Comptroller General

United States Government Accountability Office

Washington, DC 20548 

of the United States

DOCUMENT FOR PUBLIC RELEASE

The decision issued on the date below was subject to a 

GAO Protective Order. This redacted version has been 

approved for public release. 

Decision 

Matter of: Tiger Truck, LLC 

File: B-400685 

Date: January 14, 2009 

Robert K. Tompkins, Esq., Michael J. Carrato, Esq., and Rory E. Adams, Esq., Patton 

Boggs LLP, for the protester. 

James H. Roberts III, Esq., Van Scoyoc Kelly PLLC, and Nicholas J. Mosich, Esq., 

Mosich & Associates, for the intervenor. 

Erica V. Ordonez, Esq., and Lee W. Crook III, Esq., General Services Administration, 

for the agency. 

Sharon L. Larkin, Esq., and James A. Spangenberg, Esq., Office of the General 

Counsel, GAO, participated in the preparation of the decision. 

DIGEST 

In a procurement covered by the Trade Agreements Act (TAA), protest of an award 

to a vendor whose quotation identified products that were not TAA-compliant is 

sustained, where the agency failed to follow required evaluation procedures for TAA 

procurements, improperly failed to ascertain whether the products identified by the 

protester were TAA-compliant, and did not conduct meaningful discussions with the 

protester even though the agency regarded the protester’s quoted price as 

unreasonably high. 

DECISION 

Tiger Truck, LLC, of Poteau, Oklahoma, protests the award of a contract to Vantage 

Vehicle International, Inc., of Corona, California, issued by the General Services 

Administration (GSA) under request for quotations (RFQ) No. QSDACE-H4-08-

2320-N, which included requirements of the Trade Agreements Act (TAA), for 

“mini-utility” vehicles. Tiger contends that the agency unlawfully awarded the 

contract to a vendor that did not comply with the TAA, and unreasonably rejected 

Tiger’s quotation. 

We sustain the protest. 

The RFQ sought 1,126 mini-utility vehicles for use by the Department of the Air 

Force. These vehicles were to be used for on-base purposes only, not for use on 

commercial roadways or interstate highways. The trucks, which were to be 
delivered within 120 days of “first article” approval, consisted of 262 mini-utility 

standard cabs, 174 mini-utility crew cabs, 178 mini-utility cargo vans, 356 mini-utility 

heavy duty standard cabs, and 156 mini-utility heavy duty crew cabs. RFQ at 3, 

attach. 2. The solicitation required that each type of vehicle meet certain 

specifications, such as passenger capacity, height and width, and load capacity. The 

solicitation also required that each vehicle come with certain options, such as air 

conditioning, an “E85” fuel engine, and an automatic transmission. RFQ attach. 1. 

The procurement was to be conducted as a commercial item acquisition in 

accordance with Federal Acquisition Regulation (FAR) part 12. The RFQ provided 

for award of a fixed-price contract to the vendor that provided the lowest-price, 

technically acceptable quotation. Technical acceptability was determined from 

evaluating technical conformance to government specifications, delivery 

requirements, past performance references, and manufacturer’s warranty terms. 

RFQ at 3-4, 36-37. 

In addition, the procurement was covered by the TAA, 19 U.S.C. § 2501 et seq. (2000), 

as implemented by FAR part 25.1 Vendors were asked to certify that each “end 

product” was made in the United States or a designated country as defined in the 

RFQ, and list all end products that were not made in the United States or a 

designated country. RFQ at 27. The RFQ further provided as follows: 

The Government will evaluate offers in accordance with the policies 

and procedures of [FAR part 25]. . . . The Government will consider for 

award only offers of U.S.-made or designated country end products 

unless the Contracting Officer determines that there are no offers for 

 

1

 The TAA authorizes the President to waive all buy-national laws, regulations, or 

procedures for the acquisition of eligible products from any country designated as a 

reciprocating, signatory nation to a recognized agreement or as a “least developed 

country.” 19 U.S.C. § 2511; Hung Myung (USA) Ltd., Inc.; Containertechnik Hamburg 

GmbH & Co., B-244686 et al., Nov. 7, 1991, 91-2 CPD ¶ 434 at 2-3. In order to 

encourage trade agreements with additional countries for reciprocal procurement 

opportunities, the TAA also requires the President to prohibit the procurement of 

eligible products from foreign countries not designated pursuant to the TAA. 

