The Buy American Act (BAA) generally requires federal agencies to procure only domestic end products when acquiring supplies and construction materials in government contracts over the micro-purchase threshold unless an exemption applies. In response to defense solicitations that incorporate the provision at Defense Federal Acquisition Regulation Supplement (DFARS) 252.225-7000, offerors must provide a certification as to whether their proposed products are domestic end products from the United States, foreign end products from a qualifying country, or foreign end products from a non-qualifying country. When an offeror certifies that it will furnish end products in accordance with the BAA, it undertakes a contractual obligation to comply with that representation. The procuring agency can typically rely upon an offeror’s certification of compliance without further investigation unless there is a reason to believe, before making an award, that the offeror will not provide compliant products. On the other hand, if prior to award, significant countervailing evidence creates doubts concerning the offeror’s ability to comply with the BAA requirements, the agency must investigate beyond the firm’s representation of compliance before making an award. Under its bid protest function, the Government Accountability Office (GAO) will review whether an agency reasonably relied on an offeror’s certification of compliance. Similarly, when the agency investigates beyond the offeror’s representation of compliance, the GAO will review the agency’s evaluation and the resulting country of origin determination under the BAA to ensure they were reasonable.
In B-424395; B-424395.2; B-424395.3, a decision issued on July 7, 2026, the GAO denied a bid protest alleging that the procuring agency unreasonably relied on the awardee’s BAA compliance certification representing that it would supply domestic end products. The Defense Logistics Agency (DLA) issued the relevant request for proposals (RFP) for the award of one or more indefinite-delivery, indefinite-quantity (IDIQ) contracts for eleven types of hydrofluorocarbon (HFC) gases listed by national stock number (NSN), as well as cylinders on a lowest-price, technically acceptable (LPTA) basis. The RFP incorporated DFARS 252.225-7000, requiring offerors to submit a BAA compliance certificate for their proposed products. The awardee received a contract with eight NSNs, while the protester was also awarded a contract for three of the eleven NSNs. The protester challenged the award of three out of the eight NSNs secured by the awardee, arguing that the cylinders and gas proposed by the awardee were foreign made. Regarding the cylinders, the protester argued that a previous GAO protest of an award under a different solicitation put the DLA on notice that the awardee had proposed foreign-made cylinders. In addition, the protester presented statements from the awardee’s supplier, confirming that the awardee purchased its cylinders from a company based in Thailand. However, the GAO rejected this argument for failing to state a valid basis of protest because it concluded that the end product at issue in the instant procurement was the HFC gases, not the cylinders containing them.
Next, the GAO assessed the protester’s argument challenging the reasonableness of the DLA’s reliance on the awardee’s BAA compliance certification with respect to the gases, but also found it unpersuasive. The protester presented a sworn declaration of its Senior Vice President of Operations to support the assertion that the awardee could not source one of the relevant gases domestically at its proposed price point. The declaration also provided that a major component of one of the gases under the awardee’s contract was primarily produced in China. However, the GAO concluded that the declaration was insufficient to conclusively establish that the gases could not be sourced domestically or that the relevant component of one of the gases could only be sourced in China. The decision noted that the awardee’s proposal contained details regarding the sourcing of gases for each NSN. Furthermore, in response to the contracting officer’s (CO) request for reassurance regarding the place of manufacturing for the three gases at issue, the awardee had reconfirmed that it would provide domestic products. Under these circumstances, the protester’s arguments amounted to nothing more than unsupported allegations that the awardee’s proposed products were likely noncompliant with its BAA certification and thus did not impose an obligation on the CO to conduct an investigation behind the awardee’s certification. Consequently, the GAO denied the protest by determining that the DLA did not unreasonably rely on the awardee’s BAA compliance certification, which represented that it would provide domestic end products.
Solicitations for defense contracts for supplies may require offerors to provide a certification that they will furnish end products in accordance with the BAA. Such a representation by the offeror creates a binding obligation and may be properly relied upon by the procuring agency in making the award without further investigation. However, if prior to award, the agency has reason to believe that the offeror will not provide BAA-compliant end products, it must investigate the issue beyond the offeror’s certification. Once an award has been made upon the agency’s reasonable reliance on the BAA certification, whether the contractor ultimately delivers compliant end products is a matter of contract administration not reviewed by the GAO. Contractors should also be mindful that absent a belief that an offeror’s BAA certification is invalid either due to information on the face of the offeror’s proposal or other information received prior to award, the agency has no obligation to demand proof of compliance as a matter of course when conducting its evaluation. Of course, the agency may, as it did in the procurement described above, independently seek confirmation or additional information regarding an offeror’s ability to comply with its BAA certification. Finally, it is also worth remembering that each procurement stands alone and any agency actions taken to justify reliance on a BAA compliance certificate in one procurement are not relevant to a different procurement.
This Bid Protest Insight is provided as a general summary of the applicable law in the practice area and does not constitute legal advice. Contractors wishing to learn more are encouraged to consult the TILLIT LAW PLLC Client Portal or Contact Us to determine how the law would apply in a specific situation.
