Matter of ANAMAR Environmental Consulting, Inc. (Nov. 9, 2016)
Agency: Department of the Army, Corps of Engineers
Disposition: Request for Reimbursement Granted
Keywords: Reimbursement, clearly meritorious, promptness of agency response
Decided: Protester request for reimbursement granted
General Counsel P.C. Highlight: Where a protest is clearly meritorious, and the agency’s response is not prompt or does not address the issue raised by the protester, protest costs, including attorney’s fees, may be granted.
ANAMAR Environmental Consulting, Inc. first filed a protest and supplemental protest, which was dismissed upon the agency’s assurance that they would implement corrective action. The agency failed to do so, which resulted in a second protest. The agency again assured the GAO they would implement corrective action, and the protest was dismissed. However, the agency again failed to address the issue ANAMAR identified, in agency’s evaluation of proposals. As such, ANAMAR was forced to file a third protest, which was dismissed after the agency issued the agency report, when the agency decided to cancel the award and solicitation.
ANAMAR requested reimbursement for costs and attorney’s fees, as well as the cost of proposal preparation.
Standard of Review for Requests for Reimbursement
The GAO notes that where the action of an agency violates a given procurement statute or regulation statute, protest costs may be reimbursed. 31 U. S. C. §3554 (c) (1). When an agency takes corrective action, in direct response to a protest, the GAO may recommend reimbursement both for the cost of filing the protest and also for pursuing the protest. The cost of pursuing the protest include, but are not limited to, reasonable attorney’s fees. 4 C. F. R. § 21 .8 (e).
Reimbursement is not awarded in every case where an agency decides to take corrective action. Instead, reimbursement is limited to situations where the protest is clearly meritorious and the agency fails to act in a prompt manner.
“Clearly meritorious” means that the correctness of the protest is not even a close question. Put another way, “clearly meritorious” has been defined as “the absence of a defensible legal position.”
Promptness of the Agency Response
In evaluating the promptness of the agency’s response in implementing the corrective action, a review of the record is conducted to determine whether the agency took timely and appropriate steps to both investigate the allegation and also to resolve any alleged impropriety. As a general rule, an agency’s actions are considered to be prompt if they are taken prior to the date the agency report is due. However, when agencies respond after the agency report’s due date, the GAO generally does not consider the response to be prompt.
It is not the mere promise of corrective action, but rather the implementation of corrective action that is critical. Where, such as in the case at hand, the agency failed to implement corrective action that they assured the GAO they would implement, or take steps to implement corrective actions that don’t specifically address the meritorious protest, the protester is necessarily subjected to the additional expense of a subsequent protest, arguing about the very same protest or procurement deficiency. Consequently, these collective actions can be considered a lack of promptness.
Reimbursement for the Cost of Proposal Preparation
ANAMAR also requested reimbursement of the cost of the proposal preparation itself. The GAO held the cost of proposals are considered the typical cost of doing business. Given the circumstances, the GAO found no basis to grant that request.