19 U.S.C. § 2512(a). The net effect is that products and supplies of designated 

countries--that is, TAA-compliant products--receive the same treatment as American 

products, and products from non-designated countries generally cannot be 

purchased absent a non-availability determination as discussed below. FAR 

§§ 25.402(a)(1), 25.502(b)(3); Olympic Container Corp., B-250403, Jan. 29, 1993, 

93-1 CPD ¶ 89 at 2. 

Page 2 B-400685 
such products or that the offers for those products are insufficient to 

fulfill the requirements of this solicitation.2

RFQ at 28. For an item to be considered an end product of the United States or a 

designated country, it must be manufactured in that country, or, if some or all of the 

parts are from a non-designated country, it must be “substantially transformed [in 

the United States or a designated country] into a new and different article of 

commerce with a name, character, or use distinct from” the parts from which it was 

transformed. 19 U.S.C. § 2518(4)(B). 

Prior to the issuance of this solicitation, the government had purchased mini-utility 

vehicles from vendors, including Tiger, which had not been TAA-compliant, because 

no vehicles manufactured in the United States or in designated countries were 

available. In the summer of 2007, Tiger announced plans to build a plant in 

Oklahoma that it asserted would be able to produce TAA-compliant vehicles 

responsive to Air Force and GSA requirements. See Protester’s Comments at 3-4; 

Hearing Transcript (Tr.) at 15-16.3 Tiger advised GSA that the firm would be 

“uniquely situated” as the only company that could produce American-made, 

TAA-compliant vehicles. Tr. at 99. 

On July 28, 2008 (the closing date for receipt of quotations), Tiger, Vantage, and 

[REDACTED] submitted quotations in response to the RFQ. Tiger certified that its 

vehicles were manufactured in the United States, while the other firms indicated that 

their vehicles were manufactured in China, which is not a designated country. 

Contracting Officer’s Statement at 5-6. Tiger quoted the highest price of 

[REDACTED], [REDACTED] quoted [REDACTED], and Vantage quoted 

[REDACTED]. Agency Report (AR), Tab 50, Prenegotiation Objectives 

Memorandum, at 1-2. All three quotations were found to be technically acceptable, 

although the contracting officer was concerned that Tiger’s quoted price was 

“exorbitant.” AR, Tab 56, Price Negotiation Memorandum, at 11, 13. According to 

the agency, because they received only three quotations, and the only vendor that 

certified TAA compliance provided the highest-priced quotation, the contracting 

officer placed all three vendors’ quotations in the competitive range. Id. at 13; 

see also AR, Tab 50, Prenegotiation Objectives Memorandum, at 2. 

The contracting officer issued “numerous questions and clarifications” to vendors 

concerning a variety of issues, after which vendors were invited to submit “best and 

 

2

 As discussed below, the contracting officer does not have the authority to make this 

non-availability determination, which must be made by the head of the contracting 

activity. FAR §§ 25.103(b)(2), 25.502(b)(3). 

3

 Our Office conducted a hearing in this matter to elicit testimony as to how GSA 

evaluated Tiger’s quotation. 

Page 3 B-400685 
final offers.” Contracting Officer’s Statement at 9; AR, Tab 56, Price Negotiation 

Memorandum, at 13. Tiger was not advised at any time during these exchanges that 

its price was considered “exorbitant” or unreasonably high. Tr. at 173-74. After the 

exchanges, Tiger reduced its price to [REDACTED], [REDACTED] reduced its price 

to [REDACTED], and Vantage reduced its price to [REDACTED]. Tiger offered to 

reduce its price by an additional [REDACTED] if the agency would agree to extend 

the delivery schedule by 60 days. AR, Tab 56, Price Negotiation Memorandum, at 13. 

