Link: GAO Opinion
Agency: Department of the Army
Disposition: Request denied.
Keywords: Protest costs; corrective action
General Counsel P.C. Highlight: GAO may recommend reimbursement of protest costs where an agency does not timely implement the promised corrective action that led to the dismissal of an earlier protest. GAO has also found that months-long delays do not by themselves constitute an undue delay where an agency reasonably justifies or explains those delays.
Computer Cite (CCite) requests that GAO recommend that the Department of the Army reimburse the firm the reasonable costs of filing and pursuing its protests with respect to section 8(a) awards made to another corporation for various support services.
The Army issued a request for quotations (RFQ), as a small business set-aside, for the award of single contract. In response to the protest of another vendor, the Army concluded that the solicitation did not meet its needs, cancelled the solicitation, and determined that it would issue a new solicitation. The Army then issued another RFQ, as a small business set?aside. Five vendors, including CCite, submitted quotations, all of which were found to be unacceptable. The Army cancelled the solicitation and offered the procurement to the Small Business Administration (SBA) for a direct award under that agency’s section 8(a) program to another corporation. SBA accepted the procurement and made a direct award. CCite protested, arguing that the award violated SBA’s regulations. Performance of the awardee’s contract was stayed by the protest. Before submitting its report in response to CCite’s protest, the Army informed GAO that it would withdraw this requirement from the section 8(a) program and resolicit the requirement as a small business set-aside. CCite’s protest was dismissed as academic.
Before taking corrective action in response to CCite’s protest, the Army determined that the services were necessary for mission-critical support, and, to maintain emergency services while CCite’s protest was pending, the Army decided to award a four-month bridge contract to the original awardee. The SBA accepted the Army’s offer for award of a four-month bridge contract, as a section 8(a) directed award. CCite protested the award of this bridge contract as violating SBA’s regulations. The performance of the first bridge contract was stayed by the protest. The Army determined that a “significant portion” of the contract’s scope was not required and terminated the contract. GAO again dismissed CCite’s protest as academic.
The Army awarded a second bridge contract to the original awardee to obtain limited emergency dispatch services for 30 days; the awardee was the incumbent contractor for these services. This contract was not protested.
CCite requests that GAO find that the protester should be reimbursed its costs of filing and pursuing its protests, because the Army has unreasonably delayed implementing the promised corrective actions that caused GAO to dismiss its protests as academic. GAO states that it has recognized that the reimbursement of protest costs may be appropriate where an agency does not timely implement the promised corrective action that led to the dismissal of an earlier protest. GAO has also found that months-long delays do not by themselves constitute an undue delay where an agency reasonably justifies or explains those delays.
The Army states that following the dismissal of CCite’s protests, in early November 2010, the agency transferred the procurement to a new contracting office “to provide a fresh perspective on a problematic procurement.” The agency’s contract specialist in the new contracting office began reviewing the requirements and, on December 17, 2010, drafted a request for proposals (RFP) for these requirements. Revisions were made to the draft RFP in January 2011. On February 16, the Army posted a synopsis of its requirements on the FedBizOpps website, and on February 19, the RFP was posted on the website as a small business set-aside. The RFP has since been amended three times. The closing date for receipt of proposals was March 3. The record shows that the Army did not unduly delay implementing its promised corrective action. Instead, from the time the Army proposed corrective action in October, 2010, until the issuance of the RFP as a small business set-aside four months later (in February, 2011), the Army acted as it promised in its corrective action letter. Accordingly, GAO finds no basis to recommend that CCite should be reimbursed its costs for filing and pursuing its protests. The request is denied.