Link: GAO Opinion
Agency: Department of the Army
Disposition: Request denied.
Request that the Government Accountability Office recommend reimbursement of protest costs is denied where the initial protest grounds were not clearly meritorious and the agency did not unduly delay taking corrective action after the protester later raised specific challenges based on review of the agency report.
General Counsel P.C. Highlight:
ICCI argues that its protest was clearly meritorious and that the agency unduly delayed taking corrective action until after the due date for the agency report and the protester had filed comments on the agency report. Under the Competition in Contracting Act of 1984, GAO may recommend that protest costs be reimbursed where GAO finds that an agency’s action violated a procurement statute or regulation. Where an agency takes corrective action in response to a protest, GAO may recommend that the protester recover the reasonable costs of filing and pursuing the protest, where it concludes that the agency unduly delayed taking corrective action in the face of a clearly meritorious protest. A protest is clearly meritorious where a reasonable agency inquiry into the protest allegations would have shown facts disclosing the absence of a defensible legal position. As a general rule, so long as an agency takes corrective action by the due date of its protest report, GAO regards the action as prompt, and will not consider a request to recommend reimbursement of protest costs. If it is in the protester’s comments on the agency report that the agency is presented for the first time with information that clearly calls into questions the agency’s challenged determination, and the agency then promptly takes corrective measures, we will conclude that the agency did not unduly delay in taking corrective action.
Here, GAO cannot say that the protester’s general allegation that the agency failed to consider the protester’s “strong record” in performing government construction work was clearly meritorious. ICCI has not shown that its initial protest on this ground was clearly meritorious in the sense that it presented a prima facie case that, without more, demonstrated a valid basis for GAO to sustain its protest. Rather, in order for GAO to reach a decision about ICCI’s initial protest allegations, it had to further develop the record, including a complete agency report and the protester’s comments on the report. Because ICCI’s initial protest did not present what could reasonably be described as clearly meritorious issues, it follows that there is no basis for recommending reimbursement of ICCI’s protest costs. Request denied.