 

On September 9, the contracting officer and GSA’s “industrial operations analyst” 

(IOA) conducted a “site visit” of Tiger’s Oklahoma facility to determine whether 

Tiger’s vehicles were TAA-compliant. During the site visit, Tiger provided GSA with 

a document that detailed Tiger’s costs for the manufacture and assembly of these 

vehicles in the United States. On September 15, the IOA submitted a site visit report 

to the contracting officer. The IOA stated in the report that she “believe[d] the 

process that Tiger is performing would constitute substantial transformation, even 

though the majority of components are coming from [REDACTED]”; however, she 

qualified her opinion by acknowledging that she “lack[ed] a clear definition of the 

term ‘substantially transformed.’” AR, Tab 46, IOA Report, at 3. Because of the 

IOA’s qualified statement and the contracting officer’s understanding that many of 

the parts were coming from [REDACTED], the contracting officer “wasn’t sure” if 

Tiger’s vehicles were TAA-compliant.4 Tr. at 63, 75-76. She was able only to 

conclude that “Tiger may comply with the [TAA] because major components/parts 

purchased and received from [REDACTED] may be substantially transformed during 

assembly operations in the manufacturing of these vehicles.” AR, Tab 56, Price 

Negotiation Memorandum, at 11. 

Although the contracting officer found that Tiger’s vehicles “may” be TAA-compliant, 

she concluded that Tiger’s quoted price was not fair and reasonable and, thus, Tiger 

could not be awarded the contract. Id. at 13. 

In evaluating Tiger’s price, the contracting officer compared Tiger’s prices to 

competitive pricing received from other vendors in response to this RFQ, to the 

government estimate, to prices obtained from a 2007 open market procurement for 

the same vehicles, and to commercial prices published on Tiger’s website. 

Contracting Officer’s Statement at 9; AR, Tab 56, Price Negotiation Memorandum, 

at 11-13. All of this data, except for possibly some of Tiger’s website prices, involved 

 

4

 On September 16, Tiger’s counsel provided the contracting officer with a legal 

opinion explaining why Tiger’s vehicles should be considered end products of the 

United States, but the contracting officer found that this letter contained factual 

information that was “contradictory” to information received during the site visit. 

Contracting Officer’s Statement at 17; Tr. at 151-52. Although Tiger’s counsel later 

revised this letter, the revised letter did not resolve the doubt the contracting officer 

had as to whether Tiger’s vehicles were TAA-compliant. 

Page 4 B-400685 
pricing for non-TAA-compliant vehicles.5

 The contracting officer asserts, and Tiger 

does not disagree, that other than Tiger’s quoted price here and possibly its website 

prices, no data on American-made vehicles exists. Tr. at 97-99. 

Under each of the bases of comparison, the contracting officer found Tiger’s prices 

to be “exorbitantly unreasonable.” AR, Tab 56, Price Negotiation Memorandum, 

at 13. For example, when considering the overall total price, the contracting officer 

noted that Tiger’s initial quoted total price was [REDACTED] percent higher than 

Vantage’s initial price, [REDACTED] percent higher than [REDACTED] initial price, 

and [REDACTED] percent higher than the government estimate. Id. at 11. Similarly, 

she noted that Tiger’s final quoted total price was [REDACTED] percent higher than 

Vantage’s final price, and [REDACTED] percent higher than [REDACTED] final 

price. Id. at 13. Moreover, she found that Tiger’s initial quoted price per vehicle 

ranged from [REDACTED] percent higher than published prices on its website, from 

[REDACTED] percent higher than its proposed 2007 prices for the same vehicles, 

and [REDACTED] percent higher than the awardee’s prices under the 2007 contract 

for the same vehicles.6

 Id. at 12. 

The contracting officer also looked to Tiger’s cost information, which the firm 

provided during the site visit, to see if the information explained why Tiger’s quoted 

prices were so high. Although this analysis is not documented anywhere in the 

contemporaneous record, the contracting officer explained during the hearing that 

she used the cost information to compare Tiger’s identified costs to Tiger’s prices in 

its quotation and to Tiger’s published website prices. Tr. at 51-52, 92-97. She found 

significant unexplained discrepancies between Tiger’s costs and prices; for example, 

she found that Tiger’s prices per vehicle from its quotation ranged from 

[REDACTED] percent higher than Tiger’s costs. Id.; Contracting Officer’s Statement 

at 14. As noted above, the contracting officer did not question Tiger about these 

disparities during discussions. Tr. at 173-74. 

