BNUMBER: B-251398.3; B-251398.4
DATE: May 21, 1996
TITLE: United Mondialpol International S.r.l.; Department of
State-- Reconsideration
**********************************************************************
Matter of:United Mondialpol International S.r.l.; Department of
State-- Reconsideration
File: B-251398.3; B-251398.4
Date:May 21, 1996
Robert E. Deso, Esq., Deso, Thomas, Spevack, Weitzman & Rost, P.C.,
for United Mondialpol International, S.r.l., and Kathleen D. Martin,
Esq., for the Department of State, the parties requesting
reconsideration.
Richard J. Webber, Esq., Arent Fox Kintner Plotkin & Kahn, for
Wackenhut International, Inc./Instituto di Vigilanza Citta' di Roma
S.r.l. (Metronotte), a Joint Venture, an interested party.
Mary G. Curcio, Esq., and John M. Melody, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.
DIGEST
1. Request for reconsideration is denied where based on arguments
that could have been raised during the initial protest.
2. Request for reconsideration based on argument that General
Accounting Office improperly substituted its judgment for that of the
procuring agency is denied; conclusion that the agency misapplied
United States preference statute constituted an interpretation of the
statute, not a substitution of judgment.
DECISION
United Mondialpol International, S.r.l. (UMI),[1] and the Department
of State request reconsideration of our decision, Wackenhut Int'l,
Inc./Instituto di Viglanza Citta' di Roma S.r.l. (Mettronotte)--a
joint venture, B-251398.2, Jan. 26, 1996, 96-1 CPD para. 25. In that
decision, we sustained Wackenhut/Instituto's protest that the agency
improperly awarded UMI a contract under solicitation No. 11/92 for
security guard services at the U.S. Embassy in Rome.
We deny the request.
The contract was awarded to UMI based on its proposal's high total
point score of 104.93. Wackenhut/Instituto's proposal received a
total point score of 104.42. The scores of both offerors included 5
points for a preference given United States offerors; section 136 of
the Foreign Relations Authorization Act of 1991 and 1992, as amended,
22 U.S.C. sec. 4864(c)(7) (1994), authorizes the 5-point preference for
United States persons and qualified joint venture persons when
competing for the award of overseas security guard services contracts.
We found that UMI was not eligible for the preference as a United
States person because the statute defines a United States person as
one incorporated under the laws of the United States, and UMI was
incorporated under Italian law. UMI was not eligible for the
preference as a joint venture because, as indicated, the record showed
it was an Italian corporation, not a joint venture. In any case, we
concluded, even if UMI somehow could be considered a joint venture
(comprised of UIIS and Mondialpol Roma, the companies which owned the
shares of UMI), it nevertheless was not a joint venture eligible for
the preference, since neither UIIS nor Mondialpol Roma was jointly and
severally liable for performance of the contract, as required by the
"Statement of Qualifications for Purposes of Obtaining Preference as a
U.S. Person" included in the solicitation. (We also noted that, under
Italian Law, the Liability of Shareholders--such as UIIS and
Mondialpol Roma--in an S.r.l. corporation is limited to their
investment in the corporation, and that the offer was not signed on
behalf of UIIS or Mondialpol Roma.) Since eliminating the
5-point preference for UMI left Wackenhut/Instituto the high-scored
offeror, and the award was based on the scores, we sustained the
protest and recommended termination of UMI's contract and award to
Wackenhut/Instituto.
Under our Bid Protest Regulations, to obtain reconsideration, the
requesting party must either show that our prior decision contains
errors of fact or law, or present information not previously
considered that warrants reversal or modification of our decision. 4
C.F.R. sec. 21.12(a) (1995). Neither repetition of arguments made during
our consideration of the original protest nor mere disagreement with
our decision meets this standard. Nor will we reconsider a decision
based on information or arguments that could have been, but were not,
presented during the initial protest. Pilkington Aerospace,
Inc.--Recon., B-259173.2, May 15, 1995, 95-1 CPD para. 242.
