TITLE:  United SeguranÃ§a, Ltda., B-294388, October 21, 2004
BNUMBER:  B-294388
DATE:  October 21, 2004
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   Decision

   Matter of:   United Seguranc,a, Ltda.

   File:            B-294388

   Date:           October 21, 2004

   Dr. Rafael Lycurgo Leite for the protester.

   David B. Dempsey, Esq., Kristen E. Ittig, Esq., and Anand V. Ramana, Esq.,
Holland & Knight, for Wackenhut International, Inc., an intervenor.

   Dennis J. Gallagher, Esq., Department of State, for the agency.

   Jonathan L. Kang, Esq., and Michael R. Golden, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   1.  Protest that agency improperly awarded a contract to a joint venture
that protester alleges may not be allowed to perform the contract under
Brazilian law is denied where local licenses were not required prior to
award and thus the question of the awardee*s ability to perform the
contract concerns the awardee*s responsibility.  The Government
Accountability Office does not review an agency*s affirmative
determination of responsibility absent the applicability of exceptions not
alleged here. 

   2.  Protest that agency failed to allow proposal revisions based on
changes to the incumbent contract is denied where the agency did not
incorporate those changes into the current solicitation.

   DECISION

   United Seguranc,a, Ltda. (USL), protests the award of a contract under
request for proposals (RFP) No. S-BT250-02-R-0008, issued by the
Department of State to a joint venture of Wackenhut International, Inc.
and Graber Sistemas de Seguranc,a (WII-Graber) for security services at
United States (U.S.) Embassy buildings in Brazil.  USL challenges the
agency*s award to WII-Graber on grounds that the awardee is prohibited
under Brazilian law from performing the contract and that the agency
improperly declined to allow offerors to submit revised proposals in
response to a change in the incumbent contract*s staffing levels.

   We deny the protest.

   The RFP was issued on June 3, 2003, and contemplated the award of a
time-and- materials contract for security services in Brazil, at the U.S.
Embassy in Brasilia and consulate buildings in Recife, Rio de Janeiro, and
Sao Paulo.  The RFP stated that award would be made to the responsible
offeror submitting a technically acceptable proposal and offering the
lowest evaluated price.  RFP S M.1.  The RFP included a 10-percent price
evaluation preference for *U.S. persons,* in accordance with the
requirements of Section 136 of the Foreign Relations Authorization Act for
Fiscal Years 1990 and 1991, Public Law 101-246, 22 U.S.C. 4864, as
amended.  To receive the price evaluation preference, an offeror must
qualify as a *U.S. person*; a joint venture qualifies as a U.S. person if
at least 51 percent of its assets are owned by the joint venture*s U.S.
partner(s).  RFP SS K.11, M.4. 

   WII-Graber is a joint venture of Wackenhut, a U.S.-owned company, and
Graber, a Brazilian-owned company.  Agency Report (AR), Tab 12, WII-Graber
Proposal, at 20.  The WII-Graber proposal identified itself as a *U.S.
person* based on WII*s ownership of 51 percent of the joint venture*s
assets.  Id.  USL is a Brazilian-owned company.  AR, Tab 6, USL Proposal,
at 7.  The proposals of both WII and USL were found technically
acceptable.  AR, Tab 21, Price Negotiation Memorandum, at 2-4.  WII-Graber
received the 10-percent price evaluation preference and, as a result, was
the low-priced offeror.  WII-Graber was, therefore, selected for award as
the responsible offeror submitting the low-priced, technically acceptable
proposal.  Id.
at 4-6.

   USL first protests that Brazilian law prohibits non-Brazilian ownership or
operation of a business entity that provides security services, thus
rendering award to
WII-Graber improper.  USL argues that there is an inherent contradiction
between the RFP price evaluation preference, which requires majority
ownership by a U.S. company, and what it contends is the Brazilian
prohibition on non-Brazilian majority ownership and/or control of a
security company.

   The agency disagrees with USL*s assertion that Brazilian law prohibits
WII-Graber*s performance of the contract requirements.  Further, the
agency notes that offerors were not required to demonstrate in their
proposals that they currently possessed the Brazilian licenses and permits
needed to perform the work under contract.  Rather, the RFP specified the
following regarding permits:

   The Contractor shall obtain all permits, licenses and appointments
required for the prosecution of work under this contract at no additional
cost to the government.  The Contractor shall obtain these permits,
licenses, and appointments in compliance with host country laws . . . . 
The Contractor shall provide evidence of possession or status of
application for such permits, licenses, and appointment to the

   Contracting Officer with his approval.  Failure to be fully licensed by
date planned for commencement of contract performance may result in
contract termination. 

   RFP S H.7.6.

   The RFP further required that offerors identify all licenses and permits
currently in their possession and indicate what other licenses and permits
would be obtained and when.  RFP S L.1.1.3(c)(2).  Following award, the
contractor is required to *complete the steps necessary to obtain all
required licenses, permits, and insurance,* after which the government
will issue a notice to proceed.  RFP S F.5.1-5.2.

