...“qualifying country end product” only if it “has been substantially transformed into a new and different article of commerce with a name, character, or use distinct from that of the article or articles from which it has so transferred.”⁹

It is critical to understand that the TAA cannot be ignored or disregarded by contractors when the RFP requires its implementation. The contractor must complete the certification mentioned above and must comply with the “Trade Agreements” clause set forth at 52.225-1 or 52.225-5 or DFARS 252.225-7021.

The Government Accountability Office (“GAO”) discussed the subject of the TAA in a recent case¹⁰ involving a solicitation issued by the Federal Prison Industries for Hewlett Packard HP Compaq t5520 Thin Client devices. The procurement was conducted under FAR Subpart 12.6 and Part 13. The solicitation incorporated FAR section 52.212-3, Offeror Representations and Certifications--Commercial Items. Among the certifications incorporated and required by this solicitation was the Trade Agreements Certificate, FAR section 52.225-6 (Jan. 2005). CDWG, an offeror, refused to complete the TAA certification. Eventually, an award was made to CDWG based on their lowest price offer. The other offeror, Wyse Technologies, protested the award on the grounds that the awardee's brand name product was the end

product of either Taiwan or the People's Republic of China, and thus the award was in violation of the TAA, in as much as these countries are not designated countries under the TAA. The GAO sustained the protest because (1) CDWG did not offer to comply with the TAA in its proposal or otherwise, (2) that the agency was required to ensure CDWG's compliance with the TAA prior to making award to that firm, and (3) that this failure resulted in the delivery of products that apparently do not comply with the TAA.

The GAO clearly stated in this protest case that “Where a bidder or offeror represents that it will furnish end products of the United States or designated countries, it is obligated to comply with that representation.”¹¹ This is not an option. If the “bidder or offeror leaves the certificate blank and does not otherwise exclude any end product from the certificate, and does not otherwise indicate that it is offering anything other than a TAA-compliant end product, acceptance of the offer will result in an obligation on the offeror's or bidder's part to furnish a TAA compliant end product”.¹² Thus, the agency can rely on “an offeror's representation/certification with the TAA unless the agency has reason to believe, prior to award, that the offeror will not provide a compliant product”.¹³ The GAO stated very clearly and unequivocally that “Award may not be based upon a proposal where, as here, the...

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