the tile met the Buy American Act. Clearly the Buy American Act violation was unintentional and the result of a good faith error on the part of the parties involved. (CONTRACTOR), therefore, seeks a waiver of the Buy American Act for the tile already installed. It also offers to the Government a credit for the costs of the installed tile material as part of its request for waiver. This request for waiver is based, in part, on the fact that the tear out and reinstallation costs are far in excess of the cost of the material in place, and therefore removal would work an undue hardship on the prime contractor and its subcontractors without any attendant benefit to the Government.
The regulation, FAR 25.2, allows consideration of individual cases and some flexibility in application of the act. This is not a case where either (CONTRACTOR), or its subcontractor, made a conscious choice between domestic and foreign tile at the time of bidding. The substantial additional cost now involved in removal and replacement makes such a remedy impractical and a reasonable alternative is required. In fact, the Comptroller General has long recognized a flexibility inherent in the application of the Buy American Act and had ruled that a contractor in good faith violation of the Act is not obligated to use domestic materials. For example, in 36 Comp. Gen. 718 (1957), the contractor inadvertently violated the Act by installing foreign-made insulation in a government construction project. The Comptroller General held that in view of the lack of culpability on the contractor’s part, the Act did not require the use of domestic insulation. Id. at 722. Similarly, in 42 Comp. Gen. 401 (1963), the Comptroller General ruled that to require removal or replacement of the foreign materials incorporated in the project would be unduly harsh to the contractor and possibly detrimental to the government’s interest as a result of the attendant delay. Id. at 404.
Given the lack of culpability, the unintentional nature of the violation and the high removal and reinstallation costs, a waiver of the Buy American Act for the previously installed ceramic tile is most appropriate. (CONTRACTOR), upon discovery of the problem, immediately ordered its installer to obtain tile of American manufacture. Additionally, (CONTRACTOR) assures the Government that all future tile installed on the project will be in compliance with the Buy American Act.
Your prompt consideration of this request is appreciated.
Very truly yoursRead More
SAMPLE PROTEST RE POSTPONEMENT OF BID OPENING – FAILURE TO DISCLOSE INFORMATION
Office of the General Counsel
United States Government Accountability Office
441 “G” Street, N.W.
Washington, DC 20548
Attn: Procurement Law Control Group
Re: IFB No.
We hereby protest a solicitation issued by (INSERT AGENCY NAME), bearing IFB No. , which was issued on (DATE). Although we have questioned the propriety of the solicitation, the U.S. Army Corps of Engineers has refused to postpone the bid opening which is scheduled to be held on (DATE). The basis of the protest is that the solicitation is defective in that it fails to provide information which will enable all bidders to compete on an equal basis. The (AGENCY) has not made relevant information available concerning a prior project in the same area.
The failure to make this information available results in a restrictive solicitation which favors the current contractor, while denying all other interested bidders access to the records of the earlier project. The Government will suffer as a result of this non-disclosure because it will impair the ability of potential bidders to submit competitive bids. We attempted to obtain this information, but we have been access to the pertinent information.
Though the Government concedes that this information is relevant to the referenced project, it has not disclosed it to any bidder other than the contractor who performed the prior maintenance project. This is patently unfair and violates the purpose of the Competition in Contracting Act of 1984. Bidders must be able to compete on an intelligent and relatively equal basis DSP, Inc., B220062, 86-1 CPD 43 and Hero, inc. 83-2 CPD 687.
The failure to make necessary historical information available results in a defective procurement which is unlikely to culminate in a contract award at the lowest possible price. It is respectfully requested that the Comptroller General rule in favor of the protestor by sustaining the protest and directing the (AGENCY) to make the requested information available to all bidders.. We further request, by copy of this letter, that the Contracting Officer postpone the bid opening pending your decision on this protest. If the bid opening is not postponed, however, we request that the solicitation be cancelled and the project be re-advertised after release of the requested information.
cc: Contracting OfficerRead More