Link: GAO Opinion
Agency: Department of Homeland Security
Disposition: Request granted.
Keywords: Protest Costs.
General Counsel P.C. Highlight: When a procuring agency takes corrective action GAO will recommend reimbursement of protest costs if the GAO finds that the agency unduly delays taking corrective action in the face of a clearly meritorious protest. A protest is considered clearly meritorious when a reasonable agency inquiry into the protest’s allegations would show that the agency lacked a defensible legal position, that is, the protest does not involve a close question.
Facility Services Management, Inc. (FSI) requests that GAO recommend that the Department of Homeland Security reimburse its costs of filing and pursuing its protest in connection with the issuance of a blanket purchase agreement (BPA) for facility maintenance, repairs and operations services at the Coast Guard Yard in Baltimore, Maryland.
The solicitation, limited to vendors holding General Services Administration Federal Supply Schedule contracts, contemplated issuance of a fixed-price BPA for a base year, with four option years. The contract was to be awarded on a best-value basis. The solicitation included a performance work statement (PWS) that specified required experience and education requirements for key personnel.
FSI filed an initial protest challenging the selection of the awardee on several grounds, including that the awardee misrepresented the availability of its key personnel or engaged in a “bait and switch” of those personnel. FSI filed two supplemental protests raising additional grounds.
GAO advised the parties that most of FSI’s issues failed to state valid bases of protest since they were based on speculation, or were otherwise subsumed by the valid issues. Once the agency report was received, FSI filed a third supplemental protest that separately challenged the evaluation of the awardee’s key personnel and past performance. GAO requested that the agency provide a supplemental report addressing those issues and the agency notified GAO that it intended to take corrective action. FSI’s protests were dismissed as academic. A fourth protest was filed and dismissed. FSI finally submitted this request that GAO recommend reimbursement of its costs.
GAO states that it will recommend reimbursement of protest costs if the GAO sustains a protest, or where the agency unduly delays taking corrective action in the face of a clearly meritorious protest. A protest is considered clearly meritorious when a reasonable agency inquiry into the protest’s allegations would show that the agency lacked a defensible legal position, that is, the protest does not involve a close question. With respect to the promptness of the agency’s corrective action, GAO reviews the record to determine whether the agency took appropriate and timely steps to investigate and resolve the impropriety. GAO generally does not consider it to be prompt where corrective action is taken after the due date for the agency report responding to the protest.
GAO finds that the allegations regarding the awardees’ key personnel were raised in the initial protest and the allegations were sufficiently specific that a reasonable investigation by the agency would have led it to conclude that some, if not all, of the awardees’ key personnel failed to meet the PWS requirements. Having waited until after the filing of its report and FSI’s comments and supplemental protest, GAO finds that the agency unduly delayed taking corrective action in the face of a clearly meritorious protest assertion. Therefore, the request for recommendation for reimbursement is granted, but will not extend beyond FSI’s challenge to the evaluation of the qualification of the awardees’ key personnel.