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In Wyse Technology, Inc., B-297454, January 2, 2006, the Government Accountability Office (“GAO”) sustained a protest by an unsuccessful bidder who argued that the awardee failed to certify that the product to be provided would comply with the Trade Agreements Act (“TAA”) (19 U.S.C. §§ 2501-81 (2000)).  The GAO specifically ruled that the government’s award of a contract violated the TAA, despite the fact that the awardee’s proposal was to supply the computer hardware model specifically identified in a “brand name or equal” solicitation. 

The TAA waives the Buy American Act (“BAA”) preference for domestic end products in government acquisitions at or over a certain dollar threshold with respect to end products from signatory countries to the World Trade Organization Government Procurement Agreement and other free trade agreements.  Where the TAA applies, it also bars the purchase of products from nondesignated countries.

A variety of practical implications arise from the GAO’s decision in Wyse.  First, contractors must maintain their own vigilance and cannot rely on government agencies to specify compliant items because the adverse consequences of noncompliance are severe.  Contractors’ competitors, for example, are increasingly using legal action to enforce compliance under the TAA.  Second, to assure compliance whether you are a prime contractor competing on a government contract or a subcontractor, you should pay attention to requirements that might be incorporated by reference in a catch-all clause, such as Federal Acquisition Regulation (“FAR”) 52.212-5, or through requirements such as online certifications.  Third, this case illustrates the complex interplay between the BAA and the TAA.  Information technology such as the Hewlett Packard HP Compaq t5520 Thin Client devices at issue are exempt from the BAA pursuant to FAR 25.103(e) but are not exempt from the TAA.

This update is published by Venable LLP. Venable publications are not intended to provide legal advice or opinion. Such advice may only be given when related to specific fact situations. © Copyright by Venable LLP 2006.