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The agency asserts that the insufficient financial information
did not preclude a finding that WII was eligible for the
preference because it was not restricted solely to the
information submitted by offerors in making its eligibility
determination. In this regard, the agency points to its
regulations, which provide that, although qualifications will be
determined "primarily" on the basis of information submitted in
the offeror's Statement of Qualifications, "the Government may,
at its discretion, rely on information contained elsewhere in
the offeror's proposal or obtained from other sources."
Department of State Acquisition Regulation (DOSAR)
652.237-73(c). Thus, in finding that WII possessed the requisite
business volume, the agency turned to other information,
specifically, other contracts that WII had performed for the
agency. In this regard, the agency reasoned as follows: "While
specific figures for gross business volume of WII as [an] entity
separate from parent Wackenhut Corporation cannot be extracted
from consolidated business statements, payments made to WII
joint ventures under Embassy contracts are plainly more than
sufficient to meet the business volume requirement." Agency
Report (AR), Tab 3, at 2. While we agree with the agency that it
could rely on other available information, the record does not
support the agency's conclusion. Although WII's questionnaire
includes evidence of 18 security guard contracts with an annual,
combined contract value in excess of the new contract's value,
WII performed most of these contracts as a joint venturer with
another entity. Since these contracts are performed overseas by
the foreign joint venture partner using locally-hired personnel,
it is reasonable to infer that some significant portion of the
contract payments flow to the foreign joint venture partner.
Inasmuch as WII is the entity seeking eligibility as a U.S.
person, only that portion of the annual contract value flowing
to WII is relevant to the determination. However, there is
nothing in the record to indicate how much of that annual value
qualifies as WII's under the question 5 definition of "total
business volume." For example, the contracts with the largest
annual values--$1 million to6.9 million--were performed as joint
ventures with various of WII's foreign joint venture partners
such as Group 4 Falck (Canada) Ltd., Wackenhut SA (Ivory Coast),
Wackenhut Jamaica Ltd., Wackenhut U.K. Ltd., and Group 4 Falck
Korea. WII Questionnaire, attach. 1 & 2. Other contracts were
performed without WII as a partner at all, including those
performed by Wackenhut Security Hellas (Greece), Wackenhut El
Salvador (El Salvador), and Serenos Victoria (Venezuela). Id.
Only two contracts were performed by WII alone--Gambia and
Mozambique--and their combined annual value, even over 3 years,
is less than the new contract value. Id. While the requirements
for establishing the requisite business volume are plainly
stated in the questionnaire, nothing in the record indicates
that the agency made any attempt to identify that information
for WII; it did not calculate what portion of the payments to
the joint venture represented WII income. Likewise, although WII
intervened in this protest, it has provided no information to
establish what portion of the identified contract value
represented gross income or receipts reported by WII on its
federal income tax returns. Absent some information indicating
that the identified annual value of WII's joint venture
contracts represents such taxable income for WII, there was no
basis for the agency to conclude that the firm met the business
volume requirement. Accordingly, we sustain the protest on this
basis. (Inter-Con Security Systems,
Inc., B-295352; B-295352.2, February 8, 2005) (pdf) |
