Acciona CMS JV, LLC (N62470-24-R-0002)

B-422744.2 Dec 19, 2024 Jump To VIEW DECISION DOWNLOADS RELATED PAGES GAO CONTACTS Highlights Acciona CMS JV, LLC, of Bargersville, Indiana, protests the terms of request for proposals (RFP) No. N62470-24-R-0002, issued by the Department of the Navy, for a task order to build an explosive ordnance disposal facility at the U.S. Naval Station in Rota, Spain. See Agency Report (AR), Exh. 2, Initial RFP at 3. Acciona asserts that the terms of the solicitation, as amended, improperly require that U.S. firms register with the Spanish Ministry of Finance, maintaining that this requirement is "unduly restrictive," "arbitrary, capricious, and contrary to law." Protest at 2. Alternatively, Acciona asserts that the terms of the solicitation fail to provide adequate time to comply with the registration requirement. Id. at 12-13. We deny the protest. View Decision Decision Matter of: Acciona CMS JV, LLC File: B-422744.2 Date: December 19, 2024 Casey J. McKinnon, Esq., Cohen Seglias Pallas Greenhall & Furman PC, for the protester. Courtney Rahn-Warner, Esq., Department of the Navy, for the agency. Glenn G. Wolcott, Esq., and Christina Sklarew, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision. DIGEST 1. Protest challenging the solicitation’s requirement that all offerors register with the Spanish Ministry of Finance to obtain certification regarding their financial and technical capability is denied where protester expressly acknowledges that the solicitation provision is required by the U.S.- Spain Agreement on Defense Cooperation. 2. Protester’s assertion that the solicitation fails to provide adequate time to comply with the registration requirements is denied where the agency has granted multiple extensions of the deadline for compliance and protester delayed its efforts to comply with the requirement. DECISION Acciona CMS JV, LLC, of Bargersville, Indiana, protests the terms of request for proposals (RFP) No. N62470-24-R-0002, issued by the Department of the Navy, for a task order to build an explosive ordnance disposal facility at the U.S. Naval Station in Rota, Spain. See Agency Report (AR), Exh. 2, Initial RFP at 3.[1] Acciona asserts that the terms of the solicitation, as amended, improperly require that U.S. firms register with the Spanish Ministry of Finance, maintaining that this requirement is “unduly restrictive,” “arbitrary, capricious, and contrary to law.” Protest at 2. Alternatively, Acciona asserts that the terms of the solicitation fail to provide adequate time to comply with the registration requirement. Id. at 12-13. We deny the protest. BACKGROUND On April 8, 2024, pursuant to the “fair opportunity” provisions of section 16.505 of the Federal Acquisition Regulation (FAR), the Navy issued the solicitation to seven contractors that, in June 2021, were awarded indefinite-delivery indefinite-quantity (IDIQ) contracts for construction projects to be performed in “Rota, Spain and Worldwide.”[2] AR, Exh. 1, IDIQ Contract at 4. There is no dispute that United States government construction contracts performed in Spain are subject to the requirements of the U.S.-Spain Agreement on Defense Cooperation (ADC),[3] along with associated directives issued by the U.S.-Spain Permanent Committee, which was created to implement the ADC and is comprised of members from Spain and the United States.[4] See Protest at 4. More specifically, at the time the initial solicitation was issued, the procurement was subject to the provisions of Office of Defense Cooperation (ODC) Policy Directive No. 400.4, dated October 4, 2013. MOL/COS at 3; Protest at 6. The solicitation (both as initially issued and as amended) contains provisions requiring an offeror to submit various certifications to demonstrate its financial and technical capability to perform the type of work that will be required.[5] At the time the initial solicitation was issued (and consistent with the then-applicable ODC Policy Directive No. 400.4) the solicitation provided alternative procedures for offerors to demonstrate their financial and technical capabilities--depending on the nationality of the offeror. For example, Spanish companies were required to “acquire a listing in the Register of Bidders Contractors of the Spanish Ministry of Finance,” while a non-European Union firm (such as the protester) was permitted to demonstrate its financial and technical solvency by obtaining a “certification, issued by the contractor’s respective Spanish Permanent Diplomatic Mission or Consular office.” AR, Exh. 2, Initial RFP at 9. On May 30, the U.S.-Spain Permanent Committee issued a joint memorandum, titled “Contracting in Spain: Contracts for Works/Construction.” AR, Exh. 5, Joint Memorandum.