B.L. Harbert International, LLC (19AQMM20R0047)

B-422122.2 Mar 22, 2024 Jump To VIEW DECISION DOWNLOADS RELATED PAGES GAO CONTACTS Highlights Pernix Federal, LLC (Pernix), of Lombard, Illinois, protests the Department of State's decision to overturn its earlier award of a contract to Pernix under request for proposals (RFP) No. 19AQMM-20-R0047 for a new consulate compound in Adana, Turkey. According to the protester, the agency's determination that Pernix was not eligible to compete for the Adana requirements--a determination the agency made after taking corrective action in response to a protest by another firm challenging an initial award to Pernix--is unreasonable and inconsistent with Pernix's submissions and proposal. The protester further contends that the agency's post-corrective action consideration of Pernix's eligibility is contrary to the terms of the RFP and inconsistent with the agency's past practices. We sustain the protest. View Decision Decision Matter of: Pernix Federal, LLC File: B-422122.2 Date: March 22, 2024 J. Randolph MacPherson, Esq., Halloran & Sage LLP, for the protester. Kathleen D. Martin, Esq., Department of State, for the agency. Charmaine A. Stevenson, Esq., and John Sorrenti, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision. DIGEST Protest challenging agency’s post-award determination that the protester was ineligible under The Omnibus Diplomatic Security and Antiterrorism Act of 1986, as amended (Security Act), and System for Award Management (SAM) registration requirements to submit a proposal for an overseas construction project is sustained where the record shows that the protester’s submissions and proposal satisfied the requirements of the prequalification notices and solicitation. DECISION Pernix Federal, LLC (Pernix), of Lombard, Illinois, protests the Department of State’s decision to overturn its earlier award of a contract to Pernix under request for proposals (RFP) No. 19AQMM-20-R0047 for a new consulate compound in Adana, Turkey. According to the protester, the agency’s determination that Pernix was not eligible to compete for the Adana requirements--a determination the agency made after taking corrective action in response to a protest by another firm challenging an initial award to Pernix--is unreasonable and inconsistent with Pernix’s submissions and proposal. The protester further contends that the agency’s post-corrective action consideration of Pernix’s eligibility is contrary to the terms of the RFP and inconsistent with the agency’s past practices. We sustain the protest. BACKGROUND This protest presents issues concerning the requirements of The Omnibus Diplomatic Security and Antiterrorism Act of 1986, as amended (Security Act), as implemented in regulations promulgated by the Department of State, as well as how those requirements intersect with Federal Acquisition Regulation (FAR) requirements related to registration in the System for Award Management (SAM). The Security Act was enacted in response to terrorist and state-sponsored attacks on United States citizens and embassies in the early and mid-1980s “to provide enhanced diplomatic security and combat international terrorism.” H.R. Rep. No. 99-783, at 53 (1986) (Conf. Rep.). Among other things, the Security Act established several statutory qualification requirements for firms seeking to compete for contracts to design and construct diplomatic facilities located overseas. Of relevance here, the Security Act requires that, where adequate competition exists, only United States persons and qualified joint venture persons may bid on a diplomatic construction or design project. 22 U.S.C. § 4852(a)(1). The Act defines the term “United States person” as an entity which, among other things, “has performed within the United States or at a United States diplomatic or consular establishment abroad administrative and technical, professional, or construction services similar in complexity, type of construction, and value to the project being bid” and “has the existing technical and financial resources in the United States to perform the contract.” Id. § 4852(c)(2)(D) and (G). Further, a “qualified United States joint venture person” is defined as “a joint venture in which a United States person or persons owns at least 51 percent of the assets of the joint venture.” Id. § 4852(c)(3). In its regulations implementing the Security Act, the agency additionally permits a de facto joint venture to qualify as a United States person, stating as follows: A prospective bidder/offeror may be an individual organization or firm, a formal joint venture in which the co-venturers have reduced their arrangement to writing, or a de facto joint venture where no formal agreement has been reached, but the offering entity relies upon the experience of a related U.S. firm that guarantees performance.