B-298949, Caddell Construction Company, Inc., January 10, 2007

B-298949 Jan 10, 2007 Jump To VIEW DECISION DOWNLOADS RELATED PAGES GAO CONTACTS Highlights Caddell Construction Company, Inc. protests the award of a contract to American International Contractors (Special Projects), Inc. (AICI-SP) under request for proposals No. SALMEC-06-R-0009, issued by the Department of State (DOS), Overseas Buildings Operations (OBO), to design and construct a new embassy compound in Djibouti, in eastern Africa. The solicitation was subject to the Omnibus Diplomatic Security and Antiterrorism Act of 1986, as amended, (Security Act), 22 U.S.C. 4852 (2000), which provides that only "United States persons" and "qualified United States joint venture persons" are eligible to compete for certain diplomatic construction projects.1 Caddell contends that the agency unreasonably determined that AICI-SP was a "United States person" or "qualified United States joint venture person" within the meaning of the Security Act and, accordingly, that it was improper to award the contract to AICI-SP. We sustain the protest. View Decision B-298949, Caddell Construction Company, Inc., January 10, 2007 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: Caddell Construction Company, Inc. File: B-298949 Date: January 10, 2007 James F. Archibald, III, Esq., Bradley Arant Rose & White LLP, for the protester. Scott M. Heimberg, Esq., Mark J. Groff, Esq., and Andrea T. Vavonese, Esq., Akin Gump Strauss Hauer & Feld LLP, for American International Contractors (Special Projects), Inc., an intervenor. Dennis J. Gallagher, Esq., Department of State, for the agency. Linda C. Glass, Esq., and Glenn G. Wolcott, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision. DIGEST Protest that Department of State improperly made award to a company that is not a –United States person— as required by the Omnibus Diplomatic Security and Antiterrorism Act of 1986, 22 U.S.C. sect. 4852 (2000), is sustained where record shows that agency improperly prequalified the awardee as a –United States person— based on the awardee having a de facto joint venture relationship with its parent company, when the awardee specifically certified that it was neither a formal nor a de facto joint venture. DECISION Caddell Construction Company, Inc. protests the award of a contract to American International Contractors (Special Projects), Inc. (AICI-SP) under request for proposals No. SALMEC-06-R-0009, issued by the Department of State (DOS), Overseas Buildings Operations (OBO), to design and construct a new embassy compound in Djibouti, in eastern Africa. The solicitation was subject to the Omnibus Diplomatic Security and Antiterrorism Act of 1986, as amended, (Security Act), 22 U.S.C. sect. 4852 (2000), which provides that only –United States persons— and –qualified United States joint venture persons— are eligible to compete for certain diplomatic construction projects.[1] Caddell contends that the agency unreasonably determined that AICI-SP was a –United States person— or –qualified United States joint venture person— within the meaning of the Security Act and, accordingly, that it was improper to award the contract to AICI-SP. We sustain the protest. BACKGROUND On October 27, 2005, the agency posted a –Sources Sought Notice— on the Federal Business Opportunities (FedBizOpps) website, announcing its planned fiscal year 2006 Standard Embassy Design projects and inviting interested firms to file prequalification submissions. The notice stated that potential offerors for the various construction projects –are limited to United States person bidders,— and further provided: Each company responding to this notice shall contact the DOS Contract Specialist for a copy of the pamphlet –Certifications Relevant to Public Law 99-399, Statement of Qualifications for Purpose of Section 402 of The Omnibus Diplomatic Security and Antiterrorism Act of 1986.— . . . The pamphlet must be completed and included as part of the prequalifications package. If a joint venture is formed, the company having 51 percent or greater interest in the JV [joint venture] must be the one completing the pamphlet. This is a pass/fail evaluated area. Agency Report (AR), Tab 1, Sources Sought Notice, at 5. In December 2005, AICI-SP submitted a prequalification package, stating in its cover letter that AICI-SP was established in November 2005 to perform classified contracts for DOS and was wholly owned by American International Contractors, Inc. (AICI). AR, Tab 2, AICI-SP Prequalification Submission Cover Letter.