BNUMBER:  B-277734; B-277982; B-277986 
DATE:  October 8, 1997
TITLE: Peter Bauwens Bauunternehmung GmbH & Co. KG, B-277734; B-
277982; B-277986, October 8, 1997
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Matter of:Peter Bauwens Bauunternehmung GmbH & Co. KG

File:     B-277734; B-277982; B-277986

Date:October 8, 1997

J. Casey Fos, Esq., Parker, Poe, Adams & Bernstein, for the protester.
John Lariccia, Esq., Department of the Air Force, for the agency.
Sylvia Schatz, Esq., and John M. Melody, Esq., Office of the General 
Counsel, GAO, participated in the preparation of the decision.

DIGEST

General Accounting Office (GAO) lacks jurisdiction to review protests 
of contract awards made by German government pursuant to international 
agreement, since GAO's jurisdiction is limited to federal agency 
procurement actions; protester's argument that GAO has "by or for" 
jurisdiction over the awards is without merit because:  (1) "by or 
for" jurisdiction, which ordinarily arises in the context of a 
subcontract award by a federal prime contractor, does not apply to 
procurement conducted by sovereign foreign government pursuant to 
international agreement;  (2) in any case, GAO no longer views its 
jurisdiction as routinely extending to procurements conducted by 
others but "for" the government; and (3) even if "by" jurisdiction 
applied to foreign government procurements, United States agency's 
involvement in procurements was not so extensive that German 
contracting authority could be viewed as a mere conduit for agency.

DECISION

Peter Bauwens Bauunternehmung GmbH & Co. KG protests its failure to 
receive awards under Department of the Air Force request for proposals 
(RFP) Nos. F61521-93-C-5218, F61521-95-C-5236, and F61521-95-C-5262, 
for building renovations at U.S. Armed Forces facilities in Mannheim, 
Germany.  

We dismiss the protests.

These procurements were conducted by an agency of the Government of 
Germany, the German Government Construction Agency (GGCA), using 
United States appropriated funds, pursuant to an international 
agreement between the United States and Germany.[1]  Under the 
agreement, the GGCA is responsible for soliciting offers, making 
awards, and administering the contracts "in accordance with German law 
and administrative regulations in force for [German] federal 
building."

The Air Force argues that our Office lacks jurisdiction over the 
awards because they were made by a foreign government.  Under the 
Competition in Contracting Act of 1984 (CICA), our Office has 
jurisdiction to resolve bid protests concerning solicitations and 
contract awards that are issued "by a Federal agency."  31 U.S.C.  sec.  
3551(1)(A) (1994).  As a result, we generally will not review protests 
of foreign country procurements, even where financed by U.S. 
appropriated funds.  See Bucyrus-Erie Co., B-197151, Jan. 10, 1980, 
80-1 CPD  para.  32.

Bauwens argues that our Office does in fact have jurisdiction because 
the German government is conducting the procurements "by or for" the 
Air Force, and we have taken jurisdiction over such protests in the 
past.  

This argument is without merit.  Pursuant to our authority under CICA, 
we initially took jurisdiction over subcontract awards by prime 
contractors to the federal government where, as a result of the 
government's involvement in the award process, or the contractual 
relationship between the prime contractor and the government, the 
subcontract in effect was awarded on behalf of--i.e., "by or for"--the 
government, and federal procurement laws and regulations otherwise 
would apply.  See Compugen, Ltd., B-261769, Sept. 5, 1995, 95-2 CPD  para.  
103 at 3-4.  It is this jurisdiction that Bauwens attempts to invoke.  
The attempt fails.  First, we have never extended "by or for" 
jurisdiction to the circumstances here, that is, where a sovereign 
foreign government is conducting procurements pursuant to authority 
granted it by international agreement.  In these circumstances, there 
is no bypassing of federal procurement requirements such that 
consideration of whether the procurements are "by or for" the 
government is warranted; rather, the procurements are being conducted 
by the German authority as contemplated by the international 
agreement.

Second, and in any case, consistent with the holding in U.S. West 
Communications Servs., Inc. v. United States, 940 F.2d 622 (Fed. Cir. 
1991), it now is our view that our jurisdiction generally does not 
extend to awards made by others but "for" the government; we therefore 
no longer review protests of such subcontract awards where, as here, 
the agency involved has not requested in writing that we do so.  See  
4 C.F.R.  sec.  21.5(h), 21.13(a) (1997); see also Compugen, Ltd., supra, 
at 4-5.  Further, while we still will consider protests concerning 
awards essentially "by" the government--that is, where the 
government's involvement in the procurement is so extensive that a 
prime contractor in effect is acting as a mere conduit for the 
agency--the involvement here by the government was not so substantial 
that the procurements could be considered to be "by" the government 
(even if we were to equate the German contracting authority with a 
federal prime contractor and apply our "by" jurisdiction by analogy).  
See Compugen, Ltd., supra, at 5-6.  In this regard, the procurements 
are governed by German laws and regulations, and GGCA is fully 
responsible for conducting the procurement and making the award.  As 
noted by Bauwens, the international agreement does provide for 
possible involvement in the procurement by the United States as the 
country for which the construction work is being solicited--the United 
States may reject any offer (consistent with German law), and has the 
right to approve award under specified circumstances.  While pursuant 
to these provisions the government could influence the award decision 
in some circumstances, this possibility by itself would not be 
sufficient to establish that the GGCA was acting as a mere conduit for 
the Air Force.  See id. 

The protests are dismissed.

Comptroller General
of the United States

1. The international agreement is entitled the Administrative 
Agreement, AGB 1975, between the Federal Minister for Regional 
Planning, Building and Urban Development of the Federal Republic of 
Germany and the United States Forces on the Implementation of 
Construction Works of and for all U.S. Forces stationed in the Federal 
Republic of Germany, in accordance with Article 49 of the 
Supplementary Agreement to the NATO Status of Forces Agreement.