Based on her analysis, the contracting officer determined that Tiger’s quoted price 

was not fair and reasonable and, on that basis, she concluded that no TAA-compliant 

quotations were eligible for award. AR, Tab 56, Price Negotiation Memorandum, 

at 13. The contracting officer selected Vantage for award based on that firm’s 

lowest-priced quotation, and Tiger protested. 

 

5

 On its website, Tiger marketed one of its vehicle types (the heavy duty standard 

cab) as “Made in America”; the website is silent as to the country of origin for the 

other vehicle types at issue here. Tr. at 52; Agency Legal Memorandum, at 6 n.3. 

6

 For ease of reading, our Office has rounded the percentages to the nearest whole 

number. 

Page 5 B-400685 
Tiger protests that the agency unlawfully awarded the contract to a non-TAAcompliant vendor (Vantage) and improperly rejected Tiger’s quotation. In a 

procurement covered by the TAA, such as the one here, an agency is prohibited 

from procuring, or even considering, non-TAA-compliant products unless the head 

of the contracting activity makes an “[i]ndividual determination” of non-availability, 

that is, a determination that no TAA-compliant goods are available “in sufficient 

and reasonably available quantities of a satisfactory quality.” FAR §§ 25.103(b)(2), 

25.502(b)(1), (3).7

 In this regard, an agency must “[c]onsider only offers of U.S.-made 

or designated country end products, unless no offers of such end products were 

received.” FAR § 25.502(b)(1); see also 19 U.S.C. § 2512(a)(2)(A). Only if no offer 

for a TAA-compliant product is received may an agency procure a non-TAAcompliant product, and only after the head of the contracting activity makes an 

individual non-availability determination. FAR §§ 25.103(b)(2), 25.502(b)(3). 

Tiger argues that the agency violated the TAA and its implementing regulations when 

it considered price before determining TAA compliance, evaluated Vantage’s and 

[REDACTED] quotations even though their vehicles were not TAA-compliant, and 

awarded the contract to Vantage without obtaining the required non-availability 

determination from the head of the contracting activity. Tiger also complains that 

the agency failed to affirmatively determine that Tiger’s vehicles complied with the 

TAA. Tiger’s Post-Hearing Comments at 6-8. 

The agency contends that the TAA requirements are not applicable here because 

there were no TAA-compliant quotations that were eligible for award, since Tiger 

(whose vehicles were the only arguably TAA-compliant ones) quoted a price that 

was not fair and reasonable. Contracting Officer’s Statement at 18. 

As an initial matter, we note that it is not clear from the record that Tiger’s vehicles 

are, in fact, TAA-compliant. Consistent with this record, the contracting officer’s 

determination was only that Tiger’s vehicles “may” be TAA-compliant. AR, Tab 56, 

Price Negotiation Memorandum, at 11. Nonetheless, as noted above, the FAR 

requires that the agency consider only TAA-compliant products, which necessarily 

requires that the agency first determine whether Tiger’s vehicles were 

TAA-compliant in order to ascertain whether any TAA-compliant products were 

available. If the agency had determined here that Tiger’s vehicles were 

TAA-compliant, then the remaining vendors’ quotations for non-TAA-compliant 

vehicles should have been eliminated from consideration and the agency should 

have evaluated only Tiger’s quotation against the RFQ’s evaluation criteria, including 

evaluating Tiger’s price for reasonableness as further discussed below. If, however, 

the agency had determined that Tiger’s vehicles, like the other vendors’ vehicles, 

 

7

 There is also the possibility of a “class determination” of non-availability for 

identified items. FAR § 25.103(b)(1). There is no indication in the record that such 

a determination was made here. 

Page 6 B-400685 
were not TAA-compliant, the head of the contracting activity would have been 

required to issue a non-availability determination, if he or she found it was 

warranted, before the agency could have selected a quotation for non-TAA-compliant 

vehicles for award. None of these events occurred here. Instead, in violation of FAR 

§ 25.502, the agency failed to determine whether Tiger’s vehicles complied with the 

TAA and made award based on a quotation for non-TAA-compliant vehicles without 

first obtaining a non-availability determination from the head of the contracting 

activity. We sustain the protest on these bases. 

The agency asserts that “Tiger was not prejudiced by any potential error in the 

evaluation, including TAA compliance, because it was not eligible for award due to 

its unreasonable price.” Agency’s Post-Hearing Comments at 14. It is a fundamental 

requirement that a government agency cannot award a contract at more than a fair 

and reasonable price, and there is nothing in the TAA or its implementing regulations 

that indicates that TAA-compliant products can be acquired for an amount greater 

than a fair and reasonable price. In this regard, FAR § 15.402(a) states that a 

contracting officer “must” purchase supplies and services “at a fair and reasonable 

price.”8

 

As noted above, if the agency in accordance with FAR § 25.502 determines that 

Tiger’s vehicles are TAA-compliant, then the agency must evaluate Tiger’s quotation, 

including whether Tiger’s quoted price is fair and reasonable. We recognize that the 

agency determined that Tiger’s price was “exorbitantly unreasonable” and found 

Tiger ineligible for award on this basis. AR, Tab 56, Price Negotiation Memorandum, 

at 13. However, the record also confirms that the agency failed to raise this issue 

during discussions, even though it held numerous rounds of discussions with the 

vendors and requested revised quotations inviting vendors to reduce their price.9

 

 

8

 Although this was a commercial item acquisition conducted under FAR part 12, that 

part expressly provides that an agency must determine the reasonableness of a 

vendor’s price in accordance with FAR subpart 15.4. FAR § 12.209. 

9

 We recognize that Tiger’s challenge of the adequacy of discussions may be untimely 

under our Bid Protest Regulations because it was not specifically raised in the initial 

protest. See 4 C.F.R. § 21.2(a)(2) (2008). To the extent that this issue can be 

considered untimely, we consider the issue raised to be a significant one that should 

be treated on the merits. Accordingly, we find that the issue is appropriate for 

consideration under the “significant issue” exception to our timeliness rules. 

4 C.F.R. § 21.2(c). What constitutes a significant issue is to be decided on a case-bycase basis. Celadon Labs., Inc., B-298533, Nov. 1, 2006, 2006 CPD ¶ 158 at 4. We 

generally regard a significant issue as one of widespread interest to the procurement 

community and that has not been previously decided. Id. The issue here--the 

interplay between the obligation to conduct meaningful discussions and the rules 

governing TAA procurements--is not one that we have previously decided and is one 

that can be expected to arise in future TAA procurements. 

Page 7 B-400685 
Although the agency asserts that “discussions were not intended” and were not held, 

we find that the “numerous questions and clarifications” issued to vendors followed 

by the agency’s request for “best and final offers,” which included revisions to 

vendor’s prices, constitutes discussions as contemplated by the FAR.10 AR, Tab 56, 

Price Negotiation Memorandum, at 12; Contracting Officer’s Statement at 9; 

Tr. at 173; see FAR § 15.306(d).11 

Although the solicitation here did not require the agency to hold discussions with 

vendors, once an agency chooses to do so, as occurred here, the discussions are 

required to be meaningful; that is, the agency is required to raise with a vendor 

significant weaknesses and deficiencies identified in the vendor’s quotation. FAR 

§ 15.306(d)(3). Discussions cannot be meaningful if a vendor is not advised of the 

significant weaknesses or deficiencies that must be addressed in order for its 

quotation to be in line for award. DevTech Sys., Inc., B-284860.2, Dec. 20, 2000, 

2001 CPD ¶ 11 at 4. There is no doubt that Tiger’s quoted price was viewed by the 

agency as a deficiency, as Tiger’s price was the sole basis for the agency’s finding 

that the quotation was ineligible for award. In holding discussions with Tiger, but 

not raising with the firm the concern that Tiger’s price was unreasonable, the agency 

did not provide Tiger with meaningful discussions. DevTech Sys., Inc., supra, at 4-5. 

We find a reasonable possibility that Tiger was prejudiced by the agency’s failure to 

hold discussions concerning the reasonableness of the firm’s price. Had the agency 

raised its concern with Tiger, then Tiger would have had the opportunity to explain 

why its price was fair and reasonable or to reduce it, such that the agency may have 

ultimately found the price to be fair and reasonable and, thus, Tiger’s quotation 

would have been in line for award. Coupled with the agency’s failure to properly 

evaluate TAA eligibility, we find that the agency’s failure to hold meaningful 

discussions prejudiced the protester, and we sustain the protest on these bases.12 

See Cogent Sys., Inc., B-295990.4, B-295990.5, Oct. 6, 2005, 2005 CPD ¶ 179 at 10-11. 

 

10 The acid test of whether discussions have occurred is whether the agency has 

provided an opportunity for submissions to be revised or modified. In this regard, 

it is the actions of the parties, and not the characterization by the agency, that 

determines whether discussions have occurred. Computer Sci. Corp. et al., 

B-298494.2 et al., May 10, 2007, 2007 CPD ¶ 103 at 9-10. 

11 With regard to FAR part 12 procurements conducted under negotiated procedures, 

as here, contracting officers are required to adhere to the policies and procedures for 

solicitation, evaluation, and award prescribed in FAR part 15. FAR § 12.203. It is not 

clear why the agency issued a request for quotations, rather than a request for 

proposals. 

12 Tiger also complains that the agency misevaluated price by considering 

Chinese-made vehicles as a basis of price comparison. We find nothing in the TAA 

or its implementing regulations that prohibits the consideration of these prices as 

(continued...) 

Page 8 B-400685 
Page 9 B-400685 

 

We recommend that the agency reevaluate the quotations in a manner consistent 

with FAR § 25.502, and first determine if the vehicles identified in Tiger’s quotation 

are TAA-compliant. If so, the agency should re-open discussions with Tiger that 

would include the reasonableness of its price and then request a revised quotation 

from that firm. If the agency determines that Tiger’s vehicles are TAA-compliant and 

that its final quoted price is fair and reasonable, we recommend that the contract 

awarded to Vantage be terminated and award be made to Tiger. If the agency 

determines that no TAA-compliant quotations have been submitted under this 

solicitation or if, after discussions, Tiger’s price is determined to be not fair and 

reasonable, then the head of the contracting activity should consider whether it is 

appropriate to make a non-availability determination and if such a determination is 

made, the contract awarded to Vantage, the low-priced vendor with non-TAAcompliant vehicles, should not be disturbed. We also recommend that the agency 

reimburse the protester for the reasonable costs of filing and pursuing its protest, 

including the reasonable costs of attorneys’ fees. 4 C.F.R. § 21.8(d). The protester 

should submit is certified claim for costs to the agency within 60 days of receipt of 

this decision. 4 C.F.R. § 21.8(f)(1). 

The protest is sustained. 

Gary L. Kepplinger 

General Counsel 

(...continued) 

one aspect of determining whether a quoted price is fair and reasonable. We note 

that in analogous situations, agencies are permitted to use the prices of ineligible 

offerors as a basis of comparison when determining price reasonableness. See

American Imaging Servs., B-238969, B-238971, July 19, 1990, 90-2 CPD ¶ 51 at 3 (in a 

procurement set aside for small business, prices from ineligible large businesses 

may be considered in evaluating the reasonableness of a small business’ price); see 

also FAR § 25.105 (in Buy American Act procurements, domestic product prices may 

be compared to foreign prices, albeit, unlike with TAA procurements, domestic 

prices in Buy American Act procurements are considered reasonable only if they do 

not exceed certain identified percentages). Furthermore, the FAR broadly provides 

that an agency may use a variety of techniques or procedures in determining price 

reasonableness, including, but not limited to, comparing prices received in response 

to a solicitation; comparing prices previously proposed for the same or similar 

items; comparing published market prices; and comparing proposed prices to an 

independent government estimate. FAR § 15.404-1(b). In addition, it may be 

appropriate to solicit and analyze pricing information provided by Tiger supporting 

its proposed price. FAR § 15.404-1(b)(vii).