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B-186124 1 (1976-08-02)

handle is hein.gao/gaobaddjl0001 and id is 1 raw text is: ~? ~ THE COMPTROLLER GENERAL DECISION - OF THE UNITED STATES WASHINGTON, D. C. 20548 FILE: B-186124 DATE: August 2, 1976 MATTER OF: Lemmon Pharmacal Company q g 7; - DIGEST: 1. Buy American Act exception for supplies which are not commercially available in United States does not apply to end item, the component of which is produced by only one domestic source and is only sold by that source as incorporated into end item. Fact that other domestic manufacturers are required to purchase component from foreign sources does not make component unavailable within meaning of exception since agency is able to obtain unlimited quantity of end item from sole domestic source. 2. Fact that manufacturer of domestically manufactured end product may be foreign owned is not dispositive of whether product is foreign or domestic for purposes of applying Buy American Act evaluation factor. 3. With certain exceptions, Balance of Payments program requires that Buy American Act evaluation factors be applied to foreign made products even if purchased for use outside United States. 4. Although DOD regulation announces expectation that applica- tion of 50 percent balance of payments evaluation factor to foreign bids will not be retained beyond time that United States balance of payments deficit is corrected, evaluation factor is for application notwithstanding bidder's contention that balance of payments deficit has been corrected, since DOD has not rescinded regulation. 5. Contention that agency should have requested deviation under ASPR § 6-102. 2(b) from Buy American Act evaluation criteria contained in solicitation is untimely where issue was not raised until after proposals were submitted. Lemmon Pharmacal Company (Lemmon) of Sellersville, Pennsylvania, protests the Defense Personnel Support Center's (DPSC) proposed award to CIBA Pharmaceutical Corporation (CIBA) under RFP DSA 120-76-R-1328 of a requirements contract -1-

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