The government was required to “to the maximum extent feasible” purchase domestic condoms. ALATECH Healthcare, LLC v. U.S. COFC No. 09-332C (December 1, 2009).
This case involved a bid protest for the procurement of condoms by a USAID prime contactor. The protestor argued that the purchase of condoms by a foreign manufacturer violated a statutory requirement that domestic condoms be purchased “[T]o the maximum extent feasible.” The judge rejected the government’s argument that this was not a procurement action by the government and held that the Court of Federal claims has jurisdiction to hear the matter following the Federal Circuit’s decision in Distributed Solutions v. U.S., 539 F.3d 1340 (Fed. Cir. 2008). The Court of Federal Claims judge remanded the case “to a contracting officer authorized to administer this contract on behalf of the Agency for international development. The contracting officer will make findings on factors other than cost used by the Agency in awarding this contract, if applicable, or provide such findings that may have been made to this court as soon as possible.”
Thanks to James F. Nagle OMRB for bringing this humorous anecdote taken from the numerous procurement cases to our attention.