Link: GAO Opinion
Agency: United States Coast Guard
Disposition: Request granted.
Protest is clearly meritorious and reimbursement of costs of filing and pursuing protest is recommended where reasonable agency inquiry into initial protest allegations would have revealed insufficient basis for technical evaluation results related to awardee’s proposed technical personnel.
General Counsel P.C. Highlight:
Five days after receiving CDG’s comments and supplemental protest, on January 27, 2009, the Coast Guard informed GAO that it had decided to take corrective action consisting of reopening discussions and evaluating revised proposals. As a result, GAO dismissed the protests on February 2. CDG then filed this request for reimbursement of its protest costs. GAO states that where an agency takes corrective action in response to a protest, GAO may recommend reimbursement of 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. A protest is “clearly meritorious” where a reasonable agency inquiry into the protester’s allegations would reveal facts showing the absence of a defensible legal position. With respect to the promptness of the agency’s corrective action under the circumstances, GAO reviews the record to determine whether the agency took appropriate and timely steps to investigate and resolve the impropriety. As a general rule, so long as the agency takes corrective action by the due date of its protest report, GAO considers the action to be prompt.
CDG asserts that because several of the resumes in Symtech’s proposal, including the resume of Symtech’s proposed CAD manager, did not meet the RFP’s requirements, a reasonable review of CDG’s initial protest should have revealed that the protest was clearly meritorious. Additionally, CDG argues that the Coast Guard unduly delayed corrective action by submitting an agency report defending its evaluation before ultimately conceding that it “carefully reviewed the proposal submitted by Symtech Corporation and has determined that their proposal failed to meet the minimum requirements of the solicitation.” GAO agrees. The Coast Guard took corrective action in this protest due to its recognition that some of the resumes supplied by Symtech did not meet the requirements of the solicitation, but contends that CDG’s initial protest was not clearly meritorious because the initial allegations concerned only Symtech’s proposed CAD manager, whose resume the Coast Guard continues to insist “clearly indicates he meets the minimum requirements.” GAO’s review of the record, however, does not support that conclusion. Rather, GAO concludes that CDG’s initial protest was clearly meritorious and that, had the agency conducted a reasonable review of the allegations in CDG’s initial protest, it would have discovered that Symtech’s proposed CAD manager’s resume did not provide a sufficient basis to conclude that he meets the RFP requirements. Specifically, the proposed CAD manager’s resume did not include a certificate from an AutoCAD certified training center, and while the resume did set forth 16 years of general experience, nothing in that work history demonstrated ArchiCAD training or six years of full-time ArchiCAD working experience. In fact, the only reference to ArchiCAD in the entire resume was the listing “ArchiCAD 8.0” in a section of the resume stating “software applications include . . . .”
GAO concludes that a reasonable inquiry into CDG’s initial protest would have revealed that it was clearly meritorious, as Symtech’s proposed CAD manager’s resume was insufficient to demonstrate the level of experience required by the solicitation. Thus, by failing to take corrective action before submitting an agency report to rebut the initial protest, the Coast Guard unduly delayed corrective action in the face of a clearly meritorious protest. Accordingly, GAO recommends that the Coast Guard reimburse CDG for the reasonable costs of filing and pursuing its protests of the award to Symtech. CDG should submit its claim for costs, detailing and certifying the time expended and costs incurred, directly to the Coast Guard within 60 days of receipt of this decision.