BNUMBER:  B-251398.3; B-251398.4
DATE:  May 21, 1996
TITLE:  United Mondialpol International S.r.l.; Department of
State--                 Reconsideration

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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.