UMI
UMI argues that it should have been considered a United States person
eligible for the preference because the chief executive officer of
UIIS, a United States corporation, is also the managing director of
UMI, and because UIIS is the entity actually performing the contract.
UMI also maintains that it should have been deemed eligible for the
preference as a joint venture, asserting that an entity can be both a
joint venture and a corporation. Finally, UMI argues that
Wackenhut/Instituto is not responsible because it will be unable to
obtain a necessary license under Italian law.
These arguments could have been, but were not, raised during the
initial protest. Accordingly, they do not provide a basis for
reconsideration. See Pilkington Aerospace, Inc.--Recon., supra. UMI
maintains that it did not have the opportunity to raise these
arguments concerning its eligibility for the preference because this
issue was not raised in Wackenhut/Instituto's initial protest.
However, while UMI is correct that the issue was not raised in the
initial protest, it was timely raised in Wackenhut/Instituto's
November 14 comments in response to the agency's protest report, and
therefore was properly before our Office. See Ford Contracting
Co.--Recon., B-248007.3; B-248007.4, Feb. 2, 1993, 93-1 CPD para. 90. If
UMI wished to reply to these issues, UMI should have requested leave
to do so. Id. Furthermore, to the extent UMI did not receive any of
the documents that were filed during the initial protest, it was UMI's
responsibility to assure that it received all documents to which it
was entitled. In that way, UMI would have been fully aware of the
issues involved in the protest and able to rebut the protester's
position during the original protest proceedings. EC Corp.--Recon.,
B-242415.7, Oct. 1, 1991, 91-2 CPD para. 273. We conclude that UMI has
not provided a valid basis for reconsidering our decision.
STATE DEPARTMENT
The State Department argues on reconsideration that UMI was entitled
to the preference because the solicitation stated that the preference
would be afforded to offerors who submitted information in response to
the "Statement of Qualifications for Purposes of Obtaining Preference
as a U.S. Person" provision, and UMI submitted that information (i.e.,
it intended to comply with all local law requirements, had the ability
to obtain required licenses and permits, and was owned at least 51
percent by a United States person). The agency maintains that our
decision inappropriately substitutes our judgment for its own
regarding UMI's eligibility.
Determination of eligibility for the preference is not a matter of
discretion left to the agency's judgment; rather, the statute sets
forth objective criteria that must be applied to determine each
offeror's eligibility. Thus, in concluding that UMI was not entitled
to the preference, we did not question the reasonableness of the
agency's judgment, but found that the agency had improperly applied
the statutory criteria. In its reconsideration request, the agency
does not argue that UMI, as an Italian corporation, in fact meets the
statutory definition of a United States person, and does not disagree
with our conclusion that neither UIIS nor Mondialpol Roma (the alleged
joint venturers) signed the offer or otherwise are jointly and
severally liable under the contract, both of which are specific
prerequisites to qualifying as a United States joint venture eligible
for the preference under the statute. The agency's arguments thus
provide no basis for reconsidering our decision.
The agency asserts that Wackenhut/Instituto may not be eligible for
the preference because the firm may be unable to obtain a license
necessary under Italian law to perform the contract; the agency
asserts that it cannot award the contract to Wackenhut/Instituto, as
recommended in our decision, without making this determination. Our
decision did not address whether Wackenhut/Instituto is eligible for
the 5-point preference because no party raised it as an issue in the
protest. With respect to our recommendation, we expressly stated that
the contract should be awarded to Wackenhut/Instituto if that offeror
is otherwise eligible for award.
The request for reconsideration is denied.
Comptroller General
of the United States
1. United Mondialpol International S.r.l. is an Italian corporation
that is owned by United International Investigative Services, Inc.
(UIIS), an American corporation, and Mondialpol Roma S.p.a., an
Italian corporation.