United Segurança, Ltda., B-294388, October 21, 2004

B-294388 Oct 21, 2004 Jump To VIEW DECISION DOWNLOADS RELATED PAGES GAO CONTACTS Highlights United Seguranca, Ltda. (USL), protests the award of a contract under request for proposals (RFP) No. S-BT250-02-R-0008, issued by the Department of State to a joint venture of Wackenhut International, Inc. and Graber Sistemas de Seguranca (WII-Graber) for security services at United States (U.S.) Embassy buildings in Brazil. USL challenges the agencys award to WII-Graber on grounds that the awardee is prohibited under Brazilian law from performing the contract and that the agency improperly declined to allow offerors to submit revised proposals in response to a change in the incumbent contracts staffing levels. We deny the protest. View Decision B-294388, United Seguranca, Ltda., October 21, 2004 Decision Matter of: United Seguranca, Ltda. File: B-294388 Date: October 21, 2004 Dr. Rafael Lycurgo Leite for the protester. David B. Dempsey, Esq., Kristen E. Ittig, Esq., and Anand V. Ramana, Esq., Holland & Knight, for Wackenhut International, Inc., an intervenor. Dennis J. Gallagher, Esq., Department of State, for the agency. Jonathan L. Kang, Esq., and Michael R. Golden, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision. DIGEST 1. Protest that agency improperly awarded a contract to a joint venture that protester alleges may not be allowed to perform the contract under Brazilian law is denied where local licenses were not required prior to award and thus the question of the awardees ability to perform the contract concerns the awardees responsibility. The Government Accountability Office does not review an agencys affirmative determination of responsibility absent the applicability of exceptions not alleged here. 2. Protest that agency failed to allow proposal revisions based on changes to the incumbent contract is denied where the agency did not incorporate those changes into the current solicitation. DECISION United Seguranca, Ltda. (USL), protests the award of a contract under request for proposals (RFP) No. S-BT250-02-R-0008, issued by the Department of State to a joint venture of Wackenhut International, Inc. and Graber Sistemas de Segurana (WII-Graber) for security services at United States (U.S.) Embassy buildings in Brazil. USL challenges the agencys award to WII-Graber on grounds that the awardee is prohibited under Brazilian law from performing the contract and that the agency improperly declined to allow offerors to submit revised proposals in response to a change in the incumbent contracts staffing levels. We deny the protest. The RFP was issued on June 3, 2003, and contemplated the award of a time-and- materials contract for security services in Brazil, at the U.S. Embassy in Brasilia and consulate buildings in Recife, Rio de Janeiro, and So Paulo. The RFP stated that award would be made to the responsible offeror submitting a technically acceptable proposal and offering the lowest evaluated price. RFP M.1. The RFP included a 10-percent price evaluation preference for U.S. persons, in accordance with the requirements of Section 136 of the Foreign Relations Authorization Act for Fiscal Years 1990 and 1991, Public Law 101-246, 22 U.S.C. 4864, as amended. To receive the price evaluation preference, an offeror must qualify as a U.S. person; a joint venture qualifies as a U.S. person if at least 51 percent of its assets are owned by the joint ventures U.S. partner(s). RFP K.11, M.4. WII-Graber is a joint venture of Wackenhut, a U.S.-owned company, and Graber, a Brazilian-owned company. Agency Report (AR), Tab 12, WII-Graber Proposal, at 20. The WII-Graber proposal identified itself as a U.S. person based on WIIs ownership of 51 percent of the joint ventures assets. Id. USL is a Brazilian-owned company. AR, Tab 6, USL Proposal, at 7. The proposals of both WII and USL were found technically acceptable. AR, Tab 21, Price Negotiation Memorandum, at 2-4. WII-Graber received the 10-percent price evaluation preference and, as a result, was the low-priced offeror. WII-Graber was, therefore, selected for award as the responsible offeror submitting the low-priced, technically acceptable proposal. Id. at 4-6. USL first protests that Brazilian law prohibits non-Brazilian ownership or operation of a business entity that provides security services, thus rendering award to WII-Graber improper. USL argues that there is an inherent contradiction between the RFP price evaluation preference, which requires majority ownership by a U.S. company, and what it contends is the Brazilian prohibition on non-Brazilian majority ownership and/or control of a security company. The agency disagrees with USLs assertion that Brazilian law prohibits WII-Grabers performance of the contract requirements.