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.

Proposals that fail to satisfy the material terms of a solicitation for a negotiated procurement are considered unacceptable and may not form the basis of an award. It is well-established that it is the offeror’s responsibility to submit an adequately written proposal in accordance with the solicitation’s terms that contains all the required information. Despite this obligation, offerors may inadvertently omit necessary information from their proposals. Similarly, proposals may inadequately address or otherwise fail to convey information required by the solicitation. In such cases, the offeror risks adverse evaluation by the procuring agency or elimination from the competition altogether. Protests challenging the agency’s adverse decisions in such cases can have a low success rate because the Government Accountability Office (GAO) does not reevaluate proposals or substitute its judgment for that of the agency but only ensures the reasonableness of the evaluation against the stated evaluation criteria and applicable procurement laws and regulations. Contractors should also be mindful that their disagreement with the agency’s judgment alone is insufficient to establish the unreasonableness of the evaluation. Furthermore, while the agency may elect to seek clarifications, when a solicitation contemplates award without discussions, providing an opportunity for offerors to resolve even minor or clerical errors in their proposals is firmly within the agency’s discretion, as there is no automatic right to clarifications.

Generally, when a government contract solicitation sets forth requirements in specific terms, interested offerors are required to meet them precisely. This is especially true for material requirements which must be satisfied in order for an offeror’s proposal to be considered technically acceptable for award. However, in certain limited circumstances the procuring agency may relax or waive material solicitation requirements in making an award, if the proposed solution meets the government’s needs and there is no prejudice to the other offerors. In such cases, it is insufficient for a protester seeking to challenge the government’s waiver of material solicitation requirements to merely show that it would have been next in line for award, or that the awardee would have been unsuccessful but for the waiver. Rather, the existence of competitive prejudice is established by demonstrating that the protester would have altered its proposal to its advantage or could have done something different to improve its chances for award had it been afforded the opportunity to submit a response to the changed solicitation requirements.

In B-423821.2; B-423821.3, a decision issued on April 20, 2026, the Government Accountability Office (GAO) denied a protest challenging the agency’s waiver of material solicitation requirements in making the award because the protester failed to demonstrate competitive prejudice. The U.S. Army Corps of Engineers (USACE) issued a $43,712,124 task order under an indefinite-delivery, indefinite-quantity (IDIQ) contract for operation, maintenance, and facility management services at various Defense Health Agency (DHA) facilities in Germany, Belgium, and Italy. For the portion of the work to be performed in Italy, the request for proposals (RFP) required offerors to register for an anti-mafia screening white list. During discussions, the USACE reiterated the white list requirement, explaining that offerors were required to initiate the registration process with a local government official known as a prefetto before submitting their proposals. Prospective offerors were advised that they had to include evidence of having initiated the registration process with their proposal submissions.