Link: GAO Opinion
Agency: Department of the Air Force
Disposition: Request for reimbursement denied.
Keywords: Reimbursement of protest costs
General Counsel P.C. Highlight: GAO will not recommend reimbursement of protest costs and fees where the basis of the corrective action is unrelated to the actual protest grounds filed by the protester.
The Department of the Air Force awarded a contract to Inuit Services, Inc. for military family housing maintenance services at Eielson Air Force Base, Alaska. DGR Associates, Inc. protested Inuit’s size to the SBA and protested an alleged improper evaluation of Inuit’s past performance to the GAO.
After DGR filed its protest, counsel for Inuit notified all parties (including GAO) that it had recalculated its average annual revenue for the last three years and determined that it could not, and would not, accept the award because it did not meet the size standards. Eight days later, the Small Business Administration (SBA) issued a size status determination that found Inuit ineligible for the award, after which the Air Force notified GAO that it was terminating the contract. However, after it notified GAO, the Air Force learned that Inuit was appealing the SBA determination, and decided that it would not terminate the contract until the appeal was decided.
Meanwhile, GAO continued its processes related to the DGR protest regarding Inuit’s past performance. As a part of this process, the Air Force provided an Agency Report that responded to DGR’s allegations. DGR then filed comments in response to the Air Force’s Agency Report, which included an additional argument related to Inuit’s past performance.
SBA denied Inuit’s size status appeal, and the Air Force subsequently decided to terminate Inuit’s contract and, because its requirements had changed, decided to re-solicit the requirement. On this information, GAO dismissed DGR’s protest as academic, at which point DGR requested reimbursement for its costs in preparing its comments to the agency report. As the basis for this request, DGR claimed that it would have been unnecessary to file comments if the Air Force had terminated the Inuit contract at the time it was first informed that SBA had determined Inuit to be other than small, and thus ineligible for the award.
GAO has the authority to recommend the reimbursement of costs when it finds that an agency’s action violated a procurement statute or regulation. Typically, this is done when a protestor can show that the agency’s action that rendered a protest academic was taken in response to the protest, and that the agency unduly delayed taking the action in the face of a clearly meritorious protest. It will not recommend payment of protest costs where the corrective action was not based on the protester’s protest grounds. Here, because the Air Force took corrective action in response to the SBA determination, rather than in response to the arguments raised by DGR in its comments to GAO, DGR’s request for reimbursement was denied.