Department of State; Wackenhut International, Inc.--Reconsideration and Modification of Recommendation, B-295352.3; B-295352.4, April 19, 2005

Department of State; Wackenhut International, Inc.--Reconsideration and Modification of Recommendation, B-295352.3; B-295352.4, April 19, 2005 TITLE: Department of State; Wackenhut International, Inc.--Reconsideration and Modification of Recommendation, B-295352.3; B-295352.4, April 19, 2005 BNUMBER: B-295352.3; B-295352.4 DATE: April 19, 2005 ********************************************************************** DOCUMENT FOR PUBLIC RELEASE The decision issued on the date below was subject to a GAO Protective Order. This redacted version has been approved for public release. Decision Matter of: Department of State; Wackenhut International, Inc.--Reconsideration and Modification of Recommendation File: B-295352.3; B-295352.4 Date: April 19, 2005 Dennis J. Gallagher, Esq., Department of State, for the agency, a requester. David B. Dempsey, Esq., Kristen E. Ittig, Esq., and Caitlin K. Cloonan, Esq., Holland & Knight, for Wackenhut International, Inc., a requester. David F. Innis, Esq., and Neil H. O'Donnell, Esq., Rogers Joseph O'Donnell & Phillips, for the protester. Henry J. Gorczycki, Esq., and Jerold D. Cohen, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision. DIGEST 1. Requests for reconsideration of decision finding that the contracting agency improperly applied an evaluation preference for U.S. persons to the awardee's proposal absent the information required by the agency's regulation and the solicitation are denied, where the requests do not show that the required information was provided to, or otherwise known by, the agency at the time of the evaluation. 2. Agency's request for modification of GAO recommendation that guard services contract at a foreign embassy be terminated immediately and a new contract awarded to the protester is granted, in view of security concerns at the embassy, as well as significant change in the agency's needs for guard services. DECISION The Department of State (DOS) and Wackenhut International, Inc. (WII) request that we reconsider our decision in Inter-Con Sec. Sys., Inc., B-295352, B-295352.2, Feb. 8, 2005, 2005 CPD P __, sustaining Inter-Con's protest of an award to WII under solicitation No. S-IV100-2002-Q-0567, issued by DOS for guard services in Abidjan, Ivory Coast. DOS alternatively requests that we modify the recommendation in our decision. We deny the requests for reconsideration; we grant the request for modification of the recommendation. Under our Bid Protest Regulations, to obtain reconsideration the requesting party must show that our prior decision contains errors of either fact or law, or must present information not previously considered, upon which reversal or modification of the decision is deemed warranted. 4 C.F.R. S 21.14(a) (2004). The issue on which we sustained Inter-Con's protest concerned DOS's application of an evaluation preference to WII's proposal. The Foreign Relations Authorization Act for Fiscal Years 1990-1991, Pub. L.A No. 101-246, 104 Stat. 15, 33 (codified as amended at 22A U.S.C. SA 4864A (2000)), requires the agency to apply a 10-percent price evaluation preference to the proposals of offerors qualifying as either "United States persons" or "qualified United States joint venture persons." 22A U.S.C. SA 4864(c)(3). The Act defines a U.S. person as a person that meets a number of specific requirements, and defines a qualified U.S. joint venture person as a joint venture in which a U.S. person(s) owns at least 51 percent of the assets of the joint venture. 22 U.S.C. SA 4864(d)(1), (2). Pertinent to the protest is the requirement in the definition of a U.S. person that the person "has achieved a total business volume equal to or greater than the value of the project being bid in 3A years of the 5-year period before the [solicitation issuance date]." 22A U.S.C. SA 4864(d)(1)(E). Total business volume, though not defined in the Act, is defined in a questionnaire that an offeror is required to complete if it represents that it is eligible for the evaluation preference. The questionnaire derives from Department of State Acquisition Regulation (DOSAR) SA 652.237-73, "Statement of Qualifications for Preference as a U.S. Person," which defines total business volume as "the U.S. dollar value of the gross income or receipts reported by the prospective offeror on its annual federal tax returns." DOSAR SA 652.237-73(d)(5). The questionnaire, with this definition, was included in the solicitation at SA K.11. In order to obtain the evaluation preference, an offeror had to submit a properly completed and certified Statement of Qualifications questionnaire.