Link: GAO Opinion
Agency: Department of the Army
Disposition: Request granted.
Keywords: Recovery of Attorney’s Fees
General Counsel P.C. Highlight: When a procuring agency takes corrective action in response to a protest, GAO may recommend that the agency reimburse the protester its costs and attorney’s fees where, based on the circumstances of the case, it determines that the agency unduly delayed taking corrective action in the face of a clearly meritorious protest, thereby causing a protester to expend unnecessary time and resources to make further use of the protest process in order to obtain relief.
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Greentree Transportation Company, Inc. requests that GAO recommend that the Department of the Army reimburse its costs of filing and pursuing its protest of the terms of a solicitation, issued by the Department of the Army for freight transportation services.
The Army issued a solicitation under the Defense Transportation Regulation for the movement of various kinds of freight. The Army selected Greentree’s tender for award; another carrier, McCollister’s Transportation Group, Inc., protested to GAO. The Army canceled the solicitation, and GAO dismissed McCollister’s protest as academic. The Army issued a new solicitation for the same freight services. Greentree protested to GAO that the solicitation was ambiguous with respect to the basis for award. Specifically, Greentree argued that, although the solicitation stated that award would be made on a best value basis based on listed factors and standards, the factors and standards suggest that award would be made on a lowest-priced, technically acceptable basis because the solicitation provided no indication how the tenders would be evaluated comparatively or quantitatively. Through outcome prediction ADR, GAO stated that it would likely sustain Greentree’s protest because the solicitation was ambiguous with respect to the basis for award. The Army decided to amend the solicitation to clarify the evaluation methodology and establish a new date for receipt of tenders. Based upon this corrective action, GAO dismissed Greentree’s protest as academic.
Greentree requests that GAO recommend that the agency reimburse its costs of filing and pursuing its protest of the terms of the replacement solicitation. GAO states that when a procuring agency takes corrective action in response to a protest, GAO may recommend that the agency reimburse the protester its costs where, based on the circumstances of the case, it determines that the agency unduly delayed taking corrective action in the face of a clearly meritorious protest, thereby causing a protester to expend unnecessary time and resources to make further use of the protest process in order to obtain relief. A protest is clearly meritorious where a reasonable agency inquiry into the protest allegations would have shown facts disclosing the absence of a defensible legal position.
Here, the willingness to inform the parties through outcome prediction ADR that the protest was likely to be sustained on the identified ground was an indication that GAO views that ground as clearly meritorious for purposes of recommending reimbursement of protest costs. GAO finds Greentree’s protest of the terms of the solicitation to be clearly meritorious. As GAO indicated in our ADR conference, it agrees with Greentree that the solicitation was ambiguous and needed to be amended.
The Army asserts that its corrective action was not unduly delayed. In this regard, the Army argues that in the context of the procurement under the Defense Transportation Regulation, there is “no case law directly on point with regard to the discretion afforded the Transportation Officer in making a best value determination.” GAO states that in determining whether an agency’s corrective action was unduly delayed, it will review the record to determine whether the agency took appropriate and timely steps to investigate and resolve the impropriety. GAO generally does not consider corrective action to be prompt if it is taken after the due date for the agency report responding to the protest.
GAO found that the Army unduly delayed taking corrective action in the face of a clearly meritorious protest. While GAO agrees that there may be little case law on procurements conducted under the Defense Transportation Regulation, the law is clear with respect to an agency’s obligation to inform competitors in a federal procurement of the basis for its selection decision. In any competitive federal procurement, competing firms must be informed of the basis for selection and how their offers or tenders will be evaluated. Given that the Army elected to ignore this basic precept, prepared a report defending its actions, required the protester to file comments rebutting the agency’s report before taking corrective action, and required GAO to convene an ADR conference before acting, GAO concludes that the agency’s corrective action was unduly delayed.
GAO recommends that the Army reimburse the protester its costs of filing and pursuing the protest of the terms of the solicitation, including attorneys’ fees. The request is granted.