Link: GAO Decision
Protestor: Boston Harbor Development Partners, LLC
Agency: General Services Administration
Disposition: Request Denied.
Protester is not entitled to reimbursement of protest costs after agency took corrective action where protest was not clearly meritorious.
General Counsel P.C. Highlight:
Boston Harbor Development Partners, LLC (BHDP) requested the reimbursement of costs stemming from its protest of the award to Emerald Corporate Center (ECC) of a contract for the design, construction, and leasing of a dedicated campus facility for the Federal Bureau of Investigation. Boston Harbor Dev. Partners, LLC, B-404614.3, B-404614.4, Nov. 22, 2011. BHDP argued that ECC’s site did not meet mandatory minimum requirements, that ECC’s offer constituted a prohibited capital lease, and that ECC was allowed to make a late revision. The GSA took corrective action and the protest was dismissed as academic.
The GAO noted that it will only award costs where the agency unduly delayed taking corrective action in the face of a clearly meritorious protest. It disagreed with BHDP’s argument that the GSA’s statement that it would reevaluate offers and scrutinize its price evaluations was an acknowledgement of the merit of BHDP’s protest. The GAO pointed out that it had said that a hearing would be necessary to develop the protest record, and that the protest still presented a close question at the time of dismissal.
Protestors whose protests are dismissed in the face of corrective action by the agency are not automatically entitled to reimbursement of their protest costs. As long as the record shows some support for the agency’s assertions at the time corrective action is taken, the GAO is not likely to award costs. Protestors should examine the record for any issues that remained outstanding at the time of dismissal and think carefully before expecting reimbursement if any such issues are present.