Link: GAO Decision
Protestor: Blackstone Consulting, Inc.
Agency: Department of the Air Force
Disposition: Request for Reimbursement Granted.
GAO recommends reimbursement of the costs of filing and pursuing protest challenging agency’s failure to evaluate firm’s past performance questionnaires as part of the past performance evaluation where the issue was clearly meritorious but the agency unduly delayed taking corrective action; protest costs need not be allocated between clearly meritorious protest issue and other protest issues where all issues were intertwined parts of protester’s basic objection that the agency’s past performance evaluation was improper.
General Counsel PC Highlight:
Blackstone Consulting, Inc. requested that the GAO recommend that the agency reimburse its costs of filing and pursuing a protest of the award to Food Services, Inc. of a contract for the provision of full food services at the Five Hats dining facility at Fort Meade, Maryland. Blackstone had challenged the reasonableness of its past performance evaluation, arguing that it should have been assigned a “substantial confidence” rating based on the timely email submission of questionnaires to the agency by two of Blackstone’s references. After filing its agency report, the agency conducted another search of its email system and located the questionnaires; it then agreed to take corrective action.
The agency objected to reimbursing Blackstone for its costs associated with protest grounds besides the agency’s failure to locate the two references’ submissions. Blackstone countered that its protest grounds were all based on the related legal theory that its proposal was misevaluated under the past performance factor, and that the issues it raised shared a common set of facts. The GAO found that the other arguments made by Blackstone were not clearly severable from the argument that the agency failed to evaluate its past performance questionnaires. The GAO also pointed out that the agency was advised of the missing questionnaires in the initial protest. The corrective action was not prompt because the agency failed to perform an adequate search of its email system.
A protestor should always keep detailed records indicating the amount of work dedicated to each issue the protestor is pursuing against the agency. If the agency takes corrective action based on a single issue, and the other issues argued by the protestor are sufficiently distinct, the protestor may only be reimbursed for the costs relating to that single issue. Failure to properly separate and document these costs could lead to a denial of reimbursement for all costs.