Link: GAO Opinion
Agency: Department of Veterans Affairs
Disposition: Request denied
Keywords: Reimbursement of Protest Costs
General Counsel P.C. Highlight: Generally, when an agency takes corrective action before the due date for its report, GAO regards such action as prompt and will not recommend reimbursement of costs.
A-Ability Medical Equipment, Inc. requests that it be reimbursed the costs of filing and pursuing protests of the award of a contract by the Department of Veterans Affairs (VA) under a solicitation for durable medical equipment.
After the VA awarded the contract at issue to another offeror A-Ability protested, arguing that the awardee was neither a service disabled veteran-owned small business (SDVOSB) nor capable of performing, and that A-Ability was more technically qualified that the awardee, given the protester’s superior certification, employee training, and past performance. Prior to the due date for the agency report, the agency informed GAO that it intended to take corrective action, to include, at a minimum, conducting a new evaluation and making a new award decision.Based on the agency’s proposed corrective action, GAO dismissed the protest as academic. Following corrective action, the agency again made award to the previous awardee. A-Ability protested, repeating the three allegations from its prior protest. Prior to the due date for the agency report, the agency informed GAO that it intended to cancel the solicitation, clarify its requirements and evaluation criteria, and issue a new solicitation. Since the agency was canceling the solicitation, GAO dismissed the second protest as academic.
A-Ability requests that GAO recommend that the agency pay the protest costs associated with both protests, arguing that the VA’s corrective action in response to the first protest failed to address a clearly meritorious protest allegation, and that the agency’s failure to take appropriate corrective action required the protester to file a second protest. GAO states that where a procuring agency takes corrective action in response to a protest, GAO may recommend that it reimburse the protester its protest costs where, based on the circumstances of the case, GAO determines that the agency unduly delayed taking corrective action in the face of a clearly meritorious protest, thereby causing the protester to expend unnecessary time and resources to make further use of the protest process in order to obtain relief. Generally, when an agency takes corrective action before the due date for its report, GAO regards such action as prompt and will not recommend reimbursement of costs. GAO has recognized, however, that the mere promise of corrective action, without reasonably prompt implementation, has the obvious effect of circumventing the goal of the bid protest system for the economic and expeditious resolution of bid protests. Thus, where an agency fails to implement the promised corrective action, or implements corrective action that fails to address a clearly meritorious issue raised in an initial protest, such that the protester is put to the expense of subsequently protesting the very same procurement deficiency, the agency’s action has precluded the timely, economical resolution of the protest.
Here, there is no basis to conclude that the agency has unduly delayed taking corrective action in response to a clearly meritorious protest. In response to the first protest filed by A-Ability, the agency promptly indicated that it would take corrective action. To the extent A-Ability maintains that its protest costs are justified because the agency has taken “corrective action” in response to A-Ability’s second protest, A-Ability’s argument is misplaced. A-Ability’s second protest was not rendered academic based on the agency’s representation that it would correct the same evaluation issues raised in A?Ability’s first protest. Rather, the protest was rendered academic for reasons not directly related to the protest issues raised by A?Ability–the agency’s decision to cancel and re-issue the solicitation in order to clarify its requirements and evaluation criteria. Since A-Ability’s second protest was rendered academic for reasons not directly related to the protest allegations, there was no corrective action; that is, there was no indication that the agency recognized the merits of the protest and was taking action to remedy the impropriety identified by the protester. The request is denied.