B-298949.2, Caddell Construction Company, Inc., June 15, 2007

B-298949.2 Jun 15, 2007 Jump To VIEW DECISION DOWNLOADS RELATED PAGES GAO CONTACTS Highlights Caddell Construction Company, Inc. protests the Department of State's (DOS) decision to reaffirm its earlier award of a contract to American International Contractors (Special Projects), Inc. (AICI-SP), after a review of AICI-SP's eligibility to perform this work, conducted in response to our decision in Caddell Constr. Co., Inc., B-298949, Jan. 10, 2007, 2007 CPD para. 24. In that decision, we sustained Caddell's protest of an award to AICI-SP under request for proposals (RFP) No. SALMEC-06-R-0009, issued by DOS's Overseas Buildings Operations division, for the design and construction of a new U.S. embassy compound in Djibouti, in eastern Africa. The solicitation was subject to the Omnibus Diplomatic Security and Antiterrorism Act of 1986, as amended, (hereinafter, the "Diplomatic 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. As discussed in greater detail below, DOS sought additional information from AICI-SP, after our earlier decision, in an effort to determine whether the company could properly be viewed as eligible for award of this contract given the restrictions of the Diplomatic Security Act; with this information DOS again concluded that AICI-SP is eligible here. Caddell argues that AICI-SP cannot qualify as a "United States person" or "qualified United States joint venture person" as those terms are defined by the Dipomatic Security Act, and, with respect to one provision of the statute, we agree. We sustain the protest. View Decision B-298949.2, Caddell Construction Company, Inc., June 15, 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-298949.2 Date: June 15, 2007 James F. Archibald, III, Esq., Bradley Arant Rose & White LLP, for the protester. Scott M. Heimberg, Esq., Mark J. Groff, Esq., Andrea T. Vavonese, Esq., and Lauren R. Bates, 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., Glenn G. Wolcott, Esq., and Ralph O. White, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision. DIGEST The Omnibus Diplomatic Security and Antiterrorism Act of 1986, 22 U.S.C. sect. 4852 (2000), established statutory qualification requirements for construction firms seeking to build a U.S. embassy, including a requirement that contractors must have achieved a total business volume equal to or greater than the value of the project being bid in 3 years of the 5-year period before the solicitation issuance date. Where the agency's determination that an awardee has met this requirement is inconsistent with the ordinary meaning of the words of the statute, has the effect of –reading out— portions of the statute, and is inconsistent with the statute's legislative history, the awardee is not eligible for award, and the protest is sustained. DECISION Caddell Construction Company, Inc. protests the Department of State's (DOS) decision to reaffirm its earlier award of a contract to American International Contractors (Special Projects), Inc. (AICI-SP), after a review of AICI-SP's eligibility to perform this work, conducted in response to our decision in Caddell Constr. Co., Inc., B-298949, Jan. 10, 2007, 2007 CPD para. 24. In that decision, we sustained Caddell's protest of an award to AICI-SP under request for proposals (RFP) No. SALMEC-06-R-0009, issued by DOS's Overseas Buildings Operations division, for the design and construction of a new U.S. embassy compound in Djibouti, in eastern Africa. The solicitation was subject to the Omnibus Diplomatic Security and Antiterrorism Act of 1986, as amended, (hereinafter, the –Diplomatic 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] As discussed in greater detail below, DOS sought additional information from AICI'SP, after our earlier decision, in an effort to determine whether the company could properly be viewed as eligible for award of this contract given the restrictions of the Diplomatic Security Act; with this information DOS again concluded that AICI'SP is eligible here.