   There is no dispute that WII-Graber at the time of evaluation was entitled
to the *U.S. person* preference.  While USL alleges that WII-Graber will
not be permitted to perform the work under Brazilian law because it is a
foreign-owned firm, USL has not provided any evidence supporting its
position.[1]  The agency notes that USL itself performed the incumbent
contract for several years as a similar American-Brazilian joint venture,
prior to USL assuming sole responsibility for the contract.  Memorandum of
Law at 14-15.  USL does not dispute these facts, but argues that its prior
performance was not proper under Brazilian law and that WII-Graber*s
performance would be similarly improper.  Protester*s Comments at 2.  In
any event, we agree with the agency that the determination of whether
WII-Graber will be able to obtain authorization under Brazilian law to
perform the work is not a matter for our review. 

   In this regard, the record shows that the contracting personnel requested
and relied upon a legal opinion from its Office of General Counsel, which
found that *[although] it is your understanding that Brazilian law
prohibits foreign firms from operating security services . . . [i]n the
context of our solicitation, this would be a matter to be considered at
the [time] of award in determining offeror responsibility.*  AR, Tab 16,
Legal Memorandum Addressing U.S. Person Preference, at 5.  In making his
responsibility determination, the contracting officer was aware of at
least three specific licenses and permits required for the performance of
security guard services:  *Authorization for Performance of Services,*
*Security Certificate,* and *Authorization for Guns.*  AR, Tab 17,
Pre-Negotiation Memorandum, at 1.  The contracting officer found
WII-Graber responsible for purposes of award, concluding that the firm was
*eligible to receive an award under applicable laws and regulations,* and
noting that the agency would *pay special attention to the transition plan
in order to coordinate the timeframe for Wackenhut*s securing licenses and
permits with the phase-out of the current contract.*  AR, Tab 21, Price
Negotiation Memorandum, at 6.

   A general solicitation provision of the type included here that requires
the contractor to obtain all necessary licenses or permits needed to
perform the work does not require that a bidder or offeror demonstrate
compliance prior to award.  Mid-America Mgmt. Servs., Inc., B-244103, June
5, 1991, 91-1 CPD PA 537 at 1-2.  Instead, the securing of licenses and
permits is a performance requirement that may be satisfied during contract
performance and does not affect the award decision except as a general
responsibility matter.  HAP Constr., Inc., B-278515, Feb. 9, 1998, 98-1
CPD P 48 at 2-3.  Our Bid Protest Regulations generally preclude our
review of a contracting officer*s affirmative determination of an
offeror*s responsibility, absent the applicability of exceptions not
alleged here.  Bid Protest Regulations, 4 C.F.R.
S 21.5(c) (2004).  We presume that the Brazilian authorities will,
pursuant to Brazilian law, determine whether WII-Graber is legally
eligible to receive the licenses and permits needed to perform the
contract.  Therefore, the issue of whether
WII-Graber ultimately obtains the licenses and permits is a matter of
contract administration, which our Office does not review.  See 4 C.F.R. S
21.5(a); Mark Dunning Indus., Inc., B-258373, Dec. 7, 1994, 94-2 CPD P 226
at 5-6.  On this record, we conclude that there is no basis to disturb the
agency*s responsibility determination or its award to WII-Graber.

   USL next argues that the solicitation failed to reflect a decrease in the
staffing levels required under its incumbent contract and that offerors
were not allowed to revise their proposals to respond to this change. 

   The record shows that on June 1, 2004, the incumbent contract was modified
to reduce staffing levels in response to a short-term budgetary
emergency.  Memorandum of Law at 18-19.  The agency, however, did not
incorporate this change in requirements into the RFP because the
solicitation, which called for higher staffing levels, accurately
represented the agency*s current needs.  To the extent that USL is arguing
that its performance under the incumbent contract*s downward staffing
revision reflected a change in the government*s actual needs that should
have been incorporated into the solicitation, such a protest is untimely
as it is effectively a challenge to the solicitation terms that was not
raised prior to the time

   for receipt of proposals.  4 C.F.R. S 21.2(a)(1).  In any event, we point
out that USL has not otherwise shown that the agency*s current staffing
needs are not reasonably reflected in the RFP.

   The protest is denied. [2]

   Anthony H. Gamboa

   General Counsel

   ------------------------

   [1] In its comments on the agency report, USL states that it does not
dispute that
WII-Graber will be able to obtain the necessary licenses and permits;
instead, USL continues to argue that Brazilian law prohibits the formation
of a company that provides security services and is owned or controlled by
a non-Brazilian entity.  Protester*s Comments at 2.  Regardless of USL*s
characterization of its protest, we agree with the agency that the
operative question in this procurement (albeit not one for our review)
will be whether WII-Graber obtains the necessary licenses and permits from
the Brazilian authorities.  

   [2] USL also alleged in its protest that the awardee improperly proposed
to hire the protester*s incumbent key personnel.  Protest at 14.  Although
the agency responded to this issue in the agency report, the protester did
not address the agency*s position in its comments.  We therefore dismiss
this protest ground as abandoned.  See
4 C.F.R. S 21.3(i); SDS Int*l, B-285821, Sept. 21, 2000, 2000 CPD P 162